Mahsin Ali Saikia vs State Of Assam And Ors.

(1) Heard Mr. S. Upadhaya, learned counsel for the petitioner. Also heard Mr. A Deka, learned Standing Counsel, Education Department, for

respondent Nos.1 to 3, Ms. D Das Barman, learned Govt. Advocate, for respondents No. 4 & 5, Mr. B Gogoi, learned Standing Counsel, Finance

Department, for respondent Nos. 6 & 7 and Mr. G Baishya Chetri, learned Standing Counsel, Accountant General (A&E) Assam for respondent

No.8.

(2) The petitioner herein, served as an Assistant Teacher in Jagara High School, in thedistrict of Nalbari, Assam since 07.04.1998 and retired from

service on 30.09.2011 after attaining the age of superannuation.

(3) The petitioner was initially paid Intermediate Scale of Pay since 07.04.1978. Later,the petitioner along with 13 others preferred a writ petition being

WP(C) No. 1268/2004 (Md. Nurul Inslam & 13 Others -Vs- State of Assam & 2 Others) claiming graduate scale of pay in terms of an order of the

Court dated 09.08.2002 passed in WP(C) No. 3083/2002. The Court by its order dated 02.03.2004 disposed of the said WP(C) No. 1268/2004 of

the petitioner directing the Commissioner and Secretary to the Government of Assam, Education Department to examine the case of the writ

petitioners individually, observing that if on such examination it is found that the said petitioners are eligible under the circulars/notifications of the State

Government to get graduate scale, the same shall be given to them forthwith.

(4) Pursuant to the same and on the basis of Government’s Circular No. B(3)S.72/2002/5dated 28.05.2003 communicated by the Directorate of

Secondary Education, Assam, vide its letter No. GB-EST/DSE/CC/246/2002/210 dated 14.07.2003, the Inspector of Schools, Nalbari District Circle,

Nalbari vide Order dated 23.08.2004 granted graduate scale of pay to the petitioner w.e.f. 07.04.1978.

(5) While the pension paper of the petitioner was under processes, the Directorate ofPension, Assam vide communication No. DP-2012/03/0085 dated

12.02.2014 enquired about the granting of graduate scale of pay to the petitioner and the Directorate of Secondary Education, Assam by its letter No.

Pen/Misc/3/2012/78 dated 02.01.2015 informed the former that he was allowed to draw graduate scale of pay from his date of joining on 07.04.1978

as per the order dated 23.08.2004 of the Inspector of Schools, Nalbari which was issued as per the order of the Court dated 02.03.2004 passed in

WP(C) No. 1268/2004. In the meanwhile the petitioner was paid provisional pension with other consequential pensionery benefits.

(6) However, the Directorate of Pension, Assam while issuing the final Pension Pay Order(PPO) to the petitioner vide No. Pen

ADP/PPO/GPO/2011-12/039271 on 12.10.2017 determined Rs. 9650/- as monthly pension of the petitioner w.e.f. 01.10.2011 and DCRG amount at

Rs. 5,02,887/-and accordingly, directed the Treasury Officer, Belsor to pay the petitioner the relevant amount after deducting Rs. 4,02,988/- already

paid to him towards provisional DCRG and Overpay Allowance of Rs. 6,88,316/-.Â

(7) Being aggrieved with such action of the Directorate of Pension, Assam dated12.10.2017 directing the Treasury Officer, Belsor to pay him the

relevant amount of pension deducting an amount of Rs. 6,88,316/- towards Overpay Allowance, the petitioner on 17.01.2018 submitted a

representation before the Director of Pension, Assam, which was duly received by the office concerned. But the same was not disposed of.

(8) Hence, this writ petition by the petitioner praying for issuance of an appropriate Writor direction to set aside and quash the impugned letter No.

Pen ADP/PPO/GPO/201112/039271 dated 12.10.2017 issued by the Director of Pension, Assam, respondent No. 5, for recovery of Rs. 6,88,316/-

from petitioner’s retirement dues, with an interim prayer to stay such recovery.

(9) Notice in this case was issued to the respondents on 04.04.2018 and in interimstayed the recovery of Rs. 6,88,316/- from petitioner’s

retirement benefits. The respondents did not file any affidavit in the matter.

(10) In the case of Col. B.J. Akkara (Retd.) -Vs- Govt. of India, reported in (2006) 11 SCC 709, the Hon’ble Supreme Court have held that â€

Relief against recovery of excess wrong payments of emoluments/ allowances from an employee can be granted on fulfillment of conditions that â€

(a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee and (b) Such excess payment was

made by the employer by applying a wrong principle for calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which

is subsequently found to be erroneous.

Such relief, restraining back recovery of excess payment, is granted by courts not because of any right in the employees, but in equity, in exercise of

judicial discretion to relieve the employees from the hardship that will be caused if recovery is implemented. A government servant, particularly one in

the lower rungs of service would spend whatever emoluments he receives for the upkeep of his family. If he receives an excess payment for a long

period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to recover the excess payment will cause undue

hardship to him, relief is granted in that behalf. But where the employee had knowledge that the payment received was in excess of what was due or

wrongly paid, or where the error is detected or corrected within a short time of wrong payment, courts will not grant relief against recovery. The

matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against

recovery.

On the same principle, pensioners can also seek a direction that wrong payments should not be recovered, as pensioners are in a more

disadvantageous position when compared to in-service employees. Any attempt to recover excess wrong payment would cause undue hardship to

them (pensioners).

(11) The Hon’ble Supreme Court in the case of Shyam Babu Verma -Vs- Union of India, reported in (1994) 2 SCC 521 have held that â€" it shall

only be just and proper not to recover any excess amount which has already been paid to the petitioners due to the fault of the respondents, where the

petitioners being in no way responsible for the same.

(12) Referring its various decisions, including Col. B.J. Akkara (supra) and Shyam Babu Verma (supra), the Hon’ble Supreme Court in the case

of State of Punjab -Vs- Rafiq Masih, reported in (2015) 4 SCC 334 have laid down that â€"Â

It is not possible to postulate all situations of hardship which would govern employees on the issue of recovery, where payments have mistakenly been

made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference,

summaries the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from the employees belonging to Class III and Class IV service (or GroupC and Group D service).

(ii) Recovery from the retired employees, or the employees who are due to retire withinone year, of the order of recovery.

(iii) Recovery from the employees, when the excess payment has been made for a periodin excess of five years, before the order of recovery is

issued.

(iv) Recovery in cases where an employee has wrongfully been required to dischargeduties of a higher post, and has been paid accordingly, even

though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the court arrives at the conclusion, that recovery if madefrom the employee, would be iniquitous or harsh or arbitrary to

such an extent, as would far outweigh the equitable balance of the employer’s right to recover.

(13) In the case of Rafiq Masih (supra) the Hon’ble Apex Court have also held that â€

Premised on the legal proposition considered above, namely, whether on the touchstone of equity and arbitrariness, the extract of the judgment

reproduced above, culls out yet another consideration, which would make the process of recovery iniquitous and arbitrary. It is apparent from the

conclusions drawn in Syed Abdul Qadir case [(2009) 3 SCC 475] that recovery of excess payments, made from the employees who have retired from

service, or are close to their retirement, would entail extremely harsh consequences outweighing the monetary gains by the employer. It cannot be

forgotten, that a retired employee or an employee about to retire, is a class apart from those who have sufficient service to their credit, before their

retirement. Needless to mention, that at retirement, an employee is past his youth, his needs are far in excess of what they were when he was

younger. Despite that, his earnings have substantially dwindled (or would substantially be reduced on his retirement). Keeping the aforesaid

circumstances in mind, we are satisfied that recovery would be iniquitous and arbitrary, if it is sought to be made after the date of retirement, or soon

before retirement. A period within one year from the date of superannuation, in our considered view, should be accepted as the period during which

the recovery should be treated as iniquitous. Therefore, it would be justified to treat an order of recovery, on account of wrongful payment made to an

employee, as arbitrary, if the recovery is sought to be made after the employee’s retirement, or within one year from the date of his retirement on

superannuation.

(14) It is seen that after the order dated 02.03.2004 passed by this Court in WP(C) No.1268/2004 (Md. Nurul Inslam & Ors -Vs- State of Assam &

Ors.), following the Government’s Circular dated 23.08.2004 that was communicated by the Directorate of Secondary Education, Assam on

14.07.2003, the Inspector of Schools, Nalbari by its order dated 23.08.2004 granted graduate scale of pay to the petitioner w.e.f. 07.04.1978, which he

received till the date of his retirement on 30.09.2011.Â

(15) It is also seen that in a query made by the Directorate of Pension, Assam on (12.02.2014 regarding drawal of graduate scale of pay by the

petitioner, the Directorate of Secondary Education, Assam by its letter dated 02.01.2015 informed the aforesaid fact. On being enquired, the

respondents in the Secondary Education Department stated that said order dated 23.08.2004 of the Inspector of Schools, Nalbari has neither been,

withdrawn, cancelled nor the same was set aside or quashed by the authority concerned debarring the petitioner from receiving graduate scale of pay

during his service period.

(16) Since the order dated 23.08.2004 passed by the Inspector of Schools, Nalbari, thepetitioner received graduate scale of pay since w.e.f.

07.04.1978 till his retirement from service on 30.09.2011. But, after more than six years of his retirement from service, the respondent Directorate of

Pension by its order No. Pen.ADP/PPO/GPO/2011-12/039271 dated 12.10.2017 directed the respondent Treasury Officer, Belsar, to recover the

said Overpay Allowance of Rs. 6,88,316/- allegedly paid to the petitioner, which itself is in violation of the law laid down by the Hon’ble Apex

Court as noted above.Â

(17) In the present case, it is not on account of any misrepresentation made by the petitioner during his service tenure that the benefit of graduate pay

scale was given to him, but it was paid to him by an order dated 23.08.2004 issued by the Inspector of Schools, Nalbari after an order dated

02.03.2004 passed by this Court in WP(C) No. 1268/2004, which he received till his retirement on 30.09.2011, for a long period genuinely believing

that he is entitled to said pay.  As such any subsequent action to recover the alleged Overpay Allowance from his pension amount payable to the

petitioner now will cause undue hardship to him. As such, in the said circumstances, the amount already paid to the petitioner during his service

tenure cannot be recovered now from his pension amount payable to him.Â

(18) From the above, it is seen that the balance of convenience and the prima facie caseis also in favour of the petitioner. If the pensioner’s

benefit is cut or deducted out of the total amount of pension payable to him, he will suffer an irreparable loss and injury since, after retirement, the

pensionary benefit is the only amount available towards the livelihood for the retired employees of the Government.

(19) For the reasons above, said part of the order of recovery of Overpay Allowance ofRs. Rs. 6,88,316/- from the pensionery benefit payable to the

petitioner in terms of the communication No. Pen.ADP/PPO/GPO/2011-12/039271 dated 12.10.2017 of the respondent Director of Pension to the

respondent Treasury Officer, Belsor, is hereby set aside and quashed.Â

(20) It is accordingly directed that the alleged Overpay Allowance of Rs. 6,88,316/- paidto the petitioner herein, the retired Assistant Teacher of

Jagara High School, in the district of Nalbari, Assam served under the Inspector of Schools, Nalbari, now shall not be recovered by the respondents

herein from the pension amount payable to the petitioner in terms of the communication of the Director of Pension, Assam to the Treasury Officer,

Belsar in terms of former’s letter No. Pen.ADP/PPO/GPO/2011-12/039271 dated 12.01.2017. Â

(21) With the above observation and direction, this writ petition stands allowed.

(22) The interim order passed earlier in this writ petition on 04.04.2018 stands mergedwith this order.