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2015 DIGILAW 1106 (GAU)

Tankeswar Kalita v. State of Assam

2015-08-31

HRISHIKESH ROY

body2015
JUDGMENT : 1. Heard Mr. G. Uddin, the learned Counsel appearing for the petitioner. The respondents 1,2,3 & 5 are represented by Mr. J. Handique, the learned Government Advoate. The learned Counsel Mr. R.K. Talukdar appears for the Accountant General (A&E), Assam (respondent No.4). 2. The petitioner started service as an Extension Officer (Tech) on 8.5.1983 in the Industries and Commerce Department and was posted at the Chenga Development Block, under the Project Director, DRDA, Barpeta (respondent No.5). The Pay Scale of Extension Officer was Rs.620-25-745-EB-30-895-EB-35-1313 and therefore at the entry point, the Extension Officer’s pay should have been fixed at Rs.620/- P.M. with Date of Next Increment (DNI) on 1.5.1984. Subsequently when Pay Scale was revised under the ROP Rules 1990, the petitioner’s pay should have been fixed at Rs.1785/- with the next increment due on 1.5.1989 in the Pay Scale of Rs. 1375-30-1435-40-1635-50-1885-EB-50-2035-60-2395-80-2875-100-3375. But instead it was fixed at a higher level at Rs.1885/-. During the next Pay Revision under the ROP Rules, 1998, the petitioner was entitled to the scale of Rs.3580-90-4480-120-4720-EB-120-5200-175-6600-250-8100-325-8750 and at that stage his Pay should have been fixed at Rs.5375/- instead of Rs.5900/- with Date of Next Increment on 1.5.1996. But through the mistaken fitment in the wrong slab, the petitioner was paid higher wages and after the mistake was detected, it is directed to be rectified through the letter dated 4.12.2007 (Annexure-5), issued by the Accountant General (A&E). 3. While the employee accepts that excess salary was paid, on the issue of recovery, he however contends that overdrawal should not be allowed to be recovered after so many years since the petitioner himself pointed out on 6.7.1985 (Page-14) to the Project Director, Barpeta that he was paid higher salary and requested for taking rectificatory steps. Therefore Mr. G. Uddin, the learned Counsel submits that as the departmental authorities failed to take corrective measures despite being cautioned by the petitioner himself, the overdrawal because of the departmental mistake, should not be allowed to be recovered from the employee, as he had no role in the matter. 4. On the other hand, Mr. Therefore Mr. G. Uddin, the learned Counsel submits that as the departmental authorities failed to take corrective measures despite being cautioned by the petitioner himself, the overdrawal because of the departmental mistake, should not be allowed to be recovered from the employee, as he had no role in the matter. 4. On the other hand, Mr. R.K. Talukdar, the learned Counsel appearing for the A.G. submits that when the petitioner was promoted to the Gazetted post of Superintendent, his Service Book during the non-gazetted period was required to be verified by the office of the A.G (respondent No.4) and at that stage, the higher payment came to light and this is how the impugned direction was issued for correction and recovery of the overdrawn amount. 5. In the counter-affidavit filed by the respondent No.2 on 27.6.2008, the employer has admitted that the Basic Pay was mistakenly pegged at a higher level and accordingly it is argued by Mr. J. Handique, the learned Government Advocate that the excess drawal can’t be retained by the employee. 6. In order to project that the petitioner can’t be faulted for the higher drawal and that he informed in writing to his employer for correction, as far back as on 6.7.1985, the necessary averments are made in paragraph-4 of the writ petition. But this specific averment about intimating the Project Director of Barpeta has remained unanswered in the counter-affidavit(s) of the employer and also of the A.G. Therefore this Court must proceed on the basis that it is on account of the employer’s mistake, the petitioner was paid higher salary during the non-gazetted status of his service, as Extension Officer. 7. But at the same time, it is nobody’s case that higher amount was not paid to the petitioner since 8.5.1983 onwards till the mistake came to light, when the petitioner was promoted to the gazetted status. Therefore the correction ordered by the A.G. through the impugned communication dated 4.12.2007 (Annexure-5), can’t legally be faulted. But the question is whether the overdrawal should be permitted to be recovered from the petitioner’s salary? In All Manipur Degraded Teachers Association vs. State of Manipur reported in 2005 (2) GLT 32, a Division Bench of this Court had declared that higher pay granted to the Government employees without any fault on their part should not be recovered. But the question is whether the overdrawal should be permitted to be recovered from the petitioner’s salary? In All Manipur Degraded Teachers Association vs. State of Manipur reported in 2005 (2) GLT 32, a Division Bench of this Court had declared that higher pay granted to the Government employees without any fault on their part should not be recovered. If we apply the ratio of this judgment and take into account the petitioner’s personal initiative through his written communication of 6.7.1985 (Page-14) to the Project Director to correct his payable salary, it has to be declared that for the employer fault only, the excess payment was made to the employee. 8. The petitioner himself wrote to the Project Director for correction of his payable salary but the same was unheeded by his superior and that is how higher salary was paid to the petitioner until the office of the A.G. detected the mistake, at the stage of verifying the Service Record, when the petitioner was promoted to the Gazetted status. In such circumstances and following the ratio in All Manipur Degraded Teachers Association (supra), I hold that while the rectification of the petitioner’s service book may be made and other consequential benefits may accrue, the extra payment should not be recovered from the incumbent. However the State authorities are at liberty to recover the differential amount from the defaulting officers who failed to take rectificatory steps, despite the written representation made by the incumbent himself on 6.7.1985 (Page-14). It is ordered accordingly. 9. With the above order, the case is disposed of without any order on cost.