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2018 DIGILAW 446 (GAU)

Rajani Kanta Hazarika v. State of Assam

2018-03-14

ACHINTYA MALLA BUJOR BARUA

body2018
JUDGMENT & ORDER : 1. Heard Mr. S. Borthakur, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Elementary Education Department, Mr. R.K. Talukdar, learned counsel for the Pension Department as well as Mr. R Borpujari, learned standing counsel for the Finance Department. 2. The petitioner who was serving as Head Teacher of Bherekichuk L.P. School, superannuated from service on 31.07.2014. 3. The Finance & Accounts Officer in the Directorate of Pension, Assam had made a communication dated 21.02.2017 to the Deputy Inspector of Schools, Dhemaji, that the pay of the petitioner should be fixed at Rs.525/- instead of Rs.537/- and hence there is an excess drawal from that date. 4. The law in this respect has been settled by the Hon’ble Supreme Court in Shyam Babu Verma and Rafiq Masih case, wherein, it has been provided that in the event, an employee is paid a higher pay, than he is entitled during his service tenure for no fault of his, such amount cannot be deducted from his pensionary benefit upon superannuation. 5. Mr. R.K. Talukdar, learned State counsel for the Pension Department states that in the meantime, the Judicial Department of Govt. of Assam has also given a legal opinion in the communication dated 16.02.2018 that as per the law laid down by the Hon’ble Supreme Court, recovery due to excess payment is impermissible under the law, in the event the higher pay was not paid because of any fault of the employee. 6. By following the principle of law laid down by the Hon’ble Supreme Court, this Court is of the view that the communication dated 21.02.2017 of the Finance & Accounts Officer to the Deputy Inspector of Schools, Dhemaji is unsustainable and the authorities cannot deduct any excess payment that was made to the petitioner for no fault of his during his service tenure. 7. Accordingly, this Court is of the view that as per the law laid down by the Hon’ble Supreme Court in Shyam Babu Verma and Rafiq Masih, the respondent authorities cannot take up a process to deduct the excess payment made to the petitioner from his pensionary benefits without ascertaining that the excess payment was not due to any fault of the petitioner. Accordingly, the communication dated 21.02.2017 is hereby set aside. Accordingly, the communication dated 21.02.2017 is hereby set aside. The respondent authorities are directed to process the pension of the petitioner as per law without the aforesaid deduction. It is made clear that the respondent authorities shall proceed for payment by arriving at a satisfaction that the enhanced pay was not given to the petitioner because of any fault of his own. 8. Writ petition, accordingly, stands disposed of. Interim order, if any, passed earlier stands vacated.