ORDER : M.R. Pathak, J. 1. Heard Mr. S.K.N. Mahammad, learned counsel appearing for the petitioner, and Mr. D. Nath, learned Additional Senior Government Advocate, Assam for the respondent Nos. 1, 2, 4 and 5. Also heard Mr. R.K. Talukdar, learned Standing Counsel, Accountant General (A & E) Assam, appearing for the respondent No. 3. 2. Issue involved herein is regarding to non-payment of the dues in lieu of un-utilised Earn Leave for 300 days to the petitioner amounting to Rs. 5,82,320/-, which the respondents refused to pay for the purpose of recovery of excess salary of Rs. 6,24,046/- that was paid to the petitioner during his service tenure as Statistical Officer (ARO) in the Directorate of Social Welfare Department, Assam. 3. Petitioner was a Statistical Officer under the Directorate of Economics and Statistics Department, Assam. On his promotion to the said post of Statistical Officer (ARO) in the year 2008, he was posted in the Office of the Directorate of Social Welfare Department, Assam at Guwahati. He retired from service on 30.09.2015 on attaining the age of superannuation at 60 years from the said Directorate of Social Welfare Department, Assam. During petitioner's service tenure his pay slips were issued by the AG (A&E), Assam, respondent No. 3. 4. After revision of his pay in terms of the Assam Services (Revision of Pay) Rules, 2010 that came into force on 1.1.2006, the AG (A&E) Assam, respondent No. 3 went on determining petitioner's officiating pay by issuing revised pay slips till his retirement, which were - (i) w.e.f. 01.07.2010 @ Rs. 21,700/-, (ii) w.e.f. 01.07.2011 @ Rs. 22,510/-, (iii) w.e.f. 01.07.2012 @ Rs. 23,340/-, (iv) w.e.f. 01.07.2013 @ Rs. 24,200/-, (v) w.e.f. 01.07.2014 @ Rs. 25,080/- and (vi) w.e.f. 01.07.2015 @ Rs. 25,990/- and in terms of such pay slips issued by the respondent No. 3, AG (A & E) Assam, the petitioner was accordingly paid his salary, with fixed Grade Pay of Rs. 5,100/-. 5. By a communication No. 6E-6/PS/SW/2011 dated 24.9.2015, the Accountant General (A&E), Assam, respondent No. 3 of its own re-determined petitioner's officiating pay as follows (i) w.e.f. 24.4.2008 @Rs. 15,280/-, (ii) w.e.f. 1.7.2008 @ Rs. 16,500/-, (iii) w.e.f. 1.7.2009 @ Rs. 17,150/-, (iv) w.e.f. 1.7.2010 @Rs. 17,820/-, (v) w.e.f. 1.7.2011 @Rs. 18,510/-, (vi) w.e.f. 1.7.2012 @Rs. 19,220/-, (vii) w.e.f. 1.7.2013 @Rs. 19,950/- (viii) w.e.f. 01.07.2014 @ Rs. 20,710/- and (ix) w.e.f. 01.07.2015 @Rs. 15,280/-, (ii) w.e.f. 1.7.2008 @ Rs. 16,500/-, (iii) w.e.f. 1.7.2009 @ Rs. 17,150/-, (iv) w.e.f. 1.7.2010 @Rs. 17,820/-, (v) w.e.f. 1.7.2011 @Rs. 18,510/-, (vi) w.e.f. 1.7.2012 @Rs. 19,220/-, (vii) w.e.f. 1.7.2013 @Rs. 19,950/- (viii) w.e.f. 01.07.2014 @ Rs. 20,710/- and (ix) w.e.f. 01.07.2015 @Rs. 21,490/- and fixed his pay and salary accordingly directing the authorities concerned to calculate the excess payment made to the petitioner w.e.f., 24.4.2008 to 30.9.2015 and to intimate the said respondent No. 3 about the same and also to inform the method of recovery of such excess amount from the petitioner (Annexure-7 to the writ petition). 6. As an amount of Rs. 5,82,320/- towards leave encashment benefit in lieu of his unutilized earn leave for 300 days was not paid by the respondents, the petitioner on 7.8.2017 submitted a representation before the Directorate of Economics and Statistics, Assam stating that he has received a letter on 16.2.2017 under No. GE-6/LEA/2016 dated 06.02.2017 from the AG (A&E), Assam and for not receiving the said leave encashment benefit he faced financial hardship. As his said representation dated 07.08.2017 was not disposed of nor the respondents paid the said amount of Rs. 5,82,320/- to him, the petitioner preferred this writ petition. The petitioner stated that payment for his unutilised earn leave for 300 days has been sanctioned by the Government vide letter No. PDS. 194/2015/pt/55 dated 30.12.2016, but the same has not been paid to him. In this petition the petitioner has prayed, amongst others, for a direction to the respondents herein to pay him the said amount of Rs. 5,82,320/- in lieu of his unutilised earn leave for 300 days and also prayed for a direction to the respondents to prepare the papers for pension, gratuity and other service benefits that are due to him for his service period and to grant any other appropriate relief entitled by him under the law. 7. While issuing notice to the respondents in this case on 24.11.2017, the Court observed that pendency of this petition shall not be a bar on the respondents to further process with the pension papers of the petitioner. 8. The respondent No. 5, Directorate of Economics and Statistics, Assam, filed its affidavit in the matter on 15.06.2018 stating that the petitioner has already drawn all retirement benefits except leave encashment of 300 days. 8. The respondent No. 5, Directorate of Economics and Statistics, Assam, filed its affidavit in the matter on 15.06.2018 stating that the petitioner has already drawn all retirement benefits except leave encashment of 300 days. The respondent No. 5, in the said affidavit also stated that by its communication No. GE-6/LEA/2016 dated 6.2.2017, the AG (A&E), Assam, respondent No. 3, intimated the Directorate of Economics and Statistics as well as the petitioner, that it has calculated the cash amount due to the petitioner in lieu of his unutilised earn leave of 300 days that was in his credit as on 30.09.2015 (the date on which the petitioner retired from service) that amounts to Rs. 5,82,320/-, which have been sanctioned by the Government in its letter No. PDS.194/2015/Pt/55 dated 23.12.2016. However, in the said letter dated 06.02.2017, the AG (A&E), Assam made an observation that said payment of Rs. 5,82,320/- is subject to the confirmation that no amount remains outstanding for recovery against the petitioner, as was highlighted in its letter No. 6E-6/P&D(SWD)/1029-32 dated 8.7.2016 (Annexure-I of the affidavit of the respondent No. 5). 9. The respondent No. 5, Directorate of Economics and Statistics, Assam, in its affidavit also stated that prior to the representation of the petitioner, the Social Welfare Department of the State by its letter No. DSW (A) 13/2013/102 dated 01.04.2017 intimated the Directorate of Economics and Statistics, Assam that an amount of Rs. 6,24,046/- was overdrawn by the petitioner w.e.f. 24.4.2008 to 30.09.2015 as per pay slip issued by the Office of the AG (A&E), Assam and in view of the same, the said Directorate (respondent No. 5) is not in a position to take steps for payment in lieu of the unutilised earned leave of the petitioner. The said respondent No. 5 also stated that since the overdrawal by the petitioner is to the tune of Rs. 6,24,046/- that occurred in respect of his pay and allowances, the cash amount due to the petitioner in lieu of his unutilised earn leave of 300 days cannot be paid. 10. During deliberation of the matter and on being enquired, Mr. 6,24,046/- that occurred in respect of his pay and allowances, the cash amount due to the petitioner in lieu of his unutilised earn leave of 300 days cannot be paid. 10. During deliberation of the matter and on being enquired, Mr. D. Nath, learned Additional Senior Government Advocate, Assam placed the copy of the aforementioned letter No. 6E-6/P&D(SWD)/1029-32 dated 8.7.2016 of the AG (A&E), Assam that was communicated to the Planning and Development Department of the State, with copies to the (i) petitioner, (ii) Directorate of Social Welfare, Assam and (iii) Senior Accounts Officer of Pension Department of the State. On perusal of the said letter of the AG (A&E), Assam dated 08.07.2016 it is observed that the AG (A&E) Assam admitted that because of its oversight, over payment of Pay and Allowances to the petitioner was made w.e.f., 24.04.2008 to 30.09.2015, that was intimated to the Directorate of Social Welfare, Assam vide letter No. GE-6/SB/1331 dated 29.10.2015, wherein the AG (A&E), Assam also stated that Pay and Allowances of the petitioner was subsequently revised and pay slip in that regard was issued vide letter No. GE-6/PS/SW/2011 dated 24.09.2015 intimating the Directorate of Social Welfare, Assam in that regard with a request to calculate and recover the total amount of over payment made to the petitioner and to intimate the concerned Office regarding the mode of recovery to be made from the (Annexure-7 to the writ petition). 11. 11. The AG (A&E) Assam, in its said letter dated 08.07.2016, have also stated that the Government vide letter No. PDS/94/2015/pt./46 dated 06.05.2016 (letter of Planning and Development Department, Assam) forwarded the pension papers of the petitioner with the LPC (Last Pay Certificate) where the last pay drawn was shown as per the pay slip issued by the said office on 24.09.2015 (Annexure-7 to the writ petition) without mentioning about the recovery of over payment made to the petitioner, whereas in the Form No. 19, submitted along with the pension papers of the petitioners, against the column for "over payment of pay and allowances including leave salary" it was shown as 'Nil' that goes to show that no there is no outstanding amount for recovery from the petitioner and that it is not clear whether any recovery of over payment of Pay and Allowances was made from the petitioner on the basis of his pay said slip dated 24.09.2015 that was already accepted for payment. 12. By the said communication dated 08.07.2016 the AG (A&E) Assam requested the Planning and Development Department, Assam to the intimate the said office regarding the amount and mode of recovery of overpayment made to the petitioner, if any, at an early date so as to enable the said office to settle the case at an early date. 13. It is seen that for the aforementioned reasons, the cash amount of Rs. 5,82,320/- payable to the petitioner towards his leave encashment benefit in lieu of his unutilized earn leave for 300 days that was already sanctioned by the Government vide No. PDS. 194/2015/Pt./55 dated 23.12.2016, has not been paid to him by the respondents so as to realise the amount of Rs. 6,24,046/- allegedly overdrawn by the petitioner during his service tenure, as his pay and allowances for the period from 24.04.2008 to 30.09.2015. 14. It is already noted that only on the basis of pay slips issued by the AG (A&E) Assam, respondent No. 3, pay and allowances were paid to the petitioner during his service tenure, including the period from 24.04.2008 to 30.09.2015, the period when the petitioner had allegedly overdrawn the amount of Rs. 6,24,046/- towards his pay and allowances. But the petitioner was not a drawing and disbursing officer so as to determine his own pay and allowances. 6,24,046/- towards his pay and allowances. But the petitioner was not a drawing and disbursing officer so as to determine his own pay and allowances. The respondent No. 3, AG (A&E) Assam in its letter No. GE-6/P&D (SWD)/1029-32 dated 8.7.2016 when communicated with the Planning and Development Department of the State, clearly admitted that because of its oversight, over payment of Pay and Allowances to the petitioner was made during the period from 24.4.2008 to 30.9.2015 and on the request of said respondent No. 3 by its letter No. GE-6/SB/1331 dated 29.10.2015, the Social Welfare Department of the State calculated Rs. 6,24,046/- as the amount overdrawn by the petitioner as his pay and allowances during the period from 24.04.2008 to 30.09.2015. 15. It is to be noted herein that neither the petitioner nor the respondents annexed the copy of the letter No. GE-6/P&D(SWD)/1029-32 dated 08.07.2016 of the AG (A&E) Assam, respondent No. 3. But, there is a mention of said letter dated 8.7.2016 in the letter No. GE-6/LEA/2016 dated 6.2.2017 of the AG (A&E) Assam, respondent No. 3 to the Director of Economics and Statistics, Assam, which is annexed as Annexure-I to the affidavit of the respondent No. 5. Only when the Court intervened during the hearing of the matter and enquired about it, learned Addl. Sr. Govt. Advocate placed the same before the Court. It is because of such wrong calculation made by the AG (A&E) Assam, respondent No. 3 and because of incorrect pay slip issued to the petitioner by said respondent No. 3, he was paid an excess pay and allowances amounting to Rs. 6,24,046/- during the period from 24.4.2008 to 30.9.2015, for which no fault can be attributed to the petitioner. It is only on 24.09.2015 (Annexure-7 to the writ petition), the respondent No. 3, AG (A&E) Assam issued the correct pay slip of the petitioner and as per said correct pay slip petitioner was given the correct last Pay Drawn Slip/Certificate. 16. In the case of Col. B.J. Akkara (Retd.) Vs. Govt. It is only on 24.09.2015 (Annexure-7 to the writ petition), the respondent No. 3, AG (A&E) Assam issued the correct pay slip of the petitioner and as per said correct pay slip petitioner was given the correct last Pay Drawn Slip/Certificate. 16. 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- Relief against recovery of excess wrong payments of emoluments/allowances from an employee can be granted on fulfillment of conditions that - (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). 17. A Bench of three Hon'ble Judges of the Hon'ble Supreme Court in the case of Shyam Babu Verma Vs. Any attempt to recover excess wrong payment would cause undue hardship to them (pensioners). 17. A Bench of three Hon'ble Judges of 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 since the petitioners received higher scale due to no fault of theirs, it shall be just and proper not to recover any excess amount already paid- 11. Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480 in terms of the recommendations of the Third Pay Commission w.e.f. January 1, 1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-560 but as they have received the scale of Rs. 330-560 since 1973 due to no fault of theirs and that scale is being reduced in the year 1984 with effect from January 1, 1973, it shall only be just and proper not to recover any excess amount which has already been paid to them. Accordingly, we direct that no steps should be taken to recover or to adjust any excess amount paid to the petitioners due to the fault of the respondents, the petitioners being in no way responsible for the same. 18. 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 & Ors. Vs. 18. 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 & Ors. Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 have held that- 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 Group C and Group D service).(ii) Recovery from the retired employees, or the employees who are due to retire within one year, of the order of recovery, (iii) Recovery from the employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.(iv) Recovery in cases where an employee has wrongfully been required to discharge duties 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 made from 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. 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. 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. 19. It is already observed that because of oversight, mistake and wrong calculation made by the AG (A&E) Assam, respondent No. 3, incorrect pay slip was issued to the petitioner by the said respondent, for which he had been paid excess salary amounting to Rs. 6,24,046/- for the period from 24.4.2008 to 30.09.2015, which is not due to any fault on the part of the he petitioner. 20. For the reasons discussed above, the respondents are directed not to recover or to adjust the said excess amount Rs. 6,24,046/- already paid to the petitioner, from any such dues payable to the petitioner by the respondents. 21. Further, the respondents are directed to release the payment of Rs. 5,82,320/- towards the cash amount payable to him in lieu of his unutilized earn leave for 300 days at his credit as on 30.09.2015 (the date on which the petitioner retired from service on attaining the age of superannuation), which was already sanctioned by the Government vide No. PDS.194/2015/Pt./55 dated 23.12.2016, forthwith 22. Petitioner shall submit certified copies of this order before the Commissioner and Secretary to the Govt. Petitioner shall submit certified copies of this order before the Commissioner and Secretary to the Govt. of Assam, Economics and Statistics Department respondent No. 2 as well as the Principal Accountant General (A&E) Assam, respondent No. 3 and also the Director of Economics and Statistical, Assam respondent No. 5 and shall obtain necessary acknowledgment from them in that regard. 23. With the above observation and direction, this writ petition stands disposed of.