JUDGMENT AND ORDER :

Heard Mr. JUNM Laskar, the learned counsel appearing for the petitioner. Mr. P.K. Borah, the learned counsel appears on behalf of the Elementary Education Department, Mr. S.R. Baruah, the learned Standing Counsel appears on behalf of the Director of Pension, Mr. R. Borpujari, the learned Standing Counsel appears on behalf of the Finance Department and Mr. R. Dhar, the learned Standing Counsel appears on behalf of the Accountant General (A & E) Assam.

2. The case of the petitioner herein is that the petitioner was initially appointed on 1/1/1974 as an Assistant Teacher and posted at R.C. M.E. Madrassa Hatirhar, District -Cachar, Assam. Thereupon the service of the petitioner was confirmed vide an order dated 17/10/1977 as recorded in the order dated 30/7/2000. Thereupon the petitioner retired from service on 29/2/2016. The pension papers of the petitioner were sent to the Office of the Director of Pension wherein on account of a deficiency as pointed out by the Office of the Director of Pension on 10/7/2019 there was excess drawal on account of a wrong fixation of pay. The deficiency as stated in the communication dated 10/7/2019 being relevant is quoted herein under :

“1) Pay determined on 1/1/1981 is not admissible. Pay on 1/1/1981 should be fixed at Rs. 537/- instead of Rs.573/-. Subsequent fixation be done accordingly and entered in the SB. Due and drawn statement be prepared and excess payment may be assessed including leave encashment benefit. If the excess payment made was not due to misrepresentation or fraud etc. on the part of the pensioner, HOO/Department may waive the recovery upto Rs. 1.00 Lacs with approval of the PPG Deptt. and above Rs.1.00 Lacs with Finance Department as per Govt OM No. Fin(EC-III)1808/2018/2 dtd. 14.06.2019. (2) Date of receiving ad hoc grant of & Provincialisation wanting.”

3. It appears from the above quoted portion of the communication dated 10/7/2019 that the pay of the petitioner on 1/1/1981 ought to have been fixed at Rs. 537/-, instead it was fixed at Rs. 573/- . Subsequently the pay of the petitioner was worked out on the basis of Rs. 573/- which resulted in an excess amount which the petitioner received during his service. It is further apparent from a communication produced during the course of hearing mentioned that the total excess amount to which the petitioner has received on account of the wrong fixation of pay was Rs. 4,09,993/- and in that view of the matter unless the Finance Department waives the said amount, the entitlement of petitioner towards pension and pensionery benefits have been withheld. It was duly noted in the order dated 3/4/2023 by this Court that there is no allegation of misrepresentation or fraud on the part of the petitioner which had resulted in wrong fixation of his pay. This observation made by this Court on 3/4/2023 is based upon a reading of the affidavit-in-opposition filed by the respondent No. 3 i.e. the Director of Elementary Education.

4. Today Mr. P.K. Borah, the learned counsel appearing on behalf of the Elementary Education Department has produced an instruction issued by the Secretary to the Government of Assam, Department of School Education dated 18/4/2023 wherein it has been mentioned that the pension case of the petitioner was returned by the Director of Pension vide a communication dated 10/7/2019. Thereafter the Director of Elementary Education had instructed the District Elementary Education Officer, Cachar vide a communication dated 8/8/2020 to furnish some information and accordingly the District Elementary Education Officer had submitted the information vide a communication dated 16/9/2022. Subsequently the Director of Elementary Education resubmitted the pension case in respect to the petitioner and requested to accord approval from the Finance Department for waiving the excess drawal amount of Rs.4,09,993/- inasmuch as, as per the Office Memorandum dated 27/01/2022 excess drawal beyond Rs. 3 lakhs in each individual