Recovery from retired employees, or employees who are due to retire within one year of the order of recovery, is impermissible in law.

JUDGMENT :

(Devashis Baruah, J.) :-

1. Heard Mr. B. Baruah, learned counsel for the petitioner and Mr. R. Borpujari, learned counsel appearing on behalf of the re respondent No. 2 and 6. Also heard Mr. A. Phukan, learned counsel for the respondent Nos. 4 and 5 and Mr. B. Saikia, learned counsel appearing on behalf of the respondent Nos. 3 and 6.

2. The case of the petitioner is that the petitioner is a retired Assistant Teacher who served as an Assistant Teacher of Chichia Bakuloni M.V. School. He was appointed as an Assistant Teacher in the year 1988 and pursuant to which he joined his duty on 1/3/1988 at the place of posting and subsequently he retired from service on 31/1/2018. Pursuant to his retirement the petitioner submitted his pension papers and the respondent authorities had processed the same. The same was submitted before the Director of Pension, Assam to finalize the pensionary benefits payable to the petitioner. The Office of the Director of Pension, Assam through letter under memo No.ADP/2018/19/2018/07/0228 dtd. 5/11/2018 issued by the Finance and Accounts Officer have intimated the District Elementary Officer, Dibrugarh that while checking the pension proposal, it was found that there was certain deficiency for which the Directorate could not finalize the pensionary benefits of the petitioner. The deficiency/shortcoming in the service book/pension papers which were found were (i) fixation of pay on 1/1/1989 found wrong which should have been Rs.1185.00 instead of Rs.1345.00 and subsequent increments/fixation be done accordingly and entered in the Service Book. Due and drawn statement may be prepared and excess payment may be assessed. If the excess payment is not due to misrepresentation or fraud on the part of the petitioner, HOO/Department may waive the same with the approval of the Finance Department. (ii) Provisional pension sanction order wanting.

3. It is the further case that as per the service book, the petitioner was allowed to draw revised scale of pay (Band "2") in addition grade pay per month with effect from 1/1/2006 as recommended by the Assam Government Service (ROP) Rules, 2010 as per the Government notification No. FPC-85/2009/2 dtd. 4/2/2010 fixing the initial pay as on 1/1/2006 and the rate of annual increment @ 3% every 1st of July. It is the further case of the petitioner that the DEEO, Dibrugarh vide its letter under memo No. DEO/PEN/2021-22/3737dt.9/2/2022 communicated to the Director of Pension, Guwahati and re-submitted the pension proposal in respect of the petitioner along with a prayer petition from the petitioner concerned. The petitioner had come to learn that the pension payable to the petitioner is not finalized because of the deficiency notice by the Finance and Accounts Officer with regard to fixation of pay on 1/1/1989. It is further case of the petitioner that the wrong fixation of pay has been done at the behest of the respondent authorities and the petitioner had no role to play and as such there was question of fraud or misrepresentation on the part of the petitioner. The counsel for the petitioner submits that it is an established principle of law the excess salary so paid to the petitioner during his service tenure because of no fault of his cannot be recovered from his retirement benefits more so after the petitioner have already retired inasmuch as the same would be iniquitous and consequently arbitrary and in that regard the learned counsel for the petitioner referred to the judgment of the Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) reported in (2015) 4 SCC 334.

4. I have heard the learned counsel for the parties and given my anxious consideration to the matter.

5. A perusal of the judgment of Rafiq Masih (supra) would go to show that the question which arose for consideration before the Supreme Court was whether the benefits which arose to the employees consequent upon a mistake committed by the competent authority concerned