IMPORTANT POINT
Recovery of excess salary payments from retired employees is impermissible, especially when they had no role in the erroneous fixation, as established by the Supreme Court.

JUDGMENT :

(DEVASHIS BARUAH, J.)

Heard Ms. G. Goswami, the learned counsel appearing on behalf of the petitioner. Mr. T.J. Mahanta, the learned Senior Standing Counsel appears on behalf of the respondent No. 2 and Mr. C. Baruah, the learned Standing Counsel appears on behalf of the respondent Nos. 3 and 6.

2. None appears on behalf of the Finance Department of the Government of Assam when the matter is called. In addition to that, the learned counsel for respondent Nos. 4 and 5 is also not present when the matter is called.

3. The present writ petition has been filed challenging the communication dated 02.07.2018 issued by respondent No. 6 to the Register General of the Gauhati High Court whereby it has been stated that the pay in respect to the petitioner was wrongly fixed at Rs.6,850/- instead of Rs.6,600/- on 01.01.1996 by allowing 2(two) increments as weightage for fixation of pay on revise scale instead of admissible 1 (one) increment as weightage since his pay scale was Rs.5,375-10,700/- (the maximum pay of the scale is more than Rs.9,725/- as such 1(one) increment as weightage is admissible at the time of fixation of pay on 01.01.1996) and on 01.01.2006 his revise pay should have been fixed at Rs. 23,390/- instead of Rs. 23,990/-. It was further mentioned that at the time of retirement his pay ought to have been Rs.32,260/- instead of Rs.33,330/- as allowed by the Department. Accordingly, it was observed in the said communication that the resultant overpayment be calculated and intimated to the said office by means of a due and drawn statement to adjust the same from pensionery benefits and the overdrawal amount be shown in the Column No. (b) of Form No. 19 for adjustment.

4. The said communication has been challenged on the ground that the said communication goes contrary to the law laid down by the Supreme Court in the case of State of Punjab & Others Vs. Rafiq Masih (White Washer) & Others reported in (2015) 4 SCC 334 . For the purpose of ascertaining the legality of the challenge made to the impugned communication dated 02.07.2018, it is relevant to take note of that the petitioner herein retired from his service on 31.01.2013 after 39 (thirty nine) years of continuous service and the pension payment order was issued by the office of the respondent No. 3 wherein the date of commencement of the pension was fixed on 01.02.2013. Subsequent thereto, the petitioner unfortunately expired on 08.02.2022 during the pendency of the writ petition and the present proceedings are now being continued through his wife who is a beneficiary of the family pension.

5. Ms. G. Goswami, the learned counsel appearing on behalf of the petitioner submitted that the law in that regard is quite clear as laid down by the Supreme Court in the case of Rafiq Masih (White Washer) (supra) , wherein it has been categorically mentioned in paragraph Nos. 17 and 18 as to when recovery is not permissible. This Court, during the course of the hearing had asked the learned counsels appearing on behalf of the respondents who are duly represented as to whether the petitioner had any role in the fixation of the salary which resulted in certain excess payment. The learned counsels appearing on behalf of the respondents who are duly represented submitted that the salaries were fixed by the Competent Authority. It was also stated that the petitioner had no role in doing so.

6. Taking into account the said submission, this Court finds it relevant to take note of paragraph Nos. 17 and 18 of the judgment in the case of Rafiq Masih (White Washer) (supra) , which is reproduced herein under:

“ 17. Last of all, reference may be made to the decision in Sahib Ram v. Union of India wherein it was concluded as under: ( SCC pp. 19-20, paras 4-5 )

“4. Mr Prem Malhotra, learned counsel for the appellant, contended that the previous scale