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GAHC010225912021 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/258/2022 LAXMI DEVI @ LAKHIMI DEVI W/O LATE BUL BARTHAKUR, RESIDENT OF VILLAGE GHARPARA CHUBURI, LALIT BARUAH PATH, PO TEZPUR, DIST SONITPUR, ASSAM 784001 VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI
2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
3:THE CHIEF ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL OF INDIA (CAG)
DEEN DAYAL UPADHAYA MARG NEW DELHI 11012 Advocate for the Petitioner : MR. S C BISWAS Advocate for the Respondent : ASSTT.S.G.I.
Linked Case : WP(C)/5225/2021 ESTHER GEORGE C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVERNMENT OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI-110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5239/2021 PURNIMA NARZARY W/O LATE GOKUL DEORI RESIDENT OF LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5433/2021 MANJUMA HAZARIKA W/O SRI PRASANNA SARANIA C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5577/2021 TOLLOTTOMA BRAHMA W/O KULDIP BASUMATARY D/O SACHINDRANATH BRAHMA C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST-SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVERNMENT OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR-784001 DIST- SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI-110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5541/2021 JOYSHREE DUTTA W/O SRI BIJIT KUMAR GOGOI C/O LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5271/2021 DHARMEN NAIDU S/O LATE DHARAMDAS NAIDU PERMANENT RESIDENT OF FULBARI TEA ESTATE PO BALIPARA DIST SONITPUR ASSAM 784101 PRESENTLY RESIDING AT LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
3:THE ADMINISTRATIVE OFFICER LOKPRIYA GOPINATH BORDOLOI REGIONAL INSITUTE OF MENTAL HEALTH TEZPUR
784001 DIST SONITPUR ASSAM
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS Linked Case : WP(C)/5269/2021 KALPANA HAZARIKA W/O SRI ACHYUT BORAH R/O VILL. SANTIBAN DEWRIGAON P.O. KETEKIBARI DIST. SONITPUR ASSAM PIN 784154 VERSUS THE UNION OF INDIA AND 3 ORS THROUGH THE SECY. TO THE GOVT. OF ASSAM MINISTRY OF HEALTH AND FAMILY WELFARE NEW DELHI
2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM.
3:THE ADMINISTRATIVE OFFICER LOKOPRIYA GOPINATH BORDOLOI REGIOAL INSTITUTE OF MENTAL HEALTH TEZPUR 784001 DIST. SONITPUR ASSAM.
4:THE COMPTROLLER AND AUDITOR GENERAL (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI 110124 ------------
Advocate for : MR B D DAS Advocate for : ASSTT.S.G.I. appearing for THE UNION OF INDIA AND 3 ORS BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
['B D DAS', '', 'J GHOSH', 'F A HASSAN', 'P S BISWAS', 'S C BISWAS', 'ASSTT S G I', '', 'B DEKA r']
ORDER
13.09.2022 Heard Mr. B.D. Das, learned Senior Counsel, Mr. S.C. Biswas, learned counsel and Ms. P.P. Hassan, learned counsel for the petitioners in all the writ petitions. Also heard Mr. C.K.S. Baruah, learned counsel appearing for the respondent nos.1 to 3, Mr. R.K. Talukdar, learned counsel for the respondent nos.4. Mr. B. Sarma, learned CGC appears for the respondent no.1, 2 & 3 in WP(C) No.5271/2021 and Mr. S.S. Roy, learned CGC appears for the respondent no.1, 2 & 3 in WP(C) No.5239/2021 and WP(C) 5269/2021. Mr. D. Deka, Advocate appears on behalf of Mr. B. Deka for the NEC.
2. All the petitions are being disposed of by this common judgment and order, as the issue in all the writ petitions pertain to recovery of excess salary paid to the petitioners. The challenge to the recovery of excess salary paid to all the petitioners is being made in all the writ petitions. The recovery of excess salary is being made by the respondents on the basis of the Office Order No.LGB/Estt/Audit/1948/18/2230 dated 25.06.2021.
3. Except for the petitioner in WP(C) No.258/2022, who had retired from service on 30.01.2018, all the writ petitioners are still serving as Staff Nurse/Ward Nurse. The grievance of the petitioners is that in view of the wrong fixation of pay made by the authorities since 01.01.2006, the petitioners were apparently given a higher salary than their entitlement, which the petitioners were not aware of. However, the respondents issued the impugned Office Order dated 25.06.2021, wherein a decision had been taken to recover Rs.20,000/- from the monthly salary of all the petitioners, which would eventually off-set the excess salary received by them. Accordingly, in terms of the Office Order dated 25.06.2021, Rs.20,000/- has been deducted from the salary of all the petitioners, except for the petitioner in WP(C) No.258/2022, from whom Rs.10,000/- is being deducted from her monthly salary.
4. The counsels for the petitioners submit that all the writ petitioners are holding Grade-III posts and in terms of the judgment of the Apex Court in the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334, the recovery of excess salary paid to the petitioners, due to a wrong fixation of pay made from 01.01.2006 by the respondents, cannot be permitted.
5. The counsels for the respondents fairly submit that the present cases are covered by the judgment of the Apex Court in Rafiq Masih (White Washer)
(supra), inasmuch as, the wrong fixation of pay had been made from 01.01.2006 and there is nothing to show that the said wrong fixation of pay had been made, on the basis of any fraud or misrepresentation on the part of the petitioners. Further, the petitioners belong to Class-III (Group-C) posts and as such, in terms of paragraph 18 of the judgment of the Apex Court in Rafiq Masih (White Washer) (supra), it would be impermissible to recover the excess salary paid to them.
6. I have heard the learned counsels for the parties.
7. In the case of Shyam Babu Verma & Others vs. Union of India & Others, reported in (1994) 2 SCC 521, the Apex Court was of the view that recovery after several years of paying the higher pay scale would not be just and proper, as the same was not due to the fault of the employee.
8. In the case of Col. (Retd. ) B. J. Akkara vs Govt. of India & Others, reported in (2006) 11 SCC 709, the Apex Court has held that restraining 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. It further held that a Government servant 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. Any subsequent action to recover the excess payment would cause undue hard
