Gauhati High Court
Page No.# 1/ vs The State Of Assam And 4 Ors on 13 March, 2026
Page No.# 1/10
GAHC010136352023
2026:GAU-AS:3817
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/3694/2023
DR. DIPANKAR DAS CHOUDHURY
S/O LATE KRITENDRA PRASAD DAS CHOUDHURY,
VIDYARTHI BHAWAN LANE 1,
PO- SETTLEMENT ROAD,
KARIMGANJ TOWN,
DIST.- KARIMGANJ- 788712,
ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
GOVERNMENT OF ASSAM,
EDUCATION (HIGHER) DEPARTMENT,
DISPUR, GUWAHATI- 781006.
2:THE COMMISSIONER AND SECRETARY
FINANCE DEPARTMENT
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-6.
3:THE DIRECTOR OF HIGHER EDUCATION
PRESENTLY KNOWN AS THE SCHOOL EDUCATION DEPARTMENT ASSAM
KAHILIPARA
GUWAHATI- 781019.
4:THE TREASURY OFFICER
KARIMGANJ
ASSAM.
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5:RABINDRA SADAN GIRSL COLLEGE
REPRESENTED BY ITS PRINCIPAL
PO AND DIST- KARIMGANJ
PIN- 788710
Advocate for the Petitioner : MR H R A CHOUDHURY, MS N RAI,MS S DEV,MR. M DUTTA
Advocate for the Respondent : SC, HIGHER EDU, SC, FINANCE
BEFORE
HONOURABLE MR. JUSTICE RAJESH MAZUMDAR
ORDER
Date : 13.03.2026
Heard Mr. M. Dutta, learned counsel appearing for the petitioner.
Also heard Mr. A. R. Tahbildar, learned counsel appearing for the Higher
Education Department.
2. The grievance in this writ petition under Article 226 of the
Constitution of India is the proposal of recovery made by the Department
of Higher Education against the petitioner, alleging overdrawal of
salary/pay by the petitioner with effect from August 2000.
3. The facts of the case as revealed in the pleadings is that the
petitioner had been offered appointment as a Lecturer in Mathematics by
the appointment letter dated 01.08.2000 issued by the Principal of
Education to which was an order consequential to the directions issued by
the Director of Higher Education Assam, memo number G (B) (A) (C)/ 51/
2000/ 30 dated 29.07.2000. While the memo dated 29.07.2000 stated that
the incumbent would draw the minimum of the scale during the
probationary period, the appointment order dated 01.08.2000 did not
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record such a condition. The appointment letter dated 01.08.2000 is
reproduced below for ready reference
Office of the Principal
RABINDRASADAN GIRLS’ COLLEGE
P. O. & DT. Karimganj Assam Pin 788710 ANNEXURE No:-2
Ref. No RSC/APPTT/ESTD/TS/ZK/301 Date 01-08-2000.
ORDER
In pursuance of B’s Res. No.5 dt. 18. 2. 2000 and the D. H. E., Assam Meme.
No.G(B) AC/51/2000/30 dt. 29.7.2000, Sri Dipankar Das Choudhury, M. Sc. of Vidyarthi
Bhawan Lane-1, P.O. & Dt.Karimganj Assam-788710 is hereby appointed lecturer in the
deptt. of Mathematics of this college in the scale of pay of 8000/-. 13,500/- with other
allowances as admissible under the rules. He will be treated as probationers and liable
to be discharged if he fails to obtain clearance of NET/SLET.
Further, the pay and allowances of the incumbent will be released on receipt of final
approval and grant-in-aid from the D. H. E., Assam.
Sri D. Das Choudhury is therefore, requested to join the post within 7(seven) days
from the date of issue of this letter.
Principal,
Rabindrasadan College,
P.o. & Dist-Karimganj
dt. 01-08-2000.
Memo.No.RSC/APPTT/ESTD/TS/2K/
Copy to:-
1. The Director of Higher Education, Assam.
2. H.O.D., Mathematics of this college.
3. Librarian.
4. Asstt. in charge of Accounts.
5. H.A/Office File.
4. Accordingly, the petitioner joined the Department of Mathematics in
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the Rabindrasadan Girls’ College, Karimganj on 1st of August 2000 itself.
From then on, the petitioner has been drawing his salary in the pay scale
of Rs. 8,000/- to Rs. 13,500/-, along with other admissible allowances.
Pursuant to the Sixth Pay Commission, the pay of the petitioner was fixed
by taking into account the annual increments, etc.
5. The petitioner obtained his PhD in the year 2012, which was notified
by the Registrar of the concerned university, namely Assam University, on
23.02.2012. By a letter dated 12.08.2014, the Department of Higher
Education sought a copy of the petitioner’s joining report in connection
with the process to be initiated for the petitioner’s regularisation as an
Assistant Professor (re-designated from lecturer).
6. Pursuant to the petitioner having obtained the PhD in 2012, the
Government in the Education (Higher) Department, by an order issued on
20.11.2019, allowed the regular scale of pay to the petitioner with effect
from 23.02.2012 since the petitioner had acquired the PhD from Assam
University, Silchar on that day. It is the case of the respondents, as
projected in their affidavit-in-opposition, that it came to the department’s
notice that the petitioner had been drawing his salary in the pay scale
from the initial date of his appointment, that is, from 1st of August 2000.
In contrast, he should have actually drawn his salary at the minimum of
the pay scale, which is 8000/- rupees per month, until he obtained his
NET/SLET clearance and/or his PhD. When such an error was noticed, the
respondent authorities initiated the process to recover the excess payment
made to the petitioner from 01.08.2002 till 23.02.2012, i.e. the date on
which he acquired the PhD qualification.
7. Further, it was also noticed by the department that since he had been
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allowed to draw the salary on a pay scale instead of at a fixed pay of the
minimum of the pay scale, his pay had to be re-regulated and the excess
of salary drawn to the date of the issuing of the excess of salary drawn
was also required to be recovered. In such circumstances, the principal of
the college was required to submit a data sheet depicting the recovery
required to be made from the petitioner. It is at that stage that the
petitioner has approached this court with two grievances;
Firstly, the petitioner has assailed the attempt to recover an alleged
overpayment of salary. Secondly, he has sought directions for the fixation
of the petitioner’s salary under the 7th Pay Commission and for the grant
of notional benefits, including upgradation and promotion from 2012 in
stage 2 from stage 1 in 2017, from stage 3 to stage 2, and promotion as
an Associate Professor with effect from 2020.
8. During the course of the argument, the learned counsel for the
petitioner has submitted that the primary grievance of the petitioner is the
attempted/proposed recovery. The grievance of the petitioner regarding
the upgradation or fixation of salary would be redressed in the event this
court directs the respondents to correctly fix the salary/pay of the
petitioner in accordance with law.
9. Mr. M. Dutta learned counsel appearing for the Petitioner has drawn
the attention of this court to the judgment rendered by the Supreme Court
in the case of Jagadish Prasad Singh v. State of Bihar and Others
reported in A.I.R. (2024) Supreme Court 3950. The learned counsel
for the petitioner has submitted that paragraph 23 of the aforesaid
judgment would cover the case of the petitioner to the extent of
restraining the respondents from making recoveries. Paragraph 23 of the
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aforesaid judgment is quoted herein below for ready reference;
In the case of State of Punjab and Others v. Rafiq Masih (White
Washer) and Others, this Court held as under: –
“18. It is not possible to postulate all situations of hardship that 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, summarise 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.”
10. The learned counsel for the petitioner further submits that the
relevant law would govern the fixation of pay of the petitioner and
therefore, the respondents cannot shy away from fixing the pay of the
petitioner in accordance with the recommendations of the Sixth Pay
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Commission and the Seventh Pay Commission, which the State
Government has accepted.
11. The learned counsel appearing for the Higher Education Department,
Mr. H. R. Tahbildar has placed reliance on the judgment of this court
rendered in the case of Ms. Deepshikha Das v. State of Assam
decided on 27.07.2017, WP(C) No. 5636 of 2010 to impress upon this
court that the appointment of the petitioner being conditional, he would
not have been empathetic to draw his salary in the pay scale and payment
of such salary in the pay scale was an error on the part of the respondent
authorities. He has submitted that, as per the judgment rendered in
Deepshikha Das (Supra), the petitioner would not be entitled to draw
salary in the pay scale, as at that relevant time the petitioner did not have
the NET/SLET qualification, and therefore, full salary for under-qualified
lecturers would not be justified.
12. This court in the case of Deepshikha Das (Supra) has held that the
petitioner in the case, who did not qualify NET/SLET, was not at par with
regular faculty members drawing full salary and therefore, in that case,
the relief prayed for equal pay to the petitioner was not found to be
justified and was accordingly declined.
13. Mr. A. R. Tahbildar, learned counsel for the Department of Higher
Education, submitted that when the petitioner was not entitled to such
pay, the excess payment made can be recovered by the department in
accordance with law. Having considered the submissions of the learned
counsel for the petitioner and the respondent and having also considered
the case law cited at the bar, this court finds that the appointment letter
of the petitioner did not contain the condition that he would be drawing
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the minimum of the pay scale which had been granted to other lecturers
appointed and who had the qualification of NET/SLET.
14. The grant of the pay scale to the petitioner was not in the hands of
the petitioner at the relevant point in time. It has been stated in the writ
petition that, although the order of the DHE Assam mentioned that the
petitioner would be entitled to the scale of pay upon fulfilment of the
condition of obtaining NET/SLET, the order of the Principal did not reflect
any such condition. The college authorities had fixed the petitioner’s pay.
The same continued until the year 2019, when the conditions in the
approval required the petitioner to obtain NET or SLET to be entitled to
the regular pay scale were withdrawn.
15. By the aforesaid letter dated 20.11.2019, the petitioner was held to
be entitled to the UGC scale of pay with other allowances with effect from
23.02.2012. The issue of the excess payment and the proposed recovery
was raised by the respondent authorities in 2020. At this stage, it is
necessary to notice that by the judgment passed by the Apex Court in the
case of State of Punjab and Others v. Rafiq Masih (White Washer)
and Others, reported in (2015) 4 SCC 334, the Apex Court had held
that recovery from employees when excess payment had been made for a
period in excess of 5 years before the order of recovery is issued would be
one of the instances where the recovery would be impermissible in law.
16. In the present case, the petitioner has been paid in excess of what
he should have drawn for a period of nearly 20 years. It is also observed
that in Thomas Daniel vs. State of Kerala and others, reported in
AIR 2022 Supreme Court 2153, the Apex Court held that the State
cannot recover an excess amount paid to an employee after a delay of 10
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years.
17. Going by the second law, this Court is of the considered opinion that
the excess amount already paid to the petitioner for a period of over 20
years cannot now be permitted to be recovered from the petitioner by
putting him in an iniquitous or a harsh situation. In such circumstances,
the respondents are directed not to initiate the proposed recovery
proceedings.
18. Coming to the question of the fixation of the pay of the petitioner in
the correct scale, this Court is of the opinion that the petitioner would
have been entitled to the payment of salary in the pay scale only from
23.02.2012 and therefore this Court cannot, under this Court leaves the
liberty to the respondent authorities to fix the pay of the petitioner at the
correct scale in accordance with law.
19. However, before fixing the pay of the petitioner, it would be prudent
on the part of the respondent authorities to give notice to the petitioner of
the proposed fixation since such fixation may vary the pay of the
petitioner to his disadvantage.
20. Accordingly, this writ petition is disposed of by granting the prayers of
the petitioner to the extent that the respondents would be restrained from
making any recovery of the alleged excess of pay as proposed by the
order dated 06.08.2021 and giving the respondents the liberty to fix the
pay of the petitioner at the correct scale.
21. The fixation of the pay of the petitioner if taken up by the
respondents shall be completed within a period of 4 months from the date
of receipt of the certified copy of this order.
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22. The writ petition is disposed of. No cost.
JUDGE
Comparing Assistant