Page No.# 1/ vs The State Of Assam And 4 Ors on 13 March, 2026

    0
    49
    ADVERTISEMENT

    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.
                                                                            Page No.# 2/10
    
                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.

    SPONSORED

    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
    Page No.# 3/10

    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
    Page No.# 4/10

    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
    Page No.# 5/10

    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
    Page No.# 6/10

    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
    Page No.# 7/10

    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
    Page No.# 8/10

    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
    Page No.# 9/10

    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.

    Page No.# 10/10

    22. The writ petition is disposed of. No cost.

    JUDGE

    Comparing Assistant



    Source link

    LEAVE A REPLY

    Please enter your comment!
    Please enter your name here