Biyola Baruah Vs the Union of India and 4 Ors.

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GAHC010093572022

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2026:GAU-AS:1614

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3319/2022

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BIYOLA BARUAH

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WIFE OF MR. SRI MAHESWAR SAIKIA, RESIDENT OF VILLAGE UDAMARI, POST OFFICE BALIPARA, P.S. CHARIDUAR, DISTRICT SONITPUR, PIN784101, ASSAM.

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VERSUS

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THE UNION OF INDIA AND 4 ORS

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REPRESENTED THROUGH THE SECRETARY, TO THE GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE, NEW DELHI.

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2:THE DIRECTOR LOKOPRIYA GOPINATH BORDOLOI REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR PIN- 784001 DISTRICT SONITPUR ASSAM.

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3:THE CHIEF ADMINISTRATIVE OFFICER LGB REGIONAL INSTITUTE OF MENTAL HEALTH TEZPUR PIN- 784001.

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4:THE COMPTROLLER AND AUDITOR (CAG) OF INDIA DEEN DAYAL UPADHYAYA MARG NEW DELHI- 110124.

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5:NORTH EASTERN COUNCIL REPRESENTED BY THE CHAIRMAN ROOM NO. 410 1ST FLOOR NEC SECRETARIAT NONGRIM HILLS SHILLONG- 793003 MEGHALAYA

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Page No.# 2/8

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BEFORE

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HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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For the petitioner (s) : Ms. N. Dey, Advocate For the respondent (s) : Mr. A. K. Dutta, CGC Date on which judgment is reserved : NA Date of pronouncement of judgment : 06.02.2026

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Whether the pronouncement is of the Operative part of the judgment? : NA

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Whether the full judgment has been Pronounced? : Yes

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JUDGMENT AND ORDER (ORAL)

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Heard Ms N. Dey, the learned counsel appearing on behalf of the petitioner. Mr. A. K. Dutta, the learned counsel appears on behalf of the respondents Nos.1, 2 & 3.

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The present writ petition has been filed challenging the Office Order dated 25.06.2021 as well as the Office Order dated 19.01.2022 and further seeking certain directions for pay fixation of the petitioner at Rs.13,860/-.

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The grievance of the petitioner is that in view of the wrong fixation of pay made by the authorities since 01.01.2006, the petitioner was apparently given a higher salary than her entitlement which the petitioner was not aware of. However, the respondents issued the impugned Office Order dated

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25.06.2021, wherein a decision had been taken to recover Rs.20,000/- from the monthly salary of the petitioner which would eventually offset the excess salary received by the petitioner. Accordingly, in terms with the Office Order dated 25.06.2021, Rs.20,000/- has been deducted from the salary of the petitioner and another additional sum of Rs.5,000/- per month from her salary w.e.f. January, 2022.

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The learned counsel for the petitioner submitted that the petitioner is 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.

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The learned counsel for the respondents fairly submitted that the present case is covered by the judgment of the Apex Court in the case of Rafiq Masih (White Washer) (supra) in as much 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 petitioner. Further, the petitioner belongs to Class-III (Group-C) post, and as such, in terms with paragraph No.18 of the judgment of the Apex Court

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in the case of Rafiq Masih (White Washer) (supra), it would be impermissible to recover the excess salary paid to them.

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I have heard the learned counsels for the parties.

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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.

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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 was 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 hardship to him. The Apex Court further held that where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or

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where the error is detected or corrected within a short time of wrong payment, Courts will not grant relief against recovery. The Apex Court thus held that the matter being in the realm of judicial discretion, courts may on the facts and circumstances of any particular case refuse to grant such relief against recovery.

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In the case of Rafiq Masih (White Washer) (supra), the Apex Court has held that recovery from employees belonging to ClassIII & Class-IV service would be impermissible in law, if the excess payment had been made for a period in excess of 5 (five) years.

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Paragraph No.18 of the Rafiq Masih (White Washer) (supra) is reproduced below:-

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“18. It is not possible to postulate all situations of hardship which 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:

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(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).

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(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

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(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

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(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.

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(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.”

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As can be seen from the judgments of the Apex Court, where there has been excess payment made for a number of years, it would be impermissible for recovery of the same from the Class-III & Class-IV employees. The petitioner herein is Class-III employees and there is nothing to show that the wrong fixation of pay made in the year 01.01.2006, had been made on the basis of any fraud or misrepresentation on the part of the petitioner. There is also nothing to show that the petitioner was aware that she is getting a salary beyond the entitlement.

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This Court further finds it relevant to take note of that similarly situated persons like the petitioner had earlier approached this Court by filing a writ petition being WP(C)

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No.258/2022 wherein there was direction issued thereby setting aside the Office Order 25.06.2021 and also directing reimbursement to the petitioner therein of the amount which was deducted. It is also seen that in pursuance to that, the said direction passed in the order dated 13.09.2022 in WP(C) No.258/2022, the respondents have already issued a circular dated 05.12.2025 thereby giving effect to the order dated 13.09.2022 passed in WP(C) No.258/2022. The copy of the said circular is kept on record and marked with the letter “X”. The content of the circular is reproduced herein under:-

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CIRCULAR

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“In compliance with the Hon’ble Gauhati High Court Order dated 13.09.2022 in W.P.(C) No. 258/2022 (Laxmi Devi vs. UOI & Others) and other connected cases pertaining to refund of recovered amounts, it is hereby informed that the Institute has initiated the requisite administrative procedures for refund of the deductions made from the salaries/pensionary benefits of the concerned employees/pensioners.

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It is further clarified that the actual disbursement of the refund shall be undertaken only after receipt of the required Grantin-Aid from the Ministry of Health and Family Welfare, Government of India.

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All concerned are requested to take note of the above.”

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It is the opinion of this Court that the petitioner herein, being similarly situated, is also entitled to the similar relief. Accordingly, this Court therefore disposes of the instant writ petition with the following observations and directions:-

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(i) The impugned order dated 25.06.2021 is set aside and quashed on the ground that it would be inequitable to permit the respondents to make recovery of the excess payment made due to wrong fixation of pay made by the respondents 16 years ago.

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(ii) The recovery notice so issued qua the petitioner dated 19.01.2022 is also set aside and quashed.

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(iii) The petitioner is entitled to any amount which has already been deducted/recovered and therefore directions are issued upon the respondents to reimburse the same to the petitioners at the earliest and preferably within 4(four) months from the date a certified copy of this order is served upon the respondent No.2.

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JUDGE

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Pradip Kumar Kalita

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Comparing Assistant

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Digitally signed by Pradip Kumar Kalita Date: 2026.02.10 10:18:59 +05'30'

Biyola Baruah v. the Union of India and 4 Ors.

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Biyola Baruah v. the Union of India and 4 Ors.

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