WP(C) 334/2010 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA Heard Dr. B. Ahmed, learned counsel for the petitioner as well as Ms. R. Chokraborty, learned Addl. Sr. Govt. Advocate. I have also heard Mr. S.K. Das, learned Standing counsel, Education Department. The petitioner is the wife of Late Shamsul Haque Mazumder who died in ha rness while serving as Head Master in Ramkamal M.V. School under the Block Eleme ntary Education Officer, Katigorah, Cachar. When the petitioner, being the wife, claimed pensionary and other retirement benefits, it was made known to her that an amount of RS. 2,69,379/- is recoverable from the retirement benefits. It was by Annexure- 3 letter dated 17.03.09, the Directorate of Pension, Assam intimat ed the District Elementary Education Officer, Cachar, Silchar that the pay of th e husband of the petitioner was wrongly fixed at Rs. 715/- instead of Rs. 590/- on 01.01.81. Accordingly request was made to re-examine the matter and to assess the excess drawl recoverable from the pensionary benefits. By Annexure-4 letter dated 12.10.09, the District Elementary Education Officer, Cachar intimated the Director of Pension, Assam about the periods for which the amounts shown in th e letter were recoverable. By Annexure-5 letter, the total amount was shown to b e Rs. 2,69,379/-. The aforesaid amount could not be recovered from the pensionary benefits admissible to the petitioner in view of the interim order passed by this Court. The respondents in the Education Department have not filed any counter affidavi t. However, Mr. S.K. Das, learned Standing counsel upon reference to the aforesa id Annexures- 3, 4 and 5 documents dated 17.03.09, 12.10.09 and 09.10.09 respect ively, submits that since there was wrong fixation of pay of the husband of the petitioner, steps have been taken to recover the excess amount. As per the counter affidavit filed by the Director of Pension, the said authority is guided by the stand of the employer, i.e. the Education Department. According to the said affidavit, periodical checks were not carried out and thu s, at the time of final assessment it was found that there was excess drawl of salary by the husband of the petitioner. In the affidavit, a stand has been take n that it will be entirely upto the Education Department to waive the excess amo unt and the Directorate of Pension has got nothing to do with the matter. Dr. B. Ahmed, learned counsel for the petitioner has drawn my attention to Annexure-6 office memorandum dated 29.04.76 and two orders of this Court pass ed in W.P.(C) No. 3755/04 and W.P.(C) No. 6209/06. He submits that the responden ts are not entitled to recover the amount at this distant date and that too, wit hout providing any opportunity of being heard to the petitioner. He further subm its that under no circumstances, the respondents can recover the said amount fro m the pensionary benefits admissible to the petitioner after expiry of her husba nd. The aforesaid office memorandum dated 29.04.76 finds mention under Rule 95 of the Assam Services (Pension) Rules, 1969. Clause (c) of the said office me morandum reads as follows: (c) The average emoluments will be determined with reference to emoluments draw during the last 10 complete months and not 36 months as was the practice heretof ore. While the period to be taken for average calculations has been reduced the other provisions in rule 115 of the Assam Services (Pension) Rules, 1969 will co ntinue to apply mustatist mutandis. This work involves not merely an arithmetica l calculation of the average emoluments but also a check of the correctness of t he emoluments on the first date of ten months period would naturally depend on t he correctness prior to this date. However, any such check of the correctness of the past emoluments whether in the office preparing the pension paper or later in the office responsible for issuing the payment order should not become and oc casion for an extension examination going back in to the distant past the check should be the minimum which is absolutely necessary and it should not in any cas e go back to a period earlier than a maximum of 24 months preceding the date of retirement. As per the said clause, occasion for extensive examination in respect of pension proposal going back in to the distant past, the check should be the minimum whi ch is absolutely necessary and it should not in any case go back to a period ear lier than a maximum 24 months preceding the date of retirement. In the aforesaid two orders dated 28.07.04 and 03.01.08 passed by this Court in W.P.(C) No. 3755/04 and W.P.(C) No. 6209/06, this Court interfered with the prop osed recovery for which proposals were mooted after considerable delay and that too, without providing any opportunity of being heard. Dr. Ahmed, learned counsel for the petitioner has also referred to the judgment and order dated 06.05.2008 passed in W.P. (C) No. 4442/2007 (Amulya Kr. Madok vs . State of Assam and others) in which under similar circumstances direction was issued not to recover any excess drawl from the pensionary and other retirement benefits of the incumbent. In view of the above, the writ petition is allowed directing the respondents to clear the pension case of the petitioner as expeditiously as possible, but at an y rate, not later than three months from today ignoring the proposal for recover y. In other words, there shall be no recovery in respect of the aforesaid amount for which proposal was mooted by the aforesaid Annexures - 3, 4 and 5 documents dated 17.03.09, 12.10.09 and 09.10.09 respectively. With the above directions, the writ petition is disposed of.