WP(C) 4609/2009 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER 1 The petitioner being aggrieved by the recovery of an amount of R s. 20,277/- from his pensionary benefits on the ground of over drawal due to ste pping up of his pay during his service period is before this court praying for a writ of mandamus to the respondent authorities to release the aforementioned sum. 2 I have heard Mr S. Hoque, learned counsel for the petitioner and Mr. M. Khatonier, learned Standing counsel, Education Department, Govt of Assam . 3 In brief, the petitioner’s pleaded version is that he was appoin ted as Head Pandit of Tengaguri L.P.School on 23.3.1960 at the scale of pay of R s. 50-1-60/- per month. Subsequently the said School was converted to M.V. Schoo l, namely Kalaigaon Adarsha Girls’ M.V. School on 11.8.1962, where the petitione r became the Assistant Teacher of the School at the scale of pay of Rs. 60-4-8-5 -125/- per month. His services were provincialised w.e.f 5.9.1975. His pay scal e was revised and he was also granted the benefits of extended scale of pay of Rs. 675-15-750-20-850-25-975/- per month vide order dated 27.4.1989 of the Dist rict Elementary Education Officer, Darrang, Mangaldoi. He was thereafter transfe rred on promotion to Chaibari M.V. School as the Heasmaster thereof and his pay was stepped up to Rs. 6250/- only w.e.f. 16.2.1996 as per para 10 of the Revisio n of Pay Rules, 1998 and Finance Department letter No. FBG 25/87/132 dated 10.9 .97 along with some other Head Masters of Darrang District with due intimation t o the Accountant General, Assam. After rendering 40 years of service the petitio ner retired on 30.9.1999 and thereafter he was allowed to draw his Provisional Pension at the rate of Rs. 3,400/- as per last pay drawn by him. As the petition er was awaiting in bonafide expectation his pension, suddenly by the impugned order dated 20.2.2002 the Directorate of Pension, Assam intimated the District E lementary Education Officer, Darrang, Mangaldoi that he had over drawn pay due to wrong stepping up w.e.f 16.2.96 to 30.9.99. The said authority therefore dire cted recovery of the excess amount paid to the petitioner. According to the pet itioner, the District Elementary Education Officer, Darrnag, Mangaldoi re-submit ted his pension papers to the Director of Pension vide letter dated 5.8.2002 me ntioning that his basic pay was stepped up to Rs. 6250/- w.e.f 16.2.96 at par wi th his junior after proper verification by the Director of Elementary Education , Assam. The Directorate of Pension, Assam, however, was relentless whereafter a n amount of Rs. 20,277/- was deducted from his entitlements and the remaining su m was released to him. According to the petitioner, having retired he was dire n eed of money for his subsistence as well as his family members and could not pr event the deduction at that point of time being aggrieved by the action of the respondents, he is now before this court for redress. 4 Though no affidavit has been filed by the State respondents, the District Elementary Education Officer,Darrang, Mangaldoi in his parawise commen ts had affirmed the facts of stepping up of the petitioner’s pay to be at par wi th his junior , Sri Siba Ram Sarmah, Headmaster of Santipukhuri M.V. School wi th effect from 16.2.96 to 4.9.99. The said authority though had indicated about the steps taken for recovery of the above amount from the pensionary benefits of the petitioner he has expressed ignorance about the actual realization thereof . 5 In fact Mr. Hoque, learned counsel for the petitioner has argued that the petitioner having been granted the benefit of stepping up of pay in t erms of the revision of pay Rules, 1998 as applicable to him, the decision to re cover an amount of Rs. 20,277/- from his pensionary benefits on the purported gr ound of over drawal is illegal and arbitrary and ought to be interfered with by this court. 6 The learned counsel for the petitioner has urged that without pr ejudice to the above, even assuming without admitting that the petitioner’s pay has been wrongly stepped up, there being no material on record to indicate that the said benefit had been wrongfully obtained by him, the impugned decision of r ecovery is obviously invalid. In support of his plea, Mr. Hoque has placed relia nce on the decision of this court rendered in Safior Rahman & Ors Vs State of As sam & Ors, reported in 2007(2) GLT 308. 7 Mr. M.Khatonier, learned Standing counsel, Education Department, Assam has urged in reply that the petitioner had been extended the benefits of stepping up of his pay in terms of the letter dated 4.9.99 of the Director of E lementary Education, Assam, Guwahati. 8 Noticeably the Education Department of the State has not questio ned the validity of the decision of stepping up of the pay of the petitioner and instead has endorsed the action so taken. The impugned letter dated 20.2.2002 o f the Finance and Accounts Officer, Directorate of Pension, Assam does not discl ose the reasons as to why the stepping up of the pay of the petitioner is illega l. There is no material on record either to suggest any overt or covert initi ative on the part of the petitioner to acquire the said benefit though he is not entitled in law. 9 In that view of the matter, not only there is any basis on the f ace of the record to justify the finding that the stepping up of the pay of the petitioner was erroneously caused in spite of para 10 of the ROP Rules, 1998 an d the Finance Department letter No.FBG 25/87/132 dated 10.9.97 referred to in th e order dated 4.9.99 nor any latent or patent contribution of the petitioner to this decision is decipherable. 10 The Apex Court in Sahib Ram Vs State of Haryana and Ors, reporte d in 1995 Supp (1) SCC 18 had held that payment made due to wrong up grading of pay scale for erroneous construction of the relevant order of the authority c oncerned, in absence of any misrepresentation by the employee, ought not to be r ecovered. 11 In that view of the matter, the impugned decision of recovery of the excess amount of Rs. 20,277/- from the pensionary benefits of the petitione r cannot be sustained. The petition, therefore, succeeds. The letter dated 20.2 .2002 (Annexure 4 to the writ petition) is, therefore, annulled. The respondent s are hereby directed to refund forthwith the amount of Rs. 20,277/- recovered from the pensionary benefits of the petitioner. As the petitioner has retired fr om service in the year 1999, the disbursement as directed should be effected wit hin a period of 15 days from the date of receipt of the certified copy of this o rder. No costs.