WP(C) 2419/2010 BEFORE HON’BLE MR JUSTICE I A ANSARI J U D G M E N T Heard Mr. N. Rajkhowa, learned counsel for the writ petitioner, and Ms. A. Verma, learned Standing counsel, Finance Department, Government of Assam, app earing on behalf of respondent No. 5. Heard also Mr. C. Baruah, learned counsel for respondent No. 4, and Mr. D. Saikia, learned Standing counsel, Department o f Health, Government of Assam, appearing on behalf of respondent No. 1, 2 and 3. 2. The controversy in this writ petition, filed under Article 226 of the Co nstitution of India, seeking appropriate direction from this Court, has arisen o ut of a decision taken by the respondents to recover, by way of adjustment, a su m of Rs. 1,06,400/- from the pension and pensionary benefits of the petitioner. The genesis for the adjustment, which is sought to be made, lies in the letter, dated 11.09.2006, issued by the Joint Director of Health Services, Goalpara, which is, being self- explicit, reproduced below: GDHS/ESTT/Lab-Tech/06 ---------- /Pay fixation was done vide this office IPS da ted 16.05.1991, in respect of Sri Akhil Kumar Sarma, 30 Beded Rural Hospital, A bhayapuri, under the establishment of the Chief Medical and Health officer, Goal para at Rs. 1185.00 on 22.05.1989, in the revised scale of pay of Rs. 1065-20-12 25-30-1345-EB-30-1435-40-1635-50-2035-60-2095/- per month as per ROP Rules 1990, is hereby modified as it was done wrongly through oversight. The actual correct fixation is Rs. 1065.00 on 22.05.1989 instead of Rs. 1185.00 in the revised scale of pay of Rs. 1065-20-1225-30-1345-EB-30-1435-40-1635-50-20 35-60-2095/- per month, as per letter No. Pen-2/K-42917/L-02/Health/Bon/05/268 d ated 29.08.2005 of the Accounts Officer, office of the Accountant General(A & E) , Assam, Maidamgaon, Beltola, Guwahati-29. 3. From a bare reading of the order, dated 11.09.2006, aforementioned, what transpires is that the petitioner’s pay was fixed, on 22.05.1989, at Rs. 1185.0 0, per month; whereas the correct pay of the petitioner, on 22.05.1989, was Rs. 1065.00/-. As the petitioner has been paid more than what he ought to have rece ived due to inadvertent mistake in fixing his scale, the action for recovery of the excess amount, paid to the petitioner, has been initiated by the respondents by deducting the excess amount from the petitioner’s pension and pensionary ben efits. 4. When an employee retires, on superannuation, having received an amount, more than what he ought to have received, because of wrong calculation or wrong fixation of his/her scale, the same cannot be deducted from his pension and pens ionary benefits unless the scale or the excess amount was received by the person concerned by means of misrepresentation or by commission of fraud. In the abse nce of misrepresentation or fraud being committed, in this regard, by the employ ee, no amount, which has been paid in excess, can be recovered from such an empl oyee if it was due to mistake on the part of the employer. A reference, in this regard, may be made to the case of Col. B. J. Akkara (Retd.) vs. Government of India and others, reported in (2006) 11 SCC 709, wherein the Supreme Court, cla rifying the position of law on this aspect, has observed and laid down as under : 27. The last question to be considered is whether relief should be granted agai nst the recovery of the excess payments made on account of the wrong interpretat ion/understanding of the circular dated 7-6-1999. This Court has consistently gr anted relief against recovery of excess wrong payment of emoluments/allowances f rom an employee, if the following conditions are fulfilled (vide Sahib Ram v. St ate of Haryana8, Shyam Babu Verma v. Union of India9, Union of India v. M. Bhask ar10 and V. Gangaram v. Regional Jt. Director11): (a) The excess payment was not made on account of any misrepresentation or fraud on the part of the employee. (b) Such excess payment was made by the employer by applying a wrong principle f or calculating the pay/allowance or on the basis of a particular interpretation of rule/order, which is subsequently found to be erroneous. 28. Such relief, restraining back recovery of excess payment, is granted by cour ts not because of any right in the employees, but in equity, in exercise of judi cial discretion to relieve the employees from the hardship that will be caused i f recovery is implemented. A government servant, particularly one in the lower r ungs of service would spend whatever emoluments he receives for the upkeep of hi s family. If he receives an excess payment for a long period, he would spend it, genuinely believing that he is entitled to it. As any subsequent action to reco ver the excess payment will cause undue hardship to him, relief is granted in th at behalf. But where the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or where the error is detected or corre cted within a short time of wrong payment, courts will not grant relief against recovery. The matter being in the realm of judicial discretion, courts may on th e facts and circumstances of any particular case refuse to grant such relief aga inst recovery. 29. On the same principle, pensioners can also seek a direction that wrong payme nts should not be recovered, as pensioners are in a more disadvantageous positio n when compared to in-service employees. Any attempt to recover excess wrong pay ment would cause undue hardship to them. The petitioners are not guilty of any m isrepresentation or fraud in regard to the excess payment. NPA was added to mini mum pay, for purposes of stepping up, due to a wrong understanding by the implem enting departments. We are therefore of the view that the respondents shall not recover any excess payments made towards pension in pursuance of the circular da ted 7-6-1999 till the issue of the clarificatory circular dated 11-9-2001. Insof ar as any excess payment made after the circular dated 11-9-2001, obviously the Union of India will be entitled to recover the excess as the validity of the sai d circular has been upheld and as pensioners have been put on notice in regard t o the wrong calculations earlier made. 5. Keeping in view the observations, made in Col. B. J. Akkara (Retd.) (sup ra), and the directions given, this Court is of the view that in the facts and a ttending circumstances of the present case, when it is not alleged that the wron g fixation of pay scale was at the behest of the petitioner, or due to any misre presentation made by the petitioner, or due to any fraud played by the petitione r, the respondents cannot be allowed to deduct the said sum of Rs. 1,06,400/- fr om the pension and/or pensionary benefits of the petitioner by way of adjustment s or otherwise. 6. In the result and for the reasons discussed above, this writ petition su cceeds. The impugned letters of recovery, dated 12.01.2009 (Annexure ’F’) and d ated 15.09.2009 (Annexure ’G’), are hereby set aside and quashed and the respond ents are directed to make payment of the said sum of Rs. 1,06,400/- to the petit ioner within a period of three months from the date of receipt of a copy of this order by the respondent No. 2, namely, Director of Health Services, Assam, who shall pass necessary order, in accordance with law, in the light of the observat ions made above. The petitioner may furnish to the respondent No. 2 a certified copy of this order along with a copy of this writ petition and annexure thereto . 7. With the above observations and directions, this writ petition stands di sposed of. 8. Furnish a copy of this order to the learned Standing counsel, Department of Health.