JUDGMENT :

Heard Mr. B.D. Das, the learned Senior Counsel assisted by Mrs.R. Deka, the learned counsel for the petitioner, Mr. K.Gogoi and Mr. D Upamanyu, the learned counsels appearing on behalf of the Higher Secondary Department, Mr. R.K. Talukdar, the learned counsel appearing on behalf of the Accountant General (A & E) and Mr. R. Borpujari, Advocate appearing for the Treasury Officer. None appears on behalf of the respondent No. 3 although service has been duly meted upon the said respondent.

2. The issue involved in the instant writ petition is as to whether the respondents in the Higher Education Department can recover from the retiral benefits of the petitioner, the salary for the period from 1/11/2021 to 31/10/2022 on the basis of a communication dated 14/11/2021 issued by the Senior Accounts Officer of the Office of the Principal Accountant General (A & E).

3. The brief facts of the instant case is that the petitioner herein was appointed as an Assistant Professor in the Department of English by an order dated 26/12/1988 on the basis of the selection made by the authorities pursuant to an advertisement. At the time of joining the petitioner submitted her Admit Card issued by the Board of Secretary, Education, Assam showing her date of birth as on 1/3/1978 as 16 years 4 months 27 days.

4. During the course of hearing the original service book was produced by the counsel for the Higher Education Department. The said Admit Card forms a part of the said Service Book as the same has been pasted in the penultimate page of the service book. It further appears that in the Service Book of the petitioner, more particularly in column No. 7 “ date of birth by Christian era as nearly as can be ascertained” the date of birth was recorded as 4th of October, 1962. It further appears from the Service Book that there were various attestation made by the Secretary, Chhaygaon College from time to time. It is also relevant to take note of that in the penultimate page of the first Service Book, the Admit Card of the petitioner was also attested by the Principal of the Chhaygaon College with a date 20/7/2006. It further appears that on 29/9/2010, the second Service Book was prepared wherein also the date of birth was recorded as 4th of October 1962 in column No. 7. Taking into account the said date of birth as 4th of October, 1962, the petitioner superannuated on 31/10/2022 as has also been recorded in the Service Book.

5. Prior to the retirement of the petitioner, the respondent No. 3 sent the pensionary benefit proposal as well as for final withdrawal of the GPF to the respondent No. 4 vide a communication dated 28/9/2022. Upon the said communication being sent, the Senior Accounts Officer of the Office of the Accountant General (A& E) had issued a communication on 14/11/2022 to the respondent No. 3 pointing out a deficiency as regards the proposal amongst others to the effect that as per the Admit Card, the date of birth of the petitioner falls on 4/10/1961 and accordingly the date of retirement of the petitioner should be on 31st of October, 2021. However, the petitioner was allowed to retire from service on 31/10/2022 and resultantly there was an excess drawal of pay of 1 year and the same needs to be corrected with due attestation and a fresh ROP, Rules, 2017 and NPC to that effect should also be furnished alongwith due and drawn statement for recovery of the overpayment of pay and allowance w.e.f. 1/11/2021 to 31/10/2022. It is on account of the said deficiency, the proposal for pension as well as the other pensionary benefits was returned by the Office of the Principal Accountant General (A & E).

6. The petitioner on coming to learn about the said communication issued a communication to the Office of the Principal Accountant General (A & E) as well as also to the respondent No. 3 dated 15/11/2022 requesting not to recover any amount from the salary of the petitioner and to release her pension alongwith GPF, leave encashment, gratuity and