Point of Law: In exercise of extra-ordinary powers conferred by under Article 226 of Constitution of India, Court loathe in interfering with matters pertaining to change of date of birth.

JUDGMENT :

Heard Ms. R. Devi, learned counsel for the petitioner. Also heard Shri NJ Khataniar, learned Standing Counsel, Secondary Education Department.

2. Considering the subject matters involved in these two writ petitions filed by the same petitioner, the same were taken up altogether for disposal at the admission stage.

3. The petitioner is an Assistant Teacher in Vivekanada Bidyapith High School, Dhekiajuli in the district of Sonitpur (hereinafter the School). The petitioner was initially appointed in the Rashtrabhasha Bidyapith ME School, on 19.01.2018 the said ME School was amalgamated with the High School above named and thereafter the petitioner has been working in the amalgamated School. While in service, a communication was issued by the Headmistress/Secretary of the School dated 05.09.2021 withholding the monthly salaries of the petitioner from August 2021. Such withholding was on the ground that there was variation in the date of birth of the petitioner which would appear from the HSLC Certificate.

4. The aforesaid communication was the subject matter of challenge in the first writ petition being WP(C)/2932/2022 and this Court had passed an order on 06.05.2022 issuing notice of motion and had also made certain observations, which are extracted hereinbelow:

“The petitioner who is an Assistant Teacher in the Vivekananda Bidyapith HS Dhekiajuli is aggrieved by the communication dated 05.09.2021 of the Headmistress of the school. As per the said communication, the Headmistress of the school found certain discrepancies in respect of the date of birth of the petitioner in the service book with that of the date of birth recorded in the HSLC certificate of the petitioner. Accordingly by arriving at such satisfaction, the petitioner was informed that henceforth the petitioner would not be paid her salary.

If there is any discrepancy in the date of birth recorded in the service book with that of the HSLC certificate, it is always open for the authorities to issue notice to the petitioner, draw a proceeding and pass appropriate order thereon. But it cannot be accepted under the law that merely on the allegation of discrepancy with the date of birth, the salary would be stopped.

Considering the balance of convenience and irreparable loss that the petitioner may suffer, the communication dated 05.09.2021 of the Headmistress of Vivekananda Bidyapith HS Dhekiajuli shall remain stayed until further order(s), meaning thereby, that all consequential benefits of the stoppage of salary shall have no effect under the law as regards the payment of salaries and allowances to the petitioner.

However, if the authorities are of the view that the petitioner is required to be proceeded against, liberty remains and the pendency of the writ petition shall not be a bar for the same.”

Though the impugned communication dated 05.09.2021 was stayed, the salaries were not released leading to filing of a contempt case by the petitioner. In the said contempt proceedings, a Speaking Order dated 28.09.2022 passed by the Inspector of School, Sonitpur District Circle was produced whereupon the contempt proceeding was closed and thereafter, the second writ petition being WP(C)/2184/2023 has been instituted challenging the said Speaking Order dated 28.09.2022.

5. Ms. Devi, learned counsel for the petitioner has submitted that it is a fact that her Matriculation Certificate issued by the Council of the State of UP records her date of birth as 06.10.1958 which was due to inadvertence. To substantiate such claim, the learned counsel has referred to a School Leaving Certificate issued by the Dhekiajuli Government Aided High School where the petitioner had left the said School when she was reading in Class-VI and as per the said Certificate, her date of birth on deduction would be 30.03.1966. It is the case of the petitioner that she had left the State of Assam and was in the State of UP from where she had passed her HSLC examination and in the Admit Card issued by the C