IMPORTANT POINT
The petitioner's silence regarding the wrong date of birth did not amount to fraud, and the recovery of salary for the period of overstay was interfered with.

JUDGMENT :

1. Heard Ms. P Baruah, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned counsel representing the Higher Education Department and Mr. SK Medhi, learned standing counsel for the Accountant General (A&E)

2. The petitioner who retired as Principal from Murkong Selek College, Jonai as Lecturer on 31.12.2018 has preferred the instant writ petition challenging the impugned action of recovery of financial benefit already made to the petitioner on account of overstay in service from 01.01.2018 to 31.12.2018. The respondent authorities concerned have recovered/deducted an amount of Rs. 21,27,846/- from her pension and other benefits. The learned counsel submits that the overstay in service is not the fault of the petitioner and the petitioner was never informed at any point of time that her date of birth was wrongly recorded in her Service Book and therefore, such being the position, the recovery from her pension and other benefits cannot be done and the same should be refunded back to her. In support of her submission, the learned counsel has relied upon the judgment of the Apex Court in the case of State of Bihar & Ors. vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117.

3. The basic contention of the petitioner is that on being appointed as a Lecturer at Murkong Selek College, Jonai, the petitioner joined her service on 01.10.1993. According to the petitioner, her age is reflected in the admit card as 16 years 3 months as on 02.04.1974. Accordingly, her date of birth shall be 01.12.1957. It is the further case of the petitioner that her employer has wrongly recorded her date of birth in the service book as 01.12.1958 instead of 01.12.1957. Though her date of birth was recorded as 01.12.1958, the same is a wrong recording of date and it is a mistake on the part of the employer. The petitioner had no role in recording of such date of birth. The learned counsel contends that even if it is decided that she ought to have retired on 31.12.2017, no recovery can be made as the employer has extracted her service till 31.12.2018 and there is no allegation of committing any fraud by the petitioner.

4. The respondent employer has filed an affidavit and has taken a specific stand that the petitioner being the Principal/ In-charge of the college, was the custodian of all the official records and responsible for all official dealings, process and verification of all records including the service book of herself and employees of the college and therefore, when she is well aware of her actual date of birth, she as a Principal cum Secretary of the college ought not to have over stayed in service rather as a Secretary of the college, it was her responsibility to intimate the Governing Body regarding her actual date of birth and wrong entry of her date of birth. Therefore, it is contended by the respondent State, in the aforesaid factual background that it cannot be said that petitioner has not taken advantage of the wrong/ mistake committed at the time of entry into her service and therefore, the respondent State has rightly recovered the amount.

5. From the materials available on record this court can very well conclude the following facts:

I. The petitioner joined the service as Lecturer in the college on 01.10.1993.

II. Her date of birth was recorded in her service book on the basis of her matriculate certificate. Such matriculation certificate does not reflect any specific date of birth, however, declares that the petitioner was 16 years 3 months on 1st of March, 1974.

III. Thus, her date of birth ought to have been recorded in the service book as 1st December, 1957. However, it was recorded as 1st December, 1958.

IV. It is an admitted position that such entry was neither made by the petitioner nor she had any control over the service book at the relevant point of time when it was entered.

V. The fact also remains that there was no allegation of manipulation of such record or date of birth by the petitioner nor there is