JUDGMENT TARUN CHATTERJEE,J.

1. Leave granted.

2. This appeal is directed against an order passed by a Division Bench of the High Court of Judicature at Patna, by which the respondent had questioned the legality and validity of an order dated 22nd of August, 2006 passed by a learned Judge of that Court, whereby the learned Judge had rejected the Writ Petition filed by the respondent.

3. The Writ Petition was filed by the respondent raising grievances against the order of the appellant dated 4th of December, 2004 directing recovery of the amount of salary for two years paid to the respondent on account of a dispute with regard to his date of birth despite the fact that the respondent had worked during that period. The appellant, by the order dated 4th of December, 2004, as noted herein earlier, directed recovery of the salary on the basis of that order, which was affirmed by a learned Judge of the High Court. Therefore, the only question that was raised before the Division Bench was whether the order passed by the State Authority dated 4th of December, 2004 and affirmed by the learned Judge was justified or not. The Division Bench, by the impugned order, had allowed the appeal and set aside the order of the learned Judge and quashed the order of the authority effecting recovery from the retiral dues and also directed the appellant to return and repay the amount recovered till the date of payment. It is this order, which is now under challenge before us by way of a Special Leave, which on grant of leave, was heard in presence of the learned counsel for the parties.

4. Before we consider the questions raised before us in support of the appeal, let us narrate the relevant facts leading to the filing of this appeal.

5. The respondent, at the relevant point of time, was working as a Correspondence Clerk (class III) in the office of the Executive Engineer, Rural Engineering Organisation, Works Division, Sasaram in the State of Bihar. On 14th of August, 1973, the service book of the respondent was opened and two dates of birth of the respondent viz. 11th of February, 1944, and 11th of February, 1946, were recorded simultaneously in his service book. It may be mentioned here that inspite of two dates of birth having been entered into service of the respondent, the State Authorities did not correct or delete any of the dates mentioned above for the entire period the respondent was in employment with the State Authorities. According to the first mentioned date of birth, the respondent ought to have retired on 28th of February, 2002. But he retired on 29th of February, 2004 according to the other mentioned date of birth in his service book. As noted herein earlier, on 4th of December, 2004, a reasoned order was passed vide memo no. 340, in the context of an order dated 11th of October, 2004, passed in C.W.J.C. No. 12886 of 2004, in which the respondent claimed for payment of retirement benefit such as pension, gratuity, leave encashment, etc.

6. By this order, the respondent was ordered to be retired on 28th of February, 2002, on the basis of his date of birth mentioned in his service book i.e. 11th of February, 1944, which was based on his matriculation certificate. As noted herein earlier, by the order dated 4th of December, 2004, the appellant passed an order directing recovery of the excess amount drawn by the respondent.

7. Thereafter, on 12th of February, 2005, by the memo Nos. 30 and 31 of the Executive Engineer, Work Division, Sasaram sanctioned the amount of gratuity and also ordered for deduction of excess amount from group insurance of the respondent in twenty equal installments. The Executive Engineer R.E.O. Works Division, Sasaram through the memo no. 05 dated 4th of March, 2005, made a refixation of the amount paid to the respondent under Bihar Government Employees Essential Group Insurance Scheme. Aggrieved thereafter, the respondent filed a Writ Petition before the High Court of Judicature at Patna and the High Court, by a