JUDGMENT : 1. Heard Mr. K Singha, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned Standing Counsel, Higher Education Department, appearing for respondents No. 1, 3 and 4. 2. The petitioner was serving as an Associate Professor of Assamese in KRB Girls’ College, Fatashil, Guwahati. By a letter dated 24.03.2017 the Principal of said college informed the petitioner that as per the office record she shall retire from service as Associate Professor from the said College on 30.06.2017 and therefore, requested her to submit all necessary relevant papers, documents and information for submission of proposal of her retirement benefit to the Government and also to clear all dues if any. The petitioner accordingly, on 30.6.2017, retired from service from said college on attaining the age of superannuation at 60 (sixty) years. 3. On verification of the petitioner’s pension proposal, the Directorate of Higher Education found that as per petitioner’s Class-X passed certificate of 1973 issued by the Board of Secondary Education Assam (SEBA) (Annexure-1 to the writ petition), on the 1st March of 1973 her age was 16 years 8 months and X days and as per said certificate her date of birth was 01.07.1956, as such she should have retired from service 30.06.2016 on attaining of her 60 years. 4. On such scrutiny of pension documents, the said Directorate also found that in her Service Book, petitioner’s date of birth was recorded as 30.06.1957 (Annexure-6 to the writ petition) and that the petitioner had overstayed in service w.e.f. 01.07.2016 to 30.06.2017. For those reasons, the Directorate of Higher Education, Assam vide communication No. DHE/PEN/ 288/2017/47 dated 27.03.2018 returned the pension as well as the ‘Leave Encashment Benefit’ proposal of the petitioner to the Principal of KRB Girls’ College, Fatashil, Guwahati directing him to resubmit the same to the said Directorate after depositing the entire amount of overdrawal through treasury challan and after making necessary reconciliation. 5. By another communication No. DHE/PEN/288/2017/48 dated 27.03.2018 the Directorate of Higher Education, Assam issued Show Cause Notice to the Principal of KRB Girls’ College, Fatashil, Guwahati as to why disciplinary proceeding should not be initiated against him for allowing the petitioner to overstay in service for the period from 01.07.2016 to 30.6.2017 and to overdraw Rs.17,06,463/-as per her last pay certificate since he allowed the petitioner to continue in service up to 30.06.2017. 6. 6. On receipt of those letters from the Directorate of Higher Education, Assam, the Principal of KRB Girls’ College, Fatashil, Guwahati on 29.03.2018 directed the petitioner to deposit the entire amount of overdrawal through treasury challan and to submit the necessary papers for re-submission of her pension proposal to the said Directorate. In the said letter dated 29.03.2018, the Principal of KRB Girls’ College also informed the petitioner that her date of birth was wrongly recorded in her service book by the then Principal of the College, Mr. Zahid Choudhury, at the time of joining in KRB Girls’ College as 30th June, 1957 and not as per her HSLC Certificate. 7. The Principal of KRB Girls’ College, on 11.04.2018 again wrote to the petitioner requesting her to act in terms of the letter dated 27.03.2018 of the Directorate of Higher Education, Assam, and to refund the excess amount drawn as per her last pay certificate at an early date so that the college authority can resubmit her pension papers. 8. Being aggrieved, the petitioner has preferred this writ petition praying for setting aside and quash the impugned letter dated 27.03.2018 of the Directorate of Higher Education, Assam (Annexure-17 to the writ petition) and the consequential letters dated 29.03.2018 and 11.04.2018 of the Principal of KRB Girls’ College, Fatashil, directing her to deposit the entire alleged overdrawal amount and not to recover or withheld any amount from her retirement benefits and further prayed for a direction to the respondents to release her pension and other retirement benefits. It is also submitted by the petitioner that it is the concerned office of the College who used to keep and maintain the Service Book of the employees of the College and the petitioner did not have any access to it during her service period. 9. Heard the submissions of the learned counsels for the parties. 10. The Note appended to the Subsidiary Rules 8 of the FR & SR specifies that – The Head of the office should record the date of birth in the Service Book of a non-Gazetted Government servant on his initial appointment with reference to the Matriculation or equivalent certificate and shall also record a remark to this effect in the Service Book. In cases where these are not available, the Head Office should verify the date with reference to the birth certificate to be produced by the Government servant and the record a note to that effect in the Service Book. In the case of Gazetted Government servant, the verification should be made according to the above procedure on his initial appointment by the Administrative Department concerned. They should intimate that date of birth of the officer as verified to the Accountant General for incorporation of the same in the history of services of the Gazetted Government servants. 11. In the present case, date of birth of the petitioner in her service book was recorded by the concerned Principal, when she joined the said College as 30th June 1957 instead of 1st July 1956 as per her Matriculation Certificate which can be seen from the letter of the present Principal of the College dated 29.03.2018 (Annexure-18 to the writ petition) and due to said wrong entry of date of birth in her Service Book, the petitioner continued in her service till 30.6.2017 though she was supposed to retire on 30.06.2016 and for the period from 01.07.2016 to 30.06.2017, the petitioner rendered her service as Associate Professor in Assamese in said KRB Girls’ College, Fatashil and during the said period the college authority as well as the Higher Education Department extracted her service. 12. It is also seen that due to such wrong entry in her service book by the College authority, on 24.03.2017 (Annexure-12 to the writ petition) the authority of the College intimated the petitioner that as per office record of the college, she would retire from service as Associate Professor on 30.06.2017 and accordingly, the petitioner went on retirement w.e.f. the said date. 13. It is not the case of the respondents that by misrepresentation or by fraudulent manner the petitioner had entered wrong date of birth in her Service Book. The petitioner had worked beyond 30.06.2016 without any objection being raised by the respondents in the Higher Education department as well as by the College authority and the said respondents got the work from the petitioner during the said period. 14. Further, in the present case, there was only one date of birth mentioned in her Service Book and the petitioner had retired on the basis of her date of birth so entered. 14. Further, in the present case, there was only one date of birth mentioned in her Service Book and the petitioner had retired on the basis of her date of birth so entered. Moreover, there was no controversy or dispute as to the date of retirement of the petitioner as recorded in her Service Book where only one date of birth was mentioned and the petitioner had retired on the basis of her said date of birth so entered. 15. It is not the proven case that the petitioner had manipulated her date of birth by entering a second date in her Service Book and that she had any malafide intentions to continue her service beyond her date of retirement and wrongly extended her service beyond the date of her superannuation. The petitioner continued in her service as per her date of birth recorded in her Service Book by the Head of her Office, i.e. the concerned College authority. Admittedly, on service of notice of retirement by the authorities concerned, on the basis of the date of birth recorded in her Service Book, the petitioner retired from service w.e.f. 30.06.2017. 16. In the case of Kailash Singh -Vs-State of Bihar, reported in (2005)13 SCC 576 , the Hon’ble Supreme Court have held that – recovery sought to be made from the salary of theemployeesonthegroundofaegedoverstayinserviceonthebasisofageassessedor considered, despite the fact that the employee has worked during the period of alleged over stay could not be made. 17. The Hon’ble Supreme Court in the case of Sahib Ram-Vs-State of Haryana, reported in 1995 Supp (1) SCC 18 have held that – even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retrial dues in the monetary benefit available to the employee. 18. 17. The Hon’ble Supreme Court in the case of Sahib Ram-Vs-State of Haryana, reported in 1995 Supp (1) SCC 18 have held that – even if by mistake, higher pay scale was given to the employee, without there being misrepresentation or fraud, no recovery can be effected from the retrial dues in the monetary benefit available to the employee. 18. The Hon’ble Supreme Court in the case of State of Bihar -Vs-Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117 , in a case of overstay in service beyond the date of retirement from service, have held that – Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent. 19. In the said Judgment of Pandey Jagdishwar Prasad (supra), the Hon’ble Apex Court, after considering the matter, have observed and directed as follows – Although we have directed that the excess amount paid for two years to the respondent as salary cannot be recovered from the respondent, but we make it clear that for fixing the retiral benefits, the period of two years in respect of which salary was received by the respondent cannot be taken into consideration and the respondent would be entitled to fixation of retiral benefits as on the date of his superannuation i.e. 28-2-2002. 20. Considering the entire aspect of the matter, it is directed that the respondents in the Higher Education Department of the State and the authority of the KRB Girls’ College, Fatashil, Guwahati shall not recover the amount of salary already paid to petitioner for her overstay in service for the period from 01.07.2016 to 30.06.2017 as she has rendered her service during the said period and the respondents also got the work from the petitioner during the said period. 21. 21. The petitioner is aware of her date of birth as per her Class-X HSLC Examination 1973 passed certificate issued by SEBA which is annexed to the writ petition as Annexure-1 to the writ petition. As such, it is made clear that the petitioner shall be entitled to receive her pension and other retirement benefits as on the date of her superannuation from service i.e. 30th June, 2016. 22. The respondents both in the Higher Education Department of the State as well as the authority of the KRB Girls’ College, Fatashil, Guwahati shall now assess the pension amount of the petitioner including her Death cum Retirement Gratuity, Leave Encashment Benefit and other retirement benefits, if any, considering her date of retirement from service as 30.06.2016 in terms of her date of birth as recorded in her HSLC 1973 Certificate issued by the SEBA. The petitioner shall submit the necessary documents and forms and shall also put her signatures in the relevant documents and prescribed forms in that regard. The respondents shall consider to provide provisional pension to the petitioner in view of her date of retirement as 30.06.2016. 23. On the prayer made by Mr. K Gogoi, learned Standing Counsel, Higher Education Department, it is needless to say that the respondents in the Higher Education Department are entitled to take action against the erring officials for recording wrong date of birth of the petitioner in her Service Book but, in accordance with law. 24. With the aforesaid observation and direction, this writ petition stands disposed of.