JUDGMENT : RUMI KUMARI PHUKAN, J. 1. Heard Mr. A. Dasgupta, learned senior counsel appearing for the petitioner. Also heard Mr. D. Bhattacharjya, learned standing counsel appearing for the respondent Nos. 1-3 and Mr. T.C. Chutia, learned standing counsel appearing for the Board of Secondary Education, Assam (SEBA), Respondent No. 4. 2. The case of the petitioner is that he was appointed as a peon in the Assam State Electricity Board, in the year 1981, which was subsequently named as Assam Power Distribution Company Limited (hereinafter referred to as ‘the APDCL’) a Govt. Company. He joined in his service on 16.02.1981, in Transmission and Transformation Station at Lanka and later on he was posted in Transmission and Transmission Division at Nagaon. At the time of his appointment, he had not passed the HSLC examination and his date of birth was recorded on the basis of a certificate, issued by the Head Master of Pitambar Dev Goswami High School where he persuaded his studies. In terms of that certificate his date of birth was 25.01.1957. Subsequently, the petitioner passed his HSLC examination under the Board of Secondary Education, Assam (in short ‘SEBA’) in the year 1984. In the HSLC examination pass certificate, his date of birth was recorded as 01.08.1959. After passing the HSLC examination the petitioner submitted his certified issued by the SEBA and in terms of the date of birth as indicated in the HSLC pass certificate, the petitioner’s date of birth was rectified in his service book. Moreover, considering his newly acquired educational qualification, the petitioner was allowed to officiate in the post of Assistant Store keeper on 18.01.1988. Petitioner was subsequently promoted to the post of U.D. Assistant on 26.09.2017. 3. In terms of the date of birth, recorded in the School Leaving Certificate i.e. 01.08.1959, the petitioner’s date of superannuation would be on 31.08.2019. His date of birth was accepted by the authorities of the APDCL and the petitioner was promoted to the post of UDA on 26.09.2017. Had it been not so, the petitioner would have been released from his service on 01.02.2017, on the basis of the certificate issued by the Head master of Pitambar Dev Goswami High School. His date of birth was accepted by the authorities of the APDCL and the petitioner was promoted to the post of UDA on 26.09.2017. Had it been not so, the petitioner would have been released from his service on 01.02.2017, on the basis of the certificate issued by the Head master of Pitambar Dev Goswami High School. On 26.09.2018, the Chief General Manager (D) of the APDCL (Car), Guwahati, issued a letter whereby it was intimated to the petitioner that his date of birth was modified by the Divisional Engineer, NED-II, without taking any approval from the competent authority, stating that the petitioner’s date of birth, as recorded in the certificate issued by the SEBA, cannot be accepted. However, his qualification as indicated in the certificate of the SEBA will be accepted. The authorities of the APDCL was of the view that the petitioner’s actual date of superannuation is on 31.01.2017, as he continued in his service beyond this date, the authorities were of the view that the petitioner had over stayed in his service from 01.02.2017. Accordingly by the communication dated 26.09.2018, the petitioner was informed that the excess pay and allowances, drawn by the petitioner w.e.f. 01.02.2017 will be recovered from his gratuity and other post retirement benefits. 4. The petitioner contended that he submitted a representation on 04.10.2018, in response to the communication dated 26.09.2018, wherein he reiterated that he joined in his service on 16.02.1981 and as per the certificate issued by the Head Master of Pitambar Dev Goswami High School, his date of birth was recorded as on 25.10.1957 but in his HSLC examination pass certificate, his date of birth was recorded on 01.08.1959 and he requested the authority to accept his date of birth as per the HSLC examination pass certificate. 5. On 29.10.2018, the Chief General Manager, APDCL vide Order No. CGM (D)/APDCL (CAR) Estt-130/2018/8, informed that his date of superannuation should have been 31.01.2017 and the pay and allowances drawn by the petitioner during his overstay in service, would be recovered from his post retirement benefit. It is contended by the petitioner that the order dated 29.10.2018 is illegal and if the same is allowed to stand, it will illegally deprive the petitioner from his means of livelihood. Accordingly the petitioner begs for setting aside and quashing of the impugned order dated 29.10.2018. 6. It is contended by the petitioner that the order dated 29.10.2018 is illegal and if the same is allowed to stand, it will illegally deprive the petitioner from his means of livelihood. Accordingly the petitioner begs for setting aside and quashing of the impugned order dated 29.10.2018. 6. In response to his prayer, the respondents submitted their stand by filing separate affidavits. 7. In their joint affidavit, the respondent Nos. 1-3 pleaded that, as per his service record, the date of birth of the petitioner was 25.01.1957, (recorded in his Service Book) (Pt-I) under the seal and signature of the then Controlling Officer of the petitioner, at the time of opening the service book. His date of birth was recorded as per the certificate issued by the Head Master of the Pitambar Dev Goswami High School, Nagaon. The petitioner joined in his service on 16.02.1981, when he did not pass the HSLC examination and he passed the HSLC examination in the year 1984. In this circumstance, the date of birth recorded in the HSLC examination pass certificate, issued by the SEBA cannot be accepted, as there can be no two date of birth of the petitioner. However the petitioner was promoted to the higher post as per the HSLC examination pass certificate. The plea of the petitioner that his date of birth was subsequently rectified in his service book as per the HSLC examination pass certificate, issued by the SEBA by the Controlling Officer, was denied by the respondents stating that the rectification of date of birth in the service book was made, without approval of the competent authority and as the matter did not come to the notice of the respondent authorities in time, the petitioner got promoted to a higher post, instead of retirement. 8. It is further stated by the respondent Nos.1-3 that as the petitioner passed the HSLC examination during the course of his service, his newly acquired qualification was considered for promotion. 8. It is further stated by the respondent Nos.1-3 that as the petitioner passed the HSLC examination during the course of his service, his newly acquired qualification was considered for promotion. But his date of birth as per the HSLC examination pass certificate is not acceptable on the following grounds: (1) there can be no two dates of birth of the petitioner, (2) the petitioner passed the HSLC examination in the year 1984 i.e. after his joining in service in the ASEB, as a peon on 16.02.1981 and (3) the date of birth of the petitioner was clearly recorded in the Service Book as 25.01.1957, on the basis of the school certificate. The petitioner himself admitted in paragraph 3 of the writ petition that his date of birth as 25.01.1957 was recorded in his Service Book, on the basis of the certificate issued by the Headmaster of Pitambar Dev Goswami High School. This date of birth was recorded at the time of opening of the Service Book under the seal and signature of the then Controlling Officer of the petitioner. 9. As regards the release of the petitioner from service on 01.02.2017, it is stated by the respondent Nos. 1-3 that the matter did not come to the notice of the respondent authorities in time and when the matter was placed before the appropriate authority i.e. the Chief General Manager (D) of the APDCL (Car), Guwahati on 06.06.2018, by the concerned controlling authority i.e. the Assistant General Manager, Nagaon Electrical Division-II, APDCL (Car), Nagaon, vide Letter No. AGM/NED-II/APDCL/CAR/E-12/2018/563, the petitioner had already overstayed in his service and the Chief General Manager (D) of the APDCL (Car), Guwahati, vide letter dated 29.10.2018, confirmed that the date of retirement of the petitioner was 31.01.2017 and the Assistant General Manager, Nagaon Electrical Division-II, APDCL (Car), Nagaon was directed to release the petitioner from the service immediately, considering his retirement of 60 years on 31.01.2017. 10. The respondent No. 4/the Board of Secondary Education, Assam also filed their affidavit wherein it stated that after proper verification of record, the petitioner appeared in the HSLC Examination, held in 1984 vide Roll R-22, No. 947 and as per the record available with them, his date of birth is 01.08.1959. 11. Heard the submission of learned counsel appearing for the respective parties and perused the record. 12. 11. Heard the submission of learned counsel appearing for the respective parties and perused the record. 12. The small question raised in this petition as to the date of retirement of the petitioner, as to whether same is to be counted from the date of entry into the service book as per the school certificate or as per the HSLC Pass Certificate? To answer the issue, a little bit appreciation of the matter is required as per the pleadings of the parties. According to the petitioner himself, his date of birth is 25.01.1957, as per the school certificate, issued by the Headmaster of the Pitambar Dev Goswami High School, where he pursued his studies and the same entered into the service book, but as per the HSLC certificate, his date of birth is recorded as 01.08.1959. So, he has prayed to count his date of birth as per the HSLC certificate. 13. The respondent authority, although entered his date of birth in the service book as per the initial school certificate, but subsequently, on production of the HSLC Pass Certificate, his date of birth was corrected. The petitioner was also duly promoted to the next promotional post on the basis of his school certificate. But at the time of his retirement, the respondent authority found that the earlier correction of the service book was not made after obtaining due approval from the higher authority, so, it cannot prevail. More particularly, one person cannot have two birth dates and accordingly, the respondent authority has decided to accept the date of birth as given by the initial school certificate and has issued the impugned order to the petitioner, intimating the petitioner all about the matter that, actual date of superannuation of the petitioner would be 31.01.2017, as per the date of birth as on 25.01.1957. 14. The crucial fact to be noted in the present case is that the petitioner nowhere denied the earlier date of birth as recorded in the school certificate, that was furnished to the respondent authority and equally, he has claimed that his date of birth should be recorded as per the HSLC certificate issued by SEBA. Such a contention raised by the petitioner cannot be allowed to prevail simply because, there cannot be two dates of birth of a person. In either case, we can draw inference that one of date is incorrect. Such a contention raised by the petitioner cannot be allowed to prevail simply because, there cannot be two dates of birth of a person. In either case, we can draw inference that one of date is incorrect. It is not difficult to accept that it was the petitioner or his guardian, who has changed the date of birth at the time of submitting particulars before the Board of Secondary Education (SEBA) and the same has been recorded by the SEBA. That being so, act of the petitioner appears to be not bona-fide and a wrong doer cannot claim the privilege of his own wrongful conduct and it will be wholly unjustified one. Only because the respondent authority recorded his date of birth as shown in the HSLC certificate, cannot be a ground to justify the claim of the petitioner. One who seeks equity has to come with clean hands, which is not the case of the petitioner. 15. The impugned order dated 29.10.2018 of the Chief General Manager (D), APDCL, has stated all about the fact that his date of birth was recorded initially as 25.01.1957, as per the school certificate and later on, date of birth was modified as on 01.08.1959, by the Divisional Engineer, on the basis of HSLC certificate, but the Divisional Engineer is not authorized to correct the Service Book and as the same has come into the notice of the authority, with an opportunity given to the petitioner to submit the representation, respondent authority has confirmed the date of birth as 25.01.1957 and date of superannuation on 31.01.2017, at the age of 60 years with further direction that excess amount for the overstayed period w.e.f. 01.02.2017, be recovered from his pensionary benefit. 16. The aforesaid order does not suffer from any sort of irregularity, as regards the date of birth and superannuation, but, however, matter of recovery is to be considered. The learned counsel for the petitioner submits that the petitioner being a Grade-III employee, recovery of excess pay for overstay in service is impermissible, in view of the judgment of the Hon’ble Supreme Court in State of Punjab and Others vs. Rafiq Mashih (White Washer), (2015) 4 SCC 334 . 17. The learned counsel for the petitioner submits that the petitioner being a Grade-III employee, recovery of excess pay for overstay in service is impermissible, in view of the judgment of the Hon’ble Supreme Court in State of Punjab and Others vs. Rafiq Mashih (White Washer), (2015) 4 SCC 334 . 17. In the case of Rafiq Mashih (supra), the Hon’ble Apex Court has summarized few situations, wherein recoveries by the employers would be impermissible in law: (i) Recovery from the employees belonging to Grade-III and Grade-IV Service (or Group-C and Group-D Service). (ii) Recovery from the retired employees or employees who are due to retire within one year of the order of recovery. (iii) Recovery from the employees, where the excess payment has been made for a period in excess of 5 years before the order of recovery is issued. (iv) Recovery in cases, where an employee has wrongfully been required to discharge duties of a higher post and has been paid accordingly, even though he should have rightfully been required to work against an inferior post. (v) In other case, where the Court arrives at a conclusion that the recovery it made from the employee would be iniquitous or harsh or arbitrary to such extent as would far outweigh the equitable balance of the employers’ right to recover. 18. This Court has been informed by the learned Standing Counsel for the APDCL that in the light of the above decisions, the respondent authority (Chief General Manager (HRA), APDCL), has already issued an order dated 25.04.2018 (copy produced before the Court) that the authority has already directed not to recover excess amount due from wrong fixation of pay as per the above guidelines. Accordingly, the authority is not going to recovery any excess amount for the overstayed period by the petitioner. 19. Having regard to all the matters, this Court is not inclined to interfere into the impugned order passed by the respondent authority dated 29.10.2018. The date of superannuation of the petitioner will be 31.01.2017, as per the Service Book, where date of birth was initially recorded as 25.01.1957. 20. As assured by the respondents’ side, there will be no recovery for the overstayed period, it is accordingly directed that the respondents will release the pensionary benefit to the petitioner, as indicated above, within a period of 2 (two) months from the date of order. 21. 20. As assured by the respondents’ side, there will be no recovery for the overstayed period, it is accordingly directed that the respondents will release the pensionary benefit to the petitioner, as indicated above, within a period of 2 (two) months from the date of order. 21. In terms of above, petition stands disposed of.