JUDGMENT : ABASAHEB D. SHINDE, J. 1. Heard. Rule. Rule is made returnable forthwith. With the consent of parties the matter is heard finally at the stage of admission. 2. By this writ petition under Article 226 of the Constitution of India, the petitioner is seeking following reliefs : “A) For a writ of mandamus Order or direction in nature of mandamus directing respondent No. 1 to pay amount of Provident Fund, Earned Leave Encashment, Increments, Difference of Salary and Allowances due to revision of Pay Scales as per recommendations of Seventh Pay Commission by considering date of retirement of petitioner as 31.12.2019 alongwith interest @ 18% p.a. till actual realization. B) For a writ of mandamus Order or direction in nature of mandamus directing respondent No.1 to make payment of outstanding amount as per Order dated 25.06.2021, passed by respondent No.2. C) Pending hearing and the final disposal of the present Writ Petition, respondent No. 1 be directed to deposit amount of Provident Fund, Earned Leave Encashment, Increments, Difference of Salary and Allowances due to revision of Pay Scales as per recommendations of Seventh Pay Commission in this Hon'ble Court. D) Ad interim relief in terms of prayer clause "C".” 3. Factual matrix of the matter are as follows : i. In short, the petitioner’s case is that pursuant to an advertisement issued by respondent No.1-Agriculture Produce Market Committee (hereinafter called as “APMC”), the petitioner applied for the post of Junior Clerk. While making an application, in support of his age proof the petitioner submitted his School Leaving Certificate in which the birth date of the petitioner is shown as 01.01.1960. After finding him eligible, the respondent-APMC appointed the petitioner to the post of Junior Clerk vide appointment order dated 09.09.1985. On 29.10.1986, the petitioner submitted an application to the respondent-APMC stating that inadvertently birth date of the petitioner in School record is shown as 01.01.1960 whereas it should have been 01.01.1962. In support of said application, the petitioner also submitted his affidavit duly verified before the Tahsildar in which the petitioner has stated on oath that the birth date of the petitioner is not 01.01.1960 but it is 01.01.1962. Pursuant to the said application, the respondent-APMC recorded the birth date of the petitioner in his service record as 01.01.1962. ii. In support of said application, the petitioner also submitted his affidavit duly verified before the Tahsildar in which the petitioner has stated on oath that the birth date of the petitioner is not 01.01.1960 but it is 01.01.1962. Pursuant to the said application, the respondent-APMC recorded the birth date of the petitioner in his service record as 01.01.1962. ii. The petitioner initially was promoted to the post of Grader and thereafter as per seniority the petitioner came to be promoted as Supervisor, which post the petitioner held till his date of retirement i.e. 31.12.2019. After petitioner stood retired he requested the respondent-APMC to pay his service benefits such as provident fund, earned leave encashment, difference of salary and allowance due to revision of pay scale. However, the respondent-APMC did not pay the said service benefits to the petitioner. The petitioner accordingly approached Respondent No.3-District Deputy Registrar, Co-operative Society which is a competent authority having supervisory control over the respondent-APMC. The said competent authority after hearing the petitioner as well as the respondent-APMC and after perusal of service record of the petitioner by its order dated 25.06.2021 held that as per birth date recorded in the service book i.e. 01.01.1962, the petitioner rightly retired on 31.12.2019 and therefore the respondent-APMC has been directed to pay the service benefits of the petitioner. It is further case of the petitioner that though the competent authority by its order dated 25.06.2021 directed the respondent-APMC to pay the service benefits of the petitioner, the respondent-APMC failed to pay the same and therefore the petitioner has approached this Court. 4. The learned Counsel for the petitioner submits that though while making an application seeking appointment on the post of Junior Clerk the petitioner has submitted the School Leaving Certificate showing his birth date as 01.01.1960, however, the petitioner on 29.10.1986 by making an application to the respondent-APMC pointed out that birth date of the petitioner is not 01.01.1960 but it is 01.01.1962 and in support of his case the petitioner also filed an affidavit duly verified before the Tahsildar. The learned Counsel for the petitioner therefore urged that the petitioner completed age of 58 years on 31.12.2019 as per his birth date of 01.01.1962 and after having attained the age of superannuation, the petitioner is entitled for the service benefits. 5. The learned Counsel for the petitioner therefore urged that the petitioner completed age of 58 years on 31.12.2019 as per his birth date of 01.01.1962 and after having attained the age of superannuation, the petitioner is entitled for the service benefits. 5. The learned Counsel for the petitioner would further urge that when the petitioner approached the competent authority i.e. District Deputy Registrar, Co-operative Society to ventilate his grievance of non payment of service benefits, the said competent authority by its order dated 25.06.2021 directed respondent-APMC to pay the service benefits of the petitioner, by further holding that as per service record the birth date of the petitioner is 01.01.1962 and after attaining the age of superannuation on 31.12.2019, the petitioner is entitled for all the service benefits. The learned Counsel for the petitioner therefore urged that though the competent authority directed the respondent-APMC to pay the service benefits, the Respondent-APMC failed to do so. The learned Counsel for the petitioner further submits that even the public documents such as Aadhar Card, Passport and Pan Card shows the birth date of the petitioner as 01.01.1962 and thus the petitioner has rightly completed the age of superannuation on 31.12.2019. It is thus contended by the learned Counsel for the petitioner that by allowing the Writ Petition the respondent-APMC be directed to pay his service benefits, considering the date of retirement of the petitioner as 31.12.2019. 6. Per contra, the learned Counsel for respondent-APMC would submit that admittedly, when the petitioner applied for the post of Junior Clerk he had submitted the School Leaving Certificate along with the said application showing his birth date as 01.01.1960. It is further contended by the learned Counsel for the respondent-APMC that the petitioner, however, by subsequent application that too on the basis of an affidavit got the birth date changed from 01.01.1960 to 01.01.1962 in the service book which is impermissible and therefore the respondent-APMC by passing a resolution in meeting of its Board of Director held on 26.07.2021 decided not to pay any service benefits to the petitioner for those two extra years for which the petitioner worked. It is further contented that in fact considering the earlier birth date of the petitioner as 01.01.1960 the petitioner ought to have retired on 31.12.2017 and thus by continuing for extra two years the petitioner has deprived other candidates from the promotional avenues. It is further contented that in fact considering the earlier birth date of the petitioner as 01.01.1960 the petitioner ought to have retired on 31.12.2017 and thus by continuing for extra two years the petitioner has deprived other candidates from the promotional avenues. It is also contended by the learned Counsel for the respondent-APMC that as far as the order dated 25.06.2021 passed by the Competent Authority i.e. the District Deputy Registrar, Co-operative Society is concerned, the said order is without jurisdiction and therefore the same has been assailed before the appellate authority under Section 52(b) of the Maharashtra Agricultural Produce Marketing (Development and Resolution) Act, 1963 and the said appeal is sub judice. The learned Counsel for the respondent-APMC therefore urged that as the petitioner has got the birth date changed from 01.01.1960 to 01.01.1962 by misleading the respondent-APMC therefore the petitioner is not entitled for the service benefits for those two extra years and therefore urged that the Writ Petition deserves to be dismissed. 7. The learned Counsel for the respondent-APMC also invited our attention to the Resolution dated 26.07.2021 passed by the Board of Directors and more particularly the table giving the details of deductions made from the service benefits of the petitioner, which is reproduced as it is :- 8. After having considered the submissions advanced by learned Counsel for the petitioner as well as learned Counsel for the respondent- APMC and the learned AGP appearing for the state authorities and after going through the entire documents annexed with the Writ Petition and the Affidavit in Reply filed by the respondent-APMC, we are of the considered view that admittedly along with the application pursuant to which the petitioner came to be appointed as Junior Clerk on 09.09.1985, the petitioner in support of his birth date had submitted School Leaving Certificate showing his birth date as 01.01.1960. The record also reveals that on 29.10.1986 the petitioner submitted an application to the respondent-APMC seeking change of his birth date in the service record from 01.01.1960 to 01.01.1962 along with a supporting affidavit in that regard. It is also an admitted fact that the petitioner has worked for almost 33 years with the respondent-APMC. The record also reveals that on 29.10.1986 the petitioner submitted an application to the respondent-APMC seeking change of his birth date in the service record from 01.01.1960 to 01.01.1962 along with a supporting affidavit in that regard. It is also an admitted fact that the petitioner has worked for almost 33 years with the respondent-APMC. During the course of his service, initially the petitioner was promoted to the post of Grader as per seniority and thereafter the petitioner came to be promoted to the post of Supervisor which post the petitioner continued to hold till his retirement i.e. 31.12.2019. 9. In our considered view the respondent-APMC allowed the petitioner to complete his tenure on the basis of his birth date as 01.01.1962 till 31.12.2019 and even when the petitioner was promoted initially to the post of Grader and thereafter on the post of Supervisor, which post he held till his retirement, it has never disputed the birth date of the petitioner which is recorded in the service book. We also find that the respondent-APMC also did not put the petitioner to the notice that, the petitioner has changed his birth date from 01.01.1960 to 01.01.1962 and that the petitioner should retire on 31.12.2017 considering the earlier birth date to be correct. It also reveals from the record that even when the seniority list was prepared on 30.09.2005 pursuant to which the petitioner came to be promoted, the respondent-APMC did not raise any dispute about the birth date of the petitioner, on the contrary promoted him not once but twice. It is also equally surprising that atleast from 29.10.1986 till 31.12.2019, the respondent-APMC did not detect the changed birth date of the petitioner from 01.01.1960 to 01.01.1962 when the service record was in the custody of the respondent-APMC. We are therefore of the considered view that the respondent-APMC so as to deprive the petitioner from the service benefits is now trying to raise dispute about the birth date of the petitioner that too after his retirement on 31.12.2019. 10. We are therefore of the considered view that the respondent-APMC so as to deprive the petitioner from the service benefits is now trying to raise dispute about the birth date of the petitioner that too after his retirement on 31.12.2019. 10. Though the learned Counsel for the respondent-APMC contends that the order dated 25.06.2021 passed by the District Deputy Registrar, Co-operative Society has been challenged before the appellate authority, however, we find that the said appeal has been preferred by the respondent-APMC in the year 2022 however neither any stay is operating in favour of the respondent-APMC nor the respondent-APMC has persued the said appeal till today. We find that filing of such an appeal is nothing short of an eyewash. 11. The Hon’ble Apex Court in the case of State of Bihar and Ors. Vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 , held that the employer cannot be allowed to raise an objection in respect of birth date of the employee after his retirement by depriving him from receiving the service benefits nor the same could be allowed to be deducted once paid. It would be profitable to rely on the observations of the Hon’ble Apex Court in that regard and more particularly paragraph Nos.16 to 19 which reads as under :- “16. Moreover, for the sake of argument, even if we consider that the respondent had fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after affidavit, some other date of birth was also evident. 17. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after affidavit, some other date of birth was also evident. 17. In view of the aforesaid circumstances, the appellant ought to have deleted the date of birth entered in the service book of the respondent on the basis of his affidavit as the appellant had already accepted the date of birth of the respondent on the basis of his matriculation certificate which was also produced by the respondent. 18. The appellant alleged that the respondent had entered a second date of birth in his service book at a later period of time. The respondent vehemently negated this contention stating that two dates of birth were entered simultaneously in his service book by the department officials. 19. It is not needed for this Court to verify the veracity of the statements made by the parties. If at all the respondent entered the second date of birth at a subsequent period of time, the authorities concerned should have detected it and there should have been a detailed enquiry to determine whether the respondent was responsible for the same. It has been held in a catena of judicial pronouncements 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 retiral dues in the monetary benefit available to the employee.” 12. The Hon’ble Apex Court has also further observed in paragraph No.22 as under : “22. As noted hereine-arlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the service book of the respondent. As noted hereine-arlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the service book of the respondent. They ought to have deleted the initial date of birth based on the matriculation certificate if the appellants were of the view that the affidavit sworn by the respondent was correct and the date of birth appearing in the matriculation certificate must be found to be incorrect, it is needless to say that the affidavit sworn by the respondent must be on the basis of documents produced by the respondent to show that the date of birth entered in the service book initially was incorrect. Instead, the appellant had not issued any notice of retirement of the respondent on 28-02-2002, which was the date for retirement of the respondent on his attaining superannuation, i.e. on the basis of the date of birth shown in the matriculation certificate. On the other hand, the appellant allowed the respondent to work and got works from him and paid salary. Only for the first time, the appellant took note of two dates of birth after he had completed two years from the date of his actual date of retirement.” 13. It would also be apt to rely on the observations of the Hon’ble Apex Court in paragraphs No.23 and 24 of the said judgment which read as under: “23. Without going into the question whether the appellant was justified after completion of two years from the actual date of retirement to deduct two years salary and other emoluments paid to the respondent, we may say that since the respondent had worked during that period without raising any objection from the side of the appellant and the appellant had got works done by the respondent, we do not think that it was proper at this stage to allow deduction from his retiral benefits, the amount received by him as salary, after his actual date of retirement. 24. 24. 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.” 14. In the light of observations of the Hon’ble Apex Court in the case of State of Bihar and Ors. Vs. Pandey Jagdishwar Prasad (supra) we are of the considered view that once the respondent-APMC failed in detecting the change in birth date of the petitioner early in point of time and allowed the petitioner to work till 31.12.2019 on the basis of his birth date as 01.01.1962 and got the work done by him as well as for about 33 years did not bother to delete the said birth date nor at any point of time put the petitioner to the notice regarding change in birth date and asking him to retire on 31.12.2017 precludes the respondent- APMC from now raising the dispute about petitioner’s birth date after his retirement and the said attempt appears to be to deprive the petitioner from receiving his service benefits. 15. In that view of the matter, Writ Petition deserves to be allowed. Hence the following order:- ORDER : i. Writ Petition is allowed. ii. The Respondent-APMC is directed to pay the service benefits to the petitioner such as provident fund, earned leave encashment, difference of salary and allowance due to revision of pay scale as per rules. iii. The Respondent-APMC is directed to pay the service benefits to the petitioner within a period of six (6) weeks from today, failing which the Respondent-APMC shall pay interest at the rate of 6% p.a. on delayed payment. iv. Rule is thus made absolute in above terms.