JUDGMENT : ROBIN PHUKAN, J. Heard Mr. R. Phukan, learned counsel for the petitioner and Mr. S. Das, learned Standing Counsel for the respondent Nos. 1 & 2. Also heard Mr. N. N. Upadhyay, learned Counsel for the respondent Nos. 3 & 4. 2. In this petition, under Article 226 of the Constitution of India, the petitioner has challenged the communication, bearing No. LOKDC/Personal- 12A/2021-22/139, dated 30.12.2021, issued by the respondent No. 3, asking the petitioner to refund an amount of Rs. 21,94,630/- (Rupees Twenty One Lakhs Ninety Four Thousand Six Hundred and Thirty) only, and any consequent action thereto and also prayed for issuing direction to the respondent authorities to recall/rescind/cancel or otherwise, forbear from giving effect to the said impugned communication, dated 30.12.2021. Background Facts:- 3. The background facts, leading to filing of the present petition, is briefly stated as under- “The petitioner was working as an Associate Professor, in the Loknayak Omeo Kumar Das College, Dhekiajuli. While he was working in the said college, the Principal of the college, vide his letter, dated 13.12.2021, had informed the petitioner that his superannuation date was 30th April, 2022. Thereafter, as requested by the college authority, the petitioner has completed all the necessary formalities in respect of his pension. While, the petitioner was expecting that he is all set to retire from service on 30.04.2022, then he was served with the impugned communication, informing him that he was released from service, w.e.f. 31.01.2021, on attaining superannuation and vide said communication, he was further directed to refund the amount for his salary drawn during his overstay period. Thereafter, the petitioner had submitted a representation before the authority concerned, but the same failed to evoke any response of the respondent authorities. Being aggrieved, the petitioner approached this Court, by filing the present petition, seeking the relief as aforesaid.” 4. The respondent Nos. 3 & 4, the College authorities, being the Principal and the Governing Body of the College, have filed their affidavit-in-opposition; wherein, it is stated that the petitioner joined as a Lecturer in Education against a lien vacancy on 21.03.1991 and he worked in the said post till 31.08.1991. The respondent Nos. 3 & 4, the College authorities, being the Principal and the Governing Body of the College, have filed their affidavit-in-opposition; wherein, it is stated that the petitioner joined as a Lecturer in Education against a lien vacancy on 21.03.1991 and he worked in the said post till 31.08.1991. Thereafter, the petitioner was appointed as Lecturer (temporary) in a non-sanctioned post, by the Governing Body of the College, on 01.09.1991, and he worked in there till 20.11.1994 and thereafter, the petitioner was appointed as Lecturer in Education, against a sanctioned post, on 21.11.1994 and he was promoted to selection grade scale, w.e.f. 28.06.2006 and subsequently, he was designated as Associate Professor. 4.1 It is also stated that the petitioner’s date of birth was written in his Service Book as 01.04.1962 and on the basis of the recorded date of birth in the service book, i.e., 01.04.1962, the petitioner was informed regarding his date of superannuation and the College Office started to verify the relevant documents and on scrutiny, it was found that as per the HSLC Examination Certificate, the petitioner’s age, as on 01.03.1977, was 16 years 01 month 16 days and as such, his date of birth should have been 15.01.1961, as per said HSLC Examination Certificate; and the petitioner had applied for the post of Lecturer in Education to the Principal of the College in the Standard Form of Application, where he wrote his age as 26 years 8 months, as on 01.01.1989 and as such, his date of birth should have been 01.05.1962. 4.2 It is further stated that another application was filed by the petitioner to the Principal of the College, dated 05.03.1991, where he had written his date of birth as 01.02.1962. Again, in another Standard Form of Application, the petitioner had written his age as 27 years, as on 01.01.1990 and as such, his date of birth should have been 01.01.1963. 4.3 Thereafter, the petitioner was asked to furnish valid documents, which can substantiate his date of birth in the Service Book as 01.04.1962, so as to process the pension papers for onward submission to the concerned authorities. 4.3 Thereafter, the petitioner was asked to furnish valid documents, which can substantiate his date of birth in the Service Book as 01.04.1962, so as to process the pension papers for onward submission to the concerned authorities. But, the petitioner could not furnish any document as proof of his date of birth, i.e., 01.04.1962, being recorded in his Service Book; and then, the respondent No. 3, having no option, had to take the date of birth of the petitioner as per his HSLC Examination Certificate, i.e., 15.01.1961, and thereafter, he was informed to refund an amount of Rs. 21,94,630/- (Rupees Twenty One Lakhs Ninety Four Thousand Six Hundred and Thirty) only, being the salary for the overstay period from 01.02.2021 to 30.11.2021, in the Treasury. However, the petitioner, despite several requests, did not respond and then, the matter was placed before the Governing Body of the College on 01.02.2022 and then, the Governing Body of the College prepared the pension proposal, leave enhancement benefit and proposal for release of GPF amount of the petitioner, vide letters, dated 20.01.2022 and 24.03.2022, respectively; for releasing the GPF amount, as the petitioner could not furnish any document to substantiate his date of birth as 01.04.1962, which was entered in his Service Book. 5. The Department of Higher Education, being respondent No. 2, has also filed one affidavit-in-opposition; wherein, it is stated that as per HSLC Examination Certificate, the age of the petitioner as on 01.03.1977, was recorded as 16 years 1 month 16 days and as such, as per the said HSLC Examination Certificate, the date of birth of the petitioner should have been 15.01.1961, and that, while applying for the post of Lecturer in Education in the said College, the petitioner, through a Standard Form of Application, made a self declaration, that his age was 26 years 8 months, as on 01.01.1989 and as such, as per the said document, the date of birth of the petitioner should have been 01.05.1962. Again, in another application submitted to the Principal of the College, dated 05.03.1991, the petitioner had made a self declaration that his age was 27 years, as on 01.01.1990 and as per the said document, the date of birth of the petitioner should have been 01.01.1963. Again, in another application submitted to the Principal of the College, dated 05.03.1991, the petitioner had made a self declaration that his age was 27 years, as on 01.01.1990 and as per the said document, the date of birth of the petitioner should have been 01.01.1963. 5.1 Thereafter, the anomalies found in respect to the date of birth of the petitioner was informed to him and he was also directed to furnish valid documents to substantiate his date of birth as 01.04.1962, which was recorded as his ‘date of birth’ in his Service Book. But, the petitioner had failed to furnish any such valid documents as regard to his date of birth recorded in his Service Book and thereafter, the College authority, taking the date of birth of the petitioner as per his HSLC Examination Certificate, i.e., 15.01.1961; informed the petitioner to refund an amount of Rs. 21,94,630/-, being the salary drawn during the overstay period, w.e.f. 01.02.2021 till 30.11.2021. 5.2. It is also stated by respondent No. 2 in his affidavit-in-opposition that the petitioner had never denied that the date of birth, recorded in his HSLC Examination Certificate is his correct date of birth, from where, the College authority had taken the date of birth, on account of failure on the part of the petitioner to prove his date of birth as 01.04.1962, as recorded in his service book. 5.3. It is also stated that the petitioner had full knowledge about his original date of birth, but, by way of furnishing incorrect date of birth in different applications/Standard Forms, the petitioner, with mala-fide intention, tried to mislead the College authority regarding his actual date of birth and as such, the petitioner is guilty of furnishing incorrect information, which had led the College authority to commit the mistake of making wrong entry in his Service Book, regarding his date of birth and hence, the law laid down by the Hon’ble Supreme Court in the case of State of Punjab and Ors. Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 will not be applicable herein this case and the petitioner herein is liable to refund the excess amount received by him, due to overstay. 6. Vs. Rafiq Masih (White Washer) and Ors., reported in (2015) 4 SCC 334 will not be applicable herein this case and the petitioner herein is liable to refund the excess amount received by him, due to overstay. 6. The petitioner has filed his affidavit-in-reply to the affidavit-in- opposition, filed by the respondent No. 2, denying the statements and averments made in the said affidavit-in-opposition and it is stated that he had only signed the application as all his documents were already with the respondent College and he had applied all the documents as per the HSLC Examination Certificate, and the Service Book was prepared by the College authority, and he had no knowledge about any such application and that, being a Teacher, he was concerned about taking classes and always looked for the benefits of the students, and he had no knowledge about the retirement and he continued teaching his students. Submissions :- 7. Mr. Phukan, learned counsel for the petitioner, submits that the petitioner had overstayed in service for 11 months and he had no knowledge about the overstay period, as, being a teacher, he was only busy in teaching his students and that, the Principal of the College informed him vide letter, dated 13.12.2021, that he will be retiring on 30.04.2022 and thereafter, vide impugned communication, dated 30.12.2021, the Principal informed him that he had overstayed for a period of 11 months and asked him to refund the salary drawn by him for the abovementioned period, for no fault of him. 7.1. Mr. Phukan further submits that while filing the application for the post of Lecturer in the respondent No. 3 College, the petitioner had enclosed his HSLC Examination Certificate, but, he committed mistake in calculating his date of birth, as his date of birth has neither been mentioned in his HSLC Admit Card and nor in his HSLC Examination Certificate. He also submits that the Service Book was maintained by the respondent No. 3 College and that as per Annexure-2, HSLC Examination Certificate, his date of birth is 15.01.1961, and that the petitioner might have committed mistake in calculating his date of birth. 7.2. Mr. Phukan also submits that in the meantime, the respondent authorities have already recovered the overdrawn amount from him. But, referring to a decision of the Hon’ble Supreme Court in the case of State of Bihar and Others Vs. 7.2. Mr. Phukan also submits that in the meantime, the respondent authorities have already recovered the overdrawn amount from him. But, referring to a decision of the Hon’ble Supreme Court in the case of State of Bihar and Others Vs. Pandey Jagdishwar Prasad , reported in (2009) 3 SCC 117, especially to the observations made in paragraph Nos. 24 & 26; Mr. Phukan submits that as there is no misrepresentation or fraud on the part of the petitioner, the respondent authorities are not entitled to recover the same and since, recovery has already been made, the respondent authorities may be directed to refund the same to the petitioner. 8. Per contra, Mr. Das, learned Standing Counsel for the respondent Nos. 1 & 2 has vehemently opposed the petition. Mr. Das justifies the action taken by the respondent No. 3 and he also submits that on different occasions, the petitioner, being the Lecturer of the College, had given his age in three different applications differently. But, he had never given the actual date, as per his HSLC Certificate and as such, the petitioner had full knowledge about the date of his retirement and also, about his date of birth, as per his HSLC Examination Certificate and that he had misrepresented himself and as such, the recovery, that has already been made, by the respondent authorities, is justified. Under such circumstances, Mr. Das has contended to dismiss this petition. 9. On the other hand, Mr. Upadhyay, learned counsel appearing for the respondent Nos. 3 & 4 has also adopted the submission of Mr. S. Das, learned Standing Counsel for the respondent Nos. 1 & 2, and submits that the amount has already been recovered and that, the petitioner has misrepresented his date of birth, while giving different ages in his Application Forms for the post of Lecturer in the respondent No. 3 College and that, the decision of Rafiq Masih (Supra), is also not applicable; since, he has full knowledge about the date of his retirement and that, the argument advanced by the learned counsel for the petitioner, that the petitioner was busy with teaching his students and that he is not aware of his date of birth is not at all acceptable and under such circumstances, he has contended to dismiss this petition. Discussion and Analysis:- 10. Discussion and Analysis:- 10. Having heard the submissions advanced by the learned counsel for both the parties, I have carefully gone through the documents placed on record and also perused the impugned communication, dated 30.12.2021; the letter, dated 13.12.2021 and also perused the HSLC Examination Certificate of the petitioner, which is annexed as Annexure-2 in the affidavit-in-opposition filed by the respondent Nos. 3 & 4. 11. It is well settled in a catena of decisions that in absence of any Birth Certificate or similar documents, the date of birth of a person, as mentioned in the HSLC/Matriculation Certificate, has to be accepted as correct. Reference in this context can be made to a decision of the Hon’ble Supreme Court in the case of Parg Bhati Vs. State of U.P , reported in (2016) 12 SCC 744 , where it has been held by the Hon’ble Supreme Court that if the matriculation certificate is available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as conclusive proof of date of birth. It has been held in para 36 as under:- "36. It is settled position of law that if the matriculation or equivalent certificates are available and there is no other material to prove the correctness of date of birth, the date of birth mentioned in the matriculation certificate has to be treated as a conclusive proof of the date of birth of the accused. However, if there is any doubt or a contradictory stand is being taken by the accused which raises a doubt on the correctness of the date of birth then as laid down by this Court in Abuzar Hossain, an enquiry for determination of the age of the accused is permissible which has been done in the present case." 12. In the case of the petitioner, the date of birth has not been mentioned in his HSLC/Matriculation Certificate, but what has been mentioned is his age and the same, as on 01.03.1977, was 16 years 1 month 16 days and if the said date of birth is accepted as correct, then the date of birth of the petitioner, as per the said certificate, would have been 15.01.1961. But, it appears from the Service Book of the petitioner, which is enclosed as Annexure-6 of the affidavit-in-opposition, filed by the respondent Nos. 3 & 4; that his date of birth was entered as 01.04.1962 and the same was done on the basis of the Application Form that was filled up by the petitioner for the post of Lecturer in the respondent No. 3 College, where, the age of the petitioner was reflected as 26 years 8 months, as on 01.01.1989. 13. It also appears from the Annexure Nos. 4 & 5 that the petitioner had given a different age in the said Application Forms, for the post of Lecturer. 14. Though, the petitioner has taken a stand that he has committed mistake in calculating his date of birth, in his Application Form and that, he has enclosed his HSLC Examination Certificate along with the Application Form, yet, the said contention left his Court unimpressed, as nothing has been placed on record to show that he has enclosed the HSLC Examination Certificate, i.e., Annexure No. 2, with the said Application Form. 15. Further, from the affidavit-in-opposition filed by the respondent Nos. 3 & 4 and also the affidavit-in-opposition filed by the respondent No. 2, it appears that he has failed to produce any document to substantiate his claim that 01.04.1962, which has been mentioned in his Service Book, as his date of birth, is correct. 16. Also, when the age of the petitioner is taken note of, as per the Matriculation Certificate, i.e., Annexure No. 2 of the affidavit-in-opposition filed by the respondent Nos. 3 & 4, his date of birth appears to be 15.01.1961; and in view of the decision of the Hon’ble Supreme Court in the case of Parg Bhati (Supra), the same has to be accepted as conclusive proof, and that being so, he overstayed in his service for a period of 11 months, w.e.f. 01.02.2021 till 30.11.2021, and he had drawn salary for the abovementioned period, amounting to Rs. 21,94,630/- (Rupees Twenty One Lakhs Ninety Four Thousand Six Hundred and Thirty) only. 17. Indisputedly, the aforementioned amount has already been recovered from the petitioner. Though, Mr. 21,94,630/- (Rupees Twenty One Lakhs Ninety Four Thousand Six Hundred and Thirty) only. 17. Indisputedly, the aforementioned amount has already been recovered from the petitioner. Though, Mr. Phukan submits that this petition may be allowed by directing the respondent authorities to refund the aforementioned amount to the petitioner, in view of the decision of the Hon’ble Supreme Court in the case of Pandey Jagdishwar Prasad (Supra); yet, this Court is of the considered opinion that the decision in the aforementioned case would not come into assistance of the petitioner in the present case, as there is specific allegation of misrepresentation of his date of birth by the petitioner. Though, he has contended that he has enclosed his HSLC Examination Certificate with his Application Form, for being appointed for the post of Lecturer in the respondent No. 3 College, yet, he had not enclosed the HSLC Examination Certificate with his Application Form. He had given his age differently in three different Application Forms; which goes a long way to show that some sort of misrepresentations are there; and it is unbelievable that being a Lecturer of the College, he is not aware of his date of birth and he was only busy in teaching the students. 18. Moreover, as contended by Mr. Das, learned Standing Counsel for the respondent Nos. 1 & 2, the decision of the Hon’ble Supreme Court in the case of Rafiq Masih (Supra), will also not be applicable in the case of the petitioner, as he had full knowledge about his date of birth and he has misrepresented about the same, before the respondent authorities. 19. It is to be noted here that in the case of Rafiq Masih (Supra), the Hon’ble Supreme Court has held that in the following situations, recovery from the employees would be impermissible in law :- “ (i) Recovery from employees belonging to Class III and Class IV service (or Group C and Group D service). (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued. (ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery. (iii) Recovery from employees, when the excess payment has been made for a period in excess of five 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 any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover. (emphasis supplied)” 20. There is substance in the submission of Mr. Das, learned Standing Counsel for the respondent Nos. 1 & 2. Further, it appears from the Application Form, Annexure No. 3 of the affidavit-in-opposition filed by the respondent Nos. 3 & 4, that at the end of the Application Form, he had made a declaration, as under – “ I am a candidate for the post of Lecturer in Education and the facts stated above are true to the best of my knowledge and belief. In case of any false statement, I am liable to any action Government may deem fit and proper.” Conclusion:- 21. In view of the aforementioned declaration and also, in view of the fact that he has given his age incorrectly in the aforementioned Application Form, which is contrary to the age, so mentioned in his HSLC Examination Certificate, Annexure-2, of the affidavit-in-opposition filed by the respondent Nos. 3 & 4; this Court is of the considered view that the petitioner will not be entitled to the ‘Proposition No.2’, mentioned in Paragraph 10, of the decision of Rafiq Masih (Supra). 22. In holding so, this Court derives authority from a decision of the Hon’ble Supreme Court, in the case of High Court of Punjab and Haryana & Others Vs. Jagdev Singh , reported in (2016) 14 SCC 267 , wherein, the Hon’ble Supreme Court, in paragraph No. 11, as held as under – “ The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. Jagdev Singh , reported in (2016) 14 SCC 267 , wherein, the Hon’ble Supreme Court, in paragraph No. 11, as held as under – “ The principle enunciated in Proposition (ii) above cannot apply to a situation such as in the present case. In the present case, the officer to whom the payment was made in the first instance was clearly placed on notice that any payment found to have been made in excess would be required to be refunded. The officer furnished an undertaking while opting for the revised pay scale. He is bound by the undertaking.” 23. In the instant case, since the petitioner has given an undertaking, to the effect that the facts stated by him in the Application Form, Annexure No. 3, are true to his best of knowledge and belief; and in case of false statement, he is liable to any action, the Government may deem fit and proper. 24. In view of the aforementioned undertaking, the petitioner, to the considered opinion of this Court, is not entitled to the benefit of the ratio, laid down by the Hon’ble Supreme Court in the case of Rafiq Masih (Supra). 25. Thus, on the following count, the petitioner is not entitled to the benefit, as prayed for – (i) He had misrepresented himself by giving his age differently in three different Application Forms, and also by not enclosing his HSLC Examination Certificate in those Application Forms to substantiate the same, and on such misrepresentation, his date of birth has been entered wrongly in the Service Book, prepared by the respondent No. 3. (ii) In the Application Form, he had given an undertaking, to the effect that in case of any false statement, he will be liable to any action, the Government may deem fit and proper. As he has incorrectly mentioned his age in the aforementioned Application Form, he is liable to face the consequences for the same in view of the undertaking so given by him. On such count, the recovery of the amount from the petitioner by the respondent Nos. 3 & 4 seems to be justified, which warrants no interference of this Court. 26. In the result, I find this petition devoid of merit and accordingly, this same stands disposed of, leaving the parties to bear their own costs.