ORDER : (MICHAEL ZOTHANKHUMA, J.) 1. Heard Mr. M. Khan, learned counsel for the petitioner. Also heard Mr. P. Bora, learned Standing Counsel, Elementary Education Department and Mr. B. Gogoi, learned Standing counsel, Finance Department. 2. The petitioner has challenged the impugned letter dated 08.08.2024 issued by the Deputy Inspector of Schools, Sadiya Chapakhua, by which the petitioner had been directed to retire from service on 30.09.2020 in terms of his date of birth recorded in his High School Leaving Examination Certificate and Admit Card. By the said letter, the petitioner was also requested to return the monthly salary received from 01.10.2020 to 30.06.2024 or else, his pension documents were not going to be processed. 3. The petitioner’s case is that the petitioner passed the H.S.L.C. examination in the year 1980 under the Board of Secondary Education, Assam. However in the H.S.L.C.E. Certificate and Admit Card, his birth was wrongly recorded as nineteen years six months and 0 days as on 01.03.1980. The same therefore meant that the petitioner’s date of birth, in terms of his H.S.L.C.E. Certificate and Admit Card was 01.09.1960. The petitioner’s further case is that his correct date of birth was 13.01.1965. 4. The petitioner was initially appointed as Assistant teacher of Nabajyoti L.P. School on temporary basis for three months under the Sadiya Education Block on 06.05.1994, which was a provincialised school. He joined the service on 06.05.1994 till regularisation of his service, vide order dated 08.06.1995. 5. In the petitioner’s Service Book (PART-II), the date of birth of the petitioner was recorded as 31.01.1965. Thereafter an affidavit dated 15.03.1999 was executed by the petitioner’s father before the Executive Magistrate, Sadiaya, declaring the petitioner’s date of birth as “13.01.1965”. 6. While the petitioner was serving in the said school, the respondent no.7 issued a letter dated 06.08.2024, informing the petitioner that as per the Admit Card and his school leaving certificate, his date of retirement was 30.09.2020, as his date of birth was 01.09.1960. 7. The impugned order dated 08.08.2024 was then issued, informing the petitioner that he was to retire from service on 30.09.2020 and he was requested to return the monthly salary received from 01.10.2020 to 30.06.2024, due to overstay in service. There is a mistake in the contents of the letter dated 06.08.2024 and 08.08.2024, inasmuch as, the date of retirement should be 31.08.2020, if the petitioner’s date of birth was 01.09.1960. There is a mistake in the contents of the letter dated 06.08.2024 and 08.08.2024, inasmuch as, the date of retirement should be 31.08.2020, if the petitioner’s date of birth was 01.09.1960. However, the said anomaly is not being gone into further by this Court and the date of retirement of the petitioner, as recorded in the above 2 letters is being considered as it is. 8. The petitioner’s counsel submits that the petitioner’s actual date of birth being 13.01.1965, as recorded in the Service Book of the petitioner, the petitioner’s date of birth could not be taken to be 01.09.1960 by the State respondents, on the basis of his H.S.L.C.E. certificate and the Admit Card. Accordingly, the impugned letter dated 08.08.2024 should be set aside. 9. Mr. P.K. Bora, learned Standing Counsel Elementary Education Department, on the other hand submits that the date of birth of the petitioner was not recorded in the petitioner’s Service Book (PART-I). However, in the petitioner’s service book (PART-II), the petitioner’s date of birth is recorded as 13.01.1965, on the basis of the petitioner’s father’s affidavit sworn before the Executive Magistrate in the year 1999. He submits that after issuing a notice to the petitioner, a hearing was held in the office of the Director of the Elementary Education in relation to the petitioner’s overstay in service. The counsel submits that as there has been a misrepresentation by the petitioner with regard to his date of birth, which resulted in the petitioner’s overstay in service, the petitioner cannot claim any benefit and the writ petition should be dismissed. 10. Mr. B. Gogoi, learned Standing Counsel, Finance Department submits that the affidavit made by the petitioner’s father on 15.03.1999 appears to be manipulated, inasmuch as, there is overwriting of the date in paragraph-2 of the affidavit. He accordingly submits that the writ petition should be dismissed. 11. I have heard the learned counsels for the parties. 12. The petitioner’s date of birth has been recorded as 13.01.1965 in the petitioner’s Service Book (PART-II) that had been probably opened sometime in the year 2016, inasmuch as, the first entries therein pertain to 01.07.2018. The same had been made on the basis of an affidavit dated 16.03.1991 executed by the petitioner’s father, which stated that the petitioner’s date of birth was 13.01.1965. The same had been made on the basis of an affidavit dated 16.03.1991 executed by the petitioner’s father, which stated that the petitioner’s date of birth was 13.01.1965. However the H.S.L.C.E. certificate and the admit card issued to the petitioner shows that the petitioner’s date of birth is 01.09.1960. This Court is to decide as to which of the dates is the correct date of birth of the petitioner. Keeping the above in view, this Court has gone into the affidavit made by the petitioner at page No.10 of this writ petition. 13. The petitioner has declared himself to be 61 years of age on the day the affidavit was executed, i.e. on 06.09.2024. By considering the contents of the affidavit made on oath by the petitioner himself, which is a part of the writ petition, this Court finds that the petitioner would have been born in the year 1963. The discrepancy in the birth of birth of the petitioner clearly goes to show that the date of birth declared by the petitioner’s father in his affidavit dated 15.03.1999 cannot be accepted as the correct death of birth of the petitioner, as the same is not in consonance with the declaration made by the petitioner in his affidavit, which is at Page No. 10 of the writ petition. It is also not understood as to why the petitioner’s date of birth has been recorded in the petitioner’s Service Book (PART-II) on the basis of his father’s affidavit, when the petitioner could have executed an affidavit himself, as he would have been 34 years of age on 15.03.1999, even if the petitioner’s date of birth is assumed to be 13.01.1965. 14. 14. In order to decide as to the age of a person under the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 2015 Act”), Section 94 of the 2015 Act states as follows: “ Section 94 Presumption and determination of age .-(1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining -(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; (iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.” 15. As can be seen from the above Section 94(2) the process for age determination is to be made by obtaining the date of birth certificate from the school or the matriculate or equivalent certificate from the concerned examination board if available. In the absence of the above, the birth certificate given by a corporation or a municipal authority or a private school is to be seen. In the absence of the above, the birth certificate given by a corporation or a municipal authority or a private school is to be seen. If that is also not available, the age of a person is to be determined by an ossification test. 16. In the present case, it appears that the petitioner has accepted his date of birth, as recorded in the H.S.L.C.E certificate. Further, there is nothing to show that the petitioner had made any application to the Board of Secondary Education, for correction of his date of birth in H.S.L.C.E. examination certificate. The petitioner has also not made any prayer for setting aside the petitioner’s date of birth, as recorded in the H.S.L.C.E. Certificate in the present case, thereby implying that the petitioner has accepted his date of birth, as recorded in the said certificate. In view of the above reasons, this Court is of the view that that the date of birth of the petitioner would have to be considered to be 01.09.1965. 17. The above being said the petitioner had been made to retire w.e.f 30.09.2020, vide the impugned order dated 08.08.2024 and also as per the impugned letter dated 06.08.2024 issued by the Deputy Inspector of Schools Sadiya which has not been put to challenge. The letter dated 06.08.2024 and the impugned letter dated 08.08.2024, both issued by the Deputy Inspector Schools is reproduced herein-below, as follows : Letter dated 06.08.2024 “Memo no: D.S.S.16/2024-25/478                                            Dated: 06-08-2024 From: Sri Debajyoti Gogoi Deputy Inspector of Schools Sodiya, Chapakhowa To, Sri Phulatan Gogoi Head Teacher, Nabajyoti L .P.School. Sub: Retirement Notice. Sir, With reference to the above, you are hereby informed that as per admit card and examination passed certificate your date of birth is 01- 09-1960. As per your date of birth your date of retirement is 30-09-2020. Therefore, you are hereby requested to take retirement w. e.f. 30-09-2020. You are also requested to handover the charges and Government documents to the senior most teacher of the school. Letter dated 08.08.2024 Memo No.16/2024-25/439                                                                 Dated: 08-08-2024 From: Sri Debojyoti Gogoi Deputy Inspector of Schools, Sodiya, Chapakhowa To, Phulatan Gogoi, Head Teacher, Nabajyoti L.P. School Sub: Regarding refund of excess drawl. You are also requested to handover the charges and Government documents to the senior most teacher of the school. Letter dated 08.08.2024 Memo No.16/2024-25/439                                                                 Dated: 08-08-2024 From: Sri Debojyoti Gogoi Deputy Inspector of Schools, Sodiya, Chapakhowa To, Phulatan Gogoi, Head Teacher, Nabajyoti L.P. School Sub: Regarding refund of excess drawl. Sir, With reference to subject mentioned above, I would like to inform you that on 4.07.2024, you have submitted two Court affidavits as a documents of your date of birth, and admit card of High School Leaving Certificate examination and the certificate of the examination to the office. According, to the court affidavit your date of birth is 13.01.1965. On the other hand, your date of birth is 1.09.1960 according to your admit card and examination passed certificate. It is stated that only school certificate are accepted as proof of date of birth. Therefore, you are to retire from your service on 30-09-2020. Hence, you are requested to return the monthly salary received from 01-10- 2020 to 30-06-2024 to the Government through the treasury challan as per the rules. Otherwise, your pension documents will not be processed.” 18. On consideration of above, this Court is of the view that no grounds made out for the petitioner to set aside the impugned order dated 08.08.2024. It is also further reiterated herein that the petitioner has not challenged the order dated 06.08.2024. 19. A perusal of the prayer portion of the writ petition shows that the has prayed for setting aside the impugned order 08.08.2024 and to direct the respondents to release the petitioner’s retirement benefits after correct assessment of his final pension is made. The petitioner has not prayed for being allowed to continue in service or to be reinstated, thereby giving rise to an inference that the petitioner has accepted that his date of birth was 01.09.1960. 20. In cases where the age of a child is to be determined, Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, provides that the Committee or the Board shall seek evidence by obtaining the date of Birth Certificate from the school or the matriculation or equivalent certificate from concerned examination board. In the absence of the same, the Birth Certificate given by a Corporation or a Municipal authority or a Panchayat only. In the absence of the same, the Birth Certificate given by a Corporation or a Municipal authority or a Panchayat only. In the absence of the above, the age of the child be determined by an ossification test or any other latest medical age determination test. 21. Rule 12 (3)(b) of the Juvenile Justice (Care and Protection of Children) Rules, 2007, herein after referred to as the 2007 Rules, provides that in every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the Court or the Board or, as the case may be, the Committee, by seeking evidence by obtaining the matriculation or equivalent certificates if available, and in the absence whereof, the date of Birth Certificate from the school first attended. In the absence of the same, the Birth Certificate given by a corporation or a Municipal authority or a Panchayat only in the absence of the above will the medical opinion be sought from a duly constituted Medical Board, which will declare the age of the child or juvenile. 22. In the case of Anadhir Ranjan Paul vs. State of Assam & Others, reported in 2014 (2) GLT 543 , this Court has held that when there are two dates of birth entered in the service book, one on the basis of an H.S.L.C.E certificate and another on the basis of an affidavit, it would be within the competence and jurisdiction of the authority to accept the one declared in the H.S.L.C.E certificate to be the correct date of birth. 23. In the case of Smt. Sudha Devi Vs. M.P Narayanan & Ors. reported in AIR 1988 SC 1381 , the Supreme Court has held that affidavits are not included in the definition of evidence under Section 3 of the Evidence Act and thus cannot be used as an evidence. 24. In the case of State of M. P. & Ors. – vs – Mohanlal Sharma reported in (2002) 7 SCC 719 , the Supreme Court has held that the date of birth recorded in the matriculation certificate carries greater evidentiary value than that contained in the certificate given by the retired Headmaster of the school or in the horoscope. 24. In the case of State of M. P. & Ors. – vs – Mohanlal Sharma reported in (2002) 7 SCC 719 , the Supreme Court has held that the date of birth recorded in the matriculation certificate carries greater evidentiary value than that contained in the certificate given by the retired Headmaster of the school or in the horoscope. In the case of State of Bihar & Ors vs. Pandey Jagdishwar Prasad reported in (2009) 3 SCC 117 , the Supreme Court has held that the date of birth mentioned in the matriculation certificate should be treated as the date of birth. It has further held that it would be open for an employee to place other documents before the authorities, to prove that the date of birth shown in the matriculation certificate was incorrect. Such documents however cannot be in the form of an affidavit. 25. From the above provisions of the Juvenile Justice Act, 2015 and the 2007 Rules, read with the various decisions of the Supreme Court and this Court, it is clear that besides the birth certificate, the date of the birth recorded in the matriculation certificate should be one of the first documents to be relied upon by an employer, for determining the date of birth of an employee. The date of the birth recorded in the matriculation certificate carries far more weight than the date of birth recorded in the other documents, in the absence of a Birth Certificate. In any event, the date of birth in a matriculation certificate can also be challenged by a person, provided that the said person is able to show his correct date of birth by other documents, as provided in the decision of the Supreme Court in Pandey Jagdishwar Prasad (supra). The decisions of the Supreme Court also show that while date of birth should be determined on the basis of documents, such documents cannot be in the form of an affidavit. Thus, a date of birth cannot be proved by way of an affidavit. 26. In the present case, the petitioner’s date of birth was not recorded in his service book (PART-I) at the time of entry into service i.e. in 1994/1995. Thus, a date of birth cannot be proved by way of an affidavit. 26. In the present case, the petitioner’s date of birth was not recorded in his service book (PART-I) at the time of entry into service i.e. in 1994/1995. It was only in the petitioner’s service book (PART-II) that the petitioner’s date of birth was recorded as 13.01.1965, that also on the basis of an affidavit executed by the petitioner’s father on 15.03.1999. As stated earlier, it is surprising that no affidavit was made by the petitioner, who was more than twenty one years of age at that relevant point of time. 27. In the case of R.S. Kallolimath vs. State of Mysore & Another reported in (1977) 3 SCC 425 , the Supreme Court reiterated another of it’s decision in the case of State of Orissa vs. Dr. (Miss) Binapani Dei reported in (1967) 2 SCR 625 , holding that it could no longer be disputed that the State is not precluded merely because of the acceptance of the date of birth of its employee in the service register, from holding an enquiry if there exist sufficient reasons for refixing his date of birth. In the present case, the date of birth recorded in the petitioner’s Service Book (PART-II) had only been made on the basis of an affidavit made by the petitioner’s father. As there is nothing to show that the date of birth recorded in the petitioner’s H.S.L.C.E Certificate is not the correct date of birth, there was no reason for the State respondents not to accept the petitioner’s date of birth as 01.09.1960. 28. As the Supreme Court in Sudha Devi (supra) has held that affidavits are not included in the definition of evidence and as the petitioner could not prove that his date of birth, as shown in the matriculation certificate was incorrect on the basis of some other documents, which was not in the form of an affidavit, this Court is of the view that the date of birth of the petitioner, as recorded in his H.S.L.C.E certificate would have to be considered and accepted to be the petitioner’s correct date of birth, i.e. 01.09.1960. 29. The above being said, this Court also finds that the State Respondents were negligent in not recording the petitioners date of birth in his service book (PART–I), at the time when the petitioner first joined service. 29. The above being said, this Court also finds that the State Respondents were negligent in not recording the petitioners date of birth in his service book (PART–I), at the time when the petitioner first joined service. Further, the petitioner’s service book (PART – II) was opened some time in the year 2016 only, that also on the basis of an affidavit made by the petitioner’s father. On considering all the above facts, this Court is of the view that while there has been misrepresentation on the part of the petitioner, in having a wrong date of birth recorded in his service book, the State Respondents are also equally guilty of being negligent, in not recording the petitioner’s date of birth on the basis of some proper document. The petitioner at the time of his selection and appointment to the post of teacher, would have in all probability, had some document to prove his age and the said document could have been made the basis for recording his date of birth in the service book. However, the same has not been done. The net result of the above is that the petitioner has been able to work for nearly four (4) more years than was permitted as per law. 30. In the case of State of Punjab and others Vs. Rafiq Masih (White Washer), reported in (2015) 4 SCC 334 , the Supreme Court has held that there should not be recovery of excess pay for overstaying in service, unless there is fraud or misrepresentation on the part of the Government servant. The facts of the present case clearly gives rise to an inference that there has been a fraud/misrepresentation on the part of the petitioner, in not giving his correct date of birth at the time of opening of the petitioner’s Service Book (PART-II). As such, the direction of the State respondents to the petitioner, for recovery of the excess pay for overstay in service, cannot be faulted. On the other hand, the State respondents have not acted responsibly while opening the petitioner’s Service Book (PART-I) and (PART-II) and in fact, it appears, that they have been negligent. Thus, though recovery of excess pay can be made from the petitioner for his overstay in service, the State respondents would have to also accept part of the blame/responsibility in allowing the petitioner to overstay in service due to their negligence. Thus, though recovery of excess pay can be made from the petitioner for his overstay in service, the State respondents would have to also accept part of the blame/responsibility in allowing the petitioner to overstay in service due to their negligence. Accordingly, on considering the fact that the petitioner has been directed to return his monthly salary from 01.10.2020 to 30.06.2024 due to his overstay in service, pursuant to his wrong date of birth being recorded in his service book, this Court is of the view that the entire amount should not be recoverable, as it was the duty of the State respondents to record the petitioner’s correct date of birth at the time of his initial entry/regularization into service. Consequently, the impugned letter dated. 08.08.2024 issued by the Deputy Inspector of schools, by which the petitioner has been directed to retire from service on 30.09.2020, in terms of his date of birth recorded in the H.S.L.C.E certificate and Admit Card, is not interfered with. However, on applying the principles of equity, the second direction issued to the petitioner, i.e., to return the monthly salary from 01.10.2020 to 30.06.2024 is interfered with, to the extent that the petitioner should return only 50% of the monthly salary received from 01.10.2020 to 30.06.2024. The same may be adjusted from the pensionary benefits payable to the petitioner from 01.10.2020. The pension of the petitioner should also be calculated as per the pay scale he would be entitled to, at the time of his retirement from his service, that is on 30.09.2020. 31. The writ petition is accordingly disposed of.