WP(C) 5035/2009 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT AND ORDER (ORAL) Being aggrieved by the decision of the Deputy Director of Elemen tary Education Assam, as conveyed by his letter dated 31.10.2009, effecting reco very of an amount of Rs.2,43,402/-, from the petitioner’s death-cum-retirement g ratuity and arrear pension, consequent upon the alteration of his date of birth from 30.11.1947 to 01.12.1946, he is before this Court for redress. 02. I have heard Mr. M Sarania, learned counsel for the petitioner, Mr. SK Das, learned Standing Counsel, Education Department, Assam and Mr. BC Sa ikia, learned State Counsel, Assam for the Director of Pension, Assam. Also hea rd Mr. B Sarma, learned counsel for the respondent No. 7, the Ex-Block Elementar y Education Officer, Dhemaji. 03. Briefly stated the petitioner’s pleaded case is that after rende ring over three decades of unblemished service, he retired as Headmaster of Suba hi Pathar M.V School on 30.11.2006, on attaining the age of superannuation of 59 years as per the rules then in force. This was in terms of the letter dated 13 .11.2006 of the Block Elementary Education Officer, respondent No. 7. On his re tirement, the petitioner handed over the charge to the senior most Assistant Tea cher of the school and submitted his pension papers for the retiral benefits. A fter his matter was processed, by the impugned communication, the steps as indic ated therein, were directed to be taken. Prior thereto, the Finance & Accounts Officer, Directorate of Pension, Assam by his letter dated 24.04.2007 expressed reservation over fixation of his pay in the revised scales, indicating as well, having regard to his date of birth to be 01.12.1946 that he was due to retire on 30.11.2004, and thus had overstayed in service upto 30.11.2006. Faced with unc ertainty and the risk of recovery from his retiral benefits, the petitioner has approached this Court for remedial intervention. 04. The respondent No. 2, the Director of Elementary Education, Assa m, in his affidavit has stated that in terms of the age proof certificate of the petitioner, his retirement was due on 30.11.2004 on the attainment of 58 years. He overstayed in service on the basis of the letter dated 13.11.2006 of the th en Block Elementary Education Officer, Dhemaji. According to the deponent, a su m of Rs. 20, 222.00 and Rs. 36,072.00 have, meanwhile, been paid to the petition er by way of GIS and unutilized earned leave entitlements. It has, however, been averred that an amount of Rs. 3,74,135.00 is recoverable from him due to overst ayal in service from 01.12.2004 to 30.11.2006 along with a further sum of Rs.2,4 3,402.00 for wrong fixation of his pay during his tenure. The deponent has also referred to a consent letter of the petitioner vis-a-vis wrong fixation of pay, whereby, he had admitted that a sum of Rs.2,43,402/- had been paid to him in ex cess on that count. 05. Mr. Sarania, has urged that though, the letter dated 08.10.2009, admitting wrong fixation of pay and drawal of excess amount of Rs.2,43,402/- ha d to be executed by him (petitioner) under compulsion, he for the present does n ot wish to pursue the said issue any further. The learned counsel, however, has seriously contended that the age of the petitioner having been duly recorded in his service book to be 30.11.1947, the unilateral alteration thereof as 01.12.1 946 after his retirement is impermissible in law and, therefore, the demand of a ny excess amount for overstay in service is patently illegal, arbitrary and null and void. As the petitioner had rendered his services to earn his receipts, and as his alleged overstay in service is not attributable to any act overt or cove rt on his part to ensure the same, the impugned decision of the State respondent s to recover the salary and allowances drawn by him during the period from 01.12 .2004 to 30.11.2006 is liable to be adjudged non est. In support of his content ions, Mr. Sarania has placed reliance on the decision of the Apex Court in State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117. 06. Mr. Das, in reply has urged that as the petitioner did not raise any objection vis-a-vis the wrong fixation of his pay, the said issue ought to be treated as closed. He, however, has submitted that as the entry of his date of birth in his service book initially made, is patently wrong as would be evide nt from his age proof certificate, the alteration thereof to 01.12.1946 cannot b e faulted with. As the petitioner, admittedly, had overstayed in service from 01 .12.2004 (the date of retirement in terms of the date of birth is 01.12.1946) ti ll 30.11.2006, no interference in the impugned decision is warranted. 07. Mr. B Sarma, has urged that as the letter dated 13.11.2006 by th e respondent No. 7 had been issued on the basis of the materials then available on record, his action ought not to be faulted with. 08. Upon hearing the learned counsel for the parties and on a consid eration of the pleaded facts, this Court is of the view that in the face of the letter dated 08.10.2009 executed by the petitioner, admitting excess drawal on t he ground of wrong fixation of pay amounting to Rs. 2,43,402/-, no adjudication is called for in that regard. The respondents, therefore, are entitled to recove r the said amount. A bare perusal of the service book of the petitioner produced in original reveal s that his date of birth as initially entered therein is 30.11.1947 under the en dorsement of the Secretary, Regional Board for Elementary Education, Dhemaji dat ed 22.09.1973. The alteration thereof to 01.12.1946 is dated 12.11.2009 under th e hand of the District Elementary Education Officer, Dhemaji, is patently after his retirement on 30.11.2006 precisely almost three years thereafter. The mater ials on record are insufficient to hold that the petitioner was afforded a reaso nable opportunity of hearing against the said alteration. It passes one’s compre hension as to how, though the date of birth of the petitioner was initially ente red as 30.11.1947 presumably on the basis of the contemporaneous documents on re cord, the mistake relatable thereto, if any, had gone unnoticed for long 30 year s and above, till it was altered on 12.11.2009 and that to unilaterally. In the above view of the matter, the alteration of the date of birth of the petitioner from 30.11.1947 to 01.12.1946 is disapproved. 09. Be that as it may, even assuming that such an alteration was val idly made after his retirement from service, this Court having regard to the fac ts and circumstances of the case, is not inclined to permit the State respondent s to effect recovery of his pay and allowances which he had earned by rendering his services for the period allegedly overstayed by him. The materials on recor d do not demonstrate that the petitioner was responsible in any manner for secur ing in his stay in service beyond 01.12.2004. At this distant point of time and at the fag end of his life, it would be unfair, unreasonable and unjust to deny him the benefit/fruits of his labour availed by the State respondents. This vi ew finds support of the decision of the Apex Court in State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad (Supra). 10. The authorities cited on behalf of the respondents are of no ava il to them. As far as the decision in V. Gangaram Vs. Regional Joint Director & Ors., (1997) 6 SCC 139 is concerned, it is limited to excess drawal for wrong a dvance increments. The rendering of this Court in WP(C) No. 4975/2008 (Ajit Ch. Puzari Vs. the State of Assam), reveals that in the contextual facts, the date o f birth of the petitioner therein as entered in the service book was wrongly mad e in the teeth of the then existing contemporaneous records/documents. The situa tion herein is different. As indicated hereinabove, no error of the kind as not iced in Ajit Ch. Puzari Vs. the State of Assam (Supra), is discernible in the pr esent facts. This decision therefore, also does not advance the case of the res pondents. 11. On a totality of the considerations as recorded hereinabove, thi s Court is of the view that the decision vis-a-vis the recovery of an amount of Rs. 2,43,402/- due to wrong fixation of pay ought to be sustained. However, the one relatable to his overstay in service is interfered with. In other words, t he respondents would not resort to any step for recovery of the amount of Rs. 3, 74,135.00 from his pension and other retiral benefits. As the petitioner has ret ired from service on 30.11.2006, they would take immediate steps to quantify and release his said retiral benefits forthwith. The petition stands allowed in the above terms. No costs.