Page No.# 1/13 vs The State Of Assam And 6 Ors
2025 Latest Caselaw 3458 Gua

Gauhati High Court

Page No.# 1/13 vs The State Of Assam And 6 Ors on 25 February, 2025

Author: Michael Zothankhuma

Bench: Michael Zothankhuma

                                                                   Page No.# 1/13

GAHC010191592024




                                                           2025:GAU-AS:1973

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                          Case No. : WP(C)/4888/2024

         NIRAN GOGOI
         S/O- TANU RAM GOGOI, R/O- VILLAGE- DOLOPANI, P.O. NATUN
         BALIJANA, DIST.- TINSUKIA, ASSAM



         VERSUS

         THE STATE OF ASSAM AND 6 ORS
         REPRESENTED BY THE SECRETARY, DEPARTMENT OF SCHOOL
         EDUCATION, ASSAM, DISPUR, GUWAHATI- 781006

         2:THE COMMISSIONER AND SECRETARY
          PENSION AND PUBLIC GRIEVANCES
          GOVT. OF ASSAM
          DISPUR
          GHY-06

         3:THE COMMISSIONER AND SECRETARY
         TO THE GOVT. OF ASSAM
          FINANCE DEPARTMENT
          DISPUR
          GHY-06

         4:THE DIRECTOR OF PENSION
          HOUSEFED COMPLEX
          DISPUR
          GHY-06

         5:THE DIRECTOR OF ELEMENTARY EDUCATION
         ASSAM
          KAHILIPARA
          GHY- 781019
                                                                        Page No.# 2/13

            6:THE DISTRICT ELEMENTARY EDUCATION OFFICER
            TINSUKIA
             P.O. AND DIST.- TINSUKIA
            ASSAM
             PIN- 786125

            7:THE DEPUTY INSPECTOR OF SCHOOLS
             SADIYA
             CHAPAKHOWA
             DIST. TINSUKIA
            ASSAM
             PIN- 78615

Advocate for the Petitioner   : MR. M KHAN, MS J AKTAR,MR A K DAS,MR. A BURAGOHAIN

Advocate for the Respondent : SC, ELEM. EDU, SC, FINANCE,GA, ASSAM




                                  BEFORE
                HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

                                         ORDER

25-02-2025 Heard Mr. M Khan, learned counsel for the petitioner. Also heard Ms. S Chutia, learned counsel for the Elementary Education Department, Mr. G Pegu, learned counsel for the respondent Nos. 2 & 4 as well as Mr. RM Baruah, learned counsel for the respondent No. 3.

2. The petitioner's case is that as his date of birth was recorded in his service book as 20.05.1964, the petitioner, who was an Assistant Teacher of Pub Ambikapur Kaliya LP School should have retired on 31.05.2024. However, on the basis of the impugned letter dated 27.06.2024 issued by the Deputy Inspector of Schools, Sodiya, Chapakhowa the petitioner was made to retire w.e.f. 30.03.2018, on the ground that his Court affidavit, HSLCE admit card and certificate proved that the petitioner's date of birth was actually 30.03.1958. The petitioner was also asked to refund the excess salary drawn by him for Page No.# 3/13

overstaying in his service from 01.04.2018 to 30.04.2024.

3. The petitioner's counsel submits that the petitioner, who was having the minimum eligibility educational criteria of High School Leaving Certification Examination (HSLCE) pass for being appointed as an Assistant Teacher, the petitioner was appointed on 04.12.1998 as Assistant Teacher (stipendiary) in Pub Ambikapur Kaliya LP School on a fixed pay. The petitioner joined service on 07.12.1998. Further the petitioner passed Junior Basic Training Course on 22.11.2001 and his service was subsequently regularised vide order dated 02.07.2003.

4. The petitioner's date of birth was recorded in his service book as 20.05.1964, on the basis of an affidavit dated 26.05.1997 executed by the petitioner's elder brother, Sri Dibya Gogoi, who stated that the petitioner was born on 20.05.1964 as per the family horoscope and that his date of birth was wrongly entered in the School record as 30.03.1958 instead of 20.05.1964.

5. The petitioner's counsel submits that as the petitioner's date of birth has been accepted by the authorities as 20.05.1964, the petitioner could not have been retired prior to 31.05.2024. He further submits that as the petitioner has worked till 30.04.2024, there cannot be recovery of excess salary for overstay in service, in terms of the Judgment of the Supreme Court in the case of State of Punjab & Ors. Vs. Rafiq Masih (White Washer) , reported in (2015) 4 SCC 334.

6. Ms. S Chutia, learned counsel for the Elementary Education Department, on the other hand, submits that besides the letter dated 27.06.2024 issued to the petitioner, the petitioner was heard in person on 16.12.2024 in the office of the Page No.# 4/13

Director, Elementary Education, Assam in connection with his date of birth. The proceedings in the hearing held on 16.12.2024 in the office of the Director, Elementary Education, Assam shows that the petitioner had admitted that in his HSLCE Admit Card, the petitioner's date of birth was 30.03.1958 and that the date of birth had been changed to 20.05.1964, on the basis of an affidavit. She also submits that there is no averment made by the petitioner in the writ petition, to the effect that the petitioner had applied for correction of his date of birth in his HSLCE Admit Card and Certificate, with the Board of Secondary Education, Assam. As such, the petitioner had himself accepted his correct date of birth to be 30.03.1958. She submits that as there has been misrepresentation and fraud in relation to the date of birth recorded in the Service Book on the part of the petitioner, at the time of opening of his service book, there is no error in the State respondents directing the petitioner to refund the excess salary paid to the petitioner, for overstay in service.

7. I have heard the learned counsels for the parties.

8. The facts of the case, as can be culled out from the submissions made by the counsels for the parties and the averments made in the pleadings, show that the minimum eligibility educational criteria for appointment as an Assistant Teacher was that a candidate was required to be a matriculate, i.e., he had to have a HSLCE certificate. The petitioner was accordingly selected as an Assistant Teacher on the basis of him acquiring an HSLCE certificate, wherein his date of birth was recorded as 30.03.1958. However, the Government official who had opened the petitioner's service book recorded the petitioner's date of birth as 20.05.1964, on the basis of an affidavit made by the alleged elder brother of the petitioner on 26.05.1997. Interestingly, no affidavit was made by Page No.# 5/13

the petitioner, regarding his date of birth. A reading of the affidavit filed by the alleged elder brother of the petitioner, i.e., Sri Dibya Gogoi, shows that there are over-writings in the affidavit.

9. The affidavit dated 26.05.1997 filed by the Sri Dibya Gogoi is reproduced herein below as follows:-

"AFFIDAVTT

IN THE COURT OF THE SUB-DIVISIONAL JUDICIAL/EXECUTIVE MAGISTRATE: SADIYA: CHAPAKHOWA: DT:26.5.97.

I Shri Dibya Gogci, son of Shri Tanu Ram Gogoi, an inhabitant of village Delopani gaon, under P.S. and Mouza Sadiye, in the dist. of Tinsukia, Assam, do hereby solemnly affirm on oath and declare as follows :-

1. That my cousin brother Shri Niron Gogoi was born on 20.5.64, which come to my knowledge from the janampatrika maintained by my family.

This is true to the best of my knowledge and belief.

2. That in the School Register, his date of birth is wrongly entered as 30.3.58 instead of 20.5.64 which is not his date of birth of my said brother.

This is true to the best of my knowledge and belief.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Sd/- Sri Dibya Gogoi Signature of the deponent"

10. A perusal of the averments made by the writ petitioner in his pleading shows that the petitioner has not made any attempt to have his date of birth, as recorded in the HSLCE certificate and admit card, to be changed from 30.03.1958 to 20.05.1964, with the Authority who issued the same, i.e., The Page No.# 6/13

Board of Secondary Education, Assam. The same implies that the petitioner has accepted the fact that his correct date of birth is 30.03.1958.

11. The impugned letter dated 27.06.2024 issued by the Deputy Inspector of Schools also shows that the State respondents became aware of the correct date of birth of the petitioner to be 20.05.1964, due to the petitioner having submitted his HSLCE certificate and Admit Card on 21.05.2024, as proof of his date of birth being 30.03.1958. The contents of the impugned letter dated 27.06.2024 is reproduced herein below:-

"Sub: Regarding Refund the Additional Fund. Sir, With references to the subject sited above, it is hereby informed you that on 21.05.2024, you have submitted one Court affidavit, admit card of H.S.L.C and one school certificate to this office as proof of your date of birth. As per Court affidavit your date of birth is 20.05.1964. On the other hand, as per admit card and school certificate your date of birth is 30.03.1958.

Since, school certificate has been accepted as date of birth. Therefore, you are to retire on 30.03.2018 Hence, you are requested to refund excess drawl amount for overstay period from 01.04.2018 to 30.04.2024. Otherwise, your pension paper would not be processed."

12. The minutes of the hearing held on 16.12.2024 in the office of the Director, Elementary Education Officer, shows that the petitioner admitted that the HSLCE admit card showed the date of birth of the petitioner as 30.03.1958 and that the same had been changed to 20.05.1964 vide an affidavit, which in this case was made by the alleged brother of the petitioner and not the Authority which issued the HSLCE Admit Card and Certificate.

13. The extract of the minutes of the hearing held on 16.12.2024 in the office Page No.# 7/13

of the Director, Elementary Education, Assam is reproduced herein below:-

"Statement of the petitioners, Niran Gogoi:

The petitioner, Niran Gogoi WP(C) No.4888/2024 has admitted that as per HSLC Admit Card the date of birth is 30/03/1958 respectively. They had changed their date of Birth to 20/05/1964 vide affidavit and had entered the Date of Birth of affidavit in the Service Book.

Statement of the Deputy Inspector of Schools, Sadiya:

The Deputy Inspector of Schools, Sadiya in his written statement dated 16/12/2024 has stated that the actual date of birth as per HSLC Admit Card the date of birth in respect of Niran Gogoi, Retd. Head Teacher of Pub Ambikapur Kaliya L.P. School as per HSLC passed certificate is 30/03/1958. Findings of the Hearing:

(1) The actual Date of Birth as per HSLC Admit Card of the petition Niran Gogoi is 30/03/1958.

(2) The petitioner has manipulated and changed their date of birth to 20/05/1964 vide affidavit.

(3) Based on the affidavits, the then BEEO Sadiya had their Service Books and entered the Date of Birth as per their affidavit.

(4) As a result, the petition, Niran Gogoi's original Date of Retirement is 31/03/2018 thereby Niran Gogoi has an over stay period w.e.f. 01/04/2018 to 30/04/2024.

Conclusion: The petitioner of WP(C) 4888/2024, Niran Gogoi had manipulated their actual Date of Birth vide Affidavit and updated the same in their Service Book. Thereby the petitioner, Niran Gogoi had an over stay period from 01/04/2018 to 30/04/2024. Thus, the Petitioner, Niran Gogoi and had excess drawal during their service period which is serious offence of fraudulence of Govt. money and they are liable for strict disciplinary action.

Page No.# 8/13

Under the above circumstances, immediate necessary steps may be taken for recovery of the amount of the over stay period of service from the petitioners and also Govt. may be requested to take disciplinary action against the BEEO/DIS, Sadiya for ignoring the Date of Birth in service book and accepting the changed Date of Birth submitted by the petitioner, Niran Gogoi as 30/03/1958 instead of 20/05/1964 on the basis of affidavit submitted by the petitioner, Sri Niran Gogoi, if authority pleases."

14. As can be seen from the minutes of the hearing held on 16.12.2024, the Authorities have decided to request the State Government, to take disciplinary action against the Block Elementary Education Officer/Deputy Inspector of School, Sadia, for accepting the changed date of birth in the petitioner's service book on the basis of an affidavit.

15. In the present case, when the petitioner has been appointed as an Assistant Teacher on the basis of the HSLCE certificate, wherein his date of birth is recorded as 30.03.1958 and the admit card also is to the same effect, the recording of a different date of birth in the petitioner's service book by the concerned official, on the basis of an affidavit executed by someone else, which is not in tune with the HSLCE admit card/certificate, is patently illegal and wrong. There is also nothing to show in the averment that the petitioner has taken any steps with the concerned Secondary Board of Education, asking for correction of his date of birth in his HSLCE certificate from 30.03.1958 to 20.05.1964. The petitioner has also not made any prayer in the present writ petition for setting aside the date of birth recorded in the petitioner's HSLCE admit card/certificate, wherein his date of birth is recorded as 30.03.1958. The above facts imply that the petitioner had accepted his date of birth to be 30.03.1958. It is also not understood as to why the Government official, who Page No.# 9/13

opened the petitioner's service book had not insisted for an affidavit to be made by the petitioner regarding his date of birth, when the petitioner was more than 30 years old at the time of entry into Government service. There was no reason to record the petitioner's date of birth on the basis of an affidavit made by the petitioner's brother, which has no value.

16. In cases where the age of a child is to be determined under the Juvenile Justice (Care and Protection of Children) Act, 2015, Section 94 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 above, the age of the child be determined by an ossification test or any other latest medical age determination test.

17. 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.

18. 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.

19. In the case of State of M. P. & Ors. - vs - Mohanlal Sharma , Page No.# 10/13

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.

20. From the above provisions of the Juvenile Justice Act, 2015, 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.

21. In the case of R.S. Kallolimath vs. State of Mysore & Another Page No.# 11/13

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 had only been made on the basis of an affidavit made by the petitioner's brother. 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 recorded in the HSLCE Certificate.

22. 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. 30.03.1958.

23. In the case of Rafiq Masih (White Washer) (supra), the Supreme Court has held that there should not be recovery of excess pay for overstay in service, unless there is fraud or misrepresentation on the part of the Government servant. In the case of State of Bihar & Ors. Vs. Pandey Jagdishwar Prasad, reported in (2009) 3 SCC 117, the Supreme Court has held that when there is no allegation of misrepresentation or fraud, which could be attributed to the respondents and considering the fact that the appellant has Page No.# 12/13

allowed the respondents to work and get works done by him and paid him salary, it would be unfair to deduct the salary. As can be seen from the judgments quoted above, recovery of salary for overstay in service cannot be done unless there is fraud or misrepresentation on the part of the Government servant.

24. The findings in the hearing held on 16.12.2024 in the office of the Director of Elementary Education, Assam is to the effect that the petitioner had manipulated and changed his date of birth to 20.05.1964 by way of an affidavit and had entered the said date of birth in the service book. The findings in the hearing further stated that the petitioner had accordingly committed a serious offence of fraud, due to excess withdrawal of salary. The same has also been reiterated in the affidavit filed by the respondent No.5. Thus, the State respondents have taken a stand that the date of birth recorded in the petitioner's service book was due to misrepresentation and fraud.

25. The facts of this case clearly show that the there has been a fraud or misrepresentation on the part of the petitioner, which has apparently been made in collusion with the Government official who had opened the petitioner's service book. When the petitioner's appointment had been made on the basis of the HSLCE certificate, there was no reason for the concerned official not to record the date of birth as recorded in the petitioner's HSLCE certificate. There could not have been any reasonable basis to instead record the petitioner's date of birth as per the affidavit made by the brother of the petitioner, which was apparently made on the basis of some family horoscope. As held by the Supreme Court in the case of Mohanlal Sharma (supra), the date of birth recorded in the matriculation certificate carries greater evidential value than that Page No.# 13/13

contained in a horoscope. In view of the fact that there has been fraud or misrepresentation on the part of the petitioner, in having a wrong date of birth recorded in the service book and as the Authorities have taken a decision to request the State Government, to initiate disciplinary proceedings against the concerned Block Elementary Education Officer/Deputy Inspector of School, Sadia, this Court is of the view that the petitioner cannot be allowed to take the benefit of his own wrongdoing. Accordingly, this Court does not find any ground to interfere with the impugned letter dated 27.06.2024.

26. The writ petition is accordingly dismissed.

JUDGE

Comparing Assistant