Page No.# 1/9 GAHC010164682018 2025:GAU-AS:4012 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5042/2018 ARUN CHANDRA SAIKIA S/O. BANGSHI SAIKIA, PRESENTLY POSTED AS A SENIOR ASSISTANT, DEPUTY INSPECTOR OF SCHOOLS, CHARAIDEO, P.O. CHARAIDEO SIVSAGAR, ASSAM PIN 785640 VERSUS THE STATE OF ASSAM AND 4 ORS. REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVERNMENT OF ASSAM, EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI- 781006. 2:THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI-19. 3:THE DISTRICT ELEMENTARY EDUCATION OFFICER SIVSAGAR ASSAM. PIN 785640. 4:THE DEPUTY INSPECTOR OF SCHOOLS CHARAIDEO ASSAM. PIN 785640 5:THE BLOCK ELEMENTARY EDUCATION OFFICER SIVASAGAR ASSAM. PIN 785640 Advocate for the Petitioner : MR. R MAZUMDAR, MR. S P CHOUDHURY,MRS P RAI,MR H Page No.# 2/9 BEZBARUA,MR. U SARMA,MS. P BARMAN Advocate for the Respondent : SC, ELEM. EDU, MR. S. J. SARKAR,MS B DEVI B E F O R E HON’BLE MR. JUSTICE MICHAEL ZOTHANKHUMA For the petitioner : Mr. S.P. Choudhury, Advocate For the respondents : Ms. N. Phukan, SC, Elementary Education Department. Date of hearing : 02.04.2025 Date of Judgment : 04.04.2025 ORDER (CAV) Heard Mr. S.P. Choudhury, learned counsel for the petitioner. Also heard Ms. N. Phukan, learned Standing Counsel, Elementary Education Department. 2. The grievance of the petitioner is that his date of birth has been wrongly entered in his service book as 31.07.1958. As such, the petitioner has prayed for setting aside the impugned order dated 15.05.2018, asking the petitioner to retire on 31.07.2018. 3. The petitioner’s case is that he was born on 01.12.1967 and he was appointed as an Office Peon in the office of the respondent No.4 on 15.11.1976. During his service period, he was transferred to the office of the Deputy Inspector of Schools, Charaideo, vide order dated 04.10.1983. During his service period the petitioner appeared in the High School Leaving Certificate Page No.# 3/9 Examination (HSLCE) held in the year 1986 and he passed the same along with the Compartmental Examination in 1986. 4. The petitioner’s counsel submits that as per his HSLCE admit card and HSLCE certificate, the petitioner’s date of birth had been recorded as 01.12.1967. The petitioner’s counsel submits that the Board of Secondary Education submitted a verification report dated 29.04.2017, where it has been reflected that the date of birth of the petitioner is 01.12.1967. 5. The petitioner was also promoted to the post of Lower Division Assistant (LDA) vide order dated 01.08.1997. He was again promoted to the post of Senior Assistant on 08.02.2008 and he is presently working in the office of the Deputy Inspector of Schools, Charaideo. 6. The petitioner’s counsel submits that due to the wrong recording of the date of birth of the petitioner in his service book, as is clearly proved from his HSLCE admit card, HSLCE certificate and letter/verification report dated 29.04.2017 issued by the Secretary, Board of Secondary Education, he requested the concerned authority to correct his date of birth in his service book from 31.07.1958 to 01.12.1967. The authorities thereafter corrected the petitioner’s date of birth in his service book as 01.12.1967 on 29.05.2018, on the basis of the HSLCE admit card and HSLCE certificate. 7. The petitioner’s counsel thus prays that the petitioner should be allowed to remain in service till his age of superannuation, i.e., 01.12.1967 and to set aside the impugned order dated 15.05.2018, by which the petitioner had been asked to retire on 31.07.2018. Page No.# 4/9 8. Ms. N. Phukan, the learned counsel for the Elementary Education Department submits that the petitioner ought to have retired from service on 31.07.2018, on attaining the age of superannuation, since his date of birth as recorded in the service book at the time of his joining in service was 31.07.1958. As such, the claim of the petitioner to remain in service after 31.07.2018 is not tenable. She also submits that the petitioner had misled the Government, by influencing the Deputy Inspector of Schools, Charaideo, to change the petitioner’s date of birth wrongly from 31.07.1958 to 01.12.1967. She submits that the petitioner’s date of birth had been changed due to the letter dated 29.04.2017 issued by the Secretary, Board of Secondary Education, Assam, where his date of birth had been mentioned as 01.12.1967. She submits that it later came to the knowledge of the Government that if the date of birth of the petitioner was considered as 01.12.1967, the petitioner would have joined government service at the age of 9 years, since he joined his service on 15.11.1976, which is not permissible as per Government Rules. As such, vide office order dated 10.07.2019, the instruction dated 10.05.2018 to correct the date of birth of the petitioner was cancelled and a direction was issued to the Director of Elementary Education, Assam to treat the date of birth of the petitioner, as recorded in his service book at the time of his joining. 9. I have heard the learned counsels for the parties. 10. The DEEO, Sivasagar’s order dated 15.05.2018, requiring the petitioner to retire from service on attaining the age of superannuation on 31.07.2018, observing that the petitioner had been serving as a government employee for almost 42 years was not acted upon, as this Court, vide order dated 31.07.2018 in this writ petition, had restrained the respondents from retiring the petitioner Page No.# 5/9 from his post. 11. The petitioner’s date of birth as recorded in his service book at the time of joining was 31.07.1958 and in terms of the said date of birth, the petitioner should have retired on 31.07.2018. The petitioner has however taken a stand that his date of birth is 01.12.1967, as recorded in the HSLCE admit card and HSLCE certificate. Further, the Secretary, Board of Secondary Education, Assam had apparently written a letter dated 29.04.2017 stating that the petitioner’s date of birth was 01.12.1967. It is also a fact that the petitioner had joined government service on 15.11.1976. If we are to assume that the petitioner’s correct date of birth is 01.12.1967, then the petitioner is to retire from Government service on 30.11.2027, i.e., after being in Government service for 51 years, in which case, he would have been a private citizen without any government job for only 9 years of his first 60 years of his life. It is impossible for a boy of 9 years to be appointed into Government service, unless his physical features showed the appearance of a person being 18 years or older. It is the case of the petitioner that he was appointed into Government service at the age of 9 years. His physical attributes at the age of 9 years would have been there for all the world to see that the petitioner was a young boy. His colleagues and the officials would have all seen that a boy could not have been appointed to Government service. 12. Interestingly, the petitioner has not annexed any of his appointment/transfer/promotion orders in the writ petition, though the letter dated 15.05.2018 issued by the District Elementary Education Officer, Sivasagar shows that the petitioner had joined his service as a Personal Peon on 15.11.1976 in the scale of pay of Rs.190-2-200-3-242-4-250/- per month, in the Page No.# 6/9 office of the Deputy Inspector of Schools, Nagaon. He was transferred to the office of the Deputy Inspector of Schools, Charaideo vide DEE, Assam, letter No. EAA.17/83/25209 dated 04.10.1983 and joined his post at the office of the Deputy Inspector of Schools, Sonari, Charaideo on 10.10.1983. On 10.10.1983, the petitioner would only have been 16 years of age. The petitioner was thereafter promoted to the post of Lower Division Assistant and joined as a Lower Division Assistant in the office of Deputy Inspector of Schools, Charaideo on 01.08.1987. It is interesting to note that on 01.08.1987, the petitioner would have been 20 years of age. The petitioner was again promoted to the post of Senior Assistant in the office of the Block Elementary Education Officer, Sapekhati vice Sri Lakhi Pukan vide letter dated 08.02.2008 and he was transferred from the office of the BEEO, Sapekhati to the office of the Deputy Inspector of Schools, Charaideo on 05.07.2008. None of the above documents have been annexed by the petitioner. The above service particulars of the petitioner have been recorded in the letter dated 15.05.2018 issued by the District Elementary Education Officer, Sivasagar. 13. The affidavit that has been submitted along with the writ petition has been executed by the petitioner’s son, one Mr. Rajdeep Saikia, who states that he is fully acquainted with the facts and circumstances of the case and that the statements made are true to his knowledge and the rest are matters of record. 14. On considering the fact that the petitioner had been appointed as a Personal Peon on 15.11.1976 in the pay scale of Rs.190-2-200-3-242-4-250/- per month in the office of the Deputy Inspector of Schools, Nalbari, it is very clear that the petitioner could not have been 9 years of age at that particular period of time. The entire office in which the petitioner was appointed would Page No.# 7/9 have instantly realised that there was something wrong, if the petitioner had joined his post as a 9 year old boy. 15. Interestingly, the Board of Secondary Education, Assam has not been made a party in this writ petition, to ascertain the veracity of the HSLCE admit card, the HSLCE certificate and the letter dated 29.04.2017, alleged to have been written by the Secretary, Board of Secondary Education, Assam, where it has been stated that the petitioner’s date of birth was 01.12.1967. Thus, the genuineness of the above documents needs to be tested by taking the evidence of the Board of Secondary Education, Assam. This Court is of the view that when it is an admitted position that the petitioner has been appointed into Government service on 15.11.1976 on a regular scale of pay, there was no question of the petitioner being 9 years of age at that time. Further, the HSLCE admit card and HSLCE certificate of the petitioner shows that the petitioner had allegedly passed his matriculation only in the year 1986, in which case, the petitioner would most probably have been in KG or Class-I in the year 1976, when the petitioner was first appointed to Government service. Thus, the above fact raises a further question as to how a 9 year old boy who was in class KG or Class-I could have been appointed to a Grade-IV Peon post in the Government, on a regular scale of pay and how a 9 year old boy was able to pass off as a man of at least 18 years. 16. The superannuation age of a Government servant under the State of Assam is 60 years and the age of majority being 18 years, a person cannot be in Government servant for more than 42 years, in normal circumstances. There may be cases of a Government servant having his service extended for a few months etc. However, the superannuation age is 60 years in the Government of Page No.# 8/9 Assam in respect of a Senior Assistant in the Elementary Education Department. As such, the petitioner cannot be in service for more than 42 years. However, if the petitioner is to retire on 30.11.2027, by taking his date of birth to be 01.12.1967, then the petitioner would be working for 51 years of age, prior to his superannuation age of 60 years. The above clearly shows that a fraud has been perpetuated on the respondents. The very fact that the petitioner has worked as a Government servant for 49 years as on date clearly shows that a fraud and misrepresentation has been perpetuated by the petitioner. It has also to be kept in mind that fraud vitiates everything. The issue of fabricating documents needs to be gone into also. As such, the petitioner’s date of birth, for the reasons stated above, cannot be 01.12.1967. Consequently, the petitioner cannot be allowed to receive any benefit out of a fraud/misrepresentation perpetuated by him and probably in connivance with certain officials/authorities in the Government of Assam and also the Board of Secondary Education, Assam. 17. This Court is accordingly of the view that a thorough enquiry should be initiated by the State respondents as to how such a thing came to pass, though it has been stated by the State respondents’ counsel that instructions have been issued on 10.07.2019, to cancel the correction of the petitioner’s date of birth. In this respect, it would also be profitable to refer to the case of R.S. Kallolimath vs. State of Mysore & Another reported in (1977) 3 SCC 425, wherein 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 Page No.# 9/9 refixing his date of birth. 18. In this case, the petitioner’s date of birth recorded in the HSLCE admit card and HSLCE certificate and the letter of the Secretary, Board of Secondary Education, Assam, stating that the petitioner’s date of birth was 01.12.1967 could not have been correct, as the petitioner could not have been appointed to a regular Grade-IV post of Peon on a regular scale of pay at the age of 9. 19. In view of the reasons stated above, this Court is of the view that the petitioner’s date of birth as recorded in his service book when he joined has to be taken as his correct date of birth, i.e., 31.07.1958. Thus, the petitioner should accordingly have retired on 31.07.2018. As this Court has directed the Government to have a thorough enquiry into the matter, the Government should also consider as to whether there should be a recovery of the salary paid to the petitioner, w.e.f. the date of retirement he was to actually retire, i.e., 31.07.2018. 20. For the reasons stated above, this Court is not inclined to exercise it’s discretion in the present case. The writ petition is accordingly dismissed. Any interim order passed earlier stands vacated. The respondents should ensure that the petitioner is relieved of his post immediately. JUDGE Comparing Assistant