Bansi Ram vs Union of India and Others

Anil Kumar, J.—The petitioner, a Head Constable at the Central Reserve Police Force (CRPF), has challenged the order of dismissal dated

2nd May, 1997 passed by the Inspector General, CRPF, on the charge that he had submitted a false certificate of his date of birth and he had

changed his date of birth as he was not eligible for the post of Constable at the time of his enlistment, and the order dated 16th January, 1998

passed by the Director General dismissing the appeal of the petitioner against the enhancement of punishment imposed on him.

Brief relevant facts to comprehend the controversies are that the petitioner joined the Central Reserve Police Force (CRPF) on 27th April,

1968. At the time of joining he had submitted his date of birth certificate verified by the concerned authority, in accordance with Rule 14 of the

CRPF Rules, 1955 and the Verification Roll No. 1225 dated 29th May, 1968, was received on 16th July, 1968.

On 16th March, 1995 a charge sheet was issued to the petitioner leveling the following allegations against him:

That the said number 680332976 HC Bansi Ram of E/52 Bn., CRPF while functioning as Head Constable in 52 Bn., CRPF committed an act of

misconduct in his capacity as a member of the Force u/s 11(1) of CRPF Act, 1949, in that on 27.4.1969 at the time of his enlistment he tampered

with date of birth in his original education certificate which was originally written as 11.2.1951 and tampered with it to read as 11.2.1950 to make

up deficiency in his age limit for the purpose of enlistment.

By order dated 19th March, 1995 Sh. S.C. Pandey, Deputy Commandant of the Unit, was appointed as the Enquiry Officer. The petitioner had

pleaded not guilty to the allegations made against him. During the enquiry one prosecution witness, namely Est. Clk II 52 Bn. CRPF was examined

and three documents in evidence were produced, which were the extract of the first page of the service book of the delinquent, the original school

leaving certificate issued by the Head Master Govt. High School, Palander Kangra, and the letter dated 7th June, 1994 issued by the Head Master

Govt. High School, Patlander (H.P.).

The Enquiry Officer observed that the date of birth of the petitioner as mentioned in the transfer certificate, which was the basis of his enrollment

in the CRPF, was 11th February, 1950 and the date of birth mentioned in the service book was also 11th February, 1950. While the letter dated

7th June, 1994 which was issued by the Principal and addressed to the Additional DIG, GC, CRPF clarified that the factual date of the birth of the

petitioner is 11th February, 1951 as per the school records. The Enquiry Officer repelled the plea of the petitioner that the certificate in question

was submitted by his brother, who had got him enlisted, and held that the petitioner would be solely responsible for the correctness of the

certificate on the basis of which he got enrolled. In view of the facts and circumstance, the Enquiry Officer by its report dated 10th October, 1995

had held that the charge imputed against the petitioner was made out.

The petitioner filed his reply against the findings of the Enquiry Officer, however, by order dated 25th December, 1995, the Commandant, 62

Bn., CRPF, the Disciplinary Authority, held the petitioner to be guilty of the charge framed against him and, therefore, imposed a punishment of

reversion to the rank of Naik for a period of two years with effect from 1st January, 1996. The Disciplinary Authority observed that the school

leaving certificate submitted at the time of enrolment to the respondent''s service stipulated the date of birth of the petitioner as 11th February,

1951, which was tampered with to read 11th February, 1950 in order to make up the deficiency in his age limit for the purpose of enlistment. As

per his actual date of birth, i.e. 11th February, 1951, he was not eligible for enlistment in CRPF on 27th April, 1968, since he was at that time

underage by about 9 months. In this regard, reliance was also placed on the verification report issued by the Head Master, Govt. High School

Patalander Distt., Hamirpur (H.P.) dated 7th June, 1994 wherein the actual date of birth of the petitioner was given as 11th February, 1951.

The petitioner, aggrieved by the order dated 25th December, 1995, preferred an appeal to the Deputy Inspector General of Police, CRPF

contending, inter alia, that at the time of his enlistment as a constable in the CRPF on 27th April 1968, he was a minor and that the tampering in the

date of birth in the education certificate was not effected by him, but instead could have been carried out by either his parents or his brother on

whom he was wholly dependant. He categorically asserted that the tampering with the date of birth was not in his handwriting, since he could

neither read nor write English, which is the language used in the said certificate. He further urged that his verification roll no. 1225 which was

received on 29th May, 1968 clearly showed that his date of birth is 11th February, 1950 instead of 11th February, 1951 and the fact that this

anomaly was not detected during the time of verification, cannot be a ground to make the petitioner liable for punishment after rendering 26 years

of unblemished service.

The Appellate Authority, the Deputy Inspector General of Police, CRPF, after considering the pleas and contentions of the petitioner and the

evidence on record, concluded on the guilt of the petitioner and dismissed the appeal by order dated 16th February, 1996 and upheld the

punishment imposed by the Disciplinary Authority.

Thereafter, the petitioner sought the review of the order dated 16th February 1996 and filed a Review Petition on 25th March, 1996 against the

punishment imposed on him. Meanwhile, respondent no. 5, Commandant 62 Bn., by order dated 2nd August, 1996 modified the punishment of

reversion to the rank of Naik for two years to that of dismissal from service with effect from 3rd August, 1996 under the provisions of Section

11(1) CRPC Act, 1949 read with Rule 27(a) of CRPF Rules, 1955. It was also stipulated that in view of the modification, the petitioner is

restored to his original rank of HC with effect from 1st January, 1996 and that he would be allowed to draw pay and allowances as per his

entitlement as HC with effect from 1st January, 1996 to the date of dismissal i.e. 3rd August, 1996.

Pursuant to the order dated 2nd August, 1996, the petitioner served a legal notice dated 28th August, 1996 on the respondents.

Consequently, the Deputy Inspector General of Police passed an order dated 2nd November, 1996 whereby the dismissal order dated 2nd

August, 1996 was set aside and it was observed that the Commandant, 52 Bn. instead of rectifying his order by modifying the word in the original

order of ""reversion"" to that of ""reduction"", inadvertently enhanced the punishment to dismissal from service which is in contravention of Rule 29 of

the CCS (CCA) Rules, 1965. Therefore, it was directed that the required correction of the word ""reversion"" to that of ""reduction"" ought to be

carried out in the original order of penalty.

Thereafter, a show cause notice dated 18th February, 1997 was issued to the petitioner, giving him an opportunity to make a representation

against the proposed punishment of dismissal from service in view of the charges framed against him which were proved during the enquiry. The

petitioner submitted his reply dated 12th March, 1997 to the show cause notice issued to him for enhancement of punishment to that of dismissal.

The Inspector General, ES. CRPF, the Reviewing Authority, after carefully considering the reply of the petitioner, the entire enquiry proceedings

and the evidence on record observed that as per sub rules of Rule 29 of the CRPF Rules, 1955, the competent authority while passing orders on a

revision petition can enhance the punishment after issuing a show cause notice to the delinquent after giving him an opportunity to represent against

the proposed punishment and that under the said provision or any other provision of the CRPF Rules, there is no time limit to pass orders on

revision petition or on review of a case. The Inspector General held that the petitioner was not eligible for the post of Constable at the time of his

enlistment and that since he had secured the job by tampering with his date of birth in the School leaving Certificate, he was guilty of the charge

framed against him and, therefore, it was directed that the petitioner could not be retained in the service and therefore he is to be dismissed from

service with effect from the date of the order i.e. 2nd May, 1997.

Aggrieved by the order of dismissal, the petitioner filed an appeal under Rule 29 (c) (11) of the CRPF Rules, 1955, to the Director General

against the enhancement of the punishment contending, inter alia, that the Inspector General had no power under the Rules to enhance the

punishment on his own motion, since the petitioner had submitted a review petition and not a revision petition, which had in any case stood

cancelled and withdrawn. It was also contended that the power of enhancing the punishment as per Rule 29 of the CCS (CCA) Rules, 1965 could

only be exercised within six months of the order proposed to be revised. Since the original order of punishment was passed by order dated 25th

December, 1995, the order of enhancement of the punishment passed by the Inspector General on 2nd May, 1997, after the expiry of 15 months,

is barred by time and is liable to be quashed.

The Director General, after considering facts and circumstances and rules and regulations, held that the charge was proved against the

petitioner and that he was not eligible at the time of enlistment and got himself enlisted on account of the false certificate submitted by him in order

to secure the appointment in CRPF. Therefore, the Director General, by order dated 16th January, 1998, dismissed the appeal and upheld the

punishment of dismissal from service imposed upon the petitioner.

Against the order dated 16th January, 1998, after exhausting all remedies available to him under the CRPF Act, the petitioner has approached

this Court invoking its writ jurisdiction. The petitioner has assailed the order dated 16th January, 1998 and has prayed for a writ of Mandamus

seeking direction to the respondents to reinstate him in the service with all consequential benefits on the ground that the proviso to Section 29(c) of

the CRPF Rules, 1955 read with the first proviso to Rule 29(1) of the CCS (CCA) Rules, 1965, under which the show cause notice for

enhancement of penalty was issued, specifically provides that notice of enhancement of punishment has to be given within six months of the date of

the order proposed to be revised. The order of penalty was imposed by the disciplinary authority by order dated 25th December, 1995 of

reversion to the rank of Naik on the petitioner whereas the show cause notice for the enhancement of the penalty to that of dismissal was issued on

18th February, 1997, and therefore, the enhancement of the punishment by the respondents is barred by limitation.

It was also contended that the petitioner had joined the services of the respondents'' in the year 1968 and at the time of his enlistment, he had

submitted certain documents to verify his age and other details. As per the counsel for the petitioner, Rule 14 of the CRPF Rules specifically

requires that the verification of the birth certificate has to be done as soon as the person is enrolled and that the verification in the present matter

was carried out in the year 1968 itself, however, no tampering was alleged at the time and therefore it is contended that the authorities ought to

have taken some action at that time if there was any evidence of tampering rather than issuing a charge sheet after 27 years of service. The learned

counsel for the petitioner further asserted that the tampering in the school certificate, as stipulated in the charge sheet, is wrong since the

petitioner''s stand from the very beginning has been that he hasn''t carried out any tampering and that the tampering, if any, may be attributable to

either his parents or his brother on whom he was wholly dependent at the time of his enlistment to the service.

The learned counsel for the petitioner also attempted to impress upon this Court that the date of birth of the petitioner is 1st February, 1950

itself and not 1st February, 1951 as alleged by the respondents and that he on his own has not carried out any tampering on the education

certificate, which he submitted at the time of the enrollment. It is also urged that by order dated 2nd November, 1996, the order of dismissal

passed on 25th December, 1995 had been withdrawn and the punishment of reduction in the rank was reiterated, therefore, the power of review

as well as that of revision of the petitioner had been exhausted and nothing remained pending with the authorities to entitle them to have passed

fresh orders of dismissal. Learned counsel also relied on the judgment of Angad Das Vs. Union of India (UOI) and Others, in support of her

submissions.

Per contra, the learned counsel for the respondents has contended that on completion of 25 years of service in the CRPF, the service record

of the petitioner was sent to the PAO, CRPF for verification of qualifying service by the ADIGP, GC, CRPF, Bhuvaneswar by letter no VI-5/94-

SR 52 dated 15th January, 1994. On checking the service record of the petitioner, it was noticed by the PAO, CRPF, that the date of birth of the

petitioner that was recorded in his school leaving certificate had been overwritten, therefore, a request was sent by letter No. VQS/GC/BBSR/94-

VQS-I dated 9th May, 1994 to verify the date of birth from the concerned school authority. Accordingly, the concerned school authority was

requested by the ADIGP, GC, CRPF, Bhuvaneshwar vide letter NO. V.I-5/94-SR-52 dated 26th May, 1994 to intimate whether the date of

birth of the petitioner i.e. 11th February, 1950 as recorded in the school leaving certificate is correct or otherwise. The principal of the concerned

school replied by letter dated 7th June, 1994 that the actual date of birth of the petitioner is 11th February, 1951 as per the school records and not

11th February, 1950. Pursuant to this clarification, a charge sheet was issued and a departmental enquiry was conducted, whereby the punishment

of reversion to the rank of Naik for the period of 2 years was imposed on the petitioner by order dated 25th December, 1995. Thereafter, an

appeal against the said order was preferred by the petitioner, which was however dismissed by the order dated 16th February, 1996.

The petitioner then availed the option of filing a revision petition dated 25th March, 1996 to the IGP-E/S CRPF, challenging the punishment of

reversion and the dismissal by the Appellate Authority. Meanwhile, the DIGP, CRPF, Bhuvaneshwar was informed by the IGP E/S CRPF,

Calcutta by his office letter No. R. VI-I/96-ES-Admn.I dated 1st May, 1996 that the punishment of reversion to the rank of Naik which was

imposed on the petitioner is not in consonance with the relevant Rules, since ""Reversion'' is not a penalty within the meaning of either Rule 27 of the

CRPF Rules, 1955 or Rule 11 of the CCS(CCA) Rules, 1965. It was further directed that the punishment imposed needs to be rectified in light of

the instructions contained in the GOI Decision No. 3 below Rule 29 of CCS(CCA) Rules, 1965 (Swamy''s Compilation of CCS (CCA) Rules-

corrected upto 1st March, 1983). Therefore, in light of the guidelines received, the Commandant 52 Bn. CRPF modified the punishment order of

reversion and awarded the punishment of dismissal on the petitioner by the order dated 2nd August, 1996. The said order also stipulated that it is

passed under the authority of the Office Memorandum No. 11012/7/91-Estt.(A) dated 19th May, 1993, which was produced by the learned

counsel before this Court and which categorically directed that whenever it is found that a Government servant, who was not qualified or eligible in

terms of the recruitment rules for initial recruitment in the service or had furnished false information or produced a false certificate in order to secure

appointment, such an employee should not be retained in the service and also that in case the said government servant becomes permanent then

he/she should be removed or dismissed from the service.

Thereafter, by order dated 2nd November, 1996 by the Dy. Inspector General of Police, CRPF, Bhuvaneshwar it was directed that the

original punishment of ""reversion'' was to be corrected to that of ""reduction'' to a lower rank and that instead the Commandant had inadvertently

issued the order of dismissal which was improper as it amounted to enhancement of punishment and that too without giving any show cause notice

and therefore it was to be set aside. Accordingly, the punishment of ""reversion'' was corrected to that of ""reduction'' to the rank of Naik for a

period of 2 years with effect from 1st January, 1996 by order dated 10th December, 1996. Therefore, the revision petition filed by the petitioner

which was kept pending in the Sector Office had been disposed of by the order dated 2nd November, 1996. Consequently, as per the learned

counsel for the petitioner on disposal of the revision petition, the IGP E/S, CRPF, Calcutta issued a show cause notice dated 18th February, 1997,

thereby giving the petitioner an opportunity to make his representation against the proposed enhancement of the punishment from reduction to the

lower rank of Naik to that of dismissal. After giving due opportunity to the petitioner, the Inspector General, CRPF, Calcutta passed the order

dated 2nd May, 1997 whereby the punishment was enhanced to dismissal from service with effect from the date of service of the order. Against

the order of enhancement, the petitioner sought an appeal dated 15th June 1997, however, the same was also dismissed by order dated 16th

January, 1998.

The learned counsel for the respondents contended that the order of enhancement is justified on the ground that the petitioner was not eligible

for the post of Constable at the time of his enlistment and that he had secured the job only by forgery and tampering his date of birth in his school

leaving certificate. Therefore, it was contended that he has no right to be retained in the services of the respondents. It was further pointed out that

the verification roll submitted by the petitioner at the time of his enlistment also showed the date of birth as 11.2.50 under the signatures of the

petitioner himself, instead of 11.2.51, which is his correct date of birth. Therefore, it was contended that the suppression of such factual information

and furnishing false certificate is clearly evident and thus cannot go unpunished. Learned counsel for the respondents also argued that the

punishment of dismissal imposed on the petitioner by order dated 2nd May, 1997 was in view of the binding instructions prescribed vide office

memorandum No. 11.12/7/91-Estt. (A) dated 19th May, 1993 which categorically stipulates that incase it is found that a Government Servant,

who was not qualified or eligible in terms of the recruitment rules, etc for initial recruitment in service or had furnished false information or produced

a false certificate in order to secure appointment, he/she should not be retained in the service. Learned counsel for the respondent also relied on the

judgment of Ex Const. Raghubir Singh v. CRPF & Ors. WPC No. 3321/1998 dated 27th July, 2011 and Ram Saran Vs. I.G. of Police, CRPF

and Others, .

This Court has heard the learned counsel for the parties in detail and has also perused the entire record. The first point for determination is

whether or not there has been any tampering of the school leaving certificate which was submitted by the petitioner at the time of his enlistment to

the services of the respondents. Though the counsel for the petitioner had contended that the plea of the petitioner is that there had not been any

tampering and even if there is any tampering, it is not by the petitioner. She contended that the charge sheet issued against the petitioner is wrong

on two counts. Firstly, there has been no tampering on the school leaving certificate by the petitioner which was submitted at the time of enlistment

and secondly the date of birth of the petitioner is 11.2.1950 and not 11.2.1951 as has been alleged by the respondents. Though this Court must

not re-appreciate the evidence adduced before the enquiry officer while exercising its writ jurisdiction unless the findings were based on no

evidence or ex-facie perverse, however, on perusing the record it is clearly evident that both the pleas raised by the petitioner are to be rejected. It

was the categorical plea of the petitioner himself, during the departmental enquiry as well as during the appeal against the punishment of reversion

to the rank of Naik and in the subsequent proceedings too, that he was a minor, his age being 17 years 2 months and 16 days at the time of his

enlistment as Constable in the CRPF on 27th April, 1968 and the certificate showing his date of birth was submitted by his parents or his brother.

Therefore, it cannot be contended by the petitioner that his date of birth is 11.2.1950 and not 11.2.1951. If his date of birth is 11.2.1950, he

wouldn''t have been a minor at the time of his enlistment and the petitioner would not have contended that he was a minor and the tampered

certificate was submitted by his parents or his brother. If the date of birth of the petitioner had been 11.2.1950, he would not have been minor at

the time of enlistment and there would not have been need for tampering the date of birth certificate submitted to the authorities.

Also, as per the verification of the date of birth done by the Principal of the petitioner''s concerned school by letter dated 7th June, 1994, the

date of birth had been verified to be 11.2.1951 according to the school records. The learned counsel for the petitioner has been unsuccessful in

showing anything to disprove or invalidate the verification by the Principal of the petitioner''s school. Therefore, the date of birth of the petitioner is

11.2.1951 and not 11.2.1950 as has been contended by the counsel for the petitioner.

The other plea in the facts and circumstances that there had not been any tampering in the certificate and in case there is tampering, the same

could not have been done by the petitioner also cannot be accepted. The tampering in the school leaving certificate has been accepted by the

petitioner in various pleadings. Rather, the petitioner has contended that tampering in the certificate was done either by his parents or his brother.

The petitioner is the beneficiary of tampering and it cannot be held that he was oblivious of the tampering and had not even given tacit approval,

even if it is inferred that tampering was done either by his parents or his brother. The disciplinary authority has inferred that the tampering must have

been done by the petitioner and in the facts and circumstances on the basis of evidence, this Court in exercise of its jurisdiction under Article 226

of the Constitution of India would not substitute the probable inferences of the disciplinary authority with its own inference, if it is contrary to the

inference of the disciplinary authority. In any case, these pleas were carefully considered by the Inspector General, the Reviewing Authority, while

issuing the order dated 2nd May, 1997 enhancing the punishment to that of dismissal from service. This Court does not find any such perversity or

illegality in the findings of the Reviewing Authority, holding that the petitioner is guilty of tampering with the school leaving certificate submitted by

him at the time of his enlistment in order to secure the post of Constable by unfair means.

The learned counsel for the petitioner has also assailed the order of enhancement of the punishment from reversion to that of dismissal from

service on the ground that the same is barred by limitation. According to the counsel, Ms.S.Janani, Advocate, Rule 29(c) of the CRPF Rules,

1955 read with Rule 29(1) of the CCS (CCA) Rules under which the show cause notice for enhancement of penalty was issued, specifically

provides that such a notice has to be given within six months of the order of penalty, which in the facts and circumstances was delayed, since while

the order dated 25th December, 1995 imposed the penalty of reversion to the rank of Naik on the petitioner, the show cause notice for the

enhancement of the penalty to that of dismissal was issued on 18th February, 1997. In the circumstances, it is urged that the enhancement of the

punishment by the respondents was barred by limitation and the order of enhanced punishment of dismissal from service is liable to be set aside.

The learned counsel for the respondent per contra has contended that there is no time limit prescribed under the CRPF Rules, 1955 and therefore,

the order of dismissal is not barred by limitation.

With regard to this plea of limitation for enhancement of sentence, it would be appropriate to consider the relevant provisions referred to by the

petitioner. 29. Revision: (CRPF Rule, 1955) (c) The next superior authority while passing orders on a revision petition may at its discretion

enhance punishment; Provided that before enhancing the punishment the accused shall be given an opportunity to show cause why his punishment

should not be enhanced

REVISION: (CCS (CCA) Rules, 1965)

1) Notwithstanding anything contained in these rules-

(i) the President; or

(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or

(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser

(Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the

Telecommunications Board; or

(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not

being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or

(v) the appellate authority, within six months of the date of the order proposed to be revised or

(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such

general or special order;

may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or

under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is

allowed, after consultation with the Commission where such consultation is necessary, and may-

(a) confirm, modify or set aside the order; or

(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or

(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may

consider proper in the circumstances of the case; or

(d) pass such other orders as it may deem fit:

Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has

been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the

penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties

specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an

inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such

consultation is necessary:

The time limit of six months is prescribed for the appellate authority when an appeal is not filed and the appellate authority exercises the power of

revisional authority under the CCS (CCA) Rules whereas no time limit is provided under the CRPF Rules for the revisional authority to enhance

the punishment. The revisional authority of the respondents, admittedly, did not exercise the powers as revisional authority on appeal being not filed

by the delinquent under the CCS (CCA) Rules. Appeal had been filed by the petitioner under the CRPF Rules and thereafter, revision had also

been filed under the CRPF Rules. In the circumstances, both the provisions of Section 29 in the CRPF Rules, 1955 as well as Section 29 of the

CCS(CCA)Rule, 1965 does not provide any limitation for exercising the revisionary powers by the Reviewing Authority nor any time limit for

enhancement of punishment. The plea of the petitioner that the enhancement of punishment was barred by limitation, therefore, cannot be accepted

and is rejected.

The sequence of events also reflects that there had not been any undue delay in enhancement of punishment though there is no limitation

provided under rules. On 25th December, 1995 the Commandant 52 Bn., CRPF, the Disciplinary Authority passed the order imposing the

punishment of reversion to the rank of Naik on the petitioner. The petitioner, thereafter, filed an appeal against the order of the Disciplinary

Authority on 17th January, 1996. By order dated 16th February, 1996 the said appeal was dismissed by the Deputy Inspector General of Police,

CRPF, the Appellate Authority. Aggrieved by the dismissal of the appeal, the petitioner filed a revision petition on 25th March, 1996 before the

Inspector General, the Reviewing Authority. During the pendency of the revision petition, on 2nd August, 1996 the Commandant 52 Bn., CRPF,

the Disciplinary Authority, modified the order dated 25th December, 1995 and imposed the punishment of dismissal from service. Since the said

order was wrongly passed as it amounted to enhancement of punishment without show cause notice to the petitioner, the same was rectified by the

order dated 2nd November, 1996 passed by the Deputy Inspector General, the Appellate Authority and ""reversion'' was corrected to ""reduction''

to the lower rank and the order dated 2nd August, 1996 was set aside. However, the order dated 2nd November, 1996 also categorically

stipulated that the legal aspect of the matter regarding irregular dismissal of the petitioner would be discussed at the time of disposal of petitioner''s

pending revision petition. Therefore, the order dated 2nd November, 1996 had not disposed of the revision petition filed by the petitioner, which

remained pending before the Inspector General. Therefore, the revisional Authority before whom the revision petition was pending was the

Competent Authority to issue the show cause notice dated 18th February, 1997 and thereafter, to impose the enhanced punishment of dismissal by

order dated 2nd May, 1997 after considering the reply to the show cause notice received from the petitioner. These facts clearly show that the

order of dismissal dated 2nd May, 1997 disposed of the revision petition and that it was passed in accordance with Rule 29 of the CRPF Rules,

1955 after issuing a show cause notice, and, therefore, after giving reasonable opportunity to the petitioner to defend himself against the

enhancement of punishment. The punishment of dismissal from service, therefore, cannot be held to be barred by limitation or passed after undue

delay. The earlier dismissal order dated 2nd August, 1996 passed by the disciplinary authority without giving any show cause notice had been set

aside.

Enhancement of the punishment from reversion to the rank of ""Naik'' to that of dismissal imposed by the Reviewing Authority is also in

accordance with the office memorandum dated 19th May, 1993. The said memorandum is under:

G.O.No. 49/93

No. 11012/7/91-Estt.(A)

GOI, Ministry of Personal, P.G.

& Pensions (Department of Personal

and Training)

----------------

New Delhi, the 19/5/93

OFFICE MEMORANDUM

Subject : Action against Government servants to be taken if they are later found ineligible or unqualified for their initial recruitment.

Attention of the Ministries/ Departments is invited to Ministry of Home Affairs O.M. No. 39/1/67-Estt.(A) dated 21.02.1967 wherein it was

clarified that departmental action can be taken against Government servant in respect of misconduct committed before his employment. Attention is

also invited to the Ministry of Home Affairs O.M. No. 5/1/63-Estt.(D) dated 30.04.1965 wherein Ministries/Departments were requested to

make use of the provision of ""warning"" inserted in the Attestation Form for taking action against Government servant furnishing false information at

the time of appointment.

A question has now arisen as to whether a Government servant can be discharged from service where it is discovered later that the Government

servant was not qualified or eligible for his initial recruitment in service. The Supreme Court in its judgment in the District Collector, Vizianagram

Vs. M. Tripura Sundari Devi [1990(4) SLR 237] went into this issue and observed as under: -

It must further be realised by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard

of the same, it is not a matter only between the appointing authority and the appointee concerned. The aggrieved are all those who had similar or

better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications

mentioned in the advertisement. It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is

clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice.

The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a

Government servant, who was not qualified or eligible in terms of the recruitment rules etc., for initial recruitment in service or had furnished false

information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a

temporary Govt. servant, he should be discharged or his services should be terminated.

If he has become a permanent Govt. servant, an enquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are

proved, the Government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed.

Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to

prosecute such Government servants.

Ministries/Departments are requested to bring the above, to the notice of all concerned for information and necessary action.

In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue in consultation with the Comptroller

and Auditor General of India.

Sd/-

(V.NATARAJAN)

Deputy Secretary To The

Govt. of India

The petitioner was a permanent employee and charges against him had been proved and, therefore, the punishment of dismissal imposed on him is

in consonance with the said order.

The learned counsel for the petitioner has also contended that the charge sheet after 27 years of service rendered by the petitioner is unjustified

and that as per Rule 14 proper verification ought to have been carried out as soon as the petitioner had enrolled with the respondents. The

Supreme Court in Ram Saran (supra) relied upon by the respondent in similar circumstances had upheld the imposition of punishment of dismissal

from service. In the instant case, the employee while applying for the appointment as a Constable in the ""CRPF'' had produced a certificate where

his date of birth was stated to be 1.1.1951. Later on it was revealed that his date of birth was 1.7.1951 and he was not eligible to be appointed as

he was less than 18 years of age. He had undisputedly rendered about 27 years of service. In these circumstances, departmental inquiry was

conducted against him. The Deputy Commandant 45/BN. CRPF was appointed as Inquiry Officer to conduct the Departmental Enquiry. The

Commandant (S.G.), the Disciplinary Authority, after considering the report was of the view that the charged official deserves stringent punishment,

but keeping in view his long service of 28 years with good grading for the past 10 years, he had taken a lenient view in purported exercise of

power u/s 11(1) of the Central Reserve Police Force Act, 1949 (in short the ''Act'') and Rule 27 of the Central Reserve Police Force Rules, 1955

(in short the ''Rules'') and had imposed penalty of reduction to the rank of NK (GD) for a period of one year from 10.9.1997 to 9.9.1998 without

cumulative effect. The matter was thereafter placed before the Deputy Inspector General of Police, C.R.P.F., Nagpur who by order dated

16.1.1998 differed from the proposed punishment and directed dismissal from service. Accordingly, notice was issued to the said employee and

after considering the reply the punishment of dismissal from service was awarded. The said order was challenged in appeal before the

Departmental Appellate Authority which was dismissed. Thereafter, the writ petition was filed which was also dismissed. It was pointed out that on

the basis of binding instructions contained in Government of India, Department of Personnel and Training, OM No. 11012/7/91 Estt. (A) dated

19.5.93 (G.O. No. 29/93) dismissal from service was the only punishment which could be awarded. In the said case, the plea as advanced by the

learned Counsel for the appellant was with regard to completion of 27 years of service. It was argued that the punishment was disproportionate to

the alleged infraction. The Apex Court in the said facts and circumstances made the following observations:

The Courts should not interfere with the administrator''s decision unless it was illogical or suffers from procedural impropriety or was shocking to

the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in (CA) Associated

Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) commonly known as Wednesbury''s

case the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its

decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. (See:

V. Ramana Vs. A.P.S.R.T.C. and Others, .

In R. Vishwanatha Pillai Vs. State of Kerala and Others, it was observed as follows:

It was then contended by Shri Ranjit Kumar, learned Senior Counsel for the appellant that since the appellant has rendered about 27 years of

service, the order of dismissal be substituted by an order of compulsory retirement or removal from service to protect the pensionary benefits of

the appellant. We do not find any substance in this submission as well. The rights to salary, pension and other service benefits are entirely statutory

in nature in public service. The appellant obtained the appointment against a post meant for a reserved candidate by producing a false caste

certificate and by playing a fraud. His appointment to the post was void and non est in the eye of the law. The right to salary or pension after

retirement flows from a valid and legal appointment. The consequential right of pension and monetary benefits can be given only if the appointment

was valid and legal. Such benefits cannot be given in a case where the appointment was found to have been obtained fraudulently and rested on a

false caste certificate. A person who entered the service by producing a false caste certificate and obtained appointment for the post meant for a

Scheduled Caste, thus depriving a genuine Scheduled Caste candidate of appointment to that post, does not deserve any sympathy or indulgence

of this Court. A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor

would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner. Equity

jurisdiction cannot be exercised in the case of a person who got the appointment on the basis of a false caste certificate by playing a fraud. No

sympathy and equitable consideration can come to his rescue. We are of the view that equity or compassion cannot be allowed to bend the arms

of law in a case where an individual acquired a status by practising fraud. Though the case related to a false caste certificate, the logic indicated

clearly applies to the present case.

This is a case which does not deserve any leniency otherwise it would be giving premium to a person who admittedly committed forgery. In the

instruction (G.O. No. 29/93), it has been provided that whenever it is found that a government servant who was not qualified or eligible in terms of

the recruitment rules etc. for initial recruitment in service or had furnished false information or produced a false certificate in order to secure

appointment should not be retained in service. After inquiry as provided in Rule 14 of the CCS(CCA) Rules, 1965 if the charges are proved, the

government servant should be removed or dismissed from service and under no circumstances any other penalty should be imposed.

Therefore, the facts of Ram Saran (supra) cannot be distinguished by the petitioner and it cannot be held that the order of dismissal passed by the

respondents suffers from any illegality, or such perversity which would require correction by this Court in exercise of its jurisdiction.

The precedent of Angad Das (supra) relied upon by the petitioner is distinguishable. In the said matter, the request letter of the employee for

re-employment was treated as an appeal by the DIG Police, CRPF, Avadi, Madras and the punishment of ""compulsory retirement"" as awarded by

the Commandant, 51 BN, CRPF, was enhanced to that of ""removal from service"" w.e.f. 31.5.1996. It was observed by the Apex Court that there

is no provision of law which permits the DIG to treat a letter of request for re-employment as an appeal, therefore, the order of compulsory

retirement was restored.

In the entirety of the facts and circumstances, no such illegality or perversity has been made out by the learned counsel for the petitioner, which

will entail any interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India against the order of the

respondents dismissing the petitioner from service.

The writ petition, in the facts and circumstances, is without any merit and it is, therefore, dismissed. No orders as to cost.