Ran Vijay Singh vs State of UP

Surendra Vikram Singh Rathore, J.—By means of this petition the petitioner prays for issuing a writ in the nature certiorari for quashing the order dated 29.6.2007 passed by opposite party no. 2, Director General of Police, U.P., Lucknow whereby he was dismissed from the post of police constable.

In brief the case of the petitioner is that he was selected and appointed as constable in the year 2005 and thereafter he was transferred to different police stations. Vide order dated 29.6.2007 the Director General of Police directed for the verification of the documents and certificates of all selected candidates. In compliance of the said order the school certificates of the petitioner were verified and it was reported by the S.O. that the date of birth of the petitioner was 1.5.1981 while the petitioner had mentioned his date of birth as 1.5.1984 and on the basis of this alleged misrepresentation in the application form, his services were terminated by the impugned order.

It is argued on behalf of the petitioner that he had worked for more than two and half years and till then there was nothing against him and all of a sudden his services were terminated without any valid inquiry and without giving any opportunity of hearing. It is further submitted that he correctly mentioned his date of birth as 1.5.1984. The petitioner has filed the photostat copy of High School Mark-sheet for the year 2001 in which his date of birth has been mentioned as 1.5.1984. High School certificate has also been filed relating to High School Examination of the year 2001 in which his date of birth is mentioned as 1.5.1984. He has also filed a certificate to the effect that he belongs to O.B.C. Category and on this ground it is argued that since he belongs to O.B.C. Category, therefore, relaxation of age was permissible to him accordingly even if his age is taken to be 1.5.1981 he was within the prescribed age for his appointment on the said post.

It is argued on behalf of the opposite party that the services of the petitioner were not terminated on the ground that he was not within the prescribed age limit but on the ground that he has mentioned false date of birth and has also filed forged certificate and mark sheet which were, in verification, found to be not correct. He had also on two earlier occasions appeared in High School Examination in which his date of birth was mentioned as 1.5.1981. It is further argued that a criminal case for fabrication of the documents bearing case crime No. 473 of 2008 P.S. Fatehgarh, District Farrukhabad under Sections 419, 420, 467, 468 IPC has been registered against him.

In reply to this allegation it is submitted that in the said criminal case vide order dated 1.12.2010 passed in Criminal Misc. Writ Petition No. 31901 of 2010 his arrest has been stayed by the High Court.

Learned counsel for the petitioner has placed reliance on the U.P. Retirement Service (Determination of Date of Birth) Rules 1974 effective from 28th May, 1974. These rules have been framed by the State Government in exercise of powers under Article 309 of the Constitution. Rule 3 and 4 of the said rule read as under:

The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a Government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into Government service, shall be deemed to be his correct date of birth or age, as the case may be for all purposes in relation to his service including eligibility for promotion, superannuation, premature retirement or retirement benefits and no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever.

Rule 4 said rule read as under:

These Rules shall have effect, notwithstanding anything contrary contained in the relevant service rules or orders.

On the basis of the above rules it is argued that the date of birth as mentioned in the service record of the petitioner is 1.5.1984 has to be taken as true for all purposes. It is further argued that the petitioner has filed his high school certificate in which his date of birth is mentioned as 1.5.1984 and, therefore, without verifying the said high school certificate, and without giving an opportunity of hearing to the petitioner, opposite parties have acted only on the report of the Principal submitted by S.O. This act of the opposite party is arbitrary and against natural justice. It is further submitted that as per rule 3 the age mentioned in the High School certificate where candidate has passed the High School certificate shall be his date of birth.

Learned counsel for the opposite parties has vehemently argued that the petitioner had fabricated the date of birth in the documents on the basis of which he got the job and, therefore, he was rightly terminated on the ground of concealment of material facts in his application form.

This is not simple a case of misrepresentation or fabrication or concealment of facts. The petitioner in his application form mentioned his date of birth as 1.5.1984. He has filed his high school and also certificates of High school examination 2001 wherein his date of birth has been mentioned as Ist May, 1984. When the documents were verified by the police then a report by the Principal of Javahar Lal Nehru Inter College, Fatehpur 84, District Unnao dated 18.7.2007 was given wherein it was reported that "Ran Vijay Singh Son of Balveer Singh R/o Village Khwajagipur, P.S. Fatehpur-84, District-Unnao had appeared in the High School examination in the year 1997-98 and 1998-99 and was failed in the said examination. The date of birth as per the college record was 1.5.1981".

From the record it appears that the petitioner appeared in the High School Examination as a private student from Bhewan High School Bhewan Kanpur Dehat in the year 2001 and in the Intermediate Examination in the year 2003 from J.L.N.I.C. Fatehpur Chaurasi Unnao as a regular candidate. But the date of birth recorded in the intermediate examination was not reported by the principal of the said school.

A Division Bench of this Court in the case of Virendra Singh Vs. State of U.P. and another, has interpreted the aforementioned rule as follows:

A perusal of the above Rules shows that the legal position is settled, namely, that if a person has passed High School examination when he entered in service, then the date of birth recorded in the High School certificate shall be treated as correct, and when he had not passed High School, then the date of birth recorded in his service book at the time of his entry in Government service shall be deemed to be his correct date of birth and no application or representation shall be entertained for correction of such date of birth in any circumstances. This Rule has overriding effect over any other existing Rule.

It is no where the case of the opposite parties that the high school certificate filed by the petitioner was fabricated or forged. It was not even got verified by the concerned issuing authority i.e. Board of High School and Intermediate Education, U.P. It is nowhere the case of the opposite party that there is any other high school certificate in which any other date of birth was mentioned. In the High School certificate, on the basis of which the petitioner had filed application form, his date of birth was mentioned as 1.5.1984.

Without further inquiry into the matter and without ensuring whether the said High School certificate was forged or fabricated the opposite parties took action on the report of the Station House Officer who submitted his report only on the basis of the report of the Principal of the school. A perusal of the record establishes that the petitioner had not appeared in the High School Examination in the year 2001 from the said school.

Therefore, unless and until it is established that the High School certificate filed by the petitioner was fake, forged or fabricated or was not issued by the issuing authority till then the date of birth mentioned in the high school certificate was to be taken to be true in view of the rules mentioned above. But without verifying this fact the impugned order terminating the services of the petitioner was passed. The said act of the opposite parties is arbitrary and against the principal of natural justice.

In the case of Constable 618/946 C.P. Rajvir Singh v. State of U.P. 2 UPLBEC 1673 (2010) the High School certificate filed by the petitioner was found to be forged and the services of the petitioner were terminated without giving any opportunity of hearing and no notice was ever given to him before passing the order of his termination of his service and on that ground the court allowed the writ petition and direction was issued to reinstate the petitioner in service. The only difference in that case was that the petitioner had completed 17 years of service while in the case in hand the petitioner had completed 2 and 1/2 years of service but that does not make any difference because the petitioner stands on a better footing.

Learned counsel for the opposite party placed reliance on the pronouncement of this Court in the case of Nirmala Devi and others v. State of U.P. and others (1997) 2 UPLBEC 977. In this case the petitioners had not passed the B.T.C. Examination and certificates furnished by them were found to be forged. The argument of the petitioners in that case was that before cancelling the appointment of the petitioners, they were neither heard nor they were associated in the enquiries conducted. Since that was the case of fraud, therefore, the petitioners were not granted any relief. Reliance has also been placed by the counsel for the opposite parties on the pronouncement of the Apex Court in the case of A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, in which it was held that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and nonest in the eye of the law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. Reliance has also been placed on the pronouncement of the Apex Court in the case of State of Manipur and Others Vs. Y. Token Singh and Others, . The facts of that case were also entirely different. In this case forged appointment offers were produced. The Apex Court was of the view that State cannot be compelled to pay salaries to such appointees. Reliance has also been placed on the pronouncement in the case of Union of India (UOI) Vs. Dattatray Mendhekar and Others, . In this case the Apex Court held that when a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment.

In all the cases relied upon the learned counsel for the opposite party there were established facts that forged certificates were filed but in the facts of the case in hand there is nothing on record to establish or to indicate that the High School certificate for the examination of 2001 filed by the petitioner was fake or forged. Therefore, this case stands on a different footing and the opposite parties cannot get any benefit of the aforementioned case law unless and until they establish that the high school certificate filed by the petitioner was forged and fake one and it was not issued by the authorities concerned.

Therefore, the impugned order dated 17.12.2007 deserves to be quashed and is accordingly quashed.

The petitioner shall be reinstated in service and it shall be open to the opposite parties to make a fresh inquiry giving opportunity of hearing to the petitioner and there after the opposite party shall be free to take decision in accordance with law and rule quoted above. This exercise shall be completed preferably within a period of three months. So far as the question of his salary for the period during which the petitioner remained out of job shall be subject to the final outcome of the enquiry.

With the aforesaid observation, the writ petition is finally disposed of.