Sushil Kumar Tyagi vs State of U.P. and Others

A.P. Sahi, J.—This is a peculiar case of an official, who was at the time of the passing of the impugned orders working as an Assistant Sub-Inspector (Ministerial) in the office of the Deputy Inspector General of Police, Provincial Armed Constabulary, Meerut.

The Petitioner''s father was in the police service of the State of Uttar Pradesh, who died in harness on 20th November. 1977. The Petitioner''s younger brother Muniraj Tyagi was appointed as a Constable on 18th April, 1979, who is now presently working in the State of Uttaranchal after the bifurcation of the State.

The Petitioner was appointed as a Constable in the ministerial cadre on 17th June, 1997. A copy of the letter of appointment is on record, which recites that the Petitioner is being appointed alongwith two other constables on the pay scale assigned therein.

This appointment of the Petitioner was admittedly on compassionate basis on account of his father having died in harness. The Petitioner was subsequently promoted as Assistant Sub-Inspector (Ministerial) and was working as such when his salary came to be stopped vide order dated 31st July, 2006.

From the records and after having perused the affidavits exchanged between the parties, it appears that upon directions issued in Civil Misc. Writ Petition No. 11505 of 2006, Avnish Kumar v. State of U.P. and Ors., which were general in nature, the appointments on compassionate basis in the department were being reviewed on the ground that some of these appointments had been obtained fraudulently. The allegations were that either they were no such employees who had died in harness or the claim of compassionate appointments were based on fake certificates. The Petitioner appears to have made representations upon which an enquiry was further conducted by two Circle Officers namely Sri Avnish Kumar Mishra dated 20.10.2006 and Sri Virendra Singh dated 2.8.2006, which is on the record as Annexure-5 to the writ petition. These report indicates that there is no evidence in relation to the nature of the appointment of the Petitioner''s younger brother Muniraj Tyagi made in the year 1979 namely as to whether it was by direct recruitment or on compassionate basis. In the absence of any such proof, the opinion expressed by the authority was that there was no material available to conclude that the Petitioner''s younger brother Muniraj Tyagi was appointed on compassionate basis. Accordingly, this part of the investigation as to whether the Petitioner had obtained employment on compassionate basis by concealing the nature of appointment of his younger brother Muniraj Tyagi did not bear any result.

The Petitioner''s younger brother Muniraj Tyagi had already been transferred to the State of Uttaranchal as indicated above.

The second round of investigation appears to have commenced when the Petitioner upon not having received his salary, he filed Civil Misc. Writ Petition No. 66782 of 2006, Sushil Kumar Tyagi v. State of U.P. and Ors., in which a direction was issued to the Deputy Inspector General of Police (Establishment) P.H.Q., U.P. at Allahabad to take a final decision with regard to the claim of the Petitioner. The Petitioner received a show cause notice from the Deputy Inspector General of Police, P.A.C., Moradabad Region, Morabad dated 28th May. 2007. This notice recites that according to the educational certificates submitted by the Petitioner, namely the High School certificate, the Petitioner''s date of birth recorded is 1.7.1966 whereas the pension papers submitted by the mother of the Petitioner indicates the date of birth as 27.12.1954. This date of birth has been categorically entered in Form-H filled up by Smt. Chaman Kali wife of late Sheo Raj Singh. Not only this, while submission of the said documents, the police verification also indicated the name of the Petitioner at serial number three in the following order:

Kushum Raj Tyagi (Dead).

Raja Ram Tyagi.

Sushil Kumar Tyagi (Petitioner)

Vinod Tyagi

Muniraj Tyagi (Petitioner''s younger brother working in the State of Uttaranchal)

The verification report indicates the date of birth of the Petitioner as 1.7.1955 and that of his younger brother Muniraj Tyagi as 1.7.1961. The Petitioner''s mother in her application had also indicated the age of the Petitioner as 22 years and that of his younger brother Muniraj Tyagi as 17 years.

On being confronted with the facts in the show cause notice, the Petitioner filed a reply stating that the dates entered in the pension papers are erroneous and he pointed out the error. He took the example of the age difference between his two brothers whose dates of birth were entered as 4.12.1951 and 9.1.1952 namely Kusum Raj Tyagi and Ram Raj Tyagi respectively. The Petitioner submitted that it was impossible that two brothers were borne within a span of one month and, therefore, the entry made in the pension papers were wrong. He contended that his real date of birth is of 1st July, 1966. Alternatively it was urged that even if there was an error in recording the date of birth in the High School certificate, the said entry was not on any deliberate mistake on the part of the Petitioner. He submits that the Petitioner was a minor at the time when he was admitted in school by his guardians including his elder brother, and if they had committed an error in getting a wrong date of birth recorded, the same cannot be a ground to treat this as a misconduct on the part of the Petitioner.

The Petitioner had appeared in High School on two occasions and he passed his High School in 1984 with Roll No. 1233087 and the date of birth recorded therein is 1st July, 1966. He passed his Intermediate examination in 1977 with Roll No. 395621, which also indicates the same date of birth. The Petitioner submits that the aforesaid date of birth as recorded in the High School records is final and the same has neither been altered nor any complaint has been made to the Board of High School and Intermediate Examination, Uttar Pradesh in that regard. He further contends that when the Petitioner appeared in the High School examination in 1984 with his date of birth as 1.7.1966 there was no intention or any possibility of hoping that the Petitioner would get employment after 13 years in 1997 on the basis of such date of birth. It is, therefore, urged that the Petitioner cannot be presumed to have any intention much less a mens rea to get a wrong date of birth recorded in his High School certificate.

The argument raised by the learned Counsel for the Petitioner is that if the date of birth is considered to be erroneous then it is an error of the parents or the guardian and no deliberate intention can be assigned or attributed to the Petitioner.

The logic of the aforesaid argument is that the Petitioner had no intention to avail of any benefit after 13 years of having passed the High School for which he would have intended to commit such an alleged deliberate mistake. This argument has been developed to contend that in the absence of any wrongful intention on the part of the Petitioner, having been located in the circumstances indicated above, the conclusion drawn by the authority to dismiss the Petitioner from service on the ground of serious misconduct, is unfounded.

During the pendency of the writ petition, the Petitioner filed an amendment application, which has been allowed, vide order dated 25.9.2007. Alongwith amendment application, the Petitioner filed a copy of the show cause notice dated 27.7.2007 and the copy of the order dated 3.9.2007 whereby the Deputy Inspector General of Police (P.A.C.). Meerut Region, Meerut who has cancelled the appointment and selection of the Petitioner and has directed that the name of the Petitioner be struck of from the rolls. The said findings on all the issues, which have been raised hereinabove, and all the objections raised by the Petitioner, have been assessed.

I have considered the submissions raised and perused the impugned order as also the counter-affidavits filed on behalf of the Respondents.

Learned standing counsel submits that all the aforesaid arguments are unavailable to the Petitioner, inasmuch as, it cannot be believed that the Petitioner, who is the elder brother would be born five years after the younger brother. He further submits that the authority has recorded its findings after dealing with every aspect of the matter and has rightly come to the conclusion that the appointment obtained by the Petitioner was an exercise which tantamounts to a fraudulent transaction and fraud vitiates the most solemn proceedings. This Court should therefore not interfere with the order impugned herein.

In rejoinder learned Counsel for the Petitioner submits that even if it is assumed that the Petitioner was born five years earlier to his younger brother Muniraj Tyagi, in that event also at the best, the Petitioner would be liable for being retired treating his date of birth of the year 1961 as indicated in the pension papers or otherwise, and it is only his date of retirement which could have been altered without dismissing from service.

So far as the first question that has to be addressed is with regard to the nature of enquiry against the Petitioner. It is no doubt true that the Petitioner has been removed from service after almost 10 years of his employment. His initial appointment admittedly was on compassionate basis. It is this enquiry which proceeded and it was found that the younger brother of the Petitioner Muniraj Tyagi, who had been appointed in 1979 was found to have been appointed on the strength of a letter of appointment which does not indicate that as to whether it was on compassionate basis or a direct recruitment. The only inference which was drawn by the authority was it was a direct recruitment as there was no material available to infer that he was given compassionate appointment.

The contention raised by the Petitioner is that even though he was the elder brother yet he availed of the opportunities of education later in life. Such a situation may be possible and a person always has a right to improve his educational qualifications. This, however, does not mean that the date of birth entered in the High School records of the Petitioner was conclusive and final. It is no doubt true that the Correction of Date of Birth Rules do not permit any correction after a lapse of a particular period of time. In this case, however, the circumstances are different.

The allegation is that this incorrect date of birth as indicated in the High School certificate is impossible. In my opinion, the parents are the best persons who can indicate the approximate or correct date of birth of their children. The Respondents-authorities have relied on the declaration made by the mother of the Petitioner in her pension papers. In view of this, declaration made by the mother of the Petitioner as noted above, and in view of the fact that Muniraj Tyagi is undisputedly the younger brother of the Petitioner, the inference drawn in the impugned orders cannot be said to be perverse and based on no material. The Petitioner did not produce any witness to contradict the said declaration of age by his mother.

At the same time, the date of birth recorded in the High School certificate has also not been altered but in view of the circumstances indicated above, the authorities have arrived at a finding that the Petitioner has succeeded in getting employment on the basis of a wrong date of birth. Even otherwise the benefit of compassionate appointment after 20 years of the death of the employee also raises a serious suspicion about the manner or procedure adopted for the Petitioner''s appointment.

On the basis of such material, the Petitioner has been dismissed from service. The circumstances discussed in the impugned order with regard to the status of the Petitioner being the elder brother of Muniraj Tyagi and a comparison of the dates of birth of his other brothers, which has not been contradicted by any unimpeachable evidence, this Court does not find any adequate ground to set aside the decision of the authorities in cancelling the appointment of the Petitioner.

Accordingly, there is no merit in the writ petition, the same is dismissed.