Vijai Kumar Yadav vs State Of U.P. And 3 Others

Manju Rani Chauhan, J

Heard Mr. Siddharth Khare, learned counsel for the petitioner, Mr. Shashi Prakash Singh, learned counsel for the respondent-BSA and Mr. Shailendra Singh, learned Standing Counsel for the State-respondents.

The writ petition has been filed with the following prayers:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 27.06.2019 passed by Basic Shiksha Adhikari, Mau.

(ii) Issue a writ, order or direction of suitable nature restraining the respondents from taking any action on the basis of the order impugned.

(iii) Issue a writ, order or direction of suitable nature commanding the respondents not to interfere in the working of the petitioner as Assistant Teacher under the respondents and to pay the petitioner his regular monthly salary on the said post regularly every month.

(iv) Issue any other suitable writ, order or direction which this Court may deem fit and proper under the facts and circumstances of the case."

Learned counsel for the petitioner submits that the petitioner possesses the requisite academic and professional qualifications for appointment to the post in question. It is contended that the petitioner passed the Purva Madhyama examination from Sampurnanand Sanskrit Vishwavidyalaya, Varanasi in the year 2001, and thereafter qualified the Uttar Madhyama examination conducted by the U.P. Secondary Sanskrit Education Board, Lucknow. Subsequently, the petitioner is stated to have obtained the Shastri degree from Sampurnanand Sanskrit Vishwavidyalaya in the year 2009.

On the strength of the aforesaid qualifications, it is further submitted that the petitioner was granted admission to the Basic Training Certificate (BTC) course in the year 2010, which he successfully completed. A BTC Training Certificate for the said session was duly awarded to him by the Examination Regulatory Authority, Uttar Pradesh, Allahabad.

It is also urged that the petitioner has qualified the U.P. Teacher Eligibility Test (TET), 2013, for the Primary Level, and thus fulfills all essential eligibility criteria prescribed for appointment as an Assistant Teacher.

Learned counsel for the petitioner further submits that the petitioner, being duly qualified and fully eligible in terms of the prescribed criteria, applied for consideration for appointment to the post of Assistant Teacher pursuant to the selection process initiated in the year 2013. The said selection pertained to appointments in Junior Basic Schools established and administered by the Board of Basic Education across various districts of the State, including District Mau. It is contended that the petitioner's candidature was duly considered in accordance with the applicable rules and procedure governing the said recruitment exercise.

Learned counsel for the petitioner further submits that, pursuant to the aforesaid selection process, the petitioner was duly selected and appointed to the post of Assistant Teacher vide appointment order dated 08.08.2014 issued by the Basic Shiksha Adhikari, Mau. It is contended that the petitioner, in compliance with the said appointment order, joined his duties forthwith and has since been discharging his functions diligently and to the full satisfaction of the respondent authorities, without any complaint or adverse remark.

Learned counsel for the petitioner further submits that one Rajesh Yadav submitted an application dated 18.10.2018 before the Basic Shiksha Adhikari, Mau, purportedly under the Right to Information Act, 2005, seeking supply of copies of the petitioner's educational qualification certificates and mark sheets on the basis of which he had been granted appointment.

It is contended that, notwithstanding the fact that the said application was not maintainable in law, the Additional Director of Education (Basic), by means of communication dated 26.03.2019, directed the petitioner to furnish copies of his educational qualification certificates.

In response to the aforesaid communication, the petitioner duly furnished self-attested copies of all his educational certificates along with a covering letter dated 30.05.2019.

It is submitted on behalf of the petitioner that the Basic Shiksha Adhikari, Mau issued a notice dated 15.05.2019, calling upon the petitioner to appear for a personal hearing on 30.05.2019 in connection with the alleged discrepancies in the certificates and mark sheet submitted by the petitioner on 30.04.2019.

In compliance with the aforesaid notice, the petitioner duly furnished a detailed reply dated 03.06.2019, addressing the allegations levelled therein.

On 27.06.2019, a further order came to be passed by the Basic Shiksha Adhikari, Mau, whereby the petitioner was purportedly dismissed from service, coupled with a direction for lodging of a First Information Report against him.

It is submitted on behalf of the petitioner that his admission to the BTC Training Course, 2010 was granted on the basis of duly obtained academic qualifications, namely, Purva Madhyama from Sampurnanand Sanskrit Vishwavidyalaya (2001), Uttar Madhyama from the U.P. Secondary Sanskrit Education Board, Lucknow, and Shastri degree (2009) from Sampurnanand Sanskrit Vishwavidyalaya.

It is further contended that none of the aforesaid certificates or mark sheets have ever been alleged to be forged, fabricated, or otherwise tainted with any discrepancy. Even the impugned order is conspicuously silent in this regard and does not record any adverse finding qua the genuineness of these foundational qualifications.

In such circumstances, the very substratum of the petitioner's eligibility and induction into the BTC Training Course remains unimpeached, and in the absence of any finding discrediting the said qualifications, the impugned action stands vitiated in law and is liable to be set aside.

It is submitted on behalf of the petitioner that the impugned order proceeds on an erroneous and wholly misconceived premise by placing reliance upon an alleged discrepancy in the date of birth recorded in a High School Certificate of the year 1998, wherein the date of birth is mentioned as 02.07.1984, as against the date recorded in the Purva Madhyama certificate as 07.07.1987.

It is vehemently contended that the aforesaid High School Certificate has neither been relied upon nor ever produced by the petitioner at any stage. The same was not utilized for seeking admission to the BTC Training Course, 2010, nor was it furnished at the time of appointment. No benefit, whatsoever, has been derived by the petitioner on the basis of the said certificate at any point in time.

In such circumstances, the reliance placed upon a document which neither forms part of the petitioner's record nor has been used by him for any official purpose is wholly unjustified and legally unsustainable. The impugned order, to the extent it is founded upon such extraneous and irrelevant consideration, stands vitiated in law and is liable to be set aside.

It is submitted on behalf of the petitioner that there is no allegation, much less any finding, that his appointment was procured by fraud or on the basis of any forged or fabricated mark sheet.

It is further contended that the petitioner's appointment is founded upon his Purva Madhyama qualification (2001), wherein his date of birth is recorded as 07.07.1987. On the strength of the said qualification, the petitioner duly pursued and obtained Uttar Madhyama and Shastri qualifications, thereafter successfully completed the BTC training in the year 2012 and qualified the U.P. Teacher Eligibility Test (UP-TET) in 2013.

It is emphatically urged that all the aforesaid certificates and mark sheets are genuine and have never been questioned or discredited by the respondents. In the absence of any allegation of fraud, misrepresentation, or fabrication, there existed no justifiable basis for passing the impugned order.

Accordingly, the impugned action, being arbitrary, unfounded, and contrary to settled principles of law, is liable to be set aside.

The petitioner has placed reliance upon the judgment rendered in Kavita Kuril vs. State of U.P. and others, reported in 2023 (12) ADJ 571, to contend that the date of birth recorded in the High School mark sheet is to be treated as final and determinative, and the same forms the basis for its entry in the service book.

Building upon the said proposition, it has been urged that the date of birth of the petitioner, as reflected in Purva Madhyama mark sheet of the year 2001, i.e., 07.07.1987, deserves to be accepted for all intents and purposes. It is, thus, submitted that once such date of birth has consistently formed the foundation of the petitioner's educational and service records, any discrepancy in other certificates cannot be made a ground to sustain the impugned order.

In essence, the argument advanced is that in the absence of any allegation of fraud or manipulation, and where the date of birth has been uniformly acted upon by the authorities themselves, the same attains finality and cannot be unsettled to the detriment of the petitioner. Consequently, the impugned action, being founded merely upon a variance in date of birth in different certificates, is liable to be held unsustainable in the eyes of law.

Placing reliance upon the judgments rendered in Sheoraj Singh vs. State of U.P. and others (Writ-A No. 35397 of 2012, decided on 27.08.2012) and Kamla Kant Yadav vs. State of U.P. and others (Writ-A No. 10431 of 2019, decided on 06.02.2023), learned counsel for the petitioner has endeavoured to contend that even in cases where there exists a discrepancy in the date of birth recorded in two High School mark sheets, such discrepancy by itself would not vitiate the appointment, provided the certificate relied upon for securing appointment is genuine and not tainted by fraud or fabrication.

He submits that, where a candidate has appeared in the High School examination more than once and different mark sheets reflect different dates of birth, the mere non-disclosure of one such mark sheet would not ipso facto amount to fraud or misconduct, so long as the mark sheet relied upon for appointment is a valid and genuine document. The Hon'ble Court, in the said cases, has clearly held that unless it is established that the certificate in question is forged or fabricated, or that the discrepancy has conferred an undue advantage upon the candidate, such as rendering him eligible despite being otherwise ineligible, the appointment cannot be annulled merely on the ground of variance in the date of birth.

He further submits that, where, on both the dates of birth, the candidate would not fall within the category of being underage or otherwise ineligible, the element of deceit or prejudice to the employer is conspicuously absent. In such circumstances, the act cannot be construed as misconduct warranting termination.

Learned counsel for the petitioner has further contended that the impugned order has been passed in complete disregard of the procedure prescribed under the Rules, 1999, inasmuch as no proper or detailed inquiry, as mandatorily required, has been conducted prior to taking the impugned action. It is urged that the absence of such an inquiry vitiates the entire decision-making process, rendering the impugned order wholly arbitrary and in flagrant violation of the principles of natural justice.

It has been further submitted that the educational certificate of Purva Madhyama issued by Sampooranand Sanskrit Vishwavidyalaya in the year 2001 continues to hold the field and has neither been cancelled nor declared invalid by any competent authority. On the strength of the said certificate, the petitioner has admittedly acquired further qualifications, namely Uttar Madhyama, Shastri degree, and has also secured admission to the BTC training course, all of which have been accepted by the concerned authorities at the relevant point of time.

In such circumstances, it is contended that once the foundational certificate remains intact and has been consistently acted upon by the respondents themselves, no adverse inference of fraud or misrepresentation can be drawn against the petitioner. The allegation of fraud, in the absence of any cogent material or a duly conducted inquiry culminating in a definitive finding, cannot be sustained in law.

Thus, it is urged that the impugned orders, having been passed without adherence to the prescribed procedure and in violation of the principles of natural justice, coupled with the absence of any legally sustainable finding of fraud, are liable to be set aside.

Per contra, learned counsel appearing for the respondent-District Basic Education Officer has submitted that the impugned action is fully justified and has been taken upon due consideration of the material brought on record during the course of inquiry.

It is contended that pursuant to a complaint dated 10.04.2019, an inquiry was instituted, culminating in a report dated 18.06.2019 submitted by the Inquiry Officer. As per the said report, the scholar register pertaining to Class VIII, bearing Registration No. 2188 of the session 1994-95, records that the petitioner passed Class VIII in the year 1996, wherein the date of birth is entered as 02.07.1984. Further, the application form submitted by the petitioner for admission to Class IX in National Inter College also reflects the date of birth as 02.07.1984. It is further pointed out that the High School records, including the relevant gazette notification, similarly indicate the date of birth of the petitioner as 02.07.1984.

On the strength of the aforesaid material, it is argued that the petitioner was fully aware of the earlier recorded date of birth, yet deliberately withheld the said information and instead relied upon the Purva Madhyama certificate reflecting a different date of birth. Such non-disclosure, according to the respondents, is not a mere discrepancy but a conscious suppression of material facts, which goes to the root of the matter.

It is thus submitted that the act of the petitioner in seeking appointment on the basis of a certificate reflecting a different date of birth, without disclosing the existence of prior records to the contrary, clearly amounts to misconduct. The element of deliberate concealment disentitles the petitioner from any equitable relief under writ jurisdiction.

In view thereof, it is urged that the impugned orders, having been passed on the basis of a duly conducted inquiry and supported by documentary evidence, do not suffer from any illegality or infirmity warranting interference by this Court.

Learned counsel for the respondent further contends that it is a settled proposition of law that in cases involving concealment of material facts or fraud, the requirement of conducting a detailed inquiry or affording an elaborate opportunity of hearing stands considerably diluted. It is urged that where the foundational facts are borne out from undisputed documentary evidence, the principles of natural justice cannot be stretched to an extent so as to defeat the ends of justice.

It has been further submitted that, notwithstanding the aforesaid legal position, the petitioner was, in fact, afforded adequate opportunities to explain his stand. As is evident from the impugned order itself, repeated notices were issued calling upon the petitioner to furnish an explanation with regard to the non- disclosure of earlier certificates reflecting a different date of birth. However, the petitioner failed to furnish any plausible or satisfactory explanation for such non-disclosure.

In such circumstances, it is contended that the plea of violation of principles of natural justice is wholly misconceived and untenable. The conduct of the petitioner, in deliberately withholding material information despite being afforded sufficient opportunity, clearly disentitles him from invoking the equitable jurisdiction of this Court.

Accordingly, it is urged that the impugned order, having been passed after due consideration of the available material and after affording reasonable opportunity to the petitioner, does not suffer from any procedural impropriety or legal infirmity warranting interference.

Heard learned counsel for the parties at considerable length and perused the entire material available on record.

At the outset, this Court is constrained to observe that the edifice of the respondents' case rests upon the solitary circumstance of a divergence in the dates of birth as reflected in different educational records of the petitioner. However, a mere discrepancy, bereft of any attendant element of deceit, cannot, by any judicially accepted standard, be elevated to the pedestal of fraud or wilful misrepresentation.

Fraud, it is trite, is not to be presumed; it must be pleaded with specificity and established by cogent and unimpeachable evidence. The record, in the present case, is conspicuously silent on any material which may evince a deliberate design on the part of the petitioner to secure an undue or unwarranted advantage by projecting a particular date of birth. The certificates relied upon by the petitioner are not alleged to be forged, fabricated, or spurious; rather, they are documents issued by competent authorities and continue to subsist in the eyes of law.

The gravamen of the allegation is non-disclosure of certain earlier certificates reflecting a different date of birth. Yet, non-disclosure, to assume the character of misconduct, must be shown to be purposeful, calculated, and actuated by a discernible intent to deceive. In the absence of such mens rea, the omission remains, at best, an irregularity and not a culpable act warranting the drastic consequence of annulment of appointment.

What further dislodges the respondents' case is the incontrovertible position that, even if the date of birth as recorded in the High School certificate is accepted, the petitioner would nonetheless remain within the bounds of eligibility for appointment to the post in question. Thus, the foundational requirement of gain or advantage an indispensable concomitant of fraud is wholly absent. The alleged discrepancy, therefore, does not translate into any prejudice either to the employer or to competing candidates.

This Court cannot remain oblivious to the well-settled judicial pronouncements in Sheoraj Singh (supra), wherein it has been unequivocally held that mere variance in dates of birth across certificates, in the absence of forgery or demonstrable advantage, does not ipso facto constitute misconduct. The ratio laid down therein lends authoritative support to the proposition that authenticity of the document and absence of undue benefit are determinative factors.

However, upon a careful consideration of the present factual matrix, this Court finds that the applicability of the aforesaid judgments is contingent upon certain foundational facts being satisfied. The protection extended in the said cases is predicated upon the existence of two genuine High School mark sheets issued by the same examining body, coupled with the absence of any allegation of fraud and absence of any consequential advantage gained by the candidate.

If, in the present case, the discrepancy pertains not merely to two High School certificates but extends to different classes of certificates, or where the foundational document forming the basis of appointment itself is under a cloud, the ratio of the aforesaid judgments may not be attracted in its full rigour.

Nevertheless, if it is demonstrated that the petitioner has relied upon a bona fide and genuine certificate, that no element of forgery or fabrication is involved, and that irrespective of the differing dates of birth the petitioner remained eligible for appointment, then the principle laid down in the aforesaid judgments would lend considerable support to the petitioner's case.

Thus, the issue is not merely of discrepancy in date of birth, but of the nature of the document relied upon, the existence or absence of fraudulent intent, and the question whether any undue advantage has been derived. The answer to these factors would ultimately determine the applicability of the law laid down in the aforesaid decisions.

However, the matter does not end merely upon noticing non-disclosure. The Court is equally bound to examine whether such omission has, in fact, resulted in any prejudice to the employer or conferred any undue advantage upon the petitioner. In the present case, it is not in dispute that both the certificates relied upon by the parties are genuine and issued by competent authorities, and there is no allegation of fabrication or manipulation. More importantly, the difference in the dates of birth reflected therein has not been shown to have afforded any advantage to the petitioner, either in terms of eligibility, age relaxation, or otherwise.

It is well settled that while suppression of a material fact may, in given circumstances, vitiate an appointment, such principle cannot be applied in a mechanical or pedantic manner. The doctrine of proportionality and the requirement of absence of prejudice must guide the exercise of judicial review. Where the discrepancy is neither deliberate so as to secure an unfair benefit nor has it resulted in distortion of the selection process, the extreme consequence of cancellation of appointment would be wholly disproportionate.

In the considered opinion of this Court, the omission on the part of the petitioner to disclose the earlier certificate, though not to be appreciated, does not rise to the level of a culpable suppression so as to invalidate the appointment, particularly when no tangible advantage has accrued and the selection process remains unaffected. To visit the petitioner with the drastic consequence of termination in such circumstances would be unjust and inequitable.

Accordingly, this Court holds that the impugned action of the respondents in cancelling the appointment of the petitioner cannot be sustained in the eyes of law and is liable to be set aside. The writ petition, therefore, deserves to be allowed.

The ratio decidendi of the judgment rendered in Kavita Kuril vs. State of U.P. and others, 2023 (12) ADJ 571, is that the date of birth recorded in the High School certificate is to be treated as the primary and conclusive proof of age, particularly when the same has been consistently relied upon by the authorities for the purposes of service records. The Court, in the said case, held that once the date of birth has been duly entered in the service book on the basis of such foundational document and there is no allegation of fraud, misrepresentation, or fabrication, the same cannot be lightly altered or disregarded on the basis of discrepancies in other educational certificates.

Applying the aforesaid principle to the facts of the present case, this Court finds that the reliance placed by the petitioner upon the said judgment is of limited assistance. The distinguishing feature lies in the nature of the certificates in question. In the case at hand, the petitioner seeks to place primacy not on the High School certificate, but on the Madhyama and Purva Madhyama mark sheets of the year 2001, to assert the date of birth as 07.07.1987.

It is trite that the High School certificate, being the earliest public document issued by a recognized Board, ordinarily carries greater evidentiary value in determination of date of birth. The ratio in Kavita Kuril (supra) is premised upon this very principle. However, in the present factual matrix, the petitioner has not demonstrated that the said date of birth, as claimed, is borne out from the High School certificate or that the same formed the basis of initial entry in service records without dispute.

Moreover, where there exists a discrepancy in foundational documents themselves, the matter assumes a different complexion. In such a situation, the benefit of the principle laid down in the aforesaid judgment cannot be extended in a mechanical manner, particularly when the authenticity and primacy of the document relied upon by the petitioner is itself in question.

Accordingly, this Court is of the considered opinion that the ratio of the judgment in Kavita Kuril (supra), though well-settled, does not squarely apply to the facts of the present case, and the petitioner cannot derive any substantial benefit therefrom.

Tested on the anvil of the aforesaid principles, the impugned action of the respondents appears to be founded more on suspicion than on substantiated proof. The inference of fraud, which entails grave civil consequences, cannot be drawn on the basis of equivocal circumstances or mere inconsistencies in record, howsoever inconvenient they may appear.

In sum, this Court is of the considered and unequivocal opinion that the respondents have failed to establish any element of fraud, misrepresentation, or deliberate concealment on the part of the petitioner. The discrepancy in the date of birth, in the factual conspectus of the present case, does not rise to the level of culpability so as to justify the extreme measure of cancellation of appointment.

An analogous issue fell for consideration before this Court in Ashok Kumar Singh vs. State of U.P. and others (Writ-A No. 1064 of 2021, decided on 22.07.2024), wherein the appointment of the petitioner therein came to be annulled on the premise that he had submitted a B.Ed. mark sheet, which, though not an essential qualification for the post of Assistant Teacher, was only of a preferential nature. The learned Single Judge, upon finding that the petitioner had failed to furnish any plausible explanation despite due opportunity, proceeded to hold that the submission of such mark sheet amounted to securing public employment on the basis of a false document, thereby rendering the initial appointment void ab initio.

However, the aforesaid judgment was carried in appeal, and the Division Bench, in Special Appeal No. 987 of 2024, decided on 25.02.2025, set aside the order of the learned Single Judge. While the Division Bench observed that the reasoning adopted by the learned Single Judge was, in abstraction, well-founded, it nonetheless proceeded to hold that the foundational element of fraud was not substantiated on the facts of the case.

The Division Bench, in a nuanced and legally calibrated exposition, held that mere submission of a higher or additional qualification, which is neither essential nor shown to have been relied upon by the selection committee in conferring appointment, would not ipso facto establish fraud. It was further observed that the records did not demonstrate that the petitioner had secured any undue advantage on account of the B.Ed. qualification, nor was there any material to indicate that such qualification was manipulated or fabricated.

The Court emphasized that fraud, being a serious imputation carrying grave civil consequences, must be predicated upon clear evidence of deception coupled with resultant gain. In absence of any such demonstrable nexus between the alleged misrepresentation and the conferment of appointment, the charge of fraud was held to be unsustainable.

The ratio which unmistakably emanates from the aforesaid Division Bench judgment is that unless it is shown that the alleged misrepresentation had a direct bearing on the selection process or conferred a tangible advantage upon the candidate, the extreme consequence of nullifying the appointment cannot be justified. Mere possession or disclosure of an additional qualification, particularly when it is neither essential nor acted upon, would not, in itself, vitiate the appointment.

The principle enunciated therein squarely fortifies the proposition that the sine qua non for sustaining an allegation of fraud is not merely the existence of an irregularity, but the presence of a deliberate design to secure an advantage which materially impacts the selection. In absence thereof, the action of the authorities in branding the appointment as void would not withstand judicial scrutiny.

So far as the issue pertaining to the discrepancy in the date of birth is concerned, and the question as to which certificate ought to be accorded primacy for the purposes of recording the date of birth, this Court finds that the same does not arise for substantive adjudication in the present lis.

A perusal of the impugned order reveals that no categorical or definitive finding has been recorded by the competent authority to the effect that the petitioner had deliberately relied upon the Madhyama certificate in substitution of the earlier High School certificate with a view to secure any undue benefit. There is a conspicuous absence of any conclusion that such reliance was actuated by a calculated intent to mislead or to gain an advantage in the matter of appointment.

In the absence of any such foundational finding, the mere existence of variance in the date of birth across different certificates pales into insignificance. The controversy, therefore, remains largely academic and does not have a determinative bearing on the core issue involved in the present case.

It is a settled principle that Courts do not adjudicate upon abstract or hypothetical questions which do not directly impact the lis. Since the respondents themselves have not returned any finding attributing motive or advantage to the petitioner on account of the alleged discrepancy, this Court finds no occasion to enter into an elaborate examination of the said issue.

Accordingly, no further observations are warranted on the aforesaid aspect.

In view of the aforesaid discussion, and upon an overall conspectus of the facts and the legal position governing the field, this Court finds that there is no categorical or substantiated allegation to the effect that the educational documents furnished by the petitioner before the respondents were forged, fabricated, or otherwise false in nature.

In absence of any such foundational infirmity, coupled with the consideration of the relevant statutory provisions and the authoritative pronouncements relied upon by learned counsel for the petitioner, the impugned action cannot be sustained in the eyes of law.

Accordingly, the writ petition deserves to be allowed, and is hereby, allowed.

The impugned order dated 27.06.2019, passed by the Basic Shiksha Adhikari, Mau, is hereby quashed.

The respondents are directed to permit the petitioner to resume/join his duties forthwith.

It is, however, made clear that since no interim order was operating in favour of the petitioner during the pendency of the writ petition, and the petitioner has admittedly not discharged any duties for the intervening period, he shall not be entitled to claim salary for the said period, in consonance with the well-settled principle of "no work, no pay."

It is further provided that in the event any of the documents, on the basis of which the petitioner has sought to sustain his claim, are subsequently found to be false, fabricated, or otherwise not genuine, it shall be open to the respondents to initiate appropriate proceedings against the petitioner, strictly in accordance with law.