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Allahabad High Court · body

2012 DIGILAW 187 (ALL)

PRAMOD KUMAR v. STATE OF U. P.

2012-01-19

RAN VIJAI SINGH

body2012
Hon'ble Ran Vijai Singh,J.: The petitioner, through this writ petition has prayed for issuing a writ of certiorari quashing the order dated 25.09.2007 passed by Superintendent of Police Baghpat by which he has cancelled the selection of the petitioner as recruit constable. From the perusal of the impugned order, it transpires that the selection has been cancelled on the ground that the petitioner has shown his date of birth while entering into the service as 05.07.1986, which later on, after verification from the college was found as 02.08.1977 and therefore, in view of the declaration made to the effect that if during the verification any false declaration is found, the service shall be terminated without any notice. The aforesaid order has been challenged on the ground that before passing the said order, no opportunity of hearing was given to the petitioner and had the opportunity was given, the petitioner would have been able to explain the situation. The petitioner is still pressing that his real date of birth is 05.07.1986 and not 02.08.1977. A counter affidavit has been filed in which it is stated that the petitioner namely Pramod Kumar S/o Sri Amar Singh has passed High School some where in between 1990-1992 from Sri Kisan Vidyapeeth Inter College Dalipur, Auraiya and passed Intermediate examination in the year 1998 from Rastriya Inter College Udarkot and again in the year 2005 has passed the High School examination after reducing the date of birth from Sant M.S.Madhyamik Vidyalaya, Phool Sahai Nagar ( Barauni Kalan) District Auraiya which fact has been revealed during the verification. I have heard learned counsel for the petitioner and learned Standing Counsel. The petitioner has brought on record the High School certificate. According to him, he has passed High School examination in the year 2005 with Roll No. 1318375 and there the date of birth is recorded as 05.07.1986. The petitioner has entered into the service on the basis of High School certificate. It appears that some complaint has been made and on that basis an exparte inquiry was conducted by the Superintendent of Police and on the basis of aforesaid exparte inquiry report, petitioner's service has been terminated. The petitioner has entered into the service on the basis of High School certificate. It appears that some complaint has been made and on that basis an exparte inquiry was conducted by the Superintendent of Police and on the basis of aforesaid exparte inquiry report, petitioner's service has been terminated. It is not in dispute when the services of the petitioner was terminated, he was holding a post under the government and was government servant, as such the date of birth of the government servant is to be determined on the basis of the Uttar Pradesh Recruitment to Services Determination of Date of Birth Rules, 1974 ( herein after referred to as 1974 Rule). For better appreciation the relevant Rule 2 of the 1974 Rule as amended by first amendment in the year 1980 is reproduced below by splitting it into three parts. ( a) The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service. ( b) Where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the 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, ( c ) No application or representation shall be entertained for correction of such date or age in any circumstances whatsoever. The aforesaid rules provide that for determination of the date of birth if an employee entered into the government service after passing high school examination then the date of birth as recorded in the High School certificate shall be deemed to be correct and if he has entered into the service before passing the High School examination then the date of birth recorded in the service book shall be deemed to be correct. The deeming provisions is a legal friction provided under the aforesaid rules, meaning thereby even if the same is not the actual one even then in view of legal friction that will be deemed to be correct. The deeming provisions is a legal friction provided under the aforesaid rules, meaning thereby even if the same is not the actual one even then in view of legal friction that will be deemed to be correct. Here it is not in dispute that the petitioner has entered into service after passing High School, therefore, for the purpose of determination of date of birth, the date of birth as recorded in the service book shall be treated to be correct for all purposes unless that is cancelled or annulled either by the Board or by the competent court. Here in the present case on a complaint of private individual the High School certificate which is the sheet anchor of the petitioner's case has been ignored on the ground that the petitioner has earlier passed High School Examination and he has played fraud not only on the department but also on the Board. Suffice it to say, where any action is taken on the basis of fraud then in that eventuality mere allegations of fraud is not sufficient for taking action against a person unless it is pleaded and proved. I am of the view that once the authorities have come to the conclusion that the petitioner has second time appeared in the High School Examination with a view to get reduce his date of birth and passed High School in the year 2005 then certainly it was a case of fraud but for that it was to be somewhere pleaded and proved either by way of lodging criminal proceeding or through disciplinary proceeding under the Rules governing the petitioner service. It is not the case of respondent that High School certificate issued to the petitioner has either been cancelled or annulled by the Board or any other competent court. Therefore, I am of the view that as long as High School certificate issued in the year 2005 is there, the respondents were not justified to cancel the selection of the petitioner on the assumption that he has passed High School in the year 1992, particularly in the circumstances where the petitioner has come with specific case as stated in paragraph 2 of the supplementary rejoinder affidavit that there were two persons of the same name i.e. Promod Kumar of the same parentage one belonging to Sharma and another Yadav by caste. The petitioner belongs to Yadav by caste. The petitioner belongs to Yadav by caste. In that eventuality also this was a case for inquiry and had the petitioner was ever offered an opportunity of hearing before passing the impugned order, this aspect of the matter ought to have been explained and considered before reaching the conclusion that the petitioner has played prayed fraud. I find that the impugned order has vice of principle of natural justice and it is well settled law that an order which involves civil consequences must be just, fair, reasonable, unarbitrary and in confirmity with the principles of natural justice. The main aim of the principle of natural justice is to secure justice or to put it negatively to prevent miscarriage of the justice. The Apex Court in the case of State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284 ; AIR 1952 SC 75 : 1952 Crl.L.J. 510; per majority, a seven judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution. In State of Orissa v Dr. ( Miss) Binapani Dei, ( 1967) 2 SCR 625 ; AIR 1967 SC 1269 ; ( 1967) 2 LLJ 266 . It is observed that even an administrative order which involves civil consequences must be made consistently with the rules of natural justice. The person concerned must be informed of the case, the evidence in support thereof supplied and must be given a fair opportunity to meet the case before an adverse decision is taken. Since no such opportunity was given it was held that superannuation was in violation of principles of natural justice. In Mohinder Singh Gill v. Chief Election Commissioner, ( 1978) 1 SCC 405 ; the Constitution Bench held that 'civil consequences' covers infraction of not merely property or personal right but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotation everything that affects a citizen in his civil life inflicts a civil consequence. In Maneka Gandhi Vs. Union of India( 1978)1 SCC 248; another Bench of seven judges held that the substantive and procedural laws and action taken under them will have to pass the test under article 14. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The test of reasons and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority whichhas the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirement of natural justice. The law must therefore be now taken to be well settled that procedure prescribed for depriving a person of livelihood must meet the challenge of Article 14 and such law would be liable to be tested on the anvil of Article 14 and the procedure prescribed by a statute or statutory rule or rules or orders affecting the civil right or result in civil consequences would have to answer the requirement of Article 14. So it must be right, just and fair and not arbitrary, fanciful or oppressive. There can be no distinction between a quasi-judicial function and an administrative function for the purpose of principles of natural justice. The aim of both administrative inquiry as well as the quasi judicial inquiry is to arrive at a just decision and if a rule or natural justice is calculated to secure justice or to put in negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable only to quasi- judicial inquiry and not to administrative inquiry. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. It must logically apply to both. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable. The Apex Court in the case of D.K.Yadav Vs. J.M.A. Industries Ltd. Reported in 1993,SCC 259 has made the following observations: The cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. It is not so much to act judicially but is to act fairly, namely, the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. In other words application of the principles of natural justice that no man should be condemned unheard intends to prevent the authority from acting arbitrarily effecting the rights of the concerned person. It is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case. An order involving civil consequences must be made consistently with the rules of natural justice. Same view has been reiterated in the cases of Canara Bank Vs. V.K. Awasthy, 2005 ( 6) SCC 321 ; Bidhannagar ( Salt Lake) Welfare Assn. Vs. Central Valuation Board and others, ( 2007) 6 SCC 668 ; and Devdutt Vs. Union of India and others, 2008 ( 3) ESC 433 ( SC). Same view has been reiterated in the cases of Canara Bank Vs. V.K. Awasthy, 2005 ( 6) SCC 321 ; Bidhannagar ( Salt Lake) Welfare Assn. Vs. Central Valuation Board and others, ( 2007) 6 SCC 668 ; and Devdutt Vs. Union of India and others, 2008 ( 3) ESC 433 ( SC). The basic idea of observing the principles of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The aforesaid decisions still hold field and have been followed in numerous cases, decided thereafter, which need not to be detailed here. In view of the foregoing discussions the writ petition succeeds and is allowed The impugned order dated 25.09.2007 passed by Superintendent of Police Baghpat is hereby quashed. The respondents are directed to reinstate the petitioner forthwith in service. It is also provided that this order will not preclude the respondents to pass fresh order in accordance with law. It is also clarified that the petitioner shall be entitled only current salary and the payment of back wages will depend on the fate of the inquiry, if any. In case the department do not hold any inquiry the petitioner shall be entitled only 50% of the back wages. It is further provided the final decision in this regard be taken by the department expeditiously preferably within six months from the date of receipt of certified copy of the order of this Court.