Vijay Kumar Singh vs State Of U.P. And Others
2011 Latest Caselaw 4290 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

''Reserved'
 

 
 Civil Misc. Writ Petition No. 46796 of 2007
 
Vijay Kumar Singh
 
Versus
 
State of U. P. and others
 
Hon'ble Krishna Murari, J.

Heard Sri Vijay Gautam, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

By means of this petition, the petitioner has challenged the order dated 31.08.2007 passed by the Senior Superintendent of Police, Jhansi dismissing him from service. The petitioner was recruited and appointed as a Constable in civil Police on 26.6.2005. After completing the training, he was posted as Constable at district Jhansi on 26.06.2006. In the month of June, 2007 he was transferred from Civil Police to Armed Police.

The Director General of Police, U. P., Lucknow vide its confidential letter dated 26.09.2007 issued directions for reviewing the entire selection on some alleged irregularities being detected in holding the said selection. The Senior Superintendent of Police in pursuance of the aforesaid direction reviewed the entire selection and the deliberations in interview, physical verification, educational qualification, date of birth, health certificate and caste certificate etc. were re-examined and reverified.

With regard to petitioner, it was found that High School Certificate which was produced/filed by him along with the application form certifying that he passed the High School Examination conducted by the U. P. Board of High School & Intermediate in 2004 from Sri Girand Singh Uchchtar Madhyamik Vidyalaya, Lohramod, Iradatnagar as a private student mentioned his date of birth as 1.1.1984. On reverification, Senior Superintendent of Police, Agra vide letter dated 2.8.2007 informed that petitioner was already having a resident in Kasba Iradatnagar, Agra and he studied in Sarvajanki Inter College, Iradatnagar, Agra as a regular student from 1988 to 1991 wherein his date of birth was recorded as 1.1.1971 and passed High School in III Division as a regular student from Dr. Karan Singh Tyagi Inter College, Rahlai, Agra and since he had become over-age, he again appear in High School Examination as a private student in 2004 mentioning his date of birth as 1.1.1984. This alleged act of the petitioner was taken as furnishing certificate showing his date of birth as incorrect at the time of recruitment. The Senior Superintendent of Police found that in such a situation, the petitioner appeared in High School examination for the second time concealing his actual date of birth and at the time of appointment he was over-age and thus ineligible and cancelled the candidature, selection and appointment of the petitioner.

Counter affidavit filed by the State makes a curious and interesting reading regarding the date of birth mentioned in the High School Certificate of the petitioner. In paragraph 4, it has been stated that on verification, the Secretary, Madhyamik Shiksha Parishad, Meerut vide letter dated 6.8.2007 informed that the certificate submitted by the petitioner is genuine whereas the report submitted by the Senior Superintendent of Police, Agra goes to show that he appeared in the High School examination for the second time showing his date of birth as 1.1.1984 whereas in the earlier occasion when he passed High School examination as regular student, his date of birth was recorded as 1.7.1997. The material on which conclusion has been drawn by the Senior Superintendent of Police, Agra in his letter has not been brought on record nor it finds mention in the verification report submitted by him. It may be relevant to quote paragraph 4 of the counter affidavit :

"4. That the contents of paragraph no. 2 of the writ petition are not correct hence denied. In reply thereto it is submitted that at the time of recruitment the petitioner submitted the educational certificate and after verifications the Secretary, Madhyamik Shiksha Parishad, Meerut office by letter dated 06.08.2007 informed that the certificate which was submitted by the petitioner is genuine and report submitted by the Senior Superintendent of Police, Agra by letter no. PVR 715/07 dated 02.08.2007 in which it has been mentioned that earlier the petitioner was student of Shri Sarvjanik Inter College, Agra and in the said institution the petitioner was passed 8th Class in the year 1991 and in the school register the date of birth is recorded as 01.07.1997 thereafter the petitioner was passed High School (regular) in the year 1994 from Dr. Karna Singh Tyagi Inter College Rahlai, Agra and this fact is not disclosed by the petitioner in his affidavit which was submitted by the petitioner at the time of recruitment and concealed the material facts and the petitioner was recruited on the basis of subsequent High School passed certificate which was completed by the petitioner in which date of birth of the petitioner is mentioned as 01.01.1984 the difference about the date of birth are 6 years 4 months and it appears that the petitioner wilfully concealed the material facts for obtaining the appointment under the Police Force by making forgery therefore the authority has rightly cancelled the service of the petitioner by order dated 31.08.2007. A photo copy of the report dated 02.08.2007 is being filed herewith and marked as Annexure CA ''1' to this counter affidavit."

The averments are self contradictory. U. P. Board certified that the High School certificate submitted by the petitioner was genuine whereas without any basis the Senior Superintendent of Police submitted a report that he appeared in the High School examination for the second time wherein he wrongly disclosed his date of birth as 1.1.1984. It is also to be taken note of that petitioner in paragraphs 14, 15, 16 and 17 of the writ petition has categorically stated that he has taken education from 1999 to 2001 from Shri Radhya Krishna Ekikrt Vidhyalaya Badanpur, Karkha, Firozabad and passed his Class VI examination in the year 1999, Class VII in 2000 and Class VIII in 2001 and the date of birth of the petitioner in the mark-sheet issued for Junior High School examination 1999 is mentioned as 1.1.1984. In support, the true copy of the mark-sheet and Transfer Certificate has been filed as Annexure ''2'. Similarly in paragraphs 15 and 16 of the writ petition, it has been stated that the petitioner studied in 2002 from Thakur Tej Singh Inter College, Agra and passed Class IX examination in 2002 and he appeared in the High School examination in 2004 from Shri G. S. HSS Luhenta Mod, Agra as a regular candidate and his date of birth in the certificate is recorded as 1.1.1984.

Again in paragraph 17 of the writ petition, it has been categorically mentioned by the petitioner that on enquiry he came to know that some person Vijay Singh Yadav was a student of Dr. Karan Singh Tyagi Inter College, Rehali, Agra who passed his High School examination in 1994 as a regular student and in support of the contention a certificate issued by the Principal of the Institution has been filed as Annexure ''4' to the writ petition. Interestingly, the categorical averments made by the petitioner in paragraphs 14 to 17 of the writ petition, referred to above, have not been specifically and categorically denied. In reply to the contents of paragraphs 14 and 15 of the writ petition, it has been mentioned that they are not admitted hence denied and in reply thereto it is submitted that the correct facts have already been given in the preceding paragraph. Similarly in respect of paragraphs 16 and 17 of the writ petition, it has been stated in paragraph 9 of the counter affidavit that the contents of paragraph nos. 16 to 27 of the writ petition are not admitted hence denied and in reply thereto, it is submitted that by enquiry report it is proved that the petitioner concealed the material facts and not disclosing this fact in the affidavit which was filed by the petitioner at the time of recruitment and itself proved that he passed the High School twice. In paragraph 4 of the counter affidavit, the factum of enquiry report submitted by the Senior Superintendent of Police, Agra has been mentioned but it also fails to specify the specific material on which the conclusions were drawn in the report.

Since the specific averment has been made by the petitioner that he never studied in Sri Sarvajanik Inter College, Agra and never appeared in the High School Examination in 1994 from Dr. Karan Singh Tyagi Inter College, Rahlai, Agra and it was some student by the name of Vijay Singh Yadav who passed High School from Dr. Karan Singh Tyagi Inter College, Rahlai, Agra in 1994 and the same has not been denied by the respondents in the counter affidavit nor verification report submitted by the Senior Superintendent of Police, Agra discloses the material on which it has been based. It appears that it was a case of mistaken identity and the report with respect to Vijay Singh Yadav were taken to be that in respect of petitioner and his appointment has been cancelled on the basis of the same.

The verification report submitted by the Senior Superintendent of Police, Agra apparently not being in respect of the petitioner, there was no other material before the Senior Superintendent of Police, Jhansi to reach to the conclusion that the petitioner appeared in the High School examination twice and obtained appointment on the basis of wrong date of birth mentioned in the subsequent High School certificate obtained by him.

Apart from above, the petitioner was selected as a Constable and completed his training and joined the service. The principle of natural justice embodied under Articles 14, 16 and 311 of the Constitution of India obliges that services of civil servant shall not be dispensed with without giving him an opportunity of hearing. It is admitted case between the parties that prior to cancellation of the candidature and selection of the petitioner, no notice or opportunity of hearing was provided. The Hon'ble Apex Court in the case of Chandra Prakash Shahi Vs. State of u. p. & others [(2000) 5 SCC 152] has held that such an order amounts to dismissal, therefore, notice and opportunity was necessary. The Apex Court has further held that notice is also required under Para 541 of the Police Regulations.

Admittedly, the petitioner had been given appointment and he was working on the post. If a person is working on the post a civil right accrues and notice and opportunity is necessary. Thus, the order impugned in this petition is in gross violation of principle of natural justice. Further as there is no compliance of Regulation 541 (2) of the Police Regulation as such also the impugned order passed by the respondent authority is not sustainable in law.

For the aforesaid reasons, the impugned order dated 31.8.2007 passed by the Senior Superintendent of Police, Jhansi (Annexure ''1' to the writ petition) is not sustainable in law and is hereby quashed. Writ petition stands allowed. The petitioner shall be entitled for reinstatement in service with all consequential benefits.

However, in the facts and circumstances, there shall be no order as to costs.

Date : September 2nd, 2011

Dcs.