Smt. Geeta Devi vs State Of U.P. Thru. Prin. Secy. Bal ...
2023 Latest Caselaw 7446 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 2
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 110 of 2023
 
Appellant :- Smt. Geeta Devi
 
Respondent :- State Of U.P. Thru. Prin. Secy. Bal Vikas Seva Evam Pushtahar Civil Secrt. U.P. Lko. And Others
 
Counsel for Appellant :- Dadu Ram Shukla (D.R. Shukla ),Manoj Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Devendra Kumar Upadhyaya,J.

Hon'ble Om Prakash Shukla,J.

Heard Shri D. R. Shukla, learned counsel representing the appellant-petitioner and Ms. Isha Mittal, learned Standing Counsel representing the State-respondents.

Under challenge in this petition special appeal filed under Chapter XIII rule 5 of the Rules of the Court is the order dated 23.09.2021 passed by the learned Single Judge whereby the writ petition no.21607 (S/S) of 2021 has been dismissed.

We may note that by instituting the proceedings of writ petition no.21607 (S/S) of 2021 the appellant-petitioner had challenged the order dated 16.08.2021 passed by the District Programme Officer, District-Gonda cancelling her appointment on the ground that she, while filling up her application form for appointment to the post in question, had indicated wrong date of birth and as such she committed forgery.

Before adverting to the rival submissions made by the learned counsel representing the respective parties, we may note certain facts which are necessary for appropriate adjudication of the issue involved in this case. An advertisement was issued on 05.07.2007 for appointment against a single vacancy on the post of Aaganvadi Karyakartri pursuant to which the appellant-petitioner made her application. The minimum age for reckoning the eligibility for appointment to the post in question was between 21 to 45 years in terms of the relevant Government Order, which governs the recruitment on the post of Aaganvadi Karyakartris. While filling up her application form, she indicated her date of birth to be 04.07.1967. It is also worthwhile to notice that it is not only that in her application she indicated her date of birth as 04.07.1967 but also filed a marks-sheet wherein her date of birth mentioned was the same i.e. 04.07.1967.

On receipt of some complaint, the authorities got the date of birth verified from the Principal of the Institution from where the appellant-petitioner had received education. The Principal of the said institution submitted his report on 01.07.2021 stating therein that in fact the date of birth of the appellant-petitioner is 04.07.1962 and not 04.07.1967. On receipt of the said report, three show cause notices were issued to the appellant-petitioner requiring her to furnish her explanation as to why her appointment may not be cancelled for the reason that she had committed forgery while submitting her application form for appointment to the post in question inasmuch as she had indicated that her date of birth to be 04.07.1967 whereas as per the school record her date of birth was 04.07.1962. The appellant-petitioner responded to one of the show cause notices and furnished her reply on 28.07.2021 stating therein that the said discrepancy/mistake had occurred on account of misprint which had resulted because the photostat machine from where she got the photostat copies of the documents was not in order. The appellant-petitioner further stated in her explanation that she did not commit any deliberate mistake. Considering the entire matter and also taking into account the reply submitted by the appellant-petitioner to the show cause notice, the District Programme Officer passed an order on 16.08.2021 stating therein that the explanation submitted by the appellant-petitioner was not found satisfactory and further making a mention of the report submitted by the Principal of the Institution wherein the Principal had stated that date of birth of the appellant-petitioner is 04.07.1962 as per the original record available in the institution and not 04.07.1967. Thus, the District Programme Officer by passing the said order dated 16.08.2021 cancelled the appointment of the appellant-petitioner and also passed an order for recovery of honorarium paid to her. It is this order dated 16.08.2021 that was challenged by the appellant-petitioner while instituting proceedings of the writ petition no.21607 (S/S) of 2021 which had been dismissed by the learned Single Judge by the order dated 23.09.2021 and the same is under challenge before us in this case.

We have given our anxious thought to the submissions made by the learned counsel for the respective parties and have also perused the records available before us on this special appeal.

Learned counsel representing the appellant-petitioner has submitted that in fact the appellant-petitioner has fallen prey to the nefarious design of the complainant who on account of envy had lodged the complaint and played a game against the appellant-petitioner which has resulted in order of cancellation of her appointment. It has also been argued by the learned counsel for the appellant-petitioner that the order dated 16.08.2021 casts stigma against the appellant-petitioner and as such a full fledged enquiry was required to be conducted in the matter before the order cancelling her appointment could be passed.

Shri Shukla, learned counsel representing the appellant-petitioner further states that the order passed by the District Programme Officer, Gonda, in fact, is a blemish on the appellant and further that the District Programme Officer has presumed fraud and malice on the part of the appellant-petitioner which cannot be sustained for the reason that malice or fraud has to be proved to the hilt and merely on account of such presumption no such decision could have been taken by the District Programme Officer. It has also been argued that as a matter of fact the cancellation of appointment can be done by the authority concerned only after holding exhaustive enquiry and not otherwise.

The sum and substance of the argument of the learned counsel for the appellant-petitioner is that the District Programme Officer while passing the order cancelling the appointment of the appellant-petitioner has completely ignored the well settled principle of natural justice and by not conducting an exhaustive enquiry into the issue, has passed the order which cannot be sustained.

On the other hand, learned State Counsel, Ms. Isha Mittal, has submitted that even on the date of advertisement dated 05.07.2007 her actual date of birth i.e. 04.07.1962 is taken to be correct the appellant-petitioner was not eligible for the reason that she was 45 years and one day old which in terms of the provisions contained in the relevant Government Order dis-entitled her to participate in the selection. It is her submission, accordingly, that there was an occasion for the appellant-petitioner to have furnished the incorrect information regarding her date of birth and in this view of the matter the District Programme Officer has not committed any illegality while passing the order cancelling her appointment. Her further submission is that as a matter of fact the submission made by the learned counsel for the appellant petitioner that principles of natural justice in this case were not followed prior to passing of the order of cancellation of appointment, is incorrect factually as well for the reason that before passing the order not one but three show cause notices were issued to the appellant-petitioner requiring her to furnish her explanation.

Learned State counsel has further stated that the appellant-petitioner responded to the second and third show cause notices and hence adequate opportunity of hearing was given to her which goes on to show that the District Programme Officer while passing the order cancelling the appointment has strictly followed the principles of natural justice. It has also been argued that in a matter where forged documents or incorrect information is furnished or any misrepresentation is made while seeking appointment, there is no requirement of conducting full fledged enquiry. Even otherwise her submission is that verification of the date of birth indicated by the appellant-petitioner in her application form was got done from the Principle of the institution from where she had received education who in his report dated 01.07.2021 had clearly indicated that date of birth of the appellant-petitioner was 04.07.1962 as per school record and not 04.07.1967.

In the aforesaid view of the matter submission is that special appeal lacks merit which is liable to be dismissed at its threshold.

From the rival submissions made by the learned counsel appearing on behalf of the parties and also on a perusal of the order dated 16.08.2021 cancelling the appointment of the appellant-petitioner what we find is that it is not only that the appellant-petitioner had furnished wrong information about her date of birth in the application form inasmuch as that instead of 04.07.1962 she indicated her date of birth as 04.07.1967 but also that the marks-sheet filed in support of the said information relating to her date of birth contained the incorrect information in the application form where her date of birth was mentioned as 04.07.1967 and not her correct date of birth. We also notice that it is not denied by the appellant-petitioner that her actual date of birth is 04.07.1962 and in this view of the matter what we find is that on the date of advertisement dated 05.07.2007 she perhaps was not eligible having crossed the age of 45 years for being considered for appointment to the post in question which might have caused the occasion for her to have furnished the incorrect information and forged document in the shape of marks-sheet which contained date of birth to be 04.07.1967 and not 04.07.1962.

As regards the submissions made by the learned counsel representing the appellant-petitioner regarding want of observance of the principle of natural justice, from the records available before us it is abundantly clear that the appellant-petitioner was given three show cause notices and in respect of two such notices she had responded and submitted that the mistake had occurred on account of the fact that photostat machine was not in order. We could have probably understood the said explanation furnished by the appellant-petitioner, in case the alleged mistake existed only in one document i.e. in her application form, however, what we notice is that the marks-sheet which was submitted along with the application form also contained incorrect date of birth.

Thus, having regard to the aforesaid facts, we are of the opinion that the attending circumstances of the present case clearly establish the mala fide on the part of the appellant-petitioner to have furnished wrong information not only in her application form but also in the marks-sheet submitted by her in support of her date of birth.

Nothing has been submitted by the appellant-petitioner in her reply to the show cause notice regarding the report submitted by the Principal of the institution dated 01.07.2021 wherein he has clearly indicated that as per the record of the institution her date of birth is 04.07.1962 and not 04.07.1967.

Learned counsel for the appellant has cited the judgment of Hon'ble Supreme court in the case of S. L. Kapoor vs. Jagmohan and others, reported in AIR 1981 SC 136 to press his argument that if any order has been passed in violation of principle of natural justice, the same cannot be sustained.

So far as the law enunciated by the Hon'ble Supreme Court in the aforesaid case of S. L. Kapoor (supra) is concerned there cannot be any quarrel, however, we have already noticed above that in this case appropriate opportunity was afforded to the appellant-petitioner and hence the said judgment does not have any application to the facts of the present case.

Learned counsel for the appellant next cited the judgment in the case of Indra Bahadur Lal vs. State of U.P. and others, reported in 1992 LCD 420 wherein it has been held that in certain circumstances entry relating to date of birth in the service record of a government employee may be corrected. We are in respectful agreement with the said law laid down by this Court in the case of Indra Bahadur Lal (supra). However, no such situation in this case has arisen. Learned counsel for the appellant petitioner has further relied on yet another judgment in the case of Munna Lal vs. Director Handicap Welfare Department, Lucknow and others, reported in [2006 (24) LCD 675] to submit that in terms of the provisions contained in U.P. Recruitment of Service (Determination of Date of Birth) Rules, 1974, the date of birth recorded in the service book can, in certain situations, be permitted to be altered. As noticed above, no such situation in this case has arisen hence the said judgment in the case of Munna Lal (supra) also does not have any application to this case.

For the discussion made above, we find that the submissions made and arguments raised by the learned counsel representing the appellant-petitioner do not improve her case any more. Thus, we are not persuaded to interfere in the judgment and order dated 23.09.2021 passed by the learned Single Judge while dismissing the writ petition no.21607 (S/S) of 2021 filed by the appellant-petitioner.

Special Appeal is hereby dismissed.

There will be no order as to costs.

Order Date :- 15.3.2023

akhilesh

(Om Prakash Shukla, J.) (D. K. Upadhyaya, J.)