# Con. 618/946 Rajbeer Singh v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-01
- **Case number:** Civil Misc. Writ Petition No. 25129 of 2008
- **Bench:** Shishir Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/con-618-946-rajbeer-singh-v-state-of-u-p-and-others-41481
- **Pages:** 4

## Headnote

Constitution
of
India
Art.
226Cancellation of appointment-after 15
years of working on ground-the date of
birth
mentioned
in
High
School
certificate a forged document order
passed without giving opportunity to
produce
original
certificate-heldimpugned
order
quashed
with
all
consequential benefits including salary,
seniority from the date dismissal till the
date of reinstatement.

Held: Para 7

In my opinion, this submission made by
the learned counsel for the petitioner
have got substance and deserves to be
accepted. I am of the considered view
that the alleged conduct of the petitioner
while entering into service cannot be
alleged to be misconduct during service.
In service law jurisprudence both the
stages
are
quite
distinct
and
distinguishable, therefore, they should
not be intermixed otherwise it will cause
serious repercussion in the service law
jurisprudence. Further, I have a doubt in
the mind that whether such illegal
appointment
as
alleged
by
the
respondent on the basis of alleged
forged certificate could be cancelled
after long lapse of 15 years from the
date of appointment of the petitioner.
Further it is admitted case of the parties
that the petitioner has not been afforded
any opportunity before passing the order
impugned dismissing the petitioner from
service.
Case law discussed:
1991 Supp. (1) SCC 330, 2002 (1) U.P.L.B.E.C.
705, (1999) 3 SCC 60, 2008 (7) ADJ 4.

## Text

1 All] Con. 618/946 Rajvir Singh V. State of U.P. and others
357
service at Kolkata when he was removed
in service. Therefore, he can challenge the
removal order and the appellate order in
the State of West Bengal. Even the place
of recruitment will not confer any right to
challenge the removal order in Allahabad
High Court. The cause of action will
accrue where the removal order or
appellate order had been passed. Sri I.R.
Singh has further urged that if the writ
petition filed by the respondent was not
maintainable, then the Special Appeal
filed by Union of India is also not
maintainable. This question has been
decided by the division bench of this
court in Lalji Pandey (supra). Therefore,
this argument is devoid of any merits

6. For the aforesaid reasons, this
special appeal succeeds and is allowed.
The order dated 21.8.2000 passed by
learned Single Judge in Civil Misc. Writ
Petition No.29492 of 1999 is set aside.
The writ petition is dismissed as being not
maintainable. However, the writ petitioner
shall be at liberty to approach the
appropriate legal forum, in the State of
West Bengal.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2010

BEFORE
THE HON'BLE SHISHIR KUMAR, J.

Civil Misc. Writ Petition No. 25129 of 2008

Con. 618/946 Rajbeer Singh ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri V.P. Singh
Sri Kashyap
Sri Ajay Kumar Srivastava
Sri Vijay Gautam
Counsel for the Respondent:
C.S.C.

Constitution
of
India
Art.
226Cancellation of appointment-after 15
years of working on ground-the date of
birth
mentioned
in
High
School
certificate a forged document order
passed without giving opportunity to
produce
original
certificate-heldimpugned
order
quashed
with
all
consequential benefits including salary,
seniority from the date dismissal till the
date of reinstatement.

Held: Para 7

In my opinion, this submission made by
the learned counsel for the petitioner
have got substance and deserves to be
accepted. I am of the considered view
that the alleged conduct of the petitioner
while entering into service cannot be
alleged to be misconduct during service.
In service law jurisprudence both the
stages
are
quite
distinct
and
distinguishable, therefore, they should
not be intermixed otherwise it will cause
serious repercussion in the service law
jurisprudence. Further, I have a doubt in
the mind that whether such illegal
appointment
as
alleged
by
the
respondent on the basis of alleged
forged certificate could be cancelled
after long lapse of 15 years from the
date of appointment of the petitioner.
Further it is admitted case of the parties
that the petitioner has not been afforded
any opportunity before passing the order
impugned dismissing the petitioner from
service.
Case law discussed:
1991 Supp. (1) SCC 330, 2002 (1) U.P.L.B.E.C.
705, (1999) 3 SCC 60, 2008 (7) ADJ 4.

(Delivered by Hon'ble Shishir Kumar, J.)

1. Heard learned counsel for the
petitioner and learned Standing Counsel.
358 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
2. This writ petition has been filed
for quashing the order dated 22.02.2008
(Annexure-2 to the writ petition), passed
by respondent No.2, by which the services
of the petitioner has been terminated on
the ground that the certificate of High
School submitted by the petitioner at the
time of appointment was found forged.

3. The facts arising out of the
present writ petition are that on the basis
of advertisement made by the respondent
in the year 1989 for the purposes of
appointment on the post of Constable, as
the petitioner was fully eligible to be
considered and appointed, he submitted
relevant documents and on the basis of
aforesaid
document,
petitioner
was
considered treating his date of birth as
15th November 1969. The High School
certificate issued by the Board of High
School and Intermediate of the year 1983
was submitted at that time. Petitioner on
the basis of aforesaid appointment was
working and the conduct of the petitioner
was always appreciated by the relevant
authority from time to time. It appears
that on the basis of some complaint
regarding various persons who have
obtained
the
appointment
claiming
themselves to be dependent of the
employees working in the Department
under the Dying in Harness Rules, some
investigation was made without any
notice to the petitioner and it was found as
alleged by the respondent that in the
certificate submitted by the petitioner of
the High School the date of birth of the
petitioner is entered as 15.11.1965.
Though in the certificate which has been
submitted by the petitioner, the date of
birth is recorded as 15.11.1969.

4. The contention of the petitioner to
this effect is that in case on the basis of
some complaint if the respondent was of
the opinion that on the basis of some
inquiry made thereunder the certificate
submitted by the petitioner was having
some discrepancy or wrong date of birth
according to respondent is entered, the
petitioner was entitled to have a show
cause
notice
and
opportunity.
The
appointment of the petitioner cannot be
cancelled
without
any
notice
and
opportunity that too after completion of
about 17 years of service in the Police
Department. In case the petitioner would
have been given a liberty he would have
submitted a certificate issued by the High
School Board which was submitted at the
time of entrance in service. Without any
notice and opportunity to the petitioner,
the order impugned dated 22.02.2008
cannot be passed. The petitioner has
placed reliance upon a judgment of apex
court reported in 1991 Supp. (1) SCC 330
Shrawan Kumar Jha and others Vs.
State of Bihar and others. On the
strength of the aforesaid decision, learned
counsel for the petitioner submits that in
case on the basis of some inquiry it was
found by the respondents that certificate
submitted by the petitioner is not correct
or they have come to the conclusion that it
is a forged certificate, the principle of
natural justice has to be observed and no
order
can
be
passed
without
any
opportunity to the petitioner. In 2002 (1)
U.P.L.B.E.C. 705 Pradeep Kumar Singh
Vs. U.P. State Sugar Corporation and
another, the Division Bench of this Court
has held that termination without any
show cause notice or opportunity to
defend has been held to be violative to the
principle of natural justice and has
quashed the order of termination. In Dipti
Prakash Banerjee Vs. Satyendra Nath
Bose National Centre for Basic Sciences,
Calcutta and others reported in (1999) 3
1 All] Con. 618/946 Rajvir Singh V. State of U.P. and others
359
SCC 60, the apex court has held that if
finding has been arrived at an inquiry as
to the misconduct behind the back of the
Officer without a regular departmental
inquiry, the same is not permissible on the
allegation of fraud without any notice and
opportunity the order passed by the
respondent is in violation of Rule 8 and
14 of the U.P. Police Officers of
Subordinate Rank (Punishment & Appeal)
Rules, 1991. Rule 14(1) of the Rules
provides initiation of proceeding which
has to be adhered to before passing the
order of dismissal or cancellation of the
appointment of the petitioner. Admittedly,
no notice and opportunity was ever given
to the petitioner before passing the order
impugned. As such, the order impugned is
liable to be quashed.

5. On the other hand, the respondent
filed a counter affidavit stating therein
that in a writ petition filed by one Awnish
Kumar, this Court has directed that the
respondent may enquire into the matter
regarding the employees who have
obtained the appointment under the Dying
in Harness Rules on the ground that their
father or mother were in service of the
respondent and died in harness and on
that basis some inquiry was conducted
and it was found that the birth certificate
submitted by the petitioner appears to be
forged. Further allegation has been made
that after inquiry it was found that only to
get
an
appointment
in
the
Police
Department, the forged certificate of birth
has been submitted by the petitioner,
therefore, the appointment/selection of the
petitioner is hereby cancelled.

6. I have considered the submissions
made on behalf of the parties and perused
the record. From the averments made by
the parties in the writ petition as well as in
the counter affidavit, it does not transpire
that petitioner was ever given a notice and
opportunity before passing the order
impugned. Admittedly, the petitioner's
appointment was of 1989. In case some
inquiry as submitted by the respondent
was made and a conclusion was arrived
upon that petitioner only to get an
appointment has filed a forged certificate
claiming that his date of birth is
15.11.1969. Petitioner's case is that he has
passed the High School in the year 1983
and certificate issued by the Board was
submitted mentioning therein that the date
of birth of the petitioner is 15th
November 1969. The respondents have
not disclosed the fact that from where
they have enquired into the matter and
what
are
the
documents
to
show
thereunder that the certificate submitted
by the petitioner was forged. Therefore, in
my opinion, it was incumbent on the part
of the respondents to have a proceeding
against the petitioner as provided under
the Rules. The Regulation itself provides
that in case of some misconduct or if on
the basis of some inquiry it has been
found that a person has obtained the
appointment by playing fraud in that
circumstance
unless
and
until
the
procedure of inquiry as provided under
the Rules is followed, no disciplinary
action can be taken against an employee.
It is also not the case of the respondent
that after verification from the petitioner
also
it
was
established
that
the
appointment has been obtained by playing
fraud. Therefore, in view of settled
principle of law it was not necessary to
give a notice and opportunity and to have
a disciplinary proceeding against the
petitioner as it is settled in law that fraud
vitiates everything unless and until it is
established the procedure as provided
cannot be bye passed. Article 311 (2) of
360 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the Constitution of India provides for
dispensation of inquiry in case a finding is
recorded by the disciplinary authority that
it is not possible and feasible to have an
inquiry in the circumstances of the case.
The similar provision is under the Police
Regulation which provides dispensation
of the inquiry against a person what
satisfaction has to be recorded in the
impugned order.

7. In 2008 (7) ADJ 4 Ramveer
Singh Vs. State of U.P. And Others, this
Court has taken a view in the similar fact
and circumstances that in case at the time
of appointment a caste certificate has been
filed and subsequently it was found that
the petitioner does not belong to said
caste in that circumstances without
holding a full fledged inquiry the
appointment / selection of a person cannot
be cancelled. In view of the matter the
alleged act or conduct of the petitioner
was of at the time of his appointment
while entering into services, therefore, the
same would not constitute misconduct
during the service as such order of
dismissal for alleged misconduct could
not be passed against him. In my opinion,
this submission made by the learned
counsel for the petitioner have got
substance and deserves to be accepted. I
am of the considered view that the alleged
conduct of the petitioner while entering
into service cannot be alleged to be
misconduct during service. In service law
jurisprudence both the stages are quite
distinct and distinguishable, therefore,
they should not be intermixed otherwise it
will cause serious repercussion in the
service law jurisprudence. Further, I have
a doubt in the mind that whether such
illegal appointment as alleged by the
respondent on the basis of alleged forged
certificate could be cancelled after long
lapse of 15 years from the date of
appointment of the petitioner. Further it is
admitted case of the parties that the
petitioner has not been afforded any
opportunity before passing the order
impugned dismissing the petitioner from
service.

8. In view of aforesaid fact, I am of
the view that the order impugned dated
22.02.2008 cannot be sustained and the
same is hereby quashed. In the result the
writ
petition
is
allowed,
and
the
respondents are directed to reinstate the
petitioner with all the benefits of service
with full salary as well as seniority from
the date of dismissal till the date of
reinstatement. Further, it is provided that
the respondents will pay arrears of salary
to the petitioner within two months from
the date of production of certified copy of
the order.
No order as to costs.
----------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.04.2010

BEFORE
THE HON'BLE YOGENDRA KUMAR SANGAL, J.

Application U/S 482 No. 5734 of 2010

Anshu @ Dilip Kumar & others ...Applicants
Versus
State of U.P. and another ...Opposite Party

Counsel for the Applicant:
Sri S.P. Giri

Counsel for the Opposite Party:
G. A.

Code
of
Criminal
Procedure-Section
482:-offence under Section 3/7 Essential
Commodities Act-bags of wheat while