# Harendra Singh Recruit Constable 45 Bn. P.A.C v. State of U.P. and others

- **Citation:** (2010) 3 ILRA 994
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-25
- **Case number:** Civil Misc. Writ Petition No. 51448 of 2010
- **Bench:** Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harendra-singh-recruit-constable-45-bn-p-a-c-v-state-of-u-p-and-others-41770
- **Pages:** 6

## Headnote

Constitution of India Art. 226-Principle
of
Natural
Justice-petitioner
got
appointment on production of forged
High
School
certificate-when
fact
admitted-departmental
enquiry-futile
exercise-petitioner unable to disclose on
denial of opportunity what prejudice
caused to him-court declined to interfere
.

Held: Para 12 and 16

It is clear from the aforesaid decisions of
the Supreme Court that the application
of the principles of natural justice
depend upon the relevant facts and
circumstances of the case and whenever
a complaint is made about its violation,
the Court has to decide whether the
observance of that Rule was necessary
for a just decision on the facts of the
case. It has also been observed that
there can be a situation where an order
need not be aside even if it is passed in
violation of natural justice like where no
prejudice
is
caused
to
the
person
concerned
and
in
such
a
case
interference under Article 226 of the
Constitution
is
not
necessary.
The
decisions also hold that where facts are
admitted, an enquiry will be an empty
formality.

In
the
present
case,
as
noticed
hereinabove, the case of the respondent
is that the actual date of birth of the
petitioner is 15th December, 1986 and
this fact is admitted to the petitioner. It
is not his case that his date of birth is
15th December, 1984. The further case
of the respondents is that while seeking
employment
the
petitioner
had
submitted a forged marksheet which
mentioned his date of birth as 15th
December, 1984. The petitioner has not
denied in the entire petition that such a
marksheet was not submitted by him
The entire thrust of the writ petition and
the contention advanced by the learned
counsel for the petitioner is that it was
absolutely necessary for the respondents
to hold an enquiry before cancelling his
selection. In view of the decisions of the
Supreme Court referred to above and
when the facts are admitted, it cannot be
said that prejudice has been caused to
the petitioner. It will, therefore, not be
appropriate to quash the impugned order
dated 7th September, 2007 only on the
ground that opportunity had not been
given to the petitioner.
Case law discussed:
2010 (6) ADJ 161, AIR 1984 SC 273, (2004) 6
SCC 299, (2004) 8 SCC 129, (2005) 3 SCC
409, (2005) 5 SCC 337, AIR 1981 SC 136, AIR
1994 SC 1074, AIR 2000 SC 2783, 2006 AIR
SCW 399

## Text

994 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.08.2010

BEFORE
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No. 51448 of 2010

Harendra Singh Recruit Constable 45 Bn.
P.A.C. Aligarh

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar

Counsel for the Respondents:
C.S.C.

Constitution of India Art. 226-Principle
of
Natural
Justice-petitioner
got
appointment on production of forged
High
School
certificate-when
fact
admitted-departmental
enquiry-futile
exercise-petitioner unable to disclose on
denial of opportunity what prejudice
caused to him-court declined to interfere
.

Held: Para 12 and 16

It is clear from the aforesaid decisions of
the Supreme Court that the application
of the principles of natural justice
depend upon the relevant facts and
circumstances of the case and whenever
a complaint is made about its violation,
the Court has to decide whether the
observance of that Rule was necessary
for a just decision on the facts of the
case. It has also been observed that
there can be a situation where an order
need not be aside even if it is passed in
violation of natural justice like where no
prejudice
is
caused
to
the
person
concerned
and
in
such
a
case
interference under Article 226 of the
Constitution
is
not
necessary.
The
decisions also hold that where facts are
admitted, an enquiry will be an empty
formality.

In
the
present
case,
as
noticed
hereinabove, the case of the respondent
is that the actual date of birth of the
petitioner is 15th December, 1986 and
this fact is admitted to the petitioner. It
is not his case that his date of birth is
15th December, 1984. The further case
of the respondents is that while seeking
employment
the
petitioner
had
submitted a forged marksheet which
mentioned his date of birth as 15th
December, 1984. The petitioner has not
denied in the entire petition that such a
marksheet was not submitted by him
The entire thrust of the writ petition and
the contention advanced by the learned
counsel for the petitioner is that it was
absolutely necessary for the respondents
to hold an enquiry before cancelling his
selection. In view of the decisions of the
Supreme Court referred to above and
when the facts are admitted, it cannot be
said that prejudice has been caused to
the petitioner. It will, therefore, not be
appropriate to quash the impugned order
dated 7th September, 2007 only on the
ground that opportunity had not been
given to the petitioner.
Case law discussed:
2010 (6) ADJ 161, AIR 1984 SC 273, (2004) 6
SCC 299, (2004) 8 SCC 129, (2005) 3 SCC
409, (2005) 5 SCC 337, AIR 1981 SC 136, AIR
1994 SC 1074, AIR 2000 SC 2783, 2006 AIR
SCW 399

(Delivered by Hon'ble Dilip Gupta, J.)

1. The petitioner, who was appointed
as a Constable in the U.P. Police, has sought
the quashing of the order dated 7th
September,
2007
passed
by
the
Commandant, 45th Bn. P.A.C. Aligarh by
which his selection has been set aside on the
ground that he had furnished a forged High
School marksheet and, accordingly, his
name has also been struck off from the rolls.
3 All] Harendra Singh Recruit Constable 45 Bn. P.A.C V. State of U.P. and others
995

2. The impugned order mentions that
while seeking appointment, the petitioner
had submitted the High School markshet of
the year 2000 with Roll No.0838447 in
which he was shown to have passed with
second division and 15th December, 1984
as his date of birth. On verification of the
said marksheet, the Deputy Secretary of
Madhyamik Shiksha Parishad, Bareilly,
which Board had conducted the High
School Examination, in his report dated 31st
August, 2007 informed the Department that
the date of birth of the petitioner entered in
the records of the Board is actually 15th
December, 1986 and not 15th December,
1984 and that the petitioner had also passed
the Intermediate Examination in 2002 and
the date of birth of the petitioner was also
recorded as 15th December, 1986 in the
College records. The order further mentions
that the petitioner would only be 17 years
and 16 days at the time of selection
according to the actual date of birth, i.e.,
15th December, 1986, and even if two years
relaxation for OBC candidates is provided
to the petitioner, then too he would not be
between 18 years and 22 years at the time of
selection which was the age requirement for
this category. The order further mentions
that only in order to secure employment, the
petitioner filed a forged High School
marksheet to show that his date of birth is
15th December, 1984. The selection of the
petitioner has, therefore, been found to be
void ab-initio and, accordingly, it has been
cancelled and his name has been struck off
from the rolls of the Police.

3. The sole contention advanced by
Sri Sanjay Kumar, learned counsel for the
petitioner is that the impugned order dated
7th September, 2007 should be set aside for
the reason that it was passed without giving
any opportunity to the petitioner and in
support of his contention he has placed
reliance upon the decision of this Court in
Rajbeer Singh (Constable 618/946) Vs.
State of U.P. & Ors., reported in 2010 (6)
ADJ 161.

4.

Learned
Standing
Counsel
appearing for the respondents, however,
submitted
that
in
the
facts
and
circumstances of the case, when it is
admitted to the petitioner that his correct
date of birth is 15th December, 1986 and
the petitioner has not controverted the
statement made in the impugned order that
while securing employment the High
School marksheet with date of birth
recorded as 15th December, 1984 was
submitted by him, it was not necessary to
give any opportunity to the petitioner.

5. I have carefully considered the
submissions advanced by the learned
counsel for the parties.

6. The sole submission of learned
counsel for the petitioner is that it was
obligatory for the authorities to have given
opportunity to the petitioner to place his
version before cancelling his selection and
deleting his name from the rolls.

7. It cannot be doubted that the
principles of natural justice cannot be put
into a strait-jacket formula and that its
application will depend upon the fact
situation obtaining
therein.
The
said
principles cannot also be applied in vacuum
without reference to the relevant facts and
circumstances of the case. This is what has
been held by the Supreme Court in K.L.
Tripathi Vs. State Bank of India & Ors.
AIR 1984 SC 273; N.K. Prasad Vs.
Government of India & Ors. (2004) 6
SCC 299; State of Punjab Vs. Jagir Singh
(2004) 8 SCC 129; Karnataka SRTC Vs.
S.G. Kotturappa (2005) 3 SCC 409 and
996 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
in Viveka Nand Sethi Vs. Chairman,
J&K Bank Ltd. (2005) 5 SCC 337.

8. In S.L.Kapoor Vs. Jagmohan,
AIR 1981 SC 136, the Supreme Court laid
the exception that "if upon admitted or
indisputable facts only one conclusion was
possible", then in such a case, the principle
that breach of natural justice was in itself
prejudice, would not apply. In other words
if no other conclusion was possible on
admitted or indisputable facts, it will not be
necessary to quash an order which was
passed in violation of natural justice. Of
course, this being an exception, great care
must be taken in applying this exception.

9. The Constitution Bench of the
Supreme Court in Managing Director
ECIL, Hyderabad Vs. B. Karunakar
AIR 1994 SC 1074 after making reference
to the two of its earlier decisions also
observed:-

"In A.K. Kraipak v. Union of India,
AIR 1970 SC 150 it was held that the rules
of natural justice operate in areas not
covered by any law. They do not supplant
the law of the land but supplement it. They
are not embodied rules and their aim is to
secure justice or to prevent miscarriage of
justice. If that is their purpose, there is no
reason why, they should not be made
applicable to administrative proceedings
also especially when it is not easy to draw
the line that demarcates administrative
enquiries from quasi-judicial ones. An
unjust decision in an administrative inquiry
may have a more far reaching effect than a
decision in a quasi-judicial inquiry. It was
further observed that the concept of natural
justice has undergone a great deal of change
in recent years. What particular rule of
natural justice should apply to a given case
must depend to a great extent on the facts
and circumstances of that case, the
framework of the law under which the
inquiry is held and the constitution of the
tribunal or the body of persons appointed
for that purpose. Whenever a complaint is
made before a Court that some principle
of natural justice has been contravened,
the Court has to decide whether the
observance of that rule was necessary for
a just decision on the facts of that case.
The rule that inquiry must be held in good
faith and without bias and not arbitrarily or
unreasonably is now included among the
principles of natural justice.

In Chairman, Board of Mining
Examination v. Ramjee AIR 1977 SC 965
the Court has observed that natural justice
is not an unruly horse, no lurking landmine,
nor a judicial cure-all. If fairness is shown
by the decision-maker to the man proceeded
against, the form, features and the
fundamentals of such essential processual
propriety being conditioned by the facts and
circumstances of each situation, no breach
of natural justice can be complained of.
Unnatural expansion of natural justice,
without reference of the administrative
realities and other factors of a given case,
can be exasperating. The Courts cannot look
at law in the abstract or natural justice as a
mere artifact. Nor can they fit into a rigid
mould
the
concept
of
reasonable
opportunity.
If
the
totality
of
circumstances satisfies the Court that the
party visited with adverse order has not
suffered from denial of reasonable
opportunity, the Court will decline to be
punctilious or fanatical as if the rules of
natural justice were sacred scriptures."

(emphasis supplied)

10. In Aligarh Muslim University
and Ors. Vs. Mansoor Ali Khan, AIR
3 All] Harendra Singh Recruit Constable 45 Bn. P.A.C V. State of U.P. and others
997
2000 SC 2783, the Supreme Court
considered whether on the facts of the case
the employee can invoke the principle of
natural justice and whether it was a case
where, even if notice had been given, result
would not have been different and whether
it could be said that no prejudice was caused
to him, if on the admitted or proved facts
grant of an opportunity would not have
made any difference and observed :-

"It will be sufficient, for the purpose of
the case of Mr. Mansoor Ali Khan to show
that his case will fall within the exceptions
stated by Chinnappa Reddy, J. in S.L.
Kapoor Vs. Jagmohan, AIR 1981 SC 136,
namely, that on the admitted or indisputable
facts - only one view is possible. In that
event no prejudice can be said to have been
caused to Mr. Mansoor Ali Khan though
notice has not been issued."

11. The Supreme Court in Mohd.
Sartaj & Anr. Vs. State of U.P. & Ors.,
2006 AIR SCW 399, after considering a
number of its earlier decisions made the
following observations with regard to the
requirement of giving notice :-

".............. Applying this principle, it
could
very
well
be
seen
that
discontinuation of the service of the
appellants in the present case was not not
a punitive measure but they were
discontinued for the reason that they
were not qualified and did not possess the
requisite qualifications for appointment.

........... In view of the basic lack of
qualifications, they could not have been
appointed nor their appointment could have
been continued. Hence the appellants did
not hold any right over the post and,
therefore, no hearing was required
before the cancellation of their services.
In the present case, the cancellation order
has been issued within a very short span of
time giving no probability for any legitimate
expectation to the appellants regarding
continuation of their service."
(emphasis supplied)

12. It is clear from the aforesaid
decisions of the Supreme Court that the
application of the principles of natural
justice depend upon the relevant facts and
circumstances of the case and whenever a
complaint is made about its violation, the
Court has to decide whether the observance
of that Rule was necessary for a just
decision on the facts of the case. It has also
been observed that there can be a situation
where an order need not be aside even if it
is passed in violation of natural justice like
where no prejudice is caused to the person
concerned and in such a case interference
under Article 226 of the Constitution is not
necessary. The decisions also hold that
where facts are admitted, an enquiry will be
an empty formality.

13. It is in the light of the aforesaid
observations of the Supreme Court that the
facts of the present case have to be
examined. The impugned order specifically
mentions that at the time of securing
employment the petitioner had submitted a
High School marksheet in which his date of
birth was entered as 15th December, 1984.
There is no denial in the writ petition that
such a marksheet was not submitted by the
petitioner and on the other hand the
petitioner has admitted in the writ petition
that his date of birth is 15th December,
1986. The impugned order further mentions
that if 15th December, 1986 is the actual
date of birth of the petitioner, then he could
not have been selected since he was not
between 18 years and 22 years at the
relevant
time
which
was
the
age
998 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
requirement. It is, therefore, clear that in
order to make himself eligible, the
petitioner filed a forged marksheet in which
his date of birth was entered as 15th
December, 1984. The issue, therefore, that
needs to be decided is whether in such a
situation, when there is no denial by the
petitioner about filing of the marksheet at
the time of seeking employment which
mentioned his date of birth as 15th
December, 1984, any opportunity was
required to be given to the petitioner.

14. The petitioner has placed reliance
upon the judgment of this Court in Rajbeer
Singh (supra) in which the following
observations have been made:-

".........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.

.............

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.................."

15. The said decision does not help
the petitioner. The petitioner-Rajbeer Singh
at the time of securing employment had
filed a marksheet which mentioned his date
of birth as 15th November, 1969. The
petitioner maintained that his date of birth
was 15th November, 1969, while the case
of the respondents was that the actual date
of birth of the petitioner was 15th
November, 1965. It is in such circumstances
when the date of birth was disputed that the
Court observed that opportunity was
required to be given as the respondents had
not disclosed from where they had made the
enquiries and what were the documents to
show that the certificate submitted by the
petitioner was forged.

16. In the present case, as noticed
hereinabove, the case of the respondent is
that the actual date of birth of the petitioner
is 15th December, 1986 and this fact is
admitted to the petitioner. It is not his case
that his date of birth is 15th December,
1984. The further case of the respondents is
that
while
seeking
employment
the
3 All] Kamla Srivastava and another V. State of U.P. and others
999
petitioner had submitted a forged marksheet
which mentioned his date of birth as 15th
December, 1984. The petitioner has not
denied in the entire petition that such a
marksheet was not submitted by him The
entire thrust of the writ petition and the
contention advanced by the learned counsel
for the petitioner is that it was absolutely
necessary for the respondents to hold an
enquiry before cancelling his selection. In
view of the decisions of the Supreme Court
referred to above and when the facts are
admitted, it cannot be said that prejudice has
been caused to the petitioner. It will,
therefore, not be appropriate to quash the
impugned order dated 7th September, 2007
only on the ground that opportunity had not
been given to the petitioner.

17. This apart, the petitioner was not
even
eligible
to
be
considered
for
appointment as he was less than 18 years of
age at the time of selection. The Supreme
Court in Mohd. Sartaj (supra) has held that
when a candidate does not possess the
requisite
qualification,
he
cannot
be
continued and no hearing is required. In
paragraph 21 of the writ petition it is stated
that the petitioner started receiving salary
from September 2006 as a permanent
Constable. The impugned order was passed
on 7th September, 2007. It cannot,
therefore, be urged by the petitioner that
there was delay in passing the impugned
order. It is also seen that the impugned
order has been challenged by the petitioner
after a period of more than three years
without giving any satisfactory explanation
for the delay.

18. Thus, for all the reasons stated
above, the writ petition deserves to be
dismissed and is, accordingly, dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.07.2010

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE KASHI NATH PANDEY, J.

Civil Misc. Writ Petition No.58527 of 2008

Kamla Srivastava & another ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare
Sri Siddharth Khare
Sri Rohit Upadhyaya

Counsel for the Respondents:
Sri Pushpendra Singh
Sri P.S. Baghel
C.S.C.

U.P. Prosecuting officer Service Rules,
1991 Section-15, U.P. Public Services
(Reservation
for
SC/ST/Backward
Classes) Act 1994-Right of appointmentPetitioners name included in waiting list14
post
still
vacant-Petitioners
bonafidely agitating their claim-their
name also found place in list approved
by High Court as well as the Hon'ble
Supreme Court-entitled for appointmentdirection issued accordingly

Since the Petitioners were perusing their
Writ Petitions bona-fide for appointment
and were placed in the Waiting list, they
were entitled to be appointed against 14
vacancies which could not be filled up in
selection of examination held in the year
1997. The judgement of the Supreme
Court and the High Court clearly shows
that the benefit has to be given only to
those
persons
who
were
diligently
agitating the matter. It is not denied
that though there were some persons
available over and above the petitioner
,they were not given appointment as
they did not agitate the matter in the