# Jai Prakash Singh Yadav v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 21
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-01-29
- **Case number:** Civil Misc. Writ Petition No. 1015 of 2008
- **Bench:** Pradeep Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-singh-yadav-v-state-of-u-p-and-others-41555
- **Pages:** 6

## Headnote

Sri Tirath Raj Shukla
C.S.C.

U.P. Police Officer Subordinate Rank
(Punishment
&
appeal
Rule
1991-
Section
Rule
8(2)(b)-
Dismissal
by
dispense with. enquiry- petitioner a
police constable- after facing selection
process
appointed
-at
the
time
of
appointment date of birth recorded as
1.7.86- Subsequently it is alleged that as
per information given by Board -the date
of birth is 1.7.87 and not 1.7.86- even in
counter affidavit not disclosed that as to
how this entry made? who permitted to
correct- the authorities not only acted
negligently and carelessly but devised
novel method by getting report about
date of birth to dismiss its petitioner -
furnishing High School Certificate with
incorrect date of birth-why could not be
inquired ? Dismissal order quashed with
cost of Rs.50,000/- recoverable from
erring officer.

Para: 21, 22, & 24.

Notice is also taken in the present case
of the fact that the charge against the
petitioner in the instant case was that he
furnished a forged certificate of High
School examination where the date of
birth was recorded as 1.7.1986 but it
was found on verification from the Board
that it was actually 1.7.1987. Why for
such a charge the inquiry was not
possible or why it was not reasonable
and practicable to hold such inquiry
against the employee has not been
disclosed at all. It was a simple case
where a person who was selected and
later on appointed, was charged of
furnishing the high school certificate
which incorrectly recorded his date of
birth. Such a charge could have been
very well enquired into by holding
departmental inquiry.

This
Court
is,
therefore,
of
the
considered opinion that Rule 8(2) (b)
could not have been attracted in the
instant case and, therefore, the order of
dismissal is per se bad in law.

In the given facts and circumstances of
the case, the writ petition deserves to be
allowed with compensatory cost as the
petitioner has been ousted from service
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for no fault of his and without giving any
opportunity of hearing.
Case Law Discussed:
2006(1) ESC 374(All) (DB), Special Appeal no.
165 of 2007 decided on 21.2.2008,-2008(3)
ADJ 689 (DB), 2005(II) SCC Page 525,
1991(1) SCC page 362, AIR 1985, SC page

## Text

1 All] Jai Prakash Singh V. State of U.P. and others
21
attested for administrative purposes. He
was never appointed at any point of time
on the post of Principal.

7. In the case of Bhagwat Prasad
Pandey (supra), this Court as such has
not decided any issue but has referred to
the earlier judgment of this Court in
Narmedeshar
Misra
Vs.
District
Inspector of Schools, Deoria & others
1982 UPLBEC 171 which has been
considered by the Division Bench (in
which I was also a member) in Daljeet
Singh (supra) and in view of the
discussion made therein, I do not find that
the same, in any manner, help the
petitioner.

8. In view of the above discussions,
I find no merit in the writ petition.
Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.

Civil Misc. Writ Petition No. 1015 of 2008

Jai Prakash Singh Yadav
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Someshwari Prasad
Sri A.S. Dubey
Sri Vijay Kumar Gautam

Counsel for the Respondents:
Sri Tirath Raj Shukla
C.S.C.

U.P. Police Officer Subordinate Rank
(Punishment
&
appeal
Rule
1991-
Section
Rule
8(2)(b)-
Dismissal
by
dispense with. enquiry- petitioner a
police constable- after facing selection
process
appointed
-at
the
time
of
appointment date of birth recorded as
1.7.86- Subsequently it is alleged that as
per information given by Board -the date
of birth is 1.7.87 and not 1.7.86- even in
counter affidavit not disclosed that as to
how this entry made? who permitted to
correct- the authorities not only acted
negligently and carelessly but devised
novel method by getting report about
date of birth to dismiss its petitioner -
furnishing High School Certificate with
incorrect date of birth-why could not be
inquired ? Dismissal order quashed with
cost of Rs.50,000/- recoverable from
erring officer.

Para: 21, 22, & 24.

Notice is also taken in the present case
of the fact that the charge against the
petitioner in the instant case was that he
furnished a forged certificate of High
School examination where the date of
birth was recorded as 1.7.1986 but it
was found on verification from the Board
that it was actually 1.7.1987. Why for
such a charge the inquiry was not
possible or why it was not reasonable
and practicable to hold such inquiry
against the employee has not been
disclosed at all. It was a simple case
where a person who was selected and
later on appointed, was charged of
furnishing the high school certificate
which incorrectly recorded his date of
birth. Such a charge could have been
very well enquired into by holding
departmental inquiry.

This
Court
is,
therefore,
of
the
considered opinion that Rule 8(2) (b)
could not have been attracted in the
instant case and, therefore, the order of
dismissal is per se bad in law.

In the given facts and circumstances of
the case, the writ petition deserves to be
allowed with compensatory cost as the
petitioner has been ousted from service
22 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for no fault of his and without giving any
opportunity of hearing.
Case Law Discussed:
2006(1) ESC 374(All) (DB), Special Appeal no.
165 of 2007 decided on 21.2.2008,-2008(3)
ADJ 689 (DB), 2005(II) SCC Page 525,
1991(1) SCC page 362, AIR 1985, SC page
1416.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Vijay Kumar Gautam,
learned counsel for the petitioner and Sri
Tirath Raj Shukla, learned counsel for the
respondents.

2. By means of this writ petition the
petitioner Jai Prakash Singh Yadav
challenges the order dated 13th September,
2007 passed by Superintendent of Police,
Ballia dismissing him from service by
exercising power under Rule 8 sub-rule
2(b)
of
the
U.P.
Police
Officer
Subordinate
Rank
(Punishment
and
Appeal Rules), 1991.

3. The petitioner was selected as
Constable
in
Civil
Police
in
the
recruitment held at Azamgarh Center on
26.6.2005.
In
pursuance
of
the
advertisements No. 51-04, dated 6th
January, 2005 directions for recruitment
was made at Azamgarh Center. All the
persons who were desirous of being so
appointed and were possessing all the
requisite qualifications applied for the
post and they had undergone physical test,
written examination and interview. The
applicants who could qualify all the
aforesaid tests were selected and were
given appointments.

4. The Director General of Police,
U.P. vide, his confidential letter dated
29.06.2007
issued
directions
for
reviewing the entire selection on some
alleged irregularities being detected in
holding
the
said
selection.
The
Superintendent of Police in pursuance of
the directions aforesaid reviewed the
entire selection with respect to the recruits
who were appointed in the year 2005 and
2006 and the deliberations in interview,
physical
verification,
educational
qualification,
date
of
birth,
health
certificate, caste certificate etc. were got
re-examined and re-verified.

5. In regard to the petitioner it was
found that in the High School certificate
which was produced/filed by him along
with the application form mentioned his
date of birth 1.7.1986, which on getting
re-verified from the Regional Officer,
U.P. Board of Secondary Education,
Varanasi, revealed that his date of birth
was actually 1.7.1987. This alleged act of
the petitioner was taken as furnishing a
forged
certificate
at
the
time
of
recruitment. The Superintendent of Police
found that in this situation, it was not in
public interest to allow the petitioner to
continue in service. After making the said
observation in the order, he further
observed that the petitioner had filled the
form in his own hand-writing and has also
undertaken that in case any information
given in the application form is found to
be incorrect then his selection may be
cancelled and then whatever legal action
can be taken would be taken for which he
would have no objection. An affidavit
was filed by him that if any information
was found incorrect after his selection, his
selection could be cancelled.

6. The Superintendent of Police in
his wisdom, thought that it was a case
where it was not reasonably practicable to
hold the enquiry and, therefore, applying
the provisions of Rule 8 2(b), dismissed
1 All] Jai Prakash Singh V. State of U.P. and others
23
the petitioner from service without giving
him any opportunity of hearing and
without holding any inquiry.

7. On facts, it is the admitted case
that in the High School certificate issued
by the U.P. Board, the date of birth was
recorded as 1.7.1986. It is not know as to
what prompted the Superintendent of
Police to get it re-verified from the Board
and it is also not clear from the counter
affidavit filed by the State that how and
on what basis and material, the Board has
given that his date of birth was actually
1.7.1987 and not 1.7.1986.

8. The counter affidavit, filed by the
State and the supplementary affidavit
filed by the petitioner makes a very
curious and interesting reading regarding
the date of birth mentioned in the High
School certificate and as has been verified
by U.P. Board. The State says in
paragraph 4 of the counter affidavit that
petitioner's date of birth as recorded in the
High School certificate was 1.7.1986 but
the same was found to be 1.7.1987, when
verified by the U.P. Board but it does not
disclose the fact that from where the
Board got this correct date of birth
particularly when no inquiry was made
from the petitioner. The material on
which this conclusion was drawn by the
board has neither been brought on record
nor it finds mention in the verification
report submitted by the Board, to the
Superintendent of Police.

9. In paragraph 6 of the counter
affidavit, the following contents has been
stated by the State:

".............it is stated that according to
verification done by U.P. Board of High
School
and
Intermediate
Education,
Regional Office, Varanasi, correct date of
birth of the petitioner is 1.7.1986."

10.

The
averments
are
self
contradictory and are without support.
The plea of the petitioner is that his date
of birth was 1.7.1986.

11. In this background it is a matter
of consideration that from where and on
what basis the U.P. Board on reverification, furnished its report along
with letter dated 31.08.2007 to the
Superintendent of Police, saying that his
date of birth was 1.7.1987 and not
1.7.1986. The chart submitted by the
Board also shows the date of birth was
recorded as 1.7.1986 in the column of the
date of birth where no date like 1.7.1987
has been recorded at all. Rather the date
1.7.1986 has been mentioned twice in the
same very column and in the last column,
though originally the same date of
1.7.1986 was mentioned, but later on it
was cut and a note was made that the date
of birth is 1.7.1987 and not 1.71986. How
this entry has been made and who
permitted to make such an entry has
neither been explained by the State, nor
could be explained.

12. There is one more aspect of the
matter which totally belies the case of the
respondent and that is a letter written by
the Secretary of U.P. Board of High
School and Intermediate Examination on
18.8.2007 to the Superintendent of Police,
Ballia which says that the date of birth of
the petitioner was 1.7.1986 which is duly
verified.

13. Apart from the legal plea that the
provisions of Rule 8 2(b) of the rules of
1999 could not have been applied in the
instant case, this appears to be a case
24 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
where the government authorities have
acted not only negligently and carelessly
but as a matter of fact they have also
devised a novel method, by getting a
report about the date of birth only to
dismiss the petitioner from service.

14. The action of the respondents
not only deserves condemnation but is
also to be seriously deprecated and
requires appropriate disciplinary action
against
the
officers
of
the
Police
Department and the Madhyamik Shiksha
Parishad, U.P. Board of High School and
Intermediate Education.

15. A person, namely, the petitioner,
who applied for being recruited as a
constable in U.P. civil police was duly
considered and on being satisfied about
his eligibility and qualifications including
the date of birth etc. with the certificates
produced by him, he was selected and
appointed. Unless there was some reason
for any doubt regarding the recorded date
of birth of the petitioner from any quarter
whatsoever, there was no occasion for the
Director General of Police or the
Superintendent of Police to re-inquire and
re-verify the date of birth of the petitioner.
Nothing has been brought on record by
the State to show as to why the
petitioner's
case
was
submitted
for
scrutiny before the Board for re-verifying
his date of birth when apparently there
was no complaint against him.

16. The selections made can not be
interfered with at the sweet-will of the
persons who are responsible for holding
the selection unless of course some
serious irregularities are found to have
been committed in the selection. The
appointments cannot be set aside or
quashed in a light and in a casual manner
as has been done in the instant case.
Sanctity has to be accorded to the
selections made, and unless proved
otherwise they have to be upheld.
Tinkering with the selections and/or
appointments
made,
in
such
an
irresponsible and apparently designed
manner, hits very hard the selectees, who
face termination of their services, despite
being legally selected.

17. The law is well settled that for
dispensing with the inquiry it is essential
that a valid reason has to be recorded by
the authority in writing because of which
it was reasonably impracticable to hold
such enquiry. This makes it clear that
there has to be some reason which
persuades the authority in power to
dismiss any employee without holding
disciplinary inquiry and without giving
him any opportunity of hearing, and such
a reason has to be recorded in writing in
the order.

18. The aforesaid provisions do not
empower the authority concerned to order
dismissal from service or award major
punishment in service arbitrarily.

19. In this case learned counsel for
the petitioner, in support of his plea that
Rule 8(2) (b) could not have been
attracted in the instant case, has cited a
number of judgments namely 2006(1)
ESC 374 (All) (DB) State of U.P. &
other V/s Chandrika Prasad decided on
19th October, 2005 Special Appeal No.
165 of 2007 Vashisth Narayan Singh
V/s State of U.P. & others, decided on
8.22007.,
2008(3)
ADJ
689
(DB)
Pushpendra Singh (CP 2187) and
another decided on 21.2.2008, 2005(II)
SCC page 525 Sudesh Kumar V/s State
of U.P and others decided on 19.4.2005.,
1 All] Jai Prakash Singh V. State of U.P. and others
25
1991(1) SCC page 362 Jaswant Singh
V/s Punjab and others decided on 27th
November, 1990, AIR 1985, SC page
1416, Union of India Vs Tulsi Ram Patel,
decided on 11.7.1985.

20. Learned counsel for the
petitioner has cited the aforesaid cases in
support of his plea that in the instant case,
the aforesaid provision could not have
been applied or attracted as there was no
ground for not holding inquiry nor any
such ground has been recorded by the
disciplinary authority giving any reason
which prohibited or compelled him not to
hold the inquiry or in other words,
holding of an inquiry was not reasonably
practicable.

21. Notice is also taken in the
present case of the fact that the charge
against the petitioner in the instant case
was that he furnished a forged certificate
of High School examination where the
date of birth was recorded as 1.7.1986 but
it was found on verification from the
Board that it was actually 1.7.1987. Why
for such a charge the inquiry was not
possible or why it was not reasonable and
practicable to hold such inquiry against
the employee has not been disclosed at
all. It was a simple case where a person
who was selected and later on appointed,
was charged of furnishing the high school
certificate which incorrectly recorded his
date of birth. Such a charge could have
been very well enquired into by holding
departmental inquiry.

22. This Court is, therefore, of the
considered opinion that Rule 8(2) (b)
could not have been attracted in the
instant case and, therefore, the order of
dismissal is per se bad in law.

23. It is further observed that even
on merits there was nothing before the
Superintendent of Police to reach the
conclusion that the date of birth of the
petitioner was 1.7.1987. As already
observed, the conduct of the respondents
including the Superintendent of Police as
well as the Board can not be appreciated
and it is for the State Government to
initiate necessary proceedings and make
an inquiry into the matter as to why the
Superintendent of Police required reverification of the date of birth of the
petitioner despite clear date of birth being
recorded in High School certificate and on
what basis the U. P. Board gave
information that it was actually 1.7.1987
and not 1.7.1986 particularly when the
letter written by Secretary Madhyamik
Shiksha Parishad to the Superintendent of
Police on 18th August, 2007 verifies that
the date of birth of the petitioner was
1.7.1986 and not only that, but in the
counter affidavit also the state has
actually admitted that the date of birth
was 1.7.1986 but they unsuccessfully
tried to make out a case that the date of
birth, was wrongly recorded in the High
School certificate and it was actually
1.7.1987.

24. In the given facts and
circumstances of the case, the writ
petition deserves to be allowed with
compensatory cost as the petitioner has
been ousted from service for no fault of
his and without giving any opportunity of
hearing.

25. I, therefore, while setting aside
the order dated 13.09.2007 dismissing the
petitioner from service, also impose a cost
of Rs.50,000/- upon the State-respondents
which shall be paid to the petitioner
within a period of one month from the
26 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
date of receipt of certified copy of this
order. In case the cost is not paid within
the aforesaid time, the same shall be
recovered as arrears of land revenue by
issuing recovery certificate by Registrar
General of this Court. The cost given to
the petitioner by the State Government
shall be recoverable from the salary of the
erring officers.

26. The writ petition is, therefore,
allowed and the impugned order dated
13.9.2007 is set aside. The petitioner shall
be reinstated into service forthwith. All
the consequential benefits shall also be
given to the petitioner forthwith.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2010.

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Appeal No. 2105 of 1979

Piarey Lal & others ...Appellants (In Jail)
Versus
State of Uttar Pradesh ...Respondent

Counsel for the Appellant:
Sri S. P. Kumar
Sri A.N.Mishra
Sri Amit Saxena,

Counsel for the Opposite Party:
A.G.A.

Code
of
Criminal
Procedure-Section384/385/386---Disposal
of
criminal
appeal against conviction-Trial Court
record
already
weeded
out-session
judge-reported
impossibility
of
reconstruction of record-direction for retrial-infacts and circumstance of the
case-futile-as
occurrence
took
place
before 34 years everything has been
changed-connection
under
section
325/34 I.P.C. in view of law laid down by
apex court- except set-a-side conviction
and to allow the appeal on option before
the court.

Held: Para 18

So far So far as direction of retrial is
concerned, in view of the fact that total
documentary as well as other evidences
have been lost directing for re trial will
be very unfair to the accused persons as
they will never be able to convince the
court that allegations levelled by the
prosecution and the deposition by it's
witnesses are not true. The spot scene
must
have
been
altered
by
now.
Resultantly in consonance with above
exposition of law by the Supreme Court
there is no option left but to allow this
appeal and set aside the impugned
conviction and sentence imposed on the
appellant.
Case law discussed:
2004 SCC (Cr) 901, AIR 1996 SC 2439, AIR
1999 SC 3850, State of U.P. Versus Shankar
1154, AIR 1999 SC 3535, AIR 2005 SC 1250;
AIR 2005 SC 1248.

(Delivered by Hon'ble Vinod Prasad, J.)

1 In this appeal four sibling brothers
Piyare, Hiralal, Puran Lal and Sitaram,
have challenged their conviction under
section 325/34 IPC and imposed sentence
of five years R.I. Recorded by IIIrd Addl
Session Judge, Pilibhit in S.T. No. 109 of
1977, State Vs. Piarey Lal and others,
vide his impugned judgement and order
dated 6.7.1979.

2. In bird's eye view, prosecution
allegations against four appellants are that
on
30.4.1976
at
5.00
p.m.
They
committed murder of Gendan Lal by a
blunt object near a water channel.
Information about the occurrence was
lodged by Lalta Prasad at the police
station Jahahanbad on the same day at