# Jay Pal Singh v. State of U.P. & Ors

- **Citation:** (2025) 3 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-03-24
- **Case number:** Writ - A No. 14895 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jay-pal-singh-v-state-of-u-p-ors-53075
- **Pages:** 7

## Headnote

A. Service Law - Superannuation - Date of
birth - Recovery of salary - It is a well
settled principle of law that if an employer
takes
work
from
an
employee
in
consequence of a mistake, the employee
cannot be denied his remuneration or
salary. If denial were permitted on ground that
the continuance in office of the employee and
the rendering of service by him was without
authority of the law, it would amount to the
taking of begar, prohibited u/Article 23 of the
Constitution.

The respondents here are the St. and they
certainly cannot take begar from the petitioner
for the extra year that he has served them. It is
not that the petitioner has rendered pro bono
service. Immediately before 30.06.2014, the
petitioner was entitled to work in the employ of
the respondents and for the next one year, he
was permitted to work, on account of a
mistaken DOB recorded in the character roll.
The petitioner is not a wayfarer or a trespasser
in office. He was a duly appointed SubInspector, who was permitted to continue
discharging his duties with the respondents
believing that he had to superannuate after a
year, on the foot of his DOB being 13.06.1955.
In these circumstances, it would be a
constitutionally prohibited begar, if the
respondents are permitted to recover the
remuneration,
which
the
petitioner
received for the period 01.07.2014 to
30.06.2015. (Para 18)

B. In the case here, the respondents may
be right about the petitioner's age, but the
petitioner too has not played any fraud or
acted mala fide. The incorrect entry in the
character roll about the petitioner's DOB cannot
be blamed on the petitioner. The respondents
have to take responsibility for that entry,
whether scored out and corrected or recorded
free from blemish. The petitioner too had basis
to believe bona fide that he would be entitled to
continue until 30.06.2015, because his DOB
recorded in the High School Certificate is
13.06.1955. Therefore, if the respondents
permitted the petitioner to continue on the basis
that his DOB was 13.06.1955, they may be right
in correcting it to 13.06.1954, but the petitioner
is also not utterly wrong in the sense the mind
of the one, who was out to play a fraud, would
have worked. There is nothing like that in the
petitioner's case. (Para 21)

The petitioner would be entitled to the
computation of his post retiral benefits and the
determination and payment of his final pension
regarding his date of superannuation to be
30.06.2014; not 30.06.2015. This will be done
on the basis that his DOB is 13.06.1954. (Para
23)

Writ petition allowed in part. (E-4)

Precedent followed:

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES
Eastern Railway, Gorakhpur, all through
the learned Chief Judicial Magistrate,
Gorakhpur.
----------
(2025) 3 ILRA 902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 14895 of 2017

Jay Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Vijay Gautam, Vinod Kumar Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Superannuation - Date of
birth - Recovery of salary - It is a well
settled principle of law that if an employer
takes
work
from
an
employee
in
consequence of a mistake, the employee
cannot be denied his remuneration or
salary. If denial were permitted on ground that
the continuance in office of the employee and
the rendering of service by him was without
authority of the law, it would amount to the
taking of begar, prohibited u/Article 23 of the
Constitution.

The respondents here are the St. and they
certainly cannot take begar from the petitioner
for the extra year that he has served them. It is
not that the petitioner has rendered pro bono
service. Immediately before 30.06.2014, the
petitioner was entitled to work in the employ of
the respondents and for the next one year, he
was permitted to work, on account of a
mistaken DOB recorded in the character roll.
The petitioner is not a wayfarer or a trespasser
in office. He was a duly appointed SubInspector, who was permitted to continue
discharging his duties with the respondents
believing that he had to superannuate after a
year, on the foot of his DOB being 13.06.1955.
In these circumstances, it would be a
constitutionally prohibited begar, if the
respondents are permitted to recover the
remuneration,
which
the
petitioner
received for the period 01.07.2014 to
30.06.2015. (Para 18)

B. In the case here, the respondents may
be right about the petitioner's age, but the
petitioner too has not played any fraud or
acted mala fide. The incorrect entry in the
character roll about the petitioner's DOB cannot
be blamed on the petitioner. The respondents
have to take responsibility for that entry,
whether scored out and corrected or recorded
free from blemish. The petitioner too had basis
to believe bona fide that he would be entitled to
continue until 30.06.2015, because his DOB
recorded in the High School Certificate is
13.06.1955. Therefore, if the respondents
permitted the petitioner to continue on the basis
that his DOB was 13.06.1955, they may be right
in correcting it to 13.06.1954, but the petitioner
is also not utterly wrong in the sense the mind
of the one, who was out to play a fraud, would
have worked. There is nothing like that in the
petitioner's case. (Para 21)

The petitioner would be entitled to the
computation of his post retiral benefits and the
determination and payment of his final pension
regarding his date of superannuation to be
30.06.2014; not 30.06.2015. This will be done
on the basis that his DOB is 13.06.1954. (Para
23)

Writ petition allowed in part. (E-4)

Precedent followed:

1. Sushil Kumar Pandey Vs St. of U.P. & ors.,
2010 (7) ADJ 617 (DB) (Para 19)

2. Man Singh Vs St. of U.P., 2022 SCC OnLine SC
726 (Para 22)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order of the Superintendent of Police,
3 All. Jay Pal Singh Vs. State of U.P. & Ors.
903
Shamli dated 08.07.2016, holding that the
petitioner's date of birth was 13.06.1954
and not 13.06.1955 and that, therefore, he
had served an extra year beyond his age of
superannuation. The order on this premise
directs recovery of a year's salary that the
petitioner had drawn beyond his date of
superannuation reckoned on the basis of his
date of birth being 13.04.1954.

2. Apart from questioning the
recovery, the petitioner also prays that a
mandamus
be
granted,
ordering
the
respondents to pay the petitioner his
provident
fund,
commuted
value
of
pension, leave encashment and further to
pay his final pension instead of a
provisional pension. The petitioner also
claims arrears of pension due on account of
regular pension together with interest.

3. The petitioner retired as a SubInspector (Special Category) from the State
Police
upon
attaining
the
age
of
superannuation on 30.06.2015. He was last
posted at Police Station Jhinjhana, District
Shamli. He was a Group-C employee. After
retirement, the petitioner was sanctioned a
provisional pension, paid his gratuity and
group insurance, but not the provident
fund, commuted pension, leave encashment
and final pension.

4. After the petitioner's retirement,
a preliminary inquiry was held into his
conduct with regard to the interpolation of
his date of birth in the character roll. Based
on the preliminary inquiry, he was issued
with a show cause notice dated 29.03.2016,
saying why salary for one year that he
served beyond his age of superannuation be
not recovered. It is said in the show cause
notice
that
after
his
retirement
on
30.06.2015, upon a perusal of his service
records, it was found that his date of birth
in the service record had been changed to
13.06.1955 in place of 13.06.1954. The
petitioner was required to submit his
explanation to the show cause within
fifteen days. The petitioner submitted his
reply to the show cause notice on
15.04.2016 before the Superintendent of
Police, Shamli. He denied the allegations
and categorically said that his date of birth
was 13.06.1955. He said that there is no
interpolation done by the petitioner in the
character roll. It was asserted in his answer
to the show cause that in his High School
certificate, the petitioner's date of birth is
clearly recorded as 13.06.1955, which is his
correct and genuine date of birth. The
petitioner enclosed a photostat copy of his
High School Certificate along with his
reply. He further said that he would
produce
the
original
High
School
Certificate issued by the U.P. Board of
High School and Intermediate Education,
Allahabad (for short, 'the Board') before
the Superintendent of Police.

5. The petitioner's case is that he
was appointed as a Constable and his
appointment has been made on the basis of
his High School Marksheet and Certificate
earned from the Board. The petitioner's
High School Certificate as well as the
Marksheet clearly show his date of birth as
13.06.1955. The petitioner passed his High
School examination in the year 1973
conducted
by
the
Board
with
Roll
No.624710.

6. The Superintendent of Police,
Shamli proceeded to reject the petitioner's
explanation to the show cause and, holding
his date of birth to be 13.06.1954, directed
recovery of salary from the petitioner for
the period of one year that he had served
extra on account of his incorrect date of
birth, to wit, 30.06.1955, which the
904 INDIAN LAW REPORTS ALLAHABAD SERIES
Superintendent
of
Police
says
was
interpolated in the service records by
scoring out the earlier date of birth
recorded as 13.06.1954.

7. Aggrieved, this writ petition has
been instituted.

8. A notice of motion was issued
on 05.05.2017 and interim stay of the
operation of the impugned order granted.
The petitioner has filed a supplementary
whereas respondent Nos.2 to 4 have filed a
counter affidavit. A short counter affidavit
has been filed on behalf of respondent
No.1, which is formal.

9.
Learned
Counsel
for
the
petitioner waived his right to file a
rejoinder.

10. The parties having exchanged
affidavits, the petition was admitted to
hearing,
which
proceeded
forthwith.
Judgment was reserved.

11. Heard Mr. Devesh Mishra,
learned Counsel for the petitioner in
support of this petition and Mr. Sharad
Chandra
Upadhyay,
learned
Standing
Counsel appearing on behalf of the State.

12. Upon hearing learned Counsel
for the parties, what this Court finds is that
in the preliminary inquiry held by the
Circle Officer, Jhinjhana, District Shamli, it
transpired that the petitioner appeared in
the High School Examination as a regular
candidate from the Gandhi Smarak Inter
College, Doghat, District Baghpat in the
year 1971 and failed the High School
Examination conducted by the Board. The
petitioner's High School Certificate for the
examination of 1973 available on the
petitioner's service record when sent for
verification to the Gandhi Smarak Inter
College, Doghat, District Baghpat, led to
the College Principal submitting a report
that the petitioner while he sat the High
School Examination of 1971 from their
institution, had his date of birth recorded as
13.06.1954. The High School Examination
of 1973 that the petitioner passed was done
not as an institutional candidate, but as a
private one. There is a scholar register and
transfer certificate form, also available on
the
service
record,
where
too
the
petitioner's date of birth recorded is
13.06.1954. In the Head Constable Cadet
Form, the petitioner's date of birth recorded
is 13.06.1954. In the character roll at Page
2, after the Sub-Inspector's name and
address, his date of birth recorded was
13.06.1954, which was later on scored out
and changed to 13.06.55. It is also noticed
that at the time of recruitment, the
petitioner had filled up his application form
in his own hand and duly signed it, where
too he has mentioned his date of birth as
13.06.1954. It is on all this evidence that
the
Officer,
holding
the
preliminary
inquiry, came to the conclusion that
notwithstanding the recorded date of birth
in the petitioner's High School Certificate,
his date of birth, originally recorded as
13.06.1954, was the correct date of birth,
that was scored out and got changed to
13.06.55.

13. The Superintendent of Police
has apparently acted on these findings of
the Officer, conducting the preliminary
inquiry, to opine the petitioner's date of
birth is 13.06.1954 and not 13.06.1955. It is
also true, as we read the impugned order,
that the Superintendent of Police has not
recorded any reasons for his conclusions,
which he ought have done, but the
preliminary
inquiry
that
looks
into
underlying evidence about the petitioner's
3 All. Jay Pal Singh Vs. State of U.P. & Ors.
905
date of birth is consistent right up to the
application form for recruitment and the
Head
Constable
Cadet
Form.
The
recruitment form carries the date of birth
13.06.1954 in the petitioner's own hand,
which he has signed. The scholar register
and transfer certificate form, which must be
from the school, where the petitioner earlier
read, available on record, also shows the
petitioner's recorded date of birth as
13.06.1954.

14. It must be remarked here that
generally speaking and invariably so, the
High School Certificate has to be given
precedence over any other evidence about
an
employee's
date
of
birth.
The
evidentiary value of a High School
Certificate about the employee's date of
birth recorded there, is almost unignorable.
We too would have followed the date of
birth recorded for the petitioner in his High
School Certificate, the genuineness of
which has not been shown to be doubtful
by the respondents, but for some special
features in this case.

15. So far as the scoring out of the
date in the petitioner's character roll from
13.06.1954 to 13.06.55 is concerned, there
was no difficulty in accepting the corrected
entry as the true one for that accords with
the date of birth recorded in the High
School Certificate. So far as the scoring out
of the earlier entry is concerned, it is
something which the respondents have to
explain, because the character roll remains
in their custody; not the petitioner's. The
chief feature, which makes a distinction in
this case is the fact that there is a consistent
record of the petitioner's date of birth in his
scholar register and transfer certificate
available on record from some institution,
where he studied and the Gandhi Smarak
Inter College, Doghat, District Baghpat,
where he sat his High School Examination
in the year 1971 and failed. It shows the
petitioner's date of birth to be 13.06.1954.
Above all is the fact that in the application
form that the petitioner filled in his own
hand, the petitioner has written his date of
birth as 13.06.1954. In his Head Constable
Cadet Form-2, the date mentioned is
13.06.1954. This, therefore, is a case,
where in our opinion, the respondents have
not gone wrong in questioning the
petitioner's date of birth, scored out and
changed
in
the
character
roll
from
13.06.1954 to 13.06.55, holding the former
to be the correct date of birth and
determining his age of superannuation
accordingly.

16. The flaw in the S.P.'s order of
lacking in reasons is there, but that is amply
made up for by the material, on which it is
based. We are not inclined to disturb it on
that ground, because a remand would only
be a waste of time and may lead to the
same inference, very reasonably drawn
with reasons furnished. In substance, it is a
case where no prejudice can be said to have
been occasioned to the petitioner by the
absence of reasons in the order impugned.
No different conclusion, on any view of the
matter, can possible be reached.

17. This takes us to the next limb
of the matter, which the learned Counsel
for the petitioner has again argued with
much vehemence. It is said that if the
petitioner, for whatever reason, has worked
in the establishment of the respondents up
to 30.06.2015, treating his date of birth to
be 13.06.1955, the respondents cannot
recover salary paid to him for the period of
time that he has rendered service to them.
Mr. Sharad Chandra Upadhyay, learned
Standing Counsel, on the other hand, urged
on behalf of the State with equal
906 INDIAN LAW REPORTS ALLAHABAD SERIES
vehemence
that
the
petitioner's
continuance after 30.06.2014 is a nullity
and dehors the rules as he superannuated on
30.06.2014, going by his correct date of
birth. No remuneration could be paid to
him for reason that he was not lawfully
holding the post during that period of time.
We do not agree with the learned Standing
Counsel on this point.

18. It is a well settled principle of
law that if an employer takes work from an
employee in consequence of a mistake, the
employee
cannot
be
denied
his
remuneration or salary. If denial were
permitted on ground that the continuance in
office of the employee and the rendering of
service by him was without authority of the
law, it would amount to the taking of
begar, prohibited under Article 23 of the
Constitution. The respondents here are the
State and they certainly cannot take begar
from the petitioner for the extra year that he
has served them. It is not that the petitioner
has rendered pro bono service. Immediately
before 30.06.2014, the petitioner was entitled
to work in the employ of the respondents and
for the next one year, he was permitted to
work, on account of a mistaken date of birth
recorded in the character roll. The petitioner
is not a wayfarer or a trespasser in office. He
was a duly appointed Sub-Inspector, who was
permitted to continue discharging his duties
with the respondents believing that he had to
superannuate after a year, on the foot of his
date of birth being 13.06.1955. In these
circumstances, it would be a constitutionally
prohibited begar, if the respondents are
permitted to recover the remuneration, which
the petitioner received for the period
01.07.2014 to 30.06.2015.

19.
In
the
context
of
a
compassionate
appointment,
that
was
secured
by playing
fraud
upon
the
employers, in that, that the deceased
employee, whose dependent had claimed
appointment, was 10 years afterwards
discovered to be a temporary hand, who
had been dismissed from service. While
holding the compassionate appointee's
dismissal from service to be valid, the
employers were not held entitled to recover
the entire salary for the period of ten years
that the compassionate appointee had
actually worked for them on the basis of his
fraudulent appointment. This happened in
Sushil Kumar Pandey v. State of U.P.
and others, 2010 (7) ADJ 617 (DB),
where a Division bench of this Court
observed:

 "23.
Therefore,
upon
the
aforesaid discussions, we are of the view
that the judgment of the learned Single
Judge does not call for any interference.
However,
we
have
our
reservation
regarding the portion of the order by which
the learned Single Judge has directed for
recovery of salary that was paid to the
appellant.
Considering
the
facts
and
circumstances of the case, it is undeniably
true that fraud has been played in obtaining
the appointment by the appellant and it is
also true that the said fraud would have
remained undetected if the mother of the
appellant had not applied for family
pension. During this period more than 10
years had elapsed and the authorities
continued to take work from the appellant
and for the services rendered he was
remunerated by salary. Now after 10 years
of service as the appellant has been
dismissed, in such a case, the recovery of
entire salary from the person would be too
severe for the acts and omission on his part
but also the omission and negligence on the
part
of
the
authorities
in
granting
appointment to the appellant, which in the
facts of the case cannot be ruled out. Even
3 All. Jay Pal Singh Vs. State of U.P. & Ors.
907
otherwise Article 23 of the Constitution of
India prohibits taking of 'Begar'. The Staterespondents having taken work from the
appellant (Sushil Kumar Pandey) for more
then 10 years before the fraud was
detected, cannot be permitted to ask for
refund of the entire salary paid to him as it
would amount to taking of 'Begar' which
the Constitution of India strictly prohibits."

20. This Court must notice that in
the Bench decision in Sushil Kumar
Pandey (supra), what the employers were
held not entitled to recover was salary paid
on the minimum pay-scale; not the
allowances and other emoluments. It has to
be borne in mind that Sushil Kumar
Pandey was a case of an utter fraud in
securing
employment
and
thereafter
rendering service. In cases where the
employee's appointment and principal part
of the service is not at all the result of a
fraud, but a position validly held under the
law until a particular date and the issue
being about salary paid for the extra period
of time that the employee was permitted to
work by the employer beyond the age of
superannuation,
the
protection
from
recovery cannot be limited to the minimum
basic pay-scale.

21.
In
the
case
here,
the
respondents may be right about the
petitioner's age, but the petitioner too has
not played any fraud or acted mala fide.
The incorrect entry in the character roll
about the petitioner's date of birth cannot
be
blamed
on
the
petitioner.
The
respondents have to take responsibility for
that entry, whether scored out and corrected
or recorded free from blemish. The
petitioner too had basis to believe bona fide
that he would be entitled to continue until
30.06.2015, because his date of birth
recorded in the High School Certificate is
13.06.1955. Therefore, if the respondents
permitted the petitioner to continue on the
basis that his date of birth was 13.06.1955,
they may be right in correcting it to
13.06.1954, but the petitioner is also not
utterly wrong in the sense the mind of the
one, who was out to play a fraud, would
have worked. There is nothing like that in
the petitioner's case.

22. About the right to recover, a
similar question arose before the Supreme
Court in Man Singh v. State of U.P., 2022
SCC OnLine SC 726, where the facts and
the principle are expressed by their
Lordships with inimitable brevity thus:

 "3. The appellant was appointed
as a principal in the year 1974-1975 when
junior High School was upgraded as High
School and was recognized by the State
Government. Thus, the appellant has
worked for almost 24 years before the
services came to be cancelled for the reason
that he is relative of the member of the
Selection Committee.

 4. The order dated 24.12.1998
also records that the money be recovered
from the appellant which has been paid to
him, as a result of his irregular appointment
for the post of Principal.

 5. We find that the High Court
has failed to consider the fact that even if
the
appointment
was
irregular,
the
appellant had discharged the duties and in
lieu of duties, he had to be paid. The State
cannot take any work from any employee
without payment of any salary."

23. In the circumstances that we
have noticed here, this Court is of opinion
that no recovery from the petitioner of a
sum equivalent to that paid in salary and
908 INDIAN LAW REPORTS ALLAHABAD SERIES
other emoluments to him during the period
01.07.2014 to 30.06.2015 can be made. The
petitioner
would
be
entitled
to
the
computation of his post retiral benefits and
the determination and payment of his final
pension
regarding
his
date
of
superannuation to be 30.06.2014; not
30.06.2015. This will be done on the basis
that his date of birth is 13.06.1954.

24. In the result, this petition
succeeds and is allowed in part. The
impugned order dated 08.07.2016 passed
by the Superintendent of Police, Shamli
insofar as it directs recovery of an
amount of money equivalent to one
year's salary from the petitioner is hereby
quashed. The part of the impugned order,
determining the petitioner's date of birth
as 13.06.1954 is upheld. A mandamus is
issued to the Additional Director General
of
Police,
Headquarters,
Prayagraj/
Lucknow, the Inspector General of
Police, Meerut Range, Meerut and the
Superintendent of Police, Shamli to
ensure amongst themselves immediate
payment of the petitioner's provident
fund due, if any, the value of his
commuted pension, leave encashment and
final pension worked out in the manner
directed in this judgment. The arrears of
pension, provident fund, if not already
paid, the commuted value of pension and
leave encashment shall all be payable to
the petitioner with 6% simple interest
with annual rest.

25. There shall be no order as to
costs.

26. Let a copy of this order be
communicated to the Additional Director
General of Police, Headquarters, Prayagraj/
Lucknow, the Inspector General of Police,
Meerut
Range,
Meerut
and
the
Superintendent of Police, Shamli by the
Registrar (Compliance).
----------
(2025) 3 ILRA 908
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2025

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ A No. 18731 of 2024
alongwith other connected cases

Gaurav Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Nitish Shakya, Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Kushmondeya Shahi

A. Service Law - Appointment - U.P.
Secondary Education Services Selection
Board Act, 1982 - Rule 12 r/w Rules of
1998 - Even a selected candidate has no
indefeasible right of appointment and
there must be a timeline to conclude a
process and in present case, recruitment
process was initially initiated in 2013 i.e. about
12 years ago and last supplementary select list
was published in 2018 i.e. 7 years ago and to
continue such process after so many years could
not be reasonable. (Para 16)

Writ petitions dismissed. (E-4)

Precedent followed:

Sudesh Kumar Goyal Vs St. of Har. & ors., 2023
INSC 842; (2023) 10 SCC 54 (Para 16)

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard S/Sri Prabhakar Awasthi,
Abhishek Kumar Saroj, Rahul Agarwal,