# Pramod Kumar v. State of U.P. and another

- **Citation:** (2012) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-19
- **Case number:** Civil Misc. Writ Petition No. 8587 of 2008
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-kumar-v-state-of-u-p-and-another-42260
- **Pages:** 6

## Headnote

C.S.C.

U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules ,
1974-Rule
2-Petitioner's
selection
canceled-on ground in declaration formDate of Birth shown as 05.07.1986during verification from college Date of
Birth found 02.08.1977-order passed
without affording opportunity-original
certificate produced with specific plea
that there are two persons of similar
name-one Sharma, the other one Yadavpetitioner is Yadav by caste-eventually a
fit case for enquiry-order impugned
entail civil consequences-can not be
passed without taking recourse of the
principle of Natural Justice.

Held: Para 11

It is not the case of respondent that High
School certificate issued to the petitioner
has either been cancelled or annulled by
the Board or any other competent court.
Therefore, I am of the view that as long
as High School certificate issued in the
year 2005 is there, the respondents were
not justified to cancel the selection of
the petitioner on the assumption that he
has passed High School in the year 1992,
particularly in the circumstances where
the petitioner has come with specific
case as stated in paragraph 2 of the
supplementary rejoinder affidavit that
there were two persons of the same
name i.e. Promod Kumar of the same
parentage one belonging to Sharma and
another Yadav by caste. The petitioner
belongs to Yadav by caste. In that
eventuality also this was a case for
inquiry and had the petitioner was ever
offered an opportunity of hearing before
passing the impugned order, this aspect
of the matter ought to have been
explained
and
considered
before
reaching
the
conclusion
that
the
petitioner has played prayed fraud. I find
that the impugned order has vice of
principle of natural justice and it is well
settled law that an order which involves
civil consequences must be just, fair,
reasonable, unarbitrary and in confirmity
with the principles of natural justice.
Case law discussed:
1952 SCR 284; AIR 1952 SC 75:1952 Crl.L.J.
510; (1967) 2 SCR 625; AIR 1967 SC 1269;
(1967) 2 LLJ 266; (1978) 1 SCC 405; (1978) 1
SCC 248; 1993 SCC 259; 2005 (6) SCC 321;
(2007) 6 SCC 668; 2008 (3) ESC 433 (SC)
1 All] Pramod Kumar V. State of U.P. and another
79

## Text

78 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

13. Since said aspect of the matter
has completely been ignored by the
revisional authority, the order passed by
the revisional court dated 08.04.1987 is
hereby set aside.

14. Revision no. 122 of 1983 is
restored to its original number. Let the
same
be
decided
after
affording
opportunity of hearing to the parties
concerned by means of a reasoned order,
preferably within six months from the
date a certified copy of this order is filed
before the revisional court, specifically
in light of the judgment of the Supreme
Court in the case of Mahabir Prasad
Jain (supra).

15. Revision is allowed subject to
the observations made.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 8587 of 2008

Pramod Kumar

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

Counsel for the Petitioner:
Sri Arvind Yadav
Sri Mithilesh Kumar Tiwari

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules ,
1974-Rule
2-Petitioner's
selection
canceled-on ground in declaration formDate of Birth shown as 05.07.1986during verification from college Date of
Birth found 02.08.1977-order passed
without affording opportunity-original
certificate produced with specific plea
that there are two persons of similar
name-one Sharma, the other one Yadavpetitioner is Yadav by caste-eventually a
fit case for enquiry-order impugned
entail civil consequences-can not be
passed without taking recourse of the
principle of Natural Justice.

Held: Para 11

It is not the case of respondent that High
School certificate issued to the petitioner
has either been cancelled or annulled by
the Board or any other competent court.
Therefore, I am of the view that as long
as High School certificate issued in the
year 2005 is there, the respondents were
not justified to cancel the selection of
the petitioner on the assumption that he
has passed High School in the year 1992,
particularly in the circumstances where
the petitioner has come with specific
case as stated in paragraph 2 of the
supplementary rejoinder affidavit that
there were two persons of the same
name i.e. Promod Kumar of the same
parentage one belonging to Sharma and
another Yadav by caste. The petitioner
belongs to Yadav by caste. In that
eventuality also this was a case for
inquiry and had the petitioner was ever
offered an opportunity of hearing before
passing the impugned order, this aspect
of the matter ought to have been
explained
and
considered
before
reaching
the
conclusion
that
the
petitioner has played prayed fraud. I find
that the impugned order has vice of
principle of natural justice and it is well
settled law that an order which involves
civil consequences must be just, fair,
reasonable, unarbitrary and in confirmity
with the principles of natural justice.
Case law discussed:
1952 SCR 284; AIR 1952 SC 75:1952 Crl.L.J.
510; (1967) 2 SCR 625; AIR 1967 SC 1269;
(1967) 2 LLJ 266; (1978) 1 SCC 405; (1978) 1
SCC 248; 1993 SCC 259; 2005 (6) SCC 321;
(2007) 6 SCC 668; 2008 (3) ESC 433 (SC)
1 All] Pramod Kumar V. State of U.P. and another
79
(Delivered by Hon'ble Ran Vijai Singh,J.)

1. The petitioner, through this writ
petition has prayed for issuing a writ of
certiorari quashing the order dated
25.09.2007 passed by Superintendent of
Police Baghpat by which he has
cancelled the selection of the petitioner
as recruit constable.

2. From the perusal of the
impugned order, it transpires that the
selection has been cancelled on the
ground that the petitioner has shown his
date of birth while entering into the
service as 05.07.1986, which later on,
after verification from the college was
found as 02.08.1977 and therefore, in
view of the declaration made to the effect
that if during the verification any false
declaration is found, the service shall be
terminated without any notice.

3. The aforesaid order has been
challenged on the ground that before
passing the said order, no opportunity of
hearing was given to the petitioner and
had the opportunity was given, the
petitioner would have been able to
explain the situation. The petitioner is
still pressing that his real date of birth is
05.07.1986 and not 02.08.1977.

4. A counter affidavit has been filed
in which it is stated that the petitioner
namely Pramod Kumar S/o Sri Amar
Singh has passed High School some
where in between 1990-1992 from Sri
Kisan Vidyapeeth Inter College Dalipur,
Auraiya
and
passed
Intermediate
examination in the year 1998 from
Rastriya Inter College Udarkot and again
in the year 2005 has passed the High
School examination after reducing the
date of birth from Sant M.S.Madhyamik
Vidyalaya, Phool Sahai Nagar (Barauni
Kalan) District Auraiya which fact has
been revealed during the verification.

5. I have heard learned counsel for
the petitioner and learned Standing
Counsel.

6. The petitioner has brought on
record the High School certificate.
According to him, he has passed High
School examination in the year 2005
with Roll No. 1318375 and there the date
of birth is recorded as 05.07.1986. The
petitioner has entered into the service on
the basis of High School certificate. It
appears that some complaint has been
made and on that basis an exparte inquiry
was conducted by the Superintendent of
Police and on the basis of aforesaid
exparte
inquiry
report,
petitioner's
service has been terminated. It is not in
dispute when the services of the
petitioner
was
terminated,
he
was
holding a post under the government and
was government servant, as such the date
of birth of the government servant is to
be determined on the basis of the Uttar
Pradesh
Recruitment
to
Services
Determination of Date of Birth Rules,
1974 (herein after referred to as 1974
Rule).

7. For better appreciation the
relevant Rule 2 of the 1974 Rule as
amended by first amendment in the year
1980 is reproduced below by splitting it
into three parts.

(a)
The
date
of
birth
of
a
Government servant as recorded in the
certificate of his having passed the High
School or equivalent examination at the
time of his entry into the Government
service.
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(b) Where a Government servant has
not passed any such examination as
aforesaid or has passed such examination
after joining the service, the date of birth
or the age recorded in his service book at
the time of his entry into the Government
service shall be deemed to be his
correct date of birth or age, as the case
may be, for all purposes in relation to
his service, including eligibility for
promotion,
superannuation,
premature retirement or retirement
benefits and,

(c ) No application or representation
shall be entertained for correction of
such date or age in any circumstances
whatsoever.

8. The aforesaid rules provide that
for determination of the date of birth if
an employee entered into the government
service
after
passing
high
school
examination then the date of birth as
recorded in the High School certificate
shall be deemed to be correct and if he
has entered into the service before
passing the High School examination
then the date of birth recorded in the
service book shall be deemed to be
correct. The deeming provisions is a
legal
friction
provided
under
the
aforesaid rules, meaning thereby even if
the same is not the actual one even then
in view of legal friction that will be
deemed to be correct.

9. Here it is not in dispute that the
petitioner has entered into service after
passing High School, therefore, for the
purpose of determination of date of birth,
the date of birth as recorded in the
service book shall be treated to be
correct for all purposes unless that is
cancelled or annulled either by the Board
or by the competent court.

10. Here in the present case on a
complaint of private individual the High
School certificate which is the sheet
anchor of the petitioner's case has been
ignored on the ground that the petitioner
has
earlier
passed
High
School
Examination and he has played fraud not
only on the department but also on the
Board.

11. Suffice it to say, where any
action is taken on the basis of fraud then
in that eventuality mere allegations of
fraud is not sufficient for taking action
against a person unless it is pleaded and
proved. I am of the view that once the
authorities have come to the conclusion
that the petitioner has second time
appeared
in
the
High
School
Examination with a view to get reduce
his date of birth and passed High School
in the year 2005 then certainly it was a
case of fraud but for that it was to be
somewhere pleaded and proved either by
way of lodging criminal proceeding or
through disciplinary proceeding under
the Rules governing the petitioner
service. It is not the case of respondent
that High School certificate issued to the
petitioner has either been cancelled or
annulled by the Board or any other
competent court. Therefore, I am of the
view that as long as High School
certificate issued in the year 2005 is
there, the respondents were not justified
to cancel the selection of the petitioner
on the assumption that he has passed
High
School
in
the
year
1992,
particularly in the circumstances where
the petitioner has come with specific
case as stated in paragraph 2 of the
supplementary rejoinder affidavit that
1 All] Pramod Kumar V. State of U.P. and another
81
there were two persons of the same name
i.e. Promod Kumar of the same parentage
one belonging to Sharma and another
Yadav by caste. The petitioner belongs to
Yadav by caste. In that eventuality also
this was a case for inquiry and had the
petitioner
was
ever
offered
an
opportunity of hearing before passing the
impugned order, this aspect of the matter
ought to have been explained and
considered
before
reaching
the
conclusion that the petitioner has played
prayed fraud. I find that the impugned
order has vice of principle of natural
justice and it is well settled law that an
order which involves civil consequences
must be just, fair, reasonable, unarbitrary
and in confirmity with the principles of
natural justice. The main aim of the
principle of natural justice is to secure
justice or to put it negatively to prevent
miscarriage of the justice.

The Apex Court in the case of State
of W.B. v. Anwar Ali Sarkar, 1952
SCR 284; AIR 1952 SC 75: 1952
Crl.L.J. 510; per majority, a seven
judge Bench held that the rule of
procedure laid down by law comes as
much within the purview of Article 14 of
the Constitution.

In State of Orissa v Dr. (Miss)
Binapani Dei, (1967) 2 SCR 625; AIR
1967 SC 1269'; (1967) 2 LLJ 266. It is
observed that even an administrative
order
which
involves
civil
consequences
must
be
made
consistently with the rules of natural
justice. The person concerned must be
informed of the case, the evidence in
support thereof supplied and must be
given a fair opportunity to meet the case
before an adverse decision is taken.
Since no such opportunity was given it
was held that superannuation was in
violation of principles of natural justice.

In Mohinder Singh Gill v. Chief
Election Commissioner, (1978) 1 SCC
405; the Constitution Bench held that
'civil consequences' covers infraction of
not merely property or personal right but
of civil liberties, material deprivations
and non- pecuniary damages. In its
comprehensive connotation everything
that affects a citizen in his civil life
inflicts a civil consequence.

In Maneka Gandhi Vs. Union of
India(1978)1 SCC 248; another Bench
of seven judges held that the substantive
and procedural laws and action taken
under them will have to pass the test
under article 14. The test of reasons and
justice cannot be abstract. They cannot
be divorced from the needs of the nation.
The tests have to be pragmatic otherwise
they would cease to be reasonable. The
procedure prescribed must be just,
fair and reasonable even though there
is no specific provision in a statute or
rules made thereunder for showing
cause against action proposed to be
taken against an individual, which
affects the right of that individual. The
duty to give reasonable opportunity to
be heard will be implied from the
nature of the function to be performed
by the authority whichhas the power
to take punitive or damaging action.
Even executive authorities which take
administrative
action
involving
any
deprivation of or restriction on inherent
fundamental rights of citizens, must take
care to see that justice is not only done
but manifestly appears to be done. They
have a duty to proceed in a way which is
free from even the appearance of
arbitrariness,
unreasonableness
or
82 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
unfairness. They have to act in a manner
which is patently impartial and meets the
requirement of natural justice.

The law must therefore be now
taken to be well settled that procedure
prescribed for depriving a person of
livelihood must meet the challenge of
Article 14 and such law would be liable
to be tested on the anvil of Article 14 and
the procedure prescribed by a statute or
statutory rule or rules or orders affecting
the civil right or result in civil
consequences would have to answer the
requirement of Article 14. So it must be
right, just and fair and not arbitrary,
fanciful or oppressive. There can be no
distinction
between
a
quasi-judicial
function and an administrative function
for the purpose of principles of natural
justice. The aim of both administrative
inquiry as well as the quasi judicial
inquiry is to arrive at a just decision and
if a rule or natural justice is calculated to
secure justice or to put in negatively, to
prevent miscarriage of justice, it is
difficult to see why it should be
applicable only to quasi- judicial inquiry
and not to administrative inquiry. It must
logically apply to both.

Therefore,
fair
play
in
action
requires that the procedure adopted must
be just, fair and reasonable. The manner
of exercise of the power and its impact
on the rights of the person affected
would be in conformity with the
principles of natural justice. Article 21
clubs life with liberty, dignity of person
with means of livelihood without which
the glorious content of dignity of person
would be reduced to animal existence.
When it is interpreted that the colour and
content of procedure established by law
must be in conformity with the minimum
fairness and processual justice, it would
relieve legislative callousness despising
opportunity of being heard and fair
opportunities of defence. Article 14 has a
pervasive
processual
potency
and
versatile quality, equalitarian in its soul
and allergic to discriminatory dictates.
Equality is the antithesis of arbitrariness.
It is thereby, conclusively held by this
Court that the principles of natural
justice are part of Article 14 and the
procedure prescribed by law must be
just, fair and reasonable.

12. The Apex Court in the case of
D.K.Yadav Vs. J.M.A. Industries Ltd.
Reported in 1993,SCC 259 has made the
following observations:

The cardinal point that has to be
borne in mind, in every case, is whether
the person concerned should have a
reasonable opportunity of presenting his
case and the authority should act fairly,
justly, reasonably and impartially. It is
not so much to act judicially but is to act
fairly, namely, the procedure adopted
must be just, fair and reasonable in the
particular circumstances of the case. In
other words application of the principles
of natural justice that no man should be
condemned unheard intends to prevent
the authority from acting arbitrarily
effecting the rights of the concerned
person.

It is fundamental rule of law that no
decision must be taken which will affect
the right of any person without first
being informed of the case and giving
him/her
an
opportunity
of
putting
forward his/her case. An order involving
civil
consequences
must
be
made
consistently with the rules of natural
justice.
1 All] Badka and others V. District Magistrate Bahraich and others
83

13. Same view has been reiterated
in the cases of Canara Bank Vs. V.K.
Awasthy,
2005
(6)
SCC
321;
Bidhannagar
(Salt
Lake)
Welfare
Assn. Vs. Central Valuation Board
and others, (2007) 6 SCC 668; and
Devdutt Vs. Union of India and others,
2008 (3) ESC 433 (SC). The basic idea
of observing the principles of natural
justice is to secure justice or to put it
negatively to prevent miscarriage of
justice. The aforesaid decisions still hold
field
and
have
been
followed
in
numerous
cases,
decided
thereafter,
which need not to be detailed here.

14. In view of the foregoing
discussions the writ petition succeeds
and is allowed The impugned order dated
25.09.2007 passed by Superintendent of
Police Baghpat is hereby quashed. The
respondents are directed to reinstate the
petitioner forthwith in service. It is also
provided that this order will not preclude
the respondents to pass fresh order in
accordance with law. It is also clarified
that the petitioner shall be entitled only
current salary and the payment of back
wages will depend on the fate of the
inquiry, if any. In case the department do
not hold any inquiry the petitioner shall
be entitled only 50% of the back wages.
It is further provided the final decision in
this regard be taken by the department
expeditiously
preferably
within
six
months from the date of receipt of
certified copy of the order of this Court.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.01.2012

BEFORE
THE HON'BLE DEVI PRASAD SINGH,J.
THE HON'BLE S.C. CHAURASIA,J.

MISC. BENCH No. - 8925 of 2011

Badka and others

 ...Petitioner
Versus
District Magistrate Bahraich and others

 ...Respondent

Counsel for the Petitioner:
Mohd. Nafees
Sri V.P.Nagaur

Counsel for the Respondents:
C.S.C.
Sri D.R.Misra

Constitution of India, Article 226-non
supply of essential commodities to BPL
card holder-only reason disclosed on
certain irregularity committed by dealersupply could not be made-shocking state
of affairs-general Mandamus issued-the
secretary to issue guide lines circular-all
concern authorities at the time of
passing suspension-cancellation order
simultaneously alternative arrangement
for
un-interrupted
distribution-and
allotment order must be passed.

Held: Para 10

 Let the Chief Secretary of the State of
U.P. issue appropriate order or circular
keeping
in
view
the
aforesaid
observations to safeguard the interest of
B.P.L. card holders and other persons
belonging to below poverty line for
continuance
supply
of
essential
commodities during the pendency of
enquiry against the fair price shop dealer
or in the event of stoppage of supply of
essential commodities by the fair price
shop dealers.