# Vidya Sagar v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 711
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Writ-A No. 8107 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vidya-sagar-v-state-of-u-p-ors-51958
- **Pages:** 6

## Headnote

A. Service Law - Constitution of India -
Article 23 - Begar - Recovery of salary paid
for service discharged during extra period
- Permissibility - Date of birth of the
petitioner, the Assistant Teacher, was
found forged - Board's record reveal DoB
21.01.1955,
however,
High
School
Certificate with DoB 21.01.1950 was
issued - On the complaint, the authority
found
forgery
and
therefore
superannuated the petitioner from service
withholding the post retiral benefits -
Validity challenged - Held, salary received
by the petitioner for the extra years he
served, cannot be recovered from his eSt.
in the hands of his, not even from the
petitioner - Prohibition from recovering
the entire salary, amongst others, was
founded on the principle of prohibiting
begar enshrined in Article 23 of the
Constitution - The petitioner would be
entitled to sanction of a final family
pension worked out on that basis and so
also
gratuity
and
other
post
retiral
benefits, to which she is entitled as the
deceased's
widow
for
the
services
rendered by him. (Para 15 and 19)

Writ petition allowed in part. (E-1)

List of Cases cited:

## Text

5 All. Vidya Sagar Vs. State of U.P. & Ors.
711
Executive Officer (Personnel), Greater
NOIDA by the Registrar (Compliance).

27. There shall be no order as to costs.
----------
(2024) 5 ILRA 711
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2024

BEFORE

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

Writ-A No. 8107 of 2014

Vidya Sagar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamlendra Singh Jadaun, Sri Radha Kant
Ojha, Sri Satyendra Chandra Tripathi

Counsel for the Respondents:
C.S.C., Sri Bhupendra Kumar Yadav, Sri
Shashi Dhar Pandey, Sri Upendra Upadhyay

A. Service Law - Constitution of India -
Article 23 - Begar - Recovery of salary paid
for service discharged during extra period
- Permissibility - Date of birth of the
petitioner, the Assistant Teacher, was
found forged - Board's record reveal DoB
21.01.1955,
however,
High
School
Certificate with DoB 21.01.1950 was
issued - On the complaint, the authority
found
forgery
and
therefore
superannuated the petitioner from service
withholding the post retiral benefits -
Validity challenged - Held, salary received
by the petitioner for the extra years he
served, cannot be recovered from his eSt.
in the hands of his, not even from the
petitioner - Prohibition from recovering
the entire salary, amongst others, was
founded on the principle of prohibiting
begar enshrined in Article 23 of the
Constitution - The petitioner would be
entitled to sanction of a final family
pension worked out on that basis and so
also
gratuity
and
other
post
retiral
benefits, to which she is entitled as the
deceased's
widow
for
the
services
rendered by him. (Para 15 and 19)

Writ petition allowed in part. (E-1)

List of Cases cited:

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

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

1. This writ petition is directed against
an order passed by the Basic Shiksha
Adhikari, Firozabad dated 16.12.2013,
directing inter alia that the petitioner, the
Headmaster of Junior High School, Bhitari,
Block Narkhi, District Firozabad, be
relieved of his duties forthwith having
superannuated, a First Information Report
lodged against him and the payment of his
retiral dues stopped until salary paid to him
in
excess
beyond
the
age
of
his
superannuation is recovered.

2. On 10.02.2014, when this petition
came up for admission, this Court, while
issuing a notice of motion to the other side,
passed an interim order in the following
terms:

"It is directed that the recovery
sought to be made against the petitioner in
pursuance of the impugned order dated
16.12.2013 shall remain stayed till the next
date of listing.

Sri Radha Kant Ojha very fairly
requests that for the time being subject to the
outcome of this writ petition the petitioner
may at least be allowed provisional pension
taking his date of retirement to be 30.6.2012
for his livelihood. Respondents do not have
any objection to this proposal. It is further
directed that treating the date of retirement
712 INDIAN LAW REPORTS ALLAHABAD SERIES
of the petitioner to be 30.6.2012, as
determined by the respondents themselves in
the impugned order, the petitioner will be
entitled to provisional pension treating
30.6.2012 to be his date of retirement, which
will however be subject to final outcome of
the writ petition."

3.

A
counter
affidavit
dated
06.05.2014
was
filed
on
behalf
of
respondent No.4, to which the petitioner
filed a rejoinder on 05.05.2016.

4. Pending the writ petition, the sole
petitioner, Vidya Sagar passed away on
28.08.2023.
An
application
for
substitution was made on behalf of his
widow, Smt. Bitto Devi. It was allowed
vide order 23.11.2023 and she was
brought on record as petitioner No.1/1.
This petition was admitted to hearing on
23.11.2023 as well, which proceeded
forthwith. During hearing on 23.11.2023,
this Court thought it fit to direct the
Secretary, Board of High School and
Intermediate Education, U.P., Prayagraj to
file an affidavit, certifying the date of birth
of Vidya Sagar son of Ram Sahay, the
original petitioner, the year and the
college that he had appeared from in the
Board Examination and the roll number
assigned to him, which were mentioned in
the order, directing the Secretary. The
Secretary was also cautioned about the
fact that the original records may be
required to be produced in Court and the
affidavit, therefore, that he would file,
must indicate the particulars of the records
that he has relied upon. The matter was,
accordingly, adjourned for further hearing
to 30.11.2023. On 30.11.2023, an affidavit
along with an application to accept it on
record was filed on behalf of the
Secretary, Board of High School and
Intermediate Education, U.P., Prayagraj.
The tabulation chart in original was
produced on behalf of the Uttar Pradesh
Board of High School and Intermediate
Education (for short, 'the Board') by Mr.
Girijesh
Kumar
Tripathi,
learned
Additional
Chief
Standing
Counsel,
relating to the High School Examination
of the year 1968 conducted by the Board.
This Court went through the tabulation
chart and recorded in our order of
30.11.2023 that at Sr. No. R/367/12, the
roll number mentioned is 104055 and the
name of the candidate is Vidya Sagar. His
date of birth entered there is 21.01.1950
and his father's name is Ram Sahay. It is
further
recorded
in
our
order
of
30.11.2023 that upon a comparison with
the petitioner's records, it is evident that
the original tabulation chart produced by
the Board relates to the petitioner and the
particulars are referable to him. The
affidavit too carries a copy of the
tabulation chart, which was accepted on
record.
The
hearing
concluded
on
30.11.2023 and judgment was reserved.

5. Heard Mr. Sujeet Kumar Rai,
learned Counsel for the petitioner and Mr.
Girijesh Kumar Tripathi, learned Additional
Chief Standing Counsel appearing on behalf
of the State.

6. The facts giving rise to this writ
petition are these:

The petitioner appeared in the
High School Examination conducted by the
Board in the year 1968, appearing therein
from the M.G.M. Intermediate College,
Jalesar,
Etah.
He
passed
the
said
examination in the 2nd division. The
petitioner
then
sat
his
Intermediate
Examination from the same Board in the
year 1970 and passed it. He earned his
degree of Bachelor of Arts in the year 1972.
5 All. Vidya Sagar Vs. State of U.P. & Ors.
713
The petitioner earned his certificate in
Teachers Basic Training Course in the year
1975, issued by the Department of
Education, Government of U.P.

7. The petitioner was appointed as an
Assistant Teacher, Primary School vide
order dated 20.03.1985. He joined service as
an Assistant Teacher. It is the petitioner's
case that in the High School certificate
issued to the petitioner, his date of birth
mentioned
is
21.01.1955.
When
the
petitioner was appointed as aforesaid, he
produced
his
original
testimonials,
including his High School certificate, on the
basis of which he was permitted to join. The
petitioner's work and conduct was without
blemish and he never earned an adverse
remark or entry in his career. He was
promoted as Assistant Teacher, Junior High
School in the year 2003 and then as
Headmaster in the year 2011. According to the
petitioner, his date of birth entered in his
service-book is 21.01.1955, and, therefore, he
had to retire in the year 2016. The petitioner's
elder brother, Ramesh Chand son of Ram
Sahay, who is older by 8 years, was assisting
the petitioner's father in all matters relating to
the petitioner's education etc. The petitioner's
father was a farmer, unaware of many such
matters. He had entrusted them to his elder
son, Ramesh Chand. It was Ramesh Chand,
who got the petitioner admitted to the
institution, M.G.M. Inter College, Jalesar,
Etah and disclosed his date of birth, that later
on came to be entered in his High School
certificate. The petitioner says that he had full
faith in the bona fides of his brother and
whatever was entered, he accepted it to be true.
In all subsequent educational record, the entry
remained consistent and also in his servicebook.

8. The petitioner's brother was well
aware of his date of birth furnished at the
time of his admission. He moved a
complaint on the Tehsil Diwas to the SubDivisional Magistrate, Sadar, Firozabad on
01.10.2013, saying that the petitioner's date
of birth is 21.01.1950 and yet he was
continuing in service beyond the age of 62
years, reckoned on the basis of a date other
than his actual date of birth. It was alleged
that this continuance in service was on the
basis of a forged document. Appropriate
action in the matter was requested.

9. The aforesaid complaint was made by
Ramesh Chand on the basis of a report dated
29.07.2013 given by the Principal of the
M.G.M. College, Jalesar, Etah. It was a date of
birth certificate, which said that, according to
the school records, the date of birth of the
petitioner, who was a scholar in the College
and appeared in the Board Examination of
1968 under Roll No.104055, was 21.01.1950.
The certificate mentions that the said date of
birth was verified on the basis of the list of
marks maintained with the College. Some
inspection of records were done in the office
of the Board, where it was found that the
petitioner's date of birth recorded there was
indeed 21.01.1950.

10. The petitioner was then served with
the impugned order, holding that, according
to the records of the Board, his date of birth
was 21.01.1950, on the foot of which the
petitioner
would
superannuate
on
30.06.2012. He had forged his certificates
and continued in service. The said order,
which is impugned herein, directed the
petitioner's immediate retirement from
service, the lodging of an FIR and
withholding of his post retiral benefits, until
such time that salary paid to him beyond the
date of his superannuation was recovered.

11. Aggrieved, this writ petition has
been instituted.
714 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The stand taken in the counter
affidavit filed on behalf of the Basic Shiksha
Adhikari, Firozabad is that the petitioner
committed forgery in his High School
certificate and secured service playing fraud
on the respondents.

13. In the rejoinder affidavit, the said
stand is denied and the petitioner says that
he has got appointment on the basis of a
genuine High School certificate and has not
committed any forgery. He has a right to
continue according to the date of birth
mentioned on his High School certificate,
which is 21.01.1955, and not 21.01.1950.

14. Upon hearing learned Counsel for
the parties, this Court finds that it is difficult
to accept the petitioner's case. The
petitioner's
date
of
birth
is
indeed
21.01.1950, and not 19.01.1955. We have
perused the original record, that is to say, the
tabulation chart mentioned in the earlier part
of the judgment. It clear evidences that the
petitioner's date of birth entered in the
records of the Board is 21.01.1950; not
21.01.1955. How then his date of birth on
his High School certificate issued by the
same Board, came to be mentioned as
21.01.1955, is a matter for the petitioner to
explain. There could be some shadow of
doubt that the date of birth mentioned on the
High School certificate was the product of a
mistake, for the correction of which there is
a provision in the regulations of the Board,
but that possibility appears to be remote,
considering the elaborate process through
which certificates of matriculation issued by
the Board passed, even in the day when the
petitioner's certificate was issued. There
would be a number of cross-checks before
the entries were finalized. This need not
detain us if the mistaken entry on the
document, upon which the petitioner places
reliance is the result of a mistake or forgery,
given the fact that the petitioner has not only
been removed from office by the order
impugned, but is also no more in the mortal
world. What is important now is how his
rights, if any, would enure to the benefit of
his widow.

15. Taking matters for the worst that
the petitioner indeed relied on a High School
certificate that is genuine, but got an entry
there about his date of birth that was
manipulated or forged, and on that basis
served some extra years, the question is: Can
the salary received by the petitioner for the
extra years he served, be recovered from his
estate in the hands of his widow? We think
that it could not have been recovered even
from the petitioner. In Sushil Kumar
Pandey v. State of U.P. and others, 2010
(7) ADJ 617 (DB), the writ petitioner had
secured a compassionate appointment on the
basis of a case that his father was a
permanent employee in the Irrigation
Department,
holding
the
post
of
a
Seenchpal. He disappeared on 01.08.1981
and was never seen or heard of by anyone,
who would have naturally heard of him, if
alive. A case of presumption of civil death
was pleaded and the petitioner succeeded in
securing compassionate appointment under
the
Uttar
Pradesh
Recruitment
of
Dependants of Government Servants Dying
in Harness Rules, 1974. Later on, it was
revealed that the petitioner's father was a
temporary employee, who could not be
presumed dead for the purpose of conferring
benefits upon his dependents. He was in fact
terminated from service after due notice on
07.06.1983. It was also found that the
petitioner's father had written a letter to the
Department on 10.06.1983, where he had
expressed his inability to work any further
on account of his domestic problems and
health etc. The Court held that the
petitioner's appointment was rightfully
5 All. Vidya Sagar Vs. State of U.P. & Ors.
715
terminated as it was the result of a fraud.
There was no basis to the claim and,
therefore, no right. The learned Single
Judge,
who
had
upheld
the
order
determining the petitioner's services by the
respondents, was affirmed. The Court found
it to be a case of fraud and did not permit the
writ petitioner-appellant to retain its benefit.
However, so far as recovery of the entire
salary for the period that the disentitled
employee had worked, the Court prohibited
it and limited the recovery to all emoluments
paid to him, except the minimum pay scale
admissible for the post held by the writ
petitioner-appellant in that case. The
prohibition from recovering the entire
salary, amongst others, was founded on the
principle of prohibiting begar enshrined in
Article 23 of the Constitution. In Sushil
Kumar Pandey (supra), it was observed by
the Division Bench:

"23. ........ 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
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.

24. Be that as it may, we can also
not shut our eyes to the fact that the salary
and other service benefits extended to the
appellant was result of a fraud committed by
him as held by the learned Single Judge.
Therefore, being in respectful agreement
with the judgment of the Hon'ble Judge, but
keeping in view the provisions of Article 23
of the Constitution of India, we are of the
view that it would meet the ends of justice if
the order of the learned Single Judge is
modified to the extent that instead of
recovering entire salary paid to the
appellant, it is directed that the authorities
concerned will be entitled to recover all the
amount paid to the appellant from the public
exchequer during the period that he was in
service except the minimum of the pay scale
admissible to the post held by the appellant.
It is further directed that the authorities are
also at liberty to proceed against the
appellant or any other person or employee
found to have been involved in the
commission of the aforesaid fraud in any
manner as may be permissible in law."

16. Here, the case is not one of proven
fraud. If the petitioner had been alive, may
be an inquiry further into the matter, would
have unravelled the truth. He is no longer
there to answer. It is quite possible that
notwithstanding the faith in the accuracy of
certificates generally issued by the Board,
the entry there might indeed have been the
result of a mistake. Nothing much can be
said about it either way except to hold it in
the realm of doubt, if it was indeed fraud or
a mistake after all, committed by the Board's
office. What is sure is that the deceased
716 INDIAN LAW REPORTS ALLAHABAD SERIES
Vidya Sagar's date of birth was in fact
21.01.1950 and not 21.01.1955. Therefore,
the
deceased
did
work
beyond
his
entitlement to serve as he would have
attained the age of superannuation going by
the age of 62 years in the year 2012. Here,
he worked up to the date of the impugned
order dated 16.12.2013. We are also of
opinion that even if he had to retire in the
year 2012, there would be some extended
service for him on account of the rule of
session benefit etc.

17. Be that as it may, the fact is that the
deceased Vidya Sagar rendered service up to
16.12.2013 and received his monthly salary.
His entitlement to salary would only be up
to the date of his superannuation in
accordance with the rule applicable, but to
recover the salary paid from him or his
estate, would indeed be taking begar, under
the circumstances that we have noticed.

18. Added to it is the fact that the
recovery, if any, now directed, would have
to be made from his estate in hands of his
widow. It would be highly inequitable to
direct that and the extension of this equity is
not contrary to the law also.

19. Therefore, this Court holds that no
recovery shall be made from the petitioner,
the deceased Vidya Sagar's widow or his
estate in her hands, including the deceased's
post retiral benefits. Of course, the
deceased's post retiral benefits shall be
finalized
according
to
his
date
of
superannuation worked out on the basis of
his date of birth being 21.01.1950. The
petitioner would be entitled to sanction of a
final family pension worked out on that
basis and so also gratuity and other post
retiral benefits, to which she is entitled as the
deceased's widow for the services rendered
by him. All these benefits and a finally
determined family pension, shall be paid to
the petitioner within a period of six weeks of
the date of receipt of a copy of this order by
respondent Nos.3 and 4. The impugned
order dated 16.12.2013 passed by the Basic
Shiksha Adhikari, Firozabad is quashed to
the extent it directs recovery alone. This writ
petition succeeds and allowed in part in
terms of the orders above made.

20. There shall be no order as to costs.

21. Let a copy of this order be
communicated to the Additional Director of
Education (Basic), Agra Region, Agra and
the Basic Shiksha Adhikari, Firozabad by
the Registrar (Compliance).
----------
(2024) 5 ILRA 716
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

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

Writ-A No. 12902 of 2023

Dhananjay Mishra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Awadh Behari Singh

Counsel for the Respondents:
C.S.C.

A. Service Law - Retirement - Merger of
District Rural Development Agency (DRDA)
with Government Department - Earlier the
petitioners were appointed on the post of
Clerk under the Gandak Project, who were
absorbed in DRDA in pursuance of GO
dated 18.07.2016 - Authority denied
pensionary benefit - Validity challenged -
Petitioner claimed the pensionary benefits