Allahabad High Court
Uday Bhan Yadav vs State Of U.P. And Others on 30 July, 2010
Author: Anil Kumar
Bench: Anil Kumar
1 Court No. - 26 Case :- WRIT - A No. - 53276 of 2007 Petitioner :- Uday Bhan Yadav Respondent :- State Of U.P. And Others Petitioner Counsel :- Y.D. Mishra,L. Prasad,Naveen Sinha,P. Singh Respondent Counsel :- C.S.C.,M.C.Tripathi Hon'ble Anil Kumar,J.
By means of the present writ petition, the petitioner has challenged the impugned order dated 26.08.2007 (Annexure-1) passed by Superintendent of Police, Azamgarh.
Sri D.K. Singh, learned counsel for the petitioner in brief as submitted the facts of the present case that an advertizement was issued thereby inviting applications for recruitment on the post of constable in Civil Police.
In pursuance of the same, the petitioner has submitted his candidature for appointment on the post in question. Thereafter the petitioner was selected and given appointment after considering the documents and the materials submitted by him on the post of constable.
However, by means of the impugned order dated 26.08.2007 (Annexure-1) passed by Superintendent of Police, Azamgarh/O.P. No. 4 has cancelled the petitioner's appointment on the ground that the caste certificate which is submitted by the petitioner at the time of recruitment is forged. Hence the present writ petition has been filed thereby challenging the said impugned order.
Learned counsel for the petitioner while assailing the impugned order dated 26.08.2007 (Annexure-1) submits that no opportunity whatsoever has been provided to the petitioner while passing the impugned order dated 26.08.2007 as such it is illegal and arbitrary in nature as well as in contravention to the principles of natural justice and is liable to be set aside.
Learned Standing Counsel on the other hand while supporting the impugned order dated 26.08.2007 submits that in the present case the caste certificate submitted by the petitioner is forged and fabricated and the same has been verified by the Tehsildar, as such the order which is under challenge 2 is perfectly valid and needs no interference.
I have heard the counsel for the petitioner and perused the record.
Admittedly, the petitioner who was working on the post of constable, by means of the order dated 26.08.2007 his appointment was cancelled and no opportunity whatsoever was given to him prior to passing of the said order.
It is admitted to the respondents that the order was passed ex parte, but it is contended that since the petitioner had used a fabricated caste certificate, his selection has been cancelled in view of his undertaking. The question is whether this can be done without giving an opportunity to him to prove that the report of the Tehsildar was incorrect or that the certificate in fact was issued by his office.
It is also not denied that before recruiting him the certificate had been verified earlier. Assuming that the appointment was temporary or on probation, but a perusal of the order shows that it is stigmatic and punitive. The order follows an ex parte enquiry and casts an aspersion on the petitioner. The Apex Court in Chandra Prakash Shahi Vs. State of U.P. (2000(5)SCC 152) has held that such an order amounts to dismissal and therefore, a notice was necessary. It has gone on to hold that notice is also required under para 541 of the U.P. Police Regulations. Recently a Division Bench of our Court has exhaustively dealt this issue in Paras Nath Pandey Vs. Director, North Central Zone Culture Centre [2008(10)ADJ 283] that such an order cannot survive.
There is yet another facet to the case that the order is solely based upon the report of the Tehsildar but that report is also ex parte. An ex parte report which is the basis of inflicting action upon a person which visits him with civil consequences, cannot be acted upon without confronting the person with it.
Further, a right is created in a person when he is appointed in a service, the same cannot be extinguished without following the principles of natural justice, the affected person is entitled to have an opportunity to show cause before any action is taken against him thereby cancelling his order of 3 appointment on any ground whatsoever.
In the case of Shrawan Kumar Jha Vs. State of Bihar AIR 1991 SC 309, the Apex Court has held as under:-
"Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated 3/11/1988 on this short ground. As suggested by the learned Solicitor General, We direct that the Secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period."
For the foregoing reasons, the impugned order dated 26th of August, 2007 (Annexure-1) passed by Superintendent of Police, Azamgarh/O.P. No. 4 is set aside. Further the matter is transmitted to him to consider and decide the same afresh after giving opportunity of hearing to the petitioner in accordance with law.
With the above observation, the writ petition is allowed.
Order Date :- 30.7.2010 Ravi/-