Allahabad High Court
Hemadul Hasan vs State Of U.P. And Others on 10 August, 2018
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD A. F. R. Court No. - 28 Case :- WRIT - A No. - 56441 of 2006 Petitioner :- Hemadul Hasan Respondent :- State Of U.P. And Others Counsel for Petitioner :- Sudhakar Pandey,Dhiranjan Singh Patel,Vishwanath Mishra Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. The petitioner was appointed as a Constable in the Provincial Armed Constabulary in the year, 2003. The services of the petitioner were terminated by order dated 06.10.2005 passed by Commandant of VIIIth Battalion P.A.C., Bareilly on the footing that the petitioner had entered an incorrect date of birth in his service record by submitting a fabricated document in support of his date of birth.
2. Aggrieved by the aforesaid order, the petitioner took the order of termination of his services in appeal. The appellate authority rejected the appeal of the petitioner by order dated 01.06.2006. The order dated 01.06.2006 passed by the appellate authority was carried in revision by the petitioner before the Inspector General of Police (P.A.C.), U. P. at Lucknow. The revision was also rejected by the revisional authority on 01.02.2007.
3. Thus aggrieved the petitioner has assailed the orders of termination of services dated 06.10.2005 passed by Commandant IIIth Battalion P.A.C., Bareilly, the order of rejection of appeal dated 01.06.2006 passed by the appellate authority and the order dated 01.02.2007 passed by Inspector General of Police (P.A.C.), U. P. at Lucknow dismissing the revision of the petitioner.
4. The contention of Sri Dhiranjan Singh Patel, learned counsel for the petitioner is that the petitioner had submitted his High School certificate as proof of age. The age recorded in the High School certificate was entered in the service record. The authorities have misdirected themselves in law by relying on a certificate issued by the Principal of a school from where the petitioner cleared his Class VIII examination. He further submits that the order of termination is in the teeth of the Uttar Pradesh Recruitment to Service (Determination of Date of Birth), Rules, 1974 (hereinafter referred to as the 'Rules of 1974').
5. Learned counsel closes his arguments with the submission that the petitioner is entitled to reinstatement in service in the full backwages and consequential service benefits. He relies on a number of authorities to fortify his submission. The authorities will be cited in the course of judgment.
6. Learned Standing Counsel does not dispute that the determination of the date of birth of an employee in the State Government has to be made in consonance with the Rules of 1974.
7. Heard learned counsel for the parties.
8. Certain facts relevant for a judgment in the instant case are beyond the pale of dispute.
9. The petitioner was appointed as a Constable in the Provincial Armed Constabulary in the year, 2003. At the time of the recruitment proceedings as well as his entry into the service, the petitioner submitted various documents and testimonials in support of his academic qualifications and date of birth.
10. The petitioner passed his High School Examination from the Board of High School and Intermediate Education, Uttar Pradesh, Allahabad (hereinafter referred to as the 'U.P. Board'). The High School certificate issued by the U.P. Board records that the date of birth of the petitioner, is 28.11.1980.
11. The petitioner submitted the aforesaid High School certificate issued by the U.P. Board in support of his candidature for appointment during the recruitment process for constable in the P.A.C. The High School certificate issued by the U.P. Board, was also tendered by the petitioner to the appointing authorities at the time of his appointment as Constable.
12. The date of birth of the petitioner was entered in his service book on the foot of the date of birth recorded in the aforesaid High School certificate issued by the U.P. Board. The date of birth recorded in the service book of the petitioner is 28.11.1980 is in conformity with the date of birth of the petitioner entered in the High School certificate issued by the U.P. Board. The High School certificate issued by the U.P. Board and submitted by the petitioner has not been disputed or recalled by the U.P. Board.
13. The eligibility criteria for the candidates whose date of birth range from 02.07.1981 to 01.07.1983 were eligible to participate in the said selection process. The age criteria in the advertisement provided that the minimum age for appointment to the post is 18 years and maximum age is 20 years.
14. Two years relaxation in the minimum age and maximum age prescribed in the selection criteria was given to the OBC candidates. Supplementary affidavit filed by the petitioner on 17.11.2013 records that the petitioner applied in the OBC category. If the date of birth of the petitioner is recorded in the High School certificate is considered along with the fact that the petitioner was an OBC candidate, the age of the petitioner comes within the eligibility criteria.
15. Apparently, a complaint was made against the petitioner alleging that the date of birth recorded in the service book is incorrect. The complaint was made on the footing that the certificates issued by the Principal of Primary School, Matrampur, Raebareilly, where he had cleared the Class VIII and the certificate of Class V record the date of birth of the petitioner as 28.10.1978.
16. The discrepancy in the date of birth recorded in the certificate issued by the Principal of the said Institution from where the petitioner had cleared Class VIII and Class V and the date of birth recorded in the High School certificate issued by the Board became the cause of the proceeding to terminate the services of the petitioner.
17. A show-cause notice was issued to the petitioner on 30.12.2005 asking the petitioner to show-cause as to why his services be not terminated for entering an incorrect date of birth. The show-cause notice asserted that the High School certificate was obtained on the foot of fabricated documents. The correct date of birth of the petitioner is 28.10.1978 as recorded in the marksheet issued by the Institutions from where the petitioner had cleared the Class V and Class VIII examinations.
18. The respondent authorities relied upon the certificate issued by the Principal from where the petitioner had passed Class V examination and Class VIII examination and discarded the High School certificate issued by the U.P. Board. The authorities concluded that the date of birth of the petitioner as recorded in the High School certificate issued by the U.P. Board was incorrect. On the other hand, the date of birth of the petitioner as recorded in the certificate issued by the Principal of the Institution from where the petitioner had cleared Class V and VIII examinations, was deemed to be the correct date of birth of the petitioner.
19. The petitioner in reply to the show-cause notice dated 30.12.2005 refuted the allegations made therein. The petitioner asserted that the date of birth as entered in his service record is consistent with the date of birth as recorded in the High School certificate issued by the U.P. Board in the year 2000.
20. The defence of the petitioner was invalidated by the competent authority. The authority found the High School certificate to be fabricated and concluded that the date of birth recorded therein was false. The order of termination was passed on 06.10.2005 by the Commandant of VIIIth Battalion P.A.C., Bareilly on the footing that the petitioner had entered incorrect date of birth in his service record by submitting a fabricated document in support of his date of birth.
21. The petitioner took the order of termination of his services in appeal. The appellate authority rejected the appeal of the petitioner by order dated 01.06.2006. The order dated 01.06.2006 passed by the appellate authority was carried in revision by the petitioner before the Inspector General of Police (P.A.C.), U. P. at Lucknow. The revision was also rejected by the revisional authority on 01.02.2007. The appellate and the revisional authorities reiterated the findings of the disciplinary authority and affirmed the punishment of dismissal handed down to the petitioner.
22. In the order of termination as well as in the orders of the appellate and revisional authorities exclusive reliance was placed upon the certificate/marksheet issued by the Principal of the Institution from where the petitioner had cleared Class V and Class VIII examination. The certificate of High School of the petitioner issued by the Board was discarded. In the understanding of the authorities the certificate/marksheeet of High School issued by the U.P. Board was obtained by fraud.
23. Clearly, the date of birth recorded in the certificate issued by the said Principal of the Institution from where the petitioner had cleared his Class V and Class VIII examination was at variance with the date of birth recorded in the High School certificate. In case of a conflict between the aforesaid documents, the date of birth recorded in the High School certificate will prevail. Sanctity is accorded to the date of birth recorded in the High School certificate, both by statutes and law laid down by the courts. There is good reason for that. While future is unknown, the past cannot be uncertain. Finality given to the date of birth recorded in the High School certificate ensures certainty in tenure of an employee and other incidents of service. It also fixes the position of an employee relative to other employees in service. The certificate is issued from a most credible source, viz., the Board of High School.
24. The State of U.P. promulgated, The Uttar Pradesh Recruitment to Service (Determination of Date of Birth) Rules, 1974 to regulate determination of date of birth of employees. It could be apposite to reproduce the relevant Rules at this stage:
Rule-3 of Rules, 1974 reads as follows :
"3. The date of birth of a government servant as recorded in the certificate of his having passed the High School or equivalent examination, or where a government servant has not passed any such examination as aforesaid, the date of birth or the age recorded in his service book at the time of his entry into 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 no application or representation shall be entertained for correction of such date or age in any circumstances whatsoever."
25. The aforesaid provision of law leaves no room for doubt and leaves no discretion at the hands of the authority for determining the date of birth. The date of birth as recorded in the High School certificate is final and shall prevail in the face of any other alternative document submitted against the said date of birth.
26. Clearly, the authorities while terminating the services of the petitioner misdirected themselves in law by relying on a certificate of an Principal from where the petitioner had cleared his Class V and Class VIII examination over that of the High School certificate issued by the U. P. Board. The authorities have returned the finding that the High School certificate is unreliable and have discarded the same. This, the authorities have done so on the footing that there is discord between Class V and Class VIII and the High School certificate. The High School certificate issued by the Board is the best proof from the most credible authority for determining the age of an employee. The said High School certificate can only be recalled or corrected by Board or a competent court of law. The authorities have travelled beyond the jurisdiction vested by law in discarding the High School certificate issued by the U.P. Board and disbelieving the date of birth entered in the said High School Certificate.
27. The sanctity of the date of birth recorded in the High School and the mandatory nature of the said Rules came up for consideration before the Division Bench of this Court in the case of Amar Nath Tewari Vs. District Inspector of Schools, Sulatanpur reported in 2010 (78) ALR 331.
28. In the case of Amar Nath Tewari (supra), the school authorities altered the date of birth in the service book. The date of birth recorded in the High School and one at the time of his entry was upheld by this Court.
29. The law laid down by the Court fortifies the narrative in the preceding paragraphs. This Court in the case of Amar Nath Tewari (supra) held thus:
"3. The date of birth as recorded in the service book at the time of entry into service has to be given due sanctity and the same cannot be altered or modified either on the instance or employee or on the instance of employer unless the rules so provide and unless it is found that incorrect date of birth was recorded in the service book. In case the date of birth recorded in service book tallies with the date of birth recorded in High School certificate though High School examination might have been cleared after the employee had entered into, service there cannot be any ground for treating the date of birth so recorded in the service book as incorrect merely because some other evidence like transfer certificate from one school to another of lower class, show a different date of birth.
4. Rule 2 of U.P. Recruitment to Services (Determination of Date of Birth) Rules, 1974 provides that 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 or where a Government servant has not passed any such examinations 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.
6. In our opinion there was no occasion for changing the date of birth as 15.6.1941 after such a long time and the fact that High School certificate was obtained by the Appellant after entering into service, therefore, the plea that it cannot be given credence has no force for the reason that the same corroborated the date of birth which was recorded in the service book at the time of entering into the service. The date of birth recorded in the service book at the time of entry into service therefore has to be treated as the date of birth of the Appellant."
30. In view of the discussion in the preceding part of the judgement, the order of dismissal of the services of the petitioner dated 13.03.2006, the order dated 01.06.2006 passed by the appellate authority rejecting the appeal of the petitioner and the order dated 01.02.2007 passed by Inspector General of Police (P.A.C.) are arbitrary and illegal. The said orders cannot stand.
31. The petitioner was not permitted to discharge his duties by the orders passed by the disciplinary authority as well as the appellate and revisional authorities. The orders passed by the successive authorities are in violation of the U.P. Recruitment to Service (Determination of Date of Birth) Rules, 1974. Further, the said orders have been passed in excess of jurisdiction conferred upon the said authorities. Most importantly, the conclusions reached and findings returned by the disciplinary authority as well as the appellate and revisional authorities are perverse and the contrary to the material in the record. There was no material in the record to justify the conclusion that the High School certificate issued by the U.P. Board in favour of the petitioner was obtained by fraud.
32. The termination of the petitioner was not a mere error of judgment, but a blatant example of arbitrary action based on perverse findings. The consequences of the orders assailed in the writ petition may also be examined. The petitioner was not only got unemployed but made unemployable consequent to the impugned orders. The findings that the petitioner had fraudulently obtained the High School certificate, blighted the academic qualifications of the petitioner, besides casting a taint on his character. This disabled the petitioner from seeking employment elsewhere. With no other means redressal available to the petitioner, the petitioner was not able to recover from the dislocation caused by the orders assailed in the writ petition.
33. The nature of injustice often shapes the kind of relief to be granted. The grant of relief is the redeeming act of justice by courts. Relief is moulded on the facts of each case. Grant of backwages is not a matter of routine, nor a rule of thumb. It depends on the facts of the case, but the discretion of the courts is guided by judicial authority in point. The findings in the preceding paragraphs will guide the judgement on the issue.
34. It would now be apposite to fortify the narrative with judicial authority on point.
35. The Hon'ble Supreme Court in the case of Commissioner., Karnataka Housing Board v. C. Muddaiah, reported at (2007) 7 SCC 689, the Hon'ble Supreme Court corelated the relief of grant of full backwages with the ex-facie injustice meted out to an employee and opined thus:
"33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged.
34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may,nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected."
36. Similarly, in the case of Pradip Kumar v. Union of India, reported at (2012) 13 SCC 182, the grant of backwages was made to redeem violation of Article 14 of the Constitution of India caused by a stigmatic and punitive order:
"19. This now brings us to the appeal arising out of Special Leave Petition No. 27821 of 2012 filed by Pradip Kumar claiming the relief of reinstatement and for the grant of consequential benefits including full back wages. Although, the High Court had allowed the writ petition of the respondent only on the ground that there had been a violation of Rule 9(2), we have come to a conclusion that the order of discharge was vitiated being colourable exercise of power, stigmatic and punitive in nature and such order cannot be sustained in law. In our opinion, the order of discharge is arbitrary and therefore violates Article 14 of the Constitution. Consequently, we hold that the appellant Pradip Kumar is entitled to be reinstated in service. He shall be entitled to full back wages during the period he has been compelled to remain out of service. The Union of India is directed to release all consequential benefits to the said Pradip Kumar within a period of two months of the receipt of a certified copy of this order."
37. In the case of Bhuvnesh Kumar Dwivedi v. Hindalco Industries Ltd., reported at (2014) 11 SCC 85 , the Hon'ble Supreme Court found that an employee who was kept out of service due to a mistake was entitled to full backwages:
"35. Therefore, the Labour Court was correct on factual evidence on record and legal principles laid down by this Court in a catena of cases in holding that the appellant is entitled to reinstatement with all consequential benefits. Therefore, we set aside the order of the High Court and uphold the order of the Labour Court by holding that the appellant is entitled to reinstatement in the respondent Company.
36. On the issue of back wages to be awarded in favour of the appellant, it has been held by this Court in Shiv Nandan Mahto v. State of Bihar [(2013) 11 SCC 626] that if a workman is kept out of service due to the fault or mistake of the establishment/company he was working in, then the workman is entitled to full back wages for the period he was illegally kept out of service. The relevant paragraph of the judgment reads as under: (SCC p. 628, para 8) "8. ... In fact, a perusal of the aforesaid short order passed by the Division Bench would clearly show that the High Court had not even acquainted itself with the fact that the appellant was kept out of service due to a mistake. He was not kept out of service on account of suspension, as wrongly recorded by the High Court. The conclusion is, therefore, obvious that the appellant could not have been denied the benefit of back wages on the ground that he had not worked for the period when he was illegally kept out of service. In our opinion, the appellant was entitled to be paid full back wages for the period he was kept out of service."
43. The learned counsel for the respondent had mentioned before this Court about a settlement between the parties in this matter after the judgment was reserved. Therefore, we have not taken into consideration such plea from the learned counsel of the respondent since it was taken up after the hearing was over. Also the documentary evidence on record produced by the parties required us to reject the subsequent plea made by the respondent in this case. We therefore set aside the finding of the High Court in the impugned judgment [Hindalco Industries Ltd. v. Bhuvnesh Kumar Dwivedi, Civil Misc. Writ Petition No. 8784 of 2002, decided on 10-3-2011 (All)] and hold that the appellant is entitled to reinstatement with full back wages from the date of the termination of his service till the date of his reinstatement and other consequential benefits which accrue to him by virtue of his employment with the respondent Company. The appeals are allowed, with no order as to costs."
38. The Hon'ble Supreme Court in the case of Pawan Kumar Agarwala Vs. General Manager-II SBI, reported at (2015) 15 SCC 184 granted full backwages as the order was passed on the foot of no evidence, by holding thus:
"For the reasons stated supra, we have examined the case threadbare on the basis of the material placed on record and rival legal contentions urged on behalf of the parties, we hold that the finding of the enquiry officer on the charges is vitiated on account of non-compliance with the statutory rules and the principles of natural justice. In the absence of evidence, the order of reinstatement sans full back wages is unjustified in law. At best, the High Court should have made deduction of the amount of pension received by the appellant after awarding full back wages for the period in question. In not doing so, the orders of the learned Single Judge [Pawan Kumar Agarwala v. Union of India, 2014 SCC OnLine Gau 35 : (2014) 3 Gau LR 343] and the Division Bench [SBI v. Pawan Kumar Agarwala, 2014 SCC OnLine Gau 230] of the High Court are liable to be set aside with regard to non-grant of full back wages.
39. In the light of the above discussion, the Court finds that the petitioner is entitled to full consequential benefits as well as the back-wages from the date of his termination till the date he is actually reinstated in service.
40. The order of dismissal of the services of the petitioner dated 13.03.2006 passed by Commandant VIII Batallian, P.A.C., Bareilly, the order dated 01.06.2006 passed by the appellate authority rejecting the appeal of the petitioner and the order dated 01.02.2007 passed by Inspector General of Police (P.A.C.) in the revision are quashed.
41. The matter is remitted to the respondent authorities.
42. A writ of mandamus is issued to the respondent authorities to execute the following directions:
1. The respondent authorities shall reinstate the petitioner forthwith in service with full continuity of service and seniority.
2. The backwages of the petitioner from the date of his termination till the date of his reinstatement and other consequential financial benefits shall be paid to the petitioner within a period of one year from the date of receipt of a certified copy of this order.
43. The writ petition is allowed.
Order Date :- 10.8.2018 Dhananjai