- (1.) Heard Sri Vijay Kumar Yadav, appellant in person, learned Standing Counsel for the State respondents and perused the material on record. This intra court appeal is directed against the order dated 24.11.2008, whereby the learned Single Judge dismissed the Civil Misc. Writ Petition No. 23090 of 2008, (Vijay Kumar Yadav vs. State of U.P. & others) on the ground that the petitioner was not major and he was aged about 14 years at the time of appointment. Therefore, prima facie, his appointment was illegal on the post of Runner in Tubewell Construction Division, Gonda.
(2.) Brief facts of this case are that the petitioner-appellant was appointed on the post of Runner (DHAWAK) in Tubewell Construction Division, Gonda under the Dying in Harness Rules, 1974. Thereafter the petitioner-appellant was transferred to Tubewell Division-I, Gorakhpur where he joined on 10.9.1992. In this regard, a confirmation letter dated 29.1.1999 of respondent no. 5 is annexed at page 33 as Annexure-1 to the writ petition. At the time of appointment, the petitioner-appellant was asked to prove his date of birth. The Chief Medical Officer, Gonda has determined the age of the appellant as 18 years and on the basis of which the date of birth of the appellant was recorded as 11.12.1969 in his service book. On 27.10.2006, a complaint was made by Sri Raj Kumar Yadav to the Executive Engineer Tubewell Division-I, Gorakhpur that on the basis of forged medical certificate, the appellant namely Vijay Kumar Yadav has obtained appointment. On the basis of the complaint, a Committee was constituted by the Executive Engineer, Tubewell Division-I, Gorakhpur asking for report regarding the complaint and verification of age of the petitioner. The Committee submitted its report on 28.4.2007 mentioning that the certificate which was issued by the Principal of the institution namely Cooperative Inter College, Pipraich, Gorakhpur dated 28.2.2003, the date of birth of the petitioner was 1.7.1974. Therefore, on the date of the appointment, the appellant was only 14 years of age and on the basis of the forged medical certificate, he has obtained appointment. It is recommended by the Committee that major punishment be awarded to the petitioner. On these facts, the appellant was given charge sheet on 31.10.2007, which is Annexure-2 to the writ petition. Thereafter, the appellant submitted his reply of the charge sheet on 3.11.2007, which is Annexure-3 to the writ petition. The reply submitted by the petitioner-appellant reveals that allegation made in the charge sheet about the certificate issued by the Cooperative Inter College and the date of birth mentioned in the College record has not been denied. Having regard to the reply of the charge sheet filed by the petitioner-appellant and the enquiry report, the appellant has been removed from service by the impugned order dated 24.11.2008 and the appointment was declared as illegal. Submission of the appellant is that Raj Kumar Yadav was inimical to the petitioner and manipulated the record of the school and filed a character certificate which was believed by the Committee whereas Medical Board has given the age of 18 years. He was not aware of his date of birth and the finding given by the Chief Medical Officer should be believed. At the time of the appointment, petitioner-appellant was asked to get his age determined by the CMO. His age was determined as 18 years and, accordingly, CMO issued the age certificate on the basis of which date of birth was recorded as 11.12.1969 in service book. He had studied in Cooperative Inter College, Pipraich, Gorakhpur up to the 9th class and failed in Class IX in the year 1987 since he had not appeared at all or passed High School Examination. Order dated 23.4.2008 shows that it was passed on the basis of the inquiry report dated 22.1.2008, according to which, the appellant appeared in High School Examination without permission of the Department to justify his date of birth recorded in his service book. Therefore, the report dated 22.1.2008 was submitted without holding enquiry proceeding and appellant was not called upon to appear before the Enquiry Officer. The inquiry report was also not supplied to him. Order of removal from service has been passed without providing opportunity of hearing inasmuch as he was not asked to participate in the inquiry proceeding. Enquiry report was submitted behind his back without holding the inquiry. The order of removal is violative of Article 311 of the Constitution and also violative to principle of natural justice.
(3.) Per contrary learned Standing Counsel submitted that the petitioner has obtained the compassionate appointment after the death of his father namely Ram Sunder Yadav at the age of 14 years. As such, at the time of appointment, he was minor and has obtained appointment on the basis of the forged certificate alleged to be issued by CMO, Gonda. The date of birth as entered in service book on the basis of certificate issued by CMO, Gonda, is 11.12.1969 whereas, as per complaint, which was sent by Raj Kumar Yadav accompanied by the character certificate issued by the Principal, Cooperative Inter College, Pipraich, Gorakhpur, the age of the appellant is 1.7.1974. The Enquiry Committee submitted its report holding that the age of the petitioner was 14 years. He has concealed his age at the time of initial appointment in the Department and recommended for major punishment. In the case, in hand, petitioner-appellant was appointed on the post of Runner (DHAWAK) which falls under Class-IV category in the Tubewell Construction Division, Gonda on 24.3.1988 on compassionate ground under the Dying in Harness Rules, 1974. The appellant was asked to get his age determined by the Chief Medical Officer. His date of birth, on the basis of the service book and the certificate issued by CMO Gonda, is 11.12.1969. The complaint was received accompanied by character certificate issued by the Principal, Cooperative Inter College, Pipraich, Gorakhpur in which date of birth of petitioner-appellant was shown as 1.7.1974. On the basis of the complaint, an enquiry was initiated. The Enquiry Committee, instead of relying the service book entry in which age of the petitioner on the basis of the certificate issued by the CMO, Gonda was entered as 11.12.1969, had relied on the letter of the Principal/Character Certificate whereas in the eye of law character certificate is not admissible as proof of age. The medical evidence is based on scientific investigation such as X-ray, ossification test which will have to be given due weight and precedence over the shaky evidence based on school administration record which give rise to hypothesis and speculation about the age.;