Hon'ble Rajes Kumar, J. - (1.) THE petitioner has filed the present writ petition challenging the order dated 23.04.2008 passed by respondent no.5 by which he has been removed from service.
(2.) THE petitioner was appointed on the post of Runner in Tube well Construction Division, Gonda on 24.03.1988 on compassionate ground under the Dying in Harness Rules, 1974. Later on, the petitioner was transferred to Tubewell Division-1, Gorakhpur in which he joined on 10.09.1992. On the receipt of the complaint, enquiry was made from the Principal, Cooperative Inter College, Pipraich, Gorakhpur and it was found that his date of birth was 1.7.1974. On these facts, the petitioner has been given charge sheet dated 31.07.2007, which is Annexure-2 to the writ petition. In the charge sheet in paragraph 2, it has been specifically stated that in the service book the date of birth of the petitioner was 11.12.1969, while in a certificate issued by Cooperative Inter College, Pipraich, Gorakhpur the date of birth of the petitioner was 1.7.1974 and, therefore, at the time of appointment the age of petitioner was only 14 years while it should be 18 years. It has also been stated that by committing fraud and concealing the correct date of birth, the appointment has been obtained. THE petitioner has been asked to file the reply. THE petitioner has been asked to file the reply. THE petitioner filed the reply to the aforesaid charge sheet, which is Annexure 3 to the writ petition. Perusal of the reply filed by the petitioner reveals that the allegation made in the charge sheet about the certificate issued by the Cooperative Inter College, Pipraich, Gorakhpur and the date of birth mentioned in the College record has not been denied. It has also been stated that by ignorance his mother and grandmother has informed about the date of birth to the College. Having regard to the reply of the charge sheet filed by the petitioner and the enquiry report, the petitioner has been removed from service by the impugned order inasmuch as the appointment of the petitioner was abinitio illegal. Learned counsel for the petitioner submitted that after the enquiry report the petitioner should have given opportunity of hearing as contemplated under section 9 (4) of the U.P. Government Servant (Discipline and Appeal) Rules, 1999. Since it has not been complied with the order of removal is patently illegal. In support of his contention, he relied upon the decisions of this Court in the case of Mohd. Aslam Versus State of U.P. and others reported in 2008 (1) ESC, 493 (All) and Vijay Sankar Tiwari, Etc Versus Food Corporation of India and others etc. reported in (2006) 3 UPLBEC, 2499.
(3.) LEARNED Standing Counsel submitted that before passing the impugned order, the petitioner was given full opportunity. The petitioner has been issued charge sheet, which has been replied by the petitioner. He submitted that the charges against the petitioner have not been disputed in the reply and no evidence has been adduced to substantiate the claim that date of birth in the record of the Cooperative Inter College, Pipraich, Gorakhpur from where the petitioner admittedly obtained education, the date of birth as 1.7.1974 was wrongly mentioned. This fact has not been denied in the reply filed to the charge sheet and, therefore, it is wrong to say that the impugned order has been passed without giving opportunity of hearing. He submitted that present is the case of abinitio illegal appointment of the petitioner on the basis of fraud and mis-representation made by the petitioner, while seeking the appointment on compassionate ground. It is not the case where during the course of service on account of certain act, the petitioner has been subjected to penal action. Having heard the learned counsel for the parties, I have perused the impugned order, various documents annexed with the writ petition and counter affidavit.;