Ashok Kumar vs Union of India & others

Acting under Article 226 of the Constitution and having regard

to the facts and the issues involved in the case, I would dismiss this petition

for the following reasons:

(i) Admittedly, the petitioner Ashok Kumar son of Mani

Ram is not a blood relation of a BSF employee and, thus,

not eligible to be considered for appointment in the

reserved quota for the post of Constable (Barber).

(ii) Mani Ram, father of the petitioner, has been proven to be

an agriculturist in Village Modiyana, Post Office,

Surehati Kalan, District Mahendergarh, Haryana. He has

nothing to do with the BSF. Therefore, the petitioner

could not have been recruited to service and his

appointment was illegal and incurable.

(iii) The recruitment process was conducted and concluded at

Gandhi Nagar, Gujarat beyond the territorial jurisdiction

of this Court. However, the petitioner was serving in BSF

at Jallalabad, Punjab, when the order of dismissal was

passed.

(iv) The petitioner candidly admitted in the complaint

proceedings that one BSF Constable Umed Singh had

helped him in getting recruited as a Constable (Barber)

and it was after Umed Singh was prematurely retired

from service by BSF that he made a demand of money

from the father of the petitioner to keep his mouth closed,

otherwise he would make a complaint to the BSF

authorities regarding the wrongful recruitment of his son,

the petitioner, by falsifying record and illegally declaring

that Mani Ram was an ex-BSF employee bearing

No.83209036 (HC).

(v) Umed Singh''s complaint led to the inquiry proceedings

in BSF, which have culminated in a finding against the

petitioner that he falsely claimed that his father was a

BSF personnel to secure employment by illegal and

fraudulent means.

The combination of the above infirmities in the appointment of

the petitioner leads to the irresistible conclusion that the appointment made

in 2007 was absolutely illegal since the petitioner did not belong to the quota

from which he obtained appointment. Merely because the BSF was ignorant

of this for 7 years will not lend legal flavor to the illegal appointment and or

cure the defect in the induction itself. Length of service is no ground to save

the appointment, which was the product of illegality and in the nature of

fraud.

The original record produced by the learned counsel for the

BSF has been perused by me in Court and shared with the counsel for the

petitioner. The discrepancies in issuance of the blood relationship certificate

and the date of appointment order are not sufficient to move this Court to

hold in favour of the petitioner and save his career.

Learned counsel for the petitioner lastly implores that the

complaint has ruined the life of the petitioner and after having served the

Force for 7 years, this Court may consider, after upholding the dismissal

order as one of removal from service. He tells me that petitioner is aged only

about 30 years. He may be saved from further ruin. Having heard the matter

at length and having perused the record and keeping in mind that the

petitioner had spent 7 years in BSF and that his service record has not been

commented upon as adverse as Constable (Barber), I would in the interest of

justice read the dismissal order as one, without disqualification from future

employment or one which will not be an absolute obstruction to future

public employment, if any, in view of the stand in defence taken by the

petitioner before the authorities in the enquiry that his friend filled up the

application form and he only signed it where the words BSF are written on

its face. I have seen the signatures and the hand-writing on the original and

on this the petitioner may not be incorrect though he may be vicariously

liable for the entry, but then he is stated to be an illiterate person. No doubt,

the petitioner belongs to the lower strata of society having grown up in rural

village surroundings where well rounded education has not penetrated and

some allowance could be made on this account so as not to deprive him

completely of future employment. Therefore, the benefit of doubt could be

given to him not for the purpose of the saving dismissal, but for the purpose

of future employment under the State or in State agency/ instrumentality/

corporation and towards this, needless to add, that his future employer may

look into the BSF record, the inquiry proceedings, if requested, and take an

independent decision, if it proposes to offer employment.

The other reason to make some allowance is that the BSF, who

appointed the petitioner, took no steps on its own to remove the petitioner

and got activated only when Umed Singh, an ex-Constable of the Force,

made a complaint which has led to loss of job and deprivation of livelihood.

I hastily add that deprivation of livelihood is consequential to

lawful termination/dismissal from service. It is not possible to ignore the

defects in the appointment of the petitioner by an award of mandamus when

the initial recruitment in 2006 itself was an illegal entry and not in terms of

the criteria prescribed. I would, therefore, with a somewhat heavy heart

dismiss the petition.