Yashwant Yadav vs Union Of India And 5 Others
2021 Latest Caselaw 10817 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 7844 of 2021
 

 
Petitioner :- Yashwant Yadav
 
Respondent :- Union Of India And 5 Others
 
Counsel for Petitioner :- Santosh Yadav
 
Counsel for Respondent :- A.S.G.I.,Vidit Khanna
 

 
Hon'ble Pankaj Bhatia,J.

Heard Sri Santosh Yadav, learned counsel for the petitioner and Sri Ashish Upadhyay, Advocate holding brief of Sri Vidit Khanna, learned counsel for the respondent nos.1 to 6.

The present petition has been filed for the following reliefs:-

"(i) To issue, a writ, order or direction in the nature of certiorari quashing the impugned order dated 29.05.2021 (Annexure No.8 to the writ petition) passed by the respondent no.6 with approval of respondent no.5 cancelling the candidature of the petitioner for the post of Constable (General Duty) in Sashastra Seema Bal.

(ii) To issue, a writ, order or direction in the nature of mandamus directing the respondents to permit the petitioner to join on the post of Constable (General Duty) in Sashastra Seema Bal pursuant to Constable (GD) in Central Armed Police Forces (CAPFs), NIA & SSF and Rifleman (GD) in Assam Rifles (AR) Examinations-2018."

The contention of counsel for the petitioner is that the petitioner had applied in pursuance to advertisement inviting applications for filling up the post of Constable (GD) in Central Armed Police Forces and as the petitioner qualified in the Computer Test Examination, Physical Efficiency Test, Physical Standard Examination and Detailed Medical Examination and his name was reflected in final select list. It is stated that the petitioner was also issued appointment letter in Sashastra Seema Bal for the post of Constable (General Duty) (Annexure No.3 to the writ petition). It is stated that the petitioner filed an affidavit at the time of character verification disclosing that a Case Crime No.0454 of 2016, under Sections 452, 323, 504, 506 I.P.C. is pending at District Sant Kabir Nagar. On the basis of the said disclosure, the candidature of the petitioner was cancelled by means of order dated 29.05.2021 solely on the ground of pendency of criminal proceeding against the petitioner. Counsel for the petitioner argues that impugned order dated 29.05.2021 is contrary to the mandate of law as laid down by the Supreme Court in the case of Avtar Singh Vs. Union of India and Others; (2016) 8 SCC 471. The Supreme Court has given the following directions:-

"38 We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:

38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

38.3 The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:

38. 4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.

38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.

38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

38.9 In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

Learned counsel for the petitioner argues that the case in question was on the ground of personal enmity in between the neighbors, which is very common. However, allegations contained in the F.I.R., would not dis-entitle the petitioner for appointment in the light of the judgment of Avtar Singh (supra), specially para 38.6. He has further placed reliance on the judgment of this Court dated 12.09.2018 passed in Writ - A No.19316 of 2007 (Parmanand Rai Vs. The State of U.P. and others). Relevant paragraph is quoted as under:

21. There is yet another aspect of the matter. It is submitted that at the stage of commission of the alleged offence, the age of the petitioner was about 17 years. The gravity of the offence has to be seen in the context of social realities. The practice of framing young members of a family in old disputes in the villages is not uncommon. This is not only an abuse of the process of court but also has far-reaching consequences on our social structure. The sole aim of falsely implicating young members of a feuding family is to use the criminal case as bargaining lever. The criminal cases are employed to ruin the future of the offsprings of the family in opposition and to exact revenge. In such cases, the taint of an alleged indiscretion in early life will pursue a young man to the end of his life. The Hon'ble Supreme Court took cognizance of these realities in the case of Commissioner of Police and Ors. Vs. Sandeep Kumar reported at 2011 (4) SCC 644. The Hon'ble Supreme Court held thus:

"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.

9. In this connection, we may refer to the character "Jean Valjean" in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.

10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed:

"I come now to Mr Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show--and to show to all students everywhere--that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land--and I speak both for England and Wales--they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down.

But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards--of the poets and the singers--more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong--very wrong--in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed." (Vide Morris v.Crown Office [(1970) 2 QB 114 : (1970) 2 WLR 792 : (1970) 3 All ER 1079 (CA)] , QB at p. 125C-H.)

In our opinion, we should display the same wisdom as displayed by Lord Denning.

11. As already observed above, youth often commits indiscretions, which are often condoned.

12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."

In the light of the said submission and the perusal of the order dated 29.05.2021 reveals that there is no application of mind in terms of mandate of the Supreme Court in the case of Avtar Singh (supra). Accordingly, the order dated 29.05.2021 is set aside and directions are issued to the respondent authorities to reconsider the case of the petitioner in the light of the directions given by the Supreme Court in case of Avtar Singh (supra) as well as the order of this Court in the case of Parmanand Rai (supra).

The fresh order shall be passed by the respondent authorities with all expedition within a period of six weeks from the date of filing of a copy of this order before respondent no.5, as directed above, within the time as granted.

Order Date :- 25.8.2021

Atul