Pawan Yadav vs State Of U.P. And 5 Others
2021 Latest Caselaw 9205 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 6
 

 
Case :- WRIT - A No. - 12662 of 2020
 

 
Petitioner :- Pawan Yadav
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Ramesh Chandra Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

This Court had granted time to learned Standing Counsel for filing counter affidavit. Despite sufficient time has been granted, no counter affidavit has been filed. This attitude of the respondents in defending the cases in this manner cannot be appreciated.

In view of the fact that the matter is pending since long, no further time is being granted to the respondents to file counter affidavit.

The averments of the petitioner is that the petitioner applied for the post of Constable in P.A.C. against the vacancy vide Advertisement No.1(112)/2017. He was selected in the valid list, it is claimed that the petitioner passed medical examination also. Further while verification of the records, the petitioner filed an affidavit indicating that on account of personal enmity a case has been registered against the petitioner under Sections 324, 504, 506 I.P.C. at Police Station Newarhia, District Jaunpur. It is stated that based upon the said case, an order came to be passed rejecting the candidature of the petitioner solely on the ground of pendency of the said criminal case. It is argued that against the said rejection order, petitioner preferred a Writ Petition No.7939 of 2020, which was disposed off vide order dated 01.10.2020 with the following observations:-

"Petitioner has been selected for appointment to the post of Constable in PAC. For the purposes of his appointment, the authorities have called upon the petitioner to submit his antecedents. A affidavit has been filed by the petitioner disclosing that a case Crime No. 711 of 2017 under Sections 324, 504 and 506 I.P.C. is pending in which charge-sheet has been submitted against him. It is urged that the petitioner has been falsely implicated and that the case is otherwise trivial in nature.

Grievance of the petitioner is that only on account of aforesaid proceedings the respondents have withheld issuance of appointment to the petitioner and that he has not been sent for training. Submission is that in view of the law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, 2016(8) SCC 471, his claim for appointment is liable to be considered in accordance with law.

After analyzing the law on the subject, the Hon'ble Supreme Court has been pleased to hold as under in para 38 in Avtar Singh (supra):-

"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 Standing Counsel submits that the grievance of the petitioner shall be examined by the authority concerned, in accordance with law.

Considering the facts and circumstances, noticed above, this petition stands disposed of by permitting the petitioner to approach respondent no.5 in respect of his grievance alongwith a copy of this order. The petitioner shall be at liberty to annex all materials in support of his claim as has been highlighted before this Court. In case such materials are placed before the authority concerned, the same shall be examined, in accordance with the law laid down by Apex Court in Avtar Singh (supra). The required consideration shall be made by the authority concerned within a period of three months thereafter."

In terms of the liberty granted by this Court, an order came to be passed on 16.10.2020 rejecting the representation of the petitioner, the said order is impugned in the present writ petition.

A perusal of the order impugned shows that the candidature of the petitioner has been rejected solely on the ground of pendency of the Case Crime No.711 of 2017. The entire order does not show any consideration accorded to the directions of this Court in the order dated 01.10.2020. It is very disturbing to note that the orders are being passed in mechanical manner without application of mind and without following the specific directions given by this Court which results in the petitioner approaching this Court multiple numbers of time for the same cause of action. It is not understandable as to why while passing the order dated 16.10.2020, no consideration was accorded to the directions contained in the order dated 01.10.2020, even otherwise without an order from this Court, it is well settled that the judgment of the Supreme Court is binding to all the authorities and in this context the law laid down by the Supreme Court in case of Avtar Singh Vs. Union of Indian and others, 2016(8) SCC 471, is binding on all the authorities with/without any further directions of this Court. In view of what has been recorded above, the order dated 16.10.2020 is completely bereft of compliance of this Court's order or of the order passed in the case of Avatar Singh (supra) accordingly the same deserves to be set aside, it is accordingly, set aside. Since the petitioner has to approach this Court time and again, this petition is allowed with cost of Rs.1,000/- recovered from respondent no.3, Sri Ajai Shankar Rai, who shall personally pay the amount of cost to the petitioner.

It is further directed that a fresh order shall be passed preferably by person other than Sri Ajay Shankar Rai, who has passed the said order, if available. The fresh order shall be passed within a period of two months from the date of production of a copy of this order.

The writ petition is allowed in terms of the said order.

Order Date :- 2.8.2021

Atul