Allahabad High Court
Anuj Kumar vs State Of U.P. And 3 Others on 12 March, 2021
Bench: Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 33
Case :- WRIT - A No. - 3099 of 2021
Petitioner :- Anuj Kumar
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Vidya Kant Shukla
Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has been selected for appointment to the post of constable in U.P. Police pursuant to exercise initiated in the year 2018. Perusal of the Annexure No.7 would go to show that petitioner's home district is Baghpat and has been allotted Aligarh as the district for his appointment/ training etc. Petitioner's grievance, however, is that notwithstanding his selection, appointment letter has not been issued to him on account of pendency of two criminal cases being Case Crime No.849 of 2017, under Sections 323, 354-A, 307/34, 506, 504 I.P.C. and Case Crime No. 850 of 2017, under Sections 147, 148, 149, 307, 504, 332, 353 I.P.C. It is stated that the petitioner has already been acquitted in both the cases by the Court concerned on 05.10.2020 and 12.10.2020 as no evidence was found against him. It is submitted that in such circumstances petitioner's claim for appointment cannot be ignored. It is further submitted that criminal appeal has also been preferred by the State, which is pending.
Learned Standing Counsel on the other hand states that charges against petitioner were serious and, therefore, the competent authority shall examine all aspects in order to determine the suitability of petitioner for appointment to the post.
Supreme Court in the case of Avtar Singh Vs. Union of India and others, 2016 (8) SCC 471, has laid down the consideration relevant for appointment, where criminal case was instituted. Para 38 of the judgment in Avtar Singh (supra) is reproduced hereinafter:-
"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."
The charge against the petitioner was under Sections 323, 354-A, 307/34, 506, 504, 147, 148, 149, 307, 504, 332, 353 I.P.C. and the competent Court has already acquitted the petitioner of the charges levelled against him. The appointing authority therefore, is required to examine the suitability of petitioner on the basis of the materials that exists on record. Mere acquittal will not be conclusive as the parameter for conviction in a criminal case would be distinct from the exercise of administrative power to adjudge the suitability of a candidate for appointment. The authority concerned will have to examine all relevant materials in light of the law laid down by the Hon'ble Supreme Court in the case of Avtar Singh (Supra) to take an appropriate decision in the matter. The 3rd respondent, therefore, is directed to examine petitioner's claim in light of the above observation, keeping in view the law laid down by Hon'ble Supreme Court in the case of Avtar Singh (Supra) by passing a reasoned order within a period of three months.
Order Date :- 12.3.2021
Abhishek Singh
