Sandeep Kumar vs State Of U.P. And 3 Others
2021 Latest Caselaw 4053 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 4814 of 2021
 

 
Petitioner :- Sandeep Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Sanjay Kumar Yadav,Jitendra Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and Sri Suryabhan Singh, learned Standing Counsel for the State-respondent.

Petitioner is before this Court assailing the order impugned dated 29.5.2020 passed by the third respondent. With a further request commanding the respondents to permit the petitioner to join training centre, Lucknow pursuant to his selection against Advertisement No. PRPB-ONE-1(112)/2017 dated 14.1.2018 during pendency of the instant writ petition.

It appears from the record in question that the petitioner has earlier approached to this Court by preferring Writ A No. 15359 of 2019 seeking respondents to permit the petitioner to join in Civil Police consequent to his selection which was undertaken by the second respondent. The said writ petition was finally disposed of vide order dated 11.11.2019 to the following effect.

"Heard learned counsel for the petitioner and the learned Standing Counsel.

This petition has been preferred for the issuance of a writ commanding the respondents to permit the petitioner to join in Civil Police consequent to his selection which was undertaken by the second respondent.

According to the petitioner, it appears that the respondents have not permitted him to join on account of his arraignment in a criminal case registered as Case Crime No. 138 of 2017 alleging commission of offences under Section 336 and 507 IPC read with Section 66 of the Information Technology Act 2000. With reference to that case learned counsel for the petitioner contends that a candid disclosure in respect thereof was duly made in the affidavit which was submitted by the petitioner before the respondents. He also refers to the interim protection accorded to him by the Court in application under Section 482 No. 26734 of 2018.

Viewed in that backdrop learned Standing Counsel submits that the candidature of the petitioner, subject to verification of all facts and contentions on merits being kept open, shall be duly evaluated by the respondents in accordance with law and bearing in mind the decision rendered by the Supreme Court in Avtar Singh Vs. Union of India and Others [(2016) 8 SCC 471]. It is further stated that the second and third respondent shall upon due evaluation of the candidature of the petitioner communicate a final decision with expedition and preferably within a period of two months from the date of presentation of a certified copy of this order.

Accordingly this petition shall stand disposed of in light of the statement noted above. "

Pursuant to the aforesaid judgment and order dated 11.11.2019, petitioner filed a representation before the third respondent, which has been decided by the order impugned with a conclusion that the Board has no jurisdiction to decide the representation and only the competent authority/appointing authority can exercise such discretion. Hence, this writ petition.

In support of his submissions, learned counsel for the petitioner has placed reliance upon the judgment and order dated 2.12.2020 passed by this Court in Mooni Vs. State of U.P. And 3 Others (Writ A No.9300 of 2020) and as such submits similar indulgence may be accorded to the petitioner.

The Court has proceeded to examine the record in question. The challenge in the writ petition is to the decision of the Board by which it had held that it would be the appointing authority who would have to take a decision with respect to suitability of the petitioner for being accorded permission to join Civil Police consequent to his selection which was undertaken by the second respondent. Till date, neither the candidature of the petitioner has been cancelled nor he has been sent for training.

In Avtar Singh Vs. Union of India And Others (2016) 8 SCC 471, the Supreme Court after noticing the previous decisions rendered on the subject of a fair disclosure and a right of appointment elucidated the guiding principles in the following terms :-

"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."

From the principles as spelt out in Avtar Singh (supra) and more particularly paragraphs 38.5 and 38.6 thereof, it is manifest that an obligation stood cast upon the appointing authority to consider the suitability of the petitioner being inducted in service notwithstanding his arraignment in the criminal cases especially in light of the full and fair disclosure that was made by him in that behalf.

The Court further clarifies that it has not taken a view on the merits of the suitability or otherwise of the petitioner's claim to appointment. That is a decision which must necessarily be taken by the appointing authority himself bearing in mind the nature of allegations levelled against the petitioner in the aforementioned criminal case and its impact on his suitability to be offered employment in the police force. That decision is left for the independent evaluation of the appointing authority.

In the facts and circumstances, no useful purpose would be served in keeping the writ petition pending for consideration and on consent, the writ petition stands disposed of asking the competent/appointing authority to look into grievance of the petitioner and redress the same in the light of observations made above expeditiously, preferably within four weeks from the date of production of a certified copy of this order before him.

Order Date :- 19.3.2021

A.K.Srivastava