Rahul Kumar vs State Of U.P. And 3 Others
2021 Latest Caselaw 4224 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 4385 of 2021
 

 
Petitioner :- Rahul Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh,Ajeet Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard Shri Adarsh Singh, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Standing Counsel for State respondents.

Present writ petition has been preferred assailing the validity of the order dated 29.12.2020 passed by second respondent i.e. Commandant, 15th Battalion PAC, Distt. Agra by which the candidature of the petitioner has been cancelled for appointment on the post of Constable, Civil Police/PAC on account of his involvement in Case Crime No.0572 of 2018 under Sections 147, 148, 149, 307, 504 and 354 IPC, P.S. Banna Devi, Distt. Aligarh registered on 10.09.2018.

Learned counsel for the petitioner has vehemently contended that at no point of time the petitioner has concealed the material fact and categorical averment in this regard has been made in para 14 of the writ petition. He has further submitted that there is no allegation against the petitioner with regard to the alleged incident, which is also evident by perusal of the first information report appended as Annexure No.3 to the writ petition. It is also contended that even the victim was also examined under Section 164 CrPC and from perusal of the statement of victim given under Section 164 CrPC it is evident and established that not an iota of an allegation has been made against the petitioner with regard to alleged incident and he has been falsely implicated in the aforesaid criminal case. It is alleged that in the present matter chargesheet has been submitted against the petitioner in a sling shot manner.

Learned counsel for the petitioner in support of his submissions has placed reliance on the judgment and order dated 23.2.2021 passed in Writ-A No.2666 of 2021 (Khyali Ram v. State of U.P. & Ors.) and the judgment dated 5.1.2021 passed in Writ-A No.13293 of 2020 (Akash Kumar v. State of U.P. & Ors.). Both the aforesaid writ petitions were disposed of taking into consideration the judgment of Hon'ble Apex Court in Avtar Singh v. Union of India, (2016) 8 SCC 471.

Per contra, Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel has vehemently opposed the writ petition and placed reliance on the judgment and order dated 17.1.2019 passed in Writ-A No.541 of 2019 (Pawan Kumar v. State of U.P. & Ors.). In the said writ petition also the Court has considered the judgment of Hon'ble Apex Court in Avtar Singh (Supra). It is submitted that once chargesheet has been submitted in the matter, no indulgence is required in the matter and the writ petition is liable to be dismissed.

The Court has proceeded to examine the record in question and also considered the judgements cited at Bar. So far as judgment in Pawan Kumar (Supra) is concerned, the same has been dismissed on the pretext of suppression of material fact, whereas in the present matter admittedly at no point of time the petitioner has suppressed material fact and as such the respondents are not entitled to take any shelter from the judgment passed in Pawan Kumar (Supra). The Court find that the case of the petitioner is liable to be considered in the light of the judgment in Khyali Ram (Supra) and Akash Kumar (Supra), wherein the Court relying on the judgment passed by Hon'ble Apex Court in Avtar Singh (Supra) has relegated the matter to the authority concerned to decide the matter in the light of the principles as laid down in Avtar Singh (Supra).

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.

Accordingly, the writ petition shall stand disposed of with a direction to the competent authority to duly evaluate the candidature of the petitioner and his suitability to be appointed in the Police Force in light of the principles as laid down in Avtar Singh. The aforesaid exercise of consideration shall be concluded with expedition and preferably within a period of two months from today. The order impugned in this writ petition shall abide by the fresh decision which the competent authority shall now take. All contentions of respective parties on merits are kept open.

Order Date :- 22.3.2021

SP/