Ram Sundar Pal vs State Of U.P. And 4 Others
2021 Latest Caselaw 4531 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 4831 of 2021
 

 
Petitioner :- Ram Sundar Pal
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ram Krishna Yadav
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.

Heard learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel.

Present writ petition has been preferred assailing the validity of the order dated 25.2.2021 passed by Senior Superintendent of Police, Etawah by which the selection/ candidature of the petitioner for the post of Police Constable vide advertisement by Police Recruitment and Promotion Board-PRPB-1 (82)/15 has been cancelled and for a further direction to the respondents to issue the petitioner his appointment letter/ joining letter in pursuance of his selection as Police Constable vide advertisement in question and permit the petitioner on the said post and send him for training.

On the matter being taken up on 19.3.2021, the Court has proceeded to pass the following order:-

"Petitioner is permitted to implead Sri Akash Tomar, the then Senior Superintendent of Police, Etawah forthwith.

Petitioner is before this Court assailing the order impugned dated 25.2.2021 passed by Senior Superintendent of Police, Etawah, whereby selection/candidature of the petitioner has been cancelled.

The record in question reflects that the petitioner had earlier approached to this Court by preferring Writ A No. 17523 of 2018 on the ground that the petitioner had been selected for appointment to the post of Constable in U.P. Police pursuant to the recruitment exercise initiated in the year 2015 and had been directed to report for training at Hathras. Petitioner's grievance was that he had not been allowed to join on account of his alleged implication in Case Crime No. 564/2015 under sections 147, 452, 323, 149, 504, 506 IPC and 3(1)/10 of SC ST Act, Police Station - Jaswant Nagar, District - Etawah. While preferring the said writ petition, petitioner had taken a categorical stand that in the aforementioned criminal proceeding, he had already been acquitted by the competent court in Sessions Trial No. 236/16 vide order dated 17.07.2018. In this backdrop, the reliance had been placed upon law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, 2016(8) SCC 471 for consideration of his claim. This Court has considered the judgment cited by the petitioner and in the light of Avtar Singh (supra), the matter was relegated to the authority concerned for consideration within a period of three months. In response thereof, the order impugned has been passed, which is under challenge.

Most surprisingly while passing the order impugned, neither the law laid by the Apex Court in Avtar Singh (supra) has been considered nor the factual aspect, that the petitioner has already been acquitted in the criminal proceeding, has ever been considered by the S.S.P. Etawah. Not only this, the Senior Superintendent of Police further directed for lodging a F.I.R. against the petitioner vide order dated 23.2.2021.

Prima facie, the Court is of the opinion that in such circumstance, conduct of the officer concerned cannot be appreciated. Once the Court has shown its mind to summon the officer concerned personally before the Court, Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel requested that one more indulgence may be accorded to the authority so that the discrepancy so made be rectified on or before the next date of listing.

Put up this matter on 24.3.2021 in the additional cause list. On the said date, the officer concerned, namely, Sri Akash Tomar, the then Senior Superintendent of Police, Etawah shall remain present before the Court.

Let a copy of this order be supplied to Sri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for necessary compliance."

In response to the aforesaid order, Senior Superintendent of Police, Etawah is present along with his personal affidavit. In para 7 of the said affidavit, it has been stated as under:-

"7. That it is respectfully submitted before this Hon'ble Court that inadvertently at the time of passing the impugned order dated 25.2.2021, the observation made by the Hon'ble Apex Court in Avtar Singh v. Union of India and others case went oversight. However, after receiving the order dated 19.03.2021 passed in the instant writ petition, the deponent has revisited his order and ultimately recalled his earlier order dated 25.2.2021 vide its order dated 22.3.2021. Copy of the order dated 22.3.2021 passed by the deponent is being filed herewith and marked as Annexure No.3 to this affidavit"

Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel on the basis of said affidavit states that the order impugned has already been recalled by an order dated 22.3.2021 and the competent authority shall take final call in the matter in view of law laid down by Hon'ble the Apex Court in Avtar Singh v. Union of India & Ors., 2016 (8) SCC 471.

The reasons assigned in the personal affidavit of Senior Superintent of Police, Etawah is bonafide and accordingly accepted by this Court. The personal presence of the officer is dispensed with.

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 his acquittal.

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 decision is left for the independent evaluation of the appointing authority.

In the facts and circumstances, with the 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 in Avtar Singh (Supra) expeditiously, preferably within four weeks from the date of production of a certified copy of this order before him.

Order Date :- 24.3.2021

SP/