Ajay Kumar vs The State Of U.P. And 6 Others
2022 Latest Caselaw 1321 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 

 
Case :- WRIT - A No. - 697 of 2022
 

 
Petitioner :- Ajay Kumar
 
Respondent :- The State Of U.P. And 6 Others
 
Counsel for Petitioner :- Atipriya Gautam,Ishir Sripat,Sr. Advocate,Vinod Kumar Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Vijay Gautam, Senior Advocate assisted by Mr. Devesh Mishra, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.

This writ petition has been filed by the petitioner with the following prayer:-

"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 24.12.2021 passed by the respondent no.7, (enclosed as Annexure no.1) to the writ petition by which the candidature of the petitioner for selection/appointment on the post of Constable Civil Police and Constable PAC, Direct Recruitment-2018-II has been cancelled.

(ii) Issue a writ, order or direction, in the nature of mandamus, commanding the respondent authorities, to appoint the petitioner finally for the post of Constable Civil Police and Constable PAC, Direct Recruitment-2018-II, pursuant to the advertisement dated 16.11.2018 and in pursuance of the select list issued vide notification dated 02.03.2020 with all consequential benefits.

(iii) Issue a writ, order or direction in the nature of mandamus, directing the respondent authorities, to sent the petitioner for necessary training on the post of Constable Civil Police and Constable PAC, direct Recruitment-2018-II pursuant to the advertisement dated 16.11.2018 and in pursuance of the select list issued vide notification dated 02.03.2020...."

Learned counsel for the petitioner submits that the petitioner applied in pursuant of the advertisement dated 16.11.2018 on the post of Constable Civil Police and Constable PAC, Direct Recruitment-2018-II. The petitioner was declared successful in written examination and physical efficiency test and his documents was also verified. He further submits that at the time of document verification, the petitioner submitted an affidavit wherein he did not disclose about the criminal case, which was lodged against him on 03.09.2019 being Case Crime No.92 of 2019, under Section 138(1)(b) of Indian Electricity Act-2003. In the aforesaid case, the petitioner had already deposited the amount as required after compounding, hence the said case was closed on 17.07.2020. He further submits that the offence for which the criminal case has been lodged is regarding theft of electricity, which is a petty offence, therefore, the case of the petitioner should have been considered while passing the order impugned as the said case has already been closed way back on 17.07.2020. He further submits that while passing the order impugned, the respondent authorities has not applied his mind and passed a technical order without considering the directions as issued by the Apex Court in the case of Avtar Singh Vs. Union of Indian and others, reported in 2016(8) SCC 471. He further submits that the petitioners' claim for appointment is liable to be considered in accordance with law, which has been followed by the Division Bench of this Court in Special Appeal (Def.) No. 734 of 2016 (State of U.P. and others Vs. Vijay Kumar and others). Contention is that the petitioner's claim has not been examined, in accordance with law.

The Apex Court in paragraph no. 38 of the judgment in Avtar Singh (supra) has held as under:

"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize 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 recourse 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."

On the other hand, learned Standing Counsel submits that he does not dispute the aforesaid facts. The matter may be remitted back to the concerned authorities, who will take a fresh decision as per law.

After hearing learned counsel for the parties and going through the record as well as case law, this Court finds that the petitioner submitted affidavit before the authorities concerned on 31.07.2021, i.e. at the time of document verification and on that day, there is no criminal case has been pending against the petitioner as aforesaid criminal case lodged against him has been closed way back on 17.07.2020, hence there was no question of pendency of any criminal case against him. Also the nature of the offence, under which the case has been lodged, is compoundable offence, therefore, the order impugned dated 24.12.2021 is liable to be set aside and the matter remitted to the respondent no.7 for fresh consideration.

In view of the above, the impugned order dated 24.12.2021 passed by respondent no.7 is set aside and the matter is remitted to the respondent no.7, who in turn, shall consider the case of the petitioner herein and take a decision afresh, in accordance with law as well as keeping in view the law laid down by Apex Court in Avtar Singh (supra), within a period of two months from the date of receipt of certified copy of this order, if there is no other legal impediment.

With the aforesaid observations/directions, this writ petition is, accordingly, partly allowed.

Order Date :- 25.4.2022

Jitendra/-