Devendra Kumar vs State Of U P And 4 Others
2022 Latest Caselaw 11882 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 37
 

 
Case :- WRIT - A No. - 12332 of 2022
 

 
Petitioner :- Devendra Kumar
 
Respondent :- State Of U P And 4 Others
 
Counsel for Petitioner :- R.K. Mishra
 
Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh
 

 
Hon'ble Mrs. Sangeeta Chandra,J.

(1) Heard the learned counsel for the petitioner and Shri Kaushalendra Nath Singh, who appears for the Respondent nos.2 to 5 and perused the record.

(2) This petition has been filed by the petitioner praying for a direction to be issued to the Respondents to consider the claim of the petitioner for appointment on compassionate ground by taking into account the judgment of the Hon'ble Supreme Court in Avtar Singh Vs. Union of India reported in 2016 (8) SCC 471, and for quashing of the order passed by the Executive Engineer dated 21.01.2022 by which the appointment of the petitioner has been rejected on the ground of pendency of criminal case against him.

(3) It has been submitted by the learned counsel for the petitioner that the petitioner's father Late Om Prakash Mahur, was a regular employee of the Respondent-Corporation. He died in harness on 05.09.2020. After his death the mother of the petitioner moved an application on 10.03.2021 praying that compassionate appointment to be given to the petitioner. The Executive Engineer by his letter dated 17.06.2021 asked the mother of the petitioner to give her written statement as brother of the petitioner Manoj Kumar son of Late Om Prakash Mahur had also claimed appointment on compassionate ground. The mother of the petitioner was heard by the Executive Engineer he deposed in favour of the petitioner saying that Manoj Kumar was living independently with his wife and she had no concern with Manoj Kumar. When no orders were passed, the petitioner approached this Court in Writ-A No.10586 of 2021 [Devendra Kumar Vs. State of U.P. and 5 Others] in which this Court passed a detailed order by referring to Rule 7 of the U.P. Recruitment of the Dependents of Government Servants Dying-in-Harness, Rules 1974, with a direction to the Executive Engineer that since affidavit has been filed by the mother of the petitioner in his favour and against Respondent no.6, the Executive Engineer should consider and decide the case of the appointment on compassionate ground of the petitioner by exclusion of the Respondent no.6 i.e. Manoj Kumar the brother of the petitioner. After this order was passed on 01.09.2021 again no appointment was made. When the petitioner inquired the Executive Engineer has passed an order on 21.01.2022 which is being impugned in this petition. By means of which it has been stated that after the order was passed on 01.09.2021, by this Court in Writ-A No.10586 of 2021 the Character verification was sought from the District concerned. The Sub Inspector of Police Station Nayee Mandi, Bulandshahar had reported on 02.07.2021 that no criminal case was registered against the petitioner. However, Smt. Manju, the widow of Dinesh Kumar had submitted a complaint on 06.10.2021 saying that a criminal case is pending against the petitioner for which an FIR was lodged under various sections of the IPC at Police Station Kotwali Nagar, District Bulandshahar. On verification from the Senior Superintendent of Police, Bulandshahar, it had come to the notice of the respondents that Case Crime No.1374 of 2021, under Sections 452, 323, 354, 504, 506 IPC, was lodged where Charge-sheet has been filed by the Investigating Officer before the Trial Court, hence no recommendation was made by the Police Authorities for grant of appointment to the petitioner.

(4) On the basis of such police verification the case of the petitioner had been rejected saying that a criminal case is pending against him.

(5) It has been submitted by the learned counsel for the petitioner that although an FIR was lodged against the petitioner but he had no notice of such FIR being lodged and also no notice of Charge-sheet before the Trial Court by the Investigating Officer. Moreover, the Supreme Court in the judgment rendered in Avtar Singh Vs. Union of India (Supra) has observed that if a criminal case relating to trivial offence is pending it shall not automatically be treated as disqualifying a candidate for appointment.

(6) This Court has considered the arguments raised by the learned counsel for the petitioner and also the judgment rendered in Avtar Singh Vs. Union of India wherein Paragraph-38 certain guidelines have been issued by the Supreme Court which are being quoted hereinbelow:-

"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 are 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 involving moral turpitude or offence of case 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 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 suppressioveri or suggestion falsi, knowledge of the fact must be attributable to him. "

(7) This Court has also aware of the judgment rendered by the Division Bench of the Supreme Court in the case of Pawan Kumar Vs. Union of India reported in 2022 SCC 532 Online. Learned counsel for the petitioner is directed to make a fresh Representation enclosing copies of judgments in Avtar Singh and Pawan Kumar Vs. Union of India to the Respondent no.5 who shall consider such Representation strictly in accordance with law and pass appropriate reasoned and speaking orders within a period of eight weeks from the date a certified copy of this order is produced before him.

(8) This writ petition stands disposed of.

Order Date :- 31.8.2022

PAL