Balavant Singh Yadav vs State Of U.P. And 4 Others
2022 Latest Caselaw 2000 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 33
 

 
Case :- WRIT - A No. - 652 of 2019
 

 
Petitioner :- Balavant Singh Yadav
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Siddhartha Srivastava,Kamla Singh,Satyendra Kumar Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mrs. Kamla Singh, learned counsel for the petitioner and Mr. Pranav Ojha, learned Additional Chief Standing Counsel for the State-respondents.

By means of the present writ petition, the petitioner has questioned the order dated 13th December, 2018 (Annexure No. 19 to the writ petition) passed by the Superintendent of Police, Chandauli i.e. respondent no.4. Further, the petitioner has prayed for a direction upon respondent no.4 to send the petitioner on training immediately for the post of Police Constable pursuant to his final selection.

It is the case of the petitioner that pursuant to the advertisement No. PRPB-8(82) dated 29th December, 2015, which was issued by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow for "Direct Recruitment Constable (Civil Police) & Constable (PAC) (Male)-2015, petitioner applied for the post of Constable (Civil Police) under Other Backward Class Category i.e. non-creamy layer category, after completing requisite formalities, through online. After evaluation of the high school and intermediate results of the petitioner, he was called for physical efficiency test, which was held on 3rd May, 2016. In the said physical efficiency test, the petitioner was declared successful and he was called for verification of his documents. The petitioner appeared before the authority concerned for the said verification. A select list was declared by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow on 15th May, 2019. Thereafter the petitioner was called by respondent no.4 on 9th June, 2018 to appear in the medical examination at Chandauli, which was held on 14th June, 2018. The petitioner appeared in the said medical examination and was declared successful. On 9th July, 2018, a final select list was uploaded on the official website of the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow in which the name of the petitioner has been placed at serial no. 14753. For the purposes of character verification, the petitioner was required to furnish an affidavit on the prescribed form, which was duly submitted by him before respondent no.4 on 11th June, 2018.

Learned counsel for the petitioner submits that as the petitioner was not offered appointment letter for sending him on training at Azamgarh, which was allotted, pursuant to the final select list dated 9th July, 2018, he made a representation before respondent no.4 on 27th July, 2018. Thereafter the petitioner was informed that as two criminal cases i.e. Crime No. 111 of 2017 and Crime No. 44 of 2018, were pending against him, therefore, his claim for issuing him appointment letter on the said post cannot be considered. In the applications filed by the petitioner under Section 482 Cr.P.C., two different Coordinate Benches of this Court, on the basis of compromise, have quashed the entire proceedings of aforesaid two criminal cases vide orders dated 13th and 18th September, 2018, copies of which have been enclosed as Annexure No. 13 and 14 to the present writ petition. As entire proceedings of both the aforesaid criminal cases have been quashed, the petitioner made another representation dated 26th September, 2018 before respondent no.4 along with copies of both the aforesaid orders. On the said representation, respondent no.4 wrote a letter to the Superintendent of Police, Azamgarh i.e. respondent no. 5 to take further action in the matter. However, neither respondent no.4 nor respondent no.5 had taken any decision on the representation of the petitioner dated 26th September, 2018, due to which the petitioner filed Writ-A No. 24703 of 2018 (Balwant Singh Yadav Vs. Sate of U.P. & Others). The said writ petition was finally disposed of by a Writ Court vide order dated 22nd November, 2018 requiring the petitioner to make a fresh representation before respondent no.4, who inturn was also required to decide the same in accordance with law. Pursuant to the order of the Writ Court dated 22nd November, 2018, the petitioner made his representation on 30th November, 2018 before respondent no.4, which has been rejected by him vide order dated 13th December, 2018. It is against this order that the present writ petition has been filed.

Learned counsel for the petitioner submits that respondent no.4, without application of mind and in a mechanical manner, has passed the order impugned while rejecting the claim of the petitioner merely on the basis of declaration as made by the petitioner in paragraph nos. 2 and 9 of the affidavit, which was furnished by him at the time of verification of his documents, where in paragraph no.2 the petitioner made declaration "that to my knowledge, no criminal case/matter was ever registered against him neither any police investigation is pending".

Learned counsel for the petitioner further submits that though, while passing the order impugned, respondent no.4 has recorded the fact of concealment of criminal cases but has not recorded any finding qua prior knowledge of the same to the petitioner while he filed affidavit dated 11th June, 2018. It was categorical case of the petitioner that when he was not sent for training, on enquiry being made by him, he came to know about the aforesaid criminal cases, entire proceedings of which have already been been quashed by this Court referred to above, as such there is no question of concealment of fact on the part of the petitioner.

On the cumulative strength of the aforesaid, learned counsel for the petitioner submits that in view of the law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, reported in 2016 (8) SCC 471, 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), his claim for appointment on the post of Constable (Civil Police) pursuant to the selection referred to above, is liable to be allowed after quashing the order impugned, which cannot be legally sustained in the eyes of law.

On the other-hand, learned Standing Counsel for the State-respondents submits that as the petitioner has concealed the pendency of aforesaid two criminal cases against him in his affidavit, which was submitted by him at the time of verification, there is no illegality or infirmity in the impugned order passed by respondent no.2. However, the learned counsel for the petitioner could not controvert the submissions made by the learned counsel for the petitioner and the case laws referred by him.

I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition.

The Apex Court in the case of Avtar Singh (Supra) has opined that non-disclosure of conviction in a case of trivial nature, 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. While summarizing the conclusion, the Apex Court has laid down broad guidelines, which has to be taken note of by the appointing/competent authority in dealing with the matters where there is a suppression of material information or disclosure of false information. The guidelines which have been laid down by the Apex Court Avtar Singh (supra), read as follows:

"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."

Following the judgment in the case of Avtar Singh (Supra), the Apex Court in its latest judgment in the case of Pawan Kumar Vs. Union of India & Another, reported in 2022 0 Supreme (SC) 391, has opined that mere suppression of material/false information in a given case does not mean that employer can arbitrarily discharge/terminate an employee from service. All matters cannot be put in a straitjacket and a degree of flexibility and discretion which vests with the authorities, must be exercised with care and caution taking all facts and circumstances into consideration including the nature and type of lapse. Relevant paragraphs of the judgment in the case of Pawan Kumar (Supra), reads as follows:

"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service.

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18. The criminal case indeed was of trivial nature and the nature of post and nature of duties to be discharged by the recruit has never been looked into by the competent authority while examining the overall suitability of the incumbent keeping in view Rule 52 of the Rules 1987 to become a member of the force. Taking into consideration the exposition expressed by this Court in Avtar Singh (supra), in our considered view the order of discharge passed by the competent authority dated 24th April, 2015 is not sustainable and in sequel thereto the judgment passed by the Division Bench of High Court of Delhi does not hold good and deserves to be set aside."

(Emphasis supplied)

In the order impugned dated 13th December, 2018 passed by respondent no.4 rejecting the selection/appointment of the petitioner on the post of Constable, it has been noticed that it has specifically been mentioned, in the instructions issued by the Board qua the verification of character of candidates, that if the facts mentioned in the affidavit, which has to be submitted by all the candidates, are found to be false, then the candidature of the candidate concerned for selection/appointment shall be cancelled and if any wrong fact is found in future even after selection/appointment/recruitment of the candidate concerned, then his/her services from the post of Police Constable in U.P. Police shall stand automatically terminated without any reason and notice and legal action will also be taken against him/her. On the basis of the aforesaid, respondent no.4 has recorded that since in paragraph no.2 of the affidavit, the petitioner made declaration "that to my knowledge, no criminal case/matter was ever registered against him neither any police investigation is pending", whereas on enquiry it has been found that two criminal cases were pending against him, therefore, it has been found that the petitioner has suppressed the aforesaid fact. As such the selection/appointment of the petitioner on the said post stands cancelled. When as a matter of fact, it is the categorical case of the petitioner that when the petitioner enquired as to why he is not being sent for training after selection on the said post, he has come to know from the respondent authorities that two criminal cases were pending against him. As such, the allegation against the petitioner for concealment/suppression of material fact, has no leg to stand.

From bare combined reading of the order impugned as well as the law laid down by the Apex Court in the cases of Avtar Singh and Pawan Kumar (Supras), this Court is of the opinion that without any enquiry as to whether the petitioner has knowledge about the criminal cases pending against him and he has deliberately concealed the same in his affidavit submitted at the time of verification as also without any notice and opportunity of hearing to him, respondent no.4 has rejected the selection/appointment of the petitioner for sending him training on the post of Constable (Civil Police) while passing the impugned order in a mechanical and harsh manner. Respondent no.4 has also not recorded any finding as to on what basis he came to the conclusion that the petitioner has concealed the material fact of pendency of criminal cases against him. Respondent no.4 has also not examined the guidelines framed by the Apex Court in the case of Avtar Singh (Supra), while rejecting the selection/appointment of the petitioner under the order impugned. Even otherwise, proceedings of both the criminal cases pending against the petitioner have already been quashed by this Court on the basis of compromise, as has already been noticed herein above.

In view of the aforesaid, this finds that the order impugned passed by respondent no.4 cannot be legally sustained and is hereby quashed. Matter is remitted back to respondent no.4 for decision afresh in light of the law laid down by the Apex Court in the cases of Avtar Singh and Pawan Kumar (Supras). While deciding the matter afresh, respondent no.4 shall pass a reasoned and speaking order, after affording opportunity of hearing to the petitioner, preferably within three months from the date a certified copy of this order is filed before him.

The present writ petition is allowed subject to the observations made above.

(Manju Rani Chauhan, J.)

Order Date :- 5.5.2022

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