Prashant Kumar vs State Of U.P. And 5 Others
2022 Latest Caselaw 2142 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

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

 
Case :- WRIT - A No. - 6672 of 2022
 

 
Petitioner :- Prashant Kumar
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Atipriya Gautam,Ishir Sripat,Rishabh Kesarwani,Sr. Advocate
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Mr. Vijay Gautam, Senior Advocate assisted by Mr. Rishabh Kesarwani, 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 31.03.2022 passed by the respondent no.6, (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 send 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 pursuant to the advertisement dated 16.11.2018 for the post of Constable Civil Police and Constable PAC, Direct Recruitment-2018-II. The petitioner appeared in the written examination on 27.01.2019. He was declared successful in written examination and, thereafter, he appeared in document verification & Physical Efficient Test (PET) and he was declared medically fit in the aforesaid test. As per the final list of selected candidates, which was published on 02.03.2020, the petitioner was shown as successful candidate. Thereafter, he was allotted district-Meerut for joining his training, however, the competent authority has not permitted the petitioner to join his training (JTC), on the ground that the petitioner has given a false affidavit with respect to pendency of criminal case, which was lodged against the petitioner and one unknown person on 10.05.2021 being Case Crime No.142 of 2021, under Sections 188, 269, 270 IPC and 3 Epidemic Act at P.S. Doghat, District-Baghpat.

Learned counsel for the petitioner further submits that pursuant to the order passed by this Court dated 08.10.2021 in Cri. Misc. Writ Petition No.7787 of 2021 (Vinay Kumar and Ors. vs. State of U.P. and Ors.), the State Government has withdrawn all the criminal proceedings, which have been initiated under Epidemic Act 1987, during pandemic of Covid-19 on 26.10.2021. Pursuant to the aforesaid, the criminal case lodged against the petitioner has also been withdrawn on 15.02.2022. The petitioner was neither arrested nor he has obtained bail from any court in the aforesaid case and the said FIR was lodged behind the back of petitioner as the petitioner did not have any knowledge about lodging of the said FIR, therefore, at the time of submitting the affidavit, he has not disclosed about the aforesaid criminal case, which was later withdrawn. Subsequently, the impugned order dated 31.03.2022 has been passed by respondent no.6 whereby the candidature of the petitioner has been cancelled in an arbitrary manner without application of judicial mind, therefore, the order impugned cannot be sustained in the eye of law.

He further submitted that as the aforesaid criminal case against the petitioner has been withdrawn vide order dated 15.02.2022 and he has already been exonerated from all the charges, therefore, the case of the petitioner should have been considered while passing the order impugned. He further submits that while passing the order impugned, the respondent authorities has not applied their mind and passed a technical order without considering the directions as issued by the Apex Court in the cases of Avtar Singh Vs. Union of Indian and others, reported in 2016(8) SCC 471 and Pawan Kumar vs. Union of India and another reported in (2022) 0 Supreme (SC) 391. He further submits that the petitioners' claim for appointment is liable to be considered in the light of Avtar Singh (supra), 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.

On the other hand, learned Standing Counsel submits that at the time of submission of affidavit, a criminal case was pending against the petitioner, therefore, the petitioner has suppressed the fact of pendency of criminal case and submitted a false affidavit, hence he is not entitled to be considered for appointment on the said post, as any person desirous of holding the post of government servant has to act with utmost good faith and truthfulness. He further submits that there is no illegality or infirmity in the order impugned, therefore, the writ petition is liable to be dismissed.

I have considered the submissions made by learned counsel for the parties as well as gone through the entire materials brought on record.

Undisputedly, on the date, when the affidavit has been submitted by the petitioner, though a criminal case was instituted against the petitioner but he did not have knowledge of the same as neither any summons were issued nor he was arrested or had obtained bail from any competent court, therefore, there was no suppression of relevant facts or submission of false affidavit at that stage. It is unfortunate that a criminal case of trivial nature came to be registered against the petitioner on 10.05.2021, which was later withdrawn, but the petitioner was not aware of the same, therefore, at the time of verification, he gave an affidavit not disclosing the fact about the pendency of criminal case, which was not deliberate on his part.

The Apex Court in the case of Avtar Singh Vs. Union of Indian and others, reported in 2016(8) SCC 471 has held that in case offence is petty in nature committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects. It has also held that non-disclosure of conviction/acquittal 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. Paragraph no. 38 of the aforesaid judgment is 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 sugge6716The stio 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 and another, reported in 2022 0 Supreme (SC) 391, has held that by mere suppression of material/false information regardless of fact whether conviction or acquittal has been recorded, employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, effect of suppression of material/false information involving in a criminal case, if any, is left for employer to consider all relevant facts and circumstances available as to antecedents and keeping in view objective criteria and relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of employee into service. Paragraph no. 16 of the aforesaid judgment is as under:-

"16. The judgment relied upon by the respondent Rajasthan Rajya Vidyut Prasaran Nigam Limited andanotherv. Anil Kanwariya(2021) 10 SCC 136may not be of any assistance for the reason that it was a case where the respondent employee before submitting application pursuant to the advertisement inviting applications was convicted by the competent Court of jurisdiction and this fact was not disclosed by him while filling his application form and that was the reason favoured upon the Court while upholding action of the authority in passing the order of termination which was impugned in the proceedings. We have already quoted paragraph 38 of the judgment by a three-Judge Bench of this Court in Avtar Singh (supra) and in the context of the factual background of the present case applied the said principles. One distinguishing factor, as noticed above, is that the criminal complaint/FIR in the present case was registered post submission of the application form. We have also taken into account the nature of the allegations made in the criminal case and that the matter was of trivial nature not involving moral turpitude. Further, the proceedings had ended in a clean acquittal. As is clear from paragraph 38 in Avtar Singh (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the authorities, must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of lapse."

Having considered the arguments raised by learned counsel for the parties and having gone through the case laws as referred hereinabove, this Court finds that at the time of submission of affidavit, the criminal case was already registered against him but the petitioner did not have knowledge of the same as neither any summons were issued nor he was arrested or had obtained bail from any competent court, therefore, there was no suppression of facts or submission of false affidavit at that stage. Also the aforesaid criminal case, which is trivial in nature was withdrawn vide order dated 15.02.2022, hence the competent authority while passing the order impugned has failed to follow the mandate of the Apex Court in the case of Avtar Singh (supra) and Pawan Kumar (supra), therefore, the order impugned dated 31.03.2022 cancelling the candidature of the petitioner is not sustainable in the eye of law and the same is liable to be set aside.

In view of the above, the impugned order dated 31.03.2022 passed by respondent no.6 is set aside and the matter is remitted to the respondent no.6, 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) and Pawan Kumar (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, allowed.

Order Date :- 6.5.2022

Jitendra/-