Saurabh Kumar vs State Of U P And 3 Others
2022 Latest Caselaw 3249 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 36
 

 
Case :- WRIT - A No. - 5862 of 2022
 

 
Petitioner :- Saurabh Kumar
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Janardan Yadav,R.K. Mishra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajiv Joshi,J.

Heard Sri R.K. Mishra, learned counsel for the petitioner and learned Standing Counsel for the respondents.

Present writ petition has been filed for following reliefs:

"(i) Issue a writ, order or direction in the nature of mandamus directing the Commandant/Respondent No. 3 to appoint the petitioner on the post of Constable P.A.C. for which he has finally been selected by the respondents to provide all the service benefits to the said post regularly.

(ii) Issue a writ, order or direction in the nature of mandamus directing the Commandant/Respondent No. 3 to consider and pass appropriate and suitable order with regard to appoint the petitioner on the post of Constable P.A.C., for which he has finally been selected by the respondents within specific period as fixed by this Hon'ble Court. "

Learned counsel for the petitioner submits that the petitioner that pursuant to the advertisement on the post of Constable (P.A.C.) vide Advertisment No. 1(138)2018, the petitioner applied on the post of constable and his written as well as physical examination has been conducted by the respondent authority, in which he was passed and finally selected on the post of Constable (P.A.C.). Subsequently, the petitioner filed a notary affidavit dated 26.8.2021 stating therein that criminal case being Case Crime No. 715A/2014, under Sections 147, 148, 323, 504, 506 IPC and Section 3 (1) (10) S.C./S.T. Act, Police Station Ghosi, District Mau is pending before Special Judge, Mau, in which petitioner is also one of the accused and charge sheet in the said case has been filed.

Learned counsel for the petitioner further submits that till date the appointment has not been given to the petitioner on the post of Constable (P.A.C.). It is next submitted that petitioner represented the matter before respondent-3, which remain undecided.

Learned Standing Counsel on the basis of instruction submits that since a criminal case being Case Crime No. 715A/2014, under Sections 147, 148, 323, 504, 506 IPC and Section 3 (1) (10) S.C./S.T. Act, Police Station Ghosi, District Mau is pending against the petitioner and as such, the petitioner is not entitled for any appointment on the post of Constable (P.A.C.) during pendency of the said criminal case.

Learned counsel for the petitioner further submits that the law laid down by the Apex Court in the case of Avtar Singh Vs. Union of India and others, 2016 (8) SCC 471, petitioner's claim for appointment is liable to be considered as per law. Para 38 of the judgment in Avtar Singh (supra) reads as under:-

"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."

Learned Standing Counsel states that an appropriate decision would be taken by the competent authority.

In the facts of the present case, the petitioner is directed to file a fresh representation before respondent no.3-Commandant, 20th Battalion, P.A.C. Azamgarh within two weeks from today, who shall consider the petitioner's claim for appointment and take decision on petitioner's representation in light of the law laid down by the Hon'ble Supreme Court in the case of Avtar Singh (supra) within a period of two months from the date of its presentation alongwith certified copy of this order. Petitioner shall be at liberty to annex all materials in support of his plea.

With the above observations/directions, this writ petition stands disposed of.

Order Date :- 18.5.2022

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