Ravi Tiwari vs State Of U P And 3 Others
2023 Latest Caselaw 4801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 33
 
Case :- WRIT - A No. - 20992 of 2022
 

 
Petitioner :- Ravi Tiwari
 
Respondent :- State Of U P And 3 Others
 
Counsel for Petitioner :- Ajay Kumar Rai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Jaspreet Singh,J.

Heard Shri Ajay Kumar Rai, learned counsel for the petitioner and Ms. Neetu Singh, learned standing counsel for the State-respondents.

By means of the instant petition, the petitioner seeks a writ in the nature of certiorari quashing the impugned order dated 06.12.2022 passed by the Superintendent of Police, Azamgarh and a further relief in the nature of mandamus has been sought directing the respondents to appoint the petitioner in the Civil Police and P.A.C., in pursuance of the selection held on the basis of the Advertisement dated 29.12.2015.

To put the matter in a perspective, the record would indicate that in pursuance of the aforesaid Advertisement, issued for the recruitment in Civil Police and P.A.C., the petitioner had applied and had cleared the test. The petitioner, later called upon to file an affidavit in terms of the aforesaid advertisement which was done by the petitioner on 05.06.2018. The candidature of the petitioner came to be rejected on 29.09.2018 primarily on the ground that the petitioner while filing the affidavit had not disclosed the Criminal Case No.285/2016, under Sections 147, 148, 149, 452, 323 and 352 IPC at Police Station Nizamabad, District Azamgarh.

Being aggrieved, the petitioner approached this Court by means of the WRIT-A No.23265/2018 (Ravi Tiwari v. State of U.P. and others), which was disposed of vide order dated 30.10.2018 directing the respondent to consider the case of the petitioner in light of the decision of the Apex Court in Avatar Singh v. Union of India and others, (2016) 8 SCC 471.

It is in furtherance thereof, that a fresh order came to be passed on 10.12.2018, whereby again the candidature of the petitioner was rejected and the said order again came to be assailed by means of the WRIT-A No.2305/2020 (Ravi Tiwari v. State of U.P. and 3 others).

The writ Court yet again by means of the order dated 31.10.2022 allowed the writ petition setting aside the order dated 10.12.2018 and remanded the matter to the Superintendent of Police, Azamgarh to pass a fresh order taking into account the direction given by this Court as well as noticing the decision of the Apex Court in the case of Satish Chandra Yadav v. Union of India and others, reported in 2022 SCC OnLine SC 1300, and also the order-sheet of the Criminal Case No.285/2016. The said exercise was to be completed within a period of three months from the date a certified copy of the order was placed before the authority concerned..

It is in the aforesaid context that the matter was taken by the authorities once again and the impugned order dated 06.12.2022 has been passed, which is under challenge in the instant petition.

The primary submission of the learned counsel for the petitioner is that despite a clear and categoric finding recorded by a Coordinate Bench of this Court while dealing with WRIT-A No.2305/2020, which was decided by means of the order dated 31.10.2022, it would indicate that the petitioner was not aware of the pendency of the said criminal case while he had furnished the aforesaid affidavit, yet on the same very ground, the impugned order dated 06.12.2022 has been passed.

It is further urged that this is third time the petitioner had to approach this Court and the authorities are bent upon passing the impugned order without considering the observations and directions issued by this Court, which is an attempt to overreach the order passed by this Court. It is in the aforesaid backdrop, it is urged that the impugned order is bad in the eyes of law and deserves to be set aside.

The record indicates that this Court by means of the order dated 20.01.2023 had passed the following order, which read as under:-

"Heard Sri Ajay Kumar Rai learned counsel for the petitioner and Sri Alok Kumar Srivastava learned Standing Counsel for the State-respondents.

The submission of learned counsel for the petitioner is that initially the candidature of the petitioner was rejected on the ground that he has suppressed material fact regarding pendency of a criminal proceeding against him. The same came to be challenged by the petitioner by filing a Writ-A No.2305 of 2020 (Ravi Tiwari vs. State of U.P. and others) wherein this Court recorded a categorical finding that the petitioner was not aware of the said proceeding.

It is further submitted that the Court directed the respondent-authorities to decide the issue, however, by means of order dated 14.11.2022, the authorities still came to the same conclusion which again was assailed by the petitioner by means of Writ-A No.19324 of 2022. However, on 05.12.2022 when the matter was taken up, it was informed that the respondent-authorities had already passed another order dated 15.11.2022 whereby they had recalled the earlier order dated 14.11.2022 and submitted that they will take a relook at the representation of the petitioner. In view thereof, the petition was rendered infructuous, however, a direction given that the respondent-authorities shall take a decision preferably within a period of six weeks and communicate the same to the petitioner.

The submission is that as despite categorical order passed by the Court and twice the petitioner had to approach this Court once again by means of the impugned order dated 06.12.2022, the representation of the petitioner has again been rejected on the same ground. The submission is that initial order which was passed by the Court on 31.10.2022 was passed after exchange of pleadings between the parties. The material which has been relied upon by the respondents to reject the representation of the petitioner was already available with them, they have contested and filed the counter affidavit in the writ bearing No.2305 of 2022 and despite the same again the order has been passed rejecting the representation on irrelevant ground which is nothing but an attempt of the respondent-authorities to overreach the order passed by the Court.

Learned Standing Counsel is directed to seek strict instruction in respect of the aforesaid and in the meantime it shall be open for the authorities to revisit the order impugned.

List this matter again on 14.02.2023, as fresh."

In furtherance thereof, the learned standing counsel has provided a copy of the written instructions dated 02.02.2023 under the signatures of Superintendent of Police, Azamgarh.

It is urged that in the aforesaid written instructions in Para-4, the stand taken by the State-respondents while defending the impugned order is that the petitioner was very well aware of the criminal proceedings and in order to substantiate the same, a reference has been made to notice issued to the petitioner under Section 41-A Cr.P.C. It is, thus, submitted that the petitioner was aware of the aforesaid criminal case and even he had made a statement under Section 161 Cr.P.C., on 08.02.2017 i.e. prior to the date of filing of the affidavit and for the said reasons, it cannot be said that the petitioner has no notice of the said case. Thus, there is ample material available on record to indicate that the petitioner was aware of the criminal proceedings and has deliberately filed a false affidavit, consequently, the candidature of the petitioner has rightly been rejected. Hence, the writ petition deserves dismissal.

Having heard learned counsel for the parties and with the consent of the parties' counsel, the petition is disposed of at the admission stage itself.

Taking note of the material available on record and the contentions raised by the State-respondents that the petitioner was aware of the pendency of the proceedings of criminal case and it is said grounds upon which the impugned order dated 06.12.2022 has been passed.

From a bare perusal of the impugned order, which has been brought on record as Annexure No.10, it would indicate that in the earlier part, a narration of the facts have been given and thereafter taking note of the notice under Section 41-A Cr.P.C., as well as recording of the statement of the petitioner under Section 161 Cr.P.C., it is stated that the petitioner was very well aware of the pendency of the proceedings and, therefore, the affidavit filed by the petitioner was patently erroneous and suffers from concealment and thus, the candidature of the petitioner has been rejected.

At this stage, it will be relevant to notice the decision rendered by a Coordinate Bench of this Court in WRIT-A No.2305/2020, decided on 31.10.2022. A copy of the said order has been brought on record as Annexure No.6 and from a perusal thereof, it indicates that the Court had recorded the aforesaid findings which read as under:-

"Thus in the light of the said judgment coupled with the fact that the material on record clearly demonstrates that the petitioner was not aware of the criminal case pending against him, the writ petition is allowed. The impugned order dated 10.12.2018 is set aside.

The matter is remanded to the Superintendent of Police to pass a fresh order taking into account the directions given by this Court in the case of Satish Chandra Yadav (Supra) and also the order-sheet of Criminal Case No.285 of 2016 which clearly demonstrates that the petitioner was not aware of the criminal proceedings as on the date of the filing of the affidavit. The said exercise shall be carried out by the Superintendent of Police with all expeditions preferably within a period of three months from the date of production of certified copy of this order."

From a perusal of the aforesaid quoted portion of the order passed by a Coordinate Bench of this Court, it is evident that the matter was remanded to the Superintendent of Police, Azamgarh to pass a fresh order taking into consideration the direction of this Court in the case of Satish Chandra Yadav (supra) and also the order-sheet of the Criminal Case No.285/2016 which demonstrated that the petitioner was not aware of the criminal proceedings on the date of filing of the affidavit. Once, the Court had categorically returned a finding that the petitioner was not aware of the pendency of the criminal proceedings and the said order was neither assailed in special appeal nor it was varied or modified, it was incumbent upon the authorities to have taken the findings as they have been returned and it was not open for the authorities to pass an order which would run contrary to the findings of this Court in the order dated 31.10.2022.

It will also be relevant to notice that the Court had clearly provided that the respondents-authorities while taking note of the composite facts including the decision of the Apex Court in Satish Chandra Yadav (supra). The authorities, no doubt could have taken a view objectively in light of the directions given by the Apex Court in Avatar Singh (supra) and Satish Chandra Yadav (supra), but they have no jurisdiction to sit over the findings which have been returned by this Court in the earlier order dated 31.10.2022 which indicated that the petitioner was not aware of the criminal proceedings at the time when the affidavit was filed. It would have been appropriate for the authorities to have considered the issue objectively in light of the guidelines laid by the Apex Court in Avatar Singh (supra) and further explained in Satish Chandra Yadav (supra), but the same has not been done.

Having perused the impugned order, this Court finds that the authorities have not taken an objective view of the matter nor the directions given by the Apex Court in Avatar Singh (supra) and Satish Chandra Yadav (supra) have been taken note of in correct perspective and the authority ought to have considered how the alleged case would have any bearing on the suitability of the petitioner in context with his employment.

It is in view thereof that the Court allows this writ petition setting aside the impugned order dated 06.12.2022. The matter shall stand remanded to the respondent No.4, who shall revisit the matter in light of the decision of the Apex Court and also noticing that the findings returned by this Court in the earlier order dated 31.10.2022 passed in WRIT-A No.2305/2020 was binding and thereafter taken an objective view of the matter including considering the pith and substance of the directions issued by the Apex Court in Avatar Singh (supra) and explained in Satish Chandra Yadav (supra) with its meaningful application to the facts of the case and shall pass a fresh order preferably within a period of six weeks from the date a certified copy of this order is placed before the authority concerned.

With the aforesaid, the petition is allowed. In the facts and circumstances, there shall be no order as to costs.

Order Date :- 14.2.2023

Rakesh/-