Lalit Kumar vs State Of U.P. And 3 Others
2023 Latest Caselaw 1398 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 15.12.2022)
 
(Judgment delivered on 13.01.2023)
 
Court No. - 03
 

 
Case :- SPECIAL APPEAL DEFECTIVE No. - 466 of 2022
 

 
Appellant :- Lalit Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Appellant :- Prabhakar Awasthi
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

Hon'ble Mohd. Azhar Husain Idrisi,J.

(Per: Surya Prakash Kesarwani, J.)

1. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner-appellant and Sri Satish Kumar Srivastava, learned Additional Chief Standing Counsel for the State-respondents.

2. The petitioner-appellant has filed the present special appeal praying to set aside the judgment and order dated 22.07.2022 in Writ-A No.679 of 2020 (Lalit Kumar vs. State of U.P. and others) passed by the learned Single Judge and to allow the writ petition.

3. The petitioner has filed the aforesaid Writ-A No.679 of 2020 praying for the following relief:

"i) Issue a writ, order or direction in the nature of certiorari, quashing the impugned order dated 31.01.2019 passed by the respondent no.2 (Annexure No.6 to this writ petition) as well as order dated 06.11.2019 passed by respondent no.3 (Annexure no.12 to this writ petition).

ii) Issue a writ, order or direction in the nature of mandamus commanding/ directing the respondents to give appointment to the petitioner on the post of Assistant Prosecution Officer."

Facts of the Present Case:-

4. Briefly stated, facts of the present case are that the petitioner-appellant was already working as Upper Divisional Clerk in the office of the Director General (Meteorology), Ministry of Earth Sciences, Government of India, New Delhi. An advertisement inviting applications for recruitment on the post of Assistant Prosecution Officer was issued. The appellant-petitioner applied for the aforesaid post after obtaining permission from his aforesaid parent department to appear in the aforesaid selection process. The Uttar Pradesh Public Service Commission, Allahabad issued provisional admit card to the petitioner for appearing in Assistant Prosecution Officer Examination, 2015. The petitioner appeared in the examination and was declared successful in the preliminary examination. Thereafter, the petitioner appeared in the main examination of the aforesaid recruitment process and was declared successful. He was called for interview by the Commission vide interview letter dated 21.08.2017. He was finally selected for the post of Assistant Prosecution Officer. He was directed to appear for medical examination before the Uttar Pradesh Medical Board vide letter dated 15.12.2017 and the petitioner appeared for medical examination on 26.12.2017. In his application form, the petitioner-appellant had already declared that there is matrimonial dispute in the shape of a Criminal Case No.1459 of 2008 under Section 498A, I.P.C., yet, even after selection, the candidature of the petitioner was cancelled by the respondent No.2 vide order dated 31.01.2019. The petitioner was acquitted in the aforesaid Criminal Case No.1459 of 2008 vide judgment dated 01.02.2019 passed by the Additional Chief Judicial Magistrate, Court No.3, Ghaziabad. In the aforesaid criminal case, the court of Additional Chief Judicial Magistrate, after detail discussion and appreciation of evidences, concluded as under:

"उपरोक्त परिचर्चा से स्प्ष्ट है कि जहां एक ओर अभियोजन द्वारा बताये गये घटनाक्रम में तार्किक तार्तम्य का अभाव है वहीं दूसरी ओर अभियुक्तगण के विरूद्ध लगाये गये आरोप सामान्य प्रकृति के हैं तथा जिन घटनाओं का उल्लेख अभियोजन द्वारा किया जा रहा है, उनके तिथियों में सामन्जस्य का अभाव उपरोक्त पैराग्राफ की परिचर्चा से दृष्टिगोचर होता है। स्पष्ट रूप से अभियोजन अभियुक्तगण के विरूद्ध लगाये गये आरोपों को युक्तियुक्त संदेह से परे सिद्ध करने में असफल रहा है। तदनुसार अभियुक्तगण दोषमुक्त किये जाने योग्य है।"

5. Aggrieved with the cancellation of his candidature, the petitioner preferred a Writ-A No.3794 of 2019, which was disposed of by order dated 11.03.2019 directing the respondent No.2 to reconsider and re-evaluate the suitability of the petitioner for appointment in accordance with law and in the light of the principles enunciated in the case of Avtar Singh vs. Union of India and others, (2016) 8 SCC 471. Thereafter, the respondent No.2 passed an order dated 06.11.2019 rejecting the representation of the petitioner holding as under:

"8- रिट याचिका संख्या-ए-3794/2019 ललित कुमार बनाम उत्तर प्रदेश राज्य व अन्य में मा० न्यायालय द्वारा पारित उक्त आदेश दिनांक 11.03.2019 के क्रम में श्री ललित कुमार ने अपने प्रार्थना पत्र दिनांक 18.03.2019 द्वारा शासन के कार्यालय-ज्ञाप दिनांक 31.01.2019 द्वारा उनके सहायक अभियोजन अधिकारी के पद पर किये गये चयन से निरस्त किये गये अभ्यर्थन पर पुनर्विचार किये जाने का अनुरोध किया है।

9- अवगत कराना है कि किसी अभ्यर्थी के अभ्यर्थन निरस्त होने के बाद में उसे मा० न्यायालय द्वारा दोषमुक्त किये जाने के प्रकरण में पुनः सेवा में लिये जाने की कोई व्यवस्था नहीं है। अतः मा० उच्चतम न्यायालय द्वारा अवतार सिंह बनाम यूनियन आफ इण्डिया एवं अन्य एस०एल०पी० (सी०) नं०-20525/2011 में पारित निर्णय/मार्गदर्शक सिद्धांत दिनांक 21.07.2016 के आधार पर मा० उच्च न्यायालय, इलाहाबाद में योजित रिट याचिका संख्या-ए-3794/2019 ललित कुमार बनाम उत्तर प्रदेश राज्य व अन्य में मा० न्यायालय द्वारा पारित निर्णय दिनांक 11.03.2019 के अनुपालन में याची श्री ललित कुमार के प्रत्यावेदन दिनांक 18.03.2019 पर उनकी उपयुक्तता पर समग्र रूप से पुनर्विचार एवं पुनर्मूल्यांकन किया गया, जिसमें उपरोक्त वर्णित तथ्यों के दृष्टिगत याची श्री ललित कुमार को सेवा में लिये जाने का कोई अवसर नहीं बनता है।

10- अतः सम्यक् विचारोपरान्त मा० उच्च न्यायालय, इलाहाबाद में योजित रिट याचिका संख्या-ए-3794/2019 ललित कुमार बनाम उत्तर प्रदेश राज्य व अन्य में मा० न्यायालय द्वारा पारित निर्णय दिनांक 11.03.2019 के अनुपालन में याची श्री ललित कुमार के प्रत्यावेदन दिनांक 18.03.2019 को एतद्द्वारा निस्तारित करते हुए निरस्त किया जाता है।"

6. Aggrieved with the aforesaid order dated 06.11.2019, the petitioner filed Writ-A No.679 of 2020, which was dismissed by the impugned order dated 22.07.2022. Aggrieved with the impugned order, the petitioner has filed the present special appeal.

Submissions on behalf of the petitioner-appellant:-

7. Learned counsel for the petitioner-appellant submits as under:-

(i) The impugned judgment has been passed on misreading of the judgment of the acquittal dated 01.02.2019 in Criminal Case No. 1459 of 2008 (State Vs. Braj Singh Ken and others), under Sections 498A, 323, 504 I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Sihanigate, District Ghaziabad.

(ii) The impugned judgment of the learned Single Judge is based on misreading of judgment of Hon'ble Supreme Court in Avtar Singh Vs. Union of India and others [(2016) 8 SCC 471].

(iii) The petitioner was in government employment working as Upper Divisional Clerk in the office of Director General (Meteorology), Ministry of Earth Sciences, Government of India, New Delhi and applied for Assistant Prosecution Officer after obtaining permission from his parent department. He appeared in the Assistant Prosecution Officer Examination-2015 and was declared successful. He appeared in the interview before the Uttar Pradesh Public Service Commission pursuant to the interview letter dated 21.08.2017 and was finally selected for the post of Assistant Prosecution Officer. When the petitioner himself has disclosed about the aforesaid criminal case in which he was acquitted by judgment dated 01.02.2019 passed by the Additional Chief Judicial Magistrate, Court No. 3, Ghaziabad in Criminal Case No. 1459 of 2008. Despite this fact, the respondent no. 1 passed the order dated 06.11.2019 observing that in light of principles laid down by the Hon'ble Supreme Court in Avtar Singh case (supra), the representation of the petitioner is rejected. Thus, the representation of the petitioner was rejected by order dated 06.11.2019, against which, the petitioner filed Writ-A No. 679 of 2020, which has been dismissed by the impugned judgment without proper appreciation of facts, evidences and the law laid down by the Hon'ble Supreme Court.

Submissions on behalf of the State-respondents:-

8. Learned Additional Chief Standing Counsel supports the impugned judgment. He refers to paragraphs 10 and 11 of the impugned judgment and submits that candidature of the petitioner was rejected on the ground of pendency of criminal case, however, on the next day i.e. 01.02.2019 trial court acquitted him. Since the petitioner was not acquitted gracefully, therefore, there is no illegality in the orders dated 31.01.2019 and 06.11.2019.

9. Paragraphs 10-11 of the impugned judgment of the learned Single Judge as heavily relied by the learned Additional Chief Standing Counsel in his aforenoted submissions, are reproduced below:

"10. In the above referred facts and the rival submission, it would be apposite to quote paragraph 32 of State of Rajasthan & Ors. Vs. Chetan Jeff, 2022 SCC OnLine SC 597:

"32. In State of M.P. vs. Abhijit Singh Pawar, (2018)18 SCC 733, when the employee participated in the selection process, he tendered an affidavit disclosing the pending criminal case against him. The affidavit was filed on 22.12.2012. According to the disclosure, a case registered in the year 2006 was pending on the date when the affidavit was tendered. However, within four days of filing such an affidavit, a compromise was entered into between the original complainant and the employee and an application for compounding the offence was filed under Section 320 Cr.P.C. The employee came to be discharged in view of the deed of compromise. That thereafter the employee was selected in the examination and was called for medical examination. However, around the same time, his character verification was also undertaken and after due consideration of the character verification report, his candidature was rejected. The employee filed a writ petition before the High Court challenging rejection of his candidature. The learned Single Judge of the High Court of Madhya Pradesh allowed the said writ petition. The judgment and order passed by the learned Single Judge directing the State to appoint the employee came to be confirmed by the Division Bench which led to appeal before this Court. After considering a catena of decisions on the point including the decision in Avtar Singh Vs. Union of India, (2016) 8 SCC 471, this Court upheld the order of the State rejecting the candidature of the employee by observing that as held in Avtar Singh (supra), even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate."

(emphasis added)

11. In the light of State of Rajasthan & Ors. Vs. Chetan Jeff, (supra), considering the facts and circumstances of present case, rival submissions as well as the material available on record, it is not in dispute that at the time of submitting the verification/attestation form, petitioner disclosed that he was facing a trial for the offence as referred above and by the impugned order, candidature of the petitioner was rejected on the ground of pendency of said criminal case, however on the next date i.e. 1.2.2019, learned trial court passed the judgment and acquitted the petitioner. It is also not in dispute that nature of acquittal was not ''clean or honorouable' as the prosecution was failed to prove case against the petitioner beyond reasonable doubt."

Discussion and Findings:-

10. We have carefully considered the submissions of the learned counsels for the parties and perused the record of the special appeal.

11. Undisputedly, the petitioner was working as Upper Divisional Clerk in the office of the Director General (Meteorology), Ministry of Earth Sciences, Government of India, New Delhi when he applied for the post of Assistant Prosecution Officer and accordingly appeared in the Assistant Prosecution Officer, Examination, 2015. Also undisputedly he made true and full disclosure of the aforesaid pendency of Criminal Case No.1459 of 2008. The aforesaid criminal case was the result of Case Crime No.93 of 2007 lodged by the wife against him, his father Sri Braj Singh ken, his mother Smt. Sita Devi and his younger brother Praveen Kumar under Section 498A, 323, 504 I.P.C. and Section 3/4, Dowry Prohibition Act.

12. We have perused the judgment dated 01.02.2019 in the aforesaid Criminal Case No.1459 of 2008 and we find that the informant made merely general allegations against the petitioner. Even the prosecution witnesses including the informant could not make any specific allegation nor could prove any incident nor could prove demand of dowry by the petitioner. Therefore, after detailed discussion and appreciation, the trial court held that there is absence of logical chain in the story set up by the prosecution, that the allegations made against the petitioner are of general nature and that clearly the prosecution has failed to prove allegations beyond reasonable doubt. Consequently, the petitioner and his family members were acquitted.

13. The trial court in its aforesaid judgment in Criminal Case No.1459 of 2008 has recorded three definite findings which we have noted above. The allegations against the petitioner was found to be general in nature. His acquittal was not by giving benefit of doubt but on account of absence of logical chain of story set up by the prosecution and allegation against the accused including the petitioner were of general nature . That apart, the petitioner was already in service in the office of Director General (Meteorology), Ministry of Earth Sciences, Government of India, New Delhi and he was not ousted from service by the Government of India on account of the aforesaid criminal case. Therefore, merely on account of lodging of a criminal case in which the petitioner was ultimately acquitted; neither it can be said that the petitioner has become unsuitable for appointment in another government job, i.e. on the post of Assistant Prosecution Officer nor a view adverse to the petitioner can be taken on the basis of the judgment of Hon'ble Supreme in the case of Avtar Singh (supra) (SCC) on the facts of the present case.

14. Reliance placed by the learned standing counsel upon Paragraph-32 of the judgment in the case of State of Rajsthan vs. Chetan Jeff, 2022 SCCOnline SC 597, is totally misplaced on facts of the present case. In the case of Chetan Jeff (supra), the facts were that the employee came to be discharged in view of the deed of compromise. In the present set of facts, the petitioner has been acquitted not on the basis of compromise but on merits of the case.

15. In the case of Avtar Singh (supra) (paras-29 to 38.11), Hon'ble Supreme Court held as under:

"29. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt. There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kind of cases?

30. The employer is given ''discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.

31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge/s, if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. 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.

32. No doubt about it that once verification form requires certain information to be furnished, declarant is duty bound to furnish it correctly and any suppression of material facts or submitting false information, may by itself lead to termination of his services or cancellation of candidature in an appropriate case. However, in a criminal case incumbent has not been acquitted and case is pending trial, employer may well be justified in not appointing such an incumbent or in terminating the services as conviction ultimately may render him unsuitable for job and employer is not supposed to wait till outcome of criminal case. In such a case non disclosure or submitting false information would assume significance and that by itself may be ground for employer to cancel candidature or to terminate services.

33. The fraud and misrepresentation vitiates a transaction and in case employment has been obtained on the basis of forged documents, as observed in M. Bhaskaran's case (supra), it has also been observed in the reference order that if an appointment was procured fraudulently, the incumbent may be terminated without holding any inquiry, however we add a rider that in case employee is confirmed, holding a civil post and has protection of Article 311(2), due inquiry has to be held before terminating the services. The case of obtaining appointment on the basis of forged documents has the effect on very eligibility of incumbent for the job in question, however, verification of antecedents is different aspect as to his fitness otherwise for the post in question. The fraudulently obtained appointment orders are voidable at the option of employer, however, question has to be determined in the light of the discussion made in this order on impact of suppression or submission of false information.

34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.

35. Suppression of ''material' information presupposes that what is suppressed that ''matters' not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.

36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.

37. The ''McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.

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."

(Emphasis supplied by us)

16. As per law settled by the Supreme Court in the case of Avtar Singh (supra), it was open for the respondent to adjudge antecedents of the petitioner to assess his suitability but ultimate action should be based on objective criteria of due consideration of all relevant aspects. Perusal of the impugned orders dated 31.01.2019 and 06.11.2019 passed by the respondent No.2 shows that although the respondent No.2 has noted certain facts including the fact that the petitioner is posted as Upper Divisional Clerk in a department of Government of India since the year 2002, and has no criminal history/ background and has been acquitted in the aforesaid criminal case and yet rejected his representation without objective criteria and without due consideration of all relevant aspects. It is further relevant to mention that by the judgment and order dated 11.03.2019 in Writ-A No.3794 of 2019 (Lalit Kumar vs. State of U.P. and 2 others), the learned Single Judge noted the contention of the State-respondents that "the ends of justice would merit the matter being remitted to the second respondent for reconsideration and re-evaluation of the suitability of the petitioner for appointment in accordance with law ............". The writ petition was disposed of by the learned Single Judge in the light of the statement of the State-respondents as noted above. But perusal of the impugned order dated 06.11.2019 shows that the respondent No.2 neither reconsidered nor re-evaluated the suitability of the petitioner based on any objective criteria but arbitrarily rejected the representation of the petitioner.

17. The judgment of Hon'ble Supreme Court in the case of Union of India and others vs. Methu Meda, (2022) 1 SCC 1 relied by learned Additional Chief Standing Counsel is distinguishable on the facts of the present case inasmuch as in the said case, there was accusation of kidnapping and acquittal was because the complainant turned hostile. In the present set of facts, the accusation was made by the wife of the petitioner against him, his father, mother and brother which could not be proved by the prosecution. The trial court found that accusation against the petitioner were of general nature. Thus, the judgment in the case of Methu Meda (supra) is of no help to the respondents.

18. In a recent judgment in the case of Satish Chandra Yadav vs. Union of India and others reported in 2022 SCCOnline SC 1300 (judgment dated 26.09.2022) (paras-75, 86, 88, 89 and 90), Hon'ble Supreme Court has held, as under:

"75. This Court before settling the issues in the case of Avtar Singh v. Union of India and Others, (2016) 8 SCC 471, discussed the said principles extensively in the matter of Commissioner of Police, New Delhi and Another v. Mehar Singh, (2013) 7 SCC 685. In this case, a candidate for the post of constable in the Delhi Police had disclosed his involvement in a criminal case, wherein he was acquitted on technical grounds. The candidate had his candidature for the post rejected by the Standing Committee. The candidate argued that as he had been acquitted, the Standing Committee by rejecting his candidature had overreached the decision of the competent Authority. This Court, while deciding on the issue and whether the respondent was honourably acquitted, held as under:

"25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram 2013 (1) SCC 598. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541 where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

26. In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it.

x x x x x x x x x

34. The respondents are trying to draw mileage from the fact that in their application and/or attestation form they have disclosed their involvement in a criminal case. We do not see how this fact improves their case. Disclosure of these facts in the application/attestation form is an essential requirement. An aspirant is expected to state these facts honestly. Honesty and integrity are inbuilt requirements of the police force. The respondents should not, therefore, expect to score any brownie points because of this disclosure. Besides, this has no relevance to the point in issue. It bears repetition to state that while deciding whether a person against whom a criminal case was registered and who was later on acquitted or discharged should be appointed to a post in the police force, what is relevant is the nature of the offence, the extent of his involvement, whether the acquittal was a clean acquittal or an acquittal by giving benefit of doubt because the witnesses turned hostile or because of some serious flaw in the prosecution, and the propensity of such person to indulge in similar activities in future. This decision, in our opinion, can only be taken by the Screening Committee created for that purpose by the Delhi Police. If the Screening Committee's decision is not mala fide or actuated by extraneous considerations, then, it cannot be questioned.

35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand."

[Emphasis supplied]

86. Thus, this Court took the view that irrespective of the fact whether the dispute is of a trivial nature or not, it is the credibility/ trustworthiness of a particular employee which matters the most when it comes to public employment. This Court took the view that if a particular employee supresses something important or makes any false declaration with a view to secure public employment then such employee could be said to have exhibited a tendency which is likely to shake the confidence of the employer. In such circumstances, it would be within the discretion of the employer whether to continue or not to continue such an employee who has exhibited a tendency which reflects on his overall character or credibility.

88. Thus, this Court took the view that although employment opportunity is a scarce commodity in the present times being circumscribed within a limited vacancies yet by itself may not suffice to invoke sympathy for grant of relief where the credentials of a candidate may raise any question regarding his suitability, irrespective of eligibility. However, at the same time, this Court observed that there should not be any mechanical or rhetorical incantation of moral turpitude to deny appointment in a government service simplicitor which would depend on the facts of each case. The judicial philosophy flowing through the mind of the judges is that every individual deserves an opportunity to improve, learn from the past and move ahead in life for self-improvement. To make past conduct, irrespective of all considerations, may not always constitute justice. It would all depend on the fact situation of the given case.

89. The only reason to refer to and look into the various decisions rendered by this Court as above over a period of time is that the principles of law laid therein governing the subject are bit inconsistent. Even after, the larger Bench decision in the case of Avtar Singh (supra) different courts have enunciated different principles.

90. In such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows:

a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security. [See Raj Kumar (supra)]

b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.

c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.

d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders'conduct, should not enter the judicial verdict and should be avoided.

e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.

f) Is there any element of bias in the decision of the Authority?

g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?"

(Emphasis supplied by us)

19. Thus, irrespective of the fact whether the dispute is of trivial nature or not, it is the credibility/ creditworthiness of a particular employee which matters most when it comes to a public employment. There should not be any mechanical or rhetorical incantation of moral turpitude to deny appointment in a government service simplicitor which would depend on the facts of each case. The judicial philosophy flowing through the mind of the judges is that every individual deserves an opportunity to improve, learn from the past and move ahead in life for self-improvement. To make past conduct, irrespective of all considerations, may not always constitute justice.

20. It is necessary to mention at the cost of repetition that the petitioner appellant is in service of the Government of India since the year 2002 and his credibility/ creditworthiness in public employment was never found doubtful. He after taking permission from his parent department, appeared in the Assistant Prosecution Officer Examination, 2015 and fully disclosed pendency of the criminal case. He was acquitted for reasons which we have already mentioned above.

21. The learned Single Judge dismissed the writ petition of the petitioner-appellant merely observing that the impugned order was passed on 31.01.2019 whereas the order of acquittal was passed a day thereafter on 01.02.2019 and thus, the petitioner was facing trial as on the date of the impugned order dated 31.01.2019. The view taken by the learned Single Judge in paragraph-13 of the impugned judgment so as to uphold the order dated 31.01.2019 cannot be sustained being in conflict with the settled principles of law discussed in foregoing paragraphs of this judgment. The finding of the learned Single Judge in paragraph-16 of the impugned judgment that the allegations against the petitioner were of matrimonial dispute of committing cruelty with her wife and demand of dowry which allegations were not only against one person but against public at large. We are unable to agree with the reasons recorded in paragraph-16 inasmuch as the petitioner appellant was acquitted in the aforesaid criminal case under Section 498A etc. not on the basis of compromise or the witnesses turned hostile but after due consideration of facts and appreciation of evidences led by the parties, i.e. the prosecution and the defence. Learned Single Judge also lost sight of the fact that the petitioner appellant is in service of Government of India since the year 2002 and there is nothing on record to show that any adverse inference was drawn or action was taken against him or his credibility was doubted due to his implication in the aforesaid criminal case along with his entire family members. The finding in paragraphs-18 and 19 of the impugned judgment that since allegations cannot be construed to be pity or trivial and the acquittal granted was not a clean acquittal, cannot be sustained for detailed discussion and reasons recorded in the forgoing paragraphs as well as conclusions reached by the trial court in the matrimonial case which are not being mentioned again so as to avoid repetition.

22. For all the reasons afore-stated, we set aside the impugned judgment and order dated 22.07.2022 passed in Writ-A No.679 of 2020 and quash both the orders impugned in the writ petition passed by the respondent No.2 and 3. The special appeal and the writ petition, both are allowed. However, there shall be no order as to costs.

Order Date :- 13.01.2023

NLY