Vinod Kumar vs Govt. Of Nct Of Delhi And Ors.
2005 Latest Caselaw 1671 Del

JUDGMENT

Mukundakam Sharma, J.

1. This writ petition is directed against order dated 30th June 2005 passed by the Tribunal dismissing the Original Application filed by the petitioner, registered as OA No.1383/2005.

2. The petitioner was selected by the respondents to join the respondent No. 2 as Driver but before he was appointed a show cause notice was issued to him asking him as to why his candidature should not be cancelled for suppression of material facts and for concealment of pendency of institution of criminal cases against him. After petitioner showed cause as against the aforesaid show cause notice, his candidature was cancelled by the respondent. Being aggrieved, the petitioner filed an Original Application before the Tribunal, which was registered as OA No. 658/2003. Counsel for the petitioner withdrew the said Original Application. Consequently the said application was dismissed as withdrawn. It is to be noted at this stage that at the time of withdrawing the said petition, the petitioner did not seek any liberty to file a fresh petition on the same cause of action. Subsequently the petitioner filed a Review Application before the Tribunal, which was registered as RA No.143/2003, which was dismissed by the Tribunal vide its order dated 22nd May 2003.

3. Thereafter the petitioner filed a writ petition against order dated 22nd May 2003. There was delay and laches in filing the said writ petition in this Court. The said petition was argued and after some arguments counsel for the petitioner sought permission to withdraw the petition, so as to enable him to file an application before the Tribunal. The said permission was granted. The petition was consequently dismissed as withdrawn with the aforesaid liberty.

4. Pursuant thereto the petitioner filed a fresh petition before the Tribunal, which was registered as OA No.1383/2005. The said application was dismissed holding that the said application is not maintainable. The said order is under challenge in this writ petition on which we have heard the learned counsel appearing for the parties.

5. We have perused the records, which are placed before us. The petitioner withdrew the petition filed against order passed by the respondent cancelling his candidature on the ground of suppression and concealment of material facts in his application form and also in the attestation form submitted. The said application form as also the attestation form contained a warning to the effect that if any of the information furnished by a candidate is found to be wrong or incorrect his candidature could be cancelled at a subsequent stage. Admittedly the petitioner did not mention about the institution of two criminal cases against him either in the application form or in the attestation form. The said fact was brought to the notice of the authorities only after he was selected and was directed to undergo a medical examination. After he had appeared for medical examination and was found medically fit, he brought it to the notice of the authorities that there were two cases instituted against him. He intimated that he was implicated in two cases namely FIR No.342 dated 27th August 1996 and FIR No.252 dated 6th June 1997 both at Police Station Narela, Delhi. He was given a warning in the first case and in the second case he was acquitted. The said facts were required to be mentioned both in the application form as also in the attestation form and since he did not mention the said facts action was taken against him by the respondents in terms of the aforesaid warning and in terms of the undertaking furnished by the petitioner in the application form that action could be taken against him for cancellation of his candidature, if any of the information is found to be wrong or incorrect.

6. In this connection we may refer to the decision of the Supreme Court in AP Public Service Commission v. . Koneti Venkateswarulu and Ors. in 2005 AIR SCW 5175. In the said case also a similar notification was issued that giving wrong information or suppression of material facts would lead to the cancellation of the candidature. In the said case candidate kept the said column pertaining to previous employment totally blank and he gave a declaration at the end of the application that all the entries made in the application are true and correct. Since, there was suppression of the aforesaid fact, the candidature of the candidate was subsequently cancelled as later it was found that he was employed.

7. It was held that the employer is the ultimate judge and the employer can cancel the candidature of a candidate, if later it is found that the employee has got the employment by furnishing false or incorrect information. It was held that if it is found that the candidate has furnished incorrect information, he/she doesn't deserve any public employment. Similarly there are other decisions of the Supreme Court and also of this Court laying down similar principles. In this connection we may refer to the decision of this Court in Jitender Kumar v. . The Commissioner of Police and Anr. in WP(C) No. 12360/2005 disposed of on 20th September 2005. While delivering the aforesaid judgment this court extracted in support of its judgment paragraph 8 in Kendriya Vidyalaya Sangathan and Ors. v. . Ram Ratan Yadav . In paragraph 8, it was stated as follows:

8. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not.

9. The decision of the this court in Virender Pal Singh v. Union of India reported in 2002 (3) ATJ 561 amplifies the law with regard to suppression and concealment of material facts and also the equality provisions as contained in Article 14 of the Constitution of India. This court in the case of Virender Pal Singh (supra) has held in the following manner:

9. A person who is to be appointed as Constable, in our opinion, should disclose all material facts. It was for the appointing authority to consider as to whether the details provided by the candidate are true or false. Concealment of material facts for the purpose of obtaining appointment itself may be a ground for cancellation of the appointment. In the Application Form itself the petitioner was required to give a declaration to the effect that endorsement therein is true to the best of his knowledge and belief and in the event of any information found wrong, he can be dismissed from service. He thus knew that any wrong information or concealment of fact may entail his dismissal from service. It is, therefore, not a case where the court is called upon to pose a question as to whether despite conviction in a trickling matter, a person should be denied appointment or not. In Shishpal (supra) the decision was rendered in the peculiar facts of the case. It was stated in that case that the concerned employee was provisionally selected subject to police verification. The police found his involvement in two cases which facts he did not disclose in his application. The Tribunal found that he had served for long 5 years and there had been no adverse report against the conduct of the applicant.

10. Be that as it may the petitioner withdrew the petition without seeking any liberty from the Central Administrative Tribunal to enable him to file a second petition on the same cause of action. We are of the considered opinion the principles laid down under Order 23 Rule 1 and 3 are applicable to the facts of the present case as the said principles as enunciated under Order 23 Rules 1 and 3 are based on public policy. In this connection, we may appropriately refer to the decision of the Supreme Court in Sarguja Transport Service v. . State Transport Appellate Tribunal reported in AIR SC 88 and the decision in Avinash Nagra v. . Navodaya Vidyalaya Samiti and Ors. . In Sarguja Transport (supra), the same was a case relating to a petition under Article 226 of the Constitution wherein it was held that a petitioner after withdrawing a writ petition filed by him under Article 226 of the Constitution without the permission to institute a fresh petition cannot file a fresh writ petition in respect of the same cause of action in the High Court under that Article. Although to a proceeding under Article 226 of the Constitution, the provisions of the Code of Civil Procedure are not applicable yet in those circumstances also the Supreme Court has said that the aforesaid principle being a principle based on public policy would be applicable. In our considered opinion, on the same principle, the provision of Order 23 Rules 1 and 3 would also be applicable to a case before the Central Administrative Tribunal when a petition is filed under Section 19 of the Administrative Tribunals Act.

11. In that view of the matter, we find that the Tribunal was justified in holding that the petition is not maintainable. We find that the petitioner has not been able to make out any case even on merit also. The order passed by the respondents cancelling his candidature cannot be said to be illegal.

12. The petition has no merit and is dismissed.