Ashok Kumar vs Union Of India & Ors.
2010 Latest Caselaw 3268 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Date of decision: 15th July, 2010

+                            W.P.(C) No.1851/1993


       ASHOK KUMAR                                    ..... Petitioner
                             Through Nemo


                    versus


       UNION OF INDIA & ORS.                        ..... Respondents

Through Ms. Preeti Dalal, Adv.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

GITA MITTAL, J (Oral)

1. By this writ petition, the petitioner has assailed an order dated 2nd

May, 1992 whereby he has been terminated from service under the

applicable rules during the period of probation for the reason that he was

not found suitable for retention in the force. The petitioner's appeal against

this order of removal was rejected by an order dated 28th August, 1992 by

the competent authority which has also been challenged before this court.

2. The petitioner was interviewed and selected on 17th December, 1988

for the post of constable by the Central Industrial Security Force (`CISF'

hereafter). Before such selection, the petitioner was unfortunately

implicated in a criminal case arising out of an incident on 8th June, 1987. On

31st August, 1987, a criminal case no.115A/1987 under Sections

147/324/323 of the Indian Penal Code was registered against the petitioner

by the police station Sarurpur, district Meerut with regard to the said

occurrence. The petitioner has contended that he was acquitted in the

criminal case by a judgment dated 23rd January, 1989 of the concerned

court.

3. In the meantime, pursuant to his selection and appointment, the

respondents had required the petitioner to fill up an attestation and

verification form. The petitioner filled this form on 13th December, 1988.

However, in answer to the specific queries at serial no.12(a), (b), (c) and (d)

to the effect as to whether the petitioner has ever been

arrested/prosecuted, kept in detention, and bound down, the petitioner had

answered in the negative. In this background, an appointment letter dated

5th January, 1989 was issued to the petitioner appointing him w.e.f. 17th

December, 1988 on the post of Constable.

4. As per the prescribed procedure, the respondents had effected

verification of the information given by the petitioner in his attestation form

from the authorities who would be concerned with the same. During this

verification, a communication was received from the Superintendent of

Police, Meerut and the District Magistrate wherein it was stated that a

criminal case no.115-A of 1987 was registered by the police at Sarurpur

Khurd under Sections 147/324/323 of the Indian Penal Code which was

pending against the petitioner in the competent court.

5. In the writ petition, the petitioner has stated that he had informed the

clerk of the CISF at the time of filling up of column no.12 of the attestation

form, that there was one case pending in which a compromise was arrived

on 16th October, 1987 with the opposite party. However, the same was

incorrectly filled up by the clerk of the CISF. The petitioner has submitted

that he had innocently signed the form.

6. The respondents were however of the view that the petitioner had

deliberately suppressed the material fact of his involvement in a criminal

case in the attestation form submitted by him which rendered him

unsuitable for service. Consequently, the Deputy Inspector General (North

Zone) of the CISF in exercise of his powers under Rule 19 read with Rule 15

of the CISF Rules, 1969 and para 2 sub para (a) of the Agreement contained

on the form, passed an order dated 2nd May, 1992 terminating the services

of the petitioner at the end of one month's notice period commencing from

7th April, 1992, on the ground for suppression of factual information in the

Attestation Form at the time of his appointment in Central Industrial

Security Force, and that he will be struck off strength of this unit w.e.f. 7 th

May, 1992 (FN).

7. We have carefully examined the attestation form which was submitted

by the petitioner. There is no dispute to the effect that the petitioner had

answered the afore-noticed four pertinent and relevant queries in the

negative. It is also not disputed that the information which had been sought

by the respondents by these queries, was essential and pertinent for the

purposes of verification of the character and antecedents of the petitioner

and may have rendered him ineligible for appointment to the service. The

petitioner stated that there was one case pending in which compromise has

already been arrived at on 16th October, 1987. But inspite of this

information having been given by the petitioner, the clerk of CISF wrote

`none' in column 12 of the attestation form and this attestation form was

only signed by the petitioner, although it was completely filled up by a clerk

of CISF.

8. Our attention has been drawn to the pronouncement of the Apex

Court reported (2008) 1 SCC 660 R. Radhakrishnan. Vs. Director

General of Police & Ors. wherein similar conduct as that of the present

petitioner arose for consideration. On similar facts, the court had observed

as follows:-

"10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.

xxx xxx xxx

13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise."

9. While drawing the above conclusion, the court had relied on an earlier

pronouncement reported at (1996) 11 SCC 605 Delhi Administration

Through its Chief Secretary & Ors. Vs. Sushil Kumar wherein it was

observed that verification of the character and antecedents is one of the

important criteria of test whether the selected candidate is suitable for post.

10. On this very issue, we may usefully refer to the pronouncement of the

Apex Court reported at (2005) 2 SCC 746 Secretary, Department of

Home Secretary, A.P. & Ors. Vs. B. Chinnam Naidu.

"......... As is noted in Kendriya Vidyalaya Sangathan case the object of requiring information in various columns like column 12 of the attestation form and declaration thereafter by the candidate is to ascertain and verify the character and antecedents to judge his suitability to enter into or continue in service. When a candidate suppresses material information and/or gives false information, he cannot claim any right for appointment or continuance in service. There can be no dispute to this position in law. But on the facts of

the case it cannot be said that the respondent h ad made false declaration or had suppressed material information."

11. Ms. Preeti Dalal, learned counsel for the respondents has also placed

reliance on a judgment passed by a Division Bench of this court of which

one of us (Gita Mittal, J) was a member. Learned counsel in this regard has

drawn our attention to para 12 of the judgment reported at 113 (2004)

DLT 373 (DB) Samim Akhtar Khan Vs. Union of India & Ors. wherein a

challenge to similar order of discharge for the reasons of suppression of

material and factual information in the attestation form was laid. It was

held by this court that the petitioner had not only suppressed material and

factual information in the attestation form but he had also furnished false

information. No information was given by the petitioner regarding the

institution and pendency of the aforesaid criminal case against him in which

even the charge-sheet stood filed. Such information was required to be

disclosed at the time of enrolment and filling up the attestation form and

that the petitioner had deliberately given wrong information to the

respondents against the same queries as have been asked by the

respondents in the instant case.

12. The position in the case in hand is similar. In the instant case, the

attestation form made a specific and pointed inquiry as to whether the

applicant had ever been arrested or prosecuted or kept under detention or

bound down. The petitioner had incorrectly answered all the four queries.

The petitioner has failed to disclose the registration of the case against him

by the police.

13. Ms. Preeti Dalal, learned counsel for the respondents has drawn our

attention to communication dated 22nd April, 1992 addressed by Shri

Subkbiri Divi, mother of the petitioner which was in the nature of a

representation to the Minister of State for Home Affairs praying for

cancellation of the termination order which has been issued against him.

Copy of this representation has been annexed with the writ petition. In this

representation, the petitioner's mother has stated that he was not aware of

the nature of the proceedings which had been initiated against him. The

petitioner's mother had stated that being a young life, he was under the

impression that the matter was in the nature of a family dispute and not a

police case against him.

14. The submissions made in the writ petition are falsified also from the

statement made by the petitioner in his representation dated 23rd April,

1992 to the Inspector General of the force wherein he had stated that at the

time of his recruitment in the force, the said criminal case already stood

compromised and that the same had been lodged only on account of certain

misunderstanding. The petitioner has thus propounded an explanation that

the information with regard to the case was not mentioned in column no.12

of the attestation form for this reason. The petitioner prays for mercy on

the ground that the non-furnishing of the information amounted to a minor

mistake which should not be viewed seriously for termination of the

petitioner's services. From the submissions made by the petitioner in his

representation dated 23rd April, 1992, it is evident that the petitioner had

deliberately not disclosed the registration and implication in the criminal

case.

15. Our attention has been drawn also to the judgment dated 23rd

January, 1989 passed by the Judicial Magistrate First Class, Meerut in case

no.153/1989. This order records that the accused including the petitioner

Shri Ashok Kumar were on bail. For this reason, a final direction had been

issued for discharge of their sureties and bail bond. The petitioner had

therefore also failed to disclose the fact that he was arrested and admitted

to bail in the criminal case which has been registered against him.

16. In this background, we find force in the respondents' contention that

the petitioner has deliberately and knowingly concealed the said material

information in the attestation and verification form. The action of the

respondents in holding that the petitioner was unfit for retention in the

service cannot be faulted. The same is in consonance with the applicable

rules and the principles laid down in the above judicial precedents.

17. In the above facts, the challenge to the appellate order is also not

sustainable and is devoid of legal merit and is hereby rejected.

18. It is trite that so far as the suitability of a person for appointment to a

service or his continued retention in service is concerned, it is for the

respondents to assess and it is not for this court in exercise of writ

jurisdiction to adjudicate on the same. In any case, the petitioner having

concealed material facts and having given incorrect information to the

respondents in the attestation form, we are not inclined to exercise our

discretionary jurisdiction in favour of the petitioner. The acquittal of the

petitioner in the criminal case due to the compromise arrived at between

the parties would have no bearing on the issue under consideration. It is

the conduct of the petitioner in concealing a material fact and deliberately

furnishing false information in the attestation form which formed the basis

of the impugned order.

For all these reasons, we find no merit in this writ petition which is

hereby dismissed.

There is no order as to costs.

GITA MITTAL, J

J.R. MIDHA, J JULY 15, 2010/aa