Mohammad Ashfaq vs Union Territory Of J&K And Others
2022 Latest Caselaw 813 j&K

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                               Reserved on : 19.05.2022
                                               Pronounced on: 21.05.2022

                                                WP (C) No. 56/2020 (O&M)

Mohammad Ashfaq                                 .....Appellant(s)/Petitioner(s)


                     Through: Mr. J. P. Gandhi, Advocate.
                vs
Union Territory of J&K and others                         ..... Respondent(s)


                     Through: Mr. Raman Sharma, AAG.

Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                              JUDGEMENT

1. The petitioner responded to the advertisement notice dated 03.10.2019,

whereby 200 posts of SPO were advertised for J&K Police in District

Jammu. The petitioner being eligible participated in the selection process.

Thereafter, on 25.12.2019, the select list was published in the newspaper

whereby the petitioner was shown selected as SPO in District Jammu in the

J&K Police. The petitioner claims to have gone to the selection authority

for submitting documents but the documents were not allowed to be

entertained, as the petitioner disclosed that he has been facing a criminal

challan before the court of learned Sub-Registrar, Jammu for commission

of offences under Sections 341, 354, 323 and 294/34 RPC. It is stated that

the petitioner has been falsely implicated as an accused in the FIR No.

84/2018, dated 01.09.2018, for commission of offences under Sections 341,

354, 294 and 323/34 RPC. The challan is pending and charges against the

petitioner have been framed. It is submitted that the petitioner has never

been involved in any criminal case throughout his life except a frivolous

challan pending against him. It is also stated that the petitioner is not

involved in the offence of moral turpitude and the respondents are under

obligation to issue appointment order in favour of the petitioner as SPO,

District Jammu in Jammu and Kashmir Police.

2. On these facts, the present writ petition has been filed by the petitioner

seeking a direction to the respondents to issue appointment order in favour

of the petitioner to join as SPO in District Jammu in Jammu and Kashmir

Police. The petitioner also seeks a direction to the respondent No. 4 i.e.

SHO, Police Station Jhajjar Kotli not to deny issuance of Character

Certificate in favour of the petitioner because of the criminal challan

pending before the court of learned Sub-Registrar, Jammu against the

petitioner.

3. Response stands filed by the respondents, in which it has been stated that

on 01.09.2018, a written complaint was submitted by Miss X (Name

withheld) against 9 unknown persons stating therein that she had gone to

J&K Bank, Dansal along with her father for getting ATM card. While her

father was at Bank and she was standing outside the J&K Bank Branch

situated at Dansal, at about 1:10 PM, nine boys came riding on their

Scooties and when they reached towards the complainant, they started using

very dirty and filthy language. When the complainant asked for the reason

of using dirty language, first they ran away and thereafter they came again

and started harassing the complainant by touching her private parts. In the

meantime, when the complainant‟s father came out of the Bank and wanted

to know the reason, even then they misbehaved with the complainant and

after that they tried to escape from the spot, but the complainant had noted

the registration number of the vehicle, which was driven by the accused i.e.

Scooty bearing registration No. JK02B/2496-Activa, white in colour. After

that the complainant had enquired about the Scooty and came to know that

the Scooty belonged to a boy, whose name is Ashfaq. On the basis of the

said complaint, FIR No. 84/2018 under Sections 354, 294, 341, 323/34

RPC was registered and the charge-sheet was filed on 16.10.2018 before

the court of learned Sub-Registrar, Jammu and the case is still under trial. It

is further stated that so far as issuance of character certificate is concerned,

SHO is not competent to issue character certificate and the same can be

issued only by Gazetted Officer. SHO can only verify the character and

antecedents of the petitioner and submit in its report whether any criminal

case was registered against the petitioner and submit details of the

case/cases in its report. The Gazetted officer is competent to issue character

certificate. It is also stated that the petitioner is not eligible to be provided

with character certificate as the petitioner is facing serious criminal charges

and the same are being tried before the court of law.

4. Mr. J. P. Gandhi, learned counsel for the petitioner vehemently argued that

the petitioner is not facing trial for commission of heinous offences. He

placed reliance upon judgment passed in "Commr. of Police and others v

Sandeep Kumar" reported in 2011 (4) SCC 644 and "Union of India and

others v Amit Singh" reported in 2013 (3) JKJ 145.

5. Mr. Raman Sharma, learned AAG vehemently submitted that the petitioner

is facing serious charges with regard to the commission of offence of

outraging the modesty of a woman and the said allegations cannot be

ignored particularly when SPO has to assist the Police in performance of

law and order and the protection of the citizens. He further argued that the

petitioner is guilty of suppressing the material facts as in the application

form submitted by the petitioner for his engagement as SPO, the petitioner

has not disclosed that any FIR has been registered against him. Mr. Sharma

also produced the record of the selection list of the candidates, as also

application form filled in by the petitioner for his engagement as SPO. He

placed reliance upon the judgment of the Supreme Court passed in Civil

Appeal No. 3116/2022, titled "State of Rajasthan and others vs. Chetan

Jeff" decided on 11.05.2022.

6. Heard and perused the record.

7. In the application form, submitted by petitioner at the time for applying

for post of SPO, the petitioner was required to disclose the following

information:

"If any FIR has been registered against the applicant in the State of J&K or in any other part of India, if yes, please give details."

The petitioner mentioned his answer as „no‟ for the said information. It is

evident that petitioner filled the application form on 12.10.2019, whereas

the FIR was registered against the petitioner on 01.09.2018. So, it was

well within the knowledge of the petitioner that he figures as an accused

in the said FIR and he deliberately did not reply in affirmative with regard

to the above mentioned information. Thus, there is concealment of

material facts by the petitioner with regard to his criminal antecedents and

the petitioner is guilty of making a false statement in the application form.

8. Hon‟ble Apex Court in "Avtar Singh v Union of India" reported in

2016 (8) SCC 471 has held as under:

"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. 38.5 that 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 compel to appoint such candidate."

9. Further, Hon‟ble Apex Court in Civil Appeal No. 3116/2022, titled

"State of Rajasthan and others vs. Chetan Jeff" decided on 11.05.2022

has held as under:

"6.1 At the outset, it is required to be noted that the post on which the writ petitioner is seeking the appointment is the post of constable. It cannot be disputed that the duty of the constable is to maintain law and order. Therefore, it is expected that he should be honest, trustworthy and that his integrity is above board and that he is reliable. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary any act in deceit and subterfuge cannot be tolerated. In the present case the original writ petitioner has not confirmed to the above expectations/requirements. He suppressed the material facts of his criminal antecedents. He did not disclose in the application form that against him a criminal case/FIR is pending. On the contrary, in the application form, he made a false statement that he is not facing any criminal case. Therefore, due to the aforesaid suppression, his candidature came to be rejected by the appropriate authority. Despite the above, the learned Single Judge allowed the writ petitioner and directed the State to consider the case of the original writ petitioner for appointment as a constable mainly on the ground that the offences were trivial in nature and the suppression of such offences should have been ignored. The same has been confirmed by the Division Bench.

6.2 The question is not whether the offences were trivial in nature or not. The question is one of suppression of material fact by the original writ petitioner in respect of his criminal antecedents and making a false statement in the application form. If in the beginning itself, he has suppressed the material fact in respect to his criminal antecedents and in fact made an incorrect statement, how can he be appointed as a constable. How can he be trusted thereafter in future? How it is expected that thereafter he will perform his duty honestly and with integrity?"

10. Thus, the petitioner is guilty of suppressing the material facts from the

employer, as such, no relief can be granted to the petitioner. The

judgements relied upon by the learned counsel for the petitioner are not

applicable in the present facts and circumstances of the case.

11. In view of the above, the present writ petition is found to be without any

merit and the same is dismissed.

(RAJNESH OSWAL) JUDGE

Jammu 21.05.2022 Sahil Padha Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No