Union Territory Of J&K vs Mushtaq Ahmed
2023 Latest Caselaw 2220 j&K

                                                                  Sr.No. 15


               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT JAMMU

                                                  LPA No. 82/2020
                                                  CM No. 4146/2020
                                                  CM No. 4148/2020


1. Union Territory of J&K                              .... Appellant(s)/Petitioner(s)
Through Director General of Police,
Police HQ, Gulshan Ground, Gandhi Nagar,
Jammu.

2. Additional Director General of Police
(Police HQ), Gulshan Ground, Gandhi Nagar,
Jammu.

3. The Inspector General of Police(Armed),
Jammu.

4. The Commandant, JKAP 9th Battalion,
Zewan, Srinagar.


                     Through :- Ms. Monika Kohli, Sr. AAG.

         V/s


Mushtaq Ahmed                                                      ....Respondent(s)
S/o Sh. Abdul Rehman Shan,
R/o Mohalla Jaman, Tehsil Gool, District
Ramban.
                     Through :- None.

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
       HON'BLE MR. JUSTICE MOHAN LAL, JUDGE
                              JUDGMENT(Oral)

09.10.2023.

Sanjeev Kumar-J

1. On the last date of hearing, there was no representation on behalf of

the respondent. Today also, none appears for the respondent. The matter is, thus,

heard in ex-parte.

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2. The appellants are aggrieved of and have called in question the

judgment of the learned Single Judge ["the Writ Court"] passed in SWP No.

441/2014 titled "Mushtaq ofAhmed v. State of J&K and Ors." whereby the writ

petition, filed by the respondent herein, has been allowed and a direction has

been issued to the appellants to issue formal appointment order in favour of the

respondent as Constable in Armed Police under RBA category.

3. Briefly stated the facts leading to the filing of this appeal are that,

pursuant to the selection process conducted by the appellants for selection of

Constables in the Armed Police, the respondent came to be selected under RBA

category as is evident from order No. 26 of 2009 dated 17.01.2009. The

respondent was, however, denied appointment on the ground of his involvement

in a criminal case registered under FIR No. 46 of 2006 for offences under

Sections 341 RPC and FIR No. 35 of 2007 for offences under Section 397/458/

323 RPC read with 4/25 Indian Arms Act registered in the Police Station, Gool.

The respondent approached this Court by way of SWP No. 965/2009 which was

later on withdrawn by him with liberty to approach this Court again.

4. The respondent, after earning acquittal from the competent criminal

court approached the Writ Court again by filing SWP No. 441/2014 in which the

respondent inter alia sought a direction to the appellants herein to issue an order

of appointment in his favour as Constable in the 9th Battalion, JKAP, in view of

his acquittal in both the FIRs. The writ petition was considered by the Writ Court

and was disposed of at motion hearing and without issuing notice to the

appellants who were arrayed as party respondent in the aforesaid writ petition.

The direction was issued to the appellants to appoint the respondent herein as

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Constable as prayed for. This was done by the Writ Court vide judgment dated

25.02.2014 which his impugned before us.

4. Having heard the learned counsel for the appellants and perused the

material on record, we are of the considered opinion that the Writ Court, in the

given facts and circumstances of the case, could not have straightway issued

mandamus to the appellants to issue formal appointment order in favour of the

respondent as Constable in Armed Police under RBA category simply on the

ground that the respondent stood acquitted in the two FIRs registered against him

in Police Station, Gool.

5. True it is that the respondent figured in the select list of RBA category,

as is evident from order dated 46/2009 dated 17.01.2009. He was not issued an

appointment order because of his involvement in two FIRs referred to

hereinabove. It is also not in dispute that subsequently the respondent was tried

before the competent criminal Court and was acquitted in both the FIRs. We

need to emphasize that mere acquittal of the respondent in the criminal case

pending against him would not ipso facto entitle him to be appointed as

Constable and it is better left to the employer to determine as to whether such

person, who has faced criminal trials in two cases and has been acquitted by the

competent Court of law, is still fit to serve the police force. The legal position in

this regard has already been explained by the Supreme Court in the case of

Avtar Singh v. Union of India (2016) 8 SCC 471 wherein the Supreme Court

has, in para 38, has held as under:-

"38. We have noticed various decisions and tried to explain and reconcile

them as far as possible. In view of the aforesaid discussion, we summarize our

conclusion thus:

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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 recourses 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.

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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 candidature.

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."

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6. In view of the legal position laid down by the Supreme Court, the Writ

Court ought to have left it to the appellant authorities to take an informed

decision in the matter.

7. For the foregoing reasons, we dispose of this appeal with a direction to

the appellants to consider the case of the respondents for appointment as

Constable in Armed Police under RBA category, under which he stands selected

vide order dated 46/2009 dated 17.01.2009, in the light of parameters laid down

in the case of Avtar Singh (supra). Let a decision in this regard be taken by the

appellants within a period of two months from the date a copy of this order is

served upon them.

8. The impugned judgment of the Writ Court is modified to the aforesaid

extent.

9. Disposed of along with connected CMs.

                                     (Mohan Lal)               (Sanjeev Kumar)
                                       Judge                        Judge

Jammu:
09.10.2023.
Neha-1


                                 Whether the order is speaking: Yes/No
                                 Whether the order is reportable: Yes/No