Punjab-Haryana High Court
Ashwani Yadav vs State Of Haryana And Ors on 5 August, 2024
Author: Jasgurpreet Singh Puri
Bench: Jasgurpreet Singh Puri
Neutral Citation No:=2024:PHHC:099986
CWP-1567-2021 (O&M) -
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-1567-2021 (O&M)
Date of decision: 05.08.2024
Ashwani Yadav
...Petitioner
VERSUS
State of Haryana and others
...Respondents
CORAM: HON'BLE MR. JUSTICE JASGURPREET SINGH PURI
Present:- Mr. Manish Mehta, Advocate and
Mr. Ketan Antil, Advocate, for the petitioner.
Mr. Divyansh Shukla, Advocate for
Mr. Hitesh Pandit, Advocate, for respondents No.1 & 3.
Mr. Kapil Bansal, DAG, Haryana.
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JASGURPREET SINGH PURI, J. (Oral)
1. The present writ petition has been filed under Articles 226/227 of
the Constitution of India seeking issuance of a writ in the nature of certiorari
for quashing the order dated 21.08.2020 (Annexure P-7), whereby the
appointment of the petitioner has been ordered to be cancelled.
2. The brief facts of the present case are that the petitioner applied
for the post of Shift Attendant in the respondent-Nigam. The selection process
was undertaken by the Haryana Staff Selection Commission, Panchkula and the
petitioner was selected on the aforesaid post of Shift Attendant. Thereafter, vide
Annexure P-3 dated 10.01.2020, an appointment letter was issued to the
petitioner for the aforesaid post. Thereafter, the petitioner was told to furnish
an affidavit with regard to the terms and conditions which have been mentioned
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in the offer of appointment in which he stated that there is an FIR being
registered against him in Rajasthan which is pending in the Court. On the basis
of the aforesaid affidavit, the respondent-Nigam passed an order vide Annexure
P-7 dated 21.08.2020, whereby the appointment of the petitioner was cancelled.
The aforesaid order is challenged before this Court in the present petition.
3. Learned counsel appearing on behalf of the petitioner submitted
that when the petitioner applied for the aforesaid post, he filled the form
according to which, there was no requirement of furnishing any such
information regarding the pendency of any criminal case. He submitted that
after he was given the offer of appointment dated 10.01.2020 (Annexure P-3),
he was required to give the character and antecedents form which he furnished
vide Annexure P-5 where categorically in column No.14 the details have been
given and while referring to the aforesaid column wherein a question was
mentioned as to whether any FIR/criminal case and that he has ever been
arrested or kept under detention is pending against him and if yes complete
particulars of thereof and to the answer of the aforesaid question on the right of
the column he so stated 'yes' and details of the FIR etc. have been mentioned
therein. He submitted that on the basis of the information given by the
petitioner that an FIR is pending against him in Rajasthan, the aforesaid
Annexure P-7 was passed on 21.08.2020 only because of the reason that as per
terms and conditions of the appointment letter, it has been so stated in para
No.3(IV) that no criminal case is pending against him. He submitted that
because of the aforesaid reason, his appointment has been cancelled, whereas
there is no provision of law under which the aforesaid appointment has been
cancelled. He submitted that the pendency of a criminal case or an FIR against
a candidate is no ground for not offering the post which he has been validly
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selected by way of a selection process by the Haryana Staff Selection
Commission. He submitted that it was not a case of a conviction that he was
disqualified under the Statutory Rules nor any such provision has been so
stated in the reply which has been filed by the respondent-Nigam to state that
because of any Statutory provision regarding pendency of any criminal case
that the petitioner has been disqualified. He further submitted that mere
mentioning of the aforesaid condition in the offer of appointment would not
mean that he was to be disqualified because of the aforesaid reason. He also
referred to a Division Bench judgment of this Court in Dinesh Kumar Vs.
State of Haryana and othrs, 2006(4) SCT 429, a Co-ordinate Bench of this
Court in Heera Lal Vs. State of Punjab and others, 2019(4) PLR 492 and
Amandeep Singh Vs. State of Punjab and another, 2016(1) SCT 491 in
support of his contentions.
4. On the other hand, learned counsel appearing on behalf of the
respondent-Nigam has submitted that the only reason as to why the appointment
of the petitioner has been cancelled is that when the petitioner was offered the
appointment letter, there were specific terms and conditions that no criminal
case is pending against him and thereafter when he submitted his entire
description of antecedents and character in which he so stated that an FIR was
pending against him in Rajasthan and that was the reason as to why his
appointment was cancelled because there was a violation of the terms and
conditions.
5. I have heard the learned counsel for the parties.
6. It is a case where the petitioner applied for the post of Shift
Attendant which after going through the selection process, he was selected and
he was offered the appointment letter. However, one clause was inserted in the
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offer of appointment under the heading of terms and conditions that no criminal
case is pending against him. Thereafter, the petitioner disclosed the aforesaid
properly in column No.14 with regard to the pendency of the FIR. On the basis
of the aforesaid disclosure vide impugned order (Annexure P-7) his
appointment has been cancelled.
7. The issue involved in the present case is as to whether on the
aforesaid reason the appointment of the petitioner could have been cancelled by
the respondent-Nigam or not. A perusal of the reply filed by the respondent-
Nigam and also the arguments raised by the learned counsel for the respondent-
Nigam, there is nothing on the record to show as to how and under which
provisions of law, the petitioner could have been disqualified because of the
pendency of the FIR. It is not a case of the respondent-Nigam that the petitioner
has concealed anything or that he ought to have disclosed at any stage to which
he has not disclosed but the only reason for cancellation was that there was a
criminal case pending against him. During the course of arguments, the learned
counsel for the petitioner has also apprised this Court that even in that FIR
also, the petitioner has since been acquitted.
8. A Division Bench of this Court in Dinesh Kumar's case (Supra)
held as under:-
"7. This Court has already taken the view that once a
person is not convicted then non-disclosure of such an
information does not amount to concealment of fact. In the
case of Subhash v. State of Haryana 1994 (4) S.L.R. 525 this
Court has observed as under:
Having heard the learned Counsel for the parties
and after going through the necessary record I find
that the plea taken by the respondents is highly
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hyper technical and the writ petition deserves to be
allowed. It is not a concealment of fact regarding
his earlier conviction which can be taken into
consideration against an employee and on the basis
whereof his appointment can be set aside later on.
In the present case petitioner had only been
prosecuted and was acquitted by a competent
Criminal Court. It was not necessary for the
petitioner to disclose this fact to the respondents at
the time of his submitting application for
recruitment to the police service. In any case the
fact stands that there is nothing against the
petitioner on the basis whereof his appointment
could be set aside having already been made by
order dated 4.9.1989 Annexure P.l. Therefore the
non-disclosure of the information relating to his
acquittal in the criminal case is no ground for
withholding the appointment of the petitioner."
9. Similarly, a Co-ordinate Bench of this Court in Amandeep Singh's
case (Supra) held as under:-
"9. Before parting with the judgment, the Courts can not lose
sight of the fact that there is a growing tendency in this part of
the country where many times innocent people are roped in
criminal cases. Therefore, unless and until a person is
convicted of any offence and has earned a disqualification, his
services could not be terminated on the ground that at the time
of joining service, a criminal case was pending against him, in
which, the trial is going on and thathe same was not disclosed,
though in the form, the only query was put whether he has
been convicted and sentenced in a criminal case and whether
he was arrested in some criminal case?
10. It being so, I am of the view that the judgment passed by
the learned Civil Judge (Junior Division), Chandigarh is well
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reasoned. Consequently, the judgment and decree dated
29.7.2010, passed by the learned Additional District Judge,
Chandigarh is set aside and the judgment and decree dated
30.07.2009 passed by learned Civil Judge(Junior Division),
Chandigarh is restored."
10. A perusal of the aforesaid judgments would show that when such
condition is imposed to the offer of appointment, then it has to be backed by
sanction of law or an authority of law. In the absence of Statutory provisions to
disqualify a person from being appointed on the basis of pendency of an FIR,
such cancellation could not have been effected.
11. In view of the aforesaid facts and circumstances of the present
case, this Court is of the considered view that the prayer of the petitioner is
squarely covered by the aforesaid Division Bench judgment as well as Co-
ordinate Bench judgments of this Court.
12. Consequently, the present petition is allowed. The impugned order
dated 21.08.2020 (Annexure P-7) is hereby set aside. The respondent-Nigam is
directed to further proceed with the offer of appointment to the petitioner
which has been issued to him vide Annexure P-3 and to take him on duty
within a period of two months from today with all the consequential benefits.
However, the petitioner will not be entitled for any back wages or any previous
monetary benefits.
(JASGURPREET SINGH PURI)
05.08.2024 JUDGE
rakesh
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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