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2011 DIGILAW 1913 (ALL)

MAHESH PAL SINGH v. STATE OF U. P.

2011-08-10

VIKRAM NATH

body2011
JUDGMENT Hon’ble Vikram Nath, J.—Heard Sri Vijay Gautam learned counsel for the petitioner and learned Standing Counsel. 2. Petitioner after selection was recruited on as Constable in police force on 20.6.2006. By means of order dated 4.8.2007 passed by the S.S.P., Moradabad, the selection of the petitioner has been cancelled on the ground that at the time of recruitment he filed a raise affidavit in relation to column provided for declaration in respect of criminal cases registered or pending against him as he failed to disclose Case Crime No. 171 of 2000, under Sections 323/504/506 IPC. 3. Sri Vijay Gautam submitted that the petitioner was appointed in 2006 and filed the affidavit on 12.6.2006 and the alleged criminal case was registered in the year 2000, wherein he was acquitted by Judicial Magistrate, J. P. Nagar vide judgment dated 11.3.2005. It has further been submitted that since there was no clause requiring that if there were criminal case in the past and has resulted in acquittal then also the fact has also to be mentioned in the declaration form and thus the petitioner in good faith did not disclose about Case Crime No. 171/2000 as he was acquitted. 4. A counter-affidavit has been filed on behalf of the State-respondents wherein the allegation with regard to the fact that FIR was lodged in 2000 and the petitioner has been acquitted vide judgment and order dated 11.3.2005 have not been denied. Only submission made by learned Standing Counsel is that since criminal case was registered against the petitioner and despite the fact that he had been acquitted, a declaration in this regard was required to be given in the affidavit and non-disclosure amounts to concealment and in these circumstances the petitioner’s selection/appointment has rightly been cancelled. 5. I have considered the arguments advanced by learned counsel for the parties and perused the record. 6. Learned Standing Counsel has failed to point out that there was any clause in the declaration form that if a criminal case was registered in the past and has resulted in acquittal, then this fact was also required to be mentioned in the affidavit. If there was no clause regarding any criminal proceeding in the past then, in my opinion, there was no obligation on the part of the petitioner to give a declaration to that effect and it cannot be said that non-disclosure was intentional. 7. If there was no clause regarding any criminal proceeding in the past then, in my opinion, there was no obligation on the part of the petitioner to give a declaration to that effect and it cannot be said that non-disclosure was intentional. 7. The view taken by me finds supports from the judgment of a Hon’ble single Judge in Writ Petition No. 59218 of 2007 (Surendra Yadav v. State of U.P. and others) decided on 26.2.2007 as well as Writ Petition No. 51282 of 2007 (Sanjay Kumar Singh v. State of U.P. and others) decided on 27.1.2010. 8. There is yet another aspect of the matter. It is well settled that every judgment operates retrospectively unless specifically made prospectively and since the petitioner was acquitted in Case Crime No. 171 of 2000, hence, it will be deemed that he was never involved in the criminal case, and thus, was under no obligation to disclose the same. 9. The view taken by me finds supports from the Division Bench judgment of this Court in the case of Qamrul Hoda v. Chief Security Commissioner, North Eastern Railway, Gorakhpur, (1997) 2 UPLBEC 1201 . 10. Further it is admitted case between the parties that prior to cancellation of selection and appointment of the petitioner, no notice or opportunity of hearing was provided. Hon’ble Apex Court in the case of Chandra Prakash Shahi v. State of U.P. and others, (2000) 5 SCC 152 , has held that such an order amounts to dismissal, therefore, notice and opportunity was necessary. Hon’ble Apex Court has further held that notice is also required under Para 541 of Police Regulations. 11. Admittedly, the petitioner had been given appointment and he was working on the post. If a person is working on the post, a civil right accrues and notice and opportunity is necessary before dispensing with his services. Thus, the order impugned in this petition is in gross violation of principles of natural justice. Further as there is no compliance of Regulation 541(2) of Police Regulation, as such, also the impugned order passed by the respondent authority is not sustainable in law. 12. For the aforesaid reasons, the impugned order dated 4.8.2007 passed by Senior Superintendent of Police, Moradabad (Annexure No. 1 to the writ petition) is not sustainable in law and is hereby quashed. Writ petition stands allowed. 12. For the aforesaid reasons, the impugned order dated 4.8.2007 passed by Senior Superintendent of Police, Moradabad (Annexure No. 1 to the writ petition) is not sustainable in law and is hereby quashed. Writ petition stands allowed. However, in the facts and circumstances, there shall be no order as to costs. ———————