JUDGMENT Hon’ble Pradeep Kant, J.Heard Shri Lalit Kumar Shukla, learned counsel for the petitioner and the learned standing counsel appearing for the State-respondents. 2. The petitioner - Deo Pratap Singh, whose appointment as constable has been cancelled by the impugned order passed by the Senior Superintendent of Police, Mathura dated 8.8.2007, challenges the same mainly on the ground that he was having no knowledge of the criminal case being registered against him at the time of filing of the application form. This fact virtually stands admitted from the record including the counter-affidavit filed by the State, but even then his services have been terminated arbitrarily and illegally in gross violation of the Government Order dated 28.4.1958. His further submission is that the charge-sheet was initially submitted against him, but no re-investigation it was found that his name was wrongly included and that the story set up against him was not true. Therefore, for non-mentioning of the criminal case, which was allegedly pending on that date, would not be sufficient to terminate his services. 3. It appears that in pursuance of the advertisement issued between some time between 2004-04 (as clear date has not been given), the petitioner applied for being appointed as constable. The petitioner was required to disclose in the application form whether any criminal case was registered/pending against him. He mentioned that no such case was pending against him. He also furnished an affidavit to that effect, as required. The petitioner was selected and appointed as constable in and was posted at Mathura. The selection so made on the post of constable was scrutinized and reviewed wherein it was found that the petitioner had concealed the fact about the registration and pendency of the aforesaid criminal case lodged against him as case crime No. 70 of 2005 under Sections 147, 148, 140, 323, 427, 307, 504 IPC and Sections 323, 504, 506 IPC. On the basis of the said report of the Senior Superintendent of Police, Mathura being satisfied that it was a case of suppression of material fact and giving wrong declaration in the application form supported by the affidavit, has cancelled his appointment. 4. The petitioner has pleaded that he was not aware about the registration of such criminal case when he filed the application in pursuance of an advertisement issued. 4. The petitioner has pleaded that he was not aware about the registration of such criminal case when he filed the application in pursuance of an advertisement issued. As a matter of fact on 7.2.2005 an application under Section 156(3) Cr.P.C. was moved by Bachchu Singh in the Court of Chief Judicial Magistrate, Agra for registration of FIR against 14 persons including the petitioner on the allegation that all the accused persons (14 in numbers) in order to kill the complainant and others fired upon them, but they received no injury. The learned Magistrate on 26.2.2005 ordered for registration of FIR and investigate the same. In pursuance of the order dated 26.2.2005 passed by the learned Magistrate an FIR was lodged against 14 persons on 13.3.2005. 5. It was thereafter an FIR in case crime No. 425 of 2007, under Sections 420, 467, 468, 471 IPC was lodged at Police Station Sadar Bazar, District Mathura by one Vijay Pal Singh, Circle Officer, Police Station, District Mathura alleging that the petitioner submitted false affidavit during the course of recruitment in U.P. Civil Police Service. 6. It was also alleged that the petitioner had the knowledge of the criminal case, which has been registered against him, even then he submitted an affidavit stating therein that no criminal case was registered against him. The charge-sheet was submitted on 30.3.2005 against the accused persons including the petitioner, but on re-investigation it was found that his name was wrongly included and no case was made out against him. On coming to know about the aforesaid fact in the year 2007 the petitioner preferred Criminal Misc. Writ Petition No. 12473 of 2007 (Deo Pratap Singh v. State of U.P. and others) in which interim order of stay was passed and that writ petition is still pending. 7. The fact that criminal case is pending against the petitioner thus cannot be disputed. It is a different matter that in the re-investigation done after submission of charge-sheet it has been found that his name was unnecessarily included as no case was made out against him. 8. 7. The fact that criminal case is pending against the petitioner thus cannot be disputed. It is a different matter that in the re-investigation done after submission of charge-sheet it has been found that his name was unnecessarily included as no case was made out against him. 8. The question, therefore, arises whether, in the facts and circumstances of the case, the petitioner’s services could have been terminated only because he concealed the fact of registration of a criminal case, but if this concealment stands established, the appointing authority ought to have taken into consideration the contents of the G.O. dated 28.4.1958 and, in this regard, ought to have considered whether the petitioner was suitable for appointment on the post of constable with reference to the nature of cases pending against him and in the absence of any such exercise being done, the termination order cannot be sustained. 9. It is the specific case of the petitioner that he came to know about the registration of a criminal case against him only on the issuance of the termination order, which was issued on 8.8.2007 i.e. the date on which the FIR was lodged as case crime No. 425 of 2007, under Sections 420, 467, 468, 471 IPC. After attaining knowledge of the aforesaid case he filed the writ petition for quashing the FIR in which interim order of stay was passed on 3.9.2007 i.e. after passing of the termination order. 10. The petitioner has also specifically pleaded that at no point of time he was served with any summon/warrant nor was required to appear in the Court and that he did not and could not know that any application under Section 156(3) Cr.P.C. was moved against him in which charge-sheet has been submitted and re-investigation has been done. 11. The petitioner has submitted an affidavit in support of his application on 24.4.2005 whereas the FIR in pursuance of the order passed under Section 156 (3) Cr.P.C. was lodged on 13.3.2005. Obviously, knowledge of lodging of the FIR cannot be presumed by the petitioner unless it is proved by the respondent that he was made aware or was having knowledge of lodging of the FIR. Obviously, knowledge of lodging of the FIR cannot be presumed by the petitioner unless it is proved by the respondent that he was made aware or was having knowledge of lodging of the FIR. Likewise, in view of the specific pleading of the petitioner that first charge-sheet was submitted on 22.6.2005 i.e. much after the filing of the affidavit on 24.4.2005, and that he did not acquire any knowledge about the submission of the said charge-sheet nor submission of the re-investigation report, it cannot be said that he concealed the fact of registration of criminal case against him. 12. The dates relevant, in this regard, can be mentioned as follows : In the advertisement, which was issued some time between the year 2004-05 for selection on the post of police constable, the petitioner applied in March, 2005 in which he submitted his affidavit on 24.4.2005. The application for lodging of the FIR was filed by Bachchu Singh on 7.2.2005. On this application the learned Magistrate passed the order on 26.2.2005 for lodging of the FIR and investigating the same. In pursuance of the said order the FIR was lodged on 13.3.2005. The charge-sheet was submitted on 22.6.2005 and the re-investigation report was submitted by the police on 29.6.2005 in which the petitioner was found not guilty. 13. The sequence of the aforesaid events indicate that the petitioner was not having any knowledge of registration of criminal case against him till he was issued order of termination. Fortifying the aforesaid fact, it is also to be noticed that in case the petitioner had knowledge of the registration of case against him and submission of charge-sheet he would have taken necessary steps as a ordinary prudent man could have taken to protect him from arrest, but no such action was taken because he was ignorant of the aforesaid criminal case, which was lodged against him. 14. The aforesaid fact also stand established from the counter-affidavit filed by the State. In the counter-affidavit it has been no where pleaded that the petitioner was having knowledge of the criminal case registered against him or pendency thereof dispute specific pleading to that effect in the writ petition and in particular, in paragraph 10 of the counter-affidavit. In the counter-affidavit in reply to paragraph 10 of the writ petition it has been stated that it does not need any reply as detailed reply has been given. In the counter-affidavit in reply to paragraph 10 of the writ petition it has been stated that it does not need any reply as detailed reply has been given. On perusal of the entire counter-affidavit it is found that that there is no denial of the fact that the petitioner was not having any knowledge of the criminal proceeding pending against him. As a matter of fact, the counter-affidavit of the State is silent on the said issue. 15. Since the State Government has not denied the aforesaid fact viz. the petitioner was having no knowledge of registration of criminal case at the time of filing of the application for appointment in his affidavit, the basis of the order of termination that it was concealment on his part stands wiped off. This apart as held in the case of Ram Kumar v. State of U.P. and others, 2011(4) ESC 634 (SC) : 2011(10) ADJ 24 (SC)(NOC) it was incumbent upon the appointing authority, in the facts and circumstances of the case, where in the re-inquiry/re-investigation the petitioner was not found guilty, to consider whether he was suitable for appointment to the post of constable with reference to the nature of suppression and nature of the criminal case, which has not been done. 16. In Ram Kumar (supra) the Apex Court while considering the order of termination, which was upheld by the High Court, held that before the date of application the appellant stood acquitted of the criminal charges and that the charges were of minor matrix for which his services could not have been terminated. More so, interpreting G.O. dated 28.4.1958 their Lordships held that it was incumbent upon the authority to consider about the suitability of his appointment, which has not been done. 17. More so, interpreting G.O. dated 28.4.1958 their Lordships held that it was incumbent upon the authority to consider about the suitability of his appointment, which has not been done. 17. In the present case also, it having been established beyond doubt that the petitioner was not aware of the registration of a criminal case against him on the date of his application or on the date of filing of an affidavit in support of the application for recruitment and also sequence of events, which have taken place, clearly show that the petitioner was not made aware of any such criminal case and, therefore, in the absence of any knowledge if he has mentioned that no case was pending at the time of filing of application, then by no stretch of imagination, it cannot be taken as concealment on his part. 18. In view of the judgment of the Apex Court in the case of Ram Kumar (supra) the order passed by the Senior Superintendent of Police, Mathura, impugned in the writ petition, cannot be sustained, which is based on misconception that the petitioner had knowledge of the criminal case registered against him rather he was having no such knowledge on the date of filing of application or affidavit. 19. In the result, the writ petition is allowed. Impugned order dated 8.8.2007 passed by the Senior Superintendent of Police, Mathura is hereby quashed. The respondents are directed to reinstate the petitioner in his service as constable and pay his salary regularly. The period for which the petitioner remained out of service shall be counted in his service, but salary for such period shall not be paid. ——————