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2016 DIGILAW 3030 (ALL)

AKHAND PRATAP SINGH v. STATE OF U. P.

2016-09-05

DEVENDRA KUMAR UPADHYAYA

body2016
JUDGMENT Hon’ble Devendra Kumar Upadhyaya, J.—Heard learned counsel for the petitioner and learned Standing Counsel appearing for the State-respondents. 2. The petitioner, who has successfully competed in the Lekhpal (Revenue) Examination 2015 and is awaiting issuance of appointment order/letter, has filed this writ petition challenging the order dated 17.8.2016, passed by the District Magistrate, Amethi whereby the representation made by the petitioner for verification of his character has been rejected. The said order dated 17.8.2016 has been passed by the District Magistrate in purported compliance of an order dated 1.8.2016, passed by this Court while disposing of the earlier writ petition filed by the petitioner, namely, Writ Petition No. 17349 (S/S) of 2016. 3. For being appointed as a Government servant, verification of the character and antecedents of an applicant is required to be done so as to judge his suitability to serve as a Government servant. Having been selected when the petitioner was not being issued appointment order/letter, though others were already issued appointment orders, he filed the aforesaid Writ Petition No. 17349 (S/S) of 2016. The petitioner had earlier approached the District Magistrate, Amethi by moving an application on 1.7.2016 for issuing the appointment letter and giving him posting. An endorsement on the said application dated 1.7.2016 was made that as per the report submitted by the Superintendent of Police, Amethi, there is a case registered against the petitioner at Police Station-Kotwali, District-Amethi, under Sections 323, 308, 504 and 506 I.P.C. In the aforesaid view, the petitioner was not offered appointment letter. When he approached this Court by filing Writ Petition No. 17349 (S/S) of 2016, the Court considered the matter and required the District Magistrate to consider verification of his antecedents and character in the light of the observations made by the Hon’ble Supreme Court in the case of Avtar Singh v. Union of India ans others, decided on 21.7.2016 [Special Leave Petition (C) No. 20525/2011]. The District Magistrate has passed the impugned order while noticing the judgment of Hon’ble Supreme Court in the case of Avtar Singh (supra), however, he has rejected the representation made by the petitioner seeking verification of his character and antecedents stating therein that police verification of the character of the selected candidates was got done and in the said process the Superintendent of Police, Amethi had reported in his report dated 9.6.2016 that the petitioner is involved in Case Crime No. 414-A/2010, under Sections 323, 308, 504 & 506 I.P.C. The District Magistrate while passing the impugned order has further observed that the Hon’ble Supreme Court in the case of Avtar Singh (supra) has observed that any applicant seeking appointment in Government service is under obligation to submit complete and true information regarding any criminal case either pending or registered against him. The District Magistrate has observed in the impugned order that the fact relating to pendency/registration of the criminal case against the petitioner came into light only once the police verification of his character was being conducted and further that the petitioner did not intimate the appointing authority about the pendency/registration of the criminal case. 4. The reason indicated in the impugned order by the District Magistrate is that the concerned Superintendent of Police has not made any recommendation for verifying the character of the petitioner and further that the petitioner himself had concealed the correct information, though at the time of making application for selection no such information was sought. However, the District Magistrate has further observed that after the final selection and before the police verification of the character, in the application submitted by the petitioner for issuing appointment order, the petitioner should have mentioned the correct facts relating to the pendency/registration of the criminal case against him. 5. From a perusal of the impugned order dated 17.8.2016 one aspect of the matter is indisputedly clear, which is the fact that at the time of making of the application for selection, information regarding pendency/registration/involvement of a candidate in a criminal case was not required to be submitted. 5. From a perusal of the impugned order dated 17.8.2016 one aspect of the matter is indisputedly clear, which is the fact that at the time of making of the application for selection, information regarding pendency/registration/involvement of a candidate in a criminal case was not required to be submitted. The application form required to be filled in by the candidates for selection to the post in question has been annexed by the petitioner as annexure No. 5 to the writ petition which does not contain any such column requiring the candidate to furnish information relating to pendency/registration/involvement of the candidate concerned in any criminal case. Thus, the reason indicated by the District Magistrate in the impugned order that the petitioner had concealed information regarding his involvement in the criminal case is no longer relevant. 6. A detail procedure for verification of the character and antecedents of the Government servants before their first appointment can be found in a Government order issued on 28.4.1958 by the appointment department of the State Government addressed to all Heads of the departments, Commissioners of Divisions and District Magistrates. The said Government Order quotes the rule regarding character of a candidate for appointment as follows : “The character of a candidate for direct appointment must be such as to render him suitable in all respects of employment in the service or post to which he is to be appointed. It would be the duty of the appointing authority to satisfy itself on this point.” 7. Thus, primarily it is the duty of the appointing authority to record its satisfaction as to the character of a candidate for direct recruitment which renders him suitable for employment in the service or on the post to which the candidate is to be appointed. 8. As per the aforesaid Government Order dated 28.4.1958 every direct recruit is required to produce a certificate of conduct and character from the head of the educational institution where he last studied and certificates of character from two persons. The said Government Order further provides that in case of any doubt, the appointing authority may either ask for further references, or he may refer the case to the District Magistrate concerned. The District Magistrate, on such a reference, may then make such further enquiries as he considers necessary. The said Government Order further provides that in case of any doubt, the appointing authority may either ask for further references, or he may refer the case to the District Magistrate concerned. The District Magistrate, on such a reference, may then make such further enquiries as he considers necessary. The aforesaid Government Order further provides that in case of direct recruits, the appointing authority shall refer all cases to the Deputy Inspector General of Police, Intelligence and the District Magistrate of the home district and of the district(s) where the candidate has resided for more than a year within five years of the date of the inquiry. The District Magistrate is thereafter required to get the reports in respect of the candidates from the Superintendent of Police, who in turn is required to consult the District Police Records and records of the Local Intelligence Unit. On receipt of the report from the District Police or Local Intelligence Unit, the District Magistrate shall then report his views to the appointing authority. The District Magistrate is required to provide an opportunity of hearing to the candidate in case the District Police or the Local Intelligence Unit reports adversely against the candidate, and it is only thereafter that the District Magistrate will form his opinion and send his report. Thus, it is the opinion to be formed by the District Magistrate on the basis of the report to be submitted by the Superintendent of Police and also on the basis of candidate’s statement, which is relevant and which will be sent to the appointing authority. The District Magistrate is, hence, under legal obligation under the provisions of the aforesaid Government Order dated 28.4.1958 to form his own opinion on the basis of the report submitted to him by the Superintendent of Police and also taking into account all the relevant factors including the statement to be made before him by the candidate concerned. The District Magistrate is, hence, under legal obligation under the provisions of the aforesaid Government Order dated 28.4.1958 to form his own opinion on the basis of the report submitted to him by the Superintendent of Police and also taking into account all the relevant factors including the statement to be made before him by the candidate concerned. Another relevant extract from the Government Order dated 28.4.1958 is quoted below: “In the case of direct recruits to the State Services under the Uttar Pradesh Government besides requiring the candidates to submit the certificates mentioned in paragraph 3(a) above the appointing authority shall refer all cases simultaneously to the Deputy Inspector General of Police, Intelligence and the District Magistrate [of the home district and of the district(s) where the candidate has resided for more than a year within five years of the date of the inquiry] giving full particulars about the candidate. The District Magistrate shall get the reports in respect of the candidates from the Superintendent of Police who will consult District Police Records and records of the Local Intelligence Unit. The District Police or the District Intelligence Unit shall not make any enquiries on the spot, but shall report from their records whether there is anything against the candidate, but if in any specific case the District Magistrate, at the instance of the appointing authority asks for an enquiry on the spot, the Local Police or the Local Intelligence Units will do so and report the result to him. The District Magistrate shall then report his own views to the appointing authority. Where the District Police or the Local Intelligence Units report adversely about a candidate, the District Magistrate may give the candidate a hearing before sending his report.” 9. While forming an opinion about the character and antecedents of a candidate what is to be kept in mind by the District Magistrate is as to whether the candidate’s character is such that renders him suitable for employment in the service or post to which he is seeking appointment. Merely on account of the pendency/involvement/registration of a criminal case against the candidate will not be a ground not to verify the character and antecedents of the candidate by the District Magistrate. Merely on account of the pendency/involvement/registration of a criminal case against the candidate will not be a ground not to verify the character and antecedents of the candidate by the District Magistrate. In this regard, the Note (a) as finds mentioned in the Government Order dated 28.4.1958 is relevant to be noticed, according to which, conviction of a candidate need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means of Government of India as by law established, in free India the mere conviction need not be regarded as disqualification. Relevant note occurring in the said Government Order dated 28.4.1958 is quoted below : “Notes.-(a) A conviction need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means of Government as by law now established in free India the mere conviction need not be regarded as disqualification. (Conviction of a person during his childhood should not necessarily operate as a bar to his entering Government service. The entire circumstances in which his conviction was recorded as well as the circumstances in which he is now placed should be taken into consideration. If he has completely reformed himself on attaining the age of understanding and discretion, mere conviction in childhood should not operate as a bar to his entering Government service).” 10. Thus, unless and until a criminal case found against the candidates, which has even resulted in conviction, involves moral turpitude or association of the candidate with crimes of violence or association of the candidate with a movement having an object to overthrow the Government established by law by violent means, any involvement in the criminal case need not be necessarily recorded as disqualification. In fact, the entire circumstances in which a candidate’s involvement in a criminal case is found has to be weighed by the District Magistrate while reporting the matter to the appointing authority about the character verification of the candidate and about giving report regarding antecedents of the candidate concerned who is seeking employment with the Government against any post. In the instant case, the Superintendent of Police has reported that a criminal case against the petitioner is registered under Sections 323, 308, 504 and 506 I.P.C. at Police Station Kotwali, District Amethi. The said information was sent by the Superintendent of Police to the District Magistrate by letter dated 1.7.2016. On receipt of the said report, it was incumbent upon the District Magistrate to have sent for the petitioner and give him an opportunity of hearing and it is only thereafter that the District Magistrate would have formed his opinion. After forming his opinion, all the necessary papers i.e. the report of the Superintendent of Police, statement of the petitioner and District Magistrate’s findings should have been sent to the appointing authority as is the procedure prescribed in the Government Order dated 28.4.1958. 11. Learned Standing Counsel has produced the original record which nowhere reveals that any such procedure as has been laid down in the Government Order dated 28.4.1958 in respect of the verification of character and antecedents has been followed. A close scrutiny of the provisions of the Government Order dated 28.4.1958 clearly indicate that in case where report submitted by the Superintendent of Police is unfavourable, the District Magistrate should require the candidate concerned to make his statement before him by providing an opportunity of hearing. As observed above, the record produced by the learned Standing Counsel does not disclose that the aforesaid procedure as prescribed in the Government Order dated 28.4.1958 has been followed in the instant case. 12. Further, another aspect of the matter needs consideration by this Court in this case and that is while disposing of the earlier writ petition No. 17349 (S/S) of 2016, this Court by means of the order dated 1.8.2016 had required the District Magistrate to look into the entire matter relating to character verification of the petitioner in the light of the observations made by Hon’ble Supreme Court in the judgment of Avtar Singh (supra). Hon’ble Supreme Court in the said judgment has summarized its conclusions and has clearly held that for determining suppression of correct facts or furnishing of false information, only such information which is required to be specifically mentioned has to be disclosed. Hon’ble Supreme Court has further observed that if information is not asked for but is relevant and comes to the notice of the employer, the same has to be considered in an objective manner while addressing the question of fitness. The instant case is not a case which can be categorized amongst the cases where suppression of any information has occurred at the instance of the petitioner while making the application for selection to the post in question. The application form did not require the petitioner to disclose any such information. At any point of time, neither the appointing authority, nor the Superintendent of Police, nor even the District Magistrate required the petitioner to furnish any information in relation to his antecedents, therefore, non disclosure of the registration of the criminal case against the petitioner would not fall in the category of cases where suppression of fact has occurred. It is also noticeable further that even in case of conviction, the District Magistrate is required to weigh all relevant factors while applying his mind for forming his opinion to verify the suitability of a candidate for employment as a Government servant. The First Information Report lodged against the petitioner is on record as annexure No. 9 to the writ petition. The incident as disclosed in the First Information Report is said to have occurred at 4:00 p.m. in the evening of 12.5.2010. The First Information Report appears to have been lodged by one Smt. Pushpa Giri, who is the resident of the same village where the petitioner resides. The petitioner has been described as co-accused in the First Information Report alongwith three others and as per the disclosure made in the First Information Report at around 4:00 O’clock on 12.5.2010 when the complainant Smt. Pushpa Giri was cleaning the temple, all the accused persons including the petitioner, who are the residents of the same village, entered into some altercation with the complainant and thereafter assaulted her with lathi and danda and when her husband came to her rescue, the accused persons including the petitioner assaulted her husband, who sustained injuries in his head. On the basis of the First Information Report, a case under Sections 323, 308, 504 and 506 I.P.C. has been registered against the petitioner. 13. Looking into the nature of allegations made in the First Information Report and also looking into the nature of incident which is said to have occurred at the temple of the same village where the petitioner was residing and also taking into account the general nature of allegations against all the accused persons, it was incumbent upon the District Magistrate to have analyzed the entire material before forming his opinion about the suitability of the petitioner for the job in question. The District Magistrate on the other hand, while passing the impugned order has not taken into account the circumstances in which the incident is said to have occurred, neither has he analyzed as to whether any particular role was assigned to the petitioner in the said incident of Marpeet. The District Magistrate has also not provided an opportunity of hearing to the petitioner as is mandated by the procedure prescribed in the Government Order dated 28.4.1958, neither has he recorded the statement of the petitioner and has simply declined to verify the character and antecedents of the petitioner on the basis of the report submitted by the Superintendent of Police. The original record from the office of District Magistrate, Amethi, which has been produced by the learned Standing Counsel, does not even disclose that the First Information Report on the basis of which criminal case against the petitioner has been registered is available on the said record. The absence of First Information Report of the incident and any other material relating to incident on the basis of which the case against the petitioner has been registered, on record of he District Magistrate, makes it clear that all relevant factors in respect of the matter at hand have not been considered by the District Magistrate while passing the impugned order refusing to verify the character of the petitioner which would render him unsuitable for being employed on the post in question. 14. 14. As already observed above, the aforesaid consideration by the District Magistrate is to be done on the basis of all relevant materials including the report of the Superintendent to of Police, statement of the candidate concerned and any other material, namely, the First Information Report, the circumstances in which the incident is said to have occurred and other factors which the District Magistrate finds appropriate to consider for the purposes of forming his opinion as to the suitability of the candidate concerned for verifying his character and antecedents which would make him suitable for being appointed on the post in question. In absence of any such exercise, as contemplated in the Government Order dated 28.4.1958, having been conducted by the District Magistrate before passing the impugned order, in my considered opinion, the order under challenge in this petition dated 17.8.2016 cannot be permitted to be sustained. Resultantly, the writ petition is allowed. The impugned order dated 17.8.2016 passed by the District Magistrate, Amethi is hereby quashed. The matter is remitted to him for decision afresh in accordance with law, in the light of the observations made by Hon’ble Supreme Court in the case of Avtar Singh (supra) and also taking into account the observations made herein above in the body of this judgment. The said consideration shall be made by the District Magistrate bearing the provisions of the Government Order dated 28.4.1958 in mind, expeditiously, say within a period of eight weeks from the date of production of certified copy of this order. To facilitate the decision to be taken by the District Magistrate under this judgment, the petitioner shall furnish a fresh representation in support of his case taking therein all the pleas which may be available to him and annexing therewith all the documents on which he intends to rely, including the Government Order dated 28.4.1958. The decision thereon shall be taken by the District Magistrate concerned following the observations made herein above by passing a reasoned and speaking order. There will be no order as to costs.