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2017 DIGILAW 2078 (ALL)

STATE OF U. P. v. ATAR SINGH

2017-09-05

ARUN TANDON, RITU RAJ AWASTHI

body2017
JUDGMENT By the Court.—This intra-Court appeal is directed against the judgement and order of the learned Single Judge dated 13.7.2012 passed in Civil Misc. Writ Petition No. 399 of 2012. The relevant facts for deciding the appeal are as under: 2. Atar Singh the writ petitioner-respondent was appointed in Uttar Pradesh Police Service as Constable in the year 2006, after selection, he was sent for training and while he was under training, an order was passed by the Commandant 37th Battalion, PAC, Kanpur, stating therein that the service of the petitioner are being terminated in terms of the U.P. Temporary Government Servant (Termination of Service) Rules, 1975, inter alia on the ground that at the time of submission of the application form, he was facing trial in criminal case under Sections 147, 149, 436, 427 and 307 read with Section 7 of the Criminal Procedure Code, he surrendered in that case on 31st March, 2005 and was admitted to bail on 1.4.2005. The pendency of the said criminal case was deliberately concealed in the application form. 3. The petitioner challenged the said order by filing writ petition and contended before the Court that he has been acquitted of the criminal charges vide judgment and order dated 21.5.2011 and therefore. He prays for quashing of the termination order nearly after 6 years of such termination. The writ petition was disposed of requiring the Director General of Police to examine the grievance of the petitioner. The Director General of Police vide order dated 16.12.2011 rejected the application of the petitioner for revocation of his termination. The Director General of Police, further found that the petitioner was also involved in another criminal case being criminal case No. 218 of 2007 under Sections 420, 467, 468, 471 I.P.C. which was still pending. 4. The Director General of Police vide order dated 16.12.2011 rejected the application of the petitioner for revocation of his termination. The Director General of Police, further found that the petitioner was also involved in another criminal case being criminal case No. 218 of 2007 under Sections 420, 467, 468, 471 I.P.C. which was still pending. 4. The learned Single Judge has found that in view of the judgment of the Apex Court in the case of Commissioner of Police and others v. Sandeep Kumar, (2011) 4 SCC 644 , as well as in view of the judgment of the Apex Court in the case of Kendriya Vidyalaya Sangathan and others v. Ram Ratan Yadav, (2003) 3 SCC 437 , Ram Kumar v. State of U.P. and others, 2011(4) ESC 634 (SC), the concealment of the material fact pertaining to the pendency of the criminal proceedings could not be fatal as the petitioner was minor on the relevant date and he has been finally acquitted of all the criminal charges. 5. The writ Court accordingly vide order dated 13.7.2012 set-aside the order dated 16.12.2011 and directed the petitioner to be reinstated with 50% back wages. 6. The learned Standing Counsel while challenging the order of the learned Single Judge contended before us that the legal position with regard to the concealment of the material facts in the application form, specifically pertaining to the pendecy of the criminal proceedings has been exonerated by the Apex Court in the case of Atar Singh v. Union of India, 2016 (8) SCC 471 . The writ petition filed by the petitioner has to be adjudicated in accordance with the guidelines laid down in the aforesaid judgment. 7. It is explained to us that the judgment in the case of Commissioner of Police and others v. Sandeep Kumar and Ram Kumar v. State of U.P. and others, has specifically been taken note of by the Apex Court and thereafter the law on the subject has been clarified. He would further submit that in the form which was required to be submitted by the perspective candidates including the petitioner, there was specific clause in the shape of an undertaking that if anything stated in the application form is found to be false than the candidature of such applicant shall stand cancel automatically. He would further submit that in the form which was required to be submitted by the perspective candidates including the petitioner, there was specific clause in the shape of an undertaking that if anything stated in the application form is found to be false than the candidature of such applicant shall stand cancel automatically. This undertakings would be binding upon the candidate concerned and therefore, it is not open to such applicant to turn around and contend that concealment of the fact pertaining to criminal case is not fatal. 8. Sri Siddhartha Khare, learned counsel for the respondent relied upon the judgment of the Apex Court in case of Atar Singh v. State of U.P. and others, as also upon the judgment in the case of State of U.P. and 2 others v. Vinay Kumar passed by the Division Bench of this Court in Special Appeal Defective No. 734 of 2016 decided on 6.12.2016 and the judgment of the Division Bench in the case Virendra Kumar Yadav v. State of U.P. and others, 2017(4) ADJ 439 . It is submitted that the matter may be remitted back for consideration to the Police Authorities in the light of the directions made in the aforesaid judgment of the Apex Court as well as by the Division Bench of this Court. 9. We have carefully gone through the judgment in the case of Atar Singh (supra) as well as the judgment of the Division Bench in the case Virendra Kumar Yadav (supra), Vinay Kumar (supra). We find that in view of the case as explained in Atar Singh’s case (supra) as considered by the Division Bench of this Court, the order passed in the writ petition cannot be legally sustained and it has to be set-aside. 10. What should be the consequential order is the issue which has to examined by us. 11. While the State would insist that the matter be remit to the learned Single Judge for deciding the writ afresh in the light of the judgment in the case of Atar Singh as also in the light of the undertaking given by the candidate while submitting the application form as noticed herein-above, inasmuch as if the undertaking is found to be binding then the question of candidature of the the petitioner being continued even after he is found to have concealed material fact would not arise. 12. 12. While, Sri Khare would submit that in light of the judgment of Atar Singh the matter may be remitted to the police authorities. 13. Having considered the submissions made, we find that in none of the judgment, including that in the case of Atar Singh, the impact of the undertaking given by a prospective candidate in the application form has been taken note to. In our opinion, the undertaking has a material bearing on the issue of concealment of material facts as well as for in the matter of the explanation being considered after it is found that the true information has been concealed by the applicant. 14. Since such issue has not been considered by the writ Court and further since the writ-petitioner must have an opportunity to answer the said issue it would be fit and proper to restore the writ petition to its original number, with a request to learned Single Judge to decide the writ petition in view of the observations made above, keeping in mind, the judgment of the Apex Court in the case of Atar Singh (supra). 15. Appeal is allowed the judgment dated 13.7.2012 is set-aside.