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2017 DIGILAW 611 (UTT)

Pawan Kumar v. State of Uttarakhand

2017-11-16

RAJIV SHARMA, SHARAD KUMAR SHARMA

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JUDGMENT : Sharad Kumar Sharma, J. The issue which was involved in the writ petition was as to what would be the destiny of the candidates, who procured their appointments by not furnishing of their correct particulars which they were required to submit during the course of the selection in pursuance to the instructions issued either in the advertisement or other guidelines and circulars applicable under the selection process. 2. On a challenge being given by the appellant to order of termination which was due to non furnishing of correct particulars regards the criminal proceedings. Here the writ petition was preferred which has been dismissed by the learned Single Judge of this Court by impugned judgment and order dated 01.06.2015. 3. In the Special Appeal No. 303 of 2013, the appellant challenges the judgment of the learned Single Judge of this Court dated 01.06.2015 passed in WPSS No. 314 of 2008, wherein his appointment as a constable has been revoked by the SSP, Haridwar by the impugned order dated 01.01.2008 which was under challenge in the writ petition filed by him. 4. The facts as narrated by the appellant in his Special Appeal was that he applied for recruitment on the post of constable in Uttarakhand Police under an OBC category in a recruitment process which was held in the recruitment centre, Haridwar, in the year 2007. On the application being submitted by the appellant, he was given an application form, which is also called as Registration Form No. 220. As per the appellant, in the Special Appeal whatsoever information which was asked for by the Deputy Inspector General of Police, Garhwal Region, Pauri (respondent no. 2 herein), from the candidate for applying against the said post, he has fulfilled all the conditions, and accordingly filled the same In the recruitment form. 5. It is an admitted case of the appellant that apart from the information, there was an information also called for which was required to be filled up by the candidate as to whether there was any criminal case registered against the candidate or the same is pending or decided against him or not? 5. It is an admitted case of the appellant that apart from the information, there was an information also called for which was required to be filled up by the candidate as to whether there was any criminal case registered against the candidate or the same is pending or decided against him or not? The information which was to be supplied, it contains a clause that if any of the information supplied is found to be incorrect or if it is found to be a misinformation, the same would attracted a legal action and the candidature is liable to be terminated. 6. Admittedly, according to the appellant, when he submitted the application form in the column pertaining to the criminal case, he has mentioned and supplied the information that “no criminal case is pending”. Based on the said information, the appellant was permitted to participate in the selection process. Against the Registration Form No. 220, he has undergone the basic physical test as well as written examination conducted and was declared selected for the post of constable. On the declaration of result, he was placed in the merit list of the candidates, selected for the post of constables which was held in 2007. 7. In terms of the result, the appellant was given an appointment letter on 15.12.2007, subject to the verification of his character credentials. After the appellant’s appointment, it is the case of the respondent no. 4 (Station House Officer, P.S. Khanpur, District Haridwar, herein) that he has received the information from the office of respondent no. 3 (Senior Superintendent of Police, Haridwar, District Haridwar herein) to the effect that the Case Crime No. 59 of 2004, has been registered against the petitioner at Police Station, Khanpur, District Haridwar and the said case is pending before the concerned Court and in that regard the Gram Pradhan has also given the certificate about its pendency. 8. Based on the aforesaid information as supplied, the services of the appellant was terminated by the order dated 01.01.2008, passed by respondent No. 3 on the ground that the appellant has furnished wrong information at the time when he was being considered for appointment. 9. 8. Based on the aforesaid information as supplied, the services of the appellant was terminated by the order dated 01.01.2008, passed by respondent No. 3 on the ground that the appellant has furnished wrong information at the time when he was being considered for appointment. 9. According to the appellant, now after being faced with the order on termination, he submitted that though the Case Crime No. 59 of 2004 was registered against him under Sections 323, 324, 452, 504, 506 IPC on 22.11.2004 in which a charge-sheet was submitted on 22.11.2004 and the appellant was granted bail in the said matter on 03.07.2006 and he submitted that all communal offence against which the case was registered as Case No. 380 of 2005, in which he has been acquitted by the judgment of the Judicial Magistrate, Laksar, Haridwar on 29.10.2007. 10. He submitted that since he was acquitted on 29.10.2007 and since the enquiry pertaining to his character role conducted after the acquittal of the appellant is not correct because at the time when the enquiry was being conducted, he already stood acquitted and thus as a consequence the result of acquittal would be that he ought to have been permitted to be continued to kept in the services. 11. He further submitted that since he had been appointed in pursuance of the selection process in which he succeeded and as such before passing any order of removal of the appellant from the services, he ought to have been given an opportunity of hearing to him because it materially prejudiced his civil rights. The said Writ Petition was heard and ultimately by the judgment dated 01.06.2015, the Writ Petition (WPSS No. 314 of 2008) was dismissed. 12. Learned Single Judge, while dismissing the writ petition has recorded a finding that a candidate applying for the post of constable for the selection process of 2007, for the purposes of verification of the ascendants of the candidate, he was required to submit an affidavit. On verification, it was found that he was involved in a Criminal Case under Sections 323, 324, 452, 504, 506 IPC, which at the relevant time was pending. 13. On verification, it was found that he was involved in a Criminal Case under Sections 323, 324, 452, 504, 506 IPC, which at the relevant time was pending. 13. The learned Single Judge took the view of non-furnishing of the requisite information in the application or in the affidavit in support of the application, a candidate who seeks a recruitment in a disciplinary forces like that of police is guilty of concealment of facts and it would be a gross misconduct and thus the learned Single Judge vide order dated 01.06.2015 upheld the order of removal against which the instant Special Appeal has been preferred by the appellant. 14. In the Special Appeal, thus filed, the learned counsel for the appellant reiterated the ground which was pressed in the writ petition. Besides the ground that since there is an order of acquittal dated 29.10.2007, it ought to have been taken into consideration before passing the order of removal dated 01.01.2008, as prior to the order, there already exists an order of acquittal. The appellant in the grounds has also taken a plea that as per the view expressed by the Hon’ble Apex Court, no doubt concealment of facts by a candidate, seeking a public appointment is a serious issue, but simultaneously it has been held that the youths, who extended the candidature and as are the aspirants before the employment, while filling their application do not disclosed about the facts, related to the criminal antecedent which was registered at the stage when they are either the students or in the youth hood. The Hon’ble Apex Court observed that such pendency of a criminal proceeding against a candidate should not be taken as to be such a serious issue which would ousts a candidate from the area of consideration for the public employment. 15. During the course of the arguments, the learned counsel for the appellant placed reliance on a judgment of Hon’ble Apex Court as reported in 2016 (8) SCC 471 in Avtar Singh Vs. Union of India. The Hon’ble Apex Court in the aforesaid judgment has held that placing of the information pertaining to the criminal cases, no doubt it mandates to furnishing of the correct facts, but the Court looking to the intention as to why the aforesaid verification clause is required has held that the purpose of the said clause that a suitable candidate is appointed. It is a clause which has been incorporated to verify the antecedents which is necessary to find out the fitness of a candidate and the information thus given to the employer by the candidate of conviction, acquittal or pendency, it should be fair and there should not be any suppression or false mentions of the information. 16. Hence the Hon’ble Apex Court held that the concealment of facts and information in a criminal cases where the conviction and acquittal had already been recorded before filling of the application and such facts later comes to the knowledge of the employer, it would be for the employer to come to the conclusion that the suppression of material facts for the purposes of appointment was material or not and the employer will have to rationally apply his mind as to how far the concealment would affect the fitness of the incumbent and for the said purpose, it has to record the reasons and when has the power to condone the lapses, which would be depending on each cases independently. 17. The Hon Apex Court had also held that where the cases of a criminal natures which are trifled in nature, which relates to an incident which has happened at the spur of the moment or as consequence of heated moments during the youth hood and such an offence which is not disclosed, should not render the incumbent to be unfit, because such non furnishing of information may be due to ignorance or because of a fear that the employer may at his discretion ignoring the facts to be true or false information by condoning it, if it is not vital and may take it as to be the basis for terminating the service, or rending the candidature as non suited. 18. The Hon’ble Apex Court in its para nos. 35 and 36 of Avtar Singh (Supra) as observed above is quoted hereunder:- "35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. 35 and 36 of Avtar Singh (Supra) as observed above is quoted hereunder:- "35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of powers has to be in reasonable manner with objectivity having due regard to facts of cases. 36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering, post/nature of duties/services and power has to be exercised on due consideration of various aspects.” 19. The Hon’ble Apex Court in its para 38 of the said judgment has laid down the modalities as to under what circumstances such a concealment of facts could be fatal to itself for appointment. The liability of the candidate on his or her appointment, this Court feels that the nature of the concealment or non-disclosure of material fact was not so fatal because the offence being trifle in nature which has happened will not tarnish the credentials and which not a case of moral turpitude of the appellant, who has otherwise appointed in accordance with the Rules. 20. There is another aspect of the matter, though such concealment by a candidate will not grant him an unfettered right to be appointed. But at the same time in a democratic set of country they are not to be dealt with arbitrarily, at least there has to be some compliance of bare necessity to have the candidate an opportunity to have his say in the matters, so that he may be able to establish his innocence or the reason which such non disclosure has chanced. 21. Thus, the Special Appeal is allowed. Impugned orders passed by the learned Single Judge of this Court dated 01.06.2015 as well as the order of removal from service dated 01.01.2008 is hereby quashed. 21. Thus, the Special Appeal is allowed. Impugned orders passed by the learned Single Judge of this Court dated 01.06.2015 as well as the order of removal from service dated 01.01.2008 is hereby quashed. The respondent is directed to reinstate the appellant. However, the appellant would not be entitled to any salary or back wages for the period from 01.01.2008 till the date of his reinstatement. However, the said period would be treated as to be the period for providing continuity of the service for recovering seniority and other service benefits. 23. This judgment would also decide writ petition (S/B) No. 116 of 2014. No order as to cost.