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2018 DIGILAW 2140 (ALL)

Shivam Maurya v. State Of U. P.

2018-10-05

SANGEETA CHANDRA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and the learned Standing Counsel. 2. The petitioner is aggrieved by the order dated 04.09.2018 passed by the District Nodal Officer, Recruitment Center, Azamgarh, by which he has cancelled the appointment order issued to the petitioner on the ground that in character verification by the Police, it was found that an F.I.R. was lodged against the petitioner in Case Crime No. 173 of 2013, under Sections 147, 323, 325, 308, 504 and 506 I.P.C. at P.S. Kandharapur. He was convicted by the Trial Court but the petitioner had been let off by placing him on probation for one year and by also imposing fine for each of the sections under which he was charged by the Competent Court. Under the Probation of Offenders Act 1958. 3. In the affidavit filed along with the application form by the petitioner he had not disclosed the aforesaid criminal case and his conviction by the Trial Court and because of concealment and misrepresentation, he was allowed to participate in the selection held for constable in 2015 and was also selected and allotted a District. As per the U.P. Police Headquarters Circular dated 22.05.2018. The District Nodal Officer has found that the petitioner's selection was based on misrepresentation and concealment and has therefore cancelled the selection of the petitioner. 4. It has been submitted by the learned counsel for the petitioner that in a similar case in Writ A No. 19556 of 2018 Indresh Kumar Yadav vs. State of U.P. and three others decided on 13.09.2018, this Court has set aside the order passed by the District Nodal Officer finding that as per the Government Order issued on 28.04.1958, the District Nodal Officer was not the Competent Authority to cancel such selection of the petitioner and it was only the District Magistrate of the District concerned who is the Authority Competent to take a decision in the matter with regard to the suitability or otherwise of a candidate who was offered appointment but later on it was found that criminal proceedings were pending against him. 5. I have carefully perused the judgment and order dated 13.09.2018, this Court had referred to the judgment of the Hon'ble Supreme Court in Avtar Singh vs. Union of India and Anr. 2015 (8) SCC 471 in paragraph 38 and the observations made therein. 5. I have carefully perused the judgment and order dated 13.09.2018, this Court had referred to the judgment of the Hon'ble Supreme Court in Avtar Singh vs. Union of India and Anr. 2015 (8) SCC 471 in paragraph 38 and the observations made therein. The writ petition was disposed off permitting the petitioner to approach the respondent No. 5 in respect of his grievance within a period of two weeks and place all materials in support of his case and the authority concerned was directed to examine the claim of the petitioner in accordance with law laid down by the Hon'ble Apex Court in Avtar Singh (supra) and to pass appropriate orders within a period of two months thereafter. Since the Nodal Officer was not shown to have any jurisdiction to reject the petitioner's candidature, the order dated 29.08.2018 passed by the Nodal Officer cancelling the candidature of the petitioner on the post of constable was quashed by this Court. 6. The learned Standing Counsel on the other hand has placed reliance upon a Division Bench judgment rendered by this Court in Special Appeal Defective No. 639 of 2016 (State Of U.P. And 3 Others vs. Rajeev Kumar) wherein, the writ Courts order dated 11th of April 2016 was set aside by the Division Bench. The respondent therein was selected as a constable in PAC in 2013. He could not be sent for training on account of pendency of a criminal case. An F.I.R. was lodged on 07.08.2013 in Case Crime No. 182 of 2013, alleging commission of offenses under Sections 147, 148, 149, 341, 323, 333, 427, 353, 307, 186, 332, 325 and 337 IPC P.S. Riva Sarai, District Gaya. 7. The State appellants had argued before the Division Bench that the respondent as deliberately concealed his involvement in the criminal case. The affidavit filed by the respondent unequivocally disclosed that he was not involved in any criminal case, his online application also contained the declaration along with his application form to the similar effect, and also a declaration that in case information provided in the application form was found to be incorrect his candidature may be cancelled. 8. The affidavit filed by the respondent unequivocally disclosed that he was not involved in any criminal case, his online application also contained the declaration along with his application form to the similar effect, and also a declaration that in case information provided in the application form was found to be incorrect his candidature may be cancelled. 8. The Hon'ble Division Bench referred to the judgment rendered in Avtar Singh vs. Union of India and Anr and the act of deliberate misstatement and suppression resorted to by the respondent and observed that the appellant cannot be compelled to issue an appointment letter to the respondent and then await the result of criminal trial. 9. Since the petitioner has now admitted his involvement in criminal case where he was let off on probation by the competent Court and he did not state such facts in his online application, there was a deliberate miss-statement and concealment and therefore he cannot be granted the benefit of judgment rendered by a Co-ordinate Bench in Writ A No. 19556 of 2018 Indresh Kumar Yadav vs. State of U.P. and three others. 10. The Government Order dated 28.04.1958 which has been referred to by the learned counsel for the petitioner does not apply in the case of the petitioner as he is governed by the Police Act and Police Regulations. 11. In Chandra Prakash vs. Shakuntala Shukla 2002 (6) SCC 127 , the Supreme Court was dealing with the question whether promotion from Sub Inspector to Inspector in the State of U.P. in the year 1997 against the vacancies for the year 1992-96 was to be made on the basis of "seniority subject to rejection of the benefit" as provided in U.P. Government Servants Criteria for Recruitment by Promotion Rules 1994 framed under Article 309 of the Constitution or on the basis of "merit" as provided in a Police related orders dated 05.11.1965. A related issue was whether the order dated 05.11.1965 stood impliedly repealed after coming into force of the 1994 Rules. The Supreme Court reviewed the provisions of Police Act 1861 and Sections 2, 7, 12 and 46 thereof, and held that general rules framed under Article 309 would not govern existing special rules concerning the Police Personnel. A related issue was whether the order dated 05.11.1965 stood impliedly repealed after coming into force of the 1994 Rules. The Supreme Court reviewed the provisions of Police Act 1861 and Sections 2, 7, 12 and 46 thereof, and held that general rules framed under Article 309 would not govern existing special rules concerning the Police Personnel. The guidelines contained in the order dated 05.11.1965 were in exercise of special conferment of power for framing the Rules which would prevail over any other order or Rule as given in the Police Act. It was held that unless the general Rules specifically repeal the special Rule their implied repeal cannot be inferred. It was observed that the Police force has a special significance in the administration of the State and the Rules framed under the general omnibus power under Article 309 cannot apply generally to the Police force. It was further observed that "When there is a specific provision unless there is a specific repeal of the existing law, question of an implied repeal would not arise, in accordance with the doctrine of generalia specialibus non derogant". It was held that even Government Orders issued specifically for the Police Force would constitute special Rules and would continue to operate instead of general rules framed by the State Government for all Government Servants. In view of the judgment of the Hon'ble Supreme Court in Chandra Prakash Tiwari vs. Shakuntala Tiwari since the Police personnel are governed by a special Rules & Regulations the Government Orders having general application to all other Government Servants would not apply. In this case the District Nodal Officer has referred to a circular issued by the U.P. Police Headquarters relating to Police Constables Recruitment 2015 and paragraph 8 (ja) thereof where there was a specific provision that if a candidate resorts to misrepresentation and deliberately provides wrong information which is later on found to be incorrect, his candidature shall be cancelled and even if such a candidate is issued an appointment order his services shall stand terminated. Besides, the appropriate criminal proceedings may also be is initiated against such a candidate under the relevant provisions of the I.P.C. 12. It has also been submitted by the learned counsel for the petitioner that the Nodal officer has placed reliance on a circular dated 25.05.2018 whereas the selection was of the year 2015. Besides, the appropriate criminal proceedings may also be is initiated against such a candidate under the relevant provisions of the I.P.C. 12. It has also been submitted by the learned counsel for the petitioner that the Nodal officer has placed reliance on a circular dated 25.05.2018 whereas the selection was of the year 2015. No doubt the selection was initiated in 2015, the select list was declared only in May 2018 and the petitioner would still be governed by the specific information sought in the application form that he filled up online and a declaration made at the foot of the application that in case the information supplied by the applicant/candidate is found to be incorrect his candidature can be cancelled. 13. It has been submitted by the learned counsel for the petitioner that in paragraph No. 38.3 and paragraph No. 38.4.1 of the judgment rendered by Hon'ble Supreme Court in Avtar Singh (Supra) the Supreme Court has observed that Government Orders and instructions applicable to the employees shall be taken into consideration at the time of taking the decision and that cases of trivial in nature were liable to be condoned by ignoring such suppression of facts or false information and by condoning the lapse. 14. However, this Court finds that in the aforecited judgment, there are observations to the effect that if there is a specific information which is sought from a candidate and a deliberate suppression of facts with respect to either pending or decided cases, such false information by itself will assume significance and the employer can pass appropriate order cancelling the candidature or terminating the services of such candidate. The employer still has a right to consider even in cases where a declaration is actually made by the candidate regarding a concluded criminal case, and he cannot be compelled to appoint a candidate found guilty in a criminal case. 15. In the case of the petitioner he was found guilty by the Competent Court and let off on probation under Probation of Offenders Act on probation of good conduct for one year. It was not as if the criminal trial was pending and he had yet to be convicted therein, nor it was a case where an FIR was lodged without the knowledge of the candidate. 16. It was not as if the criminal trial was pending and he had yet to be convicted therein, nor it was a case where an FIR was lodged without the knowledge of the candidate. 16. The petitioner cannot be given benefit for suppression of information despite specific question in the application form as to whether he had ever been convicted by any Court of Law. In this case the information supplied by him was found to be incorrect by the authorities. The authorities are well within their rights to cancel the petitioner's candidature. 17. The writ petition is dismissed.