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2018 DIGILAW 237 (RAJ)

Pushpender S/o Shri Chandu Lal v. Union of India Through the Secretary, Ministry of Home Affairs, Government of India, New Delhi

2018-01-18

PUSHPENDRA SINGH BHATI

body2018
ORDER : PUSHPENDRA SINGH BHATI, J. 1. An application preferred by learned counsel Shri I.R. Choudhary on behalf of the respondent no.2 for deletion of party-respondent (respondent no.2) is allowed and respondent no.2 is deleted from the array of respondents. Petitioner has preferred this writ petition with the following reliefs :- "1. The record of the case may kindly called for. 2. The impugned letter dated 19.07.2017 (Annex.4) passed by respondent no.4 may kindly be quashed and set aside. 3. The petitioner may be held suitable for appointment on the post of constable (GD) in respondent, BSF. 4. The respondents may kindly be directed to allow petitioner to join respondent organization in pursuance to the order of Appointment dated 17.04.2017 issued in his favour. 5. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. 6. Costs of the writ petition may kindly be awarded to the petitioner." 2. Brief facts as noticed by this Court are that the petitioner has qualified the selection process for the post of Constable (GD) vide examination of 2015 in Border Security Force. The petitioner was offered appointment on 17.04.2017. Meanwhile a criminal case was lodged against the petitioner under Sections 419, 420 and 120(B) of IPC on 28.10.2010 in which he was acquitted by the competent criminal court vide order dated 15.06.2012 which is Annexure -2. 3. The respondents were aware that the petitioner has not concealed any information regarding the aforementioned case but have gone ahead to terminate the services of the petitioner vide order dated 19.07.2017 which is Annexure-3 and the petitioner has challenged the same. 4. Learned counsel for the respondent has pointed out Annexure R/8 which is the policy of the respondent issued on 01.02.2012 according to which it was the prerogative of the respondents, Clause (v) and para 2(v) of the policy makes it clear that the concerned candidate would not be given appointment against whom there were criminal charges followed by charge-sheet even when at a later stage he has been acquitted of the charges by extending benefit of doubt or otherwise. 5. Learned counsel for the petitioner has however, pointed out Clause (iii) Sub-clause (e) proviso II whereby on final acquittal, the petitioner was entitled to considered for recruitment. 6. 5. Learned counsel for the petitioner has however, pointed out Clause (iii) Sub-clause (e) proviso II whereby on final acquittal, the petitioner was entitled to considered for recruitment. 6. In light of the aforesaid submissions, counsel for the petitioner has further cited the judgment passed by Hon'ble Apex Court, Special Leave Petition (C) No.20525/2011 (Avtar Singh v. Union of India & Ors. decided on 21.07.2016), in which following directions were given: "30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus: (1) Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information. (2) While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. (3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. (4) In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted:- (a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. (b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. (c) If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee. (5) In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate. (6) In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case. (7) In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. (8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime. (9) In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. (10) For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such case action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. (11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him." 7. After hearing counsel for the parties and perusing the record of the case, this Court finds that the precedent law of the Hon'ble Apex Court cited by the counsel for the petitioner i.e. Avtar Singh (Supra) governs the field. 8. After hearing counsel for the parties and perusing the record of the case, this Court finds that the precedent law of the Hon'ble Apex Court cited by the counsel for the petitioner i.e. Avtar Singh (Supra) governs the field. 8. In light of such observations, the present petition is disposed of with a direction to the respondent to re-consider the case of the petitioner in light of the aforementioned observations made in Avtar Singh (Supra) by the Hon'ble Apex Court. The letter dated 06.09.2017 shall not come in between reconsideration. The reconsideration shall be made within a period of 2 months from passing of this order. The interim order shall remain in currency till any decision is taken by the respondents.