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2019 DIGILAW 443 (ALL)

Upendra Chauhan v. Union Of India

2019-02-20

YASHWANT VARMA

body2019
JUDGMENT : 1. Heard learned counsel for the petitioner and Sri Sanjay Kumar Upadhyay, learned counsel appearing for the respondents. 2. This petition calls in question the orders dated 19 June 2015 and 12 May 2017 pursuant to which the candidature of the petitioner has come to be cancelled. In terms of the first order, the respondents had taken the position that the petitioner had deliberately suppressed the fact of his involvement in two criminal cases bearing No. 152 of 2006 under Sections 323, 504 and 506 IPC and 166 of 2009 under Sections 323, 504 IPC. 3. The order dated 19 June 2015 was assailed by way of Writ-A No. 45917 of 2015 which came to be disposed of on 13 December 2016 requiring the respondents to reconsider the candidature of the petitioner bearing in mind the principles enunciated by the Supreme Court in Avtar Singh Vs. Union of India & others, (2016) 8 SCC 471 . 4. Pursuant to the directions issued on that writ petition, the second impugned order dated 12 May 2017 has come to be passed by which the respondent this time around has taken the following position: “After personal hearing of the petitioner and on careful examination of the representation as well as related documents pertaining to the case, I have found that criminal cases under NCR No. 152/06 U/S 323, 506, 504 IPC & NCR No 166/09 U/S 323, 504 IPC is registered against him which are still pending trial. Though he declared about the criminal cases in his attestation form but at the time of filling up of attestation form his character was not unblemished. The purpose of calling for information regarding involvement in any criminal case or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information has a clear bearing on the character and antecedents of the candidate in relation to his continuity in service and clearly speaks about the character and moral fiber of the candidates. Furthermore, the standard expected of a person intended to serve in uniformed service is quite distinct from other services and therefore, any deliberate statement or omission regarding vital information is viewed seriously as a member of a disciplined force is liable to be judged on a higher pedestal. Furthermore, the standard expected of a person intended to serve in uniformed service is quite distinct from other services and therefore, any deliberate statement or omission regarding vital information is viewed seriously as a member of a disciplined force is liable to be judged on a higher pedestal. As such, apropos to the above, I found the matter of his suppression regarding his criminal case was deliberate with an intention to get the Government job and not due to any misconception. That, vide, Railway Board order No. 88/SEC(E)/RC-3/6(IR)(trg.) dated 16.11.2005, it has been clearly instructed that, “In conformity with the extant policy of the government of India, it has been decided that, furnishing of false information or suppression of any factual information in the Attestation form shall amount to unfitness of the candidates for appointment in the Force” Hence, I have applied my mind and on evaluation of the facts on record, extant rules, and having accorded the opportunity of personal hearing and representation to the petitioner keeping with the principles of natural justice, and in light of directions of the Hon'ble Supreme Court in Avtar Singh Vs. Union of India & Ors. and in exercise of the power vested under Rule 52.2 and 67.2 of the RPF Rules 1987, I hereby come to the considered conclusion as Appointing Authority that the above petitioner is not fit for Government Services and representation of the petitioner is rejected, and I hereby discharge Upendra Chauhan and cancel his candidature for appointment into the Government Service as a Constable in RPF/RPSF with immediate effect. The petitioner may be informed accordingly.” (emphasis supplied) 5. Insofar as the two criminal cases are concerned, in terms of a supplementary affidavit filed today and other material on record, learned counsel points out that the petitioner was tried as a juvenile in those cases in accordance with the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015[2015 Act] and ultimately the said cases came to a close on 8 June 2018 with the petitioner being released back in the custody of his father with an advice and warning. It is also relevant to note here that although these orders came to be passed on 8 June 2018, in the attestation form which had been filed by the petitioner, due disclosure of the pending criminal cases had been made. It is also relevant to note here that although these orders came to be passed on 8 June 2018, in the attestation form which had been filed by the petitioner, due disclosure of the pending criminal cases had been made. This fact is admitted to the respondents and yet as is evident from the reasons assigned in the impugned order, the respondents have taken the position that the petitioner had deliberately suppressed details with respect to the criminal cases with deliberate intent, thus rendering him ineligible for being considered for appointment. 6. While inviting the attention of the Court to the principles enunciated in Avtar Singh, the learned counsel has additionally placed reliance upon the provisions of Section 24 of the 2015 Act which reads thus: “24. Removal of disqualification on the findings of an offence. 1. Notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law: Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict with law by the Children's Court under clause (i) of sub-section (1) of section 19, the provisions of sub-section (1) shall not apply. 2. (2) The Board shall make an order directing the Police, or by the Children's court to its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed: Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children's Court.” 7. According to the learned counsel for the petitioner, the mere conviction of the petitioner as a juvenile cannot be viewed as a disqualification from being appointed in Government service. He additionally contends that the nature of offences of which the petitioner was charged themselves were trivial in character and therefore, the view taken by the respondents is wholly illegal. 8. According to the learned counsel for the petitioner, the mere conviction of the petitioner as a juvenile cannot be viewed as a disqualification from being appointed in Government service. He additionally contends that the nature of offences of which the petitioner was charged themselves were trivial in character and therefore, the view taken by the respondents is wholly illegal. 8. Sri Upadhyay, learned counsel appearing for the respondents has addressed only one submission and that is to draw the attention of the Court to the clause in the attestation form which provided that in case, it be ultimately found that the candidate had suppressed material information, his candidature would be liable to be cancelled. Despite repeated queries of the Court, learned counsel was unable to either indicate or articulate either the fact which had been suppressed or which disclosure according to the respondents was incorrect, false or misleading. This aspect assumes significance since even though the respondent while passing the impugned order notice that the petitioner had made the requisite disclosures and answered the questions posed truthfully, he has proceeded to disallow the candidature of the petitioner on the ground of concealment of material facts. It is also worthy of note that the petitioner had answered in the affirmative while answering the questions pertaining to prior prosecution and conviction. 9. Turning then to the order impugned, it is evident that the same cannot possibly be sustained. The reasons for arriving at this conclusion are as follows. 10. At the very outset, it is evident that the respondents have taken contradictory and conflicting stands. While at one place, they admit that due disclosure was made in the attestation form, in the subsequent paragraphs they proceed to note that the suppression regarding the criminal cases was deliberate and with an intent to obtain entry in Government service and not due to any misconception. Not only are these findings incompatible, they evidence a complete non-application of mind. The findings with respect to suppression are not only belied from the recitals appearing in the impugned order itself but also from the attestation form in which the petitioner had admittedly made the requisite disclosure. 11. Not only are these findings incompatible, they evidence a complete non-application of mind. The findings with respect to suppression are not only belied from the recitals appearing in the impugned order itself but also from the attestation form in which the petitioner had admittedly made the requisite disclosure. 11. Additionally the Court notes the submission of learned counsel for the petitioner who contended that the charges which were levelled against the petitioner were trivial in nature and must be passed off and attributed to the exuberance and intemperance of youth and clearly could not be viewed as a disqualification for entry in Government service. It is in that context the following observations as made by the Supreme Court in Avtar Singh are of relevance: “(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.” 12. The contention lastly raised with respect to the provisions of Section 24 also merits due consideration. In the considered view of the Court and as is evident therefrom, even if a juvenile is convicted under the provisions of the 2015 Act the same is not liable to be viewed as a disqualification which may otherwise and ordinarily stand attached upon a person being convicted. This issue too merits the matter being remanded to the respondents for reevaluation of the petitioners claim in light of the legal provision which is adverted to. On an overall conspectus of the aforesaid and in the considered view of this Court the impugned orders are rendered unsustainable . 13. Accordingly the writ petition is allowed. The impugned order dated 12 May 2017 is hereby quashed. The Court needs not deal with the prayer for quashing of the order dated 19 June 2015 since it admittedly formed subject matter of the earlier writ petition which had been disposed of on 13 December 2016 and the said order even otherwise stands substituted by the orders passed by the respondents pursuant to the direction issued therein. The Court needs not deal with the prayer for quashing of the order dated 19 June 2015 since it admittedly formed subject matter of the earlier writ petition which had been disposed of on 13 December 2016 and the said order even otherwise stands substituted by the orders passed by the respondents pursuant to the direction issued therein. The matter in consequence shall stand remitted to the respondent No. 6 who shall proceed to re-evaluate the claim of the petitioner in accordance with law and bearing in mind the observations made hereinabove. The exercise of consideration shall be completed with due expedition and preferably within a period of one month from the date of presentation of a certified copy of this order.