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2020 DIGILAW 549 (ALL)

Santosh Kumar v. State of U. P.

2020-02-19

MANOJ KUMAR GUPTA

body2020
JUDGMENT : MANOJ KUMAR GUPTA, J. 1. The petitioner has called in question the order dated 3.6.2019 passed by District Development Officer, the seventh respondent cancelling the provisional appointment of the petitioner dated 15.12.2018 and the order dated 12.9.2019 rejecting the representation of the petitioner made in pursuance of order of this Court dated 9.7.2019 in Writ Appeal No. 9601 of 2019. 2. The petitioner was selected for the post of Village Development Officer (Gram Vikas Adhikari). He was given a provisional appointment by order dated 10.10.2018. On that day itself, the petitioner gave a written undertaking in shape of an affidavit that no criminal case was pending against him and if the information furnished in this regard is later found to be incorrect, it shall be open to the authorities to cancel his appointment and also take other legal measures. During verification of his antecedents and character, it was reported by Superintendent of Police that Crime Case No. 56A/2011 u/s 147, 148, 149, 379, 323, 504, 506, 427 IPC P.S. Dullahpur, district Ghazipur was pending against him. He was issued a show cause notice dated 11.12.2018 calling for his explanation with regard to concealment about pendency of criminal case. In response to the said notice, the petitioner submitted his explanation stating that on 10.10.2018, he initially affirmed an affidavit in which he disclosed about pendency of the criminal case. However, the District Development Officer refused to accept the said affidavit stating that it was not in prescribed format. The petitioner was compelled to submit another affidavit on prescribed proforma and in which certain incorrect facts were mentioned before hand including the fact that no criminal matter is pending against him. It was on account of said act of the respondents that he could not disclose about the pendency of criminal case in the affidavit submitted by him on 10.10.2018 in prescribed proforma. The petitioner, alongwith his explanation, enclosed the original affidavit dated 10.10.2018, which, according to him, he tried to submit initially, but was not accepted. The seventh respondent, after considering the explanation of the petitioner, by order dated 3.6.2019, rejected the same holding that: (a) the attestation documents at serial no. 10 Ka and Kha attached with the Application Form dated 6.4.2018 mentions "No" against the column seeking information about pendency of criminal cases, which is palpably false. The seventh respondent, after considering the explanation of the petitioner, by order dated 3.6.2019, rejected the same holding that: (a) the attestation documents at serial no. 10 Ka and Kha attached with the Application Form dated 6.4.2018 mentions "No" against the column seeking information about pendency of criminal cases, which is palpably false. (b) again, after selection, when the petitioner was given provisional appointment, he was required to submit an affidavit by way of a declaration that no criminal proceedings are pending against him and regarding other antecedents. In the said affidavit, the petitioner categorically mentioned that no criminal matter is pending against him. However, upon police verification, it transpired that the said declaration is false as a criminal case was pending against him. (c) the affidavit on which reliance was placed by the petitioner in his explanation, upon verification from Public Notary before whom it purports to be sworn, was found to be a result of forgery. Aggrieved by the said order, the petitioner filed Writ Appeal No. 9601 of 2019, which was disposed of by this Court by order dated 9.7.2019 permitting the petitioner to place all relevant material before the authority and who would consider the same in the light of law laid down by the Supreme Court in Avtar Singh vs. Union of India and Others, 2016 (8) SCC 471 . In compliance of the said direction, the seventh respondent has now passed the impugned order dated 12.9.2019. While passing the said order, the seventh respondent has specifically considered the guidelines issued by the Supureme Court in paragraph 38 of the judgment in Avtar Singh's case (supra) and thereafter held that it was a case of deliberate concealment of material facts. Even a charge sheet was submitted in the said criminal case on 18.4.2011, much before the petitioner had filed application form for selection. The action taken against him is in consonance with the conditions of appointment wherein it was specifically provided that in case any thing is found incorrect in the declaration furnished, the appointment would be cancelled. 3. Learned counsel for the petitioner submitted that: (a) the petitioner was not aware of the pendency of the criminal case, as pairvi of the said case was being done by his brother Sanjeev, with whom, his relationship was strained. 3. Learned counsel for the petitioner submitted that: (a) the petitioner was not aware of the pendency of the criminal case, as pairvi of the said case was being done by his brother Sanjeev, with whom, his relationship was strained. (b) the petitioner being not aware of the pendency of the criminal case was entitled to benefit of the guidelines laid down in paragraph 38.8 and 38.4.1. (c) in the original affidavit got prepared by the petitioner on 10.10.2018, he duly mentioned about pendency of criminal case pending against him, but which affidavit was not accepted by the seventh respondent. The petitioner was coerced to make declaration in the prescribed format. The submission is that since it was prepared before hand, therefore, the petitioner could not alter it nor mention about pendency of the criminal case. (d) the incident was of a trivial nature; there were cross FIRs and consequently, a lenient view should have been taken. 4. Learned standing counsel, on the other hand, submitted that the petitioner is guilty of concealment of material facts. In fact, he tried to deceive the respondents in giving him appointment by deliberately suppressing the factum of pendency of criminal case against him. The offence is not of trivial nature, therefore, no sympathy could be shown to such a person. 5. The submissions made by learned counsel for the petitioner are palpably inconsistent with each other. While on one hand it is urged that the petitioner was not aware of the pendency of the criminal case, as his brother was doing pairavi in the said matter and he was informed by the counsel that criminal proceedings were no more pending, but on the other hand, it is sought to be contended that in one of the affidavits affirmed by the petitioner on 10.10.2018, but which was not accepted by the seventh respondent on the pretext that it was not on prescribed proforma, he duly mentioned about the pendency of the said criminal case. This itself is sufficient to reject the submissions made in this regard by learned counsel for the petitioner. 6. The affidavit allegedly got prepared by the petitioner on 10.10.2018, which according to him, was not accepted by the seventh respondent, mentions about pendency of Crime Case No. 56A/2011 u/s 147, 148, 149, 379, 504, 506, 427 IPC P.S. Dullahpur, district Ghazipur in the Court of Third Sessions Judge, Ghazipur. 6. The affidavit allegedly got prepared by the petitioner on 10.10.2018, which according to him, was not accepted by the seventh respondent, mentions about pendency of Crime Case No. 56A/2011 u/s 147, 148, 149, 379, 504, 506, 427 IPC P.S. Dullahpur, district Ghazipur in the Court of Third Sessions Judge, Ghazipur. The affidavit actually submitted by the petitioner before the authorities in paragraph 1 states that no criminal case is pending against the petitioner. The petitioner had also given an undertaking that in case the declaration is found to be false, it shall be open to the respondents to cancel his appointment and to take other legal proceedings as may be warranted. In the reply submitted by the petitioner in response to show cause notice, he took the stand that he never wanted to conceal any fact from the authorities. The affidavit on prescribed proforma contained certain incorrect information and under pressure he had to file it. The plea is on the face of it unacceptable. A perusal of the affidavit, which was filed by the petitioner before the authorities, reveals that the said affidavit was typed on a stamp paper. The name of the petitioner as well as of his father and his address are in same font as the remaining part of the affidavit. It is not the case of the petitioner that he had simply filled his name on any printed form made available to him on that date. The defence set up is wholly preposterous and bereft of any logic. It is interesting to note that the petitioner submitted another reply on 4.1.2019, which makes his case still worse. In the said reply, he alleged that the proforma supplied to him did not contain any column relating to pendency of criminal proceedings, on account of which information in this regard could not be furnished, while as noted above, in the affidavit filed by him, he stated in very first paragraph that no criminal case was pending against him and if the information furnished in this regard is found to be incorrect, the authorities shall be free to cancel his appointment. 7. It is noteworthy that the respondents sent copy of both the affidavits for verification to the Notary Sri Ambika Singh Yadav Advocate, before whom the affidavits purport to have been affirmed. 7. It is noteworthy that the respondents sent copy of both the affidavits for verification to the Notary Sri Ambika Singh Yadav Advocate, before whom the affidavits purport to have been affirmed. Sri Ambika Singh Yadav vide his letter dated 15.2.2019 informed the respondents that the affidavit dated 10.10.2018, which is written over stamp No. 56 AD 276687 (in prescribed format) was duly affirmed before him and is entered at serial no. 367 in his register. The other affidavit which the petitioner claimed that it was not accepted, affirmed on stamp No. 62 AD 802509, according to the Notary, did not bear his signature nor his stamp. In other words, the stamp and signature of the Notary on the said affidavit was a result of forgery. Learned counsel for the petitioner did not even attempt to assail the said finding in the order dated 3.6.2019. 8. The petitioner was well aware of the fact at the time of submitting application form and also when he gave affidavit regarding his character and antecedents that in case of suppression of any material fact or furnishing of wrong information, the appointment was liable to be cancelled. In such view of the matter, the irresistible conclusion is that the petitioner had deliberately suppressed correct information from the respondents and had rather furnished incorrect information with a deliberate attempt to procure appointment which otherwise would not have been given to him. The guidelines issued by the Supreme Court in paragraph 38.4.1 and 38.8, upon which reliance has been placed by learned counsel for the petitioner, are as follows:- “38.4.1. 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. 38.8. 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. I have gone through the First Information Report which was filed against the petitioner and 9 other persons. 38.8. 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. I have gone through the First Information Report which was filed against the petitioner and 9 other persons. The incident was in respect of certain dispute with the rival group of villagers in connection with making of rasta over sahan land. In the said incident, one Ram Janam S/o Kumar received grievous injuries to which he ultimately succumbed. There is also cross FIR from the side of the petitioner by his cousin brother. The Police, after investigation, has submitted a charge sheet against the petitioner and other co-accused persons and the trial is continuing on basis of charge sheet dated 18.4.2011. The incident was not of such nature that the petitioner may have forgotten the same nor trivial which could be ignored from consideration. The guideline issued by the Supreme Court in paragraph 38.4.1 would thus not apply. So far as the guideline laid down in paragraph 38.8, the same also would not apply as it is applicable only in respect of a candidate, who at the time of filling of the form, was not aware of the pendency of the criminal case and the Appointing Authority, after considering the seriousness of the crime, comes to the conclusion that the same will have no adverse impact. In the instant case, as noted above, the Appointing Authority has returned a clear cut finding that the petitioner had knowledge of the pendency of the criminal case which he deliberately concealed. The offence under which the petitioner is being proceeded against cannot be said to be of petty nature so as to extend the benefit of guidelines laid down in this regard. The Appointing Authority having considered the entire aspect and finding the petitioner not fit for job in view of his dishonest and dubious conduct, hardly any scope is left for this Court to come to the rescue of the petitioner. 10. Before parting, the Court is constrained to note that large number of such cases are coming before the Court where appointments are being cancelled on ground of furnishing of incorrect information by the candidates. 10. Before parting, the Court is constrained to note that large number of such cases are coming before the Court where appointments are being cancelled on ground of furnishing of incorrect information by the candidates. The growing tendency in young people to procure appointment even at the cost of furnishing wrong information is really a disturbing trend. The Court is sanguine that deliberate misstatement and concealment would be eschewed. Even Courts would then only be able to come to their rescue. 11. The petition lacks merit and dismissed with a cost of Rs. 25000/-.