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2022 DIGILAW 814 (ALL)

Anil Kumar v. State of U. P.

2022-05-20

RAJEEV MISRA

body2022
JUDGMENT : Rajeev Misra, J. Heard Miss. Vallabhi Shukla, the learned counsel for petitioner and the learned Standing Counsel for respondents. 2. Challenge in this writ petition is to the order dated 18.2.2022 passed by respondent-3, Inspector General of Police, P.A.C., Lucknow, U.P. whereby promotion granted to the petitioner on the post of Head Constable has been cancelled. 3. Present writ petition came up for admission on 6.5.2022 and this Court passed the following order: ''Learned Standing Counsel prays for and is granted two weeks' time to obtain instructions in the matter. Put up as fresh on 20.5.2022. Order Date : 6.5.2022'' 4. Pursuant to above order dated 6.5.2022, the learned standing counsel has not received instructions. 5. With the consent of the parties, present writ petition is being finally disposed of at the admission stage itself. 6. Record shows that petitioner was initially appointed on the post of Constable. Thereafter, petitioner was promoted on the post Head Constable on 29.8.2006. Promotion granted to the petitioner was on interim basis i.e. till regular selections are made or till the disposal of sealed cover of such candidates who have been considered for regular selection. The Inspector General of Police, P.A.C., U.P. Lucknow issued letter dated 16.11.2021, whereby names of such Constables, who were appointed upto 29.8.2006 were invited for considering their promotions on the post of Head Constables for the Selection Year-2020. Subsequent to above, the Department has prepared a Seniority List wherein the name of petitioner finds mention at Serial No. 1510. While aforesaid exercise was undergoing, the Head Quarter Provincial Arms Constabulary, issued a letter dated 11.2.2021 whereby Guide Lines regarding promotion to the post of Head Constables from the post of Constables were formulated. As per the said Guide Lines, the service record of the last ten years of service of a candidate was to be taken into consideration. Another criteria that was provided was that no criminal case should have been registered against the prospective candidate. The name of petitioner was considered by the Recruitment Board and ultimately, petitioner was promoted on the post of Head Constable vide order dated 17.2.2022 passed by Inspector General of Police, P.A.C. U.P., Lucknow. While the petitioner was working on the promotional post, Case Crime No. 959 of 2021 under Sections 147, 323, 505, 506 I.P.C. Police Station-Civil Lines, District-Moradabad came to be registered against petitioner. While the petitioner was working on the promotional post, Case Crime No. 959 of 2021 under Sections 147, 323, 505, 506 I.P.C. Police Station-Civil Lines, District-Moradabad came to be registered against petitioner. On account of above, respondent-3, Inspector General of Police, P.A.C., Lucknow passed the order dated 17.2.2022 whereby promotion granted to the petitioner on the post of Head Constable has been cancelled. 7. Feeling aggrieved by above, petitioner has now approached this Court by means of present writ petition. 8. Learned counsel for petitioner submits that promotion granted to petitioner was substantive in nature and not ad-hoc or temporary, therefore, the said benefit could not be withdrawn without affording notice and opportunity of hearing to the petitioner. It is also contended that order impugned in present writ petition has serious civil consequences and therefore, respondent-3 was duty bound to afford notice and opportunity of hearing to the petitioner. The failure on the part of respondent-3 in not affording any notice or opportunity of hearing to the petitioner has caused serious prejudice to the petitioner inasmuch as petitioner has been deprived of an opportunity to plead his case before respondent-3 prior to the passing of impugned order. It is thus urged that since order impugned in present writ petition has been passed in complete violation of principles of natural justice, same is liable to be quashed by this Court. 9. Learned counsel for petitioner has then invited the attention of Court to the judgment of Apex Court in Avtar Singh v. Union of Inidia and others, (2016) 8 SCC 471 , wherein Court has dealt with the issues regarding the effect of a criminal case pending against selected candidate and non disclosure of same in the affidavit submitted by the selected candidate. Apex Court has also laid down certain guide lines in the matter. Paragraph 38 of the said judgment along with it's sub paragraphs are relevant for the controversy in hand. As such same are extracted herein under : ''38.We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus: 38.1.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. 38.2. In view of the aforesaid discussion, we summarise our conclusion thus: 38.1.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. 38.2. 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. 38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.4.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 recourses appropriate to the case may be adopted: 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. 38.4.2.Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 38.4.3.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. 38.5.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. 38.6.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. 38.6.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. 38.7.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 appointment of a person against whom multiple criminal cases were pending may not be proper. 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. 38.9.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. 38.10.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 cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for. 38.11.Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.'' 10. On the basis of above, the learned counsel for petitioner contends that no exercise has been undertaken by respondent-3, Inspector General of Police, P.A.C. U.P. Lucknow in the light of above. According to learned counsel for petitioner, mere pendency of a criminal case is by itself insufficient to withdraw the promotion granted to a member of the Police Force.Respondent-3 ought to have considered the impact of the pending criminal case upon the services of the petitioner. According to learned counsel for petitioner, the offence complained is of a trivial nature not amounting to moral turpitude or a serious offence. I 11. It is lastly contended that punishment awarded to petitioner is behors the provisions of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. 12. According to learned counsel for petitioner, the offence complained is of a trivial nature not amounting to moral turpitude or a serious offence. I 11. It is lastly contended that punishment awarded to petitioner is behors the provisions of U.P. Police Officers of Subordinate Ranks (Punishment and Appeal) Rules, 1991. 12. Learned Standing Counsel on the other hand has opposed the present writ petition. He submits that order impugned in present writ petition is perfectly just and legal. Petitioner is a member of a disciplined force. Moreover, charge-sheet dated 27.11.2021 has already been submitted before the Court in aforementioned case crime number registered against petitioner. As such, it cannot be said that prosecution case is false. On the aforesaid premise, learned A.G.A. submits that order impugned in present writ petition is not liable to be interfered with and therefore, the writ petition is liable to be dismissed. 13. Having heard the learned counsel for petitioner, the learned Standing Counsel and upon perusal of record, the Court finds that petitioner was granted promotion on the post of Head Constable on stop-gap basis as recommendation for promotion in favour of 14 candidates was placed in Sealed Cover. As such, the promotion granted to petitioner was not a substantive promotion, therefore, the Rules of 1991 referred to above do not get attracted. 14. However, the Court finds from the perusal of impugned order that no notice or opportunity of hearing was afforded to petitioner prior to the passing of impugned order dated 18.2.2022. Admittedly, by means of impugned order, a benefit that had already been granted to petitioner was sought to be withdrawn. As such order impugned has serious civil consequences. The failure on the part of respondent-3 in not affording any notice or opportunity of hearing to petitioner has cause serious prejudice to petitioner. As such, order impugned has been passed in complete violation of the principles of natural justice. 15. No attempt has been made by respondent-3 to consider the pendency of criminal case against petitioner in the light of observations made by Apex Court Avtar Singh (supra). Respondent -3 was under a legal obligation to consider the case of petitioner in the light of aforesaid. Failure on the part of respondent-3 in not complying with direction issued by Apex Court in aforementioned judgment amounts to ignorance of a judicial mandate, which cannot be sustained in any view of the matter. Respondent -3 was under a legal obligation to consider the case of petitioner in the light of aforesaid. Failure on the part of respondent-3 in not complying with direction issued by Apex Court in aforementioned judgment amounts to ignorance of a judicial mandate, which cannot be sustained in any view of the matter. 16. For the facts and reasons noted above, the present writ petition succeeds and is liable to be allowed. 17. Accordingly, present writ petition is allowed. 18. The impugned order dated 18.2.2022 passed by respondent-3, Inspector General of Police, P.A.C., U.P., Lucknow is hereby quashed. 19. However, it shall be open to Respondent-3, Inspector General of Police, P.A.C., U.P., Lucknow to pass a fresh order in the light of observations made herein above. Petition Allowed.