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2022 DIGILAW 857 (ALL)

Pramod Kumar v. State of U. P.

2022-05-26

RAJEEV MISRA

body2022
JUDGMENT : Rajeev Misra, J. Heard Mr. Vijay Gautam, the learned Senior Counsel assisted by Miss Atipriya Gautam, the learned counsel for petitioner and the learned Standing Counsel representing State respondents. 2. Challenge in this writ petition is to the order dated 26.4.2022 passed by respondent 6 the Commandant 39th Battalion, P.A.C., Mirzapur, whereby selection/appointment of petitioner on the post of Constable Civil Police and Constable P.A.C. direct recruitment-2018-II has been cancelled. 3. Record shows that U.P. Police Recruitment and Promotion Board, Lucknow issued an advertisement dated 16.11.2018, Constable Civil Police and Constable P.A.C. Direct Recruitment-2018-II, whereby 31,307 posts of Constable Civil Police and 18208 posts of Constable in P.A.C. were advertised for direct recruitment. 4. Selections to the post so advertised were to be made in accordance with the procedure prescribed in U.P. Police Constables and Head Constables Service Rules 2015 as amended from time to time. 5. Pursuant to aforesaid advertisement, petitioner duly applied for the post of Constable. He appeared in the written examination and qualified the same. Accordingly, petitioner was declared successful, vide notification dated 20.11.2019. 6. Consequently, petitioner was called for next stage of selection i.e. D-Document Verification and physical standard test (DV/PSC). In response to above, petitioner duly appeared regarding aforesaid at Reserve Police Lines, Mirzapur. At this juncture, petitioner was required to submit a notary affidavit regarding his personal information. Petitioner, accordingly, submitted the required notary affidavit before the Competent Authority on 29.7.2021. Ultimately, petitioner was declared as a selected candidate for the post of Constable in P.A.C. under the General category. Petitioner was, thus, required to undergo training at 39th Battalion, P.A.C. Mirzapur. The entire papers pertaining to the petitioner were sent to respondent 6, the Commandant 39th Battalion, P.A.C., Mirzapur, District Mirzapur. However, respondent 6 did jot permit the petitioner to join the same. 7. Subsequently, respondent 6 Commandant 39th Battalion, P.A.C., Mirzapur, District Mirzapur, issued a show-cause notice dated 9.1.2022 directing the petitioner to show-cause why his selection/appointment on the post of Constable P.A.C. be not cancelled for concealing the information regarding the criminal case registered against him in the notary affidavit submitted by petitioner himself. 8. 7. Subsequently, respondent 6 Commandant 39th Battalion, P.A.C., Mirzapur, District Mirzapur, issued a show-cause notice dated 9.1.2022 directing the petitioner to show-cause why his selection/appointment on the post of Constable P.A.C. be not cancelled for concealing the information regarding the criminal case registered against him in the notary affidavit submitted by petitioner himself. 8. In response to the aforesaid show-cause notice dated 11.1.2022 petitioner submitted his reply/IInd Notary Affidavit dated 11.1.2022 stating therein that Case Crime No. 151 of 2018, under Sections 325, 323, 504 IPC was registered, in which the petitioner was also nominated as an accused. Parties to the dispute compromised. Ultimately, Court below acquitted the accused including the petitioner, vide judgement and order dated 13.11.2019 passed by Judicial Magistrate, Ghazipur, in Criminal Case No. 726 of 2018 (State v. Jitendra and 4 others), arising out of Case Crime No. 151 of 2018, under Sections 325, 323, 504 IPC, P.S. Mardah, District Ghazipur. However, irrespective of above, respondent 6 the Commandant 39th Battalion, P.A.C., Mirzapur, passed the impugned order dated 26.4.2022, whereby the candidature/selection of the petitioner on the post of Constable P.A.C. was cancelled primarily on the ground that the factum regarding the pendency of the criminal case against the petitioner has not been mentioned in the affidavit filed by petitioner. 9. Learned Senior Counsel for petitioner submits that order impugned in present writ petition is manifestly illegal and arbitrary. He has invited the attention of Court to the averments made in paragraphs 36 and 37 of the writ petition and on basis thereof he submits that parties in the criminal case had already compromised. Consequently, on the date of submission of notary affidavit by petitioner, no criminal case was pending against applicant at the stage of investigation or trail. 10. Attention of the Court was then invited to the judgement of Supreme 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, non disclosure of the same in the affidavit submitted by the selected candidate and subsequent acquittal of a candidate in the criminal case. Apex Court has also laid down certain guide lines in the matter. Paragraph 38 of the said judgement alongwith sub paragraphs are relevant for the controversy in hand. Apex Court has also laid down certain guide lines in the matter. Paragraph 38 of the said judgement alongwith 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. 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. 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. 38.7. 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.'' 11. On the aforesaid premise, learned Senior Counsel submits that in view of the directions contained in paragraphs 38.5 to 38.10 of the judgement in Avtar Singh (Supra), the competent authority was under a legal obligation to consider the suitability of the petitioner inspite of the fact that a criminal case was registered against him. However, no such exercise was undertaken by competent authority as is evident from the impugned order. It is thus urged that order impugned in present writ petition cannot be sustained and therefore liable to be quashed by this Court. However, no such exercise was undertaken by competent authority as is evident from the impugned order. It is thus urged that order impugned in present writ petition cannot be sustained and therefore liable to be quashed by this Court. 12. Learned Standing Counsel representing respondents 1 to 6 on the other hand has opposed the present writ petition. He, submits that in view of the fact that petitioner was involved in a criminal case, it cannot be said that petitioner has no criminal antecedents. Petitioner was selected for a disciplined force. Therefore, by virtue of the very nature of service, he was about to enter a person with criminal antecedents cannot be inducted in service. As such no illegality has been committed by the authority concerned in rejecting the candidature/selection of the petitioner. He, therefore, submits that present writ petition is liable to be dismissed. 13. Having heard the learned Senior counsel for petitioner, the learned Standing counsel for respondents and upon perusal of record as well as the judgement of Apex Court in Avtar Singh (Supra), this Court finds that it was obligatory upon competent authority to decide the impact of the criminal case registered against petitioner on the suitability of petitioner for offering him employment in the Police force. No exercise in this regard has been undertaken by competent authority. To the contrary competent authority has recorded a bald conclusion that on account of the criminal case having been registered against applicant notary affidavit was submitted on 29.7.2021 reflects petitioner had already been acquitted in Criminal Case, vide judgement and order dated 13.11.2019. As such, on the date of submission of Notary Affidavit no criminal case was pending against petitioner. He cannot be offered appointment in Police force. Petitioner has already been acquitted in criminal case. Moreover, the said fact having been concealed in the notary affidavit submitted by petitioner. Apart from above the criminal case was decided on the basis of compromise. As such, there was no criminal case pending against petitioner. Moreover, the criminal case registered against petitioner is for an offence under Sections 323, 325, 504 IPC. Same does not fall in the category of moral turpitude or crime against State but of a trivial nature. It was simply a private dispute. Competent authority has not adverted to aforesaid aspect of the matter either. 14. Moreover, the criminal case registered against petitioner is for an offence under Sections 323, 325, 504 IPC. Same does not fall in the category of moral turpitude or crime against State but of a trivial nature. It was simply a private dispute. Competent authority has not adverted to aforesaid aspect of the matter either. 14. In view of above, the present writ petition succeeds and is allowed. The impugned order dated 26.4.2022, passed by respondent-6 the Commandant 39th Bn. P.A.C. Mirzapur, District Mirzapur, is hereby quashed. 15. The matter shall stand remanded to the competent authority who shall pass a fresh order in the light of observation made herein above as well as the judgement of Apex Court In Avtar Singh (Supra) within a period of three weeks from the date of presentation of a certified copy of this order. 16. No costs.