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2023 DIGILAW 814 (ALL)

Umesh Chand v. State of U. P.

2023-03-24

SUNITA AGARWAL, VIKAS BUDHWAR

body2023
JUDGMENT : By the Court.-Heard Sri Vinod Kumar Mishra, learned counsel for the appellant and Sri A.K. Roy, Additional Chief Standing Counsel who appears for the State-respondents. 2. This intra-Court appeal is against the judgment and order of the learned Single Judge dated 8.7.2022 passed in Writ -A No. 6513 of 2022 (Umesh Chand v. Sate of U.P. and 3 others) whereby the writ petition of the writ petitioner was dismissed. 3. The case of the writ petitioner before the learned Single Judge was that the advertisement was published by the Additional Secretary (Recruitment), Uttar Pradesh Police Recruitment and Promotion Board, U.P. at Lucknow on 16.11.2018 for filling up the post of Constable Civil Police and Constable PAC, Direct Recruitment October-2018-II. A total number of as many as 49,568 posts of Constables in Civil Police and Constables in PAC were advertised, break up whereof was 31360 posts was earmarked for Constable Civil Police and 18,208 posts for Constable in PAC. Advertisement itself provided 19.11.2018, as the opening date for submission of application form, 8.12.2018 as the last date for submission of the application form through online mode. It is the case of the writ petitioner that he being eligible and qualified in all respects applied online under OBC (M) category and was assigned Registration No. 100668830 and allotted Roll No. 1292100375. An admit card was issued to the writ petitioner requiring him to appear in the written test which was scheduled to be conducted on 27.1.2019 and the petitioner after clearing the written test was declared as qualified in written test. Thereafter the petitioner claims to have cleared the Physical Efficiency Test (PET) and a provisional admit card was issued for DV/PST (Document Verification /Physical Standard Test) and was required to appear for document verification on 12.12.2019 at Reserve Police Line, Gorakhpur. In the list of successful candidates the name of the writ petitioner found placed at serial No. 11288. The petitioner claims to have underwent medical examination conducted on 23.8.2021. The petitioner further claims to have cleared the medical examination and thereafter merit list was prepared wherein the petitioner was shown to be selected while securing 179.0641 marks under Constable PAC, OBC (Male category) with rank 73304. Despite the fact that the similarly situated applicants were sent for training but the petitioner was not required to undergo training. The petitioner further claims to have cleared the medical examination and thereafter merit list was prepared wherein the petitioner was shown to be selected while securing 179.0641 marks under Constable PAC, OBC (Male category) with rank 73304. Despite the fact that the similarly situated applicants were sent for training but the petitioner was not required to undergo training. Faced with the circumstances, the writ petitioner preferred Writ-A No. 2805 of 2022 (Umesh Chand v. State of U.P. and 3 others) which came to be dismissed as withdrawn on 8.3.2022. On 2.2.2022, an order was passed by fourth respondent, the Commandant, 30th Battalion, PAC Gonda whereby the claim of the writ petitioner for being sent for training and issuance of the appointment order was negated on the ground that criminal proceeding was pending pursuant to the submission of charge-sheet and cognizance whereof has been taken by Criminal Court in Case No. 2517/2018 (State v. Kapil Dev) arising out of Case Crime No. 317 of 2017, under Section 148, 323, 504, 325 IPC. 4. Challenging the order dated 2.2.2022 passed by the fourth respondent, the Commandant, 30th Battalion, PAC Gonda the writ petitioner filed Writ-A No. 6513 of 2022 (Umesh Chand v. State of U.P. and 3 others) which came to be dismissed by the learned Single Judge vide judgment and the order dated 8.7.2022. 5. Aggrieved against the order of the learned Single Judge dated 8.7.2022 passed in Writ-A No. 6513 of 2022 the appellant/writ petitioner has filed the present intra-Court appeal. 6. The learned counsel for the appellant/writ petitioner in support of appeal has submitted that the learned Single Judge has erred in law in dismissing the challenge made to the order dated 2.2.2022 of the fourth respondent, the Commandant, 30th Battalion, PAC Gonda in as much as mere pendency of the criminal case would not be a factor germane to denude the appellant/writ petitioner of the fruits which he is even otherwise entitled, post selection. Elaborating the submission the learned counsel for the writ petitioner has submitted that here in the present case the factum regarding the lodging of the FIR in the proceedings in Criminal Case No. 0317 of 2017 under Section 147, 148, 323, 504, 325 IPC and taking of the cognizance of the same post submission of the charge-sheet in Criminal Case No. 2517 of 2018 (State v. Kapil Dev) was itself disclosed in the application form and the respondent herein being oblivious of the said fact had allowed the appellant/writ petitioner to appear not only in the written examination but also physical examination and even after document verification, at the stage when the writ petitioner was to be sent for training and being appointed his candidature has been canceled. Learned counsel for the writ petitioner further submits that if the stand of the respondents/prosecution is taken into face value then this much would emerge that the offences sought to be alleged are relatable to the dispute which had occurred during the panchayat meeting wherein the appellant/writ petitioner is alleged to have participated in a fight while taking the side of his father. The submission of the learned counsel for the appellant/writ petitioner is that first of all mere pendency of a criminal case/trial would not be sole determinative factor to negate the claim of the writ petitioner for being appointed on the post of Constable particularly when the entire allegations referable to the offences alleged to have committed by the appellant/writ petitioner is of a trivial nature. Reliance has also been placed upon the annexure-7 page 92 of the paper book, Government Order dated 28.4.1958 addressed to all the Head of the Department and Principal, Head of Offices Uttar Pradesh, Commissioners of all the Divisions and all District Officers containing the Subject ''Verification of the characters and antecedents of Government Servants before their appointment,'' so as to contend that even in the case of a conviction, the same by itself does not involve the refusal of certificate of good character as the circumstances of conviction should also be taken into account and if they involved no moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means the Government then mere conviction need not be regarded as disqualification. Further reliance has been placed upon by the Learned counsel for the appellant upon the judgment in the case of Avtar Singh v. Union of India and others, (2016) 8 SCC 471 and Pramod Singh Kirar v. State of Madhya Pradesh and others, Civil Appeal Nos. 8934-8935 of 2022 decided on 2.12.2022. 7. Countering the said submissions, the learned Additional Chief Standing Counsel, who appears for the State-respondents has submitted that the judgment and the order of the learned Single Judge which is under challenge in the present proceeding is not liable to be interfered as the post in question against which relief of appointment is being sought is of a disciplined force wherein possession of an unblemished character is of paramount consideration and here in the present case once it was found that a FIR has been lodged against the writ petitioner and criminal trial is pending, post submission of the charge-sheet then the appointment authority while taking a conscious decision has found the writ petitioner not to be suitable for being considered for grant of appointment. It is further sought to be submitted by the learned Standing Counsel that once factum of the loss of confidence is there then it would not be proper and justified to direct the State-respondents to grant appointment to the writ petitioner particularly when it is the admitted case of the writ petitioner that criminal trial is pending against him. Additionally, it has to be sought to be argued that disclosure of the criminal case in the application form by the writ petitioner is a one thing but the same cannot be a sole ground to accord issuance of the appointment order to the appellant/writ petitioner particularly when after considering the case of the writ petitioner in the light of the pendency of the criminal case a conscious decision has been taken not to appoint the writ petitioner. Reliance has also been placed upon the judgment in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya, Civil Appeal Nos. Reliance has also been placed upon the judgment in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited and another v. Anil Kanwariya, Civil Appeal Nos. 5743-5744 of 2021 decided on 17.9.2021, Union of India and others v. Methu Meda, Civil Appeal No. 6238 of 2021 decided on 6.10.2021, State of Rajasthan and others v. Chetan Jeff, AIR 2022 (SC) 2274 , Satish Chandra Yadav v. Union of India and others, Civil Appeal No. 6955 of 2022 decided on 26.9.2022, Imtiyaz Ahmad Malla v. State of Jammu & Kashmir and others, Special Leave Petition (C) No. 678 of 2021 decided on 28.2.2023. 8. When the matter was placed before this Court on 22.11.2022 then this Court required the Additional Chief Standing Counsel to seek instructions and to file an Affidavit of a responsible Officer of the Police Department disclosing specifically whether the Police Department as a rule is rejecting the candidature for recruitment of the candidate, the moment he/she is found implicated in criminal case or there is method to verify the suitability of the candidate for the post irrespective of his implication in criminal case and make appointment subject to the decision of the criminal case. The State-respondents were also to satisfy the fact that if the Police Department is following the uniform procedure of rejecting of all candidates having criminal antecedents other than a trivial case then they were to disclose whether there was any guidelines issued to determine whether the case is of trivial nature or not. 9. Pursuant to the order of the Court, a supplementary counter-affidavit was filed of the Deputy Superintendent of Police, Police Recruitment and Promotion Board, U.P., Lucknow. 10. We have heard the Learned counsel for the parties at length and have peruse the record carefully. 11. The parties before us are in agreement that pursuant to an advertisement dated 16.11.2018 of the Uttar Pradesh Police Recruitment and Promotion, U.P. at Lucknow an exercise was undertaken for filling up the post of Constables, Civil Police and Constables PAC, Direct Recruitment October-2018-II. 11. The parties before us are in agreement that pursuant to an advertisement dated 16.11.2018 of the Uttar Pradesh Police Recruitment and Promotion, U.P. at Lucknow an exercise was undertaken for filling up the post of Constables, Civil Police and Constables PAC, Direct Recruitment October-2018-II. It is not in dispute that the appellant/writ petitioner applied in pursuance of the said advertisement duly disclosing the factum of the lodging of the F.I.R. on 8.4.2017, in Case Crime No. 0317 of 2017 and also submission of charge-sheet before the concerned criminal Court on 8.5.2017 in Criminal Case No. 2517 of 2018 (State v. Kapil Dev) under Section 147, 148, 323, 504, 325 IPC. Allegations in the FIR in question reveals that the writ petitioner, his father and other four accused during the course of panchayat proceeding indulged in a fight with the other fraction taking side of his father. It has also not disputed that on the face of the disclosure of the aforesaid criminal proceeding in the application form, the writ petitioner was required to appear in the written test, physical efficiency test and medical examination but subsequently he was not sent for training on the pretext that a criminal case is pending against him. 12. The procedure and the manner according to which the selection is to be made on the said post is provided by the rules, namely, the Uttar Pradesh Police Constable and Head Constable Service Rules, 2015 and amended in the year 2017 enacted in exercise of the power under clause (c) of sub-section (2) of Section 46 read with sub-section (3) of the Police Act, 1861. Rule 16 of the above noted rules provides as under : ''16. Character Verification shall be completed under the supervision of appointing authority before issuing of appointment letter and before sending the candidates for training. Ordinarily character verification shall be completed within a month. On adverse fact coming to light during character verification of any candidate, he shall be declared unfit by the appointing authority and such vacancies shall be carried forward for next selection.'' 13. Ordinarily character verification shall be completed within a month. On adverse fact coming to light during character verification of any candidate, he shall be declared unfit by the appointing authority and such vacancies shall be carried forward for next selection.'' 13. Though Rule 16 provides for the character verification before issuance of the appointment order and also before sending the candidate for training and on an adverse fact coming to light during character verification of a candidate he/she shall be declared unfit by the appointing authority and such vacancy shall be carried forward for next selection, but no criteria or procedure is provided in the said rules in order to determine as to when and under which parameter a candidate is to be declared unfit. 14. The learned Counsel for the appellant has invited the attention towards Government Order dated 28.2.1958 providing for the verification of the character and antecedents of Government servant before their first appointment. Submission of the learned Counsel for the appellant is that in view of the note appended to para 3 (a) of the Government Order in question a conviction need not by itself involve the refusal of a certificate of a good character. In nutshell the argument is that here in the present case there is no order of conviction but only criminal case has been lodged that to not of moral turpitude or heinous crime but assault made in the Panchayat meeting while taking side of his father by the writ petitioner against the other rival fraction. It further sought to be argued that the fourth respondent, the Commandant, 30th Battalion, PAC Gonda being the appointing authority has not applied its mind as to whether such types of offenses would be a ground to negate the claim of the writ petitioner for training and appointment. 15. Though, a specific query was made to the learned Additional Chief Standing Counsel as to whether there exits any other rule or guideline for rejecting the candidature for recruitment of a candidate the moment he is found implicated in criminal case, however, the learned Additional Chief Standing Counsel while inviting attention of the Court towards supplementary counter-affidavit has only referred to Rule 16 of the 2015 Rules so as to contend that when adverse is found in the character of a candidate then he is declared unfit. There is no assertion in the supplementary counter-affidavit that the Government Order dated 28.4.1958 has either been superseded or it is not applicable. In view of the stand taken by the State-respondents as well as in absence of any provisions of law being pointed before us, we have no option but to presume that the Government Order dated 28.4.1958 is occupying the field providing for the modalities of verification of character of antecedents of Government servants before their fresh appointment. Once the Government Order dated 28.4.1958 provides that mere conviction cannot be a ground to withhold appointment then in these circumstances the case of the writ petitioner is to be accorded fresh consideration particularly in view of the fact that there was a complete and full disclosure of the pendency of the criminal case and also the additional fact that he has not been convicted by criminal Court. 16. In Avtar Singh (supra) the Hon'ble Apex Court in para 38.3 and 38.6 has observed as under: ''38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.6. 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.'' 17. So far as the judgment in the case of Pramod Singh Kirar (supra) is concerned, the said case also reiterates the law in the case of Avtar Singh (supra). 18. Judgments relied upon by the learned Chief Standing Counsel in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited (supra) is a case wherein the employee did not disclose about the factum of pendency of a criminal case which even in fact dis-entitled him to be accorded appointment though he was subsequently acquitted as the question of trust intervened and the employer was held to be legally justified in not continuing the employee in employment. Here in the present case there is no allegation of non-disclosure or concealment, thus the judgment in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited (supra) is distinguishable. So far as the case of Methu Meda (supra) is concerned the same is relatable to import and impact of acquittal on the basis of benefit of doubt. Here in the present case there is no allegation of non-disclosure or concealment, thus the judgment in the case of Rajasthan Rajya Vidyut Prasaran Nigam Limited (supra) is distinguishable. So far as the case of Methu Meda (supra) is concerned the same is relatable to import and impact of acquittal on the basis of benefit of doubt. It was held that for claiming appointment, in a criminal case the acquittal should be honorable and not the benefit of doubt. Similarly the case of Chetan Jeff (supra) is also distinguishable on the facts, particularly when in the said case there was concealment and material suppression of pendency of criminal case, which is lacking the present case at hand. With regard to reliance placed upon by the learned Additional Chief Standing Counsel in the case of Satish Chandra Yadav (supra) is concerned, the same is also not applicable in the present case as in the said case the Hon'ble Apex Court held that acquittal in a criminal case could not automatically make entitled a candidate for appointment to a post as still it would not be open to the employer to consider antecedents whether the candidate concerned is suitable and fit for appointment to the post. The judgment in the case of Imtiyaz Ahmad Malla (supra) is not also applicable as it was a case wherein the candidate suppressed the material fact of pendency of the criminal case. 19. In view of the mandate of the Hon'ble Supreme Court in the case of Avtar Singh (supra), the appointing authority is enjoined to take into consideration the Government Order/instructions/rules applicable to an employee, at the time of taking a decision as to whether mere pendency of a criminal case would be a ground to negate the claim of a candidate for being selected and appointed in public service. The said consideration is absolutely lacking in the order impugned before the writ Court and further the Government Order dated 21.4.1958 providing for the modalities for verification of character and antecedents of the Government servants before their first appointment had also not been looked into, thus in the firm opinion of the Court, the matter needs to be re-considered by the appointing authority afresh in the background of the facts available in the case of the writ petitioner. 20. 20. Accordingly, the present intra-Court appeal is allowed, the judgment and the order dated 8.7.2022 of the learned Single Judge as well as the order dated 2.4.2022 passed by fourth respondent, Commandant 30th Battalion, PAC Gonda are set aside. The matter is remitted back to the fourth respondent, Commandant 30th Battalion, PAC Gonda to consider the candidature of the appellant/writ petitioner afresh within a period of two months from the date of production of the certified copy of the order in the light of the observations made in the judgment in question as well as Avtar Singh (supra) and Government Order dated 28.4.1958.