JUDGMENT Heard Shri Santosh Kumar Gupta, learned Counsel for the appellant and learned Standing Counsel for the State/ respondents. 2. This intra Court appeal under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 has been preferred by the appellant, Harish Chandra Pathak, assailing the judgement and order dated 28.03.2023 passed by the learned Single Judge, by which Writ-A No. 2495 of 2023 preferred by the writ petitioner/ appellant has been dismissed and liberty has been granted to the writ petitioner/appellant to apply for his reinstatement in service, in case he is acquitted of the offence and in that regard it has also been directed that the authority may take a view as per the relevant Government Order. 3. The brief facts of the case culled out from the record are that on 10.07.1990, the appellant was enrolled/engaged as Home Guard and while working as such, an F.I.R., bearing Case Crime No. 1049 of 2015, under Sections 419, 420, 467, 468 and 471 I.P.C., was registered against him at police station Kotwali Utraula, district Balrampur. However, he was granted bail in the aforesaid criminal case by the learned Single Judge vide order dated 14.06.2016 passed in Bail No. 3216 of 2016. 4. By order dated 09.01.2020, the District Commandant (Home Guard), District Balrampur, had cancelled the enrollment of the appellant as Home Guard on the ground of pendency of the aforesaid criminal case. Aggrieved by the aforesaid order dated 09.01.2020, the appellant preferred an appeal, which was rejected vide order dated 24.04.2020. 5. The appellant, being aggrieved by the aforesaid two orders i.e. dated 09.01.2020 and 24.04.2020, preferred Writ Petition No. 21900 (S/S) of 2020 : Harish Chandra Pathak v. State of U.P. and others, which was disposed of by the learned Single Judge vide order dated 12.01.2023, granting liberty to the appellant to make a fresh detailed representation to District Commandant (Home Guard), Balrampur, who was required to consider and decide the same in accordance with law by a reasoned and speaking order. 6. Pursuant to the aforesaid order dated 12.01.2023, the appellant has preferred a representation dated 17.01.2023, which was rejected vide order dated 21.02.2023. Thereafter, the appellant preferred Writ-A No. 2495 of 2023, challenging the aforesaid orders dated 21.02.2023, 24.04.2020 and 09.01.2020. The learned Single Judge dismissed the aforesaid writ petition by means of order dated 28.03.2023, which is impugned in the instant special appeal. Thereafter, the appellant preferred Writ-A No. 2495 of 2023, challenging the aforesaid orders dated 21.02.2023, 24.04.2020 and 09.01.2020. The learned Single Judge dismissed the aforesaid writ petition by means of order dated 28.03.2023, which is impugned in the instant special appeal. 7. The contention of the learned Counsel for the appellant is that the denial of engagement to the appellant by means of orders dated 09.01.2020, 24.04.2020 and 21.02.2023, is bad in law for two reasons; firstly, that a plain reading of the FIR merely discloses an offence of trivial nature and was an outcome of the family dispute in which civil litigation is also pending; secondly, he argues that seeing the allegations levelled against the appellant, his case ought to have been considered in the light of the judgement of the Hon'ble Supreme Court in the case of Avatar Singh v. Union of India and others : (2016) 8 SCC 471 . 8. Inviting our attention to Clause 9 (ka) of the Government Order dated 02.12.2016, learned Counsel for the appellant has argued that clause 9 (ka) of the Government Order dated 02.12.2016 clearly provides that representation regarding reinstatement of the Home Guard shall not be considered, if criminal case is registered against Home Guard and on filing charge-sheet before the Court, the case is pending against him in Court. His submission is that in the instant case, the representation of the appellant regarding his engagement as Home Guard was rejected by means of the order dated 09.01.2020 and at that relevant time, the appellant was bailed out vide order dated 14.06.2016 and no charge-sheet has been submitted before the Court concerned, hence the order dated 24.04.2020 rejecting the representation of the appellant regarding engagement as Home Guard is itself contrary to the Government Order dated 02.12.2016. He also argued that the aforesaid plea has been raised by the appellant in his subsequent representation filed by him in pursuance of the order of the learned Single Judge dated 12.01.2023 (supra) but the same has not been properly considerd nor the relevant Government Orders have been adhered to, rather in a cursory manner claim has been rejected by means of the order dated 21.02.2023. 9. 9. To stengthen his submission, learned Counsel for the appellant has placed reliance upon paragraph-27 of the judgement of the Apex Court in State of Gujarat and another v. Suryakant Chunilal Shah : (1999) 1 SCC 529 , wherein it has been held that the involvement of a person in a criminal case does not mean that he is guilty as he is still to be tried in a Court of law and the truth has to be found out ultimately by the Court after recording of evidence and examining the various incriminating material against the said person. But before that stage is reached, it would be highly improper to deprive a person of his livelihood merely on the basis of his alleged involvement. 10. Learned Counsel for the appellant has further argued that while passing the order rejecting the representation of the appellant, the respondent has not considered his explanation, wherein he took a specific stand that he was falsely implicated in the criminal case. He argued that the learned Single Judge has not considered the aforeasid aspect of the matter and erred in dismissing the writ petition preferred by the appellant, hence the impugned order passed by the learned Single Judge is liable to be set-aside. 11. Per contra, learned Standing Counsel has opposed the prayers made in the Special Appeal. However, he is not in position to dispute that the impugned orders rejecting the explanation of the appellant by holding it to be unsatisfactory, are without recording reasons thereof. He also could not dispute that there is no consideration of the guidelines laid down by the Hon'ble Supreme Court in Avtar Singh (Supra) as well as the Government Order dated 02.12.2016. 12. We have considered the respective submissions advanced by the learned Counsel representing the respective parties and have also perused the records available before us on this intra Court appeal. 13. On 02.12.2016, a Government Order was issued relating to disposal of the representation of the Home Guard regarding his/ her re-engagement. 12. We have considered the respective submissions advanced by the learned Counsel representing the respective parties and have also perused the records available before us on this intra Court appeal. 13. On 02.12.2016, a Government Order was issued relating to disposal of the representation of the Home Guard regarding his/ her re-engagement. Clause 9 of the aforesaid Government Order dated 02.12.2016 reads as under :- ^^9- fuEufyf[kr dkj.kksa ls fu"dkflr fd;s x;s gksexkMZl Lo;alsodksa ds cgkyh laca/kh izR;kosnuksa ij fopkj ugha fd;k tk;sxkA ¼d½ vijkf/kd ekeyksa esa vfHk;ksx iathd`r gksus rFkk vkjksi i= ek0 U;k;ky; esa nkf[ky gksus ij eqdnek ek0 U;k;y; esa yafcr gksus dh fLFkfr esaA ¼[k½ ek0 U;k;ky; }kjk ltk;kQ;rk izdj.kksa esa A ¼x½ gksexkMZl vf/kfu;e dh /kkjk&3 ¼1½ ds varxZr vuq'kklughurk dk vkjksi tkap esa izekf.kr ik;s tkus ij fd;s x;s fu"dklu ds izdj.kksa esaA ¼?k½ Hkz"Vkpkj dk vkjksi tkap esa izekf.kr ik;s tkus ij fd;s x;s fu"dklu ds izdj.kksa esaA ¼³½ vokaNuh; xfrfof/k;ksa esa lafyIrrk@nqjkpj.k@uSfrd v?kerk dk vkjksi fl) gksus dh fLFkfr esaA 14. From perusal of the aforesaid clause 9 (ka) what we find is that on lodging of the criminal case and on filing of charge-sheet, if the case is pending in the Court, then, the representation of such Home Guard shall not be considered. In the instant case, what we find from the record is that though a criminal case has been registered against the appellant but no charge-sheet has yet been filed before the competent Court and the allegations made in the aforesaid criminal case are still under investigation. Futher more, the appellant is already on bail. Thus, non consideration of the representation of the appellant is not substantiated. 15. A perusal of the impugned orders dated 21.02.2023, 24.04.2020 and 09.01.2020, rejecting the claim of the appellant to reengage him on the post of Home Guard, reveals that these orders purport to deny the benefit of the enrollement as Home Guard to the appellant only on the ground of pendency of the criminal case. The approach of the respondent is clearly against the spirit of the mandate of the Hon'ble Supreme Court in the case Avatar Singh (supra) which provides that while considering the claim, the authority concerned should see as to what would be the effect of the nature of offence on the services to be performed by the person. The approach of the respondent is clearly against the spirit of the mandate of the Hon'ble Supreme Court in the case Avatar Singh (supra) which provides that while considering the claim, the authority concerned should see as to what would be the effect of the nature of offence on the services to be performed by the person. Relevant paragraphs, in this regard, which contain the principles as laid down in the case of Avtar Singh (supra) are being reproduced here in above :- "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 re-courses 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. 38.4.2 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. 38.7 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." 16. 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." 16. On a plain reading of the orders dated 21.02.2023, 24.04.2020 and 09.01.2020, which have been impugned in the writ petition, it is clear that the claim of the appellant has not been considered in the light of the judgement in the case of Avtar Singh (supra). The learned Single Judge also appears to have lost sight of the aforesaid ratio laid down by the Apex Court in Avtar Singh (supra), in the light of Government Order dated 02.12.2016. 17. For the aforesaid reasons, the order dated 28.3.2023 passed by the learned Single Judge as well as orders dated 21.02.2023, 24.04.2020 and 09.01.2020 are hereby set-aside. The respondents are directed to re-engage the appellant in service as Home Guard forthwith. However, it shall be open to the authority concerned to take such other fresh action as may be contemplated under Government Order dated 02.12.2016, keeping in mind the judgement of the Apex Court in Avtar Singh (supra), in case any such action is warranted in law in future. 18. It is made clear that this Court has not expressed any opinion on the merits or otherwise of the allegations contained in the F.I.R. lodged against the appellant, which shall have its own consequences, in accordance with law. 19. The special appeal is, accordingly, allowed.