By means of the present writ petition, the petitioner is seeking a writ of mandamus commanding the respondent nos. 1 and 2 to admit the petitioner in the batch selected on 2.8.1994 as Police P.A.C. Constables and direct to join as such.
The brief facts of the case are that in pursuance of the advertisement published in the month of May-June, 1994 for the recruitment of the Police/P.A.C. Constables the petitioner applied. On 2.8.1994 the petitioner underwent various tests in the Police Lines, Farrukhabad, namely, written test, measurement test, medical test and interview. The petitioner cleared all the tests and has been called upon by the 37, P.A.C. Vahini (Task Force) Bareilly between 6.9.1994 to 11.9.1994. It is the contention of the petitioner that out of the selected candidates, 80 have been asked to join the 47 P.A.C. Vahini (Task Force) Bareilly for training but 9 candidates, including the petitioner were refused enrolment, six of whom were under height and three on the basis of character verification. The joining of the petitioner has been withheld on the ground that a criminal case no. 265A of 1994 was pending against him and for that a report was called from respondent no. 3. For character verification Sri R.N. Singh, Sub-Divisional Magistrate was authorized to discharge the function of the District Magistrate and he called for a report from the D.G.C. (Criminal) Farrukhabad. The D.G.C. (Criminal) Farrukhabad submitted a copy of the chargesheet in case crime no. 265 A of 1994 in which 8 persons were chargesheeted and the petitioner's name was no where there. The copy of the chargesheet dated 4.8.1994 is Annexure-1 to the writ petition.
It appears that a clarification has been sought that why the petitioner's name had not figured in the chargesheet. The Police Station on 27.8.1994 submitted the report stating therein that the case against the petitioner was found false in the investigation so his name was dropped in the chargesheet. Thereafter, the Commandant, 47 P.A.C. Vahini (Task Force), Bareilly, directed the Senior Superintendent Police to obtain the opinion of the District Magistrate, Farrukhabad on the point. It appears that Sri R.N. Singh, S.D.M., In-charge District Magistrate vide his letter dated 20.9.1994 asked the D.G.C. (Criminal) for opinion whether on the facts and circumstances the petitioner is suitable for the Government service or not. On the said letter itself the D.G.C. (Criminal) Farrukhabad has given his opinion on 21.9.1994 that as per the police report there is no criminal case pending against the petitioner and the case, which was registered, was found false hence in my opinion he is suitable for the State service. On the instruction of respondent no. 1, respondent no. 3 has recorded the statement of the petitioner on 20.9.1994. In the statement it is stated that a false FIR was lodged in which the name of the petitioner was mentioned and on inquiry the involvement of the petitioner was found false and accordingly in the charge sheet the name of the petitioner has not been stated. However, it is stated that no case is pending in any of the court. By the letter dated 20.10.1994 Sri R.N. Singh, Incharge District Magistrate sent all the necessary papers to the Senior Superintendent of Police, Farrukhabad and further expressed his opinion that the petitioner is suitable for the Government service. He further stated that for the purposes of the verification of the character and issue of certificate in this regard he has been authorized by the District Magistrate. When the S.S.P., Farrukhabad required the opinion for the signature of the District Magistrate himself, the District Magistrate by his letter dated 15.11.1994 wrote a letter agreeing with the view of Sri R.N. Singh, Incharge District Magistrate and further certified the character of the petitioner and expressed his opinion that he is suitable for the Government service. It is the contention of the petitioner that despite the character certificate was being issued by the District Magistrate and the fact that the petitioner was found suitable for the Government service the petitioner has not been sent for training and has not been allowed to join. At this stage the petitioner filed the present writ petition.
On 30.11.1994 while entertaining the writ petition and directing the the respondents to file counter affidavit, this Court has passed an interim order directing the respondents that the "name of the petitioner shall be sent for police training. The petitioner shall, however, not be issued appointment letter till further orders of this Court." The writ petition has been admitted on 3.8.1995. The matter was taken up on 3.8.1995. It was contended on behalf of the petitioner that in spite of the order dated 30.11.1994, which was communicated to the respondent on 8.12.1994, the name of the petitioner has not been sent for the aforesaid training. This Court further directed the respondents to comply with the order dated 30.11.1994 within ten days.
Counter and rejoinder affidavits have been exchanged.
Heard Sri V.K. Singh, learned counsel for the petitioner and Sri Pankaj Rai, learned Additional Chief Standing Counsel for the respondents.
Learned counsel for the petitioner submitted that in the FIR the name of the petitioner has wrongly been mentioned though the petitioner was not at all involved. The FIR was lodged on 15.5.1994. A supplementary affidavit has been filed annexing the ordersheet of the proceedings before the Chief Judicial Magistrate to show that at no point of time any summon or notice has been issued to the petitioner. The averment in this regard has been made in the supplementary affidavit dated 21.7.1995. This averment is not disputed. The petitioner was not at all aware about any FIR lodged against him or any proceeding pending before the criminal court against him. In the chargesheet the name of the petitioner was not mentioned inasmuch as on inquiry it was found that the name of the petitioner has been falsely implicated. An affidavit was given on 20.8.1994 stating therein that no criminal case is pending against him under the bonafide belief inasmuch as the petitioner was not aware about the alleged criminal case. He submitted that the District Magistrate is the competent authority to issue the character verification certificate. In the character verification certificate, as referred herein above, it has been categorically stated that the petitioner was not found involved in criminal proceeding and he is suitable for the Government service. Once this certificate has been given by the District Magistrate, who alone is the competent to issue the certificate, no other authority has a jurisdiction to dispute and sit over the certificate of the District Magistrate. The only requirement for the Government service is that the person should be suitable for the Government post after the character verification and once the District Magistratre, who is the competent authority, has given the certificate, there is no reason to deny the appointment to the petitioner. Reliance has been placed on a recent decision of the Apex Court in Civil Appeal No. 7106 of 2011, Ram Kumar Vs. State of U.P. & others, decided on 19.8.2011 which has been followed by the Division Bench in Special Appeal No. 1991 of 2011, Satyendra Singh, Recruit Constable Vs. State of U.P. and others. He also placed reliance on the decision of the Apex Court in the case of Commissioner of Police and others Vs. Sandeep Kumar, reported in JT 2011 (3) SC 484 and the decision of the learned Single Judge of this Court in Civil Misc. Writ Petition No. 47984 of 2010, Amit Kumar, Recruit Constable Vs. State of U.P. and others, decided on 2.5.2011.
Learned Standing Counsel submitted that for the purposes of the verification of character and antecedent, the petitioner was required to submit affidavit. In the affidavit a categorical declaration has been made by the petitioner that against him neither any case has been registered nor any criminal case is pending against him. However, on verification it was found that a criminal case was pending. Preliminary inquiry was conducted and it was found that wrong declaration has been made by the petitioner hence the petitioner could not be sent for training. Iit is very much clear that at the time of filing of the affidavit, the criminal case was pending against the petitioner. In the aforesaid affidavit, it has been clearly mentioned that in case any of the averments mentioned in the affidavit is found incorrect then candidature of the petitioner would be cancelled without any notice and in this background as the declaration which was made in the affidavit has been found incorrect and wrong declaration has been made by the petitioner, the petitioner's services has been dispensed with by cancellation of his appointment.
He placed reliance on the decisions of the Apex Court in the case of Delhi Administration Vs. Sushil Kumar, reported in 1997 SCC (L& S) 492 and in the case of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav, reported in (2003) 3 SCC 437.
I have considered the rival submissions and perused record.
In the case of State of Haryana Vs. Dinesh Kumar, reported in AIR 2008 SC page 1083 (2008) SCC 222, the Apex Court held that there has to be deliberate and wilful misrepresentation, and in case the applicant was not aware of his involvement in any criminal case or pendency of any criminal prosecution against him, then it cannot be held that he made misrepresentation. In the said case information sought was as to whether he has ever been arrested, and the applicant thererin was wanted in criminal case and had got stay order fro the Court, in this background information was furnished in negative the Hon'ble Apex Court took the view that it may be case of mistake impression but not the case is deliberate impression.
In the case of Delhi Administration Vs. Sushil Kumar (Supra), the Apex Court held as follows:
"Verification of the character and antecedents is one of the important criteria to text whether the selected candidates is suitable to a post under the State. Though the respondent was found physically fit, passed the written test and interview and was provisionally selected. On account of his antecedent record, the appointing authority found it is not desirable to appoint a person of such record as a Constable in the discipline force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the directing for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct of character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way the law will take care of the consequences."
In the case of Kendriya Vidyalaya Sangthan Vs. Ram Ratan Yadav (Supra) the Apex Court held as follows:
"It is not in dispute that the criminal case registered under Sections 323, 341, 294, 506-B read with Section 34 IPC was pending on the date when the respondent filed the attestation from. Hence, the information given by the respondent as against columns 12 and 13 as "No is plainly suppression of material information and it is also a false statement......................The requirement of filling columns 12 and 13 of the attestation form was for the purpose of verification of character and antecedents of the respondent as on the date of filling and attestation of the form. Suppression of material information and making a false statement has a clear bearing on the character and antecedents of the respondent in relation to his continuance in service.
The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service. The employer having regard to the nature of employment and all other aspects had the direction to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of the criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not. The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya. The character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on the ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand and contents of columns 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the agreement of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted."
In the case of Ram Kumar Vs. State of U.P. and others (Supra) the appellant applied for the post of Constable. He was selected and appointed as a male constable and deputed for training. Thereafter it was reported that a criminal case was registered against the appellant and the said criminal case has been disposed of by the Additional Chief Judicial Magistrate, Etawah on 18.7.2002 and the appellant was acquitted by the Court. However, in his affidavit dated 12.6.2006 it was averred that no criminal case was pending. The appointment of the petitioner has been cancelled. The writ petition filed against the cancellation of the appointment has been dismissed by the learned Single Judge and said order has been confirmed in Special Appeal by the Division Bench. Being aggrieved by the order of the Division Bench, Special Leave to Appeal No. 7162 of 2011 has been filed. The Apex Court has held as follows:
"We have carefully read the Government Order dated 28.4.1958 on the subject 'Verification of the character and antecedent of government servants before their first appointment' and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
"The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point."
It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
The order dated 18.7.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.1.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 8.8.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.4.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment.
In Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav (Supra) relied on by the respondents, a criminal case had been registered under Sections 323, 341, 294, 506-B read with Section 34 IPC and was pending against the respondent in that case and the respondent had suppressed this material in the attestation form. The respondent, however, contended that the criminal case was subsequently withdrawn and the offences in which the respondent was alleged to have been involved were also not of serious nature. On these facts, this Court held that the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya and he could not be suitable for appointment as the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age and if the authorities had dismissed him from service for suppressing material information in the attestation form, the decision of the authorities could not be interfered with by the High Court. The facts of the case in Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav (Supra) are therefore materially different from the facts of the present case and the decision does not squarely cover the case of the appellant as has been held by the High Court.
For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 8.8.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs."
The Apex Court has considered and distinguished the decision in the case of Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav (Supra) in the manner referred herein above.
In the case of Commissioner of Police and others Vs. Sandeep Kumar (Supra), the Apex Court has taken a view that cancellation of candidature to the post of temporary Head Constable for the suppression and failure to disclose in the verification roll/ application about his involvement in an incident resulting in a criminal case under Sections 325/34 IPC when the candidate was a young man, was not justified. In the said case, the matter was finally compromised and the candidate was acquitted.
The Division Bench of this Court in Special Appeal No. 1991 of 2011, Satyendra Singh, Recruit Constable Vs. State of U.P. and others wherein the appointment of the petitioner was cancelled on the ground that at the time of recruitment he filed false affidavit in relation to column provided for declaration in respect of criminal cases registered or pending against him as he failed to disclose the case crime no. 137A of 2001, under Sections 336, 323, 325, 504 and 506 IPC in which vide judgment and order dated 13.9.2006 passed by the Chief Judicial Magistrate, Etawah the petitioner was acquitted following the decision in the case of Ram Kumar Vs. State of U.P. (Supra) referred herein above, has held the cancellation of the appointment as unjustified.
In my view character and antecedent of the person is an important aspect to be considered at the time of giving the appointment in a Government service. Little lapse and compromise in this regard may lead to a serious consequences. Therefore, before giving the appointment there should be micro scrutiny of the character and antecedent. It is equally important that the person to whom appointment is being given should come with clean hand. There should not be any deliberate and wilful misrepresentation, concealment of fact and disclosure of incorrect fact, on the part of person concerned, and if it so happens such person should be dealt with strong hand to set the example for others and may not be considered for Government service.
Foundation of police or any other force is based on discipline, faithfulness, sincerity and honesty. These forces, all time are accountable to public at large. If any one of the above is missing, system can not work and is bound to collapse. Therefore, in case of appointment in police or any other force character and antecedent has to be strictly examined. If a person of criminal background is appointed as police personnel one can understand its consequences.
From the above, in my view the following position emerges :
(1)The object of the verification of the character and antecedent of the Government servants before their first appointment is to ensure that the character of the Government servants for a direct recruitment must be such as to render him suitable in all respect for employment in the service or post to which he is to be appointed and it would be duty of the appointing authority to satisfy itself on this point.
(2)It is necessary to examine whether there was deliberate and wilful misrepresentation and concealment of fact. Whether the misrepresentation was deliberate and wilful and the petitioner was aware about his involvement in any criminal case or pendency of any criminal prosecution against him. If the answer is negative then it cannot be said that the person made misrepresentation, but if the answer is in affirmative then it is a case of misrepresentation and such person should not be appointed and strict action should be taken for such misrepresentation and concealment of fact.
In the present case along with the supplementary affidavit the petitioner has filed the entire proceedings before the Chief Judicial Magistrate to show that at any stage, no summon or notice has been issued to the petitioner. It was averred that the petitioner was not aware about the alleged FIR and the criminal proceeding. These averments of the supplementary affidavit have not been disputed. It is undisputed that in the chargesheet the name of the petitioner was not mentioned. On enquiry, it was found that his name has been falsely implicated. On these facts it can be believed that the petitioner was not aware about the alleged FIR and the alleged criminal proceeding. When the petitioner was not aware about the alleged FIR and criminal proceeding it was not expected from him to disclose about such proceeding. Thus, on these facts it cannot be said to be a case of wilful and deliberate misrepresentation on the part of the petitioner. Moreover, the respondent no. 1 has sought the report about the character verification and the certificate from the District Magistrate. The District Magistrate in his reports dated 20.10.1994 and 15.11.1994 has categorically certified the character of the petitioner and has observed that he is suitable for the services of the State and the Central Government. There is no contrary finding on record.
In view of the foregoing discussion, I am of the view that the respondent no. 1 is not justified in withholding the appointment of the petitioner. In case if the petitioner has not been sent for training he may be sent immediate thereof in case if he has completed the training in pursuance of the direction of this Court, he may be allowed to join the post. However, the petitioner is not entitled for the salary for the period during which he has not worked. The respondent no. 1 is directed to comply the aforesaid direction within two weeks from the date of production of certified copy of this order.
The writ petition stands allowed.
Dated: 3rd August, 2012 OP