Court No. - 33
Case :- WRIT - A No. - 4582 of 2019 Petitioner :- Pravin Yadav Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vijay Gautam,Ambarish Chatterji Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Heard Sri Vinod Kumar Mishra, learned counsel holding brief of Sri Ambarish Chatterji, learned counsel for the petitioner and learned Standing Counsel for the State authorities.
Petitioner has been selected for appointment to the post of Constable pursuant to recruitment exercise initiated in the year 2015. He was finally selected but has not been sent for training on account of his implication in Case Crime No. 198 of 2016, under Section 147, 148, 149, 307, 323, 504, 506, 336 I.P.C. and 7 Criminal Law Amendment Act, Police Station Sahatwar, District Ballia. Since the certificate for petitioner's good character has not been issued on account of the aforesaid case, therefore, his candidature has been rejected.
The aforesaid order is challenged on the ground that his implication has been found false while submitting charge-sheet against others even prior to submission of the character verification report and the trial is pending against other persons. No charge-sheet is filed against the petitioner. It has also been stated that such facts were duly intimated by the petitioner vide his affidavit submitted on 24.07.2018 and, therefore, there exists no justification for denying consideration to petitioner's claim for appointment.
A counter affidavit has been filed in which it is stated that petitioner suppressed his implication in the criminal case and had also submitted a false affidavit on 07.06.2018. It is further stated that in view of the applicable Government Order petitioner is not entitle to appointment particularly, as it is possible for the competent Court to summon the petitioner in the aforesaid case even at a later stage.
I have heard learned counsel for the parties and perused the materials placed on record. It is undisputed that petitioner had applied for appointment and was selected on the basis of his performance in the recruitment exercise. The issuance of appointment to selected candidate was subject to candidate possessing good character certificate issued by the competent authority. It is at this stage that petitioner's claim has been rejected on account of his implication in the aforesaid criminal case.
It is specifically stated in the writ petition that petitioner's implication in the F.I.r. has been found false and charge-sheet is not submitted against the petitioner but against other accused persons. No material has been collected against the petitioner during investigation with regard to commissioning of the above case. It has also been averred that neither petitioner was arrested in this case nor any material appear on record to show that he was informed of lodgement of the above case. Petitioner submits that initially he submitted an affidavit on 07.06.2018 under the belief that since his implication was found wrong and no charge-sheet was submitted against him, therefore, he is not required to disclose about the aforesaid case. With reference to the charge-sheet it is pointed out that the Investigating Officer found petitioner's implication in the aforesaid case to be false. No adverse material has been collected against the petitioner during the course of investigation. Petitioner subsequently has filed an affidavit disclosing the above fact even prior to issuance of the character certificate.
Whether or not such material would constitute any basis for denying consideration to petitioner's claim for appointment will have been be tested with reference to the law laid down by the Supreme Court in the case of Avtar Singh Vs. Union of India and others, 2016 (8) SCC 471. Para 38 of the judgment in Avtar Singh (supra) is reproduced hereinafter:-
"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. 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."
In Avtar Singh (Supra) the Supreme Court has emphasized various factors which are required to be taken into consideration for arriving at a conclusion whether a candidate is entitle to employment or not in view of the lodgement of police case against him. It is not that in every case where first information report is lodged the claim for appointment has to be necessarily rejected. The principles culled out in para 38 clearly show that there has to be a conscious application of mind on part of the appointing authority to the factors which are placed on record to determine suitability of candidate for appointment.
In the facts of the present case though a first information report was lodged and was not disclosed in the first affidavit dated 07.06.2018, it remains a fact that upon conclusion of investigation petitioner's implication in the aforesaid case has been found false and no charge-sheet has been filed against him. Petitioner otherwise had submitted a subsequent affidavit on 24.07.2018 clearly disclosing facts relating to his implication in the aforesaid case and also non filing of any charge-sheet against him. It has also been disclosed that no adverse material otherwise has been collected against the petitioner during the course of the investigation. These are relevant considerations and were required to be taken note of while taking a decision whether or not to consider petitioner for appointment.
The consideration on part of the authority in this case, however is not objective and is based on conjectures. The basis for denying petitioner's claim for appointment is the possibility that the competent Court at a later stage may summon the petitioner as accused. Though such a possibility cannot be ruled out but an inference in that regard would not be implicit. As of now no incriminating material against the petitioner has been found in the aforesaid case. In near future possibility of petitioner's implication cannot be presumed so as to deny consideration to his claim for appointment. The fact that petitioner's implication has been found false in the first information report is also not considered. In such circumstances the order dated 27.02.2019, passed by the competent authority holding the petitioner unfit for appointment cannot be sustained and is quashed. A writ of mandamus is issued to the appointing authority to reconsider petitioner's claim for appointment, in light of the above observation, within a period of three months.
With the above observation and directions this petition is disposed of.
Order Date :- 22.9.2021 Abhishek Singh