Heard learned counsel for petitioner and learned standing counsel for State.
Present writ petition is filed by the petitioner challenging the order dated 17.02.2011 passed by respondent no.4.
Facts of the case are that though, petitioner duly appeared in the examination for post of Assistant Radio Operator and after clearing the same he also cleared his physical test and appeared in the interview. At that stage, petitioner had given a declaration that there is no criminal case pending against him. However, it was later found that in a family dispute his wife had lodged a Criminal Case No.102 of 1999 under Sections 498-A, 323, 504 and 506 I.P.C. at Police Station Sarojini Nagar, Lucknow. Thus, on the basis of the said concealment of fact, the application of petitioner was rejected. During pendency of the present writ petition, by a detailed judgment and order dated 27.05.2013, petitioner has been acquitted, as there was no evidence submitted before the Court. Even the complainant-wife did not support the case. Therefore, counsel for the petitioner submits that acquittal of the petitioner was without any technicalities and conditions. Learned counsel for petitioner further submits that the law with regard to consideration of the candidature in the given circumstances is finally settled by the Hon'ble Supreme Court in case of Avtar Singh Vs. Union of India and Others, decided on 21.07.2016, reported in (2016) 8 SCC 471. In paragraph-30 of the aforesaid judgment, the Supreme Court laid down the following conditions:-
" 30. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
(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.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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 recourse appropriate to the case may be adopted : -
(a) 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) 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.
(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.
(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.
(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.
(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.
(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.
(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.
(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits."
Thus, reading of the paragraph-30 of the Avtar Singh (supra) case clearly shows that the discretion as per the facts and circumstances is left upon the employer to take a decision. It goes without saying that the earlier order dated 17.02.20211 is not passed by the respondents in accordance with the guidelines laid down by the Supreme Court in Avtar Singh (supra) case.
Looking into the aforesaid facts and circumstances of the case, petitioner is permitted to make a fresh detailed representation to respondent no.3 Additional Director General of Police, (Telecommunication) U.P., Police Radio Head Quarter, Mahanagar, Lucknow, raising all his grievance, annexing therewith a copy of this writ petition along with annexures and any other documents in support of his case including judgment passed in case of Avtar Singh (supra) within a period of three weeks from today along with a certified copy of this order.
In case such a representation is moved by petitioner, respondent no.3 shall consider and decide the same in accordance with law, in light of the judgment passed in Avtar Singh (supra) case, by a reasoned and speaking order within a period of three months from the date a certified copy of this order along with representation is placed before him.
With the aforesaid directions, the writ petition is disposed of.
Order Date :- 4.2.2021 Arti/-
(Vivek Chaudhary,J.)