Heard Sri Sanjay Mishra, learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
The petitioner after selection was recruited and appointed as a constable in police force vide appointment letter dated 19.11.2006 and he was under training in district Gautam Buddh Nagar. By means of order dated 25.9.2007 passed by the Superintendent of Police, Baghpat, the candidature and selection of the petitioner has been cancelled on the ground that at the time of recruitment, he filed a 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. 97 of 1999 under Sections 498-A/304 IPC read with section 3/4 Dowery Prohibition Act registered at Police Station Lodha, district Aligarh.
It is contended by the learned counsel for the petitioner that the petitioner was selected and appointed in the year 2006 and the case crime no. 97 of 1999 was registered on 24.6.1999 when he was aged about 12 years and the final report was submitted by the Police on 24.6.1999 to the court of Chief Judicial Magistrate, who instead of accepting the same treated the same to be a complaint case. In the said complaint case, no one turned up and it was dismissed on 31.1.2006. Against the said order, criminal revision was filed which was also dismissed by the revisional court vide order dated 04.05.2006.
A counter affidavit as well as supplementary counter affidavit on behalf of the State respondents has been filed wherein allegations with regard to the facts that FIR was lodged in 1999 and subsequent final report was submitted have not been denied. Only submission made by the learned Standing Counsel is that since a criminal case was registered against the petitioner and despite the fact that final report report has been submitted, a declaration in this regard is required to be given in the affidavit filed on 15.11.2006 and non-disclosure amounts to concealment and in such circumstances, petitioner?s selection and appointment has rightly been cancelled.
I have considered the arguments advanced by the learned counsel for the parties and perused the record.
Learned Standing Counsel has failed to point out that there was any clause in the declaration form that if a criminal case was registered in the past and has resulted into submitting final report and dismissal of the complaint case, then this fact was also required to be mentioned in the affidavit. If there was no clause regarding any criminal proceeding in the past then, in my opinion, there was no obligation on the part of the petitioner to give a declaration to that effect and it cannot be said that non-disclosure was intentional.
The view taken by me finds supports from the judgment of a Hon'ble single Judge in Writ Petition No. 59218 of 2007 (Surendra Yadav Vs. State of U.P. & others) decided on 26.2.2007 as well as Writ Petition No. 51282 of 2007 (Sanjay Kumar Singh vs. State of U.P. & others) decided on 27.1.2010.
There is yet another aspect of the matter. It is well settled that every judgment operates retrospectively unless specifically made prospectively and since the final report was submitted and the complaint case was dismissed, hence, it will be deemed that he was never involved in the criminal case, and thus, was under no obligation to disclose the same.
The view taken by me finds supports from the Division Bench judgment of this Court in the case of Qamrul Hoda Vs. Chief Security Commissioner, North Eastern Railway, Gorakhpur [(1997) 2 UPLBEC 1201].
Further it is admitted case between the parties that prior to cancellation of selection and appointment of the petitioner, no notice or opportunity of hearing was provided. Hon'ble Apex Court in the case of Chandra Prakash Shahi Vs. State of U.P. & Ors., [(2000) 5 SCC 152] has held that such an order amounts to dismissal, therefore, notice and opportunity was necessary. Hon'ble Apex Court has further held that notice is also required under Para 541 of Police Regulations.
Admittedly, the petitioner had been given appointment and he was under taining. If a person is working on the post, a civil right accrues and notice and opportunity is necessary before dispensing with his services. Thus, the order impugned in this petition is in gross violation of principles of natural justice. Further as there is no compliance of Regulation 541(2) of Police Regulation, as such also the impugned order passed by the respondent authority is not sustainable in law.
For the aforesaid reasons, the impugned order dated 25.09.2007 passed by respondent no. 3 Superintendent of Police, Baghpat (Annexure no. 1 to the writ petition) is not sustainable in law and is hereby quashed. Writ petition stands allowed.
However, in the facts and circumstances, there shall be no order as to costs.
Date : September 15, 2011 Dcs.