Supplementary affidavit filed today is taken on record.
Heard Shri Rajeev Chaddha, learned counsel for the petitioner and Shri Sudhir Bharti, learned counsel for the respondents.
The petitioner is seeking quashing of the order dated 19.2.2015 whereby his candidature for the post of Constable recruit has been cancelled on the ground that he has submitted false attestation form with regard to criminal case.
The facts which are not in dispute between the parties are that the petitioner applied for the post of Constable in the Railway Protection Force. In the attestation form he was required to disclose as to whether he has ever been arrested or prosecuted or kept under detention. The petitioner did not fill this part of the attestation form. However, at the time of training he himself filed affidavit, Annexure-5 to the writ petition, stating that he was involved in a criminal case under section 465/468/471 I.P.C. in district Gorakhpur and case crime no. 15 of 2000 had been registered against him but he was discharged by the order of the A.C.J.M. Gorakhpur dated 15.1.2001, Annexure-6 to the writ petition.
Learned counsel for the petitioner submits that it was never the intention of the petitioner to withhold any information from the respondents in that though due to error he had omitted to fill up the requisite application form disclosing the criminal proceedings against him but at the very first instance at the time of training he had filed his own affidavit disclosing these facts without even same being called for by the respondents. In support of his contention, learned counsel has placed reliance upon the judgement of the Supreme Court passed in Civil Appeal No. 7106 of 2011 (Ram Kumar Vs. State of U.P. and others) wherein also the petitioner had applied for the post of Constable and omitted to fill up his attestation application regarding pendency of criminal case against him. In that case the facts were that in the criminal case the petitioner therein had been acquitted and therefore he did not think it necessary to state the said case regarding involvement in a criminal case in his attestation form. When these facts were discovered his appointment was cancelled. Referring to the facts of the case, the Supreme Court held that the facts on which the petitioner/appellant had been acquitted was not examined by the S.S.P. Ghaziabad as to whether they were of serious nature or whether on the grounds mentioned therein the petitioner may be ineligible for appointment and accordingly the impugned order of cancellation of appointment of the petitioner therein was quashed by the Supreme Court. Paragraphs 7,8,9 and 10 of the said judgement read as under:
" 7. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
8. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 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 28.04.1958, 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.
9. In Kendriya Vidyalaya Sangathan and Others v. 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 v. 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.
10. 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 08.08.2007 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."
Shri Sudhir Bharti, learned counsel for the respondents on the other hand has placed reliance upon another judgement of the Supreme Court passed in Civil Appeal No. 3470 of 2008 (Union of India Vs. Bipad Bhanjan Gayen) wherein the Supreme Court has held that non disclosure of information regarding pendency of criminal case under section 376 and 417 I.P.C. in the attestation form was a deliberate attempt by the petitioner to conceal material fact from the respondents. In that case it is noticed that the criminal case against the petitioner was still pending in the court at the time when the petitioner Bipad Bhanjan Gayen had filled the attestation form and, therefore, the Supreme Court held that it was a case of deliberate concealment of material fact by the petitioner from the respondents while filling the attestation form. Therefore, in my view the aforesaid judgement of the Supreme Court was on its own facts and has no application to the facts of the present case.
The next case relied upon by the learned counsel for the respondents is the decision of the Division Bench of this Court in Special Appeal No. 181 of 2015 (Veer Pal Singh Vs. State of U.P. and 3 others) and in that case also the facts as emerging in paragraph 8 of the judgement are that the appellant had applied for recruitment in pursuance of advertisement dated 2.5.2006 as a Constable in the PAC. Before he applied for selection a case Crime No. 136 of 2004 had been registered against him under sections 323, 452, 504 and 506 I.P.C. and a charge sheet had also been filed on 10.8.2004. When the appellant applied for recruitment he expressly stated that no criminal case had been registered against him and that no prosecution was pending against him in any court. He was selected on 28.8.2006 . On 31.8.2006 he applied for and was granted bail by the court of C.J.M. The judgement of acquittal was rendered by the C.J.M. on 27.8.2007. The Division Bench held that from these facts it cannot be even disputed that the disclosures which the appellant made when he sought appointment as a Constable were palpably false and that he had suppressed the material fact relating to the pendency of the criminal case against him. Paragraph 8 of the judgement reads as under:
"The facts in the present case are not in dispute. The appellant applied for recruitment in pursuance of an advertisement dated 2 May 2006 as a Constable in the PAC. Admittedly, before he applied for selection, Case Crime No.136 of 2004 had been registered against him under Sections 323, 452, 504 and 506 of the IPC and a charge sheet had been filed on 10 August 2004. Again, it is not in dispute that when he applied for recruitment, the appellant expressly stated that no criminal case had been registered against him and that no prosecution was pending against him in any Court. When he filed an affidavit, the appellant also undertook that if his disclosures were found to be incorrect or, if he was found to have materially suppressed any true facts, his selection would stand cancelled and that he would be terminated from service without notice. The appellant was selected on 28 August 2006. It is his specific case in the submissions of Counsel that thereafter on 31 August 2006 he applied for and was granted bail by the Court of the Chief Judicial Magistrate. The judgment of acquittal was rendered by the Chief Judicial Magistrate on 27 August 2007. From these facts, it cannot not even be disputed that the disclosures which the appellant made when he sought appointment as a Constable were palpably false and that he had suppressed a material fact relating to the pendency of the criminal case against him. The appellant was clearly on notice that his appointment was liable to be terminated and the selection would be cancelled if his disclosures were found to be incorrect and if there was a suppression of material facts."
The judgment of the Division Bench in the case of Veer Pal Singh (supra) is on its own facts and has absolutely no application to the facts of the present case.
In my opinion in the present case the judgement of the High Court in the case of Ram Kumar (supra) squarely applies. The respondents while passing the impugned order cancelling the candidature of the petitioner have not taken into consideration the question of eligibility of the petitioner or the fact that he had himself at the time of being sent for training filed an affidavit disclosing the fact that he had been involved in a criminal case and discharged as far back as in 2001.
In this view of the matter, the impugned order 19.2.2015 cannot survive and is quashed. The writ petition is allowed and the matter is remitted to the respondent no. 3-Senior Divisional Security Commissioner, R.P.F. Ambala Division, Incharge of PRTC/Jehankhelan Hoshiarpur to reconsider the matter in the light of the observations made above as well as having regard to the judgement of the Supreme Court in the case of Ram Kumar (supra) within a period of one month from the date of receipt of the certified copy of this order.
Order Date :- 20.1.2016 o.k.