(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. Being aggrieved by and dissatisfied with the impugned direction issued by the Central Administrative Tribunal, (for short, 'The Tribunal') Ahmedabad vide order dated 13.10.2011 passed in Original Application No.63 of 2009 with M.A. No. 347 of 2010, the petitioners have filed this petition under Articles 226 and 227 of the Constitution of India with a prayer to quash and set aside the said order.
2. The facts of the case in brief are that the present respondent was engaged as Casual Labourer with the petitioners' department w.e.f. 11.11.1983 under Permanent Way Inspector of Bhatia, Rajkot Division. The respondent had furnished information such as age, qualification etc. In the meantime, as per the directions of the Supreme Court, DRM, Rajkot published a seniority list and the respondent was shown at sr.no. 4674 at page no.110 vide DRM's letter dated 24.12.1994 and the respondent was allotted with seniority number as 5461. It is the allegation of the respondent that ignoring the claim of the respondent, some juniors were regularized by Rajkot Division. It is the case of the petitioners that at the initial engagement of the respondent, he had furnished false information regarding his age that he was 18 and half years old. In fact he was born on 30.3.1967 and therefore, on the date of his employment i.e. on 11.11.1983 he was only 16 years, 7 months and 11 days old. Similarly the respondent had stated that he passed SSC examination whereas he had failed in Gujarat Secondary Education Board Examination. The respondent worked with the Railway by providing false information regarding his age and qualification. The respondent had completed 447 days as Casual Labourer upto 30.7.1984 and he had completed 18 years of age on 30.3.1985. Thus he did not render his services after completion of 18 years of age. The requirement for regularization is that the casual employee must have completed 120 days of service. Thus he is not entitled to regularization as he had never worked with the petitioner department after attaining the age of 18 years. The respondent was orally discontinued from service. Being aggrieved by the oral order, the respondent approached the Central Administrative Tribunal, Ahmedabad by filing OA No.410/95 which was disposed of at the admission stage vide order dated 9.8.1995 with direction to the petitioners to allow the respondent or his Advocate to examine the seniority list and that no person junior to the respondent would be re-engaged overlooking his claim.
Pursuant to this order the applicant was informed vide letter dated 11.12.2001 that his name appeared at sr.no. 3980 in the revised seniority list of unskilled labour and that the respondent can verify the same. The main grievance of the respondent was on re-engagement and absorption of MR Harji Chana and Laxman Meru, who according to him are junior to him on the basis of number of days they have worked. The Tribunal has directed the petitioners that till certain clarificatory instructions are issued, one post shall not be filled and it was directed to be kept vacant and shall not go for further fresh open market recruitment in group – D in Rajkot division. However, the claim of the respondent was not considered by the petitioners. In the fourth round of litigation, the Tribunal, by order dated 13.10.2011, had quashed and set aside the communication dated 9.9.2008 of the petitioner department rejecting the claim of the respondent with a direction to take immediate action to implement the clarifications issued by the Railway Board pursuant to the directions of the Tribunal in OA No.139/05 and decide the claim of the respondent on the basis of seniority list within a period of two months from the date of receipt of that order. This order is challenged by the present petitioners in this Special Civil Application.
3. Learned counsel Mr Ramnandan Singh has submitted that the Tribunal has not appreciated the fact that the respondent provided false information regarding his age and qualification at the time of engagement as Casual Labourer. He has submitted that this ground alone is sufficient not to regularize the services of the respondent. The respondent did not serve for a single day after attaining the age of 18 years and thus he did not fulfil the criteria of working as casual labourer for 120 days with the Railway Department. He has submitted that the services rendered by the respondent were illegal and could not be relied upon for counting 120 days as he had not completed 18 years of age during the service. In support of his submissions, the learned counsel has placed reliance on a decision in the case of A.P. Public Service Commission v. Koneti Vekateswarulu and Ors reported in AIR 2005 SC 4292 wherein the Hon'ble Supreme Court has held that employment obtained by false pretence does not deserve to be given public employment and even inadvertence cannot be pleaded by a candidate and therefore, the rejection of candidature has been held to be proper. The second decision relied on by the learned counsel is in the case of Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, reported in AIR 2003 SC 1709 (1), wherein the Supreme Court has held that termination of service which was ordered on the ground of suppression of fact that criminal proceedings were pending against employee at the time of appointment and the employee's plea that medium of instruction of employee was Hindi and therefore, he could not correctly understand the relevant clause of the attestation form was held to be not tenable and the fact that the criminal proceedings for offences not involving moral turpitude and that proceedings were subsequently withdrawn was confirmed by the Supreme Court by holding it to be just and proper. The third decision relied on by the learned counsel is in the case of R.Radhakrishnan v. Director General of Police, reported in AIR 2008 SC 578 wherein the Supreme Court has held that appointment by suppressing material fact for the post of Fireman, by not disclosing in his application, material fact as to his involvement in criminal case that too a cognizable offence under section 294 (b) of Indian Penal Code, non-selection of the applicant was held to be just and proper. The learned counsel has also placed reliance on a decision in the case of Manoj Kumar v. Government of NCT of Delhi, reported in (2010) 11 SCC 702, in para 8 it is held as under:
“There is no doubt that if any candidate furnishes false or incomplete information or withholds or conceals any material information in his application, he will be debarred from securing employment. It is also true that even if such an applicant is already appointed, his services are liable to be terminated for furnishing false information.”
Learned counsel has finally submitted that in view of the aforesaid decisions of the Supreme Court, the impugned order dated 13.10.2011 passed by the Tribunal deserves to be quashed and set aside.
4. It is not in dispute that the respondent worked with the Railway department by providing false information regarding his age and qualification. Much has been argued by the learned counsel for the petitioner that the respondent had completed 447 days as casual labourer upto 30.7.1984 and that he had completed 18 years of age on 30.3.1985 and so it is clear that the respondent had not rendered his services after completion of 18 years of age. On a specific query by this court to prove the same that the respondent had not rendered his services after completion of 18 years of age, except submissions during the course of arguments and the averments made in the affidavit, no cogent evidence to that effect has been shown by the learned counsel for the petitioner and it is important to note that it has come on record that the DRM, Rajkot had not prepared any live register. In fact in para 7 of the judgment, the Tribunal has specifically observed that as per the clarifications issued by the Railway Board on 4.7.2006 regarding absorption of ex-casual labourers, there is no mention of minimum age limit of 18 years at the time of initial engagement which is cited by the present petitioners as the reasons for rejection of the claim of the respondent/applicant. Para (vi) of the said clarification dated 4.7.2006 states as under:
“Further in age relaxation to the extent of service put in as casual labourer/substitute, subject to upper age limit of 40 years in the case of general candidiates, 43 years in case of OBC candidates and 45 years in case of SC/ST candidates.”
It is not denied by the learned counsel for the petitioners that there is no minimum age limit of 18 years prescribed at the time of engagement as casual labourer. It is also not denied that this is the fourth round of litigation. Regarding the observations and discussions made in paras 6 to 8 of the order dated 13.10.2011 passed in O.A. No.63 of 2009 with M.A. No.437 of 2010, nothing substantial has been argued by the learned counsel for the petitioner. We have perused the order dated 13.10.2011 referred above. We do not find any illegality or infirmity in the said order. It is a matter of common knowledge that in olden days, even the highly educated parents and grandparents of children, deliberately and knowingly advanced date of birth of their children on record so as to get admission to the schools at an early age and also for getting early employment.
5. Though we are in agreement with the decisions relied on by the learned counsel, as per the judicial prudence, in our view, a decision of the later point of time, is required to be given more weightage. The recent view of the Hon'ble Apex Court, in a similar and identical situation in which the present petitioner is situated is as under:
In the case of Commissioner of Police and Others v. Sandeep Kumar [(2011) 4 SCC 644], in paragraphs 8, 9, 11 and 12, the Apex Court has observed as under:
“8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age.
At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character “Jean Valjean” in Victor Hgugo's novel Les Miserables, in which for committing a minor offence of stealing of a bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
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11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder dacoity or rape, hence a more lenient view should be taken in the matter.”
In the case of Ram Kumar vs. State of U.P. And Ors (2011(3) GLH 281, the facts of the case narrated in para 3 reads as under, which appears identical to the case on hand:
“3. The facts very briefly are that pursuant to an advertisement issued by the State Government of U.P. on 19.11.2006, the appellant applied for the post of constable and he submitted an affidavit dated 12.06.2006 to the recruiting authority in the pro forma of verification roll. In the affidavit dated 12.06.2006, he made various statements required for the purpose of recruitment and in para 4 of the affidavit he stated that no criminal case was registered against him. He was selected and appointed as a male constable and deputed for training. Thereafter, the Jaswant Nagar Police Station, District Etawah, submitted a report dated 15.01.2007 stating that Criminal Case No.275/2001 under Sections 324/323/504, IPC was registered against the appellant and thereafter the criminal case was disposed of by the Additional Chief Judicial Magistrate, Etawah, on 18.07.2002 and the appellant was acquitted by the Court. Along with this report, a copy of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate was also enclosed. The report dated 15.01.2007 of the Jaswant Nagar Police Station, District Etawah, was sent to the Senior Superintendent of Police, Ghaziabad. By order dated 08.08.2007, the Senior Superintendent of Police, Ghaziabad, cancelled the order of selection of the appellant on the ground that he had submitted an affidavit stating wrong facts and concealing correct facts and his selection was irregular and illegal.
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7. We have carefully read the Government Order dated 28.04.1958 on the subject 'Verification of the character and antecedents 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 suppression 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.
8. 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.”
In the case of SJS Business Enterprises (P) Ltd. V. State of Bihar and Anr. (2004 (7) SCC 166), in para 13 the Apex Court observed as under:
“13. As a general rule, suppression of a material fact by a litigant disqualifies such litigant from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But the suppressed fact must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case. It must be a matter which was material for the consideration of the court, whatever view the court may have taken...”
6. For the aforesaid reasons, this Special Civil Application is dismissed at the admission stage with no order as to costs.
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[D. H. WAGHELA, J.]
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[G. B. SHAH, J.]