Court No. - 38
Case :- WRIT - A No. - 13225 of 2019 Petitioner :- Vishava Bandhu Singh Respondent :- State Of U.P. And 4 Other Counsel for Petitioner :- Rajendra Prasad Tiwari,Smt Alpana Tiwari,Vinay Kumar Tiwari Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioner has been selected for appointment to the post of Constable in U.P. Police in the recruitment exercise initiated in the year 2018. Though he has been selected but no appointment order has been issued to him on account of pendency of criminal case against him.
Learned counsel for the petitioner has invited attention of the Court to the recommendation of the District Magistrate Sant Kabir Nagar dated 11.7.2019, wherein it is noted that the petitioner has clearly disclosed about the pendency of the criminal case and that a final report has also been submitted after investigation. Recommendation has been made to consider petitioner's claim for appointment. Submission is that in view of the law laid down by the Apex Court in Avtar Singh Vs. Union of Indian and others, 2016(8) SCC 471, his claim for appointment is liable to be considered in accordance with law.
After analyzing the law on the subject, the Hon'ble Supreme Court has been pleased to hold as under in para 38 in Avtar Singh (supra):-
"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."
Learned Standing Counsel submits that the grievance of the petitioner shall be examined by the authority concerned, in accordance with law.
In view of the recommendations made by the District Magistrate concerned, it would be appropriate to dispose of this petition with a direction upon the respondent no.4 to pass an appropriate order in the matter relating to grant of appointment to petitioner, keeping in view the law laid down by Apex Court in Avtar Singh (supra) and also keeping in view the recommendations made by the District Magistrate, Sant Kabir Nagar. The required consideration shall be made by the authority concerned within a period of two months thereafter.
Order Date :- 26.8.2019 n.u.