Central Administrative Tribunal - Allahabad
Devasheesh Sachan vs Staff Selection Commission (Ssc) on 2 August, 2024
OA No. 236 of 2023
(Reserved on 24.07.2024)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this, the 02nd day of August, 2024.
Original Application No. 330/00236/2023
Hon'ble Mr. Justice Om Prakash VII, Member (Judicial)
Hon'ble Mr. Mohan Pyare, Member (Administrative)
Devasheesh Sachan, A/a 25 years, S/o Sri Dilip Singh, Resident of Mohalla
- Ashok Nagar South, Tehsil - Ghatampur, District - Kanpur Nagar.
....Applicant
By Advocate: Shri Suresh Kumar Gupta
Shri Bijay Singh Sachan
Versus
1. Union of India through Secretary, Appointment and Personal, Govt. of
India, New Dellhi.
2. Joint Commissioner of Income (Tax Hqes.) (Admn.) O/o the Pr. Chief
Commissioner of Income Tax, UP (East), Pratyaksh Kar Bhawan, 57 Ram
Tirath Marg, Lucknow.
....Respondents
By Advocate: Shri Rajni Kant Rai
ORDER
By Hon'ble Mr. Mohan Pyare, Member (Administrative):
Shri Suresh Kumar Gupta and Shri Bijay Singh Sachan, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents are present.
2. By means of this OA, the applicant has sought the following reliefs :
"(i) To quash the order dated 15.12.2022 passed by respondent No.3 by which candidature to the post of Tax Assistant of applicant is cancelled.RAJEEV KUMAR MISHRA Page 1 of 9 OA No. 236 of 2023
(ii) To issue an order or directing the respondent No.3 to decide the representation of the applicant dated 06.12.2022.
(iii) To issue any other order or direction as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(iv) To award costs through out to the applicant."
3. The brief facts of the case are that the applicant is seeking a direction to the respondents to issue appointment letter in favour of applicant in pursuance of Examination held by the respondent no. 2 (Staff Selection Commission, Prayagraj). On 07.11.2019, the applicant filled form for the Combined Graduate Level Examination, 2019, was allotted Roll number as 3009010546 and admit card was issued for the Combined Graduate Level Examination. The applicant has passed examination held by Staff Selection Commission, Prayagraj for the Phase-1, Phase-II Phase-III and Phase-IV. The applicant was selected in Combined Graduate Level Examination, 2019 for the post of Tax Assistant on 08.09.2019 and allotted to the Zone Lucknow. The respondent no. 3 (Chief Commissioner of Income Tax, U.P. (East) issued a letter to the applicant on 15.09.2022 regarding the subject allocation of Tax Assistant (s) on the basis of Combined Graduate Level Examination, 2019. The applicant filled the attestation form on 16.09.2022 in which he was mentioned that in column of attestation form 12(i) whether any case is pending against him in any court of law at the time of filling up this attestation form. The applicant mentioned "yes". The applicant was solemnized marriage with the Smt. Diksha Sachan on 11.02.2020 but his wife RAJEEV KUMAR MISHRA Page 2 of 9 OA No. 236 of 2023 was arrogant in nature, therefore some dispute has arose between them. The applicant's wife Smt. Diksha Sachan lodged First Information Report against the applicant on 30.01.2022 as Case Crime No. 0007 of 2022, under Section 498-A, 506, 507 and 3/4 D.P. Act and charge sheet was also filed on dated 23.06.2022. The respondent no. 3 issued appointment letter regarding the selected candidate for the post of Tax Assistant and also allotted the posting place on 31.10.2022 except the applicant. It is submitted that the respondent No.3 has excluded the applicant from the list in arbitrary manner without given any opportunity of hearing. It is further submitted that in the case of Avtar Singh Vs. Union of India and others decided on 21.07.2016, para 30 (6) in case when case has been truthfully declared in character verification form regarding the pendency of criminal case of trivial nature, employer in fact considering the circumstances of the case in its discretion may appoint the candidate, subject to decision of such case but in case of applicant the aforesaid Apex Court judgment was not taken into account by the respondents authorities. The applicant has preferred a representation regarding the issuance of appointment letter but till date no action has been taken by the respondents on his application. When the respondents have not considered the grievance of the applicant, the applicant has filed Writ-A No.373 of 2023 before the Hon'ble High Court. The Hon'ble High Court vide RAJEEV KUMAR MISHRA Page 3 of 9 OA No. 236 of 2023 order dated 23.02.2023 dismissed the writ petition on the ground of availability of alternate remedy. Hence, this OA.
4. In their counter affidavit, the respondents have submitted that the applicant passed the Combined Graduate Examiantion- 2019, held by the Staff Selection Commission and got selected to the post of Tax Assistant in CBDT. The dossiers of the applicant were allocated to Income Tax, U.P. (East) Region, Lucknow vide letter dated 8.9.2022. The applicant was communicated by the Office letter dated 15.9.2022 to complete further due procedure for issuance of appointment order for the post of Tax Assistant. In reply, the applicant submitted attestation form on 16.9.2022. It is pertinent to mention here regarding pendency of criminal case in respect of the candidate, the applicant mentioned "YES" in the aforementioned column. The character verification report of the applicant was received in the office on 2.12.2022 mentioning that Case No.07/22 under Section 3/4 of D.P. Act, 498-A, 504/506 of IPC has been registered against the applicant. Further, another report received on 11.1.2023 mentioned that a Charge-sheet No.36/22 has also been filed before the court on 23.6.2022 and the same is pending. After considering the facts mentioned above, the candidature of the applicant was cancelled and the RAJEEV KUMAR MISHRA Page 4 of 9 OA No. 236 of 2023 dossiers were returned to the HRD, CBDT vide letter dated 15.12.2022. It is further stated that in respect of Par 4(v) of the above mentioned original application, Para 30(6) of the judgment of Hon'ble Apex Court in the case of Avatar Singh Vs. Union of India and others is reproduced hereunder for clarity:-
"30. (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....."
In this regard, Para 30(4) of the said judgment also needs to be put hereunder, in which the Hon'ble Apex Court has provided the examples of a case trivial in nature:-
"30(4). ...( 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....."
In this regard Section 95 of the Indian Panel Code, 1860 provides for the private defence for trivial or trifle acts. It states that "nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm if that harm is so slight that no person of ordinary sense and temper would complain of such harm". The provision expressly discards the conviction of the accused in matters which are trivial and petty in nature and no man of prudence and ordinary nature RAJEEV KUMAR MISHRA Page 5 of 9 OA No. 236 of 2023 would seek to complain against such acts before the court of law. This section is based on the principle of "de minimis non-curat lex" which proves that the "law is not concerned with trifles." Therefore, it is clear that the competent authority has not committed any illegality or infirmity in the matter. On the basis of above discussions, the respondents have submitted that the OA of the applicant is devoid of merit and deserves to be dismissed.
5. In rejoinder affidavit, the applicant has narrated almost the similar points and added that the F.I.R. registered as crime no.07/2022 under Section 498-A, 506,507 I.P.C.&3/4 D.P. Act P.S.-Barour Kanpur Dehat; there is malicious and false allegation of demand of dowry, harassment, etc. by Smt. Deechha against the applicant and his family member in which Smt. Deechha refused mediation and investigation officer found allegation of social media uploading false and hence after investigation charge sheet has been submitted by police against the applicant only though the applicant is innocent and he has been blackmailed by Smt. Deechha and her family member hence father of applicant has registered an F.I.R. registered as crime no.116/2022 under Section 504,506 I.P.C.&66 I.T.. Act P.S.-Sajeti Kanpur Nagar.
6. Heard learned counsel for the parties and perused the documents available on record and considered them. RAJEEV KUMAR MISHRA Page 6 of 9 OA No. 236 of 2023
7. Learned counsel for the applicant has mainly relied upon with para 21 and 22 in the case of Avtar Singh Vs. Union of India & ors. decided on 21.07.2016 by the Hon'ble Supreme Court. Para 21 and 22 of the aforesaid judgment is reproduced as below :-
21. The verification of antecedents is necessary to find out fitness of incumbent, in the process if a declarant is found to be of good moral character on due verification of antecedents, merely by suppression of involvement in trivial offence which was not pending on date of filling attestation form, whether he may be deprived of employment? There may be case of involving moral turpitude/serious offence in which employee has been acquitted but due to technical reasons or giving benefit of doubt.
There may be situation when person has been convicted of an offence before filling verification form or case is pending and information regarding it has been suppressed, whether employer should wait till outcome of pending criminal case to take a decision or in case when action has been initiated there is already conclusion of criminal case resulting in conviction/acquittal as the case may be. The situation may arise for consideration of various aspects in a case where disclosure has been made truthfully of required information, then also authority is required to consider and verify fitness for appointment. Similarly in case of suppression also, if in the process of verification of information, certain information comes to notice then also employer is required to take a decision considering various aspects before holding incumbent as unfit. If on verification of antecedents a person is found fit at the same time authority has to consider effect of suppression of a fact that he was tried for trivial offence which does not render him unfit, what importance to be attached to such non-disclosure. Can there be single yardstick to deal with all kind of cases?
22. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of RAJEEV KUMAR MISHRA Page 7 of 9 OA No. 236 of 2023 case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.
8. The main issue projected by learned counsel for the applicant that the applicant has truthfully disclosed the above pendency of a criminal case against him. The case is related to marital dispute. A criminal case is pending at the Trial level. He is not convicted and hence the authorities should have taken into account the above truthful declaration and provided him appointment.
9. Contrary to that learned counsel for the respondents have also relied upon the same above judgment and cited para 30 (6), which is reproduced as below :-
" 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."
On the basis of above discussion, they have submitted that it is a discretion of the competent authority to extend the appointment to the candidate subject to decision of the case, provided the charges against the applicant are of trivial nature.
10. In the present case, charges are of dowry harassment and marital dispute, which cannot be said to be of heinous nature. RAJEEV KUMAR MISHRA Page 8 of 9 OA No. 236 of 2023 Although, the judgment in the above case is yet to be pronounced by the Trial Court yet the respondents ought to have taken recourse to the para 30 (6) of the judgment of Hon'ble Apex Court in the case of Avatar Singh Vs. Union of India and others (supra) for disposal of the representation.
11. Since the applicant has truthfully disclosed the pendency of the criminal case, thus, the request of the applicant for disposal of his representation dated 06.12.2022 has some merit and deserves to be considered.
12. In the light of above discussion, the competent authority amongst the respondents is directed to look into the representation of the applicant dated 06.12.2022 in the light of above discussion and pass a reasoned and speaking order. The OA is accordingly disposed of. No order as to costs.
13. All MAs pending in this O.A. also stand disposed off.
(Mohan Pyare) (Justice Om Prakash VII)
Member(Administrative) Member(Judicial)
RKM/
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