Allahabad High Court
Shailesh Kumar vs State Of U.P. Thru. ... on 24 March, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 17 Case :- WRIT - A No. - 12831 of 2021 Petitioner :- Shailesh Kumar Respondent :- State Of U.P. Thru. Prin.Secy.Irrigation And Water Resour.Andors Counsel for Petitioner :- Satya Prakash Mishra,Rakesh Devi Prasad Kumar,Satya Prakash Tiwari,Shraddha Tripathi Counsel for Respondent :- C.S.C.,Ashok Shukla,Raj Kumar Upadhyaya (R.K.Upadhyaya) Hon'ble Dinesh Kumar Singh,J.
1. The present petition under Article 226 of the Constitution of India has been filed seeking a Writ of Certiorari quashing the order dated 26.4.2021 passed by the Chief Engineer (Project) (Adhishthan-II), Irrigation and Water Resources Department, Lucknow, opposite party no.3, with further prayer to issue a Writ of Mandamus commanding the opposite party no.3 to issue appointment letter and give joining to the petitioner in pursuance to the final result dated 10.1.2020 declared by opposite party no.4 in pursuance to the selection proceeded under Advertisement No.A-9/E-2013 dated 24.12.2013 published for the post of Junior Engineer.
2. The petitioner got selected for the post of Junior Engineer in the Irrigation Department in pursuance to the Advertisement No.A-9/E-1/2013 dated 24.12.2013 issued by the Uttar Pradesh Public Service Commission for conducting the examination in the name and style of ?Combined Junior Engineer (General Category) Examination, 2013 and Combined Junior Engineer Physically Handicapped (Backlog/Special Recruitment) Examination, 2013. The petitioner belongs to Scheduled Caste category. He had completed Diploma Course in Civil Engineering Trade from Polytechnic, Gorakhpur running under Uttar Pradesh Technical Education, Lucknow in the year 2012. The final result of the said examination was published on 10.1.2020. The petitioner participated in the interview as well as the the medical health examination and his name found place in the merit list prepared for appointment in Scheduled Caste category candidate. The petitioner, however, was not issued the appointment letter on the ground that the petitioner was one of the accused in FIR registered at Case Crime No.0358 of 2015, under Sections 147, 307, 452, 323, 504 and 506 IPC, Police Station Gola, District Gorakhpur. The said FIR was registered by the complainant Rajiv Paswan.
3. It is alleged that the aforesaid FIR was the result of political enmity because of the panchayat elections. In the investigation carried out, the offence under Section 307 IPC was initially dropped and the name of the petitioner was also struck off from the array of the accused. However, it appears that the Senior Superintendent of Police, Gorakhpur directed for further investigation under Section 173(8) Cr.P.C. and again the offence under Section 307 IPC got added against the petitioner. The petitioner has not been convicted and there is no other offence registered against him. This is the solitary offence, which is registered against the petitioner.
4. Sri Rakesh D Kumar, assisted by Ms. Swati Singh, learned counsel for the petitioner submits that the offence for which the petitioner has been charge-sheeted, does not involve the moral turpitude or of such a nature which would come on the way of his discharge of duties. He has placed reliance on the judgement of the Supreme Court in the case of Avtar Singh Vs. Union of India and others, (2016) 8 SCC 471 to submit that the petitioner did not give any false information before the authorities. The petitioner has also mentioned the fact regarding pendency of the criminal case against him. The authorities should have taken into consideration the Government Orders dated 28.4.1958 and 7.5.1976 in this respect, which clearly provide that 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 and the appointing authority is required to satisfy itself on this point.
5. Learned counsel for the petitioner further submits that the facts and circumstances of the case criminal case would suggest that the criminal case is not of such nature which would make the petitioner unsuitable for employment for the post of Junior Engineer. Senior Superintendent of Police, Gorakhpur has issued the character certificate of good character of the petitioner and merely on the ground of pendency one criminal case, the petitioner cannot be said to be a person of bad character and unsuitable for employment on the post of Junior Engineer. He also submits that the Supreme Court has taken note of the Government Order dated 28.4.1958 in the case of Ram Kumar vs. State of U.P. and others, (2011) 14 SCC 709.
6. Learned counsel for the petitioner has also invited the attention of this Court towards paragraph 30 of the judgment in the case of Avtar Singh (supra), which summarizes the law in this respect, which would read as under:-
"30. 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 comes to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected 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 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 of 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.?
7. The petitioner has also tendered an undertaking in the Court by way of an affidavit, wherein the petitioner has specifically undertaken that his appointment on the post of Junior Engineer can be ordered to be subject to the final outcome of the trial in the criminal case and, he has also specifically undertaken that he will deposit the entire salary paid to him with the Government in case of his conviction.
8. On the other hand, Sri Ram Pratap Singh Chauhan, learned Additional Chief Standing Counsel has submitted that the certificate of good character issued by the Senior Superintendent of Police, Gorakhpur has not recommended that the petitioner be given appointment pending criminal case against him. He has further submitted that under Rule 11 of the U.P. Irrigation Department Civil Engineer (Subordinate) Service Rules, 1992, it is the competent authority, who has to satisfy itself that the petitioner is of good character. It is also the mandate of the Government Order dated 28.4.1958. He has, therefore, submitted that the authority considering the criminal case pending against the petitioner, has not found him as a man of good character and fit to be appointed on the post of Junior Engineer and, therefore, he has not issued the appointment order.
9. Sri R.K. Upadhyaya, learned counsel for the Uttar Pradesh Public Service Commission has submitted that the Commission is only a recruitment body and the final decision is in the hands of the appointing authority. However, in respect of the Government Order dated 28.4.1958, he has submitted that it is for the authority to consider the facts and circumstances of the case if a candidate is found to have been involved in some criminal case and take a decision whether such a candidate is fit to be given employment and fit to discharge the duties on the post in question.
10. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.
11. There may be some substance in the submission of learned counsel for the petitioner that the FIR in question was registered after the advertisement was issued for selection on the post of Junior Engineer due to political enmity in the panchayat elections. No visible injury was found or even in the X-Ray, no such injury was noticed to be caused to the complainant, which would attract the offence under Section 307 IPC.
12. It can be noticed that initially the Investigating Officer did not find involvement of the petitioner in the commission of offence, and subsequently by the order of the Senior Superintendent of Police, Gorakhpur in further investigation under Section 173(8) Cr.P.C., name of the petitioner got added. It is not such a case whether the pendency of the case would make the petitioner unfit for appointment to the post of Junior Engineer. The conclusion of the trial may take a long time and till the petitioner gets clean chit from the competent court in the criminal case, his career would be over.
13. Considering the entire facts and circumstances of the case and also taking into account the undertaking given by the petitioner and the certificate of good character issued by the Senior Superintendent of Police, Gorakhpur, I am of the view that the petitioner should be given appointment on the post of Junior Engineer if the post is vacant, but such appointment shall be subject to final outcome of the trial in the FIR registered at Case Crime No.0358 of 2015, under Sections 147, 307, 452, 323, 504 and 506 IPC, Police Station Gola, District Gorakhpur. The petitioner shall abide by the undertaking for returning the entire salary paid to him in the event of his conviction in the aforesaid criminal case. The petitioner may take any other legal remedy available to him in respect of the criminal case which is pending against him.
14. Order accordingly.
15. Subject to above noted terms, the petition is allowed and the impugned order dated 26.4.2021 passed by the Chief Engineer (Project) (Adhishthan-II), Irrigation and Water Resources Department, Lucknow, opposite party no.3, is hereby quashed.
Order Date :- 24.3.2023 Rao/-