Allahabad High Court
Abhishek Kumar Singh vs State Of U.P. And Another on 31 May, 2023
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:121576
AFR
Reserved on 18.04.2023
Delivered on 31.05.2023
Case :- WRIT - A No. - 254 of 2023
Petitioner :- Abhishek Kumar Singh
Respondent :- State of U.P. and Another
Counsel for Petitioner :- Siddharth Khare
Counsel for Respondent :- C.S.C.,Ashish Mishra,Fuzail Ahmad Ansari
Hon'ble Saral Srivastava,J.
1. Heard Sri Siddharth Khare, learned counsel for the petitioner, Sri Shrawan Kumar Dubey, learned Additional Chief Standing Counsel for respondent no.1, and Sri Rahul Srivastava, Advocate holding brief of Sri F.A. Ansari, learned counsel for respondent no.2.
2. The petitioner through the present writ petition has assailed the order dated 01.10.2022 passed by respondent no.2 rejecting the candidature of the petitioner for the post of Assistant Review Officer on the ground that criminal cases pending against him fall within the purview of 'moral turpitude'.
3. The brief facts of the case are that under Advertisement No.01/R.O. & A.R.O./2021 dated 17th August 2021, online applications were invited from the eligible candidates for filling up 350 posts of Assistant Review Officers. The petitioner applied for being considered for appointment on the said post under O.B.C/Physically Handicapped category.
4. The petitioner appeared in each stage of selection and was declared successful for the said post.
5. A notice was issued by the selection committee calling upon the petitioner to appear on 06.04.2022 for document verification. The petitioner was also required to furnish an affidavit to the effect that whether any criminal case is pending against him or not. The petitioner submitted an affidavit dated 02.04.2022 during the document verification disclosing the details of two F.I.Rs lodged against him; (i) Case Crime No.0172 of 2019, under Sections 420, 467, 468 I.P.C. at P.S. Tajganj, District Agra; (ii) Case Crime No.0389 of 2021 under Sections 420, 467, 468, 471, 472 & 120B I.P.C., Section 66 of Information Technology Act, 2008 and Section 7 of the Examination Rules, 1982.
6. Respondent no.2 vide order dated 01.10.2022 cancelled the candidature of the petitioner on the ground that two criminal cases pending against the petitioner come within the purview of 'moral turpitude'. The said order is impugned in the writ petition.
7. It is further stated that in Case Crime No.0172 of 2019, the charge sheet has been filed on 14.03.2020 under Sections 420, 467, and 468 I.P.C. The petitioner in the said criminal case has been enlarged on bail by the Sessions Judge, Agra vide order dated 18.03.2019 passed in Bail Application no.1375 of 2019. In respect to Case Crime No.0384 of 2021, it is stated that a charge sheet has been filed on 17.10.2021 under Sections 420, 467, 468, 471, 472, and 120-B of I.P.C. and Section 66 of Information Technology Act, 2008 and Section 7 of Examination Rules, 1982. In the said criminal case, the petitioner has also been enlarged on bail by this Court vide order dated 11.08.2021 passed in Criminal Misc. Bail Application No.26707 of 2021.
8. It is further stated that while cancelling the candidature of the petitioner, the procedure contemplated in the Government Order dated 28.04.1958 has not been followed. It is also alleged that the impugned order did not advert to the section under which F.I.R. has been lodged and the conduct of the petitioner, and thus, the impugned order has been passed mechanically.
9. In the counter affidavit filed by respondent no.2, it is stated that the petitioner did not disclose the details about the pendency of criminal cases against him in the online application form. This fact is evident from the online application form appended as annexure 2 to the writ petition in which in the column of 'criminal proceeding' the petitioner has filled as follows:-
"Criminal Proceeding.
Have you ever been tried, convicted or acquitted by Court of law?
No Whether any criminal complaint cases have ever been registered against you?
No."
10. It is further stated that in the advertisement, General Instructions were given under Chapter-9 for filling up the online application form. Under the general instructions, it is specifically stated that if a candidate is found providing incomplete or wrong information, then the candidate will be solely responsible for the same, and based on false and incomplete information, the application form shall be rejected at any stage of selection without giving any reasons/notice. The general instruction also provides that the candidate is required to disclose the details in the application form that any criminal proceeding has been initiated against him/her or the First Information Report has been lodged against him/her, and concealment of any fact may disqualify and entail cancellation of his/her candidature.
11. It is also stated in the counter affidavit that as the petitioner did not disclose the pendency of criminal cases in the online application form as required under Chapter-9 of the advertisement, the candidature of the petitioner has been cancelled.
12. The respondents further stated in the counter affidavit that the petitioner appeared on 06.04.2022 for document verification, and the petitioner for the first time in the affidavit dated 02.04.2022 disclosed the details of two F.I.Rs lodged against him. Thereafter, the matter concerning the petitioner was placed before the Recruitment Committee at Agenda No.6, which in its meeting dated 20.09.2022 has resolved to reject the candidature of the petitioner as the offences under which the petitioner has been charged fall within the purview of 'moral turpitude'. The resolution of the Recruitment Committee dated 20.09.2022 was duly seen by Hon'ble The Chief Justice on 30.09.2022. In compliance thereof, the impugned order has been passed.
13. Challenging the aforesaid order, learned counsel for the petitioner has contended that the impugned order does not disclose any independent application of mind inasmuch as the impugned order is cryptic. It is contended that a detailed procedure for verification of character and antecedents of government servant before the first appointment is provided in the Government Order dated 28.04.1958 which has to be adhered to before cancelling the candidature of a candidate on the ground that his/her character and antecedents are not such to make him/her suitable for the post.
14. Elaborating the argument, learned counsel for the petitioner has contended that if the District Magistrate of the concerned district where the candidate resides, on verification of character and antecedents of the candidate forms an opinion that the said report is adverse to the candidate, an opportunity of hearing to the candidate is must before furnishing such adverse report. In support of the said contention, he has placed reliance upon the judgement of this Court in the case of Ajeet Kumar Vs. State of U.P. and Others passed in Writ-A No.31466 of 2010 and Shivendra Kumar Paswan Vs. State of U.P. and Others passed in Writ-A No.17092 of 2021.
15. Learned counsel for the petitioner has further urged that as of today, two criminal cases against the petitioner are pending, and charges against him in the aforesaid two criminal cases are yet to be proved. Thus, it is contended that the pendency of two criminal cases cannot be made basis to non-suit the petitioner for the post of Assistant Review Officer.
16. It is further contended that the Apex Court in the case of Mohammed Imran Vs. State of Maharashtra and Others (2019) 17 SCC 696 has allowed the appeal of the appellant who was denied appointment on the ground of 'moral turpitude'. On the strength of aforesaid judgement, it is submitted by the learned counsel for the petitioner that respondent no.2 ought to have deliberated that the nature of the allegation and conduct of the petitioner is such that it falls under the definition of 'moral turpitude' whereas no such deliberation is reflected from the impugned order.
17. It is also urged that under the Allahabad High Court Officers and Staff (Conditions of Service and Conduct) Rules, 1976 (hereinafter referred to as 'Rules, 1976') read with Notification No.70 dated 14.11.2021, the Registrar General is the appointing authority in the matters of appointment, promotion, etc. to Class-II (Non-Gazetted), Class-III and Class-IV posts referred to in Rule 4 to 15(G) of Rules, 1976. Accordingly, it is contended that the decision to appoint or cancel the candidature of a candidate ought to have been taken by independent exercise of powers at the level of appointing authority i.e. Registrar General, and not by Recruitment Committee, as after selection, the role of Recruitment Committee is over, and Recruitment Committee has no power to take a decision with regard to cancellation of candidature of a candidate.
18. It is also urged that this Court cannot go beyond the reasons given in the impugned order for cancelling the appointment of the petitioner while testing the legality of the said order. It is submitted that in the instant case, the impugned order does not contain any ground that there was concealment of fact in the application form, therefore, such ground is not tenable in the facts of the present case to uphold the impugned order.
19. In the aforesaid backdrop, it is submitted that the matter may be remitted to respondent no.2 to consider the claim of the petitioner afresh.
20. Per contra, learned counsel for the respondents would contend that it is evident from the application form of the petitioner that he did not disclose the pendency of two criminal cases against him in the application form. It is further contended that under the general instructions in the advertisement, it is clearly stated that if there is any concealment or wrong information furnished by the candidate in the application form, he/she shall be solely responsible for the same, and his/her candidature shall be liable to be cancelled at any stage of selection without any reasons/notice. It is further submitted that it is the domain of the appointing authority to consider the suitability of a candidate for a post, and in the instant case, the resolution was passed by the Recruitment Committee and the same was placed before Hon'ble Chief Justice on 30.09.2022, who perused the resolution of the Recruitment Committee, and therefore, there is no illegality in the impugned order passed by the respondent no.2.
21. Thus, it is submitted that the appointing authority in its domain can look into the charges levelled against the petitioner in the criminal cases, and if he finds that charges are such which fall within the purview of 'moral turpitude', the candidature of the petitioner can always be rejected.
22. It is further submitted that the allegations against the petitioner in two F.I.Rs are grave which come within the purview of 'moral turpitude'. It is submitted that resolution of the Recruitment Committee, which has been perused by Hon'ble The Chief Justice, clearly reflects that there was deliberation with regard to the suitability of the petitioner for the post of Assistant Review Officer, and since charges against the petitioner are such which fall under the definition of 'moral turpitude', therefore, there is no illegality in the impugned order passed by the respondent no.2.
23. It is also urged that by Notification No.70 dated 14.11.2021, Hon'ble The Chief Justice has been pleased to direct the Registrar General of the Court to be the appointing authority in respect of all matters of appointment, promotion, etc. to Class-II (Non-Gazetted), Class-III and Class-IV posts referred to in Rule 4 to Rule 15(G) of Rules, 1976, and under the said notification, Registrar General exercises its power as appointing authority. It is contended that since in the instant case, Hon'ble The Chief Justice has perused the resolution of the Recruitment Committee, and therefore, the decision to cancel the candidature of the petitioner is deemed to be of Hon'ble The Chief Justice, who is the Head of the Institution and who is the appointing authority as per Rule 2(l) of the Rules, 1976, therefore, the petitioner's objection that respondent no.2 ought to have done an independent exercise to cancel his candidature is misconceived.
24. I have considered the rival submissions of the parties and perused the record.
25. The undisputed facts as emanates from the record are that under the advertisement dated 17.08.2021, the petitioner submitted an online application for being considered for appointment under the O.B.C/Physical Handicapped category on the post of Assistant Review Officer. The petitioner was declared successful and was, accordingly, called to appear for document verification on 06.04.2022. The petitioner was also required to furnish an affidavit to the effect whether any criminal case is pending against him or not. The petitioner furnished an affidavit dated 02.04.2022 at the time of document verification on 06.04.2022 disclosing for the first time the details of two F.I.Rs lodged against him, which are as follows:-
I. F.I.R. dated 19.02.2019 lodged against the petitioner as Case Crime No.0172/2019, under Sections 420, 467, 468 I.P.C. at police station-Tajganj, District Agra in which charge sheet dated 14.03.2022 has been filed under Sections 420, 467 & 468 I.P.C. In the said criminal case, the petitioner has been enlarged on bail by Sessions Judge, Agra vide order dated 18.03.2019.
II. F.I.R. dated 08.06.2021 lodged against the petitioner as Case Crime No.0389 of 2021. In the said criminal case, a charge sheet has been filed on 17.10.2021, under Sections 420, 467, 468, 471, 472, and 120B of I.P.C., Section 67 of Information Technology Act, 2008 and Section 7 of Examination Rules, 1982. The petitioner was also enlarged on bail in the said criminal case by this Court vide order dated 11.08.2021 in Criminal Misc. Bail Application No.26707 of 2021.
26. It is also not disputed by the petitioner that he did not disclose the pendency of two criminal cases against him in the application form. However, in the rejoinder affidavit, it is stated that the said information could not be filled in the application form due to inadvertence as the application form was filled up by the petitioner at the cybercafe with the help of people at the cybercafe, and due to their mistake, the column about 'pendency of criminal case' remained unfilled.
27. In the aforesaid factual backdrop, now this Court proceeds to analyse the argument raised by the respective counsels.
28. Now, coming to the first submission of learned counsel for the petitioner regarding non-adherence to the procedure provided in the Government Order dated 28.04.1958, it is pertinent to reproduce the relevant paragraphs of the Government Order dated 28.05.1958:-
"3(a). Every direct recruit to any service under the Uttar Pradesh Government will be required to produce:-
(i)...
(ii). Certificates of character from two persons. The appointing authority will lay down requirements as to kind of persons from whom it desires these certificates.
(b)...
(c). Persons dismissed by the Central Government or by a State Government will also be deemed to be unfit for appointment to any service under this Government.
In the case of direct recruits to the State Services under the Uttar Pradesh Government besides requiring the candidates to submit the certificates mentioned in paragraph 3 (a) above the appointing authority shall refer all cases simultaneously to the Deputy Inspector General of Police, Intelligence and the District Magistrate [of the home district and of the district(s) where the candidate has resided for more than a year within five years of the date of the inquiry] giving full particulars about the candidate. The District Magistrate shall get the reports in respect of the candidates from the Superintendent of Police who will consult District Police Records and records of the Local Intelligence Unit. The District Police or the District Intelligence Unit shall not make any enquiries on the spot, but shall report from their records whether there is anything against the candidate, but if in any specific case the District Magistrate, at the instance of the appointing authority asks for an enquiry on the spot, the Local Police or the Local Intelligence Units will do so and report the result to him. The District Magistrate shall then report his own views to the appointing authority. Where the District Police or the Local Intelligence Units report adversely about a candidate, the District Magistrate may give the candidate a hearing before sending his report."
29. Learned counsel for the petitioner has laid much emphasis upon para-3(c) of the Government Order, extracted above, to contend that as the Government Order dated 28.04.1958, which according to counsel for the petitioner is applicable in respect of recruitment of High Court employees, provides that appointing authority shall simultaneously refer all cases to the Deputy Inspector General of Police, Intelligence and the District Magistrate (of the home district and district where the candidate resides for more than a year within five years of the date of inquiry) giving full particulars about the candidate. Thereupon, District Magistrate shall get the report in respect of the candidate from the Superintendent of Police, who shall make necessary inquiries as detailed in paragraph 3(c), extracted above, and shall submit a report to the District Magistrate. The District Magistrate thereupon shall report his own views to the appointing authority. It also provides that where District Police or Local Intelligence Units report adversely about a candidate, the District Magistrate may give the candidate a hearing before sending his report.
30. Now, the question arises as to whether at the time of document verification, the procedure contemplated under the Government Order dated 28.04.1958 is attracted or not.
31. In the instant case, it is admitted on record that during the document verification, an affidavit dated 02.04.2022 has been furnished by the petitioner disclosing for the first time the details of two criminal cases pending against him in the affidavit. The purpose of document verification is to assess the suitability of a candidate for the offer of appointment on the basis of the document and other information given by the petitioner in the affidavit. Till the process of document verification is successfully completed by a candidate, the stage of issuing of offer of appointment will not come and as such, at this stage, there is no question of verifying the character and antecedents of the government servant.
32. At the time of document verification, if it is found that a candidate is not suitable for the reason that documents presented by him/her are not genuine or the candidate does not possess the requisite qualification or criminal case pending against him/her is of serious and grave in nature falling within the definition of 'moral turpitude', his/her candidature can be cancelled and stage of offer of appointment has not yet come. In this respect, it would be apt to have a glance at the subject of Government Order dated 28.04.1958 which reads "Verification of the character and antecedents of Government servants before their first appointment".
33. Thus, it is clear from the subject of the Government Order dated 28.04.1958 that verification of character and antecedents of the government servants are required to be done before their first appointment. In the instant case, that stage has not yet come as at the time of document verification, the petitioner for the first time disclosed the pendency of two criminal cases against him, and the Recruitment Committee considered his candidature and found that he is not suitable for appointment, accordingly, it decided to cancel the candidature of the petitioner, and resolution of the Recruitment Committee was duly seen by Hon'ble The Chief Justice on 30.09.2022.
34. Now coming to the judgment relied upon by the learned counsel for the petitioner, this Court may note that in the case of Ajeet Kumar (supra), the petitioner applied for consideration for the post of Sub-Inspector on compassionate ground. The petitioner underwent the physical test, however, he was not sent for training which led the petitioner to prefer a writ petition before this Court, in which this Court directed the authorities to take a decision. Pursuant to the judgment of this Court, the petitioner was non-suited on the basis of the report/comment of Sub-Inspector of Police Station-Chajlet, District, Moradabad. This Court found that character verification of the petitioner for appointment was not done as per Government Order dated 28.04.1958, consequently, this Court set aside the order and remanded the matter.
35. The aforesaid case is distinguishable from the facts of the present case since in the case of Ajeet Kumar (supra), the candidature of the petitioner was rejected on the basis of some report/comments submitted by Sub-Inspector of Police Station- Chajlet, District Moradabad whereas in the instant case, that stage has not yet come as during the document verification, disclosure of two criminal cases against the petitioner came into light, and he was non-suited for appointment as criminal cases pending against him fall within the purview of 'moral turpitude'.
36. In the case of Shivendra Kumar Paswan (supra) also, the petitioner's claim for appointment as Constable was rejected on the ground of pendency of criminal case bearing Case Crime No.100 of 2016, under Sections 354, 323, 504, and 506 I.P.C. In the said case, a character verification report was sought, and District Magistrate submitted the report of character verification adverse to the petitioner. In such factual backdrop, the petitioner specifically alleged that the report of the District Magistrate cannot be read against him for non-compliance with the provision of Government Order dated 28.04.1958 as no opportunity of hearing was granted by the District Magistrate to the petitioner before forming an adverse opinion to reject his candidature. In such view of the fact, this Court found that since no opportunity of hearing was afforded to the petitioner by the District Magistrate before forming an adverse opinion, therefore, no reliance can be placed on the report of the District Magistrate, consequently, this Court set aside the impugned order and remanded the matter to the authority concerned.
37. The facts of the present case are different from the facts in the case of Shivendra Kumar Paswan (supra) inasmuch as in the present case the stage of character verification has not yet come.
38. Given the aforesaid discussion, this Court finds the submission advanced by the learned counsel for the petitioner that the procedure contemplated under the Government Order dated 28.04.1958 has not been followed lacks merit and deserves to be rejected.
39. Now coming to the second submission of counsel for the petitioner that whether the impugned order has been passed cursorily and without due consideration, and whether the pendency of criminal cases where charges are yet to be proved against the petitioner can be a ground to non-suit the petitioner for appointment; this Court may note that it is the exclusive domain of the employer to assess the suitability of the candidate for the post, and merely because the candidate has disclosed pendency of criminal case against him/her, and that he/she has been acquitted in the criminal case would not automatically entitle him/her for the employment. The only rider on the power of the employer to assess the suitability of a candidate is that his decision shall not reflect arbitrariness or bias or it should not smack of mala-fide.
40. In this regard, it would be apt to reproduce paragraph 21 of the judgment of Apex Court in the case of Union of India and Others Vs. Methu Meda 2022 (1) SCC 1:-
"21. As discussed hereinabove, the law is well-settled. If a person is acquitted giving him the benefit of doubt, from the charge of an offence involving moral turpitude or because the witnesses turned hostile, it would not automatically entitle him for the employment, that too in disciplined force. The employer is having a right to consider his candidature in terms of the circulars issued by the Screening Committee. The mere disclosure of the offences alleged and the result of the trial is not sufficient. In the said situation, the employer cannot be compelled to give appointment to the candidate. Both the Single Bench and the Division Bench of the High Court have not considered the said legal position, as discussed above in the orders impugned. Therefore, the impugned orders passed by the learned Single Judge of the High Court in Writ Petition No.3897 of 2013 and Division Bench in Union of India Vs. Methu Meda 2013 SCC Online MP 10701 are not sustainable in law, as discussed hereinabove."
41. In the case of Imtiyaz Ahmad Malla Vs. State of Jammu and Kashmir and Others AIR 2023 SC 1308, the Apex Court has held that the Director General being the highest functionary in the police hierarchy was the best judge to consider the suitability of the petitioner for induction into the police. Paragraphs 13 and 14 of the said judgement are being reproduced herein below:-
"13. As regards the suppression of relevant information or false information with regard to the criminal prosecution, arrest or pendency of criminal case against the candidate, a three-judge Bench of this Court in Avtar Singh Vs. Union of India and Others has laid down the precise guidelines. Para 38.5 thereof reads as under:
"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."
14. In all the above cases, the requirement of integrity and high standard of conduct in police force has been highly emphasised. The High Court in the impugned judgement has also elaborately dealt with each and every aspect of the issues involved, while upholding the order of the Single Bench to the effect that the Director General being the highest functionary in the police hierarchy, was the best judge to consider the suitability of the petitioner for induction into the police force. The impugned order being just and proper, we are not inclined to interfere with the same in exercise of our jurisdiction under Article 136 of the Constitution of India."
42. So from the reading of aforesaid two judgments, the law on the point that it is the exclusive domain of the employer to assess the suitability of a candidate is no more res-integra.
43. In the instant case, it has come on record that on disclosing the details of two criminal cases in the affidavit by the petitioner, the matter was referred to the Recruitment Committee who in its meeting dated 20.09.2022 at Agenda No.6 resolved to cancel the candidature of the petitioner. The resolution of the recruitment committee is reproduced herein below:-
"The candidate has been charged under sections 420, 467, 468, 471, 120B of I.P.C. and 66B of I.T. Act. The offence of the candidate fall under purview of moral turpitude as such he can not be offered appointment and his candidature is cancelled."
44. The aforesaid resolution was duly seen by Hon'ble The Chief Justice on 30.09.2022. Thus, from the aforesaid fact, it is evident that the decision to cancel the candidature of the petitioner is deemed to be of Hon'ble The Chief Justice and he, being the Head of the Institution, has the power to assess the suitability of employees in the High Court.
45. At this point, it is pertinent to mention that a candidate seeking an appointment in the High Court should be of impeccable character and high integrity, and his antecedents should be clean. The High Court is a Court of record and if a person whose integrity is doubtful or his antecedents are not clean is appointed, that can damage the institution inasmuch as if the Court records are misplaced or tampered with that would cause immense prejudice to the litigants and also shake the confidence of the public in the judicial system which would ultimately result in serious damage to the prestige of the institution.
46. The submission that impugned order has been passed cursorily in the opinion of the court is also misconceived as the resolution of the Recruitment Committee clearly discloses the application of mind in passing the resolution in deciding that the charges against the petitioner fall within the purview of 'moral turpitude' which resolution was duly seen by Hon'ble The Chief Justice on 30.09.2022.
47. In Case Crime No.0172 of 2019, the allegation against the petitioner is that in the RPF CBT Online Exam conducted at Gyan Bharti College of Education opposite Nalanda Town, Shamshabad Road, Agra, the petitioner entered into the said center and on the basis of some forged identity-card, he appeared in the examination for some other candidate. The allegation in the said F.I.R. is that of impersonation, and accordingly, he was charged under Sections 420, 467, and 468 of I.P.C.
48. In Case Crime No.0389 of 2021, the petitioner has again been charged with the allegation of impersonation as he appeared for two candidates namely Ram Prakash and Pankaj in a competitive examination for the post of Constable in the Police Department. Consequently, he was charged under Section 420, 467, 468, 471, 472 & 120B I.P.C., Section 66 of the Information Technology Act, 2008, and Section 7 of the Examination Rules, 1982.
49. Now, the Court considers whether the aforesaid charges against the petitioner come within the purview of 'moral turpitude; it would be apt to have a glance at the meaning of 'Moral Turpitude' as defined in the following dictionaries:-
"Moral Turpitude- "The act of baseness, vileness, or the depravity in the private and social duties which man owes to his fellow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man." (Black's Law Dictionary) (6th Edn.).
Moral Turpitude-"An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man" (Bouvier's Law Dictionary).
Moral Turpitude- "Bad faith, bad repute, corruption, defilement, delinquency, discredit, dishonour, shame, guilt, knavery, misdoing, perversion, shame, vice, wrong." (Burton Legal Thesaurus)"
50. At this stage, it would also be apposite to refer few judgments of Apex Court which will be helpful in the facts of the present case.
51. In Allahabad Bank and Another Vs. Deepak Kumar Bhola 1997 (4) SSC 1, the Apex Court upheld the suspension order passed against an employee during the pendency of criminal trial for an offence involving 'moral turpitude' where the employee was charged for the offence of committing forgery and wrongfully withdrawal of money which he was not entitled to withdraw. Paragraphs 8 and 9 of the said judgement are reproduced herein below:-
"8. What is an offence involving "moral turpitude" must depend upon the facts of each case. But whatever may be the meaning which may be given to the term "moral turpitude" it appears to us that one of the most serious offences involving "moral turpitude" would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw.
9. This Court in Pawan Kumar Vs. State of Haryana and Another (1996) 4 SCC 17 dealt with the question as to what is the meaning of expression "moral turpitude" and it was observed as follows:-
"Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity".
This expression has been more elaborately explained in Baleshwar Singh Vs. District Magistrate And Collector Banaras AIR 1959 All. 71 where it was observed as follows:
"The expression "moral turpitude' is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellowmen or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man"
52. In the case of State Bank of India and Others Vs. P. Soupramaniane 2019 (18) SCC 135, the Apex Court after considering the definition of 'moral turpitude' laid down the tests which can be applied for judging whether an offence involves 'moral turpitude' or not. Paragraphs 12 and 13 of the said judgement are reproduced herein below:-
"12. There is no doubt that there is an obligation on the management of the Bank to discontinue the services of an employee who has been convicted by a criminal court for an offence involving moral turpitude. Though every offence is a crime against the society, discontinuance from service according to the Banking Regulation Act can be only for committing an offence involving moral turpitude. Acts which disclose depravity and wickedness of character can be categorized as offences involving moral turpitude. Whether an offence involves moral turpitude or not depends upon the facts and the circumstances of the case.
13. Ordinarily, the tests that can be applied for judging an offence involving moral turpitude are:-
(a) Whether the act leading to a conviction was such as could shock the moral conscience or society in general;
(b) Whether the motive which led to the act was a base one, and
(c). Whether on account of the act having been committed the perpetrators could be considered to be of a depraved character or a person who was to be looked down upon by the society."
53. In the light of principles laid down by the Apex Court in the aforesaid judgments, this Court proceeds to consider whether charges against the petitioner in two criminal cases involve 'moral turpitude' or not.
54. Now, the charge against the petitioner in two criminal cases is that he impersonated some other person to appear in the competitive examination to help them. The said act of the petitioner, if leads to a conviction, would shock the moral conscience of society in general; it is obvious that the motive which led to the commission of offence alleged in two F.I.R against the petitioner was a base one; and the perpetrator of such an offence will be a person of depraved character and a person who will be looked down upon by the society. Thus, the allegation against the petitioner satisfies the three parameters recorded in paragraph 13 of the judgement of Apex Court in the case of Soupramaniane (supra) to fall within the ambit of 'moral turpitude'.
55. Sri Siddharth Khare, learned counsel for the petitioner has placed reliance upon the judgement of Apex Court in the case of Mohammed Imran (supra) to contend that as the said judgement covers the case of the petitioner, therefore, the impugned order is not sustainable in law. It may be noted that the factual backdrop in which the said judgement was passed is different from the facts of the present case. In the said case, the appellant was successful in judicial service. However, his candidature was cancelled on the basis of a verification report due to a criminal case. The appellant in the said criminal case was acquitted of the charge under Sections 363, 366, and 34 of I.P.C. on 28.10.2004 much before he cleared the examination in the year 2009 for appointment. He had disclosed the said information truthfully. The Apex Court has considered in detail the judgement of the Sessions Court acquitting the appellant to find out whether the case of the appellant falls within the ambit of 'moral turpitude'. It also found from the record that the appellant had wrongly been discriminated against as the respondent had appointed one Sudhir Gulabrao Barde, who also faced criminal prosecution and was acquitted. Further, the Apex Court in the said case called for a confidential report of the character verification and also the antecedents of the appellant, and after analysing the confidential report, the Apex Court found that the action of the respondents in non-suiting the appellant was arbitrary. The facts in the instant case are different considering the nature of the allegations levelled against the petitioner. Thus, the said judgment also does not come to the aid of the petitioner.
56. Now, so far as the contention of learned counsel for the petitioner that since charges against the petitioner in the two criminal cases are not yet proved, therefore, the pendency of two criminal cases cannot be taken as a ground to disentitle the petitioner for the appointment, it is pertinent to note that there is no provision in the law which mandates the employer not to consider criminal case pending against an employee in which trial has not yet concluded to assess his suitability for the job. The employer cannot be forced to employ a candidate, who in the opinion of the employer, is not suitable nor the employer can be asked to ignore the charges levelled against the candidate in pending criminal cases while assessing his/her suitability on the ground that the trial in a criminal case is still pending and guilt of the candidate is not yet proved.
57. In the instant case, it is evident from the charges levelled against the petitioner that the petitioner is charged with grave offences and it is not one criminal case, but in both criminal cases, the allegations against the petitioner are grave, and looking to the gravity of charges levelled against the petitioner, no prudent man can conclude that allegations against the petitioner do not involve 'moral turpitude'.
58. In such view of the fact, the said submission of learned counsel for the petitioner is misconceived.
59. In the counter affidavit, respondent no.2 stated that the petitioner has not disclosed the pendency of criminal cases against him in the application form submitted by him for the post of Assistant Review Officer, therefore, his candidature has rightly been cancelled.
60. Learned counsel for the petitioner does not dispute the fact that the petitioner has not disclosed the pendency of criminal cases against him in the application form, but he submits that rejection of the candidature of the petitioner as per the impugned order is only on the ground that he is involved in offences relating to 'moral turpitude', and this Court cannot go beyond the reasons stated in the impugned order to consider the legality of the impugned order.
61. It is true that the impugned order has been passed on the ground that the allegation against the petitioner comes within the purview of 'moral turpitude', but while exercising the power under Article 226 of the Constitution of India, this Court in a given case on admitted facts on record can look into such plea to find out whether the petitioner is entitled to any relief by this Court in its jurisdiction under Article 226 of Constitution of India. The two criminal cases against the petitioner, as delineated above, fall within the purview of 'moral turpitude'.
62. The general instructions contained in the application form stipulate that if any wrong information is furnished in the application form, the application of such candidate shall be liable to be rejected. The relevant clauses of Chapter-9 of General Instructions are reproduced herein below:-
"9.15. In case a candidate is found providing incorrect information or the identity is proved to be false at any time in the future, the candidate may face penal action as per the law applicable.
9.17. The candidates are required to fill in the Online Application Form with correct and complete information carefully. If any incomplete or false information is given, then the candidate will be solely responsible for the same and on the basis of false and incomplete information, the Application Form shall be rejected at any stage of the selection without giving any reasons/notice. On furnishing any false certificates or indicating wrong category/sub-category regarding caste in the application form or in case of any other default, The Hon'ble High Court of Judicature at Allahabad may reject the candidature at any stage of the selection and may take all necessary action.
9.27. Candidate must disclose the details in the Online Application Form, if any criminal proceeding has been initiated against him/her or First Information Report (FIR) is lodged against him/her. Concealment of any fact(s) may disqualify and entail cancellation of his/her candidature."
63. It is evident from clause 9.15 of the general instruction that if the information furnished by a candidate is incorrect or the identity is proved to be false at any time in the future, the candidate may face penal action as per the law applicable. Clause 9.17 unambiguously stipulates that if it is found that a candidate has furnished wrong or false information, the candidate shall be solely responsible for the same and his/her candidature shall be liable to be rejected without giving any reason/notice.
64. Clause 9.27 further stipulates that a candidate must disclose the details in the online application form, if any criminal proceeding has been initiated against him/her or First Information Report (FIR) has been lodged against him/her. Concealment of any such fact may disqualify and entail cancellation of his/her candidature. So clause 9.27 is specific and provides that a candidate must disclose the pendency of any criminal case against him/her or first information report has been registered against him/her and non-furnishing of such information may entail cancellation of his/her candidature.
65. In the instant case, the petitioner was well aware of the fact that two criminal cases are pending against him, but despite that, he did not disclose the same in the application form. The petitioner in the rejoinder affidavit has stated that as the application form was filled in at the cybercafe with the help of persons at the cybercafe and because of their inadvertence, the said information could not be filled up in the application form. In this respect, it is pertinent to note that a candidate is expected to read the instructions carefully while filling up the application form, and the candidate is bound by the stipulations contained in the application form, and as such it is not open to take a plea that it was an inadvertent error.
66. For argument's sake, if it is presumed that the petitioner may have inadvertently not furnished the information about the pendency of criminal cases, but at the same time, it can also not be ruled out that the petitioner may have deliberately concealed the said information knowing well that charges against him in the criminal cases are grave, and on furnishing the said information, his application form may be rejected. Non-furnishing of the said information clearly reflects the character of the candidate.
67. This Court while considering the case that the petitioner has rightly been non-suited by the Recruitment Committee can also look into those facts to find out the antecedents and character of the candidate. In this respect, it would be apt to reproduce paragraph 90 of the judgement of the Apex Court in the case of Satish Chandra Yadav Vs. Union of India 2022 SCC Online 1300:-
"90. n such circumstances, we undertook some exercise to shortlist the broad principles of law which should be made applicable to the litigations of the present nature. The principles are as follows:
a) Each case should be scrutinised thoroughly by the public employer concerned, through its designated officials-more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security.
b) Even in a case where the employee has made declaration truthfully and correctly of a concluded criminal case, the employer still has the right to consider the antecedents, and cannot be compelled to appoint the candidate. The acquittal in a criminal case would not automatically entitle a candidate for appointment to the post. It would be still open to the employer to consider the antecedents and examine whether the candidate concerned is suitable and fit for appointment to the post.
c) The suppression of material information and making a false statement in the verification Form relating to arrest, prosecution, conviction etc., has a clear bearing on the character, conduct and antecedents of the employee. If it is found that the employee had suppressed or given false information in regard to the matters having a bearing on his fitness or suitability to the post, he can be terminated from service.
d) The generalisations about the youth, career prospects and age of the candidates leading to condonation of the offenders' conduct, should not enter the judicial verdict and should be avoided.
e) The Court should inquire whether the Authority concerned whose action is being challenged acted mala fide.
f) Is there any element of bias in the decision of the Authority?
g) Whether the procedure of inquiry adopted by the Authority concerned was fair and reasonable?"
68. The Apex Court in paragraph 90(c) of the judgement of Satish Chandra Yadav (supra) has held that suppression of material information and making a false statement in the verification form relating to arrest, prosecution, conviction etc. has a clear bearing on the character, conduct and antecedents of the employee and if it is found that there is suppression of fact by a candidate, the same may entail consequence of the termination of service.
69. The purpose of seeking information about the pendency of the criminal case against a candidate in the application form is to assess the suitability of the candidate to participate in the selection process as it has a direct bearing on the character and antecedents of the candidate.
70. Thus, for the reasons given above, this Court finds that as the petitioner was bound by the instructions contained in the application form and he did not furnish the vital information with regard to the pendency of two criminal cases against him in the application form, this Court can take into account the said fact, though may not be ground in the impugned order for rejecting the candidature of the petitioner, to refuse the relief prayed for by the petitioner.
71. Now, coming to the last submission of learned counsel for the petitioner that the Registrar General being the appointing authority should have taken the decision about candidature of the petitioner in the independent exercise of power; the said submission in the opinion of the Court is also misconceived. Rule 2(n) of the High Court Employees Rules, 1976 defines 'appointing authority' and is reproduced herein below:-
"2. Definitions.- In these rules unless the context otherwise requires-
(n) 'Appointing Authority' means the Chief Justice of the Court or such other Judge or Officer as he may direct."
72. Hon'ble The Chief Justice in the exercise of the power conferred under Clause 1 of Article 229 of the Constitution of India read with Rule 2(n) of the Rules, 1976 and subject to Rule 6 of the said Rules has been pleased to direct the Registrar General of the Court to be the appointing authority in respect of all matters of appointment, promotion, etc. to Class II (Non-Gazetted), Class-III and Class-IV posts referred to in Rule 4 to 15(G) of the aforesaid rules.
73. Thus, the Registrar General exercises the power which has been delegated to him by Hon'ble The Chief Justice in the exercise of power under Article 229 (2) of the Constitution of India read with Rule 2(n) of Rules, 1976.
74. In the instant case, the specific case of the respondents in the counter affidavit is that resolution passed by the Recruitment Committee regarding the rejection of the candidature of the petitioner was seen by Hon'ble The Chief Justice on 30.09.2022, and in such view of the fact, the decision to cancel the candidature of the petitioner shall be deemed to have been taken by Hon'ble The Chief Justice, therefore, the aforesaid submission also lacks merit and is rejected.
75. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed with no order as to costs.
Order Date:- 31.5.2023 Sattyarth