Allahabad High Court
Kaptan Yadav vs Union Of India & Others on 24 February, 2015
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved On: 09.02.2015
Delivered On: 24.02.2015
Writ-A No. 27584 of 2009
Kaptan Yadav
Vs.
Union of India & Others
=====
Court No. 59
Hon'ble Yashwant Varma, J.
This petition lays challenge to an order dated 30th March, 2009 made by the respondent No. 2. In terms of the impugned order the enlistment of the petitioner as a Constable in the Railway Protection Force (R.P.F.) came to be cancelled consequent to the authorities coming to know of the involvement of the petitioner in Crime No. 31 of 2004 under Sections 376, 341, 323 I.P.C. and Case Crime No. 263 of 2006 under Sections 147, 323, 324, 504 and 506 of Indian Penal Code. The impugned order records that although the petitioner had been acquitted in the two cases referred to above, since the same amounted to the petitioner having concealed material facts, his appointment was liable to be cancelled. The impugned order on the above premise proceeds to cancel the appointment of the petitioner.
Aggrieved by the above action, this writ petition came to be filed and this Court while entertaining the same was pleased to pass the following order:
"The petitioner is aggrieved by cancellation of his selection vide order dated 6.3.09 on the ground that he has not disclosed the pendency of few criminal cases deliberately in the Declaration Form. Learned counsel for the petitioner submits that the petitioner has given all the information as required in the Declaration Form, copy of which has been annexed as annexure-4 to the writ petition.
From peruasl of annexure 4, it transpires that it does not contain any information about the character of a candidate and prima facie statement on oath in writ petition appears to be correct.
However, this has been disputed by Sri Govind Saran learned counsel appearing for respondent but at this stage he could not produce any material before the Court from which statement on oath can be disbelieved.
In view of that learned counsel for the respondent is directed to seek instructions and file counter affidavit whether this was only the declaration from supplied to the petitioner or there were other forms also. Instructions may be sought and Counter affidavit, if any, may be file by 27th July 2009.
List on 27th July, 2009.
Till 27.7.09 impugned order dated 6.3.09 (Annexure 5 to the writ petition) shall not be given effect to."
A reading of the said interim order discloses that it was contended before this Court that the declaration form did not require the petitioner to give any details with regard to the pendency of criminal cases against him. The Court also based its prima facie view on Annexure 4 to the writ petition which the petitioner contended was the declaration which was filed by him at the time of applying for the post.
Upon notices being issued by this Court, the respondents filed a detailed Counter Affidavit appending therewith the Application Form filed by the petitioner. A perusal of the Application Form and more particularly Paragraph 2(a) thereof appearing at page 4 shows that the following information was elicited from the petitioner.
"Have you ever been arrested, prosecuted, kept under detention, or bound down/fined, convicted by a Court of Law of any offence or debarred/disqualified by any Railway or Public Service Commission from appearing at its examinations/selections or debarred from taking any examinations/rusticated by any University or any other educational authority/Institution."
To the aforesaid question, the petitioner has answered in the negative by writing "No". This declaration was submitted by the petitioner on 15th July, 2008. While making this declaration, the petitioner further certified that the information given by him was correct and complete to the best of his knowledge and belief.
It becomes relevant to note here that although the petitioner does not dispute the making of the said declaration in the application dated 15th July, 2008 when he approached this Court he made a categorical assertion in paragraph 7 of the writ petition which reads as follows:
"That in respect of aforesaid allegation, it is respectfully submitted that in the said attestation/declaration form, since, no such information was demanded as such petitioner had no occasion for furnishing information regarding aforesaid criminal cases. Nothing has been done deliberately. As already stated above, declaration was mainly regarding disclosure of different types of diseases and injuries such as Samllpox, Gout, Asthma and Epilepsy etc. if, the petitioner or his family suffered in past. It is again submitted that allegation of concealment of the above criminal cases in the said attestation/declaration form is totally false and baseless. However, petitioner's selection has been cancelled without giving opportunity of hearing. No inquiry or explanation was made from the petitioner before cancelling his selection. Moreover, in the attestation/declaration form, no such information was demanded. This fact may be verified by the Hon'ble High Court from the contents of the said attestation/declaration form. Thus, impugned cancellation order is passed in violation of the provisions of natural justice without ascertaining the facts whether petitioner had occasion to disclose information in the said attestation/declaration form. In view of aforesaid, impugned cancellation order is not legally sustainable and is liable to be quashed with the further directions to the respondents to appoint the petitioner as Constable along with the other selected candidates with all consequential benefits as per Employment Notification No. 1/2007 dated 21.05.2007."
Learned counsel for the petitioner when confronted with the declaration made by the petitioner as contained in and forming part of the Application Form, submitted that the columns of the said Form were not legible and, therefore, perhaps the petitioner may have unknowingly made the said declarations. He further placed reliance upon the judgment of the Hon'ble Supreme Court of India rendered in the case of Ram Kumar Vs. State of U.P. And Others JT 2011 (9) (SC) 200 to contend that even if there be an incorrect declaration or concealment of material facts, it was the duty of the respondent to satisfy himself as to the suitability of the petitioner for appointment with reference to the nature of suppression and the nature of the criminal case. Learned counsel for the petitioner relying upon the said judgment of the Apex Court held that the respondent No. 2 could not have mechanically cancelled his selection without first adverting himself to the aforesaid issue. In this behalf, he further relied upon an unreported judgment handed down by a Learned Single Judge of this Court in Writ Petition No. 30643 of 2010, Akhilesh Kumar Pandey Vs. State of U.P. And Others decided on 12.01.2012. Following the dictum laid down by the Apex Court in Ram Kumar (supra) it was noted that although a misstatement had been made in the Affidavit submitted, the Appointing Authority had at no point of time directed his inquiry towards the issue of suitability of the petitioner for appointment to service. The Learned Single Judge then proceeded to allow the writ petition on the above score.
Learned counsel for the petitioner then referred to the judgment of the Apex Court in Commissioner of Police And Others Vs. Sandeep Kumar, (2011) 2 UPLBEC 1497, to contend that in a similar situation where the candidate had made a false declaration, the Hon'ble Apex Court was pleased to make the following observations:
"12. 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 been 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 yound people rather than to brand them as criminals for the rest of their lives.
16. As already observed above, youth often commit indiscretions, which are often condoned.
17. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 I.P.C. Probably de did not mention this out of fear that if he did so he would automatically be disqualified.
18. At any even, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."
As per the submissions advanced by the learned counsel for the petitioner, it appears that the aforesaid judgment of the Hon'ble Apex Court was noticed and followed by a Division Bench of this Court while passing judgment in Special Appeal No. 1361 of 2007, Sadanand Yadav Vs. State of U.P. And Others, wherein it was pleased to make the following observations:
"9. The facts of this case is similar to the cases of Sandeep Kumar and Raj Kumar (supra) and Division Bench of this Court in Special Appeal No. 1991 of 2011, Satyendra Singh vs. State of U.P. and Others decided on 18.4.2012. In the present case, it is apparent from the judgment of this court that the appellant has been falsely implicated and proceedings were quashed. Suitability of the candidature of the appellant is required to be decided according to the Government Order dated 28.04.1958 by the appointing authority. Ultimately the appellant was acquitted from the criminal charges. Suitability of the candidate is required to be examined in reference to his post to which he has been appointed.
10. In such circumstances, finding that the appellant has concealed the pendency of the Criminal Case without there being any material that he had knowledge of the case at the time of filing of the affidavit, is incorrect. In any case, registration of the criminal case itself does not dis-entitle the appellant to remain in service. Following the aforementioned judgments of the Hon'ble Supreme Court as well as Division Bench of this Court, this appeal is allowed and order dated 22.8.2007 passed in Writ - A No. 38908 of 2007 and the order of dismissal of the appellant from service dated 06.08.2007 passed by Respondent - 3, are set aside. The appellant is re-instated in service with back wages as well as all other consequential benefits."
Sri Vivek Singh, learned counsel appearing for the respondents has submitted that this very selection process and the rejection of various candidates on the ground of concealment of material facts was subjected to challenge in various writ petitions before this Court, which were dismissed by a learned Single Judge. He submitted that the judgment of the learned Single Judge was subjected to further challenge by means of intra-court appeals and in these appeals, the Division Bench of this Court was pleased to uphold the judgment rendered by the learned Single Judge and had reiterated that once it was found that the petitioners and appellants had knowingly and deliberately made false declarations, then neither the gravity of the offence nor their acquittal in such matters would render them entitled to any indulgence of this Court.
It becomes pertinent to notice here that the Division Bench of this Court while rendering judgment in the aforesaid matters and more particularly in Special Appeal No. 2435 of 2011, Ramakant Prasad And Others Vs. Union of India And Others was pleased to hold as follows:
"Having regard to the rival submission advanced by learned counsel for the parties, it emerges that the petitioners/appellants had concealed the material factual information about their involvement in the criminal cases and have answered the question in negative and on verification it was found that the answers were not correct hence, the competent authority was fully authorised to dispense with the declarants from services on the ground of furnishing false information about criminal antecedents. Because of non-disclosure of material factual information by the declarants, itself becomes a good ground for removing from service at the initial stage. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post or not and he could be terminated during the period of probation without holding enquiry. The learned Single Judge has rightly refused to exercise equitable jurisdiction in favour of the candidates who had suppressed the material facts. The declarants are expected to answer the questions of the attestation form truthfully. The petitioners/appellants had withheld the material factual information about their involvement in the criminal case, therefore, the removal of the petitioners/appellants from service was justified. The decisions cited by the learned counsel for the petitioners/appellants were elaborately dealt with by the learned Single judge while dismissing the writ petition. We are of the considered view that the petitioners/appellants had made knowingly and deliberately false declaration suppressing the material facts about the criminal cases pending against them neither the gravity of offence nor acquittal therein matters hence, they do not deserve any indulgence. It is an act of deceit and subterfuge played by the petitioners/appellants showing dubious conduct making them unsuitable to continue in a disciplined service."
Having bestowed my anxious consideration upon the rival submissions, this Court is of the opinion that the conduct of the petitioner clearly does not commend any interference by the Court in exercise of its equitable jurisdiction. This Court is constrained to arrive at this conclusion primarily on two scores.
Firstly, the facts extracted hereinabove clearly establish that the petitioner made a false declaration not just before the respondents while applying for the post of Constable, he also made an incorrect and false averment in Paragraph 7 of the writ petition. He has in unequivocal terms averred on oath before this Court that no information with regard to his involvement in criminal case was demanded and that he had no occasion for furnishing any information regarding the aforesaid criminal cases. He in fact, persuaded this Court to rely upon the said statement and accepting the correctness of the same to pass an interim order in his favour. In the writ petition, the petitioner nowhere disclosed any facts with regard to the declaration made by him in the application form dated 15th July, 2008. The Court, therefore, is constrained to record that the petitioner deliberately concealed material fact from this Court and in its opinion, therefore, this would have been sufficient to dismiss the present writ petition.
The second score upon which the Court now proceeds to rule on is the contention raised by the petitioner in light of the dictum laid down by the Apex Court in Ram Kumar (supra). In Ramakant Prasad (supra) the Division Bench of our Court held that the suppression of material facts was sufficient to non-suit the selectee and that issues such as gravity of the offence or the acquittal of the selectee in the criminal cases would not be factors entitling them to the indulgence of this Court. This judgment came to be rendered by the Division Bench of this Court after noticing the dictum laid down by the Apex Court in Ram Kumar (supra), which was specifically cited for its consideration.
It is also pertinent to underline here that this judgment of the Division Bench rendered on 7.1.2013 is subsequent to the judgment rendered by the Court in Sadanand Yadav, which was handed down on 26th September, 2012.
More importantly, this Court itself had an occasion to consider the issues which are raised here while deciding Writ Petition No. 33296 of 2009, Veer Pal Singh Vs. State of U.P. And Others decided on 12.02.2015. This Court noticing a similar submission made on lines of the dictum laid down in Ram Kumar (supra) noted that the said judgment of the Apex court had itself been noticed and considered subsequently by the Apex Court in Jainendra Singh Vs. State of U.P. And Others, (2012) 8 SCC 748 and in which the Court was pleased to lay down the following broad propositions:
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed out serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one of important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppels against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim rightto continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5. The purpose of calling for information regarding involvement in any criminal case or deletion or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9. An employee in the uniformed service presupposes a higher level of integrity, as such a person is expected to uphold the law and on the contrary such a service born indeceit and subterfuge cannot be tolerated.
29.10. The authorities entrusted with the responsibility of appointing constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of constable."
On the basis of the above law declared and laid down authoritatively by the Hon'ble Supreme Court of India, this Court held as follows:
"This Court is of the opinion that the cancellation of appointment/selection on account of suppression of material fact or deliberate misstatement is liable to be seriously viewed. A deliberate concealment or omission of vital information cannot clothe the selectee with equitable considerations. A deliberate misstatement or omission of vital information made knowingly cannot fault the decision taken by the appointing Authority to annul the selection/appointment. The suppression of material information clearly speaks about the character and the moral fibre of the selectee. Suppression of pendency of a criminal case, if it be a deliberate omission, would clearly justify the action of the employer in cancelling the selection. This aspect assumes additional importance in case the selectee/appointee is seeking entry to a uniformed and disciplined force. A member of a disciplined force is liable to be judged on a higher pedestal. Viewed in light of the above this Court is of the opinion that the respondent No. 3 was clearly justified in passing the impugned order."
Insofar as the judgment of the Apex Court in Ram Kumar (supra) is concerned, this Court had occasion to notice the same in some detail and found that the aforesaid judgment came to be rendered in light of a Government Order dated 28th April,1958 which enjoined the authority concerned to undertake an inquiry with respect to the suitability of the selectee for employment in the service or post and that the concealment/non-disclosure of material facts relating to the pendency of a criminal case did not form subject matter of the said Government order. It was in view of the above (and it was so found by this Court) that the judgment of the Apex Court was clearly distinguishable on facts. In any view of the matter, this Court finds itself bound by the subsequent judgment handed down by the Apex Court itself in Jainendra Singh (supra).
Accordingly and in view of the above, this Court finds no merits in the present writ petition and it is accordingly dismissed.
Order Date:24.02.2015 Arun K. Singh (Yashwant Varma, J.)