Allahabad High Court
Ravi Patel vs State Of U.P. And 3 Others on 26 April, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 33 Case :- WRIT - A No. - 2762 of 2022 Petitioner :- Ravi Patel Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Nisheeth Yadav,Anand Tripathi Counsel for Respondent :- C.S.C. Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Nisheeth Yadav, learned counsel for the petitioner and learned Standing Counsel for the State respondents.
The writ petition has been filed with the following prayer:-
"I. Issue a writ, order or direction in the nature of certiorari, quashing the order impugned dated 05.01.2022 passed by respondent no.3 (Annexure No.4 to this writ petition).
II. Issue a writ, order or direction in the nature of mandamus commanding and directing the respondent no.2 to allow the petitioner to join the services in District as Constable."
Brief facts of the case are that an advertisement was issued in the month of October, 2018 for recruitment on the post of Constable in Civil Police and Pradeshik Armed Constabulary (hereinafter referred as P.A.C.).
Learned counsel for the petitioner submits that in terms of the letters dated 23.02.2021 and 27.02.2021, issued by respondent no.4, a direction was issued for verification of the character certificate/medical verification of the candidate, selected in the second round of selection in pursuance of the advertisement of October 2018. Pursuant to the aforesaid advertisement, the petitioner appeared in the written examination and was declared successful in the written test as well as medical examination.
In continuation of the selection process, in the second round of selection where the character as well as medical verification of the successful candidate was to be done, the petitioner being resident of District Jhansi, his character verification was to be done from the office of Senior Superintendent of Police, Jhansi. A letter dated 01.11.2021 was issued from the office of Senior Superintendent of Police, Jhansi wherein after character verification of the petitioner, it was acknowledged that the petitioner does not have any criminal antecedents in District Jhansi.
Learned counsel for the petitioner further submits that petitioner in the character verification form acknowledged the authorities that during period when he was pursuing his studies in District Gwalior (M.P.), an F.I.R. was lodged against him, which was registered as Case Crime No. 37 of 2015, under Sections 380 and 411 I.P.C. On the said information furnished by the petitioner himself, a query was raised before Senior Superintendent of Police, Gwalior (MP). A letter dated 28.05.2021 was issued from the office of Senior Superintendent of Police, Gwalior (MP) wherein it was mentioned that in pursuance of Case Crime No. 37 of 2015, the petitioner was arrested and proceedings of Challan warrant, Challan No.13/15 dated 08.07.2015 was done. It was also mentioned that petitioner has been exonerated on merits in the aforesaid criminal case on 05.03.2021. To the best of the knowledge of the petitioner no appeal has been preferred against the aforesaid order, exonerating the petitioner in the said criminal case. Learned counsel for the petitioner further submits that the criminal case lodged against the petitioner was not serious in nature, therefore, passing the impugned order on the ground that petitioner has criminal antecedents is bad in the eyes of law. To sum up, the petitioner had made a disclosure about the criminal case in the character verification and he was exonerated on merits. The impugned order has been passed in arbitrary manner and cannot be sustained in the eyes of law, therefore, the aforesaid impugned order is liable to be quashed.
A Government order dated 28.04.1958 has been issued by the State of Uttar Pradesh with the subject as "verification of character and antecedents of Government Servants before their first appointment". The aforesaid Government order details as to how the character verification and the antecedents of a person who is about to join the services would be done.
Learned counsel for the petitioner has placed the relevant part of the Government order which is as follows:-
"3. (a) Every direct recruit to any service under the Uttar Pradesh Government will be required to produce:
(i) A certificate of conduct and character from the head of the educational institution where he last studied (if he went to such an institution).
(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."
While placing the relevant Government order, learned counsel for the petitioner has emphasized that in cases of doubt, the appointing authority may either ask for further references, or may refer the case to the District Magistrate concerned, whereas in cases of conviction, mere conviction need not be regarded as disqualification.
Learned counsel for the petitioner further submits that issue in hand has been dealt by Hon'ble Supreme Court in case of Avtar Singh Vs. Union of India and Others, reported in 2016 (8) SCC 471, wherein in para 38, the Hon'ble Apex Court has laid down the moralities over which the appointment is to be considered in a case where there has been suppression of fact with respect to pendency of criminal case or where candidate has some criminal antecedents. The paragraph no. 38 of the judgment in Avtar Singh (supra) reads as follows:-
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3 The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted : -
38.4.1 In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9 In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
It has not been disputed that the petitioner clearly stated about the criminal case pending against him in the character verification form and on the date on which the impugned order has been passed, the petitioner had already been exonerated from the charge so levelled against him in the criminal case, therefore, the order impugned has not been passed without considering the guidelines as laid down by the Hon'ble Apex Court in case of Avtar Singh (Supra) as well as the relevant Government order. Therefore, the order impugned cannot be sustained in the eyes of law.
Learned Standing Counsel submits that criminal case was pending against the petitioner at the time when selection proceedings were going on, to be more specific, even in the second round of selection wherein the character verification was to be done, therefore, there is no illegality in the order impugned.
Learned Standing Counsel could not dispute the submissions as placed by the counsel for the petitioner with respect to non consideration of the case of the petitioner in the light of judgement of Avtar Singh as well as the fact that the petitioner had already disclosed about the criminal case pending against him in which he has been exonerated prior to declaration of the results. However, it was submitted that the ends of justice would merit the impugned order being set aside and the matter being remitted to the third respondent for consideration afresh.
Considering the present facts and circumstances of the case, the impugned order dated 05.01.2022 passed by the respondent no.3 i.e. Superintendent of Police, Kaushambi cannot be legally sustained and is hereby quashed. The matter shall be remitted back to the third respondent to consider the claim of the petitioner afresh, on merits, strictly in accordance with law, after considering the guidelines as mentioned in the case of Avtar Singh (Supra) as well as in the Government order dated 28.04.1958 issued by State of U.P. on the said issue, by means of a reasoned and speaking order, after affording opportunity of hearing to the petitioner, preferably within a period of three months, from the date of production of certified copy of this order, if there is no legal impediment.
The present writ petition is allowed subject to the observations made above.
Order Date :- 26.4.2022/Rahul.