Allahabad High Court
Raj Kumar And Another vs Union Of India And 4 Others on 21 September, 2022
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 20.07.2022 Delivered on 21.09.2022 AFR Case :- WRIT - A No. - 31858 of 2017 Petitioner :- Raj Kumar And Another Respondent :- Union Of India And 4 Others Counsel for Petitioner :- Tejasvi Misra,R. K. Rai Counsel for Respondent :- A.S.G.I.,Rajnish Kumar Rai,S.C.,Shiv Kumar Pal Hon'ble Mrs. Sangeeta Chandra,J.
1. This writ petition has been filed by two writ petitioners challenging orders of discharge dated 1 March 2017and 18 February 2017 respectively and for issuance of a mandamus commanding the respondents to reinstate the petitioners into service with all consequential benefits.
2. It is the case of the petitioners that in pursuance of Advertisement number 1/2011 issued by the Respondent No.3 for recruitment on the post of Constable (GD) in Railway Protection Special Force (RPSF) the petitioners applied and were selected. Before their training and appointment the petitioners had to submit their attestation forms where in column 12 they had to disclose their character and antecedents and as to whether any criminal case was pending against them or whether they had ever been tried. To this the petitioners answered in the negative as at that point of time no criminal case was pending against them. During the course of training, police verification reports of the petitioners were sought from the District Magistrates of their respective districts. In the police verification reports it came out that FIR was lodged against them individually but they were acquitted. However, since they had not disclosed this fact in the attestation form both the petitioners were discharged from their service .
3. It has been argued by the learned counsel for the petitioner that the petitioner no.1, Rajkumar had submitted his attestation form on 22 June 2014 wherein he did not disclose his character and antecedents in Column 12 with regard to Case Crime No. 131 of 2003 under Sections 323 and 504 I.P.C. He was sent for training at ITBP Training Centre AALO, West Slang, Arunachal Pradesh on 30 October 2014. In the police verification report sought from district Allahabad it was informed that he was prosecuted but acquitted from the Court of ACJM. However, as a result of this verification report he was discharged while undergoing training 31 March 2015. The Respondents had failed to appreciate that the petitioner no.1 was cleanly acquitted from criminal charges by an order dated 24 September 2007 by the Court of Additional Chief Judicial Magistrate. At the time of filing of his application form and at the time of signing of the attestation form no criminal case was pending. Also, petitioner no.1 was a juvenile at the time when the FIR was lodged against him as he was just nine years old. He was tried in a Regular Court instead of by Juvenile Justice Board and he was 13 years old when he was cleanly acquitted by the Court of ACJM.
4. The petitioner no.1 had moved this Court and by way of Writ Petition No. 57707/2015, "Rajkumar vs. Union of India and Others" and this court by an order dated 29 November 2016 had quashed the discharge order and remitted the matter to the respondents for fresh consideration of his candidature in the light of the law laid down by the Supreme Court in the case of Avtar Singh. In pursuance of such order passed by the High Court the petitioner no.1 was called for personal hearing on 28 February 2017 but the Respondent No.4 in his order dated 1 March 2017 again proceeded to cancel the candidature of the petitioner on the ground of intentional suppression of material facts at the time of filling up of the attestation form.
5. It has been argued that the nature of the offence of which the petitioner had been accused along with his family members was trivial involving minor punishment. The petitioner was acquitted not as an outcome of benefit of doubt but he was honourably exonerated. This Court in its Order dated 29.11.2016 had directed the Respondent No.4 to adjudge the suitability of the candidate with reference to the nature of suppression, and the nature of the criminal case. Instead of considering whether the petitioner no.1 was suitable for appointment to the post of Constable the respondent had acted mechanically by holding the petitioner no.1 unfit for the post alleging that he had furnished an affidavit stating incorrect facts at the time of his recruitment.
6. In the case of petitioner no.2, Sasikala, she had submitted her attestation form on 22.06.2014, where she did not disclose in column number 12 Case Crime No. 128A/11/2003 under sections 147, 148, 452, 338, 323, 504, 506 IPC which was lodged after filling up of the application form and was concluded before the attestation form was filed. The petitioner no.2 joined her training at Himachal Pradesh Police Training Centre Palampur, on 17.11.2014. In the police verification report sent from the office of District Magistrate Gorakhpur it was disclosed that she had been tried and acquitted by the Court. However, she was discharged from training on this ground alone on 26.05.2015. Aggrieved by the order of discharge dated 26.05.2015, the petitioner filed Writ Petition No. 45917 of 2015, "Shashikala Singh vs. Union of India and Others". This court by its order dated 29.11.2016 quashed the discharge letter and remitted the matter back to the respondents for fresh consideration of her candidature in the light of the law laid down by the Apex Court in Avtar Singh's case. In pursuance of such order passed by this Court the petitioner no.2 was called for personal hearing on 17.01.2017. After hearing her the respondent no.5 in his order dated 18 February 2017 reiterated the position and canceled her candidature on the ground of intentional suppression of material facts at the time of filling up of the attestation form.
7. It has been argued by the learned counsel for the petitioner that the petitioner had filed her application form in March, 2011 whereas the FIR was lodged against her on 13.04.2011. She was acquitted by the competent court on 21.01.2014 and therefore it cannot be said that any case was pending at the time of filling up of the application form or at the time of signing of the attestation form by her. It cannot therefore be said that the petitioner no.2 had resorted to suppression of material facts. Moreover, petitioner no.2 being a female never went to the Court for pursuing the case. The case had been slapped on the entire family out of spite, and therefore the elders of the family had pursued it at their end. The petitioner no.2 was acquitted not by giving her benefit of doubt but it was an honourable exoneration from all charges levelled against her.
8. It has been argued that the case of the petitioners are squarely covered by law laid down by this Court in "Harendra Pawar vs. State of UP and Others 2012 (4) ADJ 488" where this Court had observed that -
"..mere involvement in a criminal case is not an impediment for appointment to the post of constable. Moreover, stigma attached to a person is obliterated on acquittal and as such the applicant cannot be denied appointment. Moreover a conviction results in ineligibility for appointment in government service but since the applicant had already been acquitted of the criminal charges he is eligible for appointment...".
9. The learned counsel for the petitioner has also placed reliance upon three Judges Bench decision of the Supreme Court in the case of "T. S. Vasudevan Naiyar vs. Director of Vikram Sarabhai Space Centre (1998 supplement SCC 795)"; whereby the Supreme Court had set aside order cancelling the offer of appointment of the applicant made because he had not disclosed that during emergency he had been convicted for having shouted slogans against the government on one occasion.
10. It has been argued that in the case of "Dnyaneshwar Kure vs. Union of India"; the Bombay High Court by an Order dated 06.05.2016 had quashed the discharge order and remitted the matter to the respondents with a direction that -
"....the respondent no.4 shall objectively assess the suitability of the petitioner for continuance of the petitioner in the services on the basis of verification report received from the Superintendent of Police Nanded, and more particularly having concern to the acquittal recorded in favour of the petitioner in the criminal case against him and take appropriate decision as expeditiously as possible."
11. It has been argued that against the orders passed by the Bombay High Court on 6.05.2016, SLP bearing no. 24195 of 2016 was filed by the respondents but it was dismissed by the Supreme Court on 02.01.2017. Hence the order passed by the Bombay High Court was affirmed and in pursuance of such orders, the respondents had reinstated Dnyaneshwar Kure as Constable RPSF ,having found him to be fit, though at the time when he had been initially appointed and sent for training he had been facing criminal trial and was acquitted later on and his character was not unblemished at the time of filling up of the attestation form.
12. The learned counsel for the petitioner has also referred to the judgement rendered in the case of GNCT vs. Robin Singh 2015 (118) DLT 168; where the Delhi High Court had observed that every wrong information may not necessarily be a deception.
"A person may be wrong, but under a bona fide belief that he is right, he furnishes the information. This would not be deception though erroneous, the forming of bona fide belief that once he stands acquitted in a criminal case, the same is not required to be mentioned, since the acquittal puts him in the same position as if no FIR had ever been lodged against him. Thus a person under a mistaken legal belief writes or omits to mention something, the charge of deception as lead in the allegation is not sustainable".
13. It has been argued on the basis of said judgement of the Delhi High Court that the application forms and affidavits were filed by the petitioners under a bona fide belief that only if a criminal case is pending, or a person is convicted, the same is required to be mentioned. Therefore the order discharging the services of the petitioners on the sole ground of concealment of their having been tried in the distant past was absolutely unjustified and illegal.
14. In the counter affidavit filed by the Respondents it has been stated that the petitioners had applied for the post of Constable in Railway Protection Force/Railway Protection Special Force under Advertisement No. 1/2011. After qualifying in all selections that were held the petitioners were allotted the respective Zonal Railways and sent for initial training subject to police verification of their character and antecedents. The District Magistrates of the respective districts had informed about the lodging of criminal cases against the petitioners under different Sections of the IPC and their acquittal on different dates.
Consequently, the Chief Security Commissioner had discharged the petitioners from training on the ground of suppression of facts in the attestation form. Consequent to the Writ Petitions being filed by them and their initial order of discharge being quashed, the Zonal Chief Security Commissioner had given personal hearing to the petitioners individually and passed fresh orders which are challenged in the writ petition.
15. It has been argued by the learned counsel for Respondents that in paragraph 9 note (f) of the Advertisement No.1/2011 it had been clearly mentioned that :-
"candidates found to be having an adverse report on their antecedents and character may not be appointed in RPF including RPSF. False declaration is an offence under the law and will lead to disqualification of the applicant, institution of criminal case and also dismissal from service, if appointed".
The petitioners being aware of the warning mentioned in the advertisement, had filled up their application forms. Even in the attestation form in paragraph 1 and 2 of the attestation form it was clearly stated that :-
"if detained, arrested, prosecuted, bound down, fined , Convicted, debarred, acquitted et cetera subsequent to the completion and submission of this form, the details should be communicated immediately to the authority to whom the attestation has been sent earlier, failing which it will be deemed to be a suppression of factual information."
In paragraph number-3 of the attestation form it had also been mentioned that -
"If the fact, that false information has been furnished or that there has been a suppression of any factual information in the attestation form, comes to notice at any time during the service of a person, his service would be liable to be terminated".
16. It has been pointed out that in the counter affidavit the Respondents have also mentioned Rule 52 of the RPF Rules 1987 which relate to verification. Rule 52.1 provides that "As soon as the recruit is selected but before he is formally appointed to the force, his character and antecedent shall be got verified in accordance with the procedure prescribed by the Central Government from time to time".
Under Rule 52.2, it is provided that "where after verification, recruit is not found suitable for the Force, he shall not be appointed as a member of the Force."
17. It has been submitted in the counter affidavit that the orders discharging the petitioners have been passed by the Zonal Chief Security Commissioner on the ground of suppression of facts in the attestation form. The petitioners have deliberately suppressed vital information of criminal cases having been lodged against them and they being tried before the competent court.
In the attestation form under column 12, the following information was sought from the applicant/petitioners: -
(A) Have you ever been arrested?
(B) Have you ever been prosecuted?
(C) Have you ever been kept under detention?
(D) Have you ever been bound down?
(E) Have you ever been fined by a court of law?
(F) Have you ever been convicted by a court of law?
(G) Have you ever been debarred from any examination or restricted by any university or any other educational authority/institution?
(H) Have you ever been debarred /disqualified by any public service commission/staff selection commission for any of their examination/selection?
(I) Is any case pending against you in any university or any other educational authority/institution at the time of filling up this form?
(G) Is any case pending against you in any court of law at the time of filling of this form ?
(K) Whether discharge/expelled/withdrawn from any training institution under the government or otherwise?
(L) If the answer to any of the above mentioned questions is "yes" give full particulars of the case/arrest/ detention/fine/conviction/punishment/acquittal et cetera as the case maybe, and/or name the university/court/educational authority, etc, where any case is pending at the time of filling up of this form.
18. It has been submitted that the petitioners had suppressed information of the prosecution in the criminal cases as required under column 12 of the attestation form. No matter whether the petitioners were acquitted or not and no criminal cases were pending against them at the time of filling up of the attestation form, since the attestation form required disclosure of past prosecution as well, the Zonal Chief Security Commissioner has rightly held that the petitioners had deliberately suppressed Vital/factual information Of the prosecution. The Railway Protection Force/Railway Protection Special Force is a paramilitary force of the Union and the petitioner's conduct has become doubtful at the initial stage itself. Honesty and integrity which is of utmost importance for the post applied for, cannot be disregarded. The respondent no.4 four has rightly passed the orders impugned in observance of Rule 67.2 of the RPF Rules 1987 after giving due opportunity of hearing to the petitioners. Also, it is not the question of stigma of registration of criminal case against the petitioners and their acquittal therein, it is a question of deliberate suppression of information with regard to character and antecedents which has led to the competent authority coming to the conclusion that the petitioners are not suitable to be appointed as Constables in RPF/RPSF.Moreover the petitioners have not been discharged from service. They were only sent for training as selected candidates. They were not formally appointed as Constables.
The respondents have emphasized the observations made by the Supreme Court in the case of Avtar Singh vs. Union of India in paragraph 30.1 where it was observed that - "information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information."
Although it is not denied by the petitioners that they were prosecuted before they filed their attestation forms but they have deliberately suppressed vital/critical information from their employers which amounts to wilful misrepresentation and giving of false affidavit and misleading the administration at the very beginning of their career in a Disciplined Armed Forces of the Union. Copies of attestation forms submitted by the petitioners have been filed also as Annexures to the Counter Affidavit.
19. The Respondents have referred to judgement rendered by this Court on 24.02.2015 in Writ Petition No. 27584 of 2009, "Kaptan Yadav vs. Union of India and Others"; and in Special Appeal No. 2435 of 2011, "Ramakant Prasad and Others vs. Union of India and Others" decided on 07.01.2013; and Special Appeal No. 2510 of 2011, "Krishna Pratap Yadav vs. Union of India and Others" decided on 03.04.2014.
20. In the rejoinder affidavit filed by the petitioners they have referred to orders passed by the respondents themselves in the case of one Devendra Singh who had been tried and acquitted under Section 323, 324, 294, 336, 506 (B), and Section 452 IPC on 12.05.2017; speaking order passed in the case of one Bali Ram Kumar who had been tried and acquitted under Section 147, 148, 149, 452, 323, 324,504, 506, 427 IPC on 08.06.2017; and in the case of one Mohit Kumar who had been tried and acquitted under Section 379 IPC on 13.05.2017 and in the case of one Manish Kumar who had been tried under Section 323, 341, 354 and 34 IPC and who was also reinstated on 12.05.2017.
In all such cases the respondents had considered the representation of the candidates and come to the conclusion that at the time of filling up of attestation form the character of the candidate was unblemished. Since the candidate was acquitted much earlier he did not record so in the attestation form. It was a fact that he had made an incorrect statement of having never been involved in any criminal case in his life but the respondents had observed that they had reason to believe that it must have been done in good faith since the candidate was acquitted in the criminal case long before filling up of the attestation form. The action of the candidate being in good faith, they were reinstated in service. All such orders have been passed by the Inspector General cum Chief Security Commissioner, Railway Protection Force, New Delhi ,after remitting of the matter by the High Court to him for reconsideration.
21. The Division Bench of this Court in Ramakant Prasad and Others was considering the order passed by the Chief Security Commissioner, RPF/RPSF, where the appellants had filed their attestation forms when criminal cases were pending against them without disclosing such pendency though acquitted subsequently ,and the offences in which they were involved were of trivial nature. The Division Bench had observed that the appellants had started their career with falsehood, preventing the authority from verifying the character as also their suitability/eligibility for appointment. A candidate is expected to answer the questions without any misrepresentation, suppression or false statement. Such falsehood would demonstrate a conduct and character not befitting of a uniformed Force. Neither the gravity of the offences nor the ultimate acquittal is the prime consideration for their entitlement in service.
The Division Bench in Ramakant Prasad (Supra) observed -
"The point for consideration is not that the petitioners/appellants were involved in trivial criminal cases wherein they have been acquitted prior to the furnishing of details or prior to induction in service. When the question put to them was whether the criminal case was pending against the petitioners/Appellants or they were cleared of the charges or acquitted and the answer was given in the negative, it would amount to suppression of material factual information holding them liable to be prosecuted for the act of perjury and fraud and the employer is empowered to remove them from service on the ground of furnishing false information about their involvement in criminal cases...".
22. In Krishna Pratap Yadav, a Division Bench of this Court was considering reliance placed upon judgement rendered by the Supreme Court in the case of Commissioner of Police and Others vs. Sandeep Kumar 2011 (2) UPLBEC 1497; by the counsel for the Appellant. Counsel for the appellant had pointed out that the Appellant honestly disclosed the pendency of criminal case against him at the time of filling up of the attestation form. However the Division Bench relied upon observations made by the Supreme Court in the case of Commissioner of Police New Delhi and another vs. Meher Singh 2013 (7) SCC 685; which reiterated the principle which was laid down in Delhi Administration vs. Sushil Kumar 1996 (11 ) SCC 605; Commissioner of Police vs. Dhaval Singh 1999 (1) SCC 246; Ghurey Lal vs. State of UP 2008 (10) SCC 450. The Supreme Court had observed in paragraph nos. 34, 35, 36 and 37 as under:-
"34. The respondents are trying to draw mileage from the fact that in their application and/or attestation form they have disclosed their involvement in a criminal case. We do not see how this fact improves their case. Disclosure of these facts in the application/attestation form is an essential requirement. An aspirant is expected to state these facts honestly.Honesty and integrity are inbuilt requirements of the police force. The respondents should not therefore expect to score any brownie points because of this disclosure. Besides, this has no relevance to the point in issue. It bears repetition to state that while deciding whether a person against whom a criminal case was registered and who was later acquitted or discharged should be appointed to a post in the police force what is relevant is the nature of the offence, the extent of his involvement, whether the acquittal was a clean acquittal or an acquittal by giving benefit of doubt because the witnesses turned hostile or because of some serious flaw in the prosecution, and the propensity of such person to indulge in similar activities in future. This decision in our opinion, can only be taken by the Screening Committee created for that purpose by the Delhi police. If the Screening Committee's decision is not malafide or actuated by extraneous considerations, then it cannot be questioned.
35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case that acquittal or discharge order will have to be examined to see whether he he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The standing order, therefore has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is malafide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who were likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand.
36. The Screening Committee''s proceedings have been assailed as being arbitrary, and guided and unfettered. But, in the present case we see no evidence of this. However, certain instances have been pointed out where allegedly persons involved in serious offences have been recommended for appointment by the Screening Committee. It is well settled that to such cases the doctrine of equality enshrined in Article 14 of the Constitution of India is not attracted. This doctrine does not envisage negative equality (Fuljit Kaur) It is not meant to perpetuate illegality or fraud because it embodies a positive concept. If the Screening Committee which is constituted to carry out the object of the comprehensive policy to ensure that people with doubtful background do not enter the police force, deviates from the policy, makes exception and allows entry of undesirable persons, it is undoubtedly guilty of committing an act of grave disservice to the police force but we cannot allow that illegality to be perpetuated by allowing the respondents to rely on such cases. It is for the Commissioner of Police , Delhi to examine whether the Screening Committee has compromised the interest of the police force in any case and to take remedial action if he finds that it has done so. Public interest demands an in-depth examination of this allegation at the highest level. Perhaps, such deviations from the policy are responsible for the spurt in police excesses. We expect the Commissioner of Police, Delhi to look into the matter and if there is substance in the allegations to take necessary steps forthwith, so that the policy in the Standing Order is strictly implemented.
37. Our attention is drawn to certain orders of this Court where, according to the respondents, Special Leave Petitions filed by the State arising out of similar fact situations have been dismissed. It is not necessary for us to state that in limine dismissal of Special Leave Petition does not mean that this Court has affirmed the judgement or the action impugned therein. The order rejecting the Special Leave Petition at the threshold without detailed reasons does not constitute any declaration of law or a binding precedent. This submission is, therefore, rejected."
23. The Division Bench of this Court in Krishna Pratap Yadav (supra) noted that the judgement in Ram Kumar Vs. State of UP 2011 (4) SCC 644, and Commissioner of Police and Others Vs. Sandeep Kumar 2011 (2) UPLBEC 1497; had been referred to the Larger Bench by the Supreme Court itself in the case of Jainendra Singh Vs. State of UP and Others 2012 (8) SCC 748; and the judgement in the case of Meher Singh was of a later point in time. It dismissed the appeals following the law settled in Mehar Singh.
24. In the case of Kaptan Yadav, a Coordinate Bench of this Court placed reliance upon observations made by the Supreme Court in the case of Jainendra Singh Vs. State of UP and Others 2012 (8) SCC 748; where in paragraph 29 the Supreme Court had after considering judgements rendered by it earlier culled out cardinal principles. In paragraph 29.4 onwards the Supreme Court had observed as under -
"29.4 A candidate having suppressed material information and/or giving false information cannot claim right to 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 detention or conviction is for the purpose of verification of the character/antecedents at the time of required 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 uniform 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 Employee on probation can be discharged from service or maybe refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, in as much 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, such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10 The authorities entrusted with the responsibility of appointing constables, are under a 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."
25. Now I shall consider the case of petitioner no. 1 as he was a juvenile at the time criminal proceedings took place against him. I have also carefully gone through the order of acquittal of Raj Kumar the petitioner no. 1 passed by the Additional Chief Judicial Magistrate on 24.09.2001 in Criminal Case No. 1958 of 2007, ''State versus Rajkumar and others'. From a perusal of the facts as mentioned by the Trial court it is evident that the incident in question leading to the lodging of the FIR was of 31.10.2003, when the petitioner no. 1 Rajkumar was only nine years old. The Court had found that the victim herself had made a statement that she had fallen down in the commotion caused due to a lot many people crowding around her. She had denied having been beaten up by the accused Rajkumar or any of the other accused. The court had therefore acquitted the accused of the charges levelled against them.
26. In Shivam Maurya Vs. State of UP and Others 2020 (5) ADJ; a Division Bench of this Court had held the cancellation of candidature of the appellant petitioner vitiated. The Appellant had suppressed the information regarding his involvement in criminal case in his attestation form. The Court held that the appointing authority had failed to take into account Section 19 of the Juvenile Justice (Care and Protection of Children) Act 2000; which refers to removal of disqualification attached to conviction and which started with non obstante clause giving it an overriding effect. Discussing the definition of "juvenile in conflict with law" which meant a juvenile who is alleged to have committed an offence and has not completed 18 years of age on the date of commission of such offence, it observed that Section 19 of the Act of 2000 had been included in order to give a juvenile an opportunity to lead his life with no stigma and to wipe out the circumstances of his past. Under Rule 99 of Juvenile Justice (Care and Protection of Children ) Rules 2007, the records or documents in respect of a juvenile or child in conflict with the law shall be kept in a safe place for a period of seven years and thereafter were to be destroyed by the Officer in Charge or the Board or the Committee, as the case may be. Section 21 of the Act of 2000 prohibits publication of the name of the juvenile in conflict with law with the object to protect him from adverse consequences on account of his conviction for an offence he committed as a juvenile. Disclosure of name of juvenile in conflict with law is punishable with fine. The Court observed that the Act being a beneficial legislation, concealment of pendency of criminal case against the appellant petitioner was of no consequence. As per the requirement of law a conviction in an offence will not be be treated as a disqualification for a juvenile. The records of the case pertaining to his involvement in a criminal matter have to be obliterated after a specified period of time. The intention of the legislature is clear that in so far as juveniles are concerned their criminal records are not to stand in the way in their lives. The Court set aside the cancellation of candidature of the petitioner appellant as it was contrary to the object sought to be achieved by the Juvenile Justice Act.
27. In a judgment rendered by a Coordinate Bench in Writ Petition No. 38380 of 2017, ''Upendra Chauhan Vs. Union of India and 5 Others, decided on 20.02.2019, the candidature of the petitioner had been cancelled on the ground that he had deliberately suppressed the fact of his involvement in two criminal cases. Initially the petitioner's Writ Petition was disposed off requiring the respondents to reconsider the case of the petitioner bearing in mind the principles enunciated by the Supreme Court in the case of Avtar Singh Versus Union of India and others 2016 (8) SCC 471; the respondents thereafter by the impugned order had rejected the candidature of the petitioner again. They admitted that he had declared about criminal cases in his attestation form but observed that because of such criminal cases his character was not unblemished at the time of filling up of the attestation form. The Coordinate Bench had found that the petitioner was tried as a juvenile in those cases under the provisions of Juvenile Justice (Care and Protection of Children) Act 2015, and ultimately the said cases came to a close after the filling up of the form, with the petitioner being released back in the custody of his father, with an advice and warning. The Court considered Section 24 of the 2015 Act where it has been provided that notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of the Act, shall not suffer disqualification, if any, attached to a conviction of an offence under such law with the Proviso making the Sub-section (1) inapplicable in the case of a child who is above the age of 16 years, and is found to be in conflict with the law by the Children's Court under clause (i)of Sub-section (1) of Section 19, which deals with heinous crimes. Under Sub-section (2) of Section 24 the Juvenile Justice Board shall make an order directing the Police, or the Registry of the Children's Court that relevant records of such conviction shall be destroyed after expiry of the period of appeal or as the case maybe, a reasonable period as may be prescribed. In case of heinous offences however, where the child is found to be in conflict with the law under clause (i) of Sub-section (1) of Section 19 the relevant records of the conviction under the Act shall be retained by the Children's Court.
28. It is evident from perusal of Section 24 of the Juvenile Justice Act 2015 that in all cases except cases related to heinous offences, a child in conflict with the law would not suffer any disqualification in the future and for such purposes records relating to the case had to be destroyed after passage of a specified period and in the manner as prescribed under the Rules. The Court had observed that the nature of offences were trivial in character which could be passed off and attributed to the exuberance and intemperance of youth and could not be viewed as disqualification for entry in government service. The court referred to paragraph 38.6 in the case of Avtar Singh(Supra) where it was left open to the employer's discretion to appoint a candidate who had truthfully declared in the character verification form regarding pendency of a criminal case of trivial nature subject to its final outcome. The Court observed that under Section 24 even if a Juvenile is convicted under the provisions of 2015 Act such conviction is not liable to be viewed as disqualification which may otherwise and ordinarily stand attached upon a person being convicted.
29. The learned counsel for the petitioner has also placed reliance upon judgement rendered by a Division Bench of the Delhi High Court in ''Akhilesh Kumar Vs. Union of India and Others' where the petitioner had been selected for the post of constable in Railway Protection Force. He was sent for training before being appointed. He had filled up an attestation form mentioning therein that no criminal case was registered against him however on police verification it was revealed that FIR under Section 323/325/506/504 IPC had been registered against him. On the basis of police verification the respondents discharged the petitioner from training for suppression of facts. The petitioner filed a Writ Petition which was partly allowed. The Court had aside the order of discharge giving liberty to the respondents to reconsider the matter and pass a fresh order in the light of observations made in the case of Avtar Singh(Supra). The representation of the petitioner was considered and rejected on the ground that at the time of filling up of the attestation form he had not mentioned about the registration of criminal case and that it was pending against him although he had been subsequently acquitted in the said case. The attestation form was unequivocally clear, specific and not vague in nature and also bilingual i.e. is it was printed in Hindi and in English. The consequence of suppression of information was reiterated in numerous paragraphs of the attestation form, hence it could not be treated to be a case of ignorance/lack of understanding/error. The petitioner had to serve in a uniformed service and any deliberate statement or omission regarding vital information from a member of the disciplined force is liable to be judged on a higher pedestal. The matter of suppression regarding registration and pendency of a criminal case against him was deliberate and not due to any misconception, thus rendering him unfit for appointment in Railway Protection Force. The petitioner had sought quashing of the order impugned mainly on the ground that on the date of registration of FIR against the petitioner and his family members he was a juvenile, thus entitled to protection under the provisions of Juvenile Justice (Care and Protection) Act 2000.
30. The Delhi High Court observed that it was not disputed that the petitioner was a juvenile at the time of the incident. All the four accused persons including the petitioner were acquitted later on as the complainant did not make any incriminating statement against the petitioner and his family members. The Court observed that in Pratap Singh Vs. State of Jharkhand and Another reported in 2005 (3) SCC 551 a Constitution Bench had held that reckoning date for determination of the age of juvenile is the date of commission of the offence and not the date when he is produced before the Competent Authority or Court. The petitioner a juvenile, was tried along with the adult co-accused persons in a regular court while denying him the benefit of Juvenile Justice (Care and Protection) Act 2000. The Court observed that Section 19 of the Act of 2000 related to removal of disqualification attached to conviction and it also provided that the relevant records of such conviction would be removed after a period of seven years. The court quoted with approval the observations of the Madhya Pradesh High Court in a case where the petitioner being less than 16 years of age at the time of occurrence of the alleged criminal incident was a juvenile and he could not have been prosecuted except by a Juvenile Board. Hence it held that the prosecution of the petitioner by a court of regular Magistrate was without jurisdiction in terms of the Juvenile Justice Act 1986, which was in force at the time of such trial.
31. The respondents had argued that failure to mention his criminal antecedents by the petitioner needed to be viewed seriously as he was required to serve in a uniformed force. The Court observed on the basis of Section 19 of the Juvenile Justice Act 2000 that the provisions of the Act give an opportunity to the juvenile to lead a life with no stigma and to wipe out the circumstances of his inglorious past. The Court observed that there was no dispute that at the time of the alleged offence the petitioner was only 12 years old. At the time of applying for appointment to the post of constable the case was pending against him before the Juvenile Justice Board which later on was decided in his favour. Even if a conviction had been recorded by the Juvenile Justice Board Section 19 of the Juvenile Justice Act, 2000 stipulated that the juvenile shall not suffer any disqualification attached to such conviction and all relevant records relating to such conviction had to be destroyed after a certain period of time. Section 21 of the Act prohibits publication of the name of the juvenile in conflict with the law. The underlying object of such provision is to protect a juvenile from any adverse consequences on account of conviction for an offence committed as a juvenile. Once the juvenile has been extended a protective umbrella under the said enactment there was no good reason for the respondents to have insisted that the petitioner ought to have disclosed the information relating to the allegation against him pertaining to an offence that was committed during his childhood where he was tried by the Juvenile Justice Board and subsequently acquitted. The Court observed that even when police verification in respect of the petitioner was being conducted on the direction of the respondents, the concerned police officers ought to have refrained from revealing information pertaining to the petitioner since he was a juvenile at that point of time. This was in fact a gross breach of confidentiality contemplated under the act.
32. In view of the observations made by this Court and the Delhi High Court, and the provisions of Juvenile Justice (Care and Protection) Act, 2015 this Court is of the considered opinion that the petitioner no.1 being a juvenile at the time of criminal prosecution being concluded against him and having culminated in acquittal deserves to be reinstated in service, the order dated 01.03.2017 is quashed, the Writ Petition stands allowed. The petitioner no.1 shall get all consequential benefits of service including seniority and pay fixation except salary for the period he did not work. The order for reinstating him be passed by the respondents within six weeks of production of a copy of this order before them.
Order Date:-21/09/2022 Darpan Sharma [Justice Sangeeta Chandra]