Central Administrative Tribunal - Delhi
Sandeep Kumar vs Election Commmission Of India on 12 September, 2024
1
Item No. 36 (C-4) O.A No. 1021/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1021/2015
Reserved on : 02.09.2024
Pronounced on : 12.09.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
SANDEEP KUMAR, Age-27 years, (Fresh Appointment)
S/o Sh. Shamsher Singh,
R/o-V&PO-Gorar, Tehsil-Kharkhoda,
District-Sonepat,
Haryana, PIN-131408 ....Applicant
(By Advocate Mr. Sachin Chauhan with Mr. Abhimanyu Baliyan)
Versus
1. Union of India,
Through its Secretary,
Govt. of India, Ministry of Personnel
Public grievances & Pension,
Department of Personnel & Training,
North Block, New Delhi.
2. Election Commission of India,
Through its Chief Election Commissioner,
Election Commission of India,
Nirvachan Sadan, Ashoka Road,
New Delhi-110 001.
3. The Under Secretary,
Secretariat of Election Commission,
Through its Chief Election Commissioner,
Election Commission of India,
2 OA No.3700/2017
Nirvachan Sadan, Ashoka Road,
New Delhi-110 001.
4. Staff Selection Commission,
Through its Chairman,
Block No-12, CGO Complex,
Lodhi Road, New Delhi -3 ....Respondents
(By Advocate: Ms. Sumedha Sharma and Mr. Om Batra for Mr.
Sidhant Kumar)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
The Instant OA has been filed by the applicant Mr. Sandeep Kumar under Section 19 of the Administrative Tribunals Act, 1985, wherein his main grievance is denial of appointment to him. By way of this OA, he is seeking the following reliefs :-
"8 i) To direct the respondents that applicant be given appointment Commission to (as the post of LDC in Election per merit and nomination in selection process i.e. CHSL Exam-2013) with all consequential benefits Including seniority and promotion and pay and allowances.
And
ii) Any other relief which this Hon'ble Court deems fit and proper may also awarded to the applicant."
2. The conspectus of the case as per the applicant is that in the year 2013 the recruitment process was initiated by the Staff Selection Commission (SSC) for the post of Lower Division Clerk (LDC). The applicant applied for the said post under UR category 3 OA No.3700/2017 and appeared in the Combined Higher Secondary Level Examination (CHSLE)-2013 conducted by the SSC wherein he scored 149.75 marks in the written examination. Thereafter he was subjected to skill test (typing test) which was also qualified by him. As per the final result dated 20.05.2014, he got 245th rank and consequently he was nominated as LDC in the Election Commission. According to the applicant, on 24.05.2014 he was falsely implicated in FIR No. 61/2014 u/s 420/120-B IPC at P.S. Chanakya Puri, Delhi. However, no challan has been filed by the investigating agency to the Court till date. In the meantime, the applicant received a letter dated 22.08.2014 by the Election Commission nominating him in Secretariat of Election Commission and he was asked to fill the attestation form furnishing the details. He filled the same in which he clearly revealed about his false implication in FIR registered in PS Chanakya Puri, Delhi, which is still pending. The applicant is aggrieved by the action of the respondents in giving appointment to other selected candidates of his batch ignoring him even after elapse of considerable time. To ventilate his grievance, the applicant approached the Election Commission to know the reason of delay in his appointment but the respondents 4 OA No.3700/2017 assured him orally that he would be given appointment only after the finalization of the criminal case pending against him which has caused him great prejudice. Feeling aggrieved, the applicant preferred a representation dated 16.02.2015 which is still pending decision with the respondents. Hence the OA.
3. Learned counsel of the applicant based his case on the following grounds :-
"5.1 That merely the name of applicant being named in an FIR can not be a ground to deny the appointment to the applicant on a post in respect of which the applicant has cleared the selection process.
5.5 That it is a matter of record that no cognizance of allegation in FIR has been taken by court thus the allegation in a FIR can not be basis of denying the appointment to the applicant.
5.11 That the applicant is further placing its reliance on the judgment of the Hon'ble Apex court in state of M.V. Rama Shanker Raghuvanshi and anr. 1983 (SCC) L & S 263 1983 (1) SLJ 392 (SC), observed as under:
"is government service such a heaven that only angels should seek entry into it? we do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic right guaranteed by the Constitution entirely misplaced in dedicated and a democratic republic to the ideals set four in the preamble of the Constitution. We think it offends the fundamental right guaranteed by Article 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities considered likely to affect the integrity and efficiency of the individual's service....."5 OA No.3700/2017
4. The counsel for the applicant further relied upon the order of the Coordinate Bench of this Tribunal in OA No. 2437/2016 with OA No. 2619/2017 decided on 28.04.2022 in Keshav Kumar Chahar & Anr. vs. UOI & Ors. and Jitendra Joshia vs. UOI & Ors. wherein it has been held in paras 8 and 12 as under :-
"8. It is seen from the record that on receipt of various alleged complaints regarding adopting of unfair means by candidates appearing in the CGL 2015, a thorough enquiry was conducted and the matter was referred to CFSL qua 159 suspicious candidates. It is also seen that the CFSL returned the matter stating that they did not have any modalities for determining discrepancies in the system of filling of ovals. The respondents subsequently reviewed the cases of 159 candidates on their own and out of which, 6 cases were cleared and accordingly their results were declared by the respondents. However, remaining cases of 153 candidates were sent to CBI for further investigation. However, these applicants along with a few others were allowed to undergo documents verification and interview but their results were kept in sealed cover on the ground of ongoing CBI enquiry.
12. We, therefore, dispose of the OA directing the respondents to open the sealed cover and declare the result of the applicants provisionally within a period of four weeks from the date of receipt of certified copy of the order, and on re-opening of the sealed cover, if they are found otherwise eligible and meeting the cut off marks etc., they shall be given appointment forthwith by incorporating a clause that it shall be subject to the final outcome of the said ongoing enquiry. In case of appointment, the applicants shall be entitled to consequential benefits viz., seniority and notional fixation of pay, however, they shall not be entitled to any arrears of pay. It is also made clear that if anything adverse is finally found against the applicants on such 6 OA No.3700/2017 enquiry, they shall be liable to vacate the office, without prejudice to their right to challenge the report of the said enquiry and pursue further remedies, in accordance with law."
5. He further stated that the aforesaid order of this Tribunal had been upheld by the Hon'ble Supreme Court in SLA (C) Nos. 7568-7569/2023 and the Hon'ble High Court vide W.P.
(c) No. 13259/2022 decided on 21.11.2022.
6. He further relied on the judgment of the Hon'ble High Court of Delhi in WP(C) 5718/2023 in Vikram Ruhal vs. Delhi Police and ors., which inter alia states as under :-
"17. Considering that the petitioner had been placed in Column No. 12 of charge-sheet and the fact that evidence did not establish his involvement in aforesaid offences after Investigation, he should have been logically considered suitable for appointment. Merely being named in the FIR cannot be treated as an impediment for public appointment, unless the involvement is substantiated on Investigation, specially in relation to matrimonial offences.
The Competent Authority as well as the learned Tribunal appear to have ignored the fact that there is a growing tendency amongst the women to rope in all the relatives including minors in case an FIR is lodged with reference to matrimonial disputes. Many of such complaints are eventually either settled between the families/spouses and are later on stated to have been filed in the heat of the moment over trivial issues. The abuse of the aforesaid provision has been substantially noticed though the salutary purpose of the enactment cannot be ignored in any manner. Merely naming in the FIR does not lead to an inference that the employer can keep in abeyance the employment of an applicant for an indefinite period, even if the applicant has been placed in column No. 12 of the charge-sheet and has not been summoned."7 OA No.3700/2017
He also relied on the judgment of Hon'ble Supreme Court in SLP (C) No. 20525/2011 in case of Avtar Singh vs. Union of India & Others which has laid down the settled principle in law in such matters as follows:-
"30. 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:
(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.
(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.
(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
(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:-
(a) 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.
(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
(c) 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, 8 OA No.3700/2017 the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
(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.
(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.
(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.
(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.
(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.
(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. (11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.
We answer the reference accordingly. Let the matters be placed before an appropriate Bench for consideration on merits."
9 OA No.3700/2017It was stated that the applicant had never suppressed the material facts and he had reported that (there was a FIR No. 61/2014 u/s 420/120-B IPC dated 24.05.2014 at PS Chanakyapuri, Delhi where he was falsely implicated) while filing his documents before the Election Commission of India. He had further clarified that though he was in judicial custody for 89 days and later discharged from judicial custody as till now no challan / charge sheet has been filed by the Police in this case in the Court.
7. Learned counsel for Respondent no. 4 i.e. SSC did not dispute the fact that the applicant was selected as LDC and he was issued offer of appointment vide letter dated 21.07.2014. However, it was stated that during the pre-appointment verification by the Election Commission original documents of the applicant were sought where it emerged that he has been named in a criminal case, hence, his appointment was withheld. It was further stated that the SSC had no role in the appointment of any of the candidates rather, their sole role, being a recruiting agency, was to make recruitment and to recommend the selected candidates to different user departments and the onus of appointment lied only with the user 10 OA No.3700/2017 department. With no role to play in this matter, it was prayed that name of Respondent no. 4 i.e. SSC be deleted from the array of parties.
8. Learned counsel for the respondent nos. 2 and 3 opposed the OA on the ground that the applicant had concealed the material fact about the offence for which the aforementioned FIR dated 24.05.2014 had been filed and had also concealed the stage of the criminal case registered against him. According to the counsel, the applicant had also failed to state whether he was arrested and had been remanded to jail for 89 days i.e., from 29.05.2014 to 27.08.2014 and during that period he was not granted bail.
9. To buttress the arguments, learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in R. Radhakrishnan vs. Director General of Police and Others in CA No. 4874 of 2007 decided on 12.10.2007 wherein the Hon'ble Apex Court held as under :-
"11. The question came up for consideration before this Court in Delhi Admn. v. Sushil Kumar wherein it was categorically held: (SCC p. 606, para 3) "3.... The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he 11 OA No.3700/2017 cannot be denied the right of appointment to the post under the State. The question g is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the Important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person."
He further relied upon the judgment of the Hon'ble Delhi High Court in W.P (C) No. 5718/2023 in Vikram Ruhal vs. Delhi Police & Ors. wherein the High Court has held vide paras 13 and 14 as under :-
"13. We have given considered thought to the contentions raised.
In Avtar Singh vs. Union of India, MANU/SC/0803/2016:
(2016) 8 SCC 471, the issue had been referred for resolving the conflict of opinion in the various decisions of Division Benches of the Hon'ble Supreme Court of India as noticed in Jainendra Singh v. State of U.P. through Principal Secretary, Home & Ors. MANU/SC/0605/2012: (2012) 8 SCC 748, on the question of suppression of information or submitting false information in Verification Form or having been criminally prosecuted, arrested or as to the pendency of a criminal case.
It is no longer res Integra that even if a disclosure has been truthfully made by the applicant, the employer has the right to consider antecedents and fitness and cannot be compelled to appoint a candidate.
The principles as summarized in para 38 in Avtar Singh (supra) so far as they are relevant to present proceedings, may be beneficially recapitulated. Hon'ble Apex Court held that 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. Even if a disclosure has been truthfully 12 OA No.3700/2017 made by the applicant, the employer has the right to consider antecedents and fitness and cannot be compelled to appoint a candidate. While doing so, the fact of conviction and background facts of the case, nature of offence etc. have to be considered. Further, even if the acquittal has been made, the employer may consider the nature of offence, whether acquittal is honourable or if the same is given benefit of doubt on technical reasons, and decline to appoint a person, who is unfit or is of dubious character. In case employer comes to conclusion that conviction or grounds of acquittal in criminal case would not affect the fitness for employment, incumbent may be appointed or continued in service. What yardstick is to be applied has to depend upon the nature of post, higher posts would involve more rigorous criteria for all services, not only to uniformed post. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by concerned authorities considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
14. Keeping in perspective the guidelines laid down in Avtar Singh (supra), the Competent Authority in the present case, was required to consider the suitability of the petitioner having regard to result of investigation and cognizance taken thereupon on the charge-sheet, in FIR No. 234/2018, under Section 313/323/406/498A/506/34 IPC, PS: Women Police Station, Jind. The Competent Authority was accordingly under obligation to examine the nature of offence, the evidence appearing against the petitioner and the attendant circumstances. All matters in this regard cannot be placed in a straitjacket and a degree of flexibility and discretion does vest with the authorities, who are expected to exercise the same with care and caution."
10. Heard the learned counsel of both the sides ; examined the documents on record and perused the relevant judgments of CAT; Hon'ble Delhi High Court and Hon'ble Supreme Court. As per the ratio given in Hon'ble Supreme Court judgment in Avtar Singh vs. Union of India & Others (supra) (2011) in SLP (C) No. 20525/2011, it is a settled principle in law that merely being 13 OA No.3700/2017 named in the FIR cannot be treated as an impediment for public appointment unless the involvement is substantiated on investigation. This principle has been further reinforced by the Judgment of the Delhi High Court in WP(C) No. 5718/2023 in case of Vikram Ruhal vs. Delhi Police and Others (supra). Merely being named in the FIR does not lead to an inference that the employers can keep an applicant's case for employment in abeyance (even if the applicant has been placed in column no. 12 of the charge sheet and has not been summoned). In the instant OA, we have observed that though the applicant was in judicial custody for 89 days, till now, no charge sheet has been filed by the Delhi Police. We also rely upon the order of the Co- ordinate Bench of this Tribunal in OA No. 2437/2016 with OA No. 2619/2017 decided on 28.04.2022 in Keshav Kumar Chahar & Another vs. UOI & Others and Jitendra Joshia vs. UOI & Others.
11. In our considered opinion therefore, the balance of convenience in the instant OA clearly lies with the applicant. Accordingly, the Election Commission of India through its Under Secretary, Secretariat of the Election Commission of India is directed to consider the candidature of the applicant for the post 14 OA No.3700/2017 of LDC in Election Commission of India based on CHS Exam- 2013, if he is otherwise found suitable on merit and medical fitness, with all consequential benefits on notional basis such as notional fixation of pay etc. However, the applicant would not be entitled to any arrears of pay. This process should be completed within a period of six weeks from the date of receipt of a certified copy of this order. The OA is accordingly allowed. However, there will be no order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi) Member (A) Member (J) /Mbt/