Central Administrative Tribunal - Delhi
Rajesh Kumar vs Staff Selection Commission (Ssc) on 6 November, 2023
1
OA No. 187/2023
Item No.79/C-4
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 187/2023
Reserved on : 27.09.2023
Pronounced on : 06.11.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S. Khati, Member (A)
Rajesh Kumar
S/o Shri Chatter Singh
Ward No.12, VPO Narnaund
Distt. Hisar, Haryana-125039.
.. Applicant
(By Advocate : Mr. Sanchar Anand with Ms. Sombul Ausaf)
Versus
1. Staff Selection Commission
Through its Secretary
Block No.12, CGO Complex
Lodhi Road, New Delhi-110003.
2. Customs Excise & Service Tax Appellate Tribunal
Through its Registrar General
West Block No.2, R.K. Puram
New Delhi.
...Respondents
(By Advocate: Mr. Vijendra Singh)
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OA No. 187/2023
Item No.79/C-4
ORDER
Dr. Anand S. Khati, Member (A) The present O.A. has been filed by the applicant challenging the action of the respondents in not allowing him to join duties, rather rejecting his candidature to the post of Lower Division Clerk (LDC) with the respondent No.2 - Customs, Excise & Service Tax Appellate Tribunal at Chennai and his dossier has been sent back to respondent No.1.
2. The brief facts as narrated by the learned counsel for the applicant are that pursuant to an Advertisement issued by the respondent No.1 - Staff Selection Commission (SSC) invited applications for recruitment to the post of Lower Divisional Clerk/Junior Secretariat Assistant, Postal Assistant/Sorting Assistant and Data Entry Operators in various Central Government Ministries/ Departments/Offices by conducting Combined Higher Secondary Level (10+2) Examination, 2019. Being eligible, the applicant, who belongs to SC category, applied for the same and filled his application form online with all necessary details and allotted Roll No.2201656980. He was successful in Tier-I and Tier-II exams held on 15.10.2020 and 14.02.2021, respectively. Thereafter, he appeared for Skill test on 03.11.2021. He was shortlisted in the result declared by the respondent No.1 for further process of recruitment and called 3 OA No. 187/2023 Item No.79/C-4 for Document Verification on 25.03.2022. Thereafter, he was allocated for Post-L05 and vide letter dated 14.07.2022, the respondent No.2 issued offer of appointment to the post of LDC in Customs Excise & Service Tax Appellate Tribunal (CESTAT) and posted him at Chennai. He was directed to give his willingness in writing along with all documents by 16.08.2022. The applicant sent his willingness and submitted the Attestation Form to respondent No.2 in July, 2022 itself, without concealing anything. However, he was not allowed to join the duties and, therefore, he made a representation dated 26.10.2022. But to his utter surprise, he received a letter dated 31.10.2022 issued by the respondent No.2 informing him that his dossier has been sent back to the respondent No.1 - SSC and to contact SSC for further queries. When no cogent and substantive reasons were apprised for deprivation of his candidature from joining on the allocated post, he made representation-cum-legal notice dated 19.11.2022 and also filed application under RTI, but to no avail. Hence, the applicant filed the instant O.A. seeking the following relief(s):
"(i) Direct the Respondent to issue joining letter to the applicant to the allocated post of LDC in accordance with the process prescribed by law, and
(ii) Pass any other order or orders as may deem fit in the facts and circumstances of this case in the interest of justice."
3. Per contra, a counter affidavit has been filed by the respondents opposing the O.A. The learned counsel for the 4 OA No. 187/2023 Item No.79/C-4 respondents, relying upon the averments made in the counter affidavit, vehemently argued that the applicant filed misdeclaration on the candidate declaration/undertaking form that he was never convicted by any court of law and no criminal case was pending against him. Accordingly, he suppressed the material facts about his conviction by a court of law and gave a false declaration. Later, in Annexure A-10 : Self-Attestation Form, he declared that a case was registered against him under FIR case No.111 dated 15.03.2015 U/S 324/323/506 IPC and he was convicted by Judicial Magistrate I- Class, Hansi on 04.12.2019 and in the appellate stage, he was released on probation by the Additional Session Judge, Hissar vide order dated 27.11.2020. However, the above declaration was not given by him at the time of document verification, where he gave a false declaration suppressing material facts about his conviction by a court of law. Therefore, in reply to the representation dated 26.10.2022, the respondent No.2 vide letter dated 31.10.2022 informing him that his dossier was sent back to the respondent No.1 for misdeclaration, which was inadvertently written as „deceleration‟. Further, the case refers to misdeclaration and suppression of material facts and when such a serious allegation is established without any resistance from the applicant, as he himself admitted to have been convicted by a court of law, no further reason is required to be stated and it is well settled that suppression of material facts and misdeclaration would render a person 5 OA No. 187/2023 Item No.79/C-4 disqualified from joining Government service and the rural background of the applicant or the category to which he belongs, cannot cover up the misrepresentation by him. Government service is not open to those candidates who come with a criminal record and suppressing such facts is even more serious and there is no violation of principles of natural justice as he was never appointed to the post of LDC.
4. It is further averred by the learned counsel for the respondents that legal notice has no validity in service matters and the applicant cannot force the Government to allow him to join service. Besides the legal notice, the applicant has filed a public grievance on the Portal of Government of India, to which reply dated 12.01.2023 and 07.02.2023 were sent to the concerned authorities by the respondent No.2. Moreover, all the candidates who have been selected by the recruiting agency need not necessarily be appointed in service, as the same would be subject to other procedures/formalities, such as, medical fitness, verification of antecedents, educational qualification and category etc. and there is no discrimination or unreasonableness/unfairness in not appointing the applicant, as no one can hold the public office by unfair means. Hence, in view of above, the applicant is not entitled to any relief and the O.A. is liable to be dismissed. In support of his contention, the learned counsel for the respondents has relied upon the Hon‟ble 6 OA No. 187/2023 Item No.79/C-4 Apex Court judgments in State of Rajasthan and Others vs. Chetan Jeff, AIR 2022 SC 2274.
5. In rejoinder thereto, the learned counsel for the applicant has denied the averments made in the counter affidavit and has placed reliance on a decision of the Hon‟ble Apex Court in Shankar Dass vs. Union of India and Another, (1985) 2 SCC 358, wherein it has distinctly been held that, according to section 12 of the Probation of Offenders Act, a person found guilty of an offence and dealt with under the provisions of section 3 or 4 of the act "shall not suffer disqualification" attaching to a conviction for an offence under such law. He has also placed reliance on a decision of the Hon‟ble High Court of Delhi in Shaitan Singh Meena vs. Union of India and Anr. in WP(C) No. 860 of 2017, wherein it has been perspicuously held that the object of section 12 of the Probation of Offenders Act is to remove the disqualification attaching to the conviction. In addition, the Hon‟ble Court was of the opinion that the action of the Respondent, in seeking to use the conviction of the Petitioner for non-serious offences, to disqualify him for appointment in government service by ignoring the fact that he has been released on probation, thereby, defeats the very objective of Section 12 of the Probation of Offenders Act. He has also placed reliance upon a recent judgment dated 10.10.2023 of the Hon‟ble High Court of Delhi in Mahendra Solanki vs. The Commissioner of Police & Anr. in WP(C) No. 2219/2023, 7 OA No. 187/2023 Item No.79/C-4 wherein the Hon‟ble High Court set aside the order passed by this Tribunal dismissing the O.A. as well as the order passed by the respondents terminating his services, and the respondents were directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. The learned counsel further argued that the applicant had himself disclosed all material facts and particulars about his conviction and subsequent release on probation in the Attestation Form, rather enclosed the copy of the judgment dated 27.11.2020 passed in Criminal Appeal No.84 of 2019 and, therefore, the averment of the respondents that he did not disclose the details during the document verification is completely baseless.
6. We have heard Mr. Sanchar Anand, learned counsel for the applicant and Mr. Vijendra Singh, learned counsel for the respondents and have perused the pleadings on record.
7. When the matter was taken up for admission, on a submission made by the learned counsel for the applicant that the applicant has been told that as he was released on probation, which fact he had brought out on record while filling up the attestation form, whereas the same is not a disqualification in terms of judgment in Shankar Dass (supra), this Tribunal by way of an interim measure, directed the respondents not to fill up one post of LDC, vide order dated 19.01.2023.
8OA No. 187/2023 Item No.79/C-4
8. From a perusal of the record, it is evident that in the Attestation Form dated 22.07.2022, the applicant had himself declared that a case was registered against him U/S 324/323/506 IPC and he was convicted by Judicial Magistrate I Class, Hansi on 04.12.2019, but in appellate stage, he was released on probation by the Additional Session Judge, Hissar vide order dated 27.11.2020 and in terms of section 12 of Probation Act, the same cannot be considered as disqualification. However, it is contented by the respondents‟ counsel that the above declaration was not given by him at the time of document verification, where he gave a false declaration suppressing material fact about his conviction. In support of his contention, the respondents‟ counsel produced a copy of "Candidate Declaration/Undertaking Form" filled by the applicant, wherein the applicant had marked „tick (✔)‟ against each of the columns in Part „A‟, the same is reproduced below:
1. I have read the provisions in the Notice of the examination carefully and ✔ hereby undertake to abide by them.
2. Further declare that I fulfill all the conditions of eligibility regarding age ✔ limits, educational qualifications etc. prescribed for admission to the examination.
3. I also declare that I do not stand debarred by SSC/UPSC or any other ✔ government recruiting agency as on date and have never been convicted by any court of law. I also declare that no criminal case is pending against me. Further declare that I have never been dismissed or removed from Govt. Service or my service been terminated during probation.
From a perusal of the above Declaration/Undertaking form, it seems that in column No.3 as quoted above, since there were multiple queries as regards debarment by SSC/UPSC or any other government recruiting agency, conviction by any court of law/ 9 OA No. 187/2023 Item No.79/C-4 criminal case pending against him and dismissed/removed from Govt. Service or service terminated during probation, the applicant would have ticked the column 3 unintentionally, but that cannot be said with any mala fide intention because in Self-Attestation Form (Annexure A-10) filled before respondent No.2, he himself declared that a case was registered against him under FIR case No.111 dated 15.03.2015 U/S 324/323/506 IPC and he was convicted by Judicial Magistrate I-Class, Hansi on 04.12.2019 and later, he was released on probation by the Additional Session Judge, Hissar vide order dated 27.11.2020 enclosing therewith a copy of the order, the operative part of which reads as under:
"15. It is evident that the appellants are neither hardened criminals nor habitual offenders. They are simple villagers and have family to support. They are repentant upon their act. Therefore, this Court is of the view that the present case is a fit case where the appellants are entitled to the benefit of probation.
16. In the light of above discussion, the order on sentence dated 04.12.2019 passed by the learned lower court is liable to be set aside and the appellants are entitled to be released on probation on furnishing personal bonds of peace and good behaviour in the sum of Rs.25,000/- each for a period of three months. The Point of Determination - II is accordingly decided in favour of the appellants.
17. As a sequel to the findings on the Points for Determination
- II, the appeal filed by the appellants is allowed and order of sentence dated 04.12.2019 passed by the Court of Shri Manjeet Pal, the learned Judicial Magistrate Ist Class, Hansi is set aside. The appellants are ordered to be released on probation on furnishing personal bonds each of peace and good behaviour for a period of three months in the sum of Rs.25,000/- each. The requisite bonds furnished. Same are accepted and attested. The fine deposited by the appellants, if any, in the learned lower court shall be adjusted."
From the above, it is evident that the learned Magistrate while considering the appeal, observing that the applicant is not a habitual 10 OA No. 187/2023 Item No.79/C-4 offender, set aside the order of sentence dated 04.12.2019 and released him on probation, vide order dated 27.11.2020.
9. We have considered the law position as held by the Hon‟ble Apex Court in Avtar Singh vs. Union of India, (2016) 8 SCC 471, and in Chetan Jeff (supra) relied upon by the respondents.
10. We have also gone through the recent judgment passed in Mahendra Solanki (supra) relied upon by the applicant, wherein after considering a catena of judgments on the subject, the Hon‟ble High Court of Delhi has observed as under:
"14. It is imperative to note that the aforesaid broad guidelines/conclusions referred in para 69 by the Hon'ble Supreme Court in Satish Chandra's case in no manner overrule the yardsticks as laid down in Avtar Singh's case as reflected in para 38.1 to 38.11 above, which is a three Judge Bench judgment. The broad principles have been laid down considering the fact that different courts enunciated different principles over a period of time.
The observations made by the Hon'ble Supreme Court in para 31 in Avtar Singh v. Union of India (supra) are pertinent to be considered and may be reproduced:
"31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects."11 OA No. 187/2023
Item No.79/C-4
15. It is also imperative to point out that in Pawan Kumar v. Union of India (supra), the appeal was directed against the judgment and order passed by the Division Bench of the High Court of Delhi upholding the order of discharge taking recourse to Clause 9(F) of the employment notice read with Rule 67.2 of Railway Protection Force Rules, 1987. In the aforesaid case, the FIR under Section 148/149/323/506/356/ IPC was registered against the appellant on 04.04.2011, the charge-sheet was filed on 13.04.2011 and the appellant was acquitted on 12.08.2011. The aforesaid facts were not disclosed by the appellant when he filled the attestation form on 27.05.2014 with reference to the columns relating to his prosecution and was discharged from the service on 24.04.2015. The case was admittedly not pending when the process of selection was initiated vide employment notice dated 27.02.2011. The appellant therein also incorrectly disclosed the information with reference to the columns relating to arrest/prosecution and the attestation form also contained a warning that furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under government.
After considering the legal position laid down in Avtar Singh (supra) which was given by a three-Judge Bench, the Hon'ble Supreme Court in Pawan Kumar (supra) held in para 13 as under:-
"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."
It was further held that the Authority therein had not considered the scope and ambit of Rule 52 of the Railway Protection Post Rules, 1987 that after verification of the character/antecedents of the incumbent it will be an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the Force and without appreciation in a mechanical manner confirmed the order of discharge. It was also held that as observed in Avtar Singh's case (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the Authorities which must be exercised with care and caution taking all the facts and circumstances into consideration, including the nature and type of offence. The appellant was accordingly directed to be reinstated to the service on the post of Constable on which he was selected.
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16. It may also be pointed out that while referring to various cases decided by the Hon'ble Supreme Court, a reference was also made in Avtar Singh (supra) to a three Judge Bench decision of the Hon'ble Supreme Court in TS Vasudavan Nair v. Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, which related to non disclosure of conviction in a case registered under the Defence of India Rules for having shouted slogans on one occasion. The three Judge Bench in the aforesaid case held that non disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC.
17. In the light of aforesaid legal position, there cannot be any dispute that an applicant participating in the selection process is mandated to furnish the correct information in respect of character and antecedents in the requisite application form as well as attestation/verification form. In case the information is found to be suppressed, concealed or incorrectly declared and later on comes to the knowledge of the employer, appropriate recourse may be adopted by the employer in its discretion for cancelling the candidature or terminating the services of the employee. However, the exercise of power has to be in a reasonable manner with objectivity having regards to the facts in each case. The yardstick to be applied depends not only on the nature of the post, duties/services but as well as the nature of criminal involvement i.e. whether it is of trivial nature or otherwise. Even where the employee makes a truthful declaration on a concluded criminal case, the employer still has a right to consider the antecedents and the employer cannot be compelled to employ the candidate."
At the end, the Hon‟ble High Court concluded the matter as under:
"On the other hand, the factual position in present case is squarely covered by Pawan Kumar v. Union of India (supra).
20. For the foregoing reasons, the order passed by the Tribunal is set aside along with order passed by the respondents terminating the services of the petitioner. Respondents are accordingly directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. Considering the facts and circumstances, no order as to costs. Pending applications, if any, also stand disposed of."
11. In view of the foregoing reasons, we are of the view that this is not a case where it can be said that the applicant has suppressed any material fact. If we take note of the pleadings on record, it would be seen that in the Self-Attestation Form, the 13 OA No. 187/2023 Item No.79/C-4 applicant has himself declared about registration of FIR case No.111 dated 15.03.2015 U/S 324/323/506 IPC and conviction by Judicial Magistrate I-Class, Hansi on 04.12.2019 and thereafter his release on probation by the Additional Session Judge, Hissar vide order dated 27.11.2020. Moreover, the applicant has successfully completed the selection process and the case was not pending when the verification form was filled, and in terms of Avtar Singh (supra), the employer may ignore lapse of suppression in appropriate cases and are bound to consider grounds of release and other aspects to judge overall conduct.
12. In view of the above, we direct the respondents to reconsider and verify the antecedents of the applicant and if the same are otherwise found good and he is found eligible, the applicant be allowed to join the duties on the post of LDC. It is made clear that he would be entitled to all consequential benefits on notional basis from the date his immediate junior was appointed, however, on actual basis from the date he joins the post. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.
13. The O.A. is disposed of, in the aforesaid terms. There shall be no order as to costs.
(Dr. Anand S. Khati) (Manish Garg)
Member (A) Member (J)
/jyoti/