Allahabad High Court
Shiv Kumar Dwivedi vs State Of U.P. And Ors. on 23 February, 2011
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 26 Case :- WRIT - A No. - 32826 of 1993 Petitioner :- Shiv Kumar Dwivedi Respondent :- State Of U.P. And Ors. Petitioner Counsel :- R.C.Singh Respondent Counsel :- S.C. Hon'ble Sudhir Agarwal,J.
1. The writ petition is directed against the order dated 4.6.1993 whereby the petitioner's candidature for appointment to the post of Constable in Provincial Armed Constabulary (hereinafter referred to as "PAC" has been cancelled on account of his conduct not found suitable for Government Service by the Commandant 12th Battalion, Fatehpur.
2. The facts in brief giving rise to the present dispute are as under.
3. The recruitment for Constable in PAC commenced vide notice/advertisement dated 21.5.1988. The selection proceedings took place at Allahabad from 1st July to 20th July 1998 wherein the petitioner was ultimately selected finding his name in the merit list at serial no. 222. While other selected candidates were sent for training, the petitioner was not. Hence, he made a representation dated Nil to Government of India as also the Director General of Police, U.P., Lucknow (Annexures 2 and 4 to the writ petition). The petitioner subsequently came to know that on account of his implication in a criminal case, police report in respect of his character verification was against him and on the basis thereof neither he was sent for training nor was issued letter of appointment.
4. The criminal case later on resulted in acquittal vide judgment dated 25.2.1992 whereafter the petitioner represented the authorities and having received no response came to this Court in writ petition Nil of 1992 which was disposed of on 21.9.1992 directing the competent authority to decide his representation pursuant whereto the impugned order has been passed by the Commandant 12th Battalion, PAC, Fatehpur.
5. The respondents have filed counter affidavit stating that a criminal case crime no. 129 of 1988 under Sections 325/323/504 IPC was registered against petitioner with respect to an incident which took place on 6.6.1988 on account whereof his conduct was not found suitable for appointment in Government Service in view of Government Order No. 4694-II-B-321-1947 dated 28th April 1958 which provides that appointing authority must satisfy himself about suitability of a candidate in all respects for appointment in Government Service. It is also stated that in the affidavit submitted by petitioner at the time of appointment on 20.8.1988, he concealed factum of registration of a criminal case against him and for this reason also he was not found suitable for appointment. So far as subsequent acquittal is concerned, that would not make any difference since facts and circumstances as they stood at the time of appointment are relevant and not the subsequent one. For a discipline force like PAC , the conduct and character of a candidate must be absolutely clean and above board.
6. In the rejoinder affidavit the petitioner has placed on record a copy of letter of appointment dated 1.2.1994 stating that during pendency of writ petition he was appointed and has been allowed to complete his training, thus he may be allowed to continue in service. This was pursuant to interim order dated 17.09.1993.
7. Sri R.C. Singh, learned counsel for the petitioner assailed the impugned order and raised three issues:
(I) the impugned order is not speaking one;
(ii) the petitioner having been acquitted is entitled for appointment and
(iii) since after filing of the writ petition during its pendency he was appointed and for the last more than one and half a decade, is working in PAC, therefore, at this stage, dismissal of writ petition shall cause serious prejudice to the petitioner, hence he should be allowed to continue in service.
8. So far as the first submission is concerned, it is evident that petitioner was not issued any letter of appointment on account of adverse verification of his character and antecedents. The appointing authority came to conclusion that he is not suitable for appointment. The reason for his character not found suitable is mentioned in the impugned order. In the nature of matter with which we are concerned, the authority is not supposed to pass a detailed order inasmuch as detailed observations or statement in such orders may cause more serious consequences and, therefore, it is always desirable to avoid such details. The purpose is that real intent stand conveyed to the person concerned. From the pleadings in the writ petition, it is evident that petitioner was aware of the fact that on account of his implication in criminal case, he was not appointed.
9. In fact, on this aspect also there are two facets of the matter. Firstly, the respondents have taken a clear stand that in his affidavit, the petitioner has concealed the factum of pendency or registration of criminal case and, therefore, was guilty of concealment of information and thereby misleading the Department. Secondly, it relates to antecedent and character verification which has been found negative, hence, appointing authority decided not to appoint the petitioner.
10. Where a candidate has to specifically disclose whether any criminal case has been registered or pending against him and the candidate fails to give information in this regard, and instead gives a wrong information, this conduct itself is sufficient to cancel his candidature. There are a catena of decisions on this point. The question whether such conduct of a candidate can be treated to be so serious as to warrant cancellation of selection in Government service came up for consideration before a Full Bench of Rajasthan High Court in Dharam Pal Singh Vs. State of Rajasthan, 2001(4) ESC 1837 and it answered the said question as under:-
1. That a candidate was prosecuted or subjected to investigation on a criminal charge is a material fact, suppression of which would entitle an employer to deny employment to a candidate on that ground.
2. That ultimate acquittal of a candidate, who was prosecuted on a criminal charge, would not condone or wash out the consequences of suppression of the fact that he was prosecuted.
3. That suppression of material fact would by itself disentitle a candidate from being appointed in service.
11. The Apex Court also took the same view in Delhi Administration through its Chief Secretary and others Vs. Sushil Kumar, JT 1996 (10) SC 34, Andhra Pradesh Public Service Commission Vs. Koneti Venkateswarulu and others, 2005 (7) SCC 177 and Kendriya Vidyala Sangthan Vs. Ram Ratan Yadav JT 2003 (2) SC 256.
12. A Division Bench of this Court (in which I was also a member) in Special Appeal No. 335 of 2005, Ashok Kumar Vs. D.I.G., C.R.P.F. and others decided on 16.12.2005 held if a person found guilty of making wrong declaration or concealment of material information, it would render him disqualified for appointment. In Dharamjeet Vs. Union of India 2007 (4) AWC 3528, Civil Misc. Writ Petition No. 48684 of 2007 Kapil Dev Vs.State of U.P. & others decided on 20.12.2010 and several other similar matters, I have followed the above authorities.
13. The second aspect is character verification. In this regard, the Government Order dated 28.4.1958 lays down detailed procedure and instructions which used to be followed in the matter of verification of character and antecedents of Government Servant before their first appointment. It says that rule regarding character of the candidate for appointment under the State Government shall continue to be as follows:
"The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be the duty of the appointing authority to satisfy itself on this point."
14. In this context it cannot be disputed when character verification and antecedents was made by the authority concerned, it came to know of the criminal case registered against the petitioner. The appointing authority formed opinion that petitioner is not suitable for appointment in Government Service. Subsequent acquittal would not make any difference since it is not the subsequent event or a future event but what actually existed on the date when appointing authority took decision for appointment, is relevant. Almost in a similar circumstances, the Apex Court in Delhi Administration through its Chief Secretary and others Vs. Suishil Kumar JT 1996(10) SC 34 held:
"3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on September 6, 1995 in OA No. 1756/91. The admitted position is that the respondent appeared for recruitment as a Constable in the Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally; his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated December 18, 1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. 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 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question 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 candidates is suitable to a post under the State. Though he was physically found 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 of such record as Constable to the disciplined force. The view taken by the appointment authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing Authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service."
15. The second issue regarding acquittal raised by learned counsel for the petitioner stands replied by the above discussion as well as authority of the Apex Court.
16. Now I come to third aspect of the matter which relates to events happened during pendency of writ petition. Here something is really a bit disturbing. The reliefs sought by petitioner in the writ petition are as under:
"1. a writ, order or direction including a writ in the nature of Certiorari quashing the impugned order dated 4.6.1993 (Annexure-10) passed by Respondent No. 4 namely the Sena Nayak, 12th Bn. P.A.C. Fatehpur.
2. a writ, order or direction in the nature of Mandamus commanding the respondents to send the petitioner for necessary training of constable P.A.C. forthwith.
3. any other writ, order or direction as the Hon'ble Court may deem fit and proper in the circumstances of the case to protect the interest of the petitioner.
4. award the cost of this writ petition to the petitioner."
17. The second relief requires this Court to issue a writ of mandamus commanding respondents to send the petitioner for training as Constable. This Court while entertaining the writ petition on 17th September 1993 passed following interim order:
"Issue notice.
In the meantime the respondents are directed to allow the petitioner to complete his training for appointment in the P.A.C. on the basis of his having passed the selection examination. In case the petitioner has actually been selected for the appointment in the force but was not sent for training on account of his involvement in the criminal case of which he alleges to have been acquitted by the court, the respondent No. 3 shall examine the case of the petitioner on a representation being filed by the petitioner along with a certified copy of this order within a period of one week from today and if he finds the contention of the petitioner correct, he will allow the petitioner to be admitted provisionally in the Training School.
The Standing Counsel may file counter affidavit within six weeks from today."
18. This Court by means of the interim order, therefore, virtually granted relief no.2, merely on the ground that the petitioner was acquitted from criminal case and directed the authority concerned to send petitioner for training. The interim order was ex parte one and yet granted final relief to the petitioner. The authorities in view thereof issued letter of appointment on 1.2.1994 and sent petitioner for training though on provisional basis. Thereafter counter affidavit along with stay vacation application was filed in November 1993 but the writ petition remained unlisted and no order appears to have been passed on stay vacation application. In the result, the authorities proceeded treating interim order continuing and the petitioner also continued to work thereafter. The interim order as also the letter of appointment shows that the engagement of petitioner was provisional. The question is, whether something which has flown from an interim order can be allowed to remain for ever though the writ petition otherwise deserved to be dismissed. Merely for the reason that the matter has remained pending in the Court of law for more than one and a half decade, if view in favour of petitioner who had obtained ex parte interim order, is taken, it would result in a permanent loss to the other side meaning thereby a favour which the petitioner has got on the basis of an ex parte interim order would perpetuate though the writ petition did not deserve to be allowed and the action of the respondents, when adjudicated finally, is found valid and in accordance with law. It would make the court of law which had passed ex parte interim order a party in a lis causing a permanent benefit to a party and that too on the basis of an interim order passed ex parte.
19. The maxim actus curiae neminem gravabit is well established (act of the Court shall prejudice none). The maxim and principle is well established in administrative law for the reason that any benefit which has flown from an ex parte interim order will have to be restored if ultimately the incumbent fails. The concept derives its justification from the principle that once a writ petition is dismissed or a case is dismissed, the interim order passed earlier in such matter shall also stand dismissed and disappear as if it was never granted. Time and again this Court has observed as such. This has also been reiterated by several judgments of this Court and Apex Court in Kanoria Chemicals and Industries Ltd. and others vs U.P. State Electricity Board and others., (1997) 5 SCC 772. In Kanoria Chemicals and Industries Ltd. (supra) the Apex Court observed:
"It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceeding and it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court".
20. Instead of saddling this judgment with several other authorities on the same point it would be useful to refer a recent judgment of this Court in Avinash Mohan (Dr.) v. State of U.P. and other, (2008) 3 UPLBEC 2148 where most of these cases are relied and referred. The above decision of the Apex Court has been followed by a Division Bench of this Court (of which I was also a member) in Ajai Kumar Dubey Vs. The Farrukhabad District Cooperative Bank Ltd. and others 2009 (3) ADJ 555.
21. In view of the above discussion merely for the reason the the petitioner has got the advantage pursuant to an ex parte interim order which has gone to the extent of finally granting some relief to the petitioner at that very stage, I do not find it just and valid to allow him to retain such benefit since it would be against the principal of uniformity, impartiality and fairness. When a case is decided, the party loosing the matter must not be in a wining position and a party wining the matter must not have something to repent and that to only for the reason of an interlocutory/interim order passed by the Court.
22. In the result, the petitioner in my view does not deserve any relief either in law or otherwise.
23. So far as sympathetic consideration is concerned, as argued by learned counsel for the petitioner it is also well settled that sympathy which is not within the precincts of law cannot be founded basis to grant something which is otherwise impermissible. On this aspect this Court in Civil Misc. Writ Petition No. 23899 of 2007 Vibha Srivastava Vs. Cantonment Board Varanasi & others decided on 7.1.2010 observed in paragraphs no.22 to 28:
" 22. Now coming to the second question, I am of the view that the appointment made on a post which is not in accordance with law would not confer any right upon the incumbent either to hold the post or to continue in service on such post in any manner. Mere length of service or lack of any fault on the part of the employee concerned is not relevant inasmuch it is the observance of statutory provisions and not the personal or individual act on the part of the parties concerned which would decide the rights of the persons to hold the post. If a person does not possess the requisite qualification or is otherwise appointed on a particular post in violation of the statute, he/she cannot claim to have a right to continue in service simply because it has worked for a long time for the reason that estoppel does not apply against statute and any appointment against the statute is void ab initio. Even, on the ground of sympathy, no such relief can be granted since a Court of law is primarily concerned with rule of law consistent with constitutional provision and mere sympathy, which is directly against the statute and constitutional provisions would be a case of misapplication of the understanding of principles of equity and justice. It would be difficult to hold that an action which would be contrary to statute has the effect of violating others' fundamental right of equal opportunity of employment, can be equitable and sympathetic though it is otherwise unconstitutional. A sympathy or equity which will result in upholding illegal and unconstitutional orders or acts can not be considered to be within the four corners of principles of administration of justice in equitable exercise of power under Article 226 of the Constitution. It would be a travesty of justice if we allow the concept of sympathy or equity to influence the mind of the Court even when the action is ex facie illegal and unconstitutional, violative of Article 16 (1) of the Constitution. Recently, the Apex Court has declined to grant any relief to a person merely because it has worked for long time though did not possess requisite qualification at the time of appointment in accordance with rules and the appointment is not in accordance with the procedure prescribed. In Shesh Mani Shukla Vs. District Inspector of Schools Deoria and others J.T. 2009 (10) SC 309, the court said:
"It is true that the appellant has worked for a long time. His appointment, however, being in contravention of the statutory provision was illegal, and, thus, void ab initio. If his appointment has not been granted approval by the statutory authority, no exception can be taken only because the appellant had worked for a long time. The same by itself, in our opinion, cannot form the basis for obtaining a writ of or in the nature of mandamus; as it is well known that for the said purpose, the writ petitioner must establish a legal right in himself and a corresponding legal duty in the State. {See Food Corporation of India & Ors. v. Ashis Kumar Ganguly & Ors. [2009 (8) SCALE 218]}. Sympathy or sentiments alone, it is well settled, cannot form the basis for issuing a writ of or in the nature of mandamus. {[See State of M.P. & Ors. v. Sanjay Kumar Pathak & Ors. [(2008) 1 SCC 456]}"
23. In State of West Bengal & others Vs. Banibrata Ghosh & others (2009) 3 SCC 250, such a request was declined to be accepted by the Apex Court observing that it would be a misplaced sympathy.
24. In D.M. Premkumari Vs. The Divisional Commissioner, Mysore Division and others 2009 (2) SCALE 731, the Court observed :
"The law is merciless", is a most frequently quoted saying. It has led people to mistakenly think that it is separated from feelings of righteousness. We have become used to the understanding that such emotions as indignation, sorrow and compassion should not exist in legal cases, especially not in judiciary. This, in our view, is a misunderstanding. Judiciary has a very strong sense of justice and it works to maintain social justice and fairness. We hasten to add, judiciary does not believe in misplaced sympathy."
25. Giving reasons for not extending the indulgence in favour of the persons, who have worked for sometimes though not validly appointed, in State of Bihar Vs. Upendra Narayan Singh & others JT 2009 (4) SC 577, the Court observed :
"...the Courts gradually realized that unwarranted sympathy shown to the progenies of spoil system has eaten into the vitals of service structure of the State and public bodies and this is the reason why relief of reinstatement and/or regularization of service has been denied to illegal appointees/backdoor entrants in large number of cases..."
26. In Om Prakash & others Vs. Radhacharan & others 2009 (6) SC 329, the Court observed:
"It is now a well settled principle of law that sentiment or sympathy alone would not be a guiding factor in determining the rights of the parties which are otherwise clear and unambiguous."
27. In Subha B. Nair & others Vs. State of Kerala & others 2008 (7) SCC 210, the Court said :
"This Court furthermore cannot issue a direction only on sentiment/sympathy."
28. In Jagdish Singh Vs. Punjab Engineering College & others JT 2009 (8) SC 501, the Court referred to the observations made earlier in Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and another 1994 (1) SCALE 63 with approval as under :
"The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
24. In the result the writ petition fails and is dismissed. Interim order dated 17.09.1993 shall stand vacated. There shall be no order as to costs.
Dated 23.02.2011 Akn.