Allahabad High Court
Khyali Ram vs State Of U.P. And 3 Others on 23 February, 2021
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 34 Case :- WRIT - A No. - 2666 of 2021 Petitioner :- Khyali Ram Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Brij Raj Singh,Upendra Kumar Pushkar Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and Sri Piyush Shukla, the learned Additional Chief Standing Counsel for the State respondents.
The candidature of the petitioner has been cancelled upon the respondents noticing his arraignment in Case Crime No. 154 of 2016. Upon noticing the involvement of the petitioner in that case, the respondent No. 4, has, by the impugned order, apprised the petitioner that he has been found unsuitable for being offered appointment. Learned counsel contended that although the petitioner had duly disclosed the pendency of that case and this was not a case of suppression of material facts, his candidature has been unjustifiably rejected. This submission is contested by learned Standing Counsel who submits that presently and in the absence of instructions it is not possible to ascertain whether the affidavit which is referred to was the first and only affidavit filed by the petitioner in the course of recruitment.
Notwithstanding the above, before the Court it is conceded that the question of suitability of a candidate to be appointed despite the pendency of a criminal case would have to be considered and decided by the respondents bearing in mind the principles enunciated in Avtar Singh Vs. Union of India, (2016) 8 SCC 471. Dealing with the considerations which must weigh for the purposes of evaluating the suitability of a candidate whose name stands recorded in a criminal case, both in situations where a disclosure may have been made or where the fact is either suppressed or not disclosed in the absence of knowledge, the Supreme Court in Avtar Singh held thus:
"38.We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:
38.1.Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2.While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3.The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4.In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:
38.4.1.In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.
38.5.In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6.In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion, may appoint the candidate subject to decision of such case.
38.7.In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8.If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.
38.10.For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11.Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
In light of the above, Sri Shukla, the learned Additional Chief Standing Counsel appearing for the fourth respondents submitted that the ends of justice would merit the fourth respondent being permitted to revisit the entire issue in light of what has been noted above as well as the principles enunciated in Avtar Singh.
Accordingly, the writ petition shall stand disposed of with a direction to the fourth respondent to duly evaluate the candidature of the petitioner and his suitability to be appointed in the Police Force in light of the principles as laid down in Avtar Singh. The aforesaid exercise of consideration shall be concluded with expedition and preferably within a period of two months from today. The order impugned in this writ petition shall abide by the fresh decision which the fourth respondent shall now take. All contentions of respective parties on merits are kept open.
Order Date :- 23.2.2021 Arun K. Singh (Yashwant Varma, J.)