Rajasthan High Court - Jaipur
Rajpal Yadav vs U O I (R P F ) And Ors on 13 January, 2017
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B.Civil Writ Petition No. 16862 / 2012
Rajpal Yadav age about 28 years, s/o Shri Babu Lal, Resident of
Village & Post Maharajawas, Baharod, District Alwar, Rajasthan.
----Petitioner
Versus
1. The Union of India through ADG, Railway Police Force,
Northern Railway Head Quarter, Baroda House, New Delhi.
2. Divisional Security Commissioner/RPF, Northern Railway
Ambala Cantt.
3. Divisional Officer, Indian Railways, Northern Railway Head
Quarter, New Delhi.
4. Superintendent of Police, District Alwar, Rajasthan.
5. Additional Director General, Railway Police Force, Northern
Railway Head Quarters, Baroda House, New Delhi.
----Respondents
__________________________________________________ Counsel For Petitioner(s) : Mr. Kawal Singh Loha Counsel For Respondent(s) : Mr. P.C. Sharma & : Mr. Deen Dayal sharma __________________________________________________ HON'BLE MR. JUSTICE JAINENDRA KUMAR RANKA Judgment Reserved on : 08/12/2016 Judgment pronounced on : 13/01/2017
1. By way of writ petition, the petitioner has assailed the order dt.14.09.2010 and 25.07.2012 whereby candidature/consideration of the petitioner for the post of Constable in the Railway Police Force has been rejected on the ground of alleged suppression of facts.
(2 of 13) [CW-16862/2012]
2. The petitioner belongs to Other Backward Class (OBC) category and had applied for the post of Constable in RPF/Indian Railway falling under Northern Railway. The petitioner received a letter dt.29.04.2010 indicating therein that he has been selected and original documents are required to be submitted on 10.05.2010. However, the Superintendent of Police, Alwar informed the respondent vide letter dt.23.06.2010 certifying the character certificate of the petitioner and stated that the petitioner is resident of Maharajabass Police Station Behrod, District Alwar (Raj.) and a case No.151/98 u/Sec. 3/6 of the Examination Act was registered against him in which charge sheet No.150 dt.24.07.2002 was issued by the Court of ACJM, Behror and finally he was convicted for the said offence and taking into consideration the aforesaid, the candidature of the petitioner was rejected and the petitioner moved a detailed representation dt.11.10.2010 stating therein that without affording opportunity of hearing & without proper notice his candidature has been rejected and therefore the action rejecting his candidature is in utter violation of principles of natural justice. It was further averred by the petitioner in his representation that in the said case, he was granted probation instead of awarding sentence and that in no way it affects the service conditions and accordingly requested for considering his candidature. However, the respondent did not accept his request. In the meanwhile, he also filed a writ petition which was lateron dismissed as having been withdrawn on 02.02.2012 and again a further representation was submitted and that too was rejected by the authority on 25.07.2012 and by way (3 of 13) [CW-16862/2012] of present writ petition the petitioner has challenged both the impugned orders dt. 14.09.2010 & 25.07.2012 (Annex-3 & 4).
3. Counsel for the petitioner has contended that the examination was conducted and the petitioner was not even aware of the case having been registered against him and that too when he was of a tender age of 16 years and he was wrongly caught in the examination and a wrong case of cheating in the 10 th examination was made against him and contended that even otherwise it is a very petty/trivial offence. Counsel also contended that the Court was satisfied and therefore despite sentencing him granted benefit of Section 12 of Probation of Offenders Act in SB Criminal Misc. Petition No.3660/2011 and it was also observed by the Court that the Criminal Case No.204/2004 arising out of FIR No.151/1998 will not come in the way of the petitioner for getting any public/ private employment. Counsel also contended that according to his knowledge as no case was pending against him, therefore, he had unknowingly written in para 11(1) about prosecution or otherwise, the same was submitted in the year 2010 and contended that the offence even otherwise is minor/trivial in nature and by the act of the respondent his life has been spoiled and for a minor incident which may unknowingly been done in the year 1998, he may not be held liable for such a petty thing debarring him particularly when he was found suitable and fit & also qualified for the post of Constable. Counsel for the petitioner relied upon the judgment of the Apex Court in the case of Ram Kumar Vs. State of U.P. & Ors AIR 2011 SCC 2903, (4 of 13) [CW-16862/2012] Avtar Singh Vs. Union of India & Ors. 2016 (8) SCC 471, Joginder Singh Vs. Union Territory of Chandigarh & Ors. 2015 AIR SCW 483 and the judgment of this Court in the case of Prem Cables Pvt Ltd Vs. Assistant Collector (Principal Appraiser) Customs Bombay and Anr. 1978 WLN 481, Kamal Singh Meena Vs. Union of India & Ors. decided on 29.03.2016, Commissioner of Police, Delhi and Anr. Vs. Dhaval Singh decided on 01.05.1998, The State of Rajasthan Vs. Ashok Kumar Swami 2015 (2) WLC (Raj.) 556, Suryabhan Singh Solanki Vs. State of Rajasthan & Ors 2012 (3) WLC (Raj.) 455 & Rai Sahab Vs. State of Rajasthan & Anr. 2013 (3) WLC (Raj.) 485.
4. Per-contra, ld. counsel for the respondent raised a preliminary objection regarding jurisdiction and vehemently contended that no cause of action has arisen at least within the jurisdiction of Jaipur Bench of this Court particularly when the petitioner submitted form in New Delhi and the headquarter is at New Delhi and even none of the respondent was made party in the writ petition which is having any office in Jaipur or in the State of Rajasthan and thus, the writ petition was required to be rejected as the Jaipur Bench of this Court has no territorial jurisdiction. Counsel also contended that the petitioner applied for a post which is highly dedicated, responsible and devoted services for the country and such a person who even at age of 16 years was caught in cheating in 10th class cannot be said that he was fit for the post for which he has applied. Counsel further contended that (5 of 13) [CW-16862/2012] the petitioner was convicted by the competent Court and may be a fine of Rs.200/- was imposed upon him but that does not mean that it is a minor or trivial offence and an offence always remains an offence whether under any statutory act or the Examination Act. Counsel also contended that even at the age of 16 years, if he could do like this, there is every possibility of the petitioner being involved in future in various other illegal activities. Counsel contended that a bare perusal of the form itself proves that he had left relevant columns blank or he had denied in the form which he himself furnished about "arrest, prosecution, detention bound down convicted by the Court of law" and when he has himself written "no" against all the columns, on account of filling wrong information he could not have been selected finally. Counsel further contended that there was an attestation from in which there was 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 the Government and knowing fully well that he is supplying/filling wrong information particularly when he was convicted for an offence, in that situation the respondent had rightly denied to consider his candidature. Counsel also contended that initially form was submitted in the year 2007 and he himself gave a declaration that in case, he gives any information which is contrary to the facts, he may not be considered at all and when he himself had given such a statement in writing, to assail later is of no avail. Counsel also contended that even if benefit of probation has been granted u/Sec.12 of the (6 of 13) [CW-16862/2012] Act, the case of the petitioner cannot be considered. Counsel relied upon the judgment of the Apex Court in the case of Avtar Singh Vs. Union of India & Ors. 2016 (8) SCC 471, Union of India and Ors. Vs. Bakshi Ram 1990 (2) SCC 426, Delhi Administration Through its Chief Secretary & Ors. Vs. Sushil Kumar decided on 04.10.1996, Devendra Kumar Vs. State of Uttaranchal & Ors decided on 29.07.2013, Jainendra Singh Vs. State of Uttar Pradesh thourgh Principal Secretary, Home and Others (2012) 8 SCC 748, T. Vijayan & Ors. Vs. Divisional Railway Manager & Ors. 2000 (4) SLR 663 & Kendriya Vidyalaya Sangathan, Ors. Vs. Ram Ratan Yadav 2003 (3) SCC 437 & Union of India & Ors. Vs. Sukhen Chandra Das decided on 15.10.2008 and the judgment of this Court in the case of Sunil Kumar Vs. UOI & Ors. 2012 (3) WLC (Raj.) 296, Vijay Vyas Vs. Abhishek Goyal & Others 2012 (3) WLC (Raj.) 303, Shyam Sunder Goswami Vs. The State of Rajasthan & Ors. 2008 (6) WLC 776, Smt. Ghisi Devi Vs. State of Rajasthan & Ors. 2008 (6) WLC 778, Mahi Ram Vs. State of Rajasthan & Ors. 2007 (4) WLC 316, Ritesh Kumar Vs. Smt. Chandrakanta 2007 (4) WLC 320, Dharam Pal Singh & Ors. Vs. The State of Rajasthan and Others 2000 (4) SLR 612, Gulab Chand Meena Vs. State of Rajasthan & Ors. 2006 (1) Cr.L.R. (Raj.) 691.
5. In rebuttal, counsel for the petitioner insofar as territorial jurisdiction is concerned, has stated that both the orders were served on 14.09.2010 & 25.07.2012 at his residence which falls in (7 of 13) [CW-16862/2012] the Alwar District of State of Rajasthan, therefore, he has jurisdiction to file the petition before this Bench and relied upon judgment of this Court in the case of Prem Cables Pvt Ltd (supra) in this regard.
6. I have considered the arguments advanced by the counsel for the parties and have perused the material available on record and these facts are not disputed that the petitioner applied for the post of Constable and had duly furnished a form wherein he had stated "No" against various columns which are material for a candidate to fill the true and correct information.
7. The petitioner had applied for a service which can be said to be dedicated, responsible or devoted service of Railway Protection Special Force and a person to have integrity and may not be having any thing against him or adverse to him.
8. A bare perusal of the application form as well as attesting form clearly proves that the petitioner stated "No" against all the columns about arrest/prosecution under detention/fine by Court of law/convicted by Court of law but in my view, an offence like conviction u/sec. 3/6 of the Examination Act may not be of such a magnitude that the petitioner could be denied service or debarred. Admittedly, it is a case where this Court while passing order in SB Criminal Misc. Petition No.3660/2011 had also extended benefit of Section 12 of the Probation of Offenders Act and it would be appropriate to quote the same which reads as under:-
(8 of 13) [CW-16862/2012] "Accordingly, I hereby extend benefit of Section 12 of the Probation of Offenders Act to the petitioner in relation to Criminal Case No.204/04 arising out of FIR No.151/98 and this case will not come in way of the petitioner for getting any government or any private job."
9. Thus, the above, observation of this Court, proves that the petitioner could not have been denied consideration for the post for which he has applied merely because of the said conviction and even otherwise, in my view, the offence is of a minor or trivial in nature.
10. Both the counsels have relied upon the judgment of the Apex Court in the case of Avtar Singh Vs. Union of India & Ors. (supra) which is the latest authority on the point of time and which has considered almost all the cases which had come up before the Apex Court over the years and has analyzed the various judgments and laid down certain principles to be looked into in such cases and it would be appropriate to quote para Nos.29 & 30 of the same which reads as under:-
"29. The 'McCarthyism' is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in to nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
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.
(9 of 13) [CW-16862/2012] (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, 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.
(10 of 13) [CW-16862/2012] (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.
11. Taking into consideration the principles laid down by the Apex Court in the case of Avtar Singh Vs. Union of India & Ors. (supra) which has by and large considered the various judgments of the Apex Court. In my view, the case of the petitioner does not involve a major offence or an offence of moral turpitude or otherwise, and a case which was instituted against the petitioner rightly or wrongly when he was aged about 16 years for an examination of class 10th and the very nature of the offence in my view, can be said to be minor or trivial in nature.
12. In my view, the case of the petitioner can certainly be covered in para 30 (4)(a-b) which envisages a situation like this that if it a case of minor or trivial in nature and even if conviction (11 of 13) [CW-16862/2012] has been recorded, a case of such a person can be considered and the authorities can term the same as suppression of fact or false information by condoning the lapse and where conviction has been recorded which is not trivial in nature and in my view, since it is an offence of minor or trivial in nature the petitioner cannot be denied such benefits. Though he stated in application form denying all the facts.
13. This Court in the case of Kamal Singh Meena Vs. Union of India & Ors. (supra) had also an occasion to consider a case of a person who had been appointed in the Railway Protection Special Force (RPSF) wherein it came to the notice of the respondent that a case was instituted u/Sec.143, 223, 224 & 343 IPC and this fact was suppressed by the petitioner in the attestation form submitted by the petitioner. Though, was acquitted in the said trial based on the compromise the complainant's witness turned hostile. This Court observed as under:-
" The above conclusion is buttressed by the fact that the petitioner had nothing to gain from suppressing the factum of his having been prosecuted in a criminal case in which he had been acquitted. The disclosure of the factum of involvement in a criminal case in which the petitioner was acquitted could not even by any stretch of imagination have entailed his being found unsuitable for government service in view of reasons analogous to Section 12 of the Act of 1958. If a conviction for all offence not grave in nature and following probation cannot entail a disability in law, how can acquittal entail one ? I am of the view that a suppression of fact can S.B. CIVIL WRIT PETITION NO.10108/2015 (Kamal Singh Meena Vs. Union of India & Ors.) (16) entail finding of unsuitability of a candidate in government service on that count only in the event the suppression was beneficial. This leads to the conclusion that an irrelevant misstatement of fact as in the instant case, cannot result in the declaration of an applicant as unsuitable for government service. The upshot of the (12 of 13) [CW-16862/2012] aforesaid discussion is that the impugned order of discharge dated 19.06.2015 has been passed without any application of mind and is founded upon an incorrect report of the District Magistrate, Alwar based on the report of the Superintendent of Police, Alwar that the petitioner was facing a criminal trial when in fact the petitioner had been acquitted in the said trial based on a compromise / the complainant and his witnesses turning hostile as reflected in the judgment dated 06.04.2010. I am of the considered view that the Additional Chief Security Commissioner, North EASt Frontier Railway, Maligaon, has erred in exercise of his discretion in holding a trivial incorrect statement necessarily entailing the petitioner's discharge. The conclusion of this Court is also founded upon reason analogous to Section 12 of the Probation of Offenders Act 1958 (hereinafter "the Act of 1958") whereunder even a conviction for a less offence with sentence of less than 7 years of imprisonment cannot be a disqualification when the accused is allowed the benefit of probationer the Act of 1958. The intent of law quite clearly is S.B. CIVIL WRIT PETITION NO.10108/2015 (Kamal Singh Meena Vs. Union of India & Ors.) (17) not condemning even of an accused convicted for less grave offences and it would be a travesty of Justice and wholly unjust to apply such condemnation to an accused acquitted in a criminal trial based on compromise / the complainant and his witnesses turning hostile evidencing falsity of the case or in any event putting into serious question the foundation of the criminal trial of an accused in the first place. I would therefore in the circumstances quash and set aside the impugned order dated 19.06.2015. The petitioner shall be entitled to rejoin the training with the ongoing batch or the immediately following batch, as the case may be, relating to recruitment of Constables by the Railway RPSF. "
14. Taking into consideration the aforesaid judgments, the case of the petitioner deserves consideration and if found overall fit and suitable may be considered for appointment.
15. The jurisdiction appears to be with this Court as the petitioner is based in the State of Rajasthan, applied for the post being based in Alwar District and had received the communication of rejection in Alwar at his home town which falls in the (13 of 13) [CW-16862/2012] jurisdiction of this Court.
16. With these observations/directions, the present petition succeeds and the same is hereby allowed. The impugned orders dt.14.9.2010 & 25.7.2012 are hereby quashed and set aside. The respondents are directed to consider candidature of the petitioner for the post of Constable in Railway Police Special Force within a period of 2 months, if he is otherwise found fit and suitable and finds place in the order of merit.
(JAINENDRA KUMAR RANKA)J. S.Kumawat Jr. P.A.