Allahabad High Court
Harendra Panwar vs State Of U.P. And Others on 16 February, 2012
Author: Sunil Hali
Bench: Sunil Hali
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 18 Case :- WRIT - A No. - 51274 of 2007 Petitioner :- Harendra Panwar Respondent :- State Of U.P. And Others Petitioner Counsel :- Vijay Gautam Respondent Counsel :- C.S.C. Hon'ble Sunil Hali,J.
In nut shell the case of the petitioner is that for making appointment of Constable an advertisement was issued calling application from the eligible candidates. In pursuance to the advertisement petitioner applied for the said post and after due completion of selection process petitioner was selected from District Etawah and was appointed as a Constable in the Police Department on 26.11.2005. After completion of the post recruitment training the petitioner was posted as Constable in District Etawah on 28.6.2006. Selection of the petitioner has been cancelled by the respondent vide order dated 18.8.2007 passed by respondentno. 2. Reasons for cancellation of the appointment are that the petitioner did not disclose that a criminal Case bearing Case Crime No. 32 of 2005, under Sections 147, 148, 149, 307, 504, 506 IPC at P.S. Kandhala, District Muzaffar Nagar was registered against him. This order is subject matter of challenge before this Court.
Contention of learned counsel for the petitioner is that registration of an F.I.R. against the petitioner was not to his knowledge and he acquired the knowledge only after he had submitted his form/affidavit to the respondents. Other contention raised is that in terms of the instructions issued by the respondents vide G.O. No. 4694 dated 28.4.1958 instructions have been issued for the purposes of verification of character and antecedents of the Government Servants before their first appointment. These instructions do not envisage that petitioner is required to disclose any information regarding his character and antecedents. It enjoins upon the authority to verify the Character and antecedents of the petitioner. It is further submitted that the Character Verification of the petitioner was verified by the concerned police station before appointment and in the said report it has been mentioned that the petitioner has already been acquitted in the aforesaid criminal case vide judgement and order dated 15.9.2005 and it was the respondents who after being satisfied appointed the petitioner on 26.11.2005. It is further submitted that the impugned order of dismissal has been passed without issuing any show cause notice or without conducting any disciplinary proceedings after affording an opportunity of hearing to the petitioner and hence the same is patently illegal, arbitrary and is liable to be quashed.
Last ground taken by the petitioner is that in column 11 of the form required to be filled in by the petitioner whereby he is required to indicate as to whether he has been convicted by any competent Court. There is no requirement of furnishing the details or information regarding registration of the criminal case against the applicant. Impugned order proceeds on the assumption that the petitioner is required to disclose this information which is not factually correct. Consequently, when the authorities came to know about his involvement in a criminal case, the appointment of the petitioner on the post of Constable was cancelled for suppressing the information.
On the other hand stand of the respondents is that it is incumbent upon the petitioner to disclose the information regarding pendency of criminal case against him so as to enable the authorities to examine the antecedents and character of the applicant. Admittedly, petitioner has not disclosed these facts as such has obtained the appointment order by concealing the same. Consequence of such concealment would result in the cancellation of his appointment as provided by the instructions and form required to be filled up by the applicant. It is in the light of this the appointment of the petitioner has been cancelled.
Heard learned counsel for the petitioner, learned Standing Counsel and perused the material on record.
As a pre-requisite for being appointed as a Govt. servant the antecedents and character of the applicant is required to be verified by the appointing authority. The mode and manner in which such verification is required to be done is contained in the said G.O. dated 28.4.1958. Various steps are required to be taken by the concerned authority in ascertaining and verifying the character and antecedents of the applicant. Every direct recruit to any service will be required to produce a certificate of conduct and character from the head of the Institution where he last studied; (b) certificates of character from the two persons and in case of doubt appointing authority may either ask further references or may refer the case to the District Magistrate concerned may then make such further enquiry as he considers necessary.
Clause 4 of the said G.O. states that in cases of direct recruits to the service other than those mentioned in paragraph nos. 3(c) and (d) verification shall not be necessary as a matter of routine except in cases of doubt when the procedure mentioned in paragraph no. 3(b) shall be followed.
Clause 8 of the G.O. provides that every person recruited to the service would be required at the time of joining his appointment to fill up the form appended as annexure no. 3 to the |G.O. If he is found to have made a false statement in this connection, he would be discharged forthwith without prejudice to any other action that may be considered necessary.
Character of the candidate for direct recruitment must be such as to render him suitable in all respect for employment in service or post to which he is sought to be appointed. It would be the duty of the appointing authority to satisfy itself on this question. What has been contemplated by the G.O. dated 28.4.1958 is that character and antecedents of the appointee shall have to be verified by having an overview of his personality in respect of his moral character and integrity. This is to enable the appointing authority to draw its satisfaction as to whether a person is fit to be appointed to the said post. In case it is found on verification that the Character and antecedents of the petitioner is not good, satisfaction to that extent has to be recorded by the appointing authority as contemplated by the Government Order.
The question that falls for consideration in this case is as to whether the petitioner by withholding the information regarding the registration of a criminal case can be deprived of the said appointment.
In order to examine this question, it would be seen as to what information was required to be furnished by the petitioner under the G.O. dated 28.4.1958 which is said to have been concealed by him resulting in cancellation of his appointment. It is stated that the petitioner did not disclose that a case has been registered against him while filling up his form/affidavit before the appointing authority. In order to appreciate this aspect reference has to be made to the Government Order as well as the form/ affidavit which is required to be filled up by the petitioner requiring him to disclose such information. While examining the G.O. there is no such obligation caste on the appointee to disclose any such information. However, the petitioner is required to disclose in Column 11 of the form appended as Annexure No. 3 to the writ petition the information that whether the petitioner has been convicted in any case or not. There is no other information required to be disclosed by the petitioner. Nothing has been brought on record by the other side that the petitioner was required to disclose that there was a case registered against him. As already stated herein above only information which was required to be disclosed by the petitioner was as to whether he was convicted in any criminal case or not.
Admittedly, petitioner has not been convicted in any case. Question of withholding of the information which is not required to be given by the petitioner cannot become a ground for cancellation of his appointment. What has been stated in the impugned order is that on verification of his character and antecedents it has come to the knowledge of the respondents as reported by Superintendent of Police, Muzaffar Nagar that a an FIR bearing Case Crime No. 32 of 2005 has been registered against the petitioner in which charge sheet under sections 147, 149, 504, 506 IPC has been submitted before the competent court but the applicant did not disclose this information to the respondents while filling his affidavit/verification certificate.
It is trite in law that mere involvement in a criminal case is not an impediment for appointment to the post of Constable. Moreover, after a person has been already acquitted from the criminal charges, stigma attached to a person is obliterated and, as such, the applicant cannot be denied the appointment. Moreover, a conviction results in ineligibility for appointment in Government service, but since the applicant has already been acquitted of the criminal charges, he is eligible for appointment. It is only in case a person is convicted in such a criminal case he becomes dis-entitled to such appointment. It is in this context column 11 requires this declaration to be made by the applicant. Mere registration of a case in itself would not be a ground for cancellation of appointment. Even if this fact has not been disclosed by the petitioner if required to be done even then appointment cannot be cancelled. What is important is that while recording its satisfaction, appointing authority may on verification of the conduct, antecedents and character come to a conclusion that the overall profile of the petitioner is not conducive for his appointment on the post appointment can be declined. This will depend upon many factors including the reputation of the person, his behaviour in the public, his integrity and morality etc. This assessment is required to be made by the appointing authority before certifying the antecedents and character of the person. It will be important to mention here that the notes attached to Column 3 of the G.O. dated 28.4.1958 itself provides that a conviction need not of itself involve the refusal of a certificate of good character. Stands of conviction should be taken into consideration if it involves no moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means a Government. The G.O. itself contemplates that every conviction would not necessarily result in refusal of certificate of character issued in favour of the petitioner.
Reliance has been placed by the learned counsel for the petitioner on catena of judgments. In Ram Kumar Vs. State of UP decided in Civil Appeal No. 7106 of 2011 on 9.8.2011 wherein the Hon'ble Apex Court observed as under:
" ?.........but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment."
In Special Appeal No. 1515 of 2007 in re Sanjesh Yadav Vs State of UP and others decided on 18.1.2012, Division Bench of this Court relying upon the judgment rendered in Ram Kumar Vs. State of UP decided in Civil Appeal No. 7106 of 2011 on 9.8.2011 has observed as under:
"...The criminal case no. 243 of 1995 had been decided on 19.10.2004 resulting into acquittal of the appellant. No appeal had been preferred by the State against the order of acquittal of the appellant. Therefore, it can not be said that the appellant had concealed any information or his character and antecedents were not such that he could not be given appointment in a disciplinary force.
9. In the present case also misstatement of fact has been made in the affidavit by the appellant, but at no point of time, it was considered as to whether the incumbent was suitable for appointment to the service, wherein he was appointed or not. Following the dictum of Apex Court in the aforesaid case, the appeal deserves to be allowed."
From the aforesaid discussion, it clearly appears that in the impugned order no satisfaction has been recorded by the appointing authority that the petitioner is not suitable to be appointed with reference to nature of suppression and nature of criminal case. Merely because the information with respect to the registration of the case has been withheld would not dis-entitle the petitioner to be appointed as no satisfaction has been recorded by the appointing authority that the nature of allegations so levelled against the petitioner are of such nature which would dis-entitle him to be appointed on the said post. Mere concealment of this information in itself would not tantamount to cancellation of his appointment as the necessity of supplying this information is not contemplated either by the instructions issued in terms of the G.O. dated 28.4.1958 or by the form required to be filled up by the petitioner.
Considering the facts and circumstances of the case, the writ petition deserves to be allowed and is hereby allowed. The order impugned dated 18.8.2007 passed by respondent no. 6 is hereby quashed. Respondents are directed to take back the petitioner in service within a period of one month from the date of production of certified copy of this order. However, it is further held that the petitioner is entitled to all consequential benefits except back wages for the period he remained out of service.
Order Date :- 16.2.2012 RKS/