Allahabad High Court
Abhishek Kumar Yadav vs Union Of India And 3 Others on 5 May, 2022
Author: Manju Rani Chauhan
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 33 Case :- WRIT - A No. - 18833 of 2021 Petitioner :- Abhishek Kumar Yadav Respondent :- Union Of India And 3 Others Counsel for Petitioner :- Pankaj Kumar Gupta,Narendra Giri Counsel for Respondent :- A.S.G.I.,C.S.C.,Umesh Chandra Tripathi Hon'ble Mrs. Manju Rani Chauhan,J.
1. Heard Mr. Pankaj Kumar Gupta, learned counsel for the petitioner, Mr. Umesh Chandra Tripathi, learned counsel for respondent nos. 1, 2 & 3 and Mr. Ashim Mukherjee, learned Standing Counsel for the State-respondents.
2. The writ petition has been filed, challenging the impugned order dated 24.11.2021 passed by respondent no.3, AGM(Pers.), Canteen Stores Department (in short ''CSD'), Ministry of Defence, Government of India whereby the candidature of the petitioner for selection on the post of Lower Division Clerk (LCD) has been rejected on the ground of suppression of material fact of his involvement in criminal case which was registered against him on 16.04.2010 prior to the submission of application form to the Office of Staff Selection Commission.
3. The facts of the present matter are as follows:-
(I) The Staff Selection Commission, New Delhi issued an advertisement in the year 2017 for 'Combined Higher Secondary Level (10+2) Examination', inviting applications form for direct recruitment on the post of Lower Division Clerk (LCD) in various departments under the Government of India.
(II) The petitioner being qualified and eligible applied for the aforesaid post and after successfully completing written as well as type test, the petitioner was selected on the post of Lower Division Clerk (LCD) in Canteen Stores Department, Ministry of Defence, Government of India.
(III) The concerned department/respondent no.2 issued a letter to the petitioner, offering appointment as Lower Division Clerk in Canteen Stores Department along with attestation form for employment. The petitioner submitted the attestation form along with educational certificates.
(IV) On 03.03.2020, while filling this attestation form, the petitioner himself has disclosed the information regarding pendency of one criminal case against him. On 22.10.2020, the concerned department issued a letter to the petitioner for seeking clarification with regard to the criminal case pending against him and direct the petitioner to forward the copy of F.I.R. and latest Court proceedings/orders for completion of appointment formalities.
(V) In compliance of the aforesaid letter, the petitioner submitted his reply on 06.01.2021 stating therein that the F.I.R. was lodged against him due to family property dispute with his uncle namely, Shyam Lal Yadav, which was registered as Case Crime No. 250 of 2010, under Sections 323, 504, 506, 308 I.P.C. at Police Station Soraon, District Allahabad. It was also mentioned that during investigation the trial Court had released the petitioner on bail. He has also mentioned that the Investigating Officer has submitted a charge sheet against the petitioner under Sections 323, 504, 506 I.P.C. It was also submitted that trial Court after perusing the records, on 23.12.2020 declared the petitioner Juvenile and transfered the matter before Juvenile Justice Board.
(VI) On 26.04.2021, the General Manager, Canteen Stores Department, Ministry of Defence, Govt. of India issued a letter for cancellation of appointment of the petitioner on the post of Lower Division Clerk (LCD) on the ground that he had concealed the material facts with regard to the First Information Report lodged against him.
4. Learned counsel for the petitioner submits that petitioner was juvenile at the time of alleged incident i.e. on 16.4.2010, he was 17 years 9 months and 13 days old and he was declared juvenile by the concerned Additional Chief Judicial Magistrate.
5. Learned counsel for the petitioner further submits that the respondents have acted arbitrarily in non-suiting the claim of the petitioner, merely, on the basis of pendency of criminal case which is trivial in nature and it cannot be fastened any disqualification as per relevant provisions of Juvenile Justice Board (Care & Protection of Children) Act, 2000. He further submits that the petitioner was acquitted in the aforesaid case, therefore, he gave a representation dated 23.07.2021 before the authorities concerned i.e. respondent no.2 requesting him to consider his claim for appointment on the post of Lower Division Clerk (LCD) in the department but no decision has been taken, hence, the petitioner has approached this Court by means of filing Writ-A No.12811 of 2021 (Abhishek Kumar Yadav Vs. State of U.P. & others) and the Hon'ble Court vide order dated 24.09.2021 directed the respondent no.3 to re-examine the claim of the petitioner for appointment on the said post and decide the same by reasoned and speaking order.
6. In compliance of the order of this Court, the representation of the petitioner was rejected by the impugned order dated 24.11.2021 on the ground that while submitting the attestation form, the petitioner has suppressed the fact with respect to the pendency of criminal case against him.
7. Learned counsel for the petitioner further submits that the impugned order is illegal, arbitrary and bad in the eyes of law as the respondents while passing the aforesaid order did not consider the fact that the petitioner was a minor at the time when the criminal case was lodged against him and was declared so by the Juvenile Justice Board, hence, they ought to have considered the claim of the petitioner taking into consideration the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000.
8. He further submits that the petitioner at the time of lodging the said F.I.R. was a juvenile and a juvenile has been defined in Section 2(k) of the Act, 2000. The same is extracted below:-
"(k)" "juvenile" or "child" means a person who has not completed eighteen year of age."
9. He placed Section 19 of the Act, 2000, which reads as under:-
"19. Removal of disqualification attaching to conviction:- (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period prescribed under the rules, as the case may be."
10. As the petitioner was under the age of 18 years at the time of lodging of the F.I.R, he had to be treated as a juvenile in conflict with law. A "juvenile in conflict with law" has also been defined under Section 2 (1) of the Act, 2000. The same reads as under:-
"(1) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence;"
11. Learned counsel for the petitioner submits that Section 19 of the Act of 2000 has been incorporated in order to give a juvenile an opportunity to lead his life with no stigma and to wipe out the circumstances of his past. Thus provides that a juvenile shall not suffer any disqualification attaching to conviction of an offence under such Act. A "juvenile" on the date when the alleged offence has been committed is required to be dealt with under the Juvenile Justice (Care & Protection of Children) Act, 2000 which declares that all criminal cases against individuals who are described as "juvenile in conflict with law" be decided by the authorities constituted under the Act by the Juvenile Justice Board. If a conviction is recorded by the Juvenile Justice Board, Section 19 (1) of the Act of 2000 stipulates that juvenile shall not suffer any disqualification attached to the conviction of an offence under such law. Further Section 19 (2) of the Act of 2000 contemplates that the Board must pass an order directing all the relevant records of such conviction to be removed after expiry of the period of appeal or reasons as prescribed under the rules as the case may be.
12. In the present case, it would not be out of place to mention that the petitioner was a juvenile at the time when the F.I.R. was lodged and was acquitted by the concerned competent Court, hence, the impugned order is not justified as the same has been passed without consideration of the aforesaid provisions of the Act, 2000.
13. Learned counsel for the petitioner has also placed reliance upon Section 21 of the Act, 2000 which prohibits publication of the name of the "juvenile in conflict with law" with the object to protect a juvenile from adverse consequences on account of his conviction for an offence committed as a juvenile. The same reads as follows:-
"21. Prohibition of publication of name, etc., of juvenile involved in any proceeding under the Act.-
(1) No report in any newspaper, magazine, new-sheet or visual media of any inquiry regarding a juvenile in conflict with law under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published:
Provided that for reasons to be recorded in writing the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile.
(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine, which may extend to one thousand rupees."
14. Learned counsel for the petitioner submits that the sensitivity in matters relating to a juvenile or child or "juvenile in conflict with law" has been dealt with in Chapter II of the Juvenile Justice (Care & Protection of Children) Rules, 2007. Rule 3 therein gives in detail the fundamental principles to be followed in administration of the Rules.
15. The said Act is a beneficial legislation. The principles of such beneficial legislation are to be applied only for the purpose of interpretation of this statutes. The concealment of the pendency of criminal case against the petitioner was of no consequence. As per the requirement of law a conviction in an offence will not be treated as a disqualification for a juvenile. The records of the case pertaining to his involvement in a criminal matter are to be obliterated after a specified period of time. The intention of the legislature is clear and in so far as juveniles are concerned their criminal records is not to stand in their way in their lives. The cancellation of the candidature of the petitioner is thus bad in the eyes of law. Learned counsel for the petitioner further submits that the respondents failed to appreciate the fact that the petitioner was entitled to the benefits of the provisions of the Act of 2000.
16. In the present case, the petitioner had given the details of the case pending against him at the time of submission of his attestation form, therefore, there was no suppression of any fact by him.
17. Learned counsel for the petitioner submits that the charges which were levelled against the petitioner were trivial in nature and must be passed off and could not be viewed as a disqualification for entry in Government service. It is in that context the following observations as made by the Supreme Court in Avtar Singh are of relevance:-
"(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."
18. He raised his contention with respect to the provisions of Section 24, which is as follows:-
24. Removal of disqualification on the findings of an offence-
"(1) Notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law.
Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict with law by the Children's Court under clause (i) of sub-section (1) of section 19, the provisions of sub-section (1) shall not apply.
(2) The Board shall make an order directing the Police, or by the Children's Court to its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed.
Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children's Court."
It is evident there from, that even if a juvenile is convicted under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, the same is not liable to be viewed as a disqualification which may otherwise and ordinarily stand attached upon a person being convicted. Hence, the matter be remanded to the respondents for re-evaluation of the petitioners claim in light of the legal provision which is adverted to. He, therefore, submits that the impugned orders are unsustainable.
19. In support of his submission, learned counsel for the petitioner has placed reliance the several judgements of this Court. In case of Rajiv Kumar Vs. State of U.P. and another, reported in 2019 (4) ADJ 316, the holdings were summed up as follows:-
"157.....The insistence of the State employer on a disclosure of criminal prosecution faced as a child reflected an impersonal attitude and a rote response to child rights. This is not an environment which fosters a healthy development of children and where rights of children flourish.
158. The requirement posed by the respondents to the petitioner to make a declaration disclosing details of criminal prosecution faced by the latter, insofar as it included the criminal prosecution faced by the petitioner as a minor child of 10 years was in violation of the fundamental rights of the petitioner guaranteed by Article 14 and 21 of the Constitution of India and in the teeth of Section 25 of the Juvenile Justice Act, 1986.
159. The details of past prosecution faced by the petitioner as a child was not a valid criteria nor a lawful consideration to judge his suitability for appointment. Such criteria was arbitrary and illegal.
160. The declaration made by the petitioner was not a relevant consideration in the appointment of the petitioner. Hence, even the falsity of the declaration made by the petitioner could not invalidate his appointment.
161. The petitioner in defence of his fundamental rights vested by Article 14 and 21 of the Constitution of India, could hold his silence or decline to disclose details of the prosecution in a criminal trial faced by him as a minor child of 10 years. Such action or declaration of the petitioner cannot be faulted with.
The services of the petitioner cannot be terminated on the foot of such action or declaration."
(emphasis supplied)
20. He has placed another judgement of this Court passed in case of Kishan Paswan Vs. Union of India and others, reported in 2020 (11) ADJ 254, wherein relying on provisions of Section 24 of Juvenile Justice (Care and Protection of Children) Act, 2015 following has been held:-
"102. The wide consensus of such values helps us in determining the rights of a child. The endeavours of the courts and the legislatures alike is to protect the identity of the child offender, and to shield the child in conflict with law from suffering lasting and traumatic consequences of criminal prosecution. A child who has been prosecuted for criminal offence is entitled to a fresh chance in life. The child has to begin life as an adult on a clean state, as if no such criminal prosecution happened. This is possible when the fact of such criminal prosecution is purged from public discourse and is not a consideration for appointment to an office. The denial of public space and legitimacy to the fact of such criminal prosecution is the sheet anchor of the right to privacy and right to reputation of a child. An employer cannot elicit any information from any candidate or employee regarding the prosecution of the latter in a criminal case as a minor child for non heinous offences. An employer is precluded from seeking a declaration from a candidate or an employee regarding the prosecution of the latter in a criminal case as a child. (emphasis supplied)."
"112. The criteria of past criminal prosecution for forming an opinion about considering a criminal antecedents of a candidate is a valid one. This criteria which is valid for adults, would be flawed if applied to children. This would amount to treating unequals as equals. A logical sequitor is that fact of a past criminal prosecution of a child is not a relevant consideration for appointment to a public post or office and is violative of Article 14 of the Constitution of India. (emphasis supplied)"
21. He also placed reliance on another judgement of this Court in case of Shivam Maurya Vs. State of U.P. and others, reported in 2020 (5) ADJ 5. The Division Bench of this Court has taken a similar view in the aforesaid case, which is as follows:-
"14. The said Act is a beneficial legislation. The principles of such beneficial legislation are to be applied only for the purpose of interpretation of this statute. The concealment of the pendency of criminal case against the appellant-petitioner was of no consequence. As per the requirement of law a conviction in an offence will not be treated as a disqualification for a juvenile. The records of the case pertaining to his involvement in a criminal matter are to be obliterated after a specified period of time. The intention of the legislature is clear that in so far as juveniles are concerned their criminal records is not to stand in their way in their lives. The cancellation of the candidature of the appellant-petitioner was thus bad. The authority concerned failed to appreciate the fact that the appellant-petitioner was entitled to benefit of the provisions of Act of 2000. The cancellation of the candidature of the petitioner goes contrary to the object sought to be achieved by the Act of 2000. Section 19 of the Act of 2000 protects a juvenile and any stigma attached to his conviction is also removed. The Act of 2000 does not envisage incarceration of a juvenile which clearly shows that the intention and object was not to shut the doors of a disciplined and decent civilised life. It provides him an opportunity to mend his life for the future.
15. We thus hold that the authority concerned fell in complete error in not extending the benefit of Act of 2000 to the appellant-petitioner particularly when there are specific provisions provided therein to take care of a juvenile being implicated, tried and / or convicted in a criminal matter. We thus extend the benefit provided under Section 19 of the Act of 2000 to the appellant-petitioner."
22. In the case of Upendra Chauhan Vs. Union of India And 5 Others, reported in 2019 (3) ADJ 613, the Court has given the following conclusion:-
"It is evident that the respondents have taken contradictory and conflicting stands. While at one place, they admit that due disclosure was made in the attestation form, in the subsequent paragraphs they proceed to note that the suppression regarding the criminal cases was deliberate and with an intent to obtain entry in Government service and not due to any misconception. Not only are these findings incompatible, they evidence a complete non-application of mind. The findings with respect to suppression are not only belied from the recitals appearing in the impugned order itself but also from the attestation form in which the petitioner had admittedly made the requisite disclosure.
Additionally the Court notes the submission of learned counsel for the petitioner who contended that the charges which were levelled against the petitioner were trivial in nature and must be passed off and attributed to the exuberance and intemperance of youth and clearly could not be viewed as a disqualification for entry in Government service. It is in that context the following observations as made by the Supreme Court in Avtar Singh are of relevance:
"(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."
The contention lastly raised with respect to the provisions of Section 24 also merits due consideration. In the considered view of the Court and as is evident therefrom, even if a juvenile is convicted under the provisions of the 2015 Act the same is not liable to be viewed as a disqualification which may otherwise and ordinarily stand attached upon a person being convicted. This issue too merits the matter being remanded to the respondents for re-evaluation of the petitioners claim in light of the legal provision which is adverted to. On an overall conspectus of the aforesaid and in the considered view of this Court the impugned orders are rendered unsustainable."
23. After dealing with several relevant provisions related to juvenile and taking into consideration the judgements passed in several cases, the Court has laid down the law as has emerged after considering the settled position of law in the case of Anuj Kumar Vs. State of U.P. and Others, reported in 2021 0 Supreme (All) 404, which is as follows:-
"I. Juveniles and adults form separate classes. Criminal prosecution of an adult is a lawful basis for determination of suitability of a candidate for appointment to public office. However prosecution of juveniles is in a separate class. Using criminal prosecution faced by a candidate as a juvenile to form an opinion about his suitability for appointment, is arbitrary illegal and violative of Article 14 of the Constitution of India.
II. The requirement to disclose details of criminal prosecutions faced as a juvenile is violative of the right to privacy and the right to reputation of a child guaranteed under Article 21 of the Constitution of India. It also denudes the child of the protection assured by the Juvenile Justice Act, 2000 (as amended from time to time). Hence the employer cannot ask any candidate to disclose details of criminal prosecution faced as a juvenile.
III. The candidate can hold his silence or decline to give information about the criminal prosecution faced as a juvenile. Denial of such information by the candidate will not amount to a false declaration or a willful suppression of facts.
IV. The conviction by a Juvenile Justice Board under the Juvenile Justice Act, 2000 of a juvenile is not a disqualification for employment. As a sequitor prosecution faced as a juvenile is not a relevant fact for forming an opinion about the criminal antecedents and suitability of the candidate for appointment. Such prosecution cannot be made a basis for denial of appointment. Non disclosure of irrelevant facts is not "deliberate" or willful concealment of material facts. Hence non-disclosure of such criminal cases cannot invalidate the appointment of the said person.
V. Clarification:
These holdings shall not apply to cases beyond the ambit of Juvenile Justice Act, 2000 (as amended from time to time) and also in cases of heinous crimes committed by persons in the age group of 16 to 18 years."
24. Learned counsel for the petitioner has lastly relying upon the judgement of Hon'ble Apex Court in case of Union of India And Others Vs. Ramesh Bishnoi, reported in (2019) 19 Supreme Court Cases 710, reads as follows:-
"It is clear that at the time when the charges were framed against the respondent, on 30.06.2009, the respondent was well under the age of 18 years as his date of birth is 05.09.1991. Firstly, it was not disputed that the charges were never proved against the respondent as the girl and her parents did not depose against the respondent, resulting in his acquittal on 24.11.2011. Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as The Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person, without any stigma. Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 lays down guidelines for the Central Government, State Governments, the Board and other agencies while implementing the provisions of the said Act. In clause (xiv) of Section 3, it is clearly provided as follows:
"3. (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances."
In the present case, it is an admitted fact that the respondent was a minor when the charges had been framed against him of offences under Sections 354, 447 and 509 of IPC. It is also not disputed that he was acquitted of the charges. However, even if he had been convicted, the same could not have been held against him for getting a job, as admittedly he was a minor when the alleged offences were committed and the charges had been framed against him."
25. Thus, even if a juvenile is convicted, same should be obliterated, so that there is no stigma with regard to any crime committed by such a person as a juvenile, as the object of Juvenile Justice Act is to reintegrate juvenile back in society as a normal person.
26. Learned Standing Counsel on the other hand submits that the petitioner at the time of submitting attestation form on 02.03.2020 had revealed the information that a criminal case was pending against him but the aforesaid facts who had been concealed by him at the time of submitting of declaration form during document verification at the office of Staff Selection Commission (SCC) on 17.09.2019. The declaration given by the petitioner is as follows:-
"I also declare that I do not stand debarred by SSC/UPSC as on date and never been convicted by any court of law, I also declare that no charge sheet is pending against me in any court of law. Further declare that I have never been dismissed or removed from Govt. Service or my service been terminated during probation."
27. He further submits that the conduct of the petitioner in suppressing the fact of his being embroiled in a criminal case, impinges on his integrity whereas in a sensitive department like the Canteen Stores Department, the respondents required a person of the highest integrity and, therefore, even applying law laid down by Hon'ble Apex Court in case of Avtar Singh, the decision of the respondents taken on due application of mind cancelling the appointment of the petitioner on the ground of suppression does not want any interference at the hands of this Hon'ble Court, therefore, the petition is liable to be dismissed.
28. In the facts of the present case, it is admitted position that the petitioner was juvenile as declared by the Board at the time when the F.I.R. was lodged against him, therefore, his case was to be dealt, taking into consideration the provisions of Juvenile Justice (Care & Protection of Children) Act, 2000. Even if it is presume that the petitioner had not disclosed about the pendency of the criminal case, the requirement of disclosed details of criminal prosecution faced as a juvenile is violative of right to privacy and right to reputation of child, guaranteed under Article 226 of the Constitution of India. It also denudes the child of protection sought by the Juvenile Justice Act, 2000, hence, it was not expected from the petitioner to disclose details of criminal prosecution faced as a juvenile.
29. Admittedly, the petitioner has been acquitted in the present case and the case so lodged against him was trivial in nature and should not be viewed as disqualification for entry in Government service.
30. In view of the above discussion, the impugned order is arbitrary, illegal and unsustainable in the eyes of law.
31. The writ petition stands allowed. The impugned order dated 24.11.2021 passed by respondent no.3 is set aside and the mandamus is issued to the respondents to issue appointment letter to the petitioner, in accordance with law as well as in the light of observations made hereinabove.
Order Date :- 5.5.2022 Rahul.