Calcutta High Court (Appellete Side)
Akshay Gorai vs Union Of India & Ors on 8 July, 2024
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
08.07.2024
Sl. No. 05
Ct. No. 23
Srimanta
WPA/10203/2024
Akshay Gorai
-Vs.-
Union of India & Ors.
Mr. Abhinaba Dam,
Mr. Nitish Samanta
...for the petitioner.
Mr. Sahasrangshu Bhattacharjee,
Mr. Loknath Chatterjee
...for the Union of India.
The petitioner was implicated in a criminal case
initiated from a Police complaint made at
Gangajalghati Police Station on 10th July, 2019 being
Gangajalghati Police Station Case No. 70/2019 under
Sections 448/323/354/354B/379/503/34 of the Indian
Penal Code (in short, IPC). Subsequently, a charge-
sheet was filed being Charge-sheet No. 76/2019 dated
31st July, 2019. During the pendency of the criminal
case, petitioner participated in a selection process for
appointment of Constable (General Duty) in CAPF, AR,
NIA & SSF conducted by Staff Selection Commission
in 2022. Petitioner emerges successful and was
provisionally selected on 20th August, 2023 in Border
Security Force (in short, BSF) vide Memo Dated 28th
August, 2023 issued by the Inspector General, FTR
Headquarters, BSF (South Bengal). By a
departmental circular dated 27th July, 2020 it was
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clarified on behalf of BSF that a candidate will not be
considered for recruitment if such candidate is
involved in a criminal case or had been arrested in
connection therewith. On 6th December, 2023, a
Memo was issued by the Commandant
(Establishment), IG, BSF (South Bengal) FTR by which
the recruitment of the petitioner as a Constable
(General Duty) was considered and rejected as a
criminal case was pending against him.
The petitioner was acquitted from the criminal
case on 24th January, 2024, i.e., shortly from the
issuance of the letter cancelling his appointment.
Petitioner made a representation with the order of
acquittal passed by the Judicial Magistrate, 3rd Court
at Bankura. The petitioner's representation was
rejected by a Memo Dated 21st February, 2024
principally on the following grounds:-
(i) Whereas, on scrutiny of the Court order
dated 24.01.2024 passed by the Hon'ble
Judicial Magistrate, 3rd Court, Bankura there
is no remarks regarding that the criminal
case would not be a bar on appointment in
Government services found.
(ii) Keeping in view of the guidelines of MHA
(Police-II Division) letter ibid and as
3
approved by the Competent Authority, you
are not considered for appointment in BSF.
After hearing the petitioner and the learned
Advocate representing the Union of India few factual
aspect are required to be clarified before any order
can be made. It is correct that the criminal Court
while acquitting a person cannot certify that he is fit
to be given an appointment. At the same time, it is to
be ascertained whether the petitioner had disclosed
the pendency of the criminal case while participating
in the selection process as criminal case was pending
at that time and the petitioner was acquitted only on
24th January, 2024. If the petitioner did not mention
about the pendency of the criminal case as against
him in the application form, then there is a
suppression of fact. On the other hand, if the
provisional recommendation was made after knowing
about the criminal case being pending against the
petitioner then it may be construed that the selecting
agency, i.e., SSC in the instant case had ignored the
pendency of the criminal case despite specific
knowledge and recommended the petitioner for
appointment.
In the aforesaid facts and circumstances as I,
prima facie, find that the petitioner has been able to
raise a doubt with regard to the final cancellation
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dated 24th February, 2024 the matter should be
further scrutinized which is possible only after the
respondents are given an opportunity to disclose their
required facts and answer to the main grievance of the petitioner. In the aforesaid facts and circumstances, respondent no. 3 is directed to file a report in the form of an affidavit providing the following particulars:-
(i) whether the petitioner disclosed about the pendency of the criminal proceedings when he applied to participate in the concerned selection process;
(ii) Whether the provisional selection of the petitioner took place when the recruiting agency and the employer, i.e., SSC in the instant case and the Board constituted for considering the recommended names by SSC upon having specific knowledge about the pendency of the criminal case;
(iii) Whether there is at present any vacancy in BSF to give appointment to the petitioner if found otherwise fit.
The report should be filed within 24th July, 2024. 5 Let this matter appear in the Combined Monthly List of August, 2024.
The petitioner shall be free to take an exception to the report, if so advised, on or before the next date.
The authorities connected with the appointment procedure are directed to keep one post in Constable (General Duty) in BSF vacant until further orders from this Court if all vacancies to the post of Constable (General Duty) in BSF are not filled up as on date i.e. 8th July, 2024.
(Arindam Mukherjee, J.)