Central Administrative Tribunal - Allahabad
M K Agarahari vs Union Of India on 25 October, 2024
OA No. 330/221 of 2011
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
Pronounced on 25th day of October, 2024
Original Application No. 330/221 of 2011
Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial)
Hon'ble Mr. Anjani Nandan Sharan, Member (Administrative)
Manoj Kumar Agrahari, S/o Shri Vishwa Nath Agrahari, R/o Village
Sidhawari, P.O. Anand Nagar, District Maharajganj
....Applicant
By Advocate: Ms. Saumya Mandhyan
VERSUS
1. Union of India through General Manager, North Central Railway,
Allahabad
2. Mukhya Suraksha Ayukt/Railway Protection Force, North Central
Railway
...... Respondents
By Advocate: Shri Krishna Kumar Ojha
ORDER
By Hon'ble Mr. Justice Rajiv Joshi, Member (Judicial):
Heard Ms. Saumya Mandhyan, learned counsel for the applicant and Shri Krishna Kumar Ojha, learned counsel for the respondents at the time of hearing.
2. The instant Original Application under Section 19 of the Central Administrative Tribunal Act, 1985 has been filed for the following reliefs:
I. " for quashing of order dated 27.08.2009 passed by the respondent-2.
II. For a direction upon the respondents not to give effect of the order dated 27.08.2009 passed by the respondent-2.
III. To issue such other and further order or direction, which this Hon'ble Tribunal may deem fit and proper in the nature and circumstances of the present case. IV. To award cost of the petition in favour of the applicant."
3. The brief facts as apparent from the record of Original Application are that as under :-
a) An advertisement being Advertisement No.01/2006 was floated by the Railway Protection Force, North Central Page 1 of 8 OA No. 330/221 of 2011 Railway, Allahabad (hereafter referred as RPF, Allahabad) for appointment to the posts of Watermen, Farrash, Nai, Dhobi, Mali, Darji, Mochi etc.
b) Pursuant to the same, the applicant being eligible applied for the post of Water Carrier.
c) Thereafter, an admit card was issued in favour of the applicant and he appeared in the selection process and was successfully physical test.
d) Subsequently, result was published in the daily newspaper and the Roll number of the applicant was found in the list of selected candidates.
e) Since the applicant was declared successful, his original documents were inspected by the Board on 17.06.2006 and an attestation form was sent to his residential address to be filled up by the applicant and to be submitted along with his joining.
f) On 29.07.2006, the applicant filled up his attestation form and also reported on 09.08.2006 before Headquarter, Allahabad.
On the very same day, the applicant was sent for medical test by the Headquarter, Allahabad, wherein he was found medically /physically fit for appointment to the said post.
g) All the formalities were completed and the applicant was also found fit to be appointment, but the appointment letter was not issued in his favour. Hence, the applicant represented before the respondents regarding final result and offer of appointment, but no heed was paid.
h) Aggrieved by the same, the applicant had earlier approached this Tribunal by filing Original Application No.555/2009, which was disposed of vide order dated 27.05.2009 with a direction upon the respondent-2 to consider the case of the applicant and pass a reasoned and speaking order, within a period of two months.
i) Subsequently, a letter was served upon the applicant on 04.08.2009 with a direction to appear before respondent-2 on Page 2 of 8 OA No. 330/221 of 2011 17.08.2009. In compliance of the same, the applicant appeared on 17.08.2009 before the respondent-2.
j) Thereafter, the applicant received impugned order dated 27.08.2009 by which the representation of the applicant was rejected and also the candidature of the applicant for the said post was cancelled.
k) The order dated 27.08.2009 is impugned in this Original Application.
4. On the other hand, counter affidavit has been filed from the side of the respondents, wherein it has been stated as under :-
a) The applicant had already filed an Original Application being O.A. No.341/2010 against the same impugned order dated 27.08.2009, which was dismissed by this Tribunal vide order dated 16.03.2010 and as such, the applicant has concealed the material fact before this Tribunal.
b) The present Original Application was filed on 11.02.2011 against the impugned order dated 27.08.2009, which is barred by law of limitation.
c) In the attestation Form at Column 12 (A) the applicant has responded 'Nahi', whereas, at the time filling up the attestation form i.e. on 29.07.2006, a Case No.1801/2001 (State Vs. Manoj Kumar) Case Crime No.255/2001 registered under Section 279, 337, 323 and 504 of the Indian Penal Code was pending and as such, the applicant himself concealed the material fact for obtaining appointment.
d) In the attestation Form, it was clearly mentioned 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. If detained, convicted, debarred etc. subsequent to the completion and submission of this Form, the details should be communicated immediately to the Union Public Commission or the Railway Service Commission or the Authority to whom the attestation form has been sent earlier, Page 3 of 8 OA No. 330/221 of 2011 as the case may be, failing which will be deemed to be a suppression of factual information.
e) It was further stipulated in the attestation form that if the false information has been furnished or that there has been suppression of any facts or information of any facts or information in the attestation from comes to notice at time during the service of person, his/her service would be liable to be terminated.
f) The applicant was exonerated in criminal case only on 17.11.2006, whereas the attestation form was filled up on 29.07.2006 by the applicant himself. Hence, the applicant became disqualified on account of his serious misconduct of concealing material fact in obtaining Government service.
5. In reply, rejoinder affidavit has been filed by the applicant on 23.05.2012, wherein, reiterating the averments as made in Original Application. However, it is stated that for the first time from the averments made in counter affidavit, it has come to light that some Original Application on behalf of the applicant was filed, challenging order dated 27.08.2009, which has been dismissed by this Tribunal vide order dated 16.03.2010. The fact remains that the applicant being aggrieved by the order dated 27.08.2009 had approached the counsel at Allahabad and had given signed Vakalatnama as also instruction, but with a rider that the original application will be filed only when the applicant so requests. The applicant at no point of time had given any instruction to earlier counsel to file the original application. However, from the record, it appears now said Original Application was dismissed, but the applicant stated that he had not instructed the earlier counsel to file Original Application No.341/2010 and according to the knowledge of the applicant, this is first original application, challenging the order dated 27.08.2009.
6. Ms. Saumya Mandhyan, learned counsel for the applicant assailed the impugned order on the following grounds:-
a) There is nothing like concealment on the part of the applicant of any material. Infact the requirement of law in such mattes would be to know about any criminal case having bearing on any criminal propensity or integrity of an applicant, but the Page 4 of 8 OA No. 330/221 of 2011 same is not the case of the applicant. The alleged criminal case pending against the applicant at the time filing of Attestation Form was nothing but an offshoot of road accident and the applicant was riding on the pillion of the vehicle which met with an accident and he has been honourably exonerated on merits after three months of filling up of attestation form.
Therefore, even otherwise, the said lapse on the part of the applicant is disastrous.
b) The said issue of writing 'No' against Column 12 (A) could have been condoned if at all consideration was given to the issue under the criminal, which was only a road accident.
c) The information, which was not disclosed only because of ignorance regarding any adverse criminal propensity of the applicant, but was only an accidental case in which the applicant particularly was riding only on the pillion.
d) The applicant was not aware of O.A. No.341/2010, which was filed by earlier counsel as the applicant being aggrieved by the order dated 27.08.2009 had approached the one counsel at Allahabad and had given signed Vakalatnama as also instruction, but with a rider that the original application will be filed only when the applicant so requests. The applicant at no point of time had given any instruction to earlier counsel to file the original application. According to the knowledge of the applicant, this is first original application, challenging the order dated 27.08.2009.
7. Learned counsel for the applicant placed heavy reliance on the following judgments:-
I. I. Avtar Singh Vs. Union of India & Ors.1
II. Commissioner of Police & Ors. Vs. Sandeep Kumar 2
III. Amarjeet Sahani Vs. Union of India & Ors.3
8. Per contra, Shri Krishna Kumar Ojha, learned counsel for the respondents opposed the contention of the learned counsel for the applicant and submitted as under:-
1 (2016) 8 SCC 471 2 (2011) 4 SCC 644 3 Neutral Citation No.2023:AHC:55718 Page 5 of 8 OA No. 330/221 of 2011
a) This Original Application is barred by res judicata as the applicant had already filed an Original Application No.341 of 2010 against the same impugned order i.e. order dated 27.08.2009, which was dismissed by this Tribunal vide order dated 16.03.2010.
b) The applicant had concealed the material fact from this Tribunal, which is not permissible.
c) Original Application is also time barred as the impugned order is of 2009 and Original Application was filed in the year, 2011 and as such, instant Original Application is liable to dismissed in limine.
d) The applicant had given wrong information in the Attestation Form as he had concealed that a criminal case is pending against him for obtaining appointment.
e) In the Attestation Form, it was clearly mentioned 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, but it is the applicant, who ignored the said warning and concealed the material fact.
f) The judgment relied upon by the learned counsel for the applicant is not applicable in the instant case as the applicant has given his own undertaking while filling up the attestation Form.
9. We have considered the submissions so raised by the learned counsel for both the parties and perused the records.
10. It reflects from the record that that admittedly, the applicant had earlier approached this Tribunal against the impugned order dated 27.08.2009 by filing Original Application No.341/2010, which was dismissed by this Tribunal vide its order dated 16.03.2010 with the following observations:-
6 .... A careful perusal of the said order clearly indicates that the Competent Authority has also referred to case of Sri Vipad Bhanjan Gyan in Civil No.7470/2008 decided by judgment and order dated 09.05.2008, decided by Hon'ble Supreme Court, wherein it is clearly ruled that mentioning incorrect information in Page 6 of 8 OA No. 330/221 of 2011 declaration form is sufficient to warrant cancellation of the candidature of the applicant.
In view of the aforesaid observation we do not find any merit in the case. Accordingly, the O.A. is dismissed, no order as to costs.
11. Further, the applicant has not approached this Tribunal with his clean hand and have tried to conceal the material facts such as there is no pleadings in the entire original application regarding order dated 16.03.2010 passed in Original Application No.341/2010 by this Tribunal against the same impugned order dated 27.08.2009, which is under challenge in this Original Application. The statement made in the rejoinder affidavit that the applicant was not aware of O.A. No.341/2010, which was filed by earlier counsel as the applicant being aggrieved by the order dated 27.08.2009 had approached the one counsel at Allahabad and had given signed Vakalatnama as also instruction, but with a rider that the original application will be filed only when the applicant so requests. The applicant at no point of time had given any instruction to earlier counsel to file the original application. According to the knowledge of the applicant, this is first original application, challenging the order dated 27.08.2009, is not acceptable to this Court as the applicant himself signed Vakalatanama in that Original Application and merely the applicant made a bald statement that he had not given any instruction to earlier counsel for filing O.A. No.341/2010 is no ground for excuse.
12. As the applicant concealed the material fact that he had earlier filed a Original Application No.341/2010 against the same impugned order, which was dismissed vide order dated 16.03.2010, the cases cited by the learned counsel for the applicant are not applicable in the instant case. Even the case of Avtar Singh (supra) has been considered by the Apex Court in case Rajasthan Rajya Vidyut Prasaran Nigam Ltd. Vs. Anr. Anil Kanwariya, reported in (2021) 10 SCC 136, wherein it has been held as under:-
14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have Page 7 of 8 OA No. 330/221 of 2011 appointed him. Then the question is of trust. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right.
13. In view of the above, the prayer made by the applicant is totally misconceived and is not maintainable before this Tribunal as the same is barred by res judicata and as such, the present Original Application ought to have been dismissed with cost, but considering the fact that applicant is unemployed; this Court is not imposing any cost upon the applicant.
14. In view of the above discussion, instant Original Application is dismissed as not maintainable.
15. All MAs pending in this O.A. also stand disposed off.
16. No order as to costs.
(Anjani Nandan Sharan) (Justice Rajiv Joshi) Member(Administrative) Member (Judicial) PM/ Page 8 of 8