Allahabad High Court
State Of U.P. Through Principal ... vs Dilip Kumar Jaiswal on 17 November, 2020
Bench: Munishwar Nath Bhandari, Piyush Agrawal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 29 Case :- SPECIAL APPEAL DEFECTIVE No. - 501 of 2020 Appellant :- State Of U.P. Through Principal Secretary (Home) And 3 Others Respondent :- Dilip Kumar Jaiswal Counsel for Appellant :- Anand Kumar Ray Counsel for Respondent :- Prabhakar Awasthi,Ramesh Chandra Dwivedi Hon'ble Munishwar Nath Bhandari,J.
Hon'ble Piyush Agrawal,J.
Civil Misc. Delay Condonation Application No. 2 of 2020 Heard on the application for condonation of delay of 263 days in filing the appeal.
Learned counsel for the non-appellant has not opposed the application for condonation of delay and accordingly it is allowed. The delay in filing the appeal is condoned and with the aforesaid it is allowed.
The appeal is heard on merit.
It is a case where the petitioner-non appellant was appointed on the post of Assistant Prosecuting Officer after his selection. He was appointed on probation for a period of two years. On the completion of period of probation, an order was passed on 14.8.2019 cancelling his appointment. It was on the ground that the non appellant was implicated in crime for the offence under sections 147, 352, 188, 504, 506 IPC but without disclosing those provisions in the declaration form, he just referred his acquittal in the aforesaid case. The another case bearing Case Crime No. 227 of 1999 was also disclosed by the petitioner non appellant but without referring to the provisions under which offence was committed though it was mentioned that an interim order has been passed by this Court in the petition under section 482 Cr.P.C. It was taken to be a case of supression.
Learned standing counsel appearing for the State submitted that as per para. 12 of the declaration form, the petitioner non-appellant was required to disclose the history of the criminal case in which he was prosecuted/ arrested/ detained/ bound down/ fined, or was convicted. It is also, as to whether he was ever disqualified by the Public Service Commission in any of the selections. The second part of paragraph 12 of the form was requiring details of the pending cases in the court or before the University or any other authority. The petitioner non appellant disclosed about both the cases in the declaration form but failed to give details. In the first case, he stated about his arrest but finally acquitted and in Crime Case No. 227 of 1999, matter was shown pending in the High Court with interim order in his favour.
The State Government has taken it to be a case of suppression because the petitioner non-appellant failed to disclose the detail of offences in which he was involved. It is after referring to the judgment of the Apex Court in the case of Avtar Singh vs. Union of India and others (2016) 8 SCC 471.
Learned standing counsel submitted that non disclosure of the provisions under which the petitioner non appellant was earlier acquitted in the crime case or in one case, pending before the High Court, amounts to suppression of facts and thereby petitioner was liable to be dis-continuance from service. It is more so when he was shouldering the responsibility of a sensitive post of Assistant Prosecuting Officer.
We have considered the submissions made by the learned counsel for the parties and perused the record.
The whole issue clinches on para. 12 of the declaration form where necessary disclosure was required to be made by each candidate and for ready reference para.12 of the form, as filled in by the petitioner non appellant is quoted here under:
12&d& D;k vki dHkh fdlh U;k;ky; }kjk fdlh vijk/k ds fy, fxjQrkj] vfHk;ksftr Prosecuted fu:) Detailed vFkok vkc) Bound vFkZ nafMr Fined nks"k & fl) fd;k x;s ;k fdlh yksd lsok vk;ksx }kjk ijh{kk p;uksa esa lfEefyr gksus ds fy, izfrokfjr @ vugZ fd;s x;s ;k fdlh vU; f'k{kk izzkf/kdkjh @laLFkk }kjk dksbZ ijh{kk nsus ds fy, izfrokfjr ;k cfg"d`r Rusticate fd;s x;s\ &&& gkW &&& [k& D;k bl izek.khdj.k izirz dks Hkjrs le; vki ds f[kykQ U;k;ky;] fo'ofo|ky; ;k fdlh vU; f'k{kk izkf/kdkjh@laLFkk ds le{k dksbZ okn fopkjk/khu gS\ &&&& gkW&&&& &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& ;fn bl izirz dk tokc gkW gS rks okn] fxjkQrkjh] fujks/k] vFkZ n.M] nks"k & fl)] n.Mkns'k vkfn dk iwjk fooj.k rFkk bl izirz dks Hkjrs le; U;k;ky; @ fo'ofo|ky; @ f'k{kk izkf/kdkjh vkfn ds le{k fopkjk/khu okn dk izdkj fn;k tk;
d& eq0v0la0 7046 o"kZ 2002 Fkkuk dyokjh tuin cLrh esa ,d ckj fxjQrkj ifj.kke & nks"keqfDrA [k& vkijkf/kd okn la0 227 @ 1999 tuin cLrh Fkuk dyokjh fopkjk/khu ekuuh; mPp U;k;ky; }kjk izkslhfMax LVsA Perusal of paragraph 12 quoted above shows that the petitioner non-appellant has answered column A and B in affirmative and while disclosing the fact pertaining to two criminal cases, he disclosed about his acquittal in the first case of 2002 and for other case, he stated about the interim order passed by this Court. The question for our consideration is as to whether non disclosure of provision under which offence was committed amounts to suppression so as to cancel his appointment. It is otherwise a case where criminal case was registered at the instance of the relative due to property dispute. The order of the Court in a petition under section 482 of Cr.P.C. gives reference about pending civil suit.
Due to the inter se dispute between the relatives, criminal case was registered and in one case, the petitioner non appellant has already been acquitted and in other case, stay has been granted by this Court. The respondent could have verified the facts disclosed by the petitioner non appellant and non disclosure of the provisions under which the offence was committed can not amount of supression of facts so as to cancel the appointment. Judgment of the Apex Court in Avtar Singh (supra) has been referred by the responeent but without taking note of the facts of this case. It is not a case of conviction of the petitioner non appellant or supression so as to reject his candidature.
At this stage, learned standing counsel referred to the reply submitted by the petitioner non appellant in reference to show cause notice. According to him, the petitioner non appellant has admitted his mistake in non disclosure of the provisions under which the offence was committed. Even if the reply in reference to the argument aforesaid is considered, the question for our consideration would be as to whether it can result of cancellation of apportionment of a meritorious candidate when non disclosure of the provisions under which offence was committed cannot be said to be supression. It is not even required under para. 12. What was required to be given is the details of order of arrest/ detention/ fine or conviction. The petitioner non appellant has not been convicted, though was arrested but was subsequently acquitted. The fact aforesaid, has not been disputed by the learned standing counsel. The mistake admitted by the petitioner non appellant is not of such a nature which may result in cancellation of his appointment because he understood his mistake in reference to non disclosure of the provisions under which offence was committed, though was not required to be disclosed as per para. 12 of declaration form.
It is to be noted that theory of reform of a convict has been introduced by the Government so as to bring them in the main stream. Here is the case where the petitioner non appellant has been subjected to cancellation of appointment despite necessary disclosures about the criminal cases.
In view of the discussion made above, we do not find any merit in the appeal so as to cause interference in the judgment of the learned single Judge. The learned single Judge has not committed error in allowing the writ. The same is accordingly dismissed.
Order Date :- 17.11.2020 samz