Gujarat High Court
Yusufali Badrudin Hirani vs State Of Gujarat on 16 June, 2023
C/SCA/9202/2023 ORDER DATED: 16/06/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9202 of 2023
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YUSUFALI BADRUDIN HIRANI
Versus
STATE OF GUJARAT
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Appearance:
MR PM LAKHANI(1326) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent - State
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 16/06/2023
ORAL ORDER
1. This petition is filed seeking direction to the respondents to quash and set aside the order dated 01.04.2023, whereby the candidature of the petitioner to the post of Driver with respondent No. 3 - Corporation has been rejected.
2. The facts in brief are as follows:-
(i) The respondent authorities initiated recruitment process for selection to the post of Driver. Pursuant thereto advertisement dated 25.07.2019 was published, wherein the petitioner applied. The petitioner was thereafter called for the interview and driving test vide letter dated 09.10.2019. He appeared and successfully cleared the same. A provisional selection list/ waiting list came to be published on 09.02.2023, where the name of the petitioner figured at Sr. No. 54.
Necessary certificates as required were submitted to the Page 1 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 authorities. Thereafter, respondent No. 4 vide communication dated 14.02.2023 addressed a letter to the Police Department for obtaining Police Clearance Certificate in relation to the petitioner. In response thereto, the Office of Police Inspector, Amreli send the details under letter dated 17.02.2023, intimating the status of criminal prosecution against the petitioner.
(ii) It is the case of the petitioner that as on the date of wait list i.e. 09.02.2023, not a single prosecution case was pending against him. Despite that the respondents have not considered his case for appointment. Challenging the rejection order dated 01.04.2023, this petition is filed.
3. Heard learned advocate Mr. P. M. Lakhani for the petitioner. He submitted that the communication from the Police Inspector, Amreli City Police Station dated 17.02.2023, refers to lodging of prosecution as also the date of disposal of the case in relation to the petitioner. From the said documents, it is evident that on day of publication of wait list/select list no case was pending against him. The petitioner being meritorious had cleared the interview as well as driving test and therefore after having his name in the wait list / select list, denial of appointment is bad in law.
4. On the other hand, learned Assistant Government Pleader Ms. Dharitri Pancholi appeared on advance copy on behalf of respondents No. 1 and 2 and submitted that the date of online application was 25.07.2019. In the said application, the details in relation to pending FIR / criminal proceedings is called for, to Page 2 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 which the petitioner replied as no (i.e. in negative). Moreover, in the undertaking below the application, the petitioner had stated that no criminal prosecution is pending against him as on the date of application (25.07.2019). The undertaking also refers that, if any information filled hereinabove is found to be incorrect, then the decision of the authorities would be binding on him.
4.1 As on date of the application there were total 8 criminal proceedings pending against the petitioner which got disposed of subsequently between the period February, 2021 to June, 2022. In other words, all the 8 cases referred at Annexure-B were pending on the date of application and therefore the information given by the petitioner in the online application form was incorrect. In support of her submissions, she relied upon the decision of Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut Prasaran Nigam V/s. Anil Kanwariya reported in (2021) 10 SCC 136.
5. Considered the submissions and upon re-visitation of the facts it is noticed that the petitioner filled his online application form on 25.07.2019. Perusal of the said application form shows that against the details of pendency of any criminal prosecution the petitioner, had answered as 'No'. Even the undertaking below the said application was signed by the petitioner, that the details filled in the application form are correct. It cannot be said that as on date of application filled by petitioner i.e. 25.07.2019, no prosecution was pending against him. Therefore, in my opinion, though the prosecutions are subsequently disposed of it would amount to filling the wrong / Page 3 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 incorrect information for appointment to the post in question. From the communication dated 17.02.2023 by Police Inspector, Amreli City Police Station it is evident that as on the date of application in all 8 criminal prosecutions were pending against the petitioner and were disposed of subsequently.
6. In the order dated 01.04.2023, the authorities while rejecting the candidature of the petitioner have referred to the circular and observed that in view of the said circular if any wrong / incorrect information is provided, the authority has right to reject the candidature and the same has been followed in the present case. Moreover, In the call letter dated 09.10.2019 in Clause 4, it is referred that at the time of document verification, if any details filed in the application form is found to be incorrect, the administration has the right of rejection of candidature.
7. In the decision of Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut Prasaran Nigam V/s. Anil Kanwariya reported in (2021) 10 SCC 136, it is held as under:-
"8. While considering the aforesaid issues, few decisions of this Court on appointment obtained by fraud/misrepresentation and/or appointment obtained by suppression of material facts are required to be referred to and considered.
XXXX 8.5 In the case of Jainendra Singh (supra), Page 4 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 this Court summarised the principles to be considered in a case where the appointment is obtained by misrepresentation and/or suppression of facts by candidates/appointees as under:
"(i) Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
(ii) Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if find not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
(iii) When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
(iv) A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of Page 5 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 employment as well as other aspects, has the discretion to terminate his services.
(v) The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
(vi) The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
(vii) The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
(viii) An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
(ix) An employee in the uniformed service Page 6 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 pre-supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
(x) The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable."
8.6 In the case of Daya Shankar Yadav (supra), this Court had an occasion to consider the purpose of seeking the information with respect to antecedents. It is observed and held that the purpose of seeking the information with respect to antecedents is to ascertain the character and antecedents of the candidate so as to assess his suitability for the post. It is further observed that when an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can lead to any of the following consequences:
"(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit Page 7 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non-
disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.
(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/ attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the Page 8 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023 C/SCA/9202/2023 ORDER DATED: 16/06/2023 involvement of the declarant, the employer can have recourse to courses (a) or (b) above."
"Thereafter, it is observed and held that an employee can be discharged from service or a prospective employee may be refused employment on the ground of ........suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).""
8. In view of aforestated reasons and in view of decision of the Hon'ble Supreme Court, in my opinion, there is no illegality in the order dated 01.04.2023, of the respondent authority and hence the petition is rejected. No order as to costs.
(MAUNA M. BHATT,J) SHRIJIT PILLAI Page 9 of 9 Downloaded on : Wed Jun 21 20:35:04 IST 2023