Remanded

Lavakush Yadav v. State of U.P. and 2 Others

Allahabad HC6 Aug 2021WRIA/7712/2020

Case brief

AI extract

What is this about?

The court set aside the order refusing the petitioner's appointment solely due to the pendency of a criminal case. It remanded the matter to the respondant to pass a fresh order considering the mandate of Avatar Singh v. Union of India.

What did the court decide?

The impugned order was set aside and the matter was remanded to the Respondent No. 3 to pass a fresh order within three months.

Lavakush Yadav Vs State of U.P. and 2 Others — Service and Employment | Allahabad HC (2021)

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Court No. - 6

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Case :- WRIT - A No. - 7712 of 2020

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Petitioner :- Lavakush Yadav Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Ram Krishna Mishra,Ramesh Chandra Yadav Counsel for Respondent :- C.S.C.

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Hon'ble Pankaj Bhatia,J.

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The present writ petition has been filed challenging the order dated 7.4.2020 whereby the appointment of the petitioner was refused to be considered solely on account of pendency of Criminal Case No. 215 of 2016, under Section 323, 325, 308, 504 IPC, Police Station Cholapur, District Varanasi in which the petitioner was allegedly implicated.

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The contention of the counsel for the petitioner is that the petitioner was appointed in terms of the advertisement issued and passed the physical test as well as the written examination. It is also claimed that the petitioner had appeared in the group discussion. It is also indicated in the application of the petitioner that the petitioner's first choice was for the post of Platoon Commander PAC and the petitioner in terms of the said choice, was selected on the said post as is clear from the select list prepared and appended as Annexure No. 6.

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It is alleged that a case was got registered on account of village rivalry as NCR No. 123 of 2016 on 29.4.2016 under Section 323 & 504 IPC and another NCR No. 124 of 2016 was also

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registered on the same day. Subsequently, the said NCR No. 123 of 2016 was converted in Case Crime No. 215 of 2016 and chargesheet was filed in the said case. It is indicated that the petitioner disclosed the pendency of the said case by filing an affidavit on 17.4.2019, however, the impunged order dated 7.4.2020 was passed rejecting the candidature of the petitioner solely on the ground of pendency of the said criminal case.

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The contention of the counsel for the petitioner is that the order impugned is contrary to the law laid down in the case of Avatar Singh Vs. Union of India and others, (2016) 8 SCC 471. Necessary paragraphs, in this regard, as laid down in the case of Avtar Singh (supra) are being reproduced hereinabove:

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"38 We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:

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38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

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38.2 While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

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38.3 The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

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38.4 In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:

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38. 4.1 In a case trivial in nature in which conviction had

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been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

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38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

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38.4.3 If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

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38.5 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.

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38.6 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.

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38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

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38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

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38.9 In case the employee is confirmed in service, holding departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

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38.10 For determining suppression or false information attestation/verification form has to be specific, not vague.

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Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

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38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

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Considering the order impunged which is, prima facie, against the judgment and directions given by the Supreme Court in the case of Avtar Singh (supra) , the order impugned dated 7.4.2020 passed by the Respondent No. 3 is set aside and the matter is remanded to the Respondent No. 3 to pass fresh order in the light of the mandate of the judgment of the Supreme Court in the case of Avtar Singh (supra).

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The said exercise shall be completed by the Respondent No. 3 with all expedition preferably within a period of three months from the date of filing of a copy of this order before the Respondent No. 3.

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The writ petition stands disposed off in terms of the same.

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Copy of the order downloaded from the official website of this Court shall be treated as certified copy of the order.

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Order Date :- 6.8.2021 vinay

Lavakush Yadav v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Lavakush Yadav v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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