Remanded

Deepak v. the State of U.P. and 6 Others

Allahabad HC19 May 2022WRIA/606/2022

Case brief

AI extract

What is this about?

Writ petition challenging the cancellation of the petitioner's selection as a Constable on the ground of concealing a criminal case filed when he was a juvenile. The court held the authority failed to consider juvenile protections and acquittal facts.

What did the court decide?

The impugned order dated 24.12.2021 cancelling the petitioner's selection is quashed and the matter is remanded to the competent authority to pass a fresh order in light of the judgment of Apex Court

Deepak Vs the State of U.P. and 6 Others — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 34

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Case :- WRIT - A No. - 606 of 2022

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Petitioner :- Deepak Respondent :- The State Of U.P. And 6 Others Counsel for Petitioner :- Atipriya Gautam,Devesh Mishra,Ishir Sripat,Sr. Advocate

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Counsel for Respondent :- C.S.C.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Vijay Gautam, the learned Senior Counsel assisted by Mr. Devesh Mishra, the learned counsel for petitioner and the learned Standing Counsel for State respondents.

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Challenge in this writ petition is to the order dated 24.12.2021, passed by respondent-7 the Commandant 15th Bn. P.A.C. Agra, District Agra, whereby selection/appointment of petitioner on the post of Constable in P.A.C (General) category has been cancelled.

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Present writ petition came up for admission on 5.4.2022 and this Court passed the following order;

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"Learned Standing Counsel prays for and is granted three weeks and no more time to file counter affidavit.

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Rejoinder affidavit, if any, may be filed within two weeks thereafter.

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Put up this case on 10.05.2022 as a fresh case. "

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Pursuant to above order dated 5.4.2022, no counter affidavit has been filed by learned Standing Counsel.

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Record shows that U.P. Police Recruitment and Promotion Board, Lucknow issued an advertisement dated 16.11.2018 i.e. Constable Civil Police and Constable PAC, Direct Recruitment-2018 II whereby 31,360 posts of Constable in Civil Police and 18,208 posts of Constable in PAC were advertised for direct recruitment.

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Selections to the posts so advertised were to be made in accordance with the procedure prescribed in U.P. Police Constables and Head Constables Service Rules 2015, as amended from time to time.

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Pursuant to above advertisement, petitioner duly applied for the post of constable. He appeared in the written examination test and qualified the same. Accordingly, petitioner was declared successful vide notification dated 20.11.2019.

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Consequently petitioner was called for next stage of selection i.e. Document

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Verifiication and Physical Standard Test (DV/PST). In response to the same, petitioner duly appeared at Reserved Police Lines Agra. At this juncture, petitioner was required to submit a notary affidavit regarding his personal information. Petitioner submitted the required notary affidavit before the competent authority on 13.8.2021. Ultimately, petitioner was declared as a selected candidate on the post of Constable in P.A.C under the (Male) General category vide final select list/notification dated 2.3.2020 whereby, 49568 candidates were declared successful. Petitioner was thus required to undergo training at 15th Bn. P.A.C. Agra. The entire papers pertaining to the petitioner were sent to respondent-7 Commandant 15th Bn. P.A.C. Agra, District Agra for follow up action. However, petitioner was not permitted to join his JTC training at Agra.

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Ultimately respndent-7 the Commandant 15th Bn. P.A.C. Agra, passed the order dated 24.12.2021, whereby the candidature/selection of the petitioner on the post of constable PAC in Male (General) category was cancelled on the ground that the petitioner in the notary affidavit submitted by him has concealed the factum regarding the criminal case i.e. Case Crime No. 244 of 2018, under sections 147, 148, 149, 452, 323, 506 IPC, Police Staton- Fatehabad, District Agra which came to be registered pursuant to F.I.R dated 18.3.2018.

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Learned Senior Counsel for petitioner submits that order impugned in present writ petition is manifestly illegal and arbitrary. He has invited the attention of Court to the averments made in paragraphs 35, 36, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50 and 51 of the writ petition. On basis thereof, he submits that the petitioner is a named accused in the F.I.R. dated 18.3.2018, registered as Case Crime No. 0244 of 2018 under sections 147, 148, 149, 452, 323, 506 IPC. However, the petitioner was a juvenile on the date of occurrence. The petitioner was never tried by the Juvenile Justice Board as he was exculpated in the charge-sheet dated 6.7.2018. As such, on the date of submission of notary affidavait i.e. on 13.8.2021, no criminal case was pending against petitioner either at the stage of Investigation or trial. Moreover, by virtue of provisions contained in Section 19 of Juvenile Justice (Care and Protection of Children) Act, 2000, no disqualification can be attached to the petitioner merely on the ground that he was named in the F.I.R.

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Attention of the Court was then invited to the judgement of Supreme Court in Avtar Singh Vs. Union of Inidia and Others, (2016) 8 SCC 471 wherein Court has dealt with the issues regarding the effect of a criminal case pending against selected candidate non disclosure of the same in the affidavit submitted by the selected candidate and subsequent acquittal of a candidate in the criminal case. Apex Court has also laid down certain guide lines in the matter. Paragraph 38 of the said judgement along with sub paragraphs are relevant for the controversy in hand. As such same are extracted herein under

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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

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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 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. 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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On the aforesaid premise, learned Senior Counsel submits that in view of the directions contained in paragraphs 38.5 to 38.10 of the judgement in Avtar Singh (Supra), the competent authority was under a legal obligation to consider the suitability of the petitioner inspite of the fact that a criminal case was registered

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against him. However, no such exercise was undertaken by competent authority as is evident from the impugned order. It is thus urged that order impugned in present writ petition cannot be sustained and therefore liable to be quashed by this Court.

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Learned Standing Counsel representing respondents 1 to 6 on the other hand has opposed the present writ petition. He, submits that in view of the fact that petitioner was involved in a criminal case, it cannot be said that petitioner has no criminal antecedents. Petitioner was selected for a disciplined force. Therefore, by virtue of the very nature of service, he was about to enter a person with criminal antecedent cannot be inducted in service. As such no illegality has been committed by the authority concerned in rejecting the candidature/Selection of the petitioner. He, therefore, submits that present writ petition is liable to be dismissed.

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Having heard the learned Senior counsel for petitioner, the learned Standing counsel for respondents and upon perusal of record as well as the judgement of Apex Court in Avtar Singh (Supra) , this Court finds that it was obligatory upon competent authority to decide the impact of the criminal case registered against petitioner on the suitability of petitioner for offering him employment in the Police force. No exercise in this regard has been undertaken by competent authority. To the contrary competent authority has recorded a bald conclusion that on account of the criminal case having been registered against applicant he cannot be offered appointment in the Police force. Competent Authority has not adverted to the fact that petitioner was simply named in F.I.R. but was not charge sheeted. Competent Authority further failed to consider that on the date of occurrence giving rise to F.I.R. dated 18.3.2018, resulting in Case Crime No. 244 of 2018, under sections 147, 148, 149, 452, 323, and 506 IPC, petitioner was a juvenile. By virtue of provisions contained in Section 19 of Juvenile Justice (Care and Protection of Children) Act 2000, the aforesaid could not be attached as a disqualification to the candidature/selection of petitioner. Competent authority has not adverted to aforesaid aspects of the matter either.

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In view of above, the present writ petition succeeds and is allowed. The impugned order dated 24.12.2021, passed by respondent-7 the Commandant 15th Bn. P.A.C. Agra, District Agra is hereby quashed.

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The matter shall stand remanded to the competent authority who shall pass a fresh order in the light of observation made herein above as well as the judgement of Apex Court In Avtar Singh (Supra) within a period of three weeks from the date of presentation of a certified copy of this order.

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No costs.

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Order Date :- 19.5.2022 Arshad

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Digitally signed by ARSHAD MAHMOOD Date: 2022.08.08 15:02:43 IST Reason: Location: High Court of Judicature at Allahabad

Deepak v. the State of U.P. and 6 Others

Case brief

What is this about?

What did the court decide?

Deepak v. the State of U.P. and 6 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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