Allowed

Suraj Giri v. State of U.P. and 5 Others

Allahabad HC16 Feb 2023WRIA/5574/2019

Case brief

AI extract

What is this about?

Petitioner challenged rejection of his appointment as police constable after acquittal in a family dispute. Court held authorities mechanically applied precedent ignoring acquittal details and nature of offenses. Petition allowed to direct reconsideration and accommodation if vacancies exist.

What did the court decide?

Impugned order set aside. Directions to re-consider petitioner's case, apply Avtar Singh guidelines meaningfully, and accommodate in vacancies.

Suraj Giri Vs State of U.P. and 5 Others — Service and Employment | Allahabad HC (2023)

RESERVED

Court No. - 33

Case :- WRIT - A No. - 5574 of 2019 Petitioner :- Suraj Giri Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Vijay Gautam, Mohammad Fahad, Sajeev Singh, Suresh Bahadur Singh, S1918 Counsel for Respondent :- C.S.C.

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Hon'ble Jaspreet Singh,J.

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Heard Shri Sanjeev Singh, learned counsel for the petitioner and Shri

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Vikram Bhadur Yadav, learned standing counsel for the State-respondents.

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By means of the instant writ petition, the petitioner assails the impugned order dated 27.02.2019 passed by the respondent no.4 whereby the representation of the petitioner has been rejected.

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The controversy involved in the instant petition has a background of a previous litigation. It is the case of the petitioner that in pursuance of an advertisement issued by the Uttar Pradesh Police Recruitment Promotional Board for recruitment of male constables in the Uttar Pradesh Police/Police Constables and Constable PAC direct recruitment of 2015, the petitioner has applied for the same under the Other Backward Class category. The petitioner had cleared the written examination and thereafter the final select-list was declared on 15.05.2018 wherein the petitioner was found successful.

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The petitioner was directed to appear for a medical examination at Police Line, Deoria on 13.06.2018 where the petitioner was declared medically fit. The petitioner was required even to furnish his personal information in the form of affidavit which was also submitted on 08.06.2018 wherein the petitioner candidly disclosed that in a dispute between family members and initiated by wife of the elder brother of the

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petitioner, who lodged an FIR on 18.03.2016 registered as Case Crime No. 223 of 2016, under Sections 294, 323, 504, 506 IPC at Police Station Kotwali, Dstrict Deoria. It was also informed that though a charge-sheet was submitted against the accused-persons, however, the petitioner and the other persons were acquitted from the criminal charges by means of order dated 11.07.2017 passed by the Chief Judicial Magistrate, Deoria.

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It is the specific case that the petitioner had disclosed the aforesaid information while filing his notary affidavit dated 08.06.2018 and the District Magistrate Deoria and the Superintendent of Police, Deoria passed an order recommending the appointment of the petitioner subject to the decision of the criminal case.

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Subsequently, in the month of June, 2018, the petitioner was directed to join the JTC training at Ambedkar Nagar, however, when the petitioner went to join the training at the allotted district he was not permitted to join on account of the fact that there was a criminal case pending against the petitioner.

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Since the grievance of the petitioner was not being considered, theretofore, he was compelled to file a writ petition before this Court bearing Writ ‘A’ No. 21704 of 2018 (Suraj Khiri VS. State of U.P and others), which was disposed of by this Court by means of order dated 12.10.2018 with a direction that the respondents will look into the grievance of the petitioner as raised by him in his application and pass an appropriate, reasoned and speaking order taking into account the law settled by the Apex Court in the case of Avtar Singh Vs. State of Union (2016) 8 SCC 471 within a period of three weeks.

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It is further urged that it is in view of the aforesaid direction that the respondents have rejected the representation of the petitioner by means of the impugned order dated 27.02.2019 and refused the prayer made by the petitioner on the ground that it was not a clear case of acquittal rather the petitioner was granted the benefit of doubt and since the disciplined forces require persons who have clear antecedent, accordingly the case of the petitioner did not find favour with the authorities.

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Shri Sanjeev Singh, learned counsel for the petitioner has argued that the decision of Avtar Singh (supra) lays down the guidelines which ought to have been followed and in the instant case, the petitioner had candidly disclosed the fact regarding institution of a criminal case against him and also that he had been acquitted in the aforesaid case. It is urged that merely because a criminal case was pending at some point of time, it does not debar a person from taking public employment. It was required by the authorities to have seen whether a case against the petitioner was such that would make him unsuitable for public employment in the disciplined forces, however, this aspect of the matter has not been considered rather in a mechanical manner copying the relevant paragraphs of the decision of Avtar Singh (supra), the representation has been rejected, without noticing and following the pith and substance of the decision of the Apex Court in Avtar Singh (supra) .

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It is also sought to be urged that merely quoting the decision of the Apex Court while rejecting the representation of the petitioner would not amount to complying with the order passed by the Court dated 12.10.2018 in Writ ‘A’ No. 21704 of 2018 where the Court had clearly directed the

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authority to consider while taking into account the law as settled by the Apex Court in the case of Avtar Singh (supra) and that actually meant to consider the ratio and apply the same to the instant case, which has not been done.

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It has also been urged that all the material had been laid bare by the petition without exception and even the District Magistrate and Superintendent of Police had found that the candidature of the petitioner was not marred. Even otherwise, when the aforesaid affidavit was given by the petitioner, he had already been acquitted and there was no such material by which it could be ascertained that the petitioner was not fit to join the service or his antecedent were such that debarred him from holding the post. Thus, it is submitted that the impugned order doest not take note of the aforesaid aspect, hence, writ petition deserves to be allowed after setting aside the impugned order.

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Shri Vikram Bhadur Yadav, learned Standing Counsel while opposing the aforesaid submissions has urged that the case of the petitioner has been considered in light of the decision of the Apex Court in the case of Avtar Singh (supra), thus, it cannot be said that authorities have not applied its conscious mind. It is also urged that, it is not mandatory for the authorities have to appoint a person rather it is a discretion which is available with the employer to seek whether such person would be fit to be appointed.

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In the instant case, the authorities have taken such a decision and it did not find the petitioner to be suitable and this aspect cannot be made the subject matter of a writ. It is also sought to be urged that the selection is of the year 2005 and there are no posts against which the petitioner can be

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accommodated, accordingly, even on this count, the petition deserves to fail.

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The Court has heard learned counsel for the parties and also perused the material on record.

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At the very outset, it may be noticed that the facts between the parties are not in dispute. It is not disputed that the petitioner had furnished an affidavit wherein he had candidly disclosed the pendency of the criminal case and that the petitioner had been acquitted by means of the order dated 11.07.2017 passed by the Court. Despite the aforesaid information, the authorities had taken the decision that the case of the petitioner can be considered. It is also not disputed that a letter was issued to the petitioner to join at district Ambedkar Nagar, where he was not permitted to join which led the petitioner to file Writ ‘A’ No. 21704 of 2018 which came to be decided by means of order dated 12.10.2018 directing the respondents to consider the grievances of the petitioner in light of the decision of the Apex Court in the case of Avtar Singh (supra) .

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At this stage, it will be relevant to notice the dictum of the Apex Court in Avtar Singh (supra) and the relevant paragraphs read as under:-

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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

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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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It is these guidelines which had to be seen, considered and applied to

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the case at hand. What this Court finds is that the authorities have mechanically considered the decision of the Apex Court in case of Avtar Singh (supra) and turned down the representation of the petitioner on the ground of being involved in a criminal case, though, acquitted which according to the impugned order was not a clear acquittal rather the petitioner was granted the benefit of doubt by the Court.

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This Court further finds that, in the instant case the dispute in question for which an FIR was lodged was not against the petitioner by a third party rather it was a inter-se family dispute and the FIR had been lodged by the wife of the brother of the petitioner. The nature of allegations in the FIR and the case not being proved and the petitioner having been acquitted are all relevant factors which ought to have been taken note of but has not been considered by the authorities. It is not a case where some third party made allegations and that the petitioner had exerted any influence. Rather it is a simplicitor case, amongst the family members and all the offences with which the petitioner was charged were trivial offences and the petitioner was even acquitted. This aspect of the matter has not been taken note of by the authority, neither it has been considered how the alleged case would have any bearing on the suitability of the petitioner in context with his employment.

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Considering the aforesaid, this Court does not find that the authorities have taken an objective view of the matter rather a pedantic, casual and mechanical approach has been adopted to deprive the petitioner, who otherwise is duly qualified for the post and had an opportunity to serve the nation through public employment.

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Having said that, the Court also needs to see whether the petitioner can be accommodated at this stage as an objection has been raised by the learned Standing Counsel that there are no vacancies against which the petitioner can be accommodated. In this regard, this Court finds that an order had been passed on 01.09.2022 whereby ten days’ time was given to the learned Standing Counsel to indicate whether any vacancy pertaining to the Recruitment of 2015 are still vacant.

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The record further indicates that again on 12.10.2022, further time was granted to seek instructions, however, the aforesaid instructions have not been provided. Moreover, the counsel for the petitioner has submitted that this alone cannot be a ground to deprive the petitioner of his right and even otherwise there are various other persons similarly situate relating to the recruitment of 2015 who have been accommodated.

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Be that as it may, the said issue may not detain it any longer inasmuch as, despite the time granted to the learned Standing Counsel to file material to indicate that no vacancies existed herein, it has not been done nor there is any material to support the said contention. It has already been found that the manner in which the representation has been decided is not within the spirit of the decision of the Apex Court in Avtar Singh (supra) nor the relevant consideration which ought to have been noticed has been considered.

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In view of the aforesaid, this Court allows the writ petition and directs the respondent to re-consider the case of the petitioner and pass final orders in light of the observations made hereinabove complied with meaningful consideration of the decision of Avtar Singh (supra) , and

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subject to the outcome and subject to the vacancies available under the 2015 recruitment, the petitioner be accommodated contigent upon clearing the medical fitness examination so that the entire exercise is completed within 8 weeks from the date a certified copy of the order is placed before the Authority.

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With the aforesaid the petition is allowed, the order dated 27.02.2019 is set aside. In the facts and circumstances, there shall be no order as to costs.

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Order Date :- 16. 02.2023 Aditya Gautam/Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad

Suraj Giri v. State of U.P. and 5 Others

Case brief

What is this about?

What did the court decide?

Suraj Giri v. State of U.P. and 5 Others

Case brief

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