Sri Shaheer Patel Vs the Karnataka Public Service Commission

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE 2^ND RESPONDENT HEREIN TO ISSUE AN ORDER OF APPOINTMENT IN FAVOUR OF THE PETITIONER IN THE CADRE OF SECOND DIVISION

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ASSISTANT, IN THE RESIDUAL CADRE OF CITY CIVIL COURT AT BANGALORE IN TERMS OF THE ENDORSEMENT DATED 12.03.2021, BEARING NO. PSC E (3) 3041-3615/2020-21 ISSUED BY THE 1^ST RESPONDENT VIDE ANNEXURE-E.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner has sought for a writ in the nature of mandamus to direct the respondent No.2 to issue an order of appointment in the cadre of Second Division Assistant in the residual cadre of City Civil Court, Bengaluru, in terms of the endorsement dated 12.03.2021 issued by respondent No.1.

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The petitioner contends that the respondent No.2 entrusted the work of recruiting suitable candidates to the post of Second Division Assistant to the respondent No.1. Respondent No.1 thus, issued a recruitment notification inviting suitable candidates to the post of Second Division Assistant. The petitioner contends that he filed his application as he was eligible in all respects consequent to which, respondent No.1 selected the petitioner on 12.03.2021 and issued an endorsement and intimated the petitioner about his posting at

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City Civil Court, Bengaluru. The petitioner contends that he submitted all his testimonials in original before the respondent No.2, who however, did not intimate him about his selection and posting. The petitioner is therefore, before this Court seeking for a writ in the nature of mandamus to direct the respondent No.2 to issue an order of appointment.

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(i) The writ petition is opposed by the respondent No.2, who has filed a detailed statement of objections inter alia contending that online applications were invited by the respondent No.1 to the cadre of Second Division Assistant. After the petitioner was selected by the respondent No.1 and posted at the respondent No.2, the respondent No.2 initiated process of verification by addressing a letter dated 06.04.2021 to the Superintendent of Police, Kalaburagi to verify the antecedents of the petitioner. Similar communication was addressed to the Deputy Director of Public Instructions, Department of Public Instructions at Kalaburagi on 07.04.2021 for verification of genuineness of the rural certificate submitted by the petitioner. A request was also made to the Minority Welfare Department for verification of caste certificate and income certificate issued by the Tahsildar. It is contended that

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the Superintendent of Police, Kalaburagi, submitted a report on 11.05.2021 to the respondent No.2 stating that the petitioner was involved in Crime No.246/2015 and that a criminal case in C.C.No.384/2018 was registered at Jewargi Police Station for the offences punishable under Sections 143, 341, 447, 504, 506, 120B, 109, 149 of IPC. It was also stated that the petitioner was arrayed as accused No.1 in C.C.No.384/2018 on the file of the Senior Civil Judge and JMFC, Jewargi. It is contended that the petitioner had deliberately withheld the information about the pendency of the criminal cases when he made a declaration in the online application filed by him and answered the question " Is there any criminal case against you?" as " No ". He also made a solemn declaration that there were no criminal cases pending against him. It is contended that the case in C.C.No.384/2018 was registered on 15.12.2018 in respect of an offence that allegedly was committed in the year 2016 much prior to the filing of the application by the petitioner. The respondent No.2 has relied upon Rule 20 of the Karnataka Civil Services (General Recruitment) Rules, 1977, which reads as follows:-

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"20. Misconduct .- A candidate found guilty of impersonation or of submitting fabricated documents or documents which have been tampered with or of making statements which are incorrect or false or of suppressing material information or of using or attempting to use unfair means in an examination conducted for purposes of recruitment or otherwise resorting to any other irregular or improper means in connection with his recruitment may in addition to rendering himself liable to a criminal prosecution and to disciplinary action, be debarred either permanently or for a specified period.-

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(a) by the Commission or other recruiting or examining authority from admission to any examination or appearing for any interview for selection of candidates; and

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(b) by the Government from employment under it."

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(ii) Therefore, it is contended that the candidature of

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the petitioner was deleted and the same was published in the notice by the respondent No.2 and web-hosted on the official website of respondent No.2 on 12.07.2022. It is contended that the petitioner having suppressed the material fact about pendency of the criminal cases was not entitled to be appointed

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and his conduct in suppressing the pendency of the proceedings should result in disqualifying him from being appointed.

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A rejoinder is filed to this statement of objections stating that the petitioner was acquitted in the criminal cases in C.C.No.90/2018 on 07.11.2019, in C.C.No.384/2018 on 26.06.2023 and 'B' report was filed in Crime No.203/2021. The petitioner contends that apart from the above cases, there were no other cases filed against him. Further, he claimed that all these cases were filed by an owner of a neighbouring property and that a civil dispute was pending in O.S.Nos.103/2018 and 104/2018 before the Civil Judge and JMFC, Jewargi. Thus, it is contended that the dispute was essentially civil in nature, which was given a criminal colour by filing a false case.

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(i) The learned counsel for the petitioner while contending that offences alleged against the petitioner were all trivial in nature and therefore, did not come in the way of appointment of the petitioner, relied upon the judgment of the Hon'ble Supreme Court in the case of Avtar Singh vs. Union

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of India and others [(2016) 8 SCC 471] and relied upon the following paragraphs:-

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"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of 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

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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

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such fact later comes to knowledge of employer, any of the following recourse 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

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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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(ii) He therefore, contends that the respondent No.2

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committed an error in making a mountain out of a molehill to deprive the petitioner of employment.

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Per contra, the learned counsel for respondent No.2 contends that respondent No.2 is entitled to know the antecedents of the prospective employees and it is with that intention, a specific column was dedicated in the application as to whether there were any criminal cases pending against the applicant. She submits that the petitioner deliberately stated that there were no criminal cases, though as on that date, there were criminal cases against him. She contends that even in the declaration filed, the petitioner had specifically declared

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that there were no cases. She therefore, contends that in the declaration so filed by the petitioner, he had specifically agreed that in the event, if it is found that the declaration made by him were incorrect or false, his candidature may be rejected and that respondent No.1 will be free to take appropriate disciplinary action. She therefore, contends that the conduct of the petitioner in not disclosing the pendency of the criminal cases itself deprived him the benefit of employment under respondent No.2.

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I have considered the submissions of the learned counsel for the petitioner as well as the learned counsel for the respondent No.2.

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As rightly contended by the learned counsel for respondent No.2, the online application filled in by the petitioner contained a column, where the petitioner was required to disclose whether there were criminal cases against him. The petitioner had consciously declared that there were no criminal cases against him. He had also agreed that if the declaration is found to be false, his candidature may be rejected and the respondent No.1 is free to take any

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appropriate action against him. The fact that this declaration was false, is evident from the rejoinder filed by the petitioner himself, where it is stated that as on the date of filing of the application, there were nearly three cases that were pending against him. The offences alleged against the petitioner were under Sections 323, 324, 504, 506 of IPC, which were slightly grave in nature. Be that as it may, the conduct of the petitioner in not disclosing the pendency of the criminal cases against him itself demonstrates an oblique mindset of the petitioner. As rightly contended by the learned counsel for respondent No.2, under Rule 20 of Karnataka Civil Services (General Recruitment) Rules, 1977, if a candidate is found guilty of making false statement, that should result in debarring him either permanently or for a specified period from admission to any examination or appearing for any interview or for selection.

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9. The Hon'ble Supreme Court in the case of Avtar

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Singh, referred supra, was considering the case of termination of service of an employee due to non-disclosure of pendency of the criminal proceedings against him. The Hon'ble Supreme court in that context, had laid down criteria and had held that if

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the offence alleged is trivial in nature, which does not affect the service condition of an employee, the employer may take notice of special circumstances and also nature of the offence alleged and whether it rendered any incumbent unfit for holding the post. However, in so far as those candidates who had suppressed the material information regarding pendency of criminal cases before entering services, the employer should consider the government order/instructions/rules applicable to the employee at the time of making a decision. If there is deliberate suppression of fact, the employer may pass appropriate order cancelling the candidature or terminating the service as appointment of person against whom multiple criminal cases may not be proper.

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In the instant case, if the petitioner had disclosed the pendency of criminal cases and if respondent No.1 had rejected the candidature of the petitioner, the petitioner would have been on a better ground than not disclosing the pendency of the criminal case. If only the petitioner had disclosed, the respondent No.1 would have taken a conscious decision. This only confounds the conduct of the petitioner in as much as it shows that the petitioner was somehow hell-bent on getting an

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appointment by suppressing material fact. Therefore, the petitioner was rightly not selected by the respondent No.2 and dropped from the select list. Therefore, no indulgence can be shown to the petitioner in this writ petition.

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