Allowed

Kalakar Bentakar v. State of Odisha

Orissa HC21 Oct 2024WP(C)/9858/2021

Case brief

AI extract

What is this about?

The petitioner was selected as a Fireman in 2015 but denied appointment due to alleged suppression of a criminal case (FIR dated 05.12.2014) in his application dated 19.12.2014. The petitioner asserted he had no knowledge of the FIR until his arrest on 10.01.2015, and disclosed the case in the verification roll. The Court found no suppression, as the petitioner disclosed the case at the first oppo

What did the court decide?

Order dated 11.11.2020 set aside; Director General of Police, Fire Service, Home Guards & Civil Defence directed to reconsider petitioner's representation afresh within eight weeks.

Kalakar Bentakar Vs State of Odisha — Service and Employment | Orissa HC (2024)

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ORISSA HIGH COURT: CUTTACK

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W.P.(C)No.9858 of 2021

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In the matter of an Application under Articles 226 and 227 of the Constitution of India, 1950

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Kalakar Bentakar Aged about 23 years Son of Dharama Bentakar Village: Jagalpat, P.S.: Gaisilat District: Bargarh. … Petitioner.

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-VERSUS-

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1. State of Odisha Represented through Commissioner- cum -Secretary Home Department, Odisha Secretariat, Bhubaneswar, District: Khordha.

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2. Director General of Police Fire Service, Home Guards and Civil Defence, Odisha, Cuttack.

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3. Chief Fire Officer, Odisha Cuttack. … Opposite parties.

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Counsel appeared for the parties:

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For the Petitioner : M/s. Gyana Ranjan Sethi and Babita Kumari Pattanaik, Advocates

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For the Opposite Parties : Mrs. Saswata Patnaik,

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Additional Government Advocate

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P R E S E N T:

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HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN

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Dates of Hearing : 26.09.2024 :: Date of Judgment : 21.10.2024

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JUDGMENT

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MURAHARI SRI RAMAN,J.—

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Challenge is laid to the Office Order No.8173/FS, dated 11.11.2020 issued by the Director General of Police, Fire Services, Home Guards & Civil Defence, Odisha, Cuttack-opposite party No.2, wherein and whereby the representation dated 11.03.2020 of the petitioner— selected for the post of Fireman in the year 2015— for allowing him to join in service, being denied, the writ petition invoking extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India has been filed with the following prayer(s):

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“It is therefore humbly prayed that this Hon‟ble Court may graciously be pleased to admit the case, call for the records and after hearing both the parties pass the following reliefs;

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i) To quash the order dated 11.11.2020 under Annexure-5.

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ii) To direct the Opposite Parties to appoint the petitioner as Fireman.

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iii) To direct the Opposite Parties to grant all the financial and consequential benefits flowing from the date of appointment.

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iv) And pass such other order/orders as may be deemed fit and proper for the interest of justice.

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And for this act of kindness, the petitioner as in duty bound shall ever pray.”

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Facts as stated in the writ petition:

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2. Shorn off detailed narration of facts, suffice it to refer to relevant factual matrix as outlined in the pleadings.

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2.1. The petitioner, being selected in the recruitment test and appointed “as temporary Fireman in Odisha Fire Service on contractual basis as per Order of the Government of Odisha vide General Administration Department Order No.32010/Gen., dated 12.11.2013 and 3057/Gen., dated 06.02.2015”, in response to an advertisement bearing dated 12.12.2014 issued by the Directorate General of Fire Services, Home Guards and Civil Defence, Odisha, Cuttack fixing the last date for receipt of application on 12.01.2015 for filling up 934 posts of “Fireman” and 108 posts of “Fireman-Driver”.

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2.2. By Letter dated 19.09.2015 the petitioner was required to report at the Office of the Fire Officer, Southern

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Range, Grand Road near Gita Bhawan, Berhampur by 05.10.2015 along with all original testimonials and admit card for completion of formalities before appointment.

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2.3. After completion of above formality, the petitioner was instructed to fill up Verification Roll, wherein he had to disclose information inter alia “whether he has ever been accused in a criminal case or had ever been in prison” (Serial No.7) and “whether in debt and whether any criminal case or civil suits is pending against him, if so, give details” (Serial No.8). Though the petitioner has stated to have divulged necessary information as required under the Verification Roll, no appointment letter was issued.

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2.4. While the matter stood thus, the criminal case, being C.T. No.134/78 of 2016-19 (arising out of G.R. Case No.656 of 2014 relating to Gaisilat P.S. Case No.83 dated 05.12.2014 and committed to the Court of Sessions by the learned Sub-Divisional Judicial Magistrate, Padampur), got concluded vide judgment dated 14.02.2020 delivered by the Sessions Judge- cum -Judge Special Court, Bargarh with the following conclusions:

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“***

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6. As it appears, the alleged incident had happened between the period from 26.06.2014 and 05.12.2014 while the husband of the complainant was in Tamil Nadu and during the said period, the complainant was subjected to abuse, abuse by written document, sexual harassment, stalking, criminal intimidation, abuse aspersing her caste, etc in the hands of the accused persons However, the above incident is required to be proved by the prosecution through its evidence. All the witnesses except PW3 turned hostile to the prosecution case during trial and they were put leading question by the learned Special Public Prosecutor under Section 154 of the Evidence Act, but nothing material could be elicited from them to substantiate the allegations made against the accused persons in the F.I.R. The complainant stood examined as PW2 and she deposed that some unknown persons passed filthy comments at her and also exhibited obscene language in her name and the accused persons are no way involved in the alleged offences PW.2 proved her signature found in the FIR as Ext. 1. The defence declined to cross-examine her. PW2 did not depose the fact in her evidence that she has alleged in her F.I.R. Whether the accused persons committed the aforementioned overt acts is conspicuously absent. Whether anyone else was present at the spot or otherwise is not forthcoming from the evidence of PW2. It is not clear why PW2 did not prove the facts alleged in the F.I.R. ie. Ext.1. The other witness does not support the prosecution story for the reasons best known to them.

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From the above evidence of the prosecution witnesses, it seems that they to have settled the dispute out of the Court otherwise they would not have deposed in the manner, as described above In absence of any such evidence especially from the side of the prosecution, the Court does not find any material against the accused persons for they to have committed any such overt acts against the complainant. As stated before, the parties might have entered into a compromise or settled the dispute out of the Court which is apparent from the very evidence that of PW2. At the cost of repetition, it is held that the Court does not find any such incriminating materials proved and established by prosecution in order to fix the culpability against the accused persons for the alleged occurrence. In other words, the Court holds that prosecution can fairly be said to have miserably failed to prove its case against the accused persons for the incident.

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7. Hence, it is ordered.

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8. In the result, the accused persons are found not guilty for commission of offences punishable under Sections(s) 294, 292-A, 354-A, 354-D, 506 and 509 read with 34 of the Indian Penal Code and Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and as a consequence, they are acquitted under Section 235(1) Cr.P.C. The accused persons may be set at liberty forthwith. The bail bonds executed by the accused persons are hereby stand cancelled.

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The judgment is dictated, corrected by me and pronounced in the open Court today, this the 14^th day of February, 2020, given under my hand and the seal of the Court.”

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2.5. Upon being acquitted in the criminal case, the petitioner submitted a representation dated 11.03.2020 to opposite party No.2 with a request to allow him to join in service in terms of Letter No.1995/ROSR, dated 19.09.2015. The said representation came to be disposed of by the Director General of Police, Fire Service, Home Guards and Civil Defence, Odisha, Cuttack-opposite party No.2 vide Order No.8173/FS dated 11.11.2020 (Annexure-5) negating appointment on the ground of “withholding or suppression of correct information to the appointing authority” while furnishing application for recruitment in the post of Fireman.

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2.6. Dissatisfied thereby, with a prayer to wield power of writ of certiorari to quash said Order dated 11.11.2020 of the opposite party No.2 (herein infra referred to as “impugned order”), by way of this writ petition the petitioner craves for issue of writ of mandamus to the opposite parties to appoint him in the post of Fireman granting all financial and consequential benefits.

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Rival contentions and submissions:

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3. Smt. Babita Kumari Pattanaik, learned counsel appearing for the petitioner, placing the factual details of the matter, submitted that on being found successful in the test conducted for the post of Fireman in terms of the Odisha Fire Service (Method of Recruitment of Firemen) Order, 2006, at the time of verification of the original testimonials and the admit card for completion of formalities before appointment as “temporary Fireman on contractual basis” in the Odisha Fire Service, the petitioner in Verification Roll at serial Nos.7 & 8 furnished following information:

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7. Whether applicant‟s has over Case pending been accused in a criminal at: Gaisilat, case or has ever been in P.S.: Gaisilat, prison, if so, give details. District: Bargarh.

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8. Whether in debt and whether Case pending any criminal case or civil at: Gaisilat, suits is pending against him, P.S.: Gaisilat, if so, give details. District: Bargarh.

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3.1. She contended that in order to verify the veracity of such information contained in Verification Roll the Fire Officer, Southern Range, Berhampur on 04.10.2015, which is apparent from Annexure-E/3 enclosed to the counter affidavit of the opposite parties, forwarded to IIC, Gaisilat Police Station. She, therefore, asserted that the petitioner has never

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concealed any material fact before the Appointing Authority.

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3.2. Ms. Babita Kumari Pattanaik, learned Advocate made valiant submission refuting the fact pleaded by the opposite parties in the counter affidavit at paragraph18 that “prior to his date of application a criminal case was registered against the petitioner and he was well aware about that”. It is contended that such a statement is based on no evidence on record and argued that by way of rejoinder affidavit, it has been furnished to this Court that lodging of First Information Report on 05.12.2014 in the Gaisilat Police Station was not within the knowledge of the petitioner on 19.12.2014, i.e ., the date on which he fill up the application form for recruitment to the post of Fireman in response to Advertisement dated 12.12.2014.

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3.3. With strong affirmation of the petitioner, Ms. Babita Kumari Pattanaik, learned Advocate urged that no fact has ever been suppressed from the Appointing Authority inasmuch as on the date of filling up details of information sought for in the Verification Roll at Serial Nos.7 & 8, he was fair enough to disclose details regarding criminal case. She made fervent request by submitting that the impugned order does warrant

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interference of this Court as it lacks application of conscientious mind of the Authority concerned.

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4. Per contra, Smt. Saswata Patnaik, learned Additional Government Advocate appearing for the opposite parties submitted that the character of the petitioner cannot be treated as “clean”, as he was entangled in criminal case even prior to date of advertisement. Due to paucity of evidence and failure of prosecution the criminal trial ended in acquittal of the petitioner, but the grave allegations against the petitioner are tell-tale to judge his conduct. Withholding of such vital fact in the application form seeking recruitment for the post of Fireman speaks volumes about the conduct/ character of the petitioner. Thus, the opposite party No.2 having taken just decision in refusing to grant appointment to the petitioner, the impugned order needs no indulgence.

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4.1. Smt. Saswata Patnaik, learned Additional Government Advocate has taken this Court to the following portion of the application form filled in by the petitioner to buttress her argument that the petitioner has suppressed material fact:

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19. If the candidate is involved in Not necessary/ any criminal case or convicted, Not applicable then details be furnished:

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4.2. The learned Additional Government Advocate, thus, submitted that aforesaid details as furnished by the petitioner misled the Appointing Authority at the time of selecting the candidate for the post of Fireman, but it is at the stage of verification of original testimonials before appointment, fact of his involvement in criminal case surfaced from the Verification Roll, which was asked to be submitted. Upon requisition, for verification of character and antecedents of the petitioner, IIC, Gaisilat submitted his report eliciting the actual position.

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4.3. She then submitted that in pursuance of the notice issued by this Court vide order dated 23.03.2021, opposite party Nos.1 to 3 filed counter affidavit sworn to by the Chief Fire Officer, Odisha, Cuttack affirming the following factual details:

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“8. That, during fill up of verification roll form the petitioner cleverly and in a pre-plan manner mentioned at Sl. No.8 that, a criminal case is pending against him at Gaisilat Police Station, District: Bargarh. The petitioner was well aware that Verification Roll must be sent to retrospective local police stations of the selected candidates to trace out the truth of his character and antecedents. Accordingly, the Verification Roll of the petitioner was sent to Gaisilat Police Station and the Verification Report came out that, the petitioner (i.e., Kalakar Bentakar)

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was involved in Gaisilat Police Station Case No.83, dated 05.12.2014. So, on receipt of adverse character and antecedent report of the petitioner, appointment letter was not issued in his favour.

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9. It is crystal clear from the Verification Report of IIC, Gaisilat Police Station that, a criminal case was registered against the petitioner with effect from 05.12.2014, i.e., prior to the date of advertisement for the post of Fireman and Fireman-Driver. But, the petitioner knowingly suppressed the truth and falsely mentioned at Sl. No.19 of his application form that, he was not involving in any criminal case, which is tale illegal, ex facie and unacceptable in the eye of law.

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That, the petitioner was well aware about the terms and conditions of recruitment resolution and advertisement. But he deliberately filled up the application form by suppressing the truth by which alluded the possibility of his form being rejected during recruitment process as per Rule 5(1)(f) of Odisha Fire Service (Method of Recruitment of Firemen) Order, 2006 , which is as quoted below:

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“a candidate to be eligible for consideration must be of good moral character”.

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In view of the above fact when the truth came to light, the candidature of the petitioner was cancelled in adherence to Rule 10.(3) and 15.(1) of the Odisha Fire Service (Method of Recruitment of

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Firemen) Order, 2006 and no appointment letter was issued in his favour which reads, „candidature shall be cancelled, if in the opinion of Selection Board he is found ineligible for consideration under the eligibility criteria prescribed in this order‟.”

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4.4. It has been strenuously urged by the learned Additional Government Advocate that albeit “the petitioner admitted at paragraph 10 of the writ petition that he was arrested by the police due to involvement in Gaisilat Police Station Case No.83, dated 05.12.2014”, in order to hoodwink the Appointing Authority, he could submit a conduct/character certificate dated 27.09.2015 issued under the seal and the signature of Sarpanch, Jagalpat, Grama Panchayat. Since such a certificate of Sarpanch goes to indicate that such a document was placed only to misguide the Appointing Authority.

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4.5. Raising serious objection to the contentions and averments contained in the writ petition, the learned Additional Government Advocate argued that it is a carefully crafted facade meant to distract the attention of the Appointing Authority from the reality of what transpired, for which the writ petitioner deserves no leniency, for he could not demonstrate that his

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approach was with clean hands, clear heart and indubitable mind.

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5. Ms. Babita Kumari Pattanaik, learned Advocate refuting such allegation submitted that the learned Additional Standing Counsel by way of adding further reason(s) other than what had already been reflected in the impugned order while refusing to consider the claim of the petitioner cannot improve to fortify the case of the opposite parties.

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5.1. Taking strong exception against the arguments advanced by the learned Additional Government Advocate, it is contended by learned counsel for the petitioner that no statement has been made on behalf of the opposite parties to demonstrate that prior to arrest, the petitioner was never made known about registration of the first information report. No iota of evidence is made available on record by the opposite parties to suggest that the petitioner on the date of furnishing application for recruitment for the post of Fireman, i.e., 19.12.2014, the petitioner was within his knowledge that he was arraigned as “accused” in any criminal case. Rather the opposite parties failed to substantiate the allegations before the Sessions Judge- cum- Special Court, Bargarh.

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5.2. The opposite party No.2 did not notify the petitioner or provide an opportunity for him to express his views; therefore, presenting a new reason, other than the reason for rejecting his candidature in the impugned order seems unreasonable. It is apparent from the Verification Roll that the opposite parties sprung into action upon disclosure made therein by the petitioner with respect to his involvement in criminal case, and referred the matter to IIC, Gaisilat Police Station by the Fire Officer, Southern Range, Berhampur, pursuant to which said IIC confirmed about fact of such criminal case. It is contended by the learned counsel for the petitioner that the allegation of the opposite parties that there was suppression of material fact is liable to be dispelled.

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6. It is thus conceded by Smt. Saswata Patnaik, learned Additional Government Advocate to wind up her argument that the issue at hand is the potential lack of transparency about disclosure on the part of the petitioner with respect to criminal history in submitting the application for appointment to the position of Fireman, but it is not the acquittal in criminal case which posed hurdle in considering the appointment of the petitioner in the said position.

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Hearing:

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7. As the pleadings are completed and the issue involved in the present matter hinges on sole point whether on the date of making application for recruitment to the post of Fireman, it was within the knowledge of the petitioner that he was arraigned in the criminal case so as to disqualify him from getting appointed, on consent of counsel for both the sides this matter is taken up for final hearing at the stage of admission.

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7.1. Heard Ms. Babita Kumari Pattanaik, learned Advocate for the petitioner and Smt. Saswata Patnaik, learned Additional Standing Counsel for the opposite parties.

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Summary and Conclusion with direction(s):

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8. This Court on diligent consideration of rival contentions and submissions of learned counsel for the respective parties could cull out that the petitioner has participated in the recruitment process in response to advertisement dated 12.12.2014 by making an application for the post of Fireman on 19.12.2014. Based on allegation of PW2 (Gitanjali Bentakar, wife of Mahadev Bentakar) an FIR under Sections 294, 292A, 354A, 354D, 506 and 509 read with Section 34 of the Indian Penal Code, 1860 and Section 13(1)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, appears to have been registered in the Gaisilat Police

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Station on 05.12.2014, pursuant to which the petitioner was arrested on 10.01.2015. It is affirmatively stated by the petitioner that on the date of making aforesaid application it was not within his knowledge with regard to his involvement in any criminal case, nevertheless, “for the first time it came to his notice on 10.01.2015 when he was arrested by the police in connection with the aforesaid criminal case”. Such assertion of fact by the petitioner could not be rebutted by the opposite parties by furnishing any unimpeachable document. Nonetheless, it is observation of the learned trial Court in the criminal case that the informant “PW2 proved her signature found in FIR as Ext. 1. The defence declined to crossexamine her. PW2 did not depose the fact in her evidence that she has alleged in her FIR. Whether the accused persons committed the aforementioned overt acts is conspicuously absent. Whether anyone else was present at the spot or otherwise is not forthcoming from the evidence of PW2. It is not clear why PW2 did not prove the facts alleged in the FIR, i.e., Ext.1.” The learned Sessions Judge- cum- Special Court, Bargarh in the judgment dated 14.02.2020 acquitted the petitioner as the prosecution failed to prove the allegations against the petitioner. Thus it is ex facie on the record that on the date of making

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application for recruitment to the post of Fireman on 19.12.2014 it was not within the knowledge of the petitioner that he was arraigned in a criminal case. None of the documents enclosed to counter affidavit by the opposite parties does evince that such a fact of his involvement in criminal case was ever brought to the notice of the petitioner prior to date of furnishing application for the position. As it seems, the Director General of Police, Fire Service, Home Guards and Civil Defence while discussing the merit of the matter in the impugned order failed to appreciate that before the date of arrest, i.e., 10.01.2015 the fact of his being implicated as “accused” in any criminal case could not have been disclosed in the application stated to have been filed on 19.12.2014.

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8.1. In the rejoinder affidavit the petitioner has sought to clarify the position as under:

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“***

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3. That, it is humbly submitted that in response to advertisement under Annexure-1, the petitioner applied for the post of Fireman on 16.12.2014 (sic., 19.12.2014) in the prescribed form. The Column 19 of the format speaks that if the candidate is involved in any criminal case then the details to furnished. In the said column the petitioner mentioned not applicable. It is profitable to mention here that FIR was lodged against the

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petitioner by one Gitanjali Bentakar on 05.12.2014. At the time of filling up form it was not within the knowledge of petitioner any criminal case is pending against him, accordingly he mentioned in Column 19 “not applicable”. For the first time it came to the notice on 10.01.2015 when he was arrested by the Police in connection with the said criminal case. Hence the ground taken by the opposite parties the petitioner has suppressed the material facts while filling the Column of the form does not arise. ***”

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8.2. Only disqualification as is manifest from the impugned order is that the petitioner-applicant, while being involved in a criminal case on 05.12.2014 vide Gaisilat P.S. Case No.83, withheld the correct information by mentioning “not applicable”. It transpires from said order that “The non-acceptance of his joining and rejection of his candidature is a legitimate step by the Appointing Authority.”

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8.3. On perusal of record and the material particulars as reflected herein above make it abundantly clear that the petitioner disclosed such fact at the first opportune time, i.e., at the stage of verification of the original documents and the admit card, which were produced in compliance of direction contained in Letter No.1995/ROSR, dated 19.09.2015 (AnnexureD/3) issued by the Fire Officer, Southern Range,

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Berhampur “for completion of formalities before appointment” on being “provisionally selected for appointment as temporary Fireman in Odisha Fire Service on contractual basis as per Order of Government of Odisha vide General Administration Department Order No.32010/Gen., dated 12.11.2013 and 3057/Gen., 06.02.2015”. Although the petitioner, having divulged necessary information with regard to criminal case in the Verification Roll to the Appointing Authority, yet the Fire Officer, Southern Range forwarded it to the IIC, Gaisilat Police Station for verification of veracity of such information. On confirmation of fact by said IIC, Gaisilat, the Appointing Authority withheld the appointment letter.

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8.4. Faced with aforementioned situation, it is but held that the reason ascribed by the Director General of Police, Fire Service, Home Guards and Civil Defence, Odisha, Cuttack that “The applicant has submitted copy of acquittal judgment in the said case with a request to accept him in the post of Fireman for which otherwise qualified. The fact in issue here is not acquittal of the applicant in the criminal trial, rather it is withholding or suppression of correct information to the Appointing Authority” would not withstand judicial scrutiny. Therefore, it can safely be said that the petitioner had appropriately disclosed the factual

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position with regard to criminal case in the application dated 19.12.2014, as stated to have been made, copy of which is available at Annexure-A/3 to the counter affidavit. He made it known to the Appointing Authority at the time of verification of original documents by stating the true information in the Verification Roll; since as on that date of filling up of Verification Roll, it could come to his knowledge that he was made “accused” in the criminal case. This Court finds that there was no suppression of material fact on the date of making application, i.e., 19.12.2014.

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8.5. Learned Additional Government Advocate referred to Rule 5 of the Odisha Fire Service (Method of Recruitment of Firemen) Order, 2006, promulgated pending regular Recruitment Rules under Article 309 of the Constitution of India in exercise of powers conferred by Section 26 of the Odisha Fire Service Act, 1991 (Odisha Act 30 of 1993) providing for “Eligibility”, which stipulates as follows:

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“5. Eligibility.—

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5.1 A candidate, to be eligible for consideration, must—

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(a) to (e) ***

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(f) be of good moral character;

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(g) ***”

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8.6. Rule 10 of aforesaid Order, 2006, dealing with “Advertisement of vacancies for recruitment and inviting of applications”, prescribes that:

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“10.3 Candidature shall be cancelled, if in the opinion of Selection Board he is found ineligible for consideration under the eligibility criteria prescribed in this Order.”

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8.7. Rule 15 of said Order, 2006, dealing with “Appointment”, requires that,

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“15.1 All the certificates, like of High School, caste, class, sports achievements, Home Guards, Ex-servicemen status in respect of the selected candidates, shall as far as feasible, be got verified by the Director General of Police and Director, Fire Service by contacting the authorities who may have issued them, before appointment orders are issued to individual successful candidates. Similarly, their character and antecedents shall be verified and medical fitness be got certified before issuing the appointment letters.”

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8.8. The learned Additional Government Advocate would submit that the conduct/character certificate issued by the Sarpanch of the Gaisilat Gram Panchayat could not have been taken into consideration on its face value as the petitioner was alleged to have been involved in criminal case and he had criminal antecedent.

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8.9. At this stage this Court finds force in the submission of Ms. Babita Kumari Pattanaik, learned Advocate that mere allegation contained in an FIR cannot be factor for judging conduct and character of a person. It is apparent from the copy of Admit Card enclosed at Annexure-B/3 to the counter affidavit that the recruitment test for the post of Fireman was conducted in consequence of Advertisement dated 12.12.2014. As has already been discussed in the foregoing paragraphs that the petitioner-applicant had no knowledge of being arrayed as “accused” in a criminal case on the date of making application, i.e., 19.12.2014 (Annexure-A/3 to the counter affidavit), clichés that by the date of publication of Advertisement inviting applications for recruitment to the post of Fireman/Fireman-Driver or even on the date of making the application dated 19.12.2014, no criminal antecedent was available with the Gram Panchayat. The fact of FIR being lodged against the petitioner on 05.12.2014 came to the knowledge of the petitioner on 10.01.2015, i.e., the date of his arrest.

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8.10. To countenance the result of the Order dated 11.11.2020 of the Director General of Police, Fire Service, Home Guards and Civil Defence, Odisha, Cuttack, Smt. Saswata Patnaik, learned Additional Government Advocate vehemently opposed the

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arguments of Ms. Babita Kumari Pattanaik, learned Advocate by submitting that the certification with respect to conduct/character of the petitioner by the Sarpanch of Jagalpat Gram Panchayat would lead to construe that “the petitioner at each and every stage of recruitment process had tried to hide” the true information.

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8.11. It is refuted by the learned counsel appearing for the petitioner that the opposite parties cannot supplant the impugned order with new ground and it is unfair for them to abrogate responsibility to stand by reason ascribed in the impugned order while taking the decision. Explaining further, Ms. Babita Kumari Pattanaik, learned Advocate submitted that the impugned order, while denying to issue appointment letter in favour of the petitioner stemmed on the ground that suppression of material fact while filling up the application form for recruitment to the post of Fireman. In this respect she reminded this Court of the oft-referred dicta laid in Mohinder Singh Gill Vrs. The Chief Election Commissioner, (1978) 2 SCR 272, wherein it has been stated as follows:

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“The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh

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reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out.

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We may here draw attention to the observations of Bose J. in Commissioner of Police Vrs. Gordhandas Bhanji, (1952) 1 SCR 135:

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„Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do.

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Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.‟

¶153

Orders are not like old wine becoming better as they grow older:***”

¶154

8.12. The Hon’ble Supreme Court of India in R.S. Garg Vrs. State of U.P., (2006) 6 SCC 430 , stated:

¶155

“A discretionary power as is well known cannot be exercised in an arbitrary manner. It is necessary to emphasize that the State did not proceed on the basis that the amendment to the Rules was not necessary. The action of a statutory authority, as is well known, must be judged on the basis of the norms set up by it and on the basis of the reasons assigned therefor. The

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same cannot be supplemented by fresh reasons in the shape of affidavit or otherwise.”

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8.13. For better appreciation of the reason led to taking a decision and conclusion arrived at to reject the representation of the petitioner, relevant portion of the impugned Order dated 11.11.2020 passed by the Director General of Police, Fire Service, Home Guards and Civil Defence, Odisha, Cuttack-opposite party No.2 is quoted hereunder:

¶160

“*** Now, the question is whether involvement in a criminal case bars an applicant from selection and appointment to the advertised post or whether it is withholding of information that disqualifies an applicant for appointment to the post applied for.

¶161

The application form prescribed for the purpose has a self declaration column at the bottom which states that if any information is proved to be incorrect or not true, the candidature of the applicant would be rejected. As mentioned earlier, an applicant under Column 19 is required to give out information about his involvement in any criminal case. In the instant case, the applicant, while involved in a criminal case on 05.12.2014 vide Gaisilet Police Station Case No.83, withheld the correct information by mentioning “not applicable”. The non-acceptance of his joining and rejection of his candidature is a legitimate step by the appointing authority.

¶162

The applicant has submitted copy of the acquittal judgment in the said case with a request to accept him

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in the post of Fireman for which he otherwise qualified. The fact in issue here is not acquittal of the applicant in the criminal trial, rather it is withholding or suppression of correct information to the appointing authority. Therefore, the acquittal of the applicant at this belated stage does not entitle him to the post.

¶166

I find no merit in the application and therefore reject the prayers.”

¶167

8.14. The reason for rejection of representation of the petitioner has been explicated in the subject-order dated 11.11.2020. Analysis of material made available to this court, which forms part of the writ petition and the counter affidavit, reveals that in the criminal trial the informant, who was PW2, did not choose to “depose the fact in her evidence that she had alleged in her FIR” and the accused (petitioner) was found not involved in the alleged offences. What is ignored in the impugned order is the date of knowledge of the petitioner with respect to involvement in the criminal case on the date of filing of application. It is trite that an affidavit cannot be relied on to improve or supplement an order. Hence, basing on the well settled law that the grounds for rejection cannot be enlarged by way of a counter affidavit or an oral argument, further reason by way of counter affidavit with respect

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to certification of the Sarpanch of Gaisilat Gram Panchayat as added in the counter affidavit is rejected.

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8.15. With respect to incorrect information furnished to the Appointing Authority, the learned Additional Government Advocate relied on the decision rendered by the Hon’ble Supreme Court of India in the case of State of Odisha Vrs. Gobinda Behera, (2020) 3 SCR 643, wherein it has been held as follows:

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“7. The respondent was seeking public employment in the State police service. His duties, on appointment to the service, would be of a responsible character, bearing intrinsically on the maintenance of law and order and with consequences for personal liberty of citizens. To expect that an applicant for such a position would be truthful in the disclosure of information sought about the antecedents is a justifiable basis for assessment of personality and character. The employer can legitimately conclude that a person who has suppressed material facts does not deserve to be in its employment. ”

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8.16. There is no cavil against the proposition of law enunciated. True it is, it is the employer who on the ground of suppression of material fact can restrain itself from granting employment to successful candidate and reject the candidature. But in the present fact-situation, there was no non-disclosure of information to the Authority concerned by the

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petitioner with respect to involvement in the criminal case. The criminal proceeding also got culminated in acquittal on the fact that the PW2 did not even deposed before the trial Court coupled with the prosecution failed to substantiate the allegations.

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8.17. This Court going through the aforesaid judgment in Gobinda Behera (supra) finds the following facts reflected at paragraphs 4 and 5:

¶178

“4. The respondent applied for appointment to the post of a Constable in Odisha State Police in the 6th IR Battalion, Khurda on 29.10.2011 . In response to a query, the respondent specifically stated in his application that he was not involved in any criminal case. He was appointed on 14.12.2011. A verification roll was provided to him, which was to be filled up in terms of Rule 673 of the Orissa Police Rules. On 22.05.2012, the Superintendent of Police, Puri, informed the Commandant that during the course of the verification of the character and antecedents of the respondent, it was found that he was involved in Balanga PS Case No. 46 of 2009 under Sections 294/323/324/326/336/337/427/379/ 506/34 of the Penal Code, 1860 (“IPC”). On 06.07.2012, the respondent was called upon to explain why he had submitted a false statement in the verification roll and in the application for appointment to the post of Constable. The respondent was discharged from

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service on 26.07.2012, upon which he filed a proceeding before the Odisha Administrative Tribunal (“the Tribunal”). The Tribunal rejected the Original Application (“OA”) on the ground that the respondent had furnished a false declaration. This decision of the Tribunal was reversed by the High Court, by its impugned judgment. The High Court did so on the basis of a judgment of this Court in Avtar Singh Vrs. Union of India, (2016) 8 SCC 471. The High Court held that the Tribunal had not taken note of the fact that the criminal proceeding had already been quashed and that the suppression in the circumstances was of a technical and trivial nature. The authorities were directed to consider the case of the respondent for reinstatement in his former post and to grant consequential service and financial benefits.

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5. Upon hearing the learned counsel appearing on behalf of the appellant and the respondent, the factual position, which has emerged before the Court, is that the first information report in the criminal case was lodged on 16.06.2009. The respondent surrendered before JMFC on 03.08.2009 and was released on bail in view of an order dated 28.07.2009 which had been passed by the High Court in Sankara Behera Vrs. State, Bail Application No. 10246 of 2009, order dated 28.07.2009 (Ori). The respondent applied for the post of a Constable, thereafter, on 29.10.2011 and was appointed on 14.12.2011. The respondent moved the High Court under Section 482 of the Code of Criminal Procedure1973 (“CrPC”) for quashing the criminal

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proceedings. The High Court, by its order dated 22.11.2013 [Gandhia Vrs. State, CRLMC No. 2104 of 2012, order dated 22.11.2013 (Ori)], quashed the criminal proceedings on the basis of a compromise between the parties. This was after the order service on of discharge from 26.07.2012.”

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8.18. The factual narration contained in Gobinda Behera (supra) reveals that much prior to application for recruitment is made, it was within the knowledge of Gobinda Behera (respondent in the judgment) that criminal case had already been foisted against him. However, in the instant case, whereas first information report is stated to be registered on 05.12.2014 and in response to Advertisement dated 12.12.2014, the petitioner made application on 19.12.2014. Pertinent here to take cognizance of the fact that in the present case, the IIC of Gaisilat Police Station submitted report to the Appointing Authority on enquiry upon information being furnished by the petitioner himself in the Verification Roll. The matter could have been otherwise had the pendency of the criminal case against the petitioner been noticed by the Appointing Authority before disclosure of such fact in the Verification Roll. Therefore, the conduct of the petitioner cannot be faulted with.

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8.19. The aforesaid judgment of the Hon’ble Supreme Court of India in Gobinda Behera (supra) factually distinguishable. In Union of India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1, it has been succinctly laid down as follows:

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“Before examining the first limb of the question, formulated above, it would be instructive to note, as a preface, the well settled principle of law in the matter of applying precedents that the Court should not place reliance on decisions without discussing as to how the fact situation of the case before it fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid‟s theorems nor as provisions of Statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Disposal of cases by blindly placing reliance on a decision is not proper because one additional or different fact may make a world of difference between conclusions in two cases.”

¶191

8.20. It is the case of the opposite parties that even though the petitioner had knowledge about the criminal case on the date of application, he suppressed the material fact from the Appointing Authority. Such a perception of the opposite parties is falsified by perusal of information divulged in the Verification Roll, pursuant to which the IIC, Gaisilat Police Station, Bargarh (Annexure-E/3 to the counter affidavit) conducted inquiry and affirmed the fact filled in by the petitioner

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to be true. Information as furnished by the petitioner at Serial Nos.7 and 8 of the Verification Roll is post 10.01.2015 (date of arrest of the petitioner). There was clear disclosure of material fact. Thus the weight of evidence that weighed the opposite party No.2 to come to conclusion that there was suppression of material fact, as reflected in the impugned Order dated 11.11.2020, is manifestly on erroneous appreciation of material on record.

¶195

8.21. There being no contradictory material placed by the opposite parties to believe that the petitioner knowingly furnished incorrect statement of fact with respect to his involvement in the criminal case on the date of application, i.e., 19.12.2014. This Court finds the statement of the petitioner to be correct and supported by clinching documentary evidence on record.

¶196

9. The next plank of argument of Ms. Babita Kumari Pattanaik, learned Advocate is that the authorityopposite party No.2 ought to have considered the relevant dates to ascertain suppression of fact or otherwise. To make out a case in favour of the petitioner she placed reliance on State of West Bengal Vrs. Mitul Kumar Jana, 2023 INSC 754 = (2023) 11 SCR 613 and Ravindra Kumar Vs. State of U.P., 2024 INSC

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131 = (2024) 2 SCR 722 and submitted that the petitioner, being entitled to be appointed in the post of Fireman, on fair consideration the opposite party No.2 should have exercised judicious discretion.

¶200

9.1. The Hon’ble Supreme Court in Mitul Kumar Jana (supra) observed as follows:

¶201

“***

¶202

2. Succinctly stated, facts of this case are that the respondent appeared before appellant No.2Superintendent of Police, South 24 Parganas, for measurement, physical efficiency test and for interview on 06.09.2008, 09.09.2008 and 10.09.2008 respectively. He was declared fit in the said selection, and placed in the merit list of the constables in the West Bengal Police Force. Pursuant thereto, respondent was supplied with the „Police Verification Roll‟ and asked to fill-up the same in his own handwriting. He deposited the same with the appointing authority within the time schedule. As per the police verification report sent by the local Police Station, it was alleged that the respondent was implicated in a criminal case bearing Case No. 124 of 2007, dated 03.08.2007, registered at Kakdwip Police Station. After investigation, charge-sheet was filed on 31.08.2007, whereafter, the trial was pending at the time of his interview and physical test. The police report further indicated that the respondent was granted

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anticipatory bail on 16.08.2007 and regular bail on 27.08.2007.

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3. Upon scrutinizing the said verification form, the authority formed an opinion that the respondent had suppressed material information regarding his involvement in a pending criminal case. The verification roll submitted by the respondent was sent to the Intelligence Branch, West Bengal for opinion. Vide Memo No. 3875/S-503-08/S.A.-II/VR, dated 09.02.2009, the Deputy Inspector General of Police, Intelligence Branch had informed that the respondent has supressed the fact of his involvement in a criminal case and as the case against the respondent is sub-judice, no opinion for his suitability could be given at this stage. In the given facts, order of appointment was not issued by the appellant. However, the respondent filed Original Application No. 343 of 2010 before the Tribunal seeking directions to issue the letter of appointment on account of his selection for the post of constable in the West Bengal Police Force. The Authorities filed their reply and contended that the respondent was involved in a criminal case and despite having knowledge of the same, he had not disclosed the same in the verification roll and suppressed the information about the pending criminal case, hence, he is not suitable for the appointment.

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***

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10. Bare perusal of the details of the information sought in the above column indicates that, it

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was regarding arrest, detention and conviction by a Court in any offence. In case the answer was „yes‟, then full particulars of the arrest or detention or conviction and sentence were required to be furnished. In case the answer was in the negative, no other particulars were required to be furnished. In the case on hand, in reply to the information asked the respondent gave the answer as “no”. As per the contents of the information sought and as per the answer given by the respondent, he is not required to furnish information regarding pending criminal case. Therefore, supply of such information by the respondent does not fall within the expression „suppression of material information‟. This Court had an occasion to deal with the similar issue in the case of Secretary, Department of Home, Andhra Pradesh Vrs. B. Chinnam Naidu (2005) 1 SCR 1147 = 2005 INSC 69 = (2005) 2 SCC 746. The relevant paragraph of the said judgment is reproduced herein below:

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„9. *** The State Government and the Tribunal appeared to have proceeded on the basis that the respondent ought to have indicated the fact of arrest or pendency of the case, though column 12 of the attestation form did not require such information being furnished. The learned counsel for the appellants submitted that such a requirement has to be read into an attestation form. We find no reason to accept such contention. There was no specific requirement to mention as to

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whether any case is pending or whether the applicant had been arrested. In view of the specific language so far as column 12 is concerned the respondent cannot be found guilty of any suppression.‟

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11. In the above case, the Court has distinguished the judgment of Kendriya Vidyalaya Sangathan Vrs. Ram Ratan Yadav, (2003) 3 SCC 437, on the pretext that the details of information sought in the verification roll in said case was different. In the facts of the present case, the information sought from the respondent in the verification form was vague. Similar was the position in the case of Chinnam Naidu (supra). Therefore, the said judgment squarely applies in the facts of this case. Though in the said case, finding regarding desirability for appointment of a person in Government service was not decided because it was not the subject matter.

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12. In view of the discussion made herein above, the opinion given by the Deputy Inspector General of Police, Intelligence Branch, and the stand taken by the Department before the Tribunal and the High Court regarding suppression of material information by the respondent cannot be countenanced. The Tribunal and the High Court have rightly recorded the finding that it is not a case of suppression of material information and we affirm such finding. Simultaneously, the criminal case registered against the respondent were for petty offences. The allegations in the said case were neither of heinous/serious offences, nor

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related to an offence involving moral turpitude. In the said case, the respondent was honourably acquitted because the prosecution had miserably failed to prove the charges. Hence, in our view, prima facie there appears no impediment to issue the order of appointment in favour of the respondent.

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***

¶221

14. As per the said case [Avtar Singh Vs. Union of India and Others, (2016) 8 SCC 471], para 38.10 comes to the aid of the respondent, because in this case, the information sought in verification roll was not specific and vague in nature. The respondent has specifically disclosed the information which was required to be furnished. Considering the subsequent development of the clean acquittal of respondent for the petty offences, it requires consideration objectively by the authority, about the question of fitness, ignoring the issue of supressing the information. Even in case where the information regarding pending criminal case is truthfully furnished and on acquittal therein, an employer has the discretion to consider the antecedents while issuing the letter of appointment. The High Court could not have directed the issuance of the letter of appointment as per para 38.5 of the case of Avtar Singh (supra). In our view, the issuance of order of appointment is required to be left on the discretion of the employer and the High Court ought not to have taken

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away the said discretion. Accordingly, we modify the order passed by the High Court.

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15. In view of the discussion made herein above, we confirm the findings of the Tribunal and the High Court on the issue of suppression of material information. As the respondent was not involved in heinous/serious offence or any offence involving moral turpitude, and the fact that in the said criminal case he has been honourably acquitted, therefore, modifying the order of the High Court, we direct the appellant to consider the case of the respondent and issue order of appointment to the post of constable in West Bengal Police Force within a period of four weeks from the date of passing of this order. Needless to observe that the authorities shall take note of the discussion made herein above and shall exercise their discretion judiciously in assessing the suitability and antecedents of the prospective candidate. It is made further clear that in the event of issuance of the order of appointment, the respondent would only be entitled to notional benefits including continuity in service and pay fixation at par with other similarly situated persons and he would not be entitled for salary and back wages till the date of his appointment.”

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9.2. The Hon’ble Supreme Court in the case of Ravindra Kumar (supra) observed as follows:

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“ 1 . The vexed question is back again. Is it a hard-and-fast and a cut-and-dried rule that,

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in all circumstances, non-disclosure of a criminal case (in which the candidate is acquitted) in the verification form is fatal for the candidate's employment? We think not and it ought not to be so too. Fortunately, we have a judicial chorus supporting our view. Each case will turn on the special facts and circumstances. We have endeavoured to analyse the applicable precedents and have followed those line of cases, which have a striking similarity to the facts at hand.

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***

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17. In the above background, the questions that arise for consideration are:

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i. Was the State justified in cancelling the selection of the appellant, vide its order of 12.04.2005?

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ii. To what relief, if any, is the appellant entitled to?

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***

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20. The law on this issue is settled by a three-Judge Bench of this Court in Avtar Singh Vrs. Union of India, (2016) 7 SCR 445 = (2016) 8 SCC 471. Paras 34, 35, 36 and 38, which sets out the conclusions, are extracted hereinbelow:

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„34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should

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be based upon objective criteria on due consideration of all relevant aspects.

¶241

35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases.

¶242

36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.

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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 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

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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.

¶257

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

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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 order

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necessary before passing 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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21. As would be clear from Avtar Singh (supra) , it has been clearly laid down that though a person who has suppressed the material information cannot claim unfettered right for appointment, he or she has a right not to be dealt with arbitrarily. The exercise of power has to be in a reasonable manner with objectivity and having due regard to the facts. In short, the ultimate action should be based upon objective criteria after due consideration of all relevant aspects.

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22. Avtar Singh (supra) also noticed the judgment in Commissioner of Police Vrs. Sandeep Kumar, (2011) 4 SCC 644. In Sandeep Kumar (supra), this Court set out the story of the character “Jean Valjean” in Victor Hugo‟s novel Les Miserables, where the character was branded as a thief for stealing a loaf of bread for his hungry family. It also discussed the classic judgment of Lord Denning in Morris Vrs. Crown Office, (1970) 2 QB 114 and concluded as follows:

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„10. *** In our opinion, we should display the same wisdom as displayed by Lord Denning.

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11. As already observed above, youth often commits indiscretions, which are often condoned.

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12. It is true that in the application form the respondent did not mention that he was

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involved in a criminal case under Sections 325/34, IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.‟

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Thereafter, in Avtar Singh (supra) dealing with Sandeep Kumar (supra), this Court observed as under:

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„24. *** This Court has observed that suppression related to a case when the age of Sandeep Kumar was about 20 years. He was young and at such age people often commit indiscretions and such indiscretions may often be condoned. The modern approach should be to reform a person instead of branding him a criminal all his life. In Morris Vrs. Crown Office, (1970) 2 QB 114 = (1970) 2 WLR 792 (CA), the observations made were that young people are no ordinary criminals. There is no violence, dishonesty or vice in them. They were trying to preserve the Welsh language. Though they have done wrong but we must show mercy on them and they were permitted to go back to their studies, to their parents and continue the good course.‟

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23. In Ram Kumar Vrs. State of U.P., (2011) 14 SCC 709, another case noticed and discussed in Avtar Singh (supra) arising out of near identical facts

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and construing a similar clause in the verification form, this Court, while granting relief, held as follows:

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„9. We have carefully read the Government Order dated 28.04.1958 on the subject “Verification of the character and antecedents of Government servants before their first appointment” and it is stated in the Government Order that the Governor has been pleased to lay down the following instructions in supersession of all the previous orders:

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„The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:

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The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be the duty of the appointing authority to satisfy itself on this point.‟

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12. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate it would show that the sole witness examined before the court, PW 1, Mr. Akhilesh Kumar, had deposed before the court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other

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neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504, IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.

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13. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the pro forma of verification roll that a criminal case has been registered against him.

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14. As has been stated in the instructions in the Government Order dated 28-4-1958, it was

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the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment .

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17. For the aforesaid reasons, we allow the appeal, set aside the order [Ram Kumar Vrs. State of U.P., Writ-A No. 40674 of 2007, order dated 30.08.2007 (All)] of the learned Single Judge and the impugned order [Ram Kumar Vrs. State of U.P., 2009 SCC OnLine All 2622] of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs.‟

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Ram Kumar was also a case (supra) of cancellation of selection to the post of Constable.

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24. More recently in Pawan Kumar Vrs. Union of India, (2022) SCC OnLine SC 532, involving appointment to the post of Constable in Railway Protection Force and setting aside the order of discharge due to alleged suppression in the verification form, this Court, after noticing Avtar Singh (supra) held as under:

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„11. This cannot be disputed that the candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equally true that the person who has suppressed the material information or has made false declaration indeed has no unfettered right of seeking appointment or continuity in service, but at least has a right not to be dealt with arbitrarily and power has to be judiciously exercised by the competent authority in a reasonable manner with objectivity having due regard to the facts of the case on hand. It goes without saying that the yardstick/standard which has to be applied with regard to adjudging suitability of the incumbent always depends upon the nature of post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects but no hard and fast rule of thumb can be laid down in this regard.

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***

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13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/ terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/ suitability of the employee into service. What has been noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service.

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19. Consequently, the appeal succeeds and is allowed. The judgment of the Division Bench of the High Court dated 17.11.2015 [Pawan Kumar Vrs. Union of India, 2015 SCC OnLine Del 14648] and the order of discharge dated 24.04.2015 and dated 23.12.2021 are hereby quashed and set aside. The respondents are directed to reinstate the

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appellant in service on the post of Constable on which he was selected pursuant to his participation in reference to Employment Notice No. 1/2011 dated 27.02.2011. We make it clear that the appellant will not be entitled for the arrears of salary for the period during which he has not served the force and at the same time he will be entitled for all notional benefits, including pay, seniority and other consequential benefits, etc. Necessary orders shall be passed within a period of one month from today. No costs.‟

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25. In Mohammed Imran Vrs. State of Maharashtra, (2019) 17 SCC 696, no doubt, a case where a candidate made the disclosure of criminal case, this Court speaking through Navin Sinha, J. made the following telling observation which resonates with the hard realities of everyday existence:

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„5. are a scarce Employment opportunities in our commodity country. Every advertisement invites a large number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial

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service simpliciter. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will, however depend on the fact situation of a case. ‟

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26. We have also kept in mind the recent judgment of this Court in Satish Chandra Yadav Vrs. Union of India, (2023) 7 SCC 530 and the broad principles set out by this Court in para 93, especially, paras 93.1, 93.3 and 93.7. Even the broad principles set out therein recognize that each case should be scrutinized thoroughly by the public employer concerned and the Court is obliged to examine whether the procedure of enquiry adopted by the authority concerned was fair and reasonable. Avtar Singh (supra) in para 38.2 has held that while passing the order of cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. Further, in para 38.4.3 of Avtar Singh (supra) the principle that, in case of suppression or false information of involvement of criminal case, where acquittal has already been recorded, the employer can still consider all relevant facts available as to antecedents and may take appropriate decision as to the continuance of the employee. We have read and understood the broad principles laid down in

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Satish Chandra Yadav (supra) with the following crucial paragraph in Avtar Singh (supra):

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„35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/ instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. Though a person who has suppressed the material information cannot claim unfettered right for appointment or continuity in service but he has a right not to be dealt with arbitrarily and exercise of power has to be in reasonable manner with objectivity having due regard to facts of cases .‟

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27. We have also examined the judgment in Director General of Police, Tamilnadu, Mylapore Vrs. J. Raghunees, (2023) SCC OnLine SC 1379 and we find that the case of the appellant is more aligned with the facts in the judgment of this Court in Pawan Kumar (supra), Sandeep (supra) and Ram Kumar (supra). Hence, we find that the judgment in J. Raghunees (supra) is clearly distinguishable.

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28. The nature of the office, the timing and nature of the criminal case; the overall consideration of the judgment of acquittal; the nature of the query in the application/verification form; the contents of the character verification reports; the socioeconomic strata of the individual applying; the other antecedents of the candidate; the nature of

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consideration and the contents of the cancellation/termination order are some of the crucial aspects which should enter the judicial verdict in adjudging suitability and in determining the nature of relief to be ordered.”

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9.3. With the aforesaid conspectus of legal position as set forth by the Hon’ble Supreme Court of India on the facts and in the circumstances of the case that the documents made available through counter affidavit of the opposite parties evince that it was not within the knowledge of the petitioner that FIR was lodged on 05.12.2014 in the Gaisilat Police Station for alleged offences under Sections 294, 292-A, 354-A, 354-D, 506 and 509 read with 34 of the Indian Penal Code, 1860 and Section 3(1)(xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the date of making application, i.e., 19.12.2014 for the recruitment to the post of Fireman. Therefore, he has correctly described as “not applicable” at serial No.19 of the said application, which required disclosure by the candidate whether he is involved in any criminal case or arrested.

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9.4. However, on being selected after being declared successful in the test, in the Verification Roll prior to appointment, he has made correct disclosure to the effect that the criminal case was pending before the

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Gaisilat Police Station in the District of Bargarh ( vide Serial Nos.7 & 8 of the said Verification Roll) as such fact could come to his knowledge on the date of his arrest on 10.01.2015.

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9.5. In the case of State of Rajasthan Vrs. Love Kush Meena, (2021) 8 SCC 774 , the Hon’ble Supreme Court reiterated that:

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“The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused.”

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9.6. In the case at hand considering the subsequent development of the clean acquittal of the petitioner for the offences charged, it requires consideration objectively by the Authority concerned, about the question of fitness, ignoring the issue of supressing the information. The allegations in the instant case could not be proved by the prosecution. This apart the informant-PW2 also did not depose before the trial Court. Thus, the petitioner was honourably acquitted because the prosecution had miserably failed to prove the charges.

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9.7. It is also noteworthy that the prosecution failed to substantiate the allegations before the learned trial

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Court and, consequently, the learned Sessions Judge- cum- Special Court, Bargarh acquitted the petitioner under Section 235(1) of the Code of Criminal Procedure, 1973. Such glaring fact apparent on the record could not have been ignored by the opposite party No.2-the Director General of Police, Fire Service, Home Guards and Civil Defence, Odisha, Cuttack, while disposing of the representation dated 11.03.2020 and, therefore, the Order dated 11.11.2020 passed (Annexure-5) warrants interference and deserves to be set aside.

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9.8. This Court may wish to refer to the following observation made in Vashist Narayan Kumar Vrs. State of Bihar, (2024) 1 SCR 1 = 2024 INSC 2:

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“On the peculiar facts of this case, considering the background in which the error occurred, we are inclined to set aside the cancellation. We are not impressed with the finding of the Division Bench that there was no prayer seeking quashment of the results declared over the web. A reading of the prayer clause in the writ petition indicates that the appellant did pray for a mandamus directing the respondents to consider the candidature treating his date of birth as 18.12.1997 and also sought for a direction for issuance of an appointment letter. A Writ Court has the power to mould the relief. Justice cannot be forsaken on the altar of technicalities. ”

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10. In the wake of above, this Court sets aside the Order dated 11.11.2020 (Annexure-5) passed by opposite party No.2 and in consequence thereof directs that said opposite party No.2-Director General of Police, Fire Service, Home Guards & Civil Defence, Odisha, Cuttack is required to consider the representation of the petitioner afresh in the light of the discussions made above within a period of eight weeks from today.

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11. The writ petition stands disposed of with the above terms with no order as to costs.

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(MURAHARI SRI RAMAN)

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JUDGE

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High Court of Orissa, Cuttack The 21^st October, 2024//Aswini/MRS/Laxmikant

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Signature Not Verified

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Digitally Signed Signed by: ASWINI KUMAR SETHY Designation: Personal Assistant (Secretary-in-charge) Reason: Authentication Location: ORISSA HIGH COURT, CUTTA CK Date: 21-Oct-2024 17:57:41

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Kalakar Bentakar v. State of Odisha

Case brief

What is this about?

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Kalakar Bentakar v. State of Odisha

Case brief

What is this about?

What did the court decide?

What the court decided

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