The Allahabad High Court while allowing a petition said that the appointment cannot be denied to a candidate merely for not disclosing criminal cases.
A Single Bench of Justice Salil Kumar Rai passed this order while hearing a petition filed by Ashish Kumar Rajbhar.
The issue in the petition is as to whether the appointing authority can deny appointment to a selected candidate only on the ground of non-disclosure of a criminal case registered against him even though the candidate was not named as an accused in the charge sheet and was not put on trial in the said case.
The facts of the case are that the petitioner was selected for appointment as constable in the selections held in pursuance to the advertisement issued in 2015 by the Uttar Pradesh Police Recruitment and Promotion Board, Lucknow.
The selected candidates were asked to file an affidavit disclosing whether any criminal case had been registered against them or was pending consideration in any court. The candidates were warned that in case any information given in the affidavit was found to be wrong, they would be liable to be dismissed or removed from service. The petitioner submitted his affidavit dated 11.06.2018 putting a cross against the column which required disclosure of criminal cases, representing that no criminal case was either registered or pending against the petitioner.
It has been stated by the petitioner that subsequently he came to know that on 01.04.2017, a Criminal Case under Sections 147/ 323/452/325 of the Indian Penal Code and Section 3(1)(x) SC/ST (Prevention of Atrocities) Act, 1989 had been registered against him but the petitioner was not named in the charge-sheet which was filed on 24.05.2017.
The case of the petitioner is that he came to know about the criminal case registered against him after he had filed his affidavit, therefore, he filed another affidavit dated 26.07.2018 before the respondent authorities disclosing the details of the criminal case.
The District Magistrate, in his report dated 28/31.07.2018, recommended that the petitioner was fit to be appointed as Constable after noting that the petitioner had been wrongly named in the First Information Report registering Criminal Case and that no other criminal case was registered against the petitioner.
The said report was made by the District Magistrate in discharge of his duties under the Office Memorandum dated 28.04.1958 issued by the Government of Uttar Pradesh regarding the verification of character and antecedents of applicants for government service before their first appointment.
However, the Superintendent of Police, Ballia vide his order dated 04.11.2018 rejected the claim of the petitioner for appointment as Constable on the ground that the petitioner had, in his affidavit, concealed the criminal case registered against him.
While passing the aforesaid order, the Superintendent of Police, Ballia relied on Clause 8 (Ja) of the Office Instructions dated 22.05.2018 which provides that a candidate would be declared unfit for appointment if he had concealed or made any misrepresentation regarding any criminal case registered against him or regarding any trial, acquittal or conviction in a criminal case or if the candidate had been convicted for any offence involving moral turpitude.
The order dated 04.11.2018 was challenged by the petitioner through the petition which was disposed of by the Court by its order dated 11.12.2018 noting the statement of the Standing Counsel that the Superintendent of Police, Ballia shall reconsider the claim of the petitioner for appointment in accordance with law. The Superintendent of Police, Ballia vide his order dated 04.03.2019 has again rejected the claim of the petitioner for being appointed as Constable in U.P Police.
The claim of the petitioner has been rejected on the ground that in his first affidavit the petitioner had knowingly concealed the criminal case registered against him. The explanation of the petitioner that he had no knowledge of the criminal case at the time of filing the first affidavit has been disbelieved on the ground that the Investigating Officer had recorded the statement of the petitioner on 26.04.2017, i.e., before the petitioner had filed his first affidavit. The order dated 04.03.2019 has been challenged in the petition.
The principles deducible from the judicial precedents referred earlier and also the Office memorandum dated 28.4.1958 as well as the Office Instructions dated 22.5.2018, so far as they are relevant for a decision of the petition, are that the purpose of seeking information from the candidate regarding any criminal case registered or pending against him is to verify the character and antecedents of the candidate. Verification of character and antecedents of a candidate is required to adjudge the suitability of the candidate for appointment, the Court said.
The Court observed that,
A candidate who has suppressed material information cannot claim unfettered right for appointment but he has a right not to be dealt with arbitrarily and the decision of the competent authority has to be reasonable and objective having due regards to the facts of the case. Broad- brushing every non-disclosure as a disqualification would be unjust and it would be arbitrary and unreasonable to disqualify a candidate merely because of non-disclosure of a criminal case which was trivial in nature and related to a petty offence which if disclosed would not have rendered him unfit for post in question.
Consequently, any statute/rules/instructions which empowers the employer to deny appointment to a candidate only because of non-disclosure of criminal cases would also be unjust and unreasonable and any decision by the employer denying appointment only because of such non-disclosure would also be contrary to the constitutional principle of fairness and nonarbitrariness in administrative actions.
In cases where there is nondisclosure of criminal case by the candidate, the nature of the case and the seriousness of the offence with which the applicant is charged, the end result of the trial and if the applicant was acquitted the reasons for acquittal-whether the acquittal was a clean acquittal or the applicant has been acquitted on a technical ground and given benefit of doubt – as well as the socio-economic status of the candidate are some of the factors which are also to be considered while adjudging the suitability of a candidate for appointment.
In a case trivial in nature or for a petty offence, the employer may ignore suppression of fact or false information by condoning the lapse if the applicant is not otherwise unfit for appointment. The report of the District Magistrate regarding the character and antecedents of the candidate and also the recommendations of the District Magistrate are relevant documents which have to be considered by the appointing authority while deciding the suitability of a candidate for appointment. The aforesaid factors are also to be considered by the courts while deciding the nature of relief to be given to a candidate.
The Court further observed that,
The admitted facts in the case are that only one criminal case had been registered against the petitioner. It is not the case of the State respondents that multiple criminal cases were registered against the petitioner.
The case was registered under Sections 147/323/452/325 of the Indian Penal Code read with Section 3 (1) (x) Schedule Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The petitioner was not named in the charge-sheet and was not put on trial in the aforesaid case.
It is also the admitted case of the State respondents that the District Magistrate, after noticing the criminal case and after recording his opinion that the petitioner was wrongly named in the First Information Report, certified the character of the petitioner and recommended him for appointment. The case registered against the petitioner was trivial in nature. The petitioner hails from a small town and there is nothing on record to show that the antecedents or character of the petitioner makes him unsuitable for appointment on the post.
It is also not the case of the respondents that apart from the indiscretion of the petitioner regarding non-disclosure of the criminal case, the antecedents and character of the petitioner were such that he would otherwise be unsuitable for appointment to the post of constable.
It is also noticed that the petitioner had submitted another affidavit disclosing the criminal case registered against him and the said affidavit was submitted before the report of the District Magistrate. The recommendations of the District Magistrate are dated 28/31.7.2018 and the second affidavit filed by the petitioner disclosing the criminal case was filed on 26.7.2018. No intention to deceive the employer can be imputed to the petitioner.
In view of the aforesaid, the petitioner is entitled to a relief commanding the State respondents to issue an appointment letter to him for appointment to the post of Constable, the Court also observed while allowing the petition.
For the aforesaid reasons, the Court quashed the order dated 04.03.2019 passed by the Superintendent of Police, Ballia.
“The respondents – State authorities, i.e, the Secretary, Department of Home (Police Section), Government of Uttar Pradesh, Lucknow, the Secretary, U.P Police Recruitment and Promotion Board, Lucknow, the Superintendent of Police (Personnel) Uttar Pradesh Police Headquarter, Allahabad/ Prayagraj and the Superintendent of Police, District Ballia are hereby directed to ensure that appropriate appointment letter is issued to the petitioner appointing him on the post of Constable in pursuance to the recruitment notified in 2015 and the petitioner shall be allowed to join as such. The appointment letter shall be issued to the petitioner by the competent authority within a period of one month, and in any case, by 15th December, 2024.
It is clarified that the petitioner shall be entitled to the service benefits, including his pay and other allowances as well as seniority, as a consequence of his appointment, only with effect from the date of his joining,” the Court ordered.