# (2012) 1 ILRA 346

- **Citation:** (2012) 1 ILRA 346
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-02-16
- **Case number:** Civil Misc. Writ Petition No. 51274 of 2007
- **Bench:** Sunil Hali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/2012-1-ilra-346-42151
- **Pages:** 6

## Headnote

Constitution
of
India,
Article
226cancellation
of
appointment-on
concealment of criminal case pendencyin
column
II
of
application
forrequirement of conviction in criminal
case-no requirement of disclosure of
registration
of
any
FIR-without
recording satisfaction for unsuited for
appointment-subsequent fair acquittalcancellation
of
appointment-held-not
proper.

Held: Para 16

From the aforesaid discussion, it clearly
appears that in the impugned order no
1 All Harendra Panwar V. State of U.P. and others
347
satisfaction has been recorded by the
appointing authority that the petitioner
is not suitable to be appointed with
reference to nature of suppression and
nature of criminal case. Merely because
the information with respect to the
registration
of
the
case
has
been
withheld
would
not
dis-entitle
the
petitioner
to
be
appointed
as
no
satisfaction has been recorded by the
appointing authority that the nature of
allegations
so
levelled
against
the
petitioner are of such nature which
would dis-entitle him to be appointed on
the said post. Mere concealment of this
information
in
itself
would
not
tantamount
to
cancellation
of
his
appointment
as
the
necessity
of
supplying
this
information
is
not
contemplated either by the instructions
issued in terms of the G.O. dated
28.4.1958 or by the form required to be
filled up by the petitioner.
Case law discussed:
Ram Kumar Vs. State of UP decided in Civil
Appeal No. 7106 of 2011 on 9.8.2011 ; Special
Appeal No. 1515 of 2007 in re Sanjesh Yadav
Vs State of UP and others decided on
18.1.2012

## Text

346 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
in the matter of unanimous decision of the
Committee."

22. In another decision given by the
Apex Court in the case of State of U. P.
and others Vs. Raj Pal Singh reported
in
(2010)
5
SCC
783,
following
observation has been made :

"5. Though, on principle the ratio in
aforesaid cases would ordinarily apply, but
in the case in hand, the High Court appears
to have considered the nature of charges
levelled against the five employees who
stood charged on account of the incident
that happened on the same day and then the
High Court came to the conclusion that
since the gravity of charges was the same, it
was not open for the disciplinary authority
to
impose
different
punishments
for
different delinquents. The reasoning given
by the High Court cannot be faulted with
since the State is not able to indicate as to
any difference in the delinquency of these
employees.

6. It is undoubtedly open for the
disciplinary authority to deal with the
delinquency
and
once
charges
are
established
to
award
appropriate
punishment. But when the charges are same
and identical in relation to one and the same
incident, then to deal with the delinquents
differently in the award of punishment,
would be discriminatory. In this view of the
matter, we see no infirmity with the
impugned order requiring our interference
under Article 136 of the Constitution."

23. On the facts and totality of the
circumstances we are satisfied that the
respondents while awarding punishment to
the petitioner have failed to consider the fact
that charges against two other employees
were the same but they were not punished,
and thus have discriminated against the
petitioner by inflicting a punishment and,
therefore,
the
order
passed
by
the
respondent no. 1 is liable to be quashed.

24. For the reasons given above, this
writ petition succeeds and is allowed.

25. The impugned order dated
23.5.2006 passed by the respondent no. 1
(annexure no. 10) is hereby quashed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.02.2012

BEFORE
THE HON'BLE SUNIL HALI,J.

Civil Misc. Writ Petition No. 51274 of 2007

Harendra Panwar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam
Sri Seemant Singh
Sri Shailendra

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Article
226cancellation
of
appointment-on
concealment of criminal case pendencyin
column
II
of
application
forrequirement of conviction in criminal
case-no requirement of disclosure of
registration
of
any
FIR-without
recording satisfaction for unsuited for
appointment-subsequent fair acquittalcancellation
of
appointment-held-not
proper.

Held: Para 16

From the aforesaid discussion, it clearly
appears that in the impugned order no
1 All Harendra Panwar V. State of U.P. and others
347
satisfaction has been recorded by the
appointing authority that the petitioner
is not suitable to be appointed with
reference to nature of suppression and
nature of criminal case. Merely because
the information with respect to the
registration
of
the
case
has
been
withheld
would
not
dis-entitle
the
petitioner
to
be
appointed
as
no
satisfaction has been recorded by the
appointing authority that the nature of
allegations
so
levelled
against
the
petitioner are of such nature which
would dis-entitle him to be appointed on
the said post. Mere concealment of this
information
in
itself
would
not
tantamount
to
cancellation
of
his
appointment
as
the
necessity
of
supplying
this
information
is
not
contemplated either by the instructions
issued in terms of the G.O. dated
28.4.1958 or by the form required to be
filled up by the petitioner.
Case law discussed:
Ram Kumar Vs. State of UP decided in Civil
Appeal No. 7106 of 2011 on 9.8.2011 ; Special
Appeal No. 1515 of 2007 in re Sanjesh Yadav
Vs State of UP and others decided on
18.1.2012

(Delivered by Hon'ble Sunil Hali,J.)

1. In nut shell the case of the
petitioner is that for making appointment
of Constable an advertisement was issued
calling application from the eligible
candidates.
In
pursuance
to
the
advertisement petitioner applied for the
said post and after due completion of
selection process petitioner was selected
from District Etawah and was appointed as
a Constable in the Police Department on
26.11.2005. After completion of the post
recruitment training the petitioner was
posted as Constable in District Etawah on
28.6.2006. Selection of the petitioner has
been cancelled by the respondent vide
order
dated
18.8.2007
passed
by
respondentno. 2. Reasons for cancellation
of the appointment are that the petitioner
did not disclose that a criminal Case
bearing Case Crime No. 32 of 2005, under
Sections 147, 148, 149, 307, 504, 506 IPC
at P.S. Kandhala, District Muzaffar Nagar
was registered against him. This order is
subject matter of challenge before this
Court.

2. Contention of learned counsel for
the petitioner is that registration of an
F.I.R. against the petitioner was not to his
knowledge and he acquired the knowledge
only
after
he
had
submitted
his
form/affidavit to the respondents. Other
contention raised is that in terms of the
instructions issued by the respondents vide
G.O.
No.
4694
dated
28.4.1958
instructions have been issued for the
purposes of verification of character and
antecedents of the Government Servants
before their first appointment. These
instructions do not envisage that petitioner
is required to disclose any information
regarding his character and antecedents. It
enjoins upon the authority to verify the
Character and antecedents of the petitioner.
It is further submitted that the Character
Verification of the petitioner was verified
by the concerned police station before
appointment and in the said report it has
been mentioned that the petitioner has
already been acquitted in the aforesaid
criminal case vide judgement and order
dated 15.9.2005 and it was the respondents
who after being satisfied appointed the
petitioner on 26.11.2005. It is further
submitted that the impugned order of
dismissal has been passed without issuing
any show cause notice or without
conducting any disciplinary proceedings
after affording an opportunity of hearing to
the petitioner and hence the same is
patently illegal, arbitrary and is liable to be
quashed.
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. Last ground taken by the petitioner
is that in column 11 of the form required to
be filled in by the petitioner whereby he is
required to indicate as to whether he has
been convicted by any competent Court.
There is no requirement of furnishing the
details
or
information
regarding
registration of the criminal case against the
applicant. Impugned order proceeds on the
assumption that the petitioner is required to
disclose this information which is not
factually correct. Consequently, when the
authorities came to know about his
involvement in a criminal case, the
appointment of the petitioner on the post of
Constable was cancelled for suppressing
the information.

4. On the other hand stand of the
respondents is that it is incumbent upon the
petitioner to disclose the information
regarding pendency of criminal case
against him so as to enable the authorities
to examine the antecedents and character
of the applicant. Admittedly, petitioner has
not disclosed these facts as such has
obtained
the
appointment
order
by
concealing the same. Consequence of such
concealment
would
result
in
the
cancellation
of
his
appointment
as
provided by the instructions and form
required to be filled up by the applicant. It
is in the light of this the appointment of the
petitioner has been cancelled.

5. Heard learned counsel for the
petitioner, learned Standing Counsel and
perused the material on record.

6. As a pre-requisite for being
appointed
as
a
Govt.
servant
the
antecedents and character of the applicant
is required to be verified by the appointing
authority. The mode and manner in which
such verification is required to be done is
contained in the said G.O. dated 28.4.1958.
Various steps are required to be taken by
the concerned authority in ascertaining and
verifying the character and antecedents of
the applicant. Every direct recruit to any
service will be required to produce a
certificate of conduct and character from
the head of the Institution where he last
studied; (b) certificates of character from
the two persons and in case of doubt
appointing authority may either ask further
references or may refer the case to the
District Magistrate concerned may then
make such further enquiry as he considers
necessary.

7. Clause 4 of the said G.O. states
that in cases of direct recruits to the service
other than those mentioned in paragraph
nos. 3(c) and (d) verification shall not be
necessary as a matter of routine except in
cases of doubt when the procedure
mentioned in paragraph no. 3(b) shall be
followed.

8. Clause 8 of the G.O. provides that
every person recruited to the service would
be required at the time of joining his
appointment to fill up the form appended
as annexure no. 3 to the |G.O. If he is
found to have made a false statement in
this connection, he would be discharged
forthwith without prejudice to any other
action that may be considered necessary.

9. Character of the candidate for
direct recruitment must be such as to
render him suitable in all respect for
employment in service or post to which he
is sought to be appointed. It would be the
duty of the appointing authority to satisfy
itself on this question. What has been
contemplated by the G.O. dated 28.4.1958
is that character and antecedents of the
appointee shall have to be verified by
1 All Harendra Panwar V. State of U.P. and others
349
having an overview of his personality in
respect of his moral character and integrity.
This is to enable the appointing authority
to draw its satisfaction as to whether a
person is fit to be appointed to the said
post. In case it is found on verification that
the Character and antecedents of the
petitioner is not good, satisfaction to that
extent has to be recorded by the appointing
authority
as
contemplated
by
the
Government Order.

10. The question that falls for
consideration in this case is as to whether
the
petitioner
by
withholding
the
information regarding the registration of a
criminal case can be deprived of the said
appointment.

11. In order to examine this question,
it would be seen as to what information
was required to be furnished by the
petitioner under the G.O. dated 28.4.1958
which is said to have been concealed by
him resulting in cancellation of his
appointment. It is stated that the petitioner
did not disclose that a case has been
registered against him while filling up his
form/affidavit
before
the
appointing
authority. In order to appreciate this aspect
reference has to be made to the
Government Order as well as the form/
affidavit which is required to be filled up
by the petitioner requiring him to disclose
such information. While examining the
G.O. there is no such obligation caste on
the appointee to disclose any such
information. However, the petitioner is
required to disclose in Column 11 of the
form appended as Annexure No. 3 to the
writ petition the information that whether
the petitioner has been convicted in any
case or not. There is no other information
required to be disclosed by the petitioner.
Nothing has been brought on record by the
other side that the petitioner was required
to disclose that there was a case registered
against him. As already stated herein
above
only
information
which
was
required to be disclosed by the petitioner
was as to whether he was convicted in any
criminal case or not.

12. Admittedly, petitioner has not
been convicted in any case. Question of
withholding of the information which is
not required to be given by the petitioner
cannot become a ground for cancellation of
his appointment. What has been stated in
the impugned order is that on verification
of his character and antecedents it has
come to the knowledge of the respondents
as reported by Superintendent of Police,
Muzaffar Nagar that a an FIR bearing Case
Crime No. 32 of 2005 has been registered
against the petitioner in which charge sheet
under sections 147, 149, 504, 506 IPC has
been submitted before the competent court
but the applicant did not disclose this
information to the respondents while filling
his affidavit/verification certificate.

13. It is trite in law that mere
involvement in a criminal case is not an
impediment for appointment to the post of
Constable. Moreover, after a person has
been already acquitted from the criminal
charges, stigma attached to a person is
obliterated and, as such, the applicant
cannot
be
denied
the
appointment.
Moreover,
a
conviction
results
in
ineligibility
for
appointment
in
Government
service,
but
since
the
applicant has already been acquitted of the
criminal charges, he is eligible for
appointment. It is only in case a person is
convicted in such a criminal case he
becomes dis-entitled to such appointment.
It is in this context column 11 requires this
declaration to be made by the applicant.
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Mere registration of a case in itself would
not be a ground for cancellation of
appointment. Even if this fact has not been
disclosed by the petitioner if required to be
done even then appointment cannot be
cancelled. What is important is that while
recording
its
satisfaction,
appointing
authority may on verification of the
conduct, antecedents and character come to
a conclusion that the overall profile of the
petitioner is not conducive for his
appointment on the post appointment can
be declined. This will depend upon many
factors including the reputation of the
person, his behaviour in the public, his
integrity and morality etc. This assessment
is required to be made by the appointing
authority before certifying the antecedents
and character of the person. It will be
important to mention here that the notes
attached to Column 3 of the G.O. dated
28.4.1958 itself provides that a conviction
need not of itself involve the refusal of a
certificate of good character. Stands of
conviction
should
be
taken
into
consideration if it involves no moral
turpitude or association with crimes of
violence or with a movement which has as
its object to overthrow by violent means a
Government. The G.O. itself contemplates
that
every
conviction
would
not
necessarily result in refusal of certificate of
character issued in favour of the petitioner.

14. Reliance has been placed by the
learned counsel for the petitioner on catena
of judgments. In Ram Kumar Vs. State of
UP decided in Civil Appeal No. 7106 of
2011 on 9.8.2011 wherein the Hon'ble
Apex Court observed as under:

" ?.........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
proforma of verification roll that a criminal
case has been registered against him. As
has been stated in the instructions in the
Government Order dated 28.04.1958, it
was 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."

15. In Special Appeal No. 1515 of
2007 in re Sanjesh Yadav Vs State of UP
and
others
decided
on
18.1.2012,
Division Bench of this Court relying upon
the judgment rendered in Ram Kumar Vs.
State of UP decided in Civil Appeal No.
7106 of 2011 on 9.8.2011 has observed as
under:

"...The criminal case no. 243 of 1995
had been decided on 19.10.2004 resulting
into acquittal of the appellant. No appeal
had been preferred by the State against the
order of acquittal of the appellant.
Therefore, it can not be said that the
appellant had concealed any information or
his character and antecedents were not
such that he could not be given
appointment in a disciplinary force.
1 All Arvind Kumar Sonkar V. State of U.P. and others
351

9.
In
the
present
case
also
misstatement of fact has been made in the
affidavit by the appellant, but at no point of
time, it was considered as to whether the
incumbent was suitable for appointment to
the service, wherein he was appointed or
not. Following the dictum of Apex Court
in the aforesaid case, the appeal deserves
to be allowed."

16. From the aforesaid discussion, it
clearly appears that in the impugned order
no satisfaction has been recorded by the
appointing authority that the petitioner is
not suitable to be appointed with reference
to nature of suppression and nature of
criminal
case.
Merely
because
the
information with respect to the registration
of the case has been withheld would not
dis-entitle the petitioner to be appointed as
no satisfaction has been recorded by the
appointing authority that the nature of
allegations
so
levelled
against
the
petitioner are of such nature which would
dis-entitle him to be appointed on the said
post. Mere concealment of this information
in
itself
would
not
tantamount
to
cancellation of his appointment as the
necessity of supplying this information is
not contemplated either by the instructions
issued in terms of the G.O. dated
28.4.1958 or by the form required to be
filled up by the petitioner.

17. Considering the facts and
circumstances of the case, the writ petition
deserves to be allowed and is hereby
allowed. The order impugned dated
18.8.2007 passed by respondent no. 6 is
hereby quashed. Respondents are directed
to take back the petitioner in service within
a period of one month from the date of
production of certified copy of this order.
However, it is further held that the
petitioner is entitled to all consequential
benefits except back wages for the period
he remained out of service.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2012

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 64423 of 2008

Arvind Kumar Sonkar

 ...Petitioner
Versus
State of U. P. and others ...Respondents

Counsel for the Petitioner:
Sri P.C. Pandey

Counsel for the Respondents:
Sri J.N. Maurya
C.S.C.

Constitution of India, Article 226-arrears
of salary-petitioners were appointed as
Police Constable-after completing their
Training-Services
dispensewith
by
exercising power under Rule 8 (2) (b) of
U.P.
Police
Subordinate
Rank
Punishment and appeal) Rules 1991-as
per direction contained in special appealmedical board examined and found them
fit-consequently reinstated in servicenow arrear of salary denied on "No work
No
pay"
principle
held-where
the
employee
willing
to
work
but
not
allowed-entitled full wages for period
during which deprived to work-direction
for
continuity
in
service
with
all
consequential benefits given.

Held: Para 7

The petitioners must have been given
appointment after they were found to be
medically fit. However, in pursuance of
some letter of the Director General of
Police fresh medical examination was
conducted in which all the petitioners
were declared to be medically unift and
the same was found to be incorrect by