# Abhishek Chaturvedi v. Union Of India & Ors

- **Citation:** (2016) 5 ILRA 1206
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-24
- **Bench:** Ashwani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abhishek-chaturvedi-v-union-of-india-ors-43765
- **Pages:** 7

## Headnote

(A) Service Law - Suppression of Material Facts - Employment Obtained by False Declaration -
Effect
Candidate applied for post of Housekeeper-cum-Peon declaring that he had not passed Class-12, whereas he
had passed Intermediate in 2012. False declaration made knowingly in affidavit constituted suppression of
material fact, discovered during verification. Removal from service on this ground held justified. (Paras 1, 2, 3,
9, 10, 15, 16, 17, 18)

(B) Public Employment - Qualification Clause - Higher Qualification as Disqualification -
Challenge Not Entertained
Advertisement mandated candidate must be Class-10 pass and "should not have passed Class-12". Petitioner,
being over-qualified, was ineligible. Court refused to examine validity of clause under Art. 14 when petitioner
neither challenged advertisement nor qualification criteria before applying. Challenge after detection of
suppression would violate equal opportunity under Art. 16. (Paras 2, 9, 16)

(C) Conduct Rules - Moral Turpitude - Suppression Per Se Misconduct
Suppression of material information or furnishing false information amounts to moral turpitude, irrespective of
the content of suppressed fact. Held, employer entitled to remove employee for breach of trust. Reliance
placed on Devendra Kumar v. State of Uttaranchal, Civil Appeal No.1155/2006. (Para 15)

(D) Equality Before Law - Discrimination Plea - Burden to Prove
Reliance on LIC v. Triven Sharan Mishra rejected. In that case, lesser punishment given to similarly placed
employee; in present case, no plea or proof of discriminatory treatment. Hence facts distinguishable. (Paras 4,
12, 13, 14)
5 All. Abhishek Chaturvedi Vs Union Of India & Ors.

1207
(E) Scope of Judicial Review - Public Employment - False Entry - Limited Interference
Court refused to substitute penalty where misconduct is established, suppression is admitted, and disciplinary
process is regular. Considerations of sympathy or need of employment are irrelevant to validity of
punishment. (Paras 3, 5, 6, 7, 11, 17)

In Result : Writ petition dismissed.

List of Cases cited:

Life Insurance Corporation of India vs. Triven Sharan Mishra (2014) 10 SCC 346
Commissioner of Police & Others vs. Sandeep Kumar (2011) 4 SCC 644
Kendriya Vidyalaya Sangathan & Others vs. Ram Ratan Yadav (2003) 3 SCC 437
Mohd. Riazul Usman Gani vs. District & Sessions Judge, Nagpur AIR 2000 SC 919
Devendra Kumar vs. State of Uttaranchal & Others
Ram Kumar vs. Oriental Bank of Commerce
Ritesh Kumar Mishra vs. Union of India & Others

## Text

1206 INDIAN LAW REPORTS ALLAHABAD SERIES
23. In the light of the observations made by the learned Single Judge, we for what has been
observed by us do not find any good ground much less a legal ground to interfere with the
judgement and order of the learned Single Judge dated 18.8.2011.

24. The appeal lacks merit and is dismissed accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.05.2016

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ A No.- 19814 Of 2016

Abhishek Chaturvedi ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Radhey Raman Mishra, Kamlesh Shukla

Counsel for the Respondents:
A.S.G.I., Rakesh Kumar Mishra, Vivek Ratan Agrawal

(A) Service Law - Suppression of Material Facts - Employment Obtained by False Declaration -
Effect
Candidate applied for post of Housekeeper-cum-Peon declaring that he had not passed Class-12, whereas he
had passed Intermediate in 2012. False declaration made knowingly in affidavit constituted suppression of
material fact, discovered during verification. Removal from service on this ground held justified. (Paras 1, 2, 3,
9, 10, 15, 16, 17, 18)

(B) Public Employment - Qualification Clause - Higher Qualification as Disqualification -
Challenge Not Entertained
Advertisement mandated candidate must be Class-10 pass and "should not have passed Class-12". Petitioner,
being over-qualified, was ineligible. Court refused to examine validity of clause under Art. 14 when petitioner
neither challenged advertisement nor qualification criteria before applying. Challenge after detection of
suppression would violate equal opportunity under Art. 16. (Paras 2, 9, 16)

(C) Conduct Rules - Moral Turpitude - Suppression Per Se Misconduct
Suppression of material information or furnishing false information amounts to moral turpitude, irrespective of
the content of suppressed fact. Held, employer entitled to remove employee for breach of trust. Reliance
placed on Devendra Kumar v. State of Uttaranchal, Civil Appeal No.1155/2006. (Para 15)

(D) Equality Before Law - Discrimination Plea - Burden to Prove
Reliance on LIC v. Triven Sharan Mishra rejected. In that case, lesser punishment given to similarly placed
employee; in present case, no plea or proof of discriminatory treatment. Hence facts distinguishable. (Paras 4,
12, 13, 14)
5 All. Abhishek Chaturvedi Vs Union Of India & Ors.

1207
(E) Scope of Judicial Review - Public Employment - False Entry - Limited Interference
Court refused to substitute penalty where misconduct is established, suppression is admitted, and disciplinary
process is regular. Considerations of sympathy or need of employment are irrelevant to validity of
punishment. (Paras 3, 5, 6, 7, 11, 17)

In Result : Writ petition dismissed.

List of Cases cited:

Life Insurance Corporation of India vs. Triven Sharan Mishra (2014) 10 SCC 346
Commissioner of Police & Others vs. Sandeep Kumar (2011) 4 SCC 644
Kendriya Vidyalaya Sangathan & Others vs. Ram Ratan Yadav (2003) 3 SCC 437
Mohd. Riazul Usman Gani vs. District & Sessions Judge, Nagpur AIR 2000 SC 919
Devendra Kumar vs. State of Uttaranchal & Others
Ram Kumar vs. Oriental Bank of Commerce
Ritesh Kumar Mishra vs. Union of India & Others

(Delivered by Hon'ble Ashwani Kumar Mishra, J.)

1. Petitioner is aggrieved by an order dated 11.1.2016, whereby he has been removed from
the services of respondent bank. The order of removal has been passed on the ground that petitioner
has suppressed his higher qualification and had knowingly suppressed relevant fact, which
disentitled him to be retained in employment of the bank.

2. Facts giving rise to filing of this petition are that an advertisement was issued by the
respondent bank for the post of Housekeeper cum Peon, which required that candidate should be
10th standard pass, but should not have passed 12th standard. Petitioner pursuant to such
advertisement made an application claiming that he has passed high school examination only and
that he has not passed class 12th. An affidavit was also submitted by the petitioner on 15.10.2013
in this regard. It was later found that petitioner had passed 12th standard in the year 2012, but such
higher qualification which was suppressed by him. Disciplinary proceedings, consequently, were
initiated against the petitioner and charge sheet was served.

3. It was pleaded by the petitioner in disciplinary proceedings that he was in dire need of
employment and various other difficulties were also pressed. The enquiry officer after considering
the evidence brought on record returned a finding that petitioner had made false statement while
applying for employment in the documents submitted. Punishment of removal from service was
proposed. A notice dated 7.12.2015 was thereafter issued to the petitioner affording him an
opportunity whereafter the order impugned has been passed. Aggrieved by the order dated
11.1.2016, petitioner has preferred the present writ petition.

4. Learned counsel for the petitioner submits that possessing of higher qualification cannot
be to any disadvantage of the bank and it is unfortunate that such qualification is being treated as a
negative attribute of petitioner. Learned counsel has placed reliance upon decisions of the Apex
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
Court in Life Insurance Corporation of India vs. Triven Sharan Mishra: (2014) 10 SCC 346 and
Commissioner of Police and others vs. Sandeep Kumar: (2011) 4 SCC 644. Learned counsel for the
petitioner has also placed reliance upon a decision of the Punjab and Haryana High Court in Ram
Kumar vs. Oriental Bank of Commerce, delivered in C.M.W.P. No.20961 of 2014, dated
23.7.2015.

5. A counter affidavit has been filed by the respondent bank stating that petitioner was
aware about the qualification required to be possessed by a candidate, as it was clearly specified in
the advertisement itself, but petitioner, knowing fully well that he was ineligible to apply,
proceeded to make false disclosure and obtained employment contrary to the terms of
advertisement. It is submitted that such act of suppression on part of the petitioner clearly
disentitles him to grant of public employment and the order impugned suffers from no illegality. It
is submitted that disciplinary proceedings were held in accordance with the procedure worked out
vide memorandum of settlement dated 6.5.2002. It is also pointed out that the qualification of class
10th has been fixed by the bank considering peculiar facts and circumstances, which is in
accordance with circular of Ministry of Finance, Department of Economic Affairs, dated 8.9.2004.

6. Learned counsel for the respondent bank has also placed reliance upon a division bench
decision of this Court in Special Appeal No.491 of 2015, Ritesh Kumar Mishra vs. Union of India
and others.

7. I have heard Sri Kamlesh Shukla, learned counsel for the petitioner, Sri Vivek Ratan
Agrawal, learned counsel for the respondent bank and Sri Rakesh Kumar Mishra, learned counsel
for the respondent Union of India.

8. From a perusal of the material brought on record of this Court, it appears that the
Ministry of Finance, Department of Economic Affairs, Government of India, had issued a circular
dated 8.9.2004 to the Chief Executives of public sector banks prescribing the qualification required
to be possessed by subordinate staff of the bank. The relevant portion of the circular dated 8.9.2004
reads as under:-

"2. In this context, the fact that minimum qualifications for joining armed forces is
matriculation and the banks are fidning it difficult to appoint ex-servicemen for the post of armed
guards as per the existing qualifications for subordinate staff, as also keeping in view
representations received from certain banks demanding certain leverage with regard to the
minimum marks or stipulation of special qualifications, the matter has further been explained in
consultation with IBA and it has been decided that the following qualifications may be stipulated
by the banks in their recruitment policy for appointment of employees/officers through direct
recruitment:-

(1) Subordinate Staff- A pass in Eighth standard or its equivalent but the candidate
should not have passed 10+2 examination or its equivalent.
5 All. Abhishek Chaturvedi Vs Union Of India & Ors.

1209
(2) Clerical Cadre- Minimum qualification of pass in 10+2 examination or its
equivalent.

(3) Officer Cadre- Minimum qualification Graduate."

9. It is in furtherance of such direction that in the advertisement issued by the bank a
specific provision was made that applicant must be high school, but should not have passed class
12th. This stipulation in the advertisement was within the knowledge of petitioner. In case
petitioner felt that such restriction on possessing higher qualification was arbitrary, it was open for
him to have challenged the advertisement or to have taken recourse to law, but this was not done.
Petitioner instead opted to apply by stating that he only possesses qualification of high school and
has not passed intermediate. An affidavit was also given before the bank, which has been annexed
alongwith counter affidavit, dated 15.10.2013. The contents of affidavit reads as under:-

"मैिे यूडियि बैंक आफ इखण्डया, आजमगढ़ िगर डजले में हाउसकीपर सह र्0 पद की ररखक्तयो ॅं हेतु आवेदि
डकया है। मैं यह घोषणा करता/करती ह ू डक मैिे दस व उसके समकक्ष परीक्षा उिीणग की है तथा उसके बाद बारहवी/इण्टर या उसके
सम0 उच्चतर कोई परीक्षा पास/उिीणग िहीं की है।

मैं यह भी घोषणा करता/करती ह ू डक मेरे द्वारा दी गयीसारी सूर्िाये जािकारी के अिुसार पूणगतया सत्य है तथा
डकसी भीस्तर पर यडद मेरे द्वारा दी गई भी सूर्िा असत्य/गलत पायी जाती है तो मेरी उम्मीदवारी रद्द करिे तथा मेरे डवरूद्ध कािूिी
कायगवाही करिे का सवागडिकार बैंक के पास सुरडक्षत होगा।"

10. Petitioner, therefore, has made a declaration, well within his knowledge that he
possesses qualification of high school and that he has not passed intermediate, and that if it is found
at any stage that this declaration is false, then his candidature may be cancelled. It is not in dispute
that petitioner had passed intermediate examination in the year 2012 and the declaration made was
false, well within his knowledge. On the basis of such false disclosure, petitioner has proceeded to
participate and has secured employment. It seems that at the time of verification of records, it has
subsequently came to the notice of bank that petitioner has made false disclosure. It is for such
reason that the bank has proceeded to remove the petitioner from service .

11. A division bench of this Court in Ritesh Kumar Mishra (supra) had an occasion to deal
with an identical dispute and the judgment of learned Single Judge, holding removal from service
to be valid in such circumstances, has been affirmed. Para 2 to 4 of the judgment is reproduced:-

"2. An advertisement was issued on 27 June 2013 for recruitment to the post of
Housekeeper-cum-Peon. The appellant filed a declaration to the effect that he was not a candidate
who had passed his 10+2/intermediate examination. In the declaration dated 1 October 2013, the
appellant stated that he had passed his high school examination in 2008 and had not qualified at the
intermediate examination. An affidavit was also filed to that effect on 3 October 2013. The facts
which were stated in the declaration and in the affidavit constituted a fraudulent mis-statement
inasmuch as it is not in dispute that the appellant had passed his intermediate examination and was
not eligible under the terms of the advertisement. On this ground, disciplinary proceedings were
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
held and the appellant was removed from service. The appellant filed a writ petition seeking to
challenge the order of termination and seeking his reinstatement in service. The writ petition was
dismissed by the learned Single Judge on 22 May 2015. The learned Single Judge has held that
there was clear concealment of facts on the part of the appellant and, hence, he was dis-entitled to
relief. It was urged on behalf of the appellant that the first respondent could not have imposed a
condition to the effect that a candidate should not have passed the intermediate examination. The
learned Single Judge held that the appellant had laid no such challenge to the advertisement dated
27 June 2013 in which the condition was imposed and that the termination from service was not for
breach of the condition of the advertisement but for the concealment of material facts.

3. The submission of the learned counsel for the appellant based on a judgment of
the Supreme Court in Mohd Riazul Usman Gani Vs District and Sessions Judge, Nagpur (AIR
2000 SC 919), is that the qualification prescribed is a minimum qualification and a higher
qualification could not disqualify a candidate from obtaining the job. The difficulty in accepting the
submission is that the appellant responded to the advertisement and participated in the process of
selection. The condition imposed in the advertisement was not challenged at any stage. The
appellant filed an affidavit and a declaration which were admittedly false and contrary to facts
which were in the knowledge of the appellant. Though the appellant had passed the intermediate
examination, he stated in his declaration that he was only a high school passed candidate. In his
affidavit, he stated that he has not passed the intermediate examination. A candidate who has made
a fraudulent misrepresentation cannot be heard to now challenge the terms of the advertisement. A
disciplinary enquiry was held on a charge of fraudulent concealment which has been duly found to
be established. Hence, the dismissal of the writ petition by the learned Single Judge does not
warrant any interference.

4. The special appeal is accordingly dismissed. There shall be no order as to costs.
"

12. Learned counsel for the petitioner, on the other hand, has relied upon a judgment of the
Apex Court in Life Insurance Corporation of India (supra). In that case also, respondent before the
Supreme Court has applied for recruitment to the post of Peon and had concealed his higher
qualification of graduation. The High Court proceeded to allow the writ petition by observing that
restriction imposed in possessing of higher qualification is violative of Article 14 of the
Constitution of India. It was also noticed that in similar circumstances other similarly placed
persons were awarded lesser punishment and consequently the writ petition was allowed. Para 12 to
14 of the judgment in Life Insurance Corporation of India is reproduced:

"12. However, on behalf of the appellants it is contended that suppression of
material information and making false statement to secure the employment, is a serious offence to
attract the dismissal of service. In this connection, learned senior counsel for the appellants referred
to the case of Kendriya Vidyalaya Sangathan and Ors vs. Ram Ratan Yadav (2003) 3 SCC 437. But
in our opinion, the aforesaid case referred on behalf of the appellants cannot be applied to the
present case for the reason that in the said case the employee had concealed the facts relating to his
5 All. Abhishek Chaturvedi Vs Union Of India & Ors.

1211
character and antecedents. In said case, the employee who was selected for the post of a Teacher
suppressed the information that a criminal case relating to offences punishable under sections 323,
341, 294, 506-B read with section 34 of Indian Penal Code was registered against him. As such the
facts in the present case cannot be equated with the case referred.

13. From the papers on record before us, it appears that for mentioning less
qualification to secure the job, similarly situated another employee (one Daluram Patidar) was let
off by the Life Insurance Corporation of India by awarding punishment of stoppage of increments
for two years with cumulative effect. We are of the opinion that the High Court has rightly taken
note of said fact while allowing the writ petition, and directing the employer to consider the
imposition of similar penalty after reinstatement of the writ petitioner.

14. Therefore in view of the above discussion, we do not find any sufficient reason
to interfere with the impugned order passed by the High Court. Accordingly, the appeal is
dismissed. No order as to costs. "

13. The primary reason assigned in the decision of the Apex Court to approve the judgment
of the High Court was that similarly placed employee, namely Daluram Patidar, was let off by the
employer by awarding punishment of stoppage of two increment for two years with cumulative
effect, but different punishment was granted to the petitioner thereunder, which was held to be
arbitrary.

14. In the facts of the present case, no such plea of discrimination has been alleged and
proved. In such circumstances, the facts in the case of Life Insurance Corporation (supra) are
distinguishable.

15. The judgment of the Apex Court in the case of Commissioner of Police (supra) may not
help the cause of petitioner inasmuch as the subsequent judgment of the Apex Court in Devendra
Kumar vs. State of Uttaranchal and others, delivered in Civil Appeal No.1155 of 2006, dated
29.7.2013, has been pleased to hold that an act of suppression in itself constitutes moral turpitude,
for which employer would be well within its right to remove the employee concerned. Para 24 of
the judgment is reproduced:-

"24. The courts below have recorded a finding of fact that the appellant suppressed
material information sought by the employer as to whether he had ever been involved in a criminal
case. Suppression of material information sought by the employer or furnishing false information
itself amounts to moral turpitude and is separate and distinct from the involvement in a criminal
case.

In view of the above, the appeal is devoid of any merit and is accordingly
dismissed. "
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
16. The question as to whether the condition imposed of not possessing intermediate
qualification is valid or violates Article 14 of the Constitution of India may not be gone into at the
instance of petitioner, as no challenge has been laid to it by the petitioner before applying for the
post, and it is only when petitioner was found to have suppressed material facts and an action as per
law has been taken that petitioner has now challenged relevant clause of the advertisement. In case
such a challenge is entertained, it might otherwise infringe Article 16 of the Constitution of India,
as similarly placed persons may not have applied for the post, knowing that they were ineligible,
but the petitioner would be rewarded for making a false disclosure. This Court may not be justified
in coming to the rescue of petitioner at the cost of denial of equal opportunity to other similarly
placed applicant. The bank would also be justified in taking an action against the petitioner, as a
person who can make a false disclosure at the stage of entry into the service itself, may not be
reliable during course of employment as well, and apprehension expressed by the employers of loss
of confidence cannot be lightly brushed aside.

17. In view of the judgment of the division bench of this Court in Ritesh Kumar Mishra
(supra), I am of the opinion that petitioner is not entitled to grant of any relief by this Court.

18. Writ petition, consequently, fails and is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.05.2016

BEFORE

THE HON'BLE TARUN AGARWALA , J.
THE HON'BLE VINOD KUMAR MISRA, J.

Writ A No.- 23084 Of 2016

Dileep Kumar Gupta & Ors. ...Petitioners
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Hridai Narain Pandey

Counsel for the Respondents:
C.S.C., M.D. Singh Shekher, Nisheeth Yadav

Service Law - Promotion - Assistant Regional Transport Officer (A.R.T.O.) - Promotional Source
Categories - Quota Distribution - Seniority Dispute - Effect of Interim Orders: - Under Rule 5, U.P.
Transport Services Rules, 1990 (as amended up to Fourth Amendment, 2013), 49% of A.R.T.O. cadre posts
were to be filled by promotion from Passenger/Goods Tax Officers and Regional Inspectors (Technical) -
Direction in earlier writ (09-12-2014) to forward names of both categories for DPC attained finality - Noncompliance led to filing of contempt and subsequent forwarding of names.