# Ashish Kumar Rajbhar v. State of U.P. & Ors

- **Citation:** (2024) 11 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-05
- **Case number:** Writ -A No. 5709 of 2019
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-kumar-rajbhar-v-state-of-u-p-ors-51107
- **Pages:** 16

## Headnote

Law
-
Non-disclosure
of
criminal case - Appointment/Recruitment
- 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. (Para 8)

B. Broad-brushing every non-disclosure as
a disqualification, would be unjust and the
same
would
tantamount
to
being
completely
oblivious
to
the
ground
realities. (Para 9)

Nature of the criminal case; the overall
consideration of the judgement of acquittal; the
nature
of
the
query
in
the
application/verification form; the contents of the
character
verification
reports;
the
socio
economic strata of the individual applying; the
other antecedents of the candidate; the nature
of consideration and the contents of the
cancellation/termination order' were some of the
crucial aspects which should enter the judicial
verdict in adjudging the suitability and in
determining the nature of relief to be ordered.
(Para 9)

Broad- brushing every non-disclosure as a
disqualification would be unjust and it would be
arbitrary and unreasonable to disqualify a
572 INDIAN LAW REPORTS ALLAHABAD SERIES
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 non- arbitrariness in administrative
actions. (Para 17)

C. A conviction need not of itself involve
the refusal of a certificate of good
character.
The
circumstances
of
the
conviction should be taken into account.
(Para 14)

Mere conviction need not be regarded as
disqualification. The entire circumstances in
which his conviction was recorded as well as the
circumstances in which he is now placed should
be
taken
into
consideration.
If
he
has
completely reformed himself on attaining the
age of understanding and discretion, mere
conviction in childhood should not operate as a
bar to his entering Government service). (Para
14)

D.
Verification
of
character
and
antecedents of a candidate is required to
adjudge the suitability of the candidate for
appointment. (Para 15, 17)

In his impugned order dated 04.03.20

## Text

_Characters 0–39,959 of 53,508. This is a partial read: ask again with offset=39959 for what follows._

11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
571
tune played by the respondent
No.7, a Sub-Inspector and treating himself
to be above the law with a further attempt
to bring the Chief Standing Counsel into
hot
waters.
Such
malpractices
and
reprehensible conduct cannot be tolerated
by this Court.

12. In view of the above, this
Court deems it appropriate to direct
the State Government to initiate
disciplinary proceedings against Shri
N.B. Savita, presently posted as Joint
Development Commissioner, Kanpur
Division,
Kanpur.
The
State
Government shall be at liberty to
make interim arrangements for the
functional
discharge
of
duties
concerning
the
post
of
Joint
Development Commissioner, Kanpur
Division, Kanpur.

13. List this petition in top ten
cases before appropriate Bench on
16.01.2025.

14. On the next date fixed, the
learned Standing Counsel shall place before
this Court the action taken by the State
Government pursuant to and in furtherance
of this order.

15. Registrar (Compliance), High
Court, Allahabad is directed to send a copy
of this order to the Chief Secretary (U.P.
Government, Lucknow) for immediate
action in compliance of this order.
----------
(2024) 11 ILRA 571
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
Writ -A No. 5709 of 2019

Ashish Kumar Rajbhar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sanjay
Goswami,
Shreyas
Srivastava,
Sudhanshu Kumar

Counsel for the Respondents:
Chandan Kumar, Swapnil Kumar

A.
Service
Law
-
Non-disclosure
of
criminal case - Appointment/Recruitment
- 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. (Para 8)

B. Broad-brushing every non-disclosure as
a disqualification, would be unjust and the
same
would
tantamount
to
being
completely
oblivious
to
the
ground
realities. (Para 9)

Nature of the criminal case; the overall
consideration of the judgement of acquittal; the
nature
of
the
query
in
the
application/verification form; the contents of the
character
verification
reports;
the
socio
economic strata of the individual applying; the
other antecedents of the candidate; the nature
of consideration and the contents of the
cancellation/termination order' were some of the
crucial aspects which should enter the judicial
verdict in adjudging the suitability and in
determining the nature of relief to be ordered.
(Para 9)

Broad- brushing every non-disclosure as a
disqualification would be unjust and it would be
arbitrary and unreasonable to disqualify a
572 INDIAN LAW REPORTS ALLAHABAD SERIES
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 non- arbitrariness in administrative
actions. (Para 17)

C. A conviction need not of itself involve
the refusal of a certificate of good
character.
The
circumstances
of
the
conviction should be taken into account.
(Para 14)

Mere conviction need not be regarded as
disqualification. The entire circumstances in
which his conviction was recorded as well as the
circumstances in which he is now placed should
be
taken
into
consideration.
If
he
has
completely reformed himself on attaining the
age of understanding and discretion, mere
conviction in childhood should not operate as a
bar to his entering Government service). (Para
14)

D.
Verification
of
character
and
antecedents of a candidate is required to
adjudge the suitability of the candidate for
appointment. (Para 15, 17)

In his impugned order dated 04.03.2019, the
Superintendent of Police, relying on Clause 8
(Ja) of the Office Instructions dated 22.5.2018,
has mechanically rejected the claim of the
petitioner only on the ground of non-disclosure
of the criminal case by the petitioner. While
rejecting the claim of the petitioner, the SP has
not considered the report of the District
Magistrate which recommended the petitioner fit
for appointment. While deciding the claim of the
petitioner, the appointing authority has neither
considered
the
nature
of
alleged
suppression nor the nature of the case
registered against the petitioner and has
also not considered the fact that the
petitioner was not even put on trial in the
case. The socio-economic status of the
petitioner has also not been considered by
the Superintendent of Police and there is
no consideration regarding the suitability
of the petitioner for appointment. (Para 18)

E. Normally in cases where an authority
has wrongly exercised its discretion while
passing
an
order,
the
matter,
after
quashing the order is remitted back to the
authority concerned to pass fresh orders.
In the present case, no useful purpose
would be served to remit back the matter
to the Superintendent of Police, Ballia for
a fresh decision. The petitioner has been
disqualified and has been refused appointment
letter only on the ground of non-disclosure of a
criminal case registered against him. In view of
the reasons, mere non- disclosure of the
criminal case could not be fatal for the
appointment of the petitioner. Further, the
matter is pending in this Court since 2019 and
the petitioner was selected in the selections held
in pursuance to the notification issued in 2015.
(Para 19)

F. In a case of deliberate suppression of
fact with respect to multiple pending
cases such false information by itself will
assume significance and an employer may
pass
appropriate
order
cancelling
candidature or terminating services as
appointment of a person against whom
multiple criminal cases were pending may
not be proper. (Para 8)

In the present case are that only one criminal
case had been registered against the petitioner.
It is not the case of the St. respondents that
multiple criminal cases were registered against
the petitioner. The case was registered u/Ss
147/323/452/325 of the IPC r/w Section 3(1)(x)
Schedule
Castes
and
Schedule
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 St. respondents
that the District Magistrate, after noticing the
criminal case and after recording his opinion
that the petitioner was wrongly named in the
FIR, certified the character of the petitioner and
recommended him for appointment. The case
registered against the petitioner was
11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
573
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
on
the
post
of
constable. The petitioner had submitted
another
affidavit
(dated
26.7.2018)
disclosing the criminal case registered
against him and the said affidavit was
submitted before the report of the District
Magistrate
(dated
28/31.7.2018).
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 St.
respondents to issue an appointment
letter to him for appointment to the
post of Constable. (Para 20)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of W.B. & ors. Vs Mitul Kumar Jana, Civil
Appeal No. 8510 of 2011 (Para 5)

2. Commissioner of Police, Delhi & anr. Vs
Dhaval Singh, 1999 (1) SCC 246 (Para 5)

3. Joginder Singh Vs Union Territory of
Chandigarh & ors., 2015 (2) SCC 377 (Para 5)

4. Avtar Singh Vs U.O.I. & ors., 2016 (8) SCC
471 (Para 5)

5. Pawan Kumar Vs U.O.I. & anr., (2022) SCC
OnLine SC 532 (Para 5)

6. Ravindra Kumar Vs SU & ors., (2024) SCC
OnLine SC 180 (Para 5)

7. Vishal Kumar Vs St. of U.P. & ors., Special
Appeal No. 532 of 2023 (Para 5)

8. Satyendra Singh Vs St. of U.P. & ors., Writ - A
No. 16791 of 2023 (Para 6)
9. Chandrajeet Kumar Gond Vs High Court of
Judicature at Allahabad, 2024 SCC Online
Allahabad 251 (Para 6)

10. The St. of M.P. & ors. Vs Bhupendra Yadav,
(2023) LiveLaw (SC) 810 (Para 6)

11. Satish Chandra Yadav Vs U.O.I. & ors., 2022
LiveLaw (SC) 798 (Para 6)

12. Ram Kumar Vs St. of U.P. & ors., (2011) 14
SCC 709 (Para 15)

Present petition challenges order dated
04.03.2019,
passed
by
The
Superintendent of Police, Ballia, rejecting
the claim of the petitioner for being
appointed as Constable in U.P. Police.

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. The issue in the present 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.

2. 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
574 INDIAN LAW REPORTS ALLAHABAD SERIES
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 No. 0170 of
2017 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 chargesheet 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 No. 0170 of 2017 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.

3. The order dated 04.11.2018 was
challenged by the petitioner through Writ -
A No. 24973 of 2018 which was disposed
of by this Court vide 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
present writ petition.

4. A counter affidavit has been
filed by the State respondents which
reiterates the facts recorded in the orders
dated 04.11.2018 and 04.03.2019 passed by
the Superintendent of Police, Ballia.

5. It was argued by the counsel for
the petitioner that while passing the order
dated 04.03.2019, the Superintendent of
Police has not considered the report of the
District Magistrate recommending the
11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
575
petitioner to be fit for appointment as
Constable after noting that the petitioner
had been wrongly named in the First
Information Report and had been excluded
from the charge-sheet and that no other
case had been registered against the
petitioner. It was argued that in light of the
Office Memorandum dated 28.04.1958, the
recommendations of the District Magistrate
had to be considered by the Superintendent
of Police. It was argued that the failure of
the petitioner to disclose the criminal case
pending against him did not amount to
active misrepresentation or an intention to
deceive the authorities, therefore, the
respondents could not have legally denied
the petitioner's appointment as Constable
because of non-disclosure of the criminal
case. It was further argued that, in any case,
the criminal case registered against the
petitioner was trivial in nature and did not
disqualify the petitioner for appointment as
constable especially because the petitioner
was not named in the charge sheet,
therefore, the alleged concealment by the
petitioner was not a material suppression
warranting denial of appointment to the
petitioner. It was argued that the impugned
order has been passed mechanically and
without any application of mind by the
Superintendent of Police and is arbitrary. It
was argued that for the aforesaid reasons,
the order dated 4.3 2019 passed by the
Superintendent of Police, Ballia is contrary
to law and is liable to be quashed. In
support of his contention, the counsel for
the petitioner has relied on the judgment
and order dated 22.08.2023 passed by the
Supreme Court in Civil Appeal No. 8510
of 2011 (State of West Bengal and Ors.
vs. Mitul Kumar Jana and the judgments
reported in Commissioner of Police, Delhi
& Anr. vs. Dhaval Singh 1999 (1) SCC
246; Joginder Singh vs. Union Territory
of Chandigarh & Ors. 2015 (2) SCC 377;
Avtar Singh vs. Union of India & Ors.
2016 (8) SCC 471; Pawan Kumar vs.
Union of India & Anr. (2022) SCC
OnLine SC 532; Ravindra Kumar vs.
State of U.P. & Ors. (2024) SCC OnLine
SC 180 and Vishal Kumar vs. State of
U.P. & 4 Ors. (Special Appeal No. 532 of
2023).

6. Rebutting the contention of the
counsel for the petitioner, the Standing
Counsel has argued that the petitioner had
knowingly made a false representation
indicating that no criminal case was
registered or pending against him. It was
argued that the concealment and the
misrepresentation by the petitioner were
material suppression disqualifying him for
appointment as Constable and there is no
illegality in the order passed by the
Superintendent of Police rejecting the claim
of the petitioner. It was argued that for the
aforesaid reasons, the writ petition is liable
to be dismissed. In support of his
contention, the Standing Counsel has relied
on the judgments of this Court reported in
Satyendra Singh vs. State of U.P. & Ors.
(Writ - A No. 16791 of 2023) as well as
the judgment of a Division Bench of this
Court in Chandrajeet Kumar Gond vs.
High Court of Judicature at Allahabad
2024 SCC Online Allahabad 251 and of
the Supreme Court reported in The State of
Madhya Pradesh & Ors. vs. Bhupendra
Yadav (2023) LiveLaw (SC) 810 and
Satish Chandra Yadav vs. Union of India
& Ors. 2022 LiveLaw (SC) 798.

7.

I
have
considered
the
submissions of the counsel for the parties.

8. In Avtar Singh (supra), the
Supreme Court, after considering its
previous judgements, observed that the
'whole idea of verification of character and
576 INDIAN LAW REPORTS ALLAHABAD SERIES
antecedents is that the person suitable for
the post in question is appointed' and that
'an incumbent should not have antecedents
of such a nature which may adjudge him
unsuitable for the post.' It was observed
that mere involvement in some petty kind
of case would not render a person
unsuitable for the job. The Supreme Court
further held that suppression of material
information presupposes that suppression is
of facts which matter and failure to disclose
a trivial matter would not be relevant to
refuse appointment or to cancel the
selection. The Supreme Court observed that
a person who had suppressed material
information may not claim unfettered right
of appointment or continuity in service but
he had a right not to be dealt with
arbitrarily and exercise of power had to be
in a reasonable manner having due regard
to the facts. The yardstick to be applied
while taking a decision depended on the
nature
of
the
post
and
chance
of
reformation had to be afforded to young
offenders in suitable cases. It was also held
by the Court that the employer had to act
on due consideration of rules / instructions.
The Supreme Court summarized the law
regarding
appointment,
offer
of
appointment, cancellation of offer or
termination of appointment in cases where
the applicant had either suppressed the
facts regarding criminal cases registered
against him or was acquitted / convicted in
any criminal case. Paragraph nos. 35 to 38
of the judgment of the Supreme Court
expounding the law on the aspect are
reproduced below:-

"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.
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.
37. The "McCarthyism" is
antithesis to constitutional goal,
chance of reformation has to be
afforded to young offenders in
suitable
cases,
interplay
of
reformative theory cannot be ruled
out in toto nor can be generally
applied but is one of the factors to
be taken into consideration while
exercising the power for cancelling
candidature or discharging an
employee from service.

38.
We
have
noticed
various decisions and tried to
explain and reconcile them as far
as possible. In view of the aforesaid
11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
577
discussion,
we
summarize
our
conclusion thus:
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.
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.
38.3 The employer shall
take
into
consideration
the
Government
orders/instructions/rules,
applicable to the employee, at the
time of taking the decision.
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 : -
38.4.1 In a case trivial in
nature in which conviction had
been recorded, such as shouting
slogans at young age or for a petty
offence which if disclosed would
not have rendered an incumbent
unfit for post in question, the
employer may, in its discretion,
ignore such suppression of fact or
false information by condoning
the lapse.
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.
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.
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.
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.
38.7 In a case of deliberate
suppression of fact with respect to
multiple pending cases such false
information by itself will assume
significance and an employer may
pass appropriate order cancelling
candidature
or
terminating
services as appointment of a
person against whom multiple
578 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal cases were pending may
not be proper.
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.
38.9 In case the employee
is confirmed in service, holding
departmental enquiry would be
necessary before passing order of
termination/removal or dismissal
on the ground of suppression or
submitting false information in
verification form.
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.
38.11 Before a person is
held guilty of suppressioveri or
suggestio falsi, knowledge of the
fact must be attributable to him."
(emphasis supplied)

9. Subsequently, the Supreme
Court in Ravindra Kumar (supra) held
that there was no hard-and-fast or cut-anddried rule that, in all circumstances, non
disclosure of a criminal case would be fatal
for a candidate's employment even if the
candidate was acquitted in the criminal
case. The Court held that each case would
turn on its special facts and circumstances.
The court further observed that broadbrushing
every
non-disclosure
as
a
disqualification, would be unjust and the
same
would
tantamount
to
being
completely
oblivious
to
the
ground
realities obtaining in this great, vast and
diverse country and the court will have to
take a holistic view, based on objective
criteria, with the available precedents
serving as a guide and it can never be a one
size fits all scenario. The Supreme Court
after considering its previous judgment in
Satish Chandra Yadav (supra) observed,
in paragraph no. 31of the report, that the
'nature of the office, the timing and nature
of
the
criminal
case;
the
overall
consideration
of
the
judgement
of
acquittal; the nature of the query in the
application/verification form; the contents
of the character verification reports; the
socio economic strata of the individual
applying; the other antecedents of the
candidate; the nature of consideration and
the contents of the cancellation/termination
order' were some of the crucial aspects
which should enter the judicial verdict in
adjudging
the
suitability
and
in
determining the nature of relief to be
ordered. It would be relevant to note that in
Ravindra Kumar (Supra), the Supreme
Court, while deciding in favour of the
selected candidate, took note of the fact
that the candidate hailed from a small
village, there was no criminal case pending
against him on the date of filing the
application form, the criminal case was
registered against the candidate when he
was only 21 years of age, the verification
report after noticing the criminal case and
the subsequent acquittal stated that the
character of the candidate was good and
11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
579
that no complaints were found against him.
The general reputation of the candidate was
good, the Station House Officer in his
report had certified the character of the
candidate as excellent and that the
candidate was eligible to do Government
Service under the State Government. The
court also noticed that the report of the
Station House Officer was endorsed by the
Superintendent of Police who reiterated
that the character of the candidate was
excellent.

10. At this stage, it would be
relevant to consider some of the judgments
referred by the Standing Counsel to support
the impugned order. In Bhupendra Yadav
(supra), a criminal case under Sections
341/354 (D) of the Indian Penal Code read
with Sections 11(D)/12 of the POCSO Act
was registered against the applicant. During
the trial of the case a compromise was
arrived at between the applicant and the
complainant. A compromise application
was filed as a result of which the charge
under Section 341 I.P.C. was compounded.
So far as charges under Section 354(D) and
Sections 11(D)/12 of the POCSO Act were
concerned, the trial court acquitted the
applicant because the prosecutrix and other
prosecution witnesses had turned hostile
and refused to support the case set up by
the prosecution. Subsequently, the applicant
was appointed on the post of constable after
having qualified the selection test held for
filling up vacancies on the post of
constable. After his joining, the applicant
was asked to furnish in the Verification
form
certain
informations,
including
informations on criminal cases pending or
registered against him. The applicant
disclosed the details of the aforesaid
criminal case indicating that he had been
acquitted in the said case by the trial court.
An order was passed by the appointing
authority holding the applicant to be unfit
for government service on the ground that
offences under Section 354-D and Sections
11(D)/12 of the POCSO Act were offences
of moral turpitude. It was argued before the
Supreme Court that the order of the
appointing authority was bad in law
because the applicant, while filling the
verification form, had furnished all the
requisite informations and had truthfully
disclosed the facts of the criminal case and
its final outcome and that the applicant had
been acquitted in the case. The Supreme
Court after referring to to Paragraph nos.
38.4.3 and 38.5 of the judgment in Avtar
Singh (Supra) held that even in cases of
truthful disclosure the employer was well
within its rights to examine the fitness of a
candidate and in a concluded criminal case,
the employer had to keep in mind the
nature of the offence and verify whether the
acquittal is honourable or benefit has been
extended to the accused on technical
grounds. It was held by the Supreme Court
that the employer was empowered not to
appoint a candidate or continue the
incumbent on the post if the employer
arrives at the conclusion that the candidate
is a suspect character or unfit for the post.
The Supreme Court noted that the charges
against the applicant involved moral
turpitude and that his acquittal was not a
clean and honourable acquittal but the
acquittal was because of the compromise
between the complainant and the applicant
and during trial the prosecutrix as well as
other prosecution witness had refused to
support the case of the prosecution.

11. In Satish Chandra Yadav
(supra), a charge sheet had been filed
against the employee. The Supreme Court
recognized that each case had to be
scrutinized thoroughly by the employer
concerned and the Court is obliged to
580 INDIAN LAW REPORTS ALLAHABAD SERIES
examine whether the procedure of inquiry
adopted by the authority concerned was fair
and reasonable. Considering its own
judgment
in
Satish
Chandra
Yadav
(supra), the Supreme Court in Ravindra
Kumar (Supra) held that mere nondisclosure of a criminal case by a candidate
who had been acquitted in the said criminal
case cannot be fatal for the candidate's
employment and broad brushing every nondisclosure as a disqualification would be
unjust.

12. In Chandrajeet Kumar Gond
(supra), the Division Bench of this Court
(of which I was a member) rejected the
claim of the petitioner and affirmed the
order passed by the employer terminating
the services of the employee as the case
registered against the petitioner was under
Section 307 of IPC and was, therefore,
serious in nature.

13. As noted above, in Avtar
Singh (Supra), the Supreme Court held
that while deciding the suitability for
appointment of a selected candidate against
whom a criminal case had been registered,
the employer had to take into consideration
the Government orders/instructions/rules
applicable at the time of taking the
decision. Hence, at this stage it would be
relevant
to
refer
to
the
rules
and
instructions of the State Government
regarding the verification of the character
and
antecedents
of
applicants
for
government service before their first
appointment. The Office Memorandum
dated 28.4.1958 prescribes the manner in
which the appointing authority shall verify
the character and antecedents of applicants
for government service and also the factors
which
may
be
relevant
for
such
verification. The Office Instructions dated
22.5.2018 issued by the Superintendent of
Police (Personnel) also prescribes the
procedure and factors to be taken into
consideration while verifying the character
of an applicant for appointment as
Constable in U.P. Police.

14. Clause 3 (b) of the Office
Memorandum dated 28.04.1958 provides
that in cases of doubt regarding the conduct
and character of the candidate, the
appointing authority may either ask for
further references or may refer the matter to
the District Magistrate concerned who may
then make such further inquiries as he
considers necessary. A reading of Clause 3
(b) and the Note to Clause 3 shows that the
report of the District Magistrate is a
relevant and an important material to be
taken into consideration while deciding the
suitability of a candidate for appointment to
any post under the State Government. The
Note to Clause 3 provides that a mere
conviction by itself would not be a cause to
refuse a certificate of good character and
would also not be a disqualification for
appointment to government service. It is
the entire circumstances in which the
conviction
was
recorded
and
the
circumstances in which the candidate is
presently
placed
which
should
be
considered while deciding the suitability of
the
candidate
for
appointment
to
government
service.
The
Note
also
acknowledges that while deciding the
suitability of the candidate for appointment
to government service the fact that he had
completely reformed himself would be
relevant.
Clause
3
of
the
Office
Memorandum dated 28.04.1958 and the
Note attached to the clause are reproduced
below:-

"3. a) Every direct recruit
to any service under the Uttar
11 All. Ashish Kumar Rajbhar Vs. State of U.P. & Ors.
581
Pradesh
Government
will
be
required to produce:
(i) A certificate of conduct
and character from the head of the
educational institution where he
last studied (if he went to such an
institution).
(ii)
Certificates
of
character from two persons. The
appointing authority will lay down
requirements as to kind of persons
from
whom
it
desires
these
certificates.
(b) In cases of doubt, the
appointing authority may either ask
for further references, or may refer
the case to the District Magistrate
concerned. The District Magistrate
may
then
make
such
further
enquiries
as
he
considers
necessary.
Notes.-(a)
A
conviction
need not of itself involve the
refusal of a certificate of good
character. The circumstances of
the conviction should be taken
into account and if they involve no
moral turpitude or association with
crimes of violence or with a
movement which has as its object to
overthrow by violent means of
Government
as
by
law
now
established in free India the mere
conviction need not be regarded as
disqualification. (Conviction of a
person during his childhood should
not necessarily operate as a bar to
his entering Government service.
The entire circumstances in which
his conviction was recorded as
well as the circumstances in which
he is now placed should be taken
into consideration. If he has
completely reformed himself on
attaining the age of understanding
and discretion, mere conviction in
childhood should not operate as a
bar to his entering Government
service).
(b) While no person should
be considered unfit for appointment
solely because of his political
opinions, care should be taken not
to employ persons who are likely to
be disloyal and to abuse the
confidence placed in them by virtue
of their appointment. Ordinarily,
persons who are actively engaged
in subversive activities including
members of any organization the
avowed object of which is to
change the existing order of society
by
violent
means
should
be
considered unfit for appointment
under Government. Participation in
such activities at any time after
attaining the age of 21 years and
within three years of the date of
enquiry should be considered as
evidence that the person is still
actively engaged in such activities
unless in the interval there is
positive evidence of a change of
attitude,
(c) Persons dismissed by
the Central Government or by a
State Government will also be
deemed to be unfit for appointment
to
any
service
under
this
Government.
In
the
case
of
direct
recruits to the State Services under
the Uttar Pradesh Government
besides requiring the candidates to
submit the certificates mentioned in
paragraph
3
(a)
above
the
appointing authority shall refer all
cases simultaneously to the Deputy
Inspector
General
of
Police,
Intelligence
and
the
District
582 INDIAN LAW REPORTS ALLAHABAD SERIES
Magistrate [of the home district
and of the district(s) where the
candidate has resided for more
than a year within five years of the
date of the inquiry) giving full
particulars about the candidate.
The District Magistrate shall get
the reports in respect of the
candidates from the Superintendent
of Police who will consult District
Police Records and records of the
Local
Intelligence
Unit.
The
District Police or the District
Intelligence Unit shall not make
any enquiries on the spot, but shall
report from their records whether
there is anything against the
candidate, but if in any specific
case the District magistrate, at the
instance of the appointing authority
asks for an enquiry on the spot, the
Local
Police
or
the
Local
Intelligence Units will do so and
report the result to him. The
District
Magistrate
shall
then
report his own views to the
appointing authority. Where the
District
Police
or
the
Local
Intelligence Units report adversely
about a candidate, the District
Magistrate may give the candidate
a hearing before sending his
report."

15. The importance of the Office
Memorandum
dated
28.04.1958
was
noticed by the Supreme Court in Ram
Kumar vs. State of U.P. & Others (2011)
14 SCC 709 which was also considered by
the Supreme Court in Avtar Singh (Supra).
In Ram Kumar (supra) the candidate had
challenged the order of the appointing
authority cancelling his selection after he
was appointed on the post. The appointing
authority had cancelled the selection only
on the ground that in his affidavit the
applicant had not disclosed that a criminal
case under Sections 323/34/504 IPC had
been registered against him in which he had
been acquitted. The Supreme Court held
that in view of the Office Memorandum
dated 28.04.1958, it was the duty of the
appointing authority to satisfy itself as to
whether the applicant was suitable for
appointment to the post of Constable with
reference to nature of suppression and
nature of the criminal case. The Supreme
Court held that the appointing authority
could not have found the applicant
unsuitable for appointment to the post of
Constable merely because the applicant had
furnished an affidavit stating incorrectly the
facts regarding registration of a criminal
case against him even though he was
acquitted in the criminal case. The Supreme
Court consequently quashed the order of
the appointing authority cancelling the
selection and appointment of the applicant
and directed that that the applicant be
reinstated
in
service.
However,
the
Supreme Court denied back-wages for the
period the candidate remained out of
service. The relevant observations of the
Supreme Court in paragraph nos. 9 to 14 of
the report are reproduced below:-

"9. We have carefully read
the Government Order dated 28-41958 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:
"The
rule
regarding
character
of
candidate
for
appointment
under
the
State
11 All.