# Dharmendra Kumar v. State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-18
- **Case number:** Writ A No. 19777 of 2007
- **Bench:** Ravi Nath Tilhari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-v-state-of-u-p-ors-46087
- **Pages:** 12

## Headnote

A. Service Law -Police Act, 1861- U.P.
Police Regulations - Constitution of India -
Article 309 - U.P. Temporary Government
Servants (Termination of Services) Rules,
1975-Cancellation
of
selection
on
concealment of material fact-The rules
framed under proviso to Article 309 of the
Constitution of India including the U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975, are
not applicable to the police force as their
services are governed by the Police Act,
1861, the Rules and the U.P. Police
Regulations, framed under the Police Act,

## Text

_Characters 0–39,754 of 41,083. This is a partial read: ask again with offset=39754 for what follows._

9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
93
the petitioners at RGSC, if they so desire
whenever B.Ed. course after following due
procedure and permission from the NCTE
commences at RGSC.

45. For the reasons give above, the writ
petition is allowed subject to observations
above with no orders as to cost.
----------
(2020)09ILR A93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.06.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Writ A No. 19777 of 2007

Dharmendra Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Satya Prakash Pandey

Counsel for the Respondents:
C.S.C., Sri J.P. Singh, Sri Shailendra Singh

A. Service Law -Police Act, 1861- U.P.
Police Regulations - Constitution of India -
Article 309 - U.P. Temporary Government
Servants (Termination of Services) Rules,
1975-Cancellation
of
selection
on
concealment of material fact-The rules
framed under proviso to Article 309 of the
Constitution of India including the U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975, are
not applicable to the police force as their
services are governed by the Police Act,
1861, the Rules and the U.P. Police
Regulations, framed under the Police Act,
1861. (Para 16, 17)

Therefore, the impugned order of termination
dated 07.04.2007 passed under Rules, 1975
cannot be sustained being without jurisdiction.
(Para 18)
B. 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 23)

It is settled in law that the information given to
an 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 must not be
suppression of the required information. In
case, there is suppression, or false information
is furnished, the employer may consider all
relevant facts available as to the antecedents
and may take appropriate decision as to the
continuance of the employee or in case of
selection for his appointment. (Para 25)

In the present case there was suppression of
material fact regarding pendency of a criminal
case but later on the petitioner was acquitted in
Case Crime No. 409 of 2005. Another Case
Crime No. 956 of 2006 under Sections
420/467/468 and 471 IPC, which was registered
against the petitioner in view of the fact that he
had suppressed pendency of Case Crime No.
409 of 2005 in his affidavit for verification, also
resulted in petitioner's acquittal. (Para 26)

Another important aspect of the matter, is, that
the petitioner was sent on initial training of
constable by order dated 30.08.2006 of the
Superintendent of Police, Kannauj, after seeking
legal opinion in view of pendency of Case Crime
No. 409/2005, against the petitioner at that
point of time. (Para 26)

Again, the Superintendent of Police, Kannauj on
consideration of the legal opinion and the
judgment of acquittal dated 23.12.2006 (after
the petitioner was acquitted in Case Crime No.
409 of 2005) found the petitioner suitable for
94 INDIAN LAW REPORTS ALLAHABAD SERIES
the post of constable and in its discretion
took a conscious decision to send the
petitioner
for
intensive
training,
notwithstanding the fact that the petitioner,
in his affidavit for verification did not
disclose the pendency of Case Crime No.
409 of 2005 against him. The authority thus
determined the suitability and condoned the
lapse of the petitioner candidate in not
disclosing the correct fact. (Para 26, 28)

Once, the Competent Authority/Superintendent
of Police, Kannauj found the petitioner suitable
for the post after his acquittal and sent him for
intensive training, the impugned order dated
07.04.2007, terminating the services of the
petitioner as no longer required, could not be
legally passed on the ground of concealment of
material fact. (Para 29)

Writ petition allowed. (E-4)

Precedent followed:

1. Anuj Yadav Vs St. of U.P. & 3 ors., Special
Appeal Defective No. 1330 of 2013 (DB),
decided on 03.01.2014 (Para 9, 17)

2. St. of U.P. Vs Praveen Tyagi recruit constable,
Special Appeal Defective No. 341 of 2010,
decided on 20.11.2013 (Para 9, 17)

3. Vijay Singh & ors. Vs St. of U.P. & ors., 2004
(4) ESC 2209 (FB) (Para 9, 16)

4. Anuj Yadav Vs St. of U.P., Special Appeal
(Defective) No. 1130 of 2013 (Para 17)

5. Praveen Tyagi Vs St. of U.P. & ors., 2010 (1)
U.P.L.B.E.C. 478 (Para 17)

6. Avatar Singh Vs U.O.I. & ors., (2016) 8 SCC
471 (Para 11, 23, 24)

Precedent cited:

1. Dipti Prakash Banerjee Vs Satyendra Nath
Bose National Centre for Basic Sciences, (1999)
3 SCC 60 (Para 10)

2. Awadesh Kumar Sharma Vs U.O.I., (2000) 1
UPLBEC 763 (DB) (Para 10)
Present
writ
challenges
order
dated
07.04.2007, passed by the Superintendent
of Police Kannauj.

(Delivered by Hon'ble Ravi Nath Tilhari, J.)

1. Heard Sri Satya Prakash Pandey,
learned counsel for the petitioner and the
learned Standing Counsel.

2. By means of the present writ
petition, the petitioner has prayed for issue
of a writ in the nature of certiorari quashing
the order dated 7.4.2007 passed by the
Superintendent
of
Police
Kannauj
(Annexure No.2 to the writ petition), by
which the petitioner's services were no
longer required, giving him one month's
salary and allowances, if any, for the notice
period,
under
the
U.P.
Temporary
Government Servants (Termination of
Services) Rules, 1975 (hereinafter referred
as the Rules, 1975). The petitioner has
further prayed for issue of a writ of
mandamus, commanding the respondents to
permit him to continue and complete his
training of constable and to appoint him as
constable in U.P. Police and pay salary and
other emoluments, in accordance with law.

3. Facts of the case are that in the
recruitment process for the post of
constables in U.P. Police, year 2005-06, the
petitioner qualified in physical and written
test and after interview he was declared
successful and was selected on the post of
constable in District Kannauj. The selected
candidates were required to submit an
affidavit in the prescribed proforma for
police verification. The petitioner also filed
an affidavit dated 10.6.2006 verified by
public notary, but in the said affidavit the
petitioner stated that there was no criminal
case pending against him. On police
verification, the Station Officer, Police
9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
95
Station- Vidhunu submitted report dated
23.6.2006 that a Case Crime No. 409 of
2005 under Sections 324, 504 and 506
I.P.C. was registered against the petitioner,
in which charge sheet had also been filed.
However, the police report stated that the
petitioner was a person of good character
and reputation.

4. After the police verification report, the
Superintendent of Police, Kannauj/Respondent
No.3 vide letter dated 18.7.2006, sought
opinion from the District Magistrate, Kannauj
for sending the petitioner on training and after
the letter of the District Magistrate, Kannauj,
dated 23.8.2006 to the effect that, there was no
legal
impediment
in
the
petitioner's
appointment, the petitioner was sent for initial
training to Etawah by order dated 30.8.2006.

5. A show cause notice dated
27.11.2006 (Annexure No.1 to the writ
petition) was served to the petitioner to
show cause as to why his selection be not
cancelled, for concealment of the fact of
pendency of the criminal case against him.

6. The petitioner filed reply dated
14.12.2006 stating, interalia, that on the
date
of
submitting
application
for
recruitment process i.e. on 3.9.2005, no
case was registered against him. The Case
Crime No. 409 of 2005 under Sections 324,
504 and 506 IPC was registered against
him due to minor family disputes. The
petitioner, however, admitted that in the
affidavit filed by him due to inadvertant
mistake and oversight of the learned
advocate, as many affidavits were being
prepared of so many candidates, the
petitioner's case could not be separated and
the pendency of Case Crime No. 409 of
2005 could not be disclosed and his
affidavit was also prepared on the same
lines as of so many other candidates.

7. At this stage it requires mention
that, later on, in case Crime No. 409 of
2005 under Sections 323, 504 and 506 IPC,
the petitioner was acquitted by judgment
dated
23.12.2006
passed
by
the
Metropolitan Magistrate, Kanpur Nagar
and considering the petitioner's acquittal,
he was sent to Etawah for intensive training
vide
letter
dated
8.1.2007,
by
the
Superintendent of Police, Kannauj.

8. The Superintendent of Police,
Kannauj by the impugned order dated
7.4.2007 terminated the services of the
petitioner, under the U.P. Temporary
Government
Servant
(Termination
of
Service) Rules, 1975, as no longer required
on the ground that the petitioner concealed
the material fact of pendency of Case
Crime No. 409 of 2005 against him. The
petitioner's reply to the show cause notice
was not found convincing. The petitioner
has submitted that he was undergoing
intensive training and in the meantime he
received the order dated 7.4.2007.

9. Sri Satya Prakash Pandey learned
counsel for petitioner has submitted that the
order dated 7.4.2007 is without jurisdiction as
the Rules 1975, are not applicable to the police
constables. Reliance has been placed on the
judgment of this Court in the cases of Anuj
Yadav Vs. State of U.P. and three others
(Special Appeal Defective No. 1330 of 2013)
(DB) decided on 3.1.2014; State of U.P. Vs.
Praveen Tyagi recruit constable (Special
Appeal Defective No. 341 of 2010 decided
on 20.11.2013, and Vijay Singh and others
Vs. State of U.P. and others reported in
2004 (4) ESC 2209 (FB).

10. Learned counsel for the petitioner
next contended that the impugned order is
stigmatic
and
punitive.
The
alleged
misconduct is the foundation of the order
96 INDIAN LAW REPORTS ALLAHABAD SERIES
and as such a regular enquiry must have been
conducted. In any case, he submits that on two
petitioner's acquittal in case Crime No. 409 of
2005 the stigma attached in view of pendency
of criminal case also stood vanished. He has
placed reliance on the judgment in the case of
Dipti Prakash Banerjee Satyendra Nath
Bose National Centre for Basic Sciences
(1999) 3 SCC 60 and Awadesh Kumar
Sharma Vs. Union of India (2000) 1
UPLBEC 763 (DB).

11. Lastly, placing reliance on the
case of Avatar Singh Vs. Union of India
reported in (2016) 8 SCC 431, the learned
counsel for petitioner submitted, that in
case of suppression of relevant information
or
furnishing
false
information,
the
competent authority is required to consider
various aspects and take appropriate
decision to appoint or not to appoint the
selected candidate. The impugned order
dated 7.4.2007 does not stand the test of the
law laid down in the case of Avatar Singh
(supra) and deserves to be quashed.

12. Learned Standing Counsel has
submitted that the petitioner concealed the
material fact of pendency of criminal case
against him, which had material bearing on
the petitioner's selection and appointment.
The antecedents of a candidate are required
to be looked into and a person of criminal
nature or with criminal background cannot
be allowed to enter the services and in
particular the services of a disciplined
force. He has next submitted that the
impugned order is not stigmatic but an
order of termination simplicitor and as such
any regular inquiry was not required to be
conducted in the matter before passing the
impugned order.

13. Learned standing counsel has,
however, not disputed the fact that the
petitioner was acquitted in Case Crime No.
409 of 2005 by the competent court of law,
but he has submitted that another Case
Crime No. 956 of 2006 under Sections 420,
467, 468 and 471 IPC, was also registered
against the petitioner for filing false
affidavit for police verification, in the
present
recruitment
process.
To
this
submission,
learned
counsel
for
the
petitioner submitted that in Case Crime
No. 956 of 2006 also the petitioner was
acquitted vide judgment dated 8.2.2012
passed by the Chief Judicial Magistrate,
Kannauj.
(Annexure
SA-1
to
the
supplementary affidavit).

14. I have considered the submissions
advanced by the learned counsel for the
petitioner and the learned standing counsel
and have also perused the material on
record.

15. The petitioner, a selected
candidate for the post of constable in U.P.
Police in the recruitment process year
2005-06, was given a show cause notice
dated 27.11.2006 as to why his selection be
not cancelled as the petitioner did not
disclose pendency of Case Crime No.
409/2005 under Sections 323/504/506
I.P.C. against him in the affidavit for police
verification. The order of termination of
services as no longer required was passed
by the Superintendent of Police, Kannauj,
after considering the petitioner's reply, on
the ground that the petitioner by playing
fraud and concealment of material fact
appeared in the recruitment process for the
post of constable. The order was passed
making specific reference to the U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975.

16. In the case of Vijay Singh and
another Vs. State of U.P. and others
9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
97
reported in 2004 (4) ESC 2209 (F.B.), it
has been held that the field , the police
service, is already occupied by the
provisions of the Police Act, 1861, and as
such Rules 1972 as involved in that case,
passed
under
Article
309
of
the
Constitution of India would not be attracted
at all. It is relevant to reproduce paragraph
Nos. 17,18,64 and 65 of Vijay Singh case
(supra) as under:-

"17. Police Service may, under
certain circumstances, be considered as
separate and distinguishable from any
other State Public Service for the reason
that police is subject matter of Entry 2 of
List II and State Public Service falls under
Entry 51 of List II, therefore, it cannot be
held that whatever laws are framed for
State Public Service, will automatically
become binding for police personnel unless
so adopted by the State Government or
Rules are framed to that extent. There can
be no doubt to the settled legal proposition
that any order issued under the provisions
of an Act has statutory force. Section 2 of
the
Act,
1861
empowers
the
Suite
Government to frame Rule or issue
Government Order. It reads as under:

"The entire police establishment
under a (Provincial Government).............
shall
be
formally
enrolled..........................and
shall
be
constituted in such a manner as shall from
time to time be ordered by the Provincial
Government.

Subject to the provisions of this
Act the pay and all other conditions of
sendee of members of the subordinate ranks
of any police force shall be such as may be
determined by the State Government."

64. In the view of the above, we
reach the inescapable conclusion that
statutory rules cannot be set at naught by
issuing executive instructions. But the facts
of the instant case do no make the said
proposition of law applicable at all. As
herein the field is already occupied by the
provisions of Act, 1861 which is in
operation by virtue of the provisions of
Article 313 of the Constitution, thus. Rules,
1972 could not be attracted at all. The
Government Orders issued for fixing the
maximum
age
for
recruitment
on
subordinate police posts operate in an
entirely different field and are not in
conflict with the Rules, 1972. The case
stands squarely covered by the Apex Court
judgment in Chandra Prakash Tiwari
(supra) and, thus, it is not possible for us to
take any other view. The main submissions
made
by
Mr.
Chaudhary
that
PreConstitutional
law
stands
abrogated
altogether by commencement of the Rules,
1972, is devoid of any merit.

Therefore; our answer to question
No. 1 is that the field stood occupied on
account of the provisions of Section 2 of the
Act, 1961. The Legislature while enacting
the provisions of Section 2 of Act, 1961
itself delegated the power to the statutory
authorities to fix the eligibility including
the age etc, The statutory authorities had
performed their duties in exercise of the
delegated powers from time to time without
any deviation therefrom.

65.
In
such
facts
and
circumstances, there was no occasion for
His Excellency, the Governor to frame the
Rules under the proviso to Article 309 of
the Constitution, also applicable in the case
of
recruitment
of
subordinate
police
officers.".

17. In the cases of Anuj Yadav Vs.
State of U.P. Special Appeal (Defective)
No. 1130 of 2013 and Praveen Tyagi Vs.
State of U.P. and others 2010 (1)
U.P.L.B.E.C. 478 this Court held that the
rules framed under proviso to Article 309
98 INDIAN LAW REPORTS ALLAHABAD SERIES
of the Constitution of India including the
U.P. Temporary
Government Servants
(Termination of Service) Rules, 1975, are
not applicable to the police force as their
services are governed by the Police Act,
1861, the Rules and the U.P. Police
Regulations, framed under the Police Act,
1861.

18. In view of the above, I find force
in the submission of the learned counsel for
the petitioner that the impugned order of
termination passed by the Superintendent
of Police, Kannauj dated 7.4.2007 passed
under Rules 1975 cannot be sustained
being without jurisdiction.

19. The question if the impugned
order is stigmatic or an order of termination
simplicitor looses significance, once the
order is held to be bad for want of
jurisdiction under Rules 1975, which rules
are not applicable to the police force.

20. The next submission of the
petitioner's counsel is that the competent
authority has not considered various
aspects of the matter before passing the
impugned order on the ground that the
petitioner did not disclose pendency of the
criminal case against him in his affidavit.
He submits that the effect of acquittal and
that the petitioner was sent for training,
after his acquittal have not been duly taken
into
consideration,
which
vitiate
the
impugned order.

21. The whole idea of verification of
character and antecedents is that the person
suitable for the post in question is
appointed. The information on prescribed
proforma
is
required
to
ascertain
antecedents of the candidate to judge his
suitability for appointment or continuance
in
service.
Character,
conduct
and
antecedents do have impact on the nature of
employment. The candidate must answer
the questions in the affidavit/proforma
truthfully and fully. Any misrepresentation
or suppression or false statement would
demonstrate
conduct
or
character
unbefitting for service and in particular
security service like police force.

22. There is no dispute that the
petitioner in the affidavit, did not disclose
the correct fact as regards pendency of
criminal case against him. On the date the
affidavit was filed the Case Crime No. 409
of 2005 was pending, although, on the date
the petitioner applied for the post in the
recruitment process, there was no criminal
case
against
him.
The
petitioner's
contention that the Case Crime No.
409/2005 was lodged due to minor family
dispute, might be correct, but did not
absolve him from disclosing the correct
facts.

23. In the case of Avatar Singh Vs.
Union of India and others 2016 (8) SCC
471 the Hon'ble Supreme Court has
discussed
in
detail
the
object
of
verification, suppression of material facts
in the information furnished, its effect on
selection/appointment and the power of the
authorities to be exercised and the manner
of exercise of such power when the
material fact comes to their knowledge. It
is relevant to reproduce paragraph Nos. 29,
30, 32, 34, 35 and 36 as under:

29.
The
verification
of
antecedents is necessary to find out fitness
of incumbent, in the process if a declarant
is found to be of good moral character on
due verification of antecedents, merely by
suppression of involvement in trivial
offence which was not pending on date of
filling attestation form, whether he may be
9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
99
deprived of employment? There may be
case of involving moral turpitude/serious
offence in which employee has been
acquitted but due to technical reasons or
giving benefit of doubt. There may be
situation when person has been convicted
of an offence before filling verification form
or case is pending and information
regarding it has been suppressed, whether
employer should wait till outcome of
pending criminal case to take a decision or
in case when action has been initiated there
is already conclusion of criminal case
resulting in conviction/acquittal as the case
may be. The situation may arise for
consideration of various aspects in a case
where disclosure has been made truthfully
of required information, then also authority
is required to consider and verify fitness for
appointment.
Similarly
in
case
of
suppression also, if in the process of
verification
of
information,
certain
information comes to notice then also
employer is required to take a decision
considering various aspects before holding
incumbent as unfit. If on verification of
antecedents a person is found fit at the
same time authority has to consider effect
of suppression of a fact that he was tried
for trivial offence which does not render
him unfit, what importance to be attached
to such non-disclosure. Can there be single
yardstick to deal with all kind of cases?

30.
The
employer
is
given
'discretion' to terminate or otherwise to
condone the omission. Even otherwise,
once employer has the power to take a
decision when at the time of filling
verification form declarant has already
been convicted/acquitted, in such a case, it
becomes obvious that all the facts and
attending circumstances, including impact
of suppression or false information are
taken into consideration while adjudging
suitability of an incumbent for services in
question. In case the employer comes to the
conclusion that suppression is immaterial
and even if facts would have been disclosed
would not have affected adversely fitness of
an incumbent, for reasons to be recorded, it
has power to condone the lapse. However,
while doing so employer has to act
prudently on due consideration of nature of
post and duties to be rendered. For higher
officials/higher posts, standard has to be
very
high
and
even
slightest
false
information or suppression may by itself
render a person unsuitable for the post.
However same standard cannot be applied
to each and every post. In concluded
criminal cases, it has to be seen what has
been suppressed is material fact and would
have rendered an incumbent unfit for
appointment. An employer would be
justified in not appointing or if appointed to
terminate services of such incumbent on
due consideration of various aspects. Even
if disclosure has been made truthfully the
employer has the right to consider fitness
and while doing so effect of conviction and
background facts of case, nature of offence
etc. have to be considered. Even if acquittal
has been made, employer may consider
nature of offence, whether acquittal is
honourable or giving benefit of doubt on
technical reasons and decline to appoint a
person who is unfit or dubious character. In
case employer comes to conclusion that
conviction or ground of acquittal in
criminal case would not affect the fitness
for
employment
incumbent
may
be
appointed or continued in service.

32. No doubt about it that once
verification
form
requires
certain
information to be furnished, declarant is
duty bound to furnish it correctly and any
suppression of material facts or submitting
false information, may by itself lead to
termination of his services or cancellation
of candidature in an appropriate case.
100 INDIAN LAW REPORTS ALLAHABAD SERIES
However, in a criminal case incumbent has
not been acquitted and case is pending
trial, employer may well be justified in not
appointing such an incumbent or in
terminating the services as conviction
ultimately may render him unsuitable for
job and employer is not supposed to wait
till outcome of criminal case. In such a
case non disclosure or submitting false
information would assume significance and
that by itself may be ground for employer to
cancel
candidature
or
to
terminate
services.

34. No doubt about it that
verification of character and antecedents is
one of the important criteria to assess
suitability and it is open to employer to
adjudge antecedents of the incumbent, but
ultimate action should be based upon
objective criteria on due consideration of
all relevant aspects.

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 concerned authorities
considering post/nature of duties/services
and power has to be exercised on due
consideration of various aspects.

24. In Avatar Singh case (supra)
Hon'ble Supreme Court has summarized
conclusions in paragraph 38 which is also
being reproduced as under:-

"38. We have noticed various
decisions and tried to explain and reconcile
them as far as possible. In view of
aforesaid 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 recourse 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
9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
101
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 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 suppressio veri or suggestio falsi,
knowledge of the fact must be attributable
to him."

25. It is thus settled in law that the
information given to an 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 must not be
suppression of the required information. In
case,
there
is
suppression,
or
false
information
is
furnished
as
regards
involvement in a criminal case, where
conviction or acquittal has already been
recorded or pendency of a criminal case;
and such fact, later on comes to the
knowledge, the employer may in its
discretion, ignore such suppression of fact
or false information by condoning the lapse
considering the nature of offence, if trivial
in nature; or/and suppression is immaterial
as even if the facts would have been
disclosed, would not have adversely
102 INDIAN LAW REPORTS ALLAHABAD SERIES
affected fitness of the incumbent. Where
conviction has been recorded in a case
which is not trivial in nature the employer
may cancel the candidature or terminate the
services of the employee. If acquittal has
already been recorded in a case involving
moral
tirpitude
or
offence
of
heinous/serious nature, the employer may
consider if 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
the
antecedents and may take appropriate
decision as to the continuance of the
employee or in case of selection for his
appointment.

26. In the present case there was
suppression of material fact but later on the
petitioner was acquitted in Case Crime No.
409 of 2005. Another Case Crime No. 956
of 2006 under Sections 420/467/468 and
471 IPC, which was registered against the
petitioner in view of the fact that he had
suppressed pendency of Case Crime No.
409 of 2005 in his affidavit for verification,
also resulted in petitioner's acquittal. Yet,
another important aspect of the matter, is,
that the petitioner was sent on initial
training of constable by order dated
30.8.2006 of the Superintendent of Police,
Kannauj, after seeking legal opinion in
view of pendency of Case Crime No. 409/
2005 under Sections 323/504/506 IPC
against the petitioner at that point of time.
Again, after the petitioner was acquitted in
Case Crime No. 409 of 2005 on the
petitioner's representation for sending him
for intensive training, in view of his
acquittal by order dated 23.12.2006 the
Superintendent of Police, Kannauj, on
consideration of legal opinion and the
judgment of the Court dated 23.12.2006,
sent the petitioner for intensive training
with request to the Senior Superintendent
of
Police,
Etawah,
by
letter
No.
300/2005/06 dated 8.1.2007 along with his
records.

27. The most relevant part of the
order
dated
8.1.2007
is
that
the
Superintendent of Police, Kannauj after
considering the judgment of acquittal dated
23.12.2006 recorded specific finding that
the
petitioner/recruit
constable,
Dharmendra Kumar, was suitable for the
post of Arakshi/Constable and, as such, it
was preferable to send him for intensive
training. This letter dated 8.1.2007 is
Annexure No.5 to the writ petition which is
being reproduced as under:-

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9 All. Dharmendra Kumar Vs. State of U.P. & Ors.
103
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}kjk dh tk jgh gSA

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28. Thus the Superintedent of Police,
Kannauj on consideration of the legal
opinion and the judgment of acquittal dated
23.12.2006 found the petitioner suitable for
the post of constable and in its discretion
took a conscious decision to send the
petitioner
for
intensive
training,
notwithstanding the fact that the petitioner,
in his affidavit for verification did not
disclose the pendency of Case Crime No.
409 of 2005 against him. The authority thus
determined the suitability and condoned the
lapse of the petitioner candidate in not
disclosing the correct fact .

29. A perusal of the impugned order
dated
7.4.2007
passed
by
the
Superintendent of Police, Kannauj, does
not show that it took care of the petitioner's
acquittal dated 23.12.2006 or of the
letter/order of the Superintendent of Police,
Kannauj dated 8.1.2007, whereby, the
petitioner, after having been found suitable
for the post of constable was sent for
intensive training. Once, the Competent
Authority/Superintendent
of
Police,
Kannauj found the petitioner suitable for
the post after his acquittal and sent him for
intensive training, the impugned order
dated 7.4.2007could not be legally passed
on the ground it has been passed. The
imugned order thus has suffers from legal
infirmity on this count as well.

30. During the continuance of the
petitioner's intensive training, the impugned
order dated 7.4.2007 was passed. This
Court by interim order dated 1.5.2007
stayed the order dated 7.4.2007 to the
extent that the petitioner was permitted to
complete the training. Learned counsel for
the petitioner is not able to state if the
petitioner has been allowed to complete the
intensive training or not.

31. In view of the order dated
8.1.2007 of the Superintendent of Police
Kannauj (Annexure-5 to the Writ Petition)
as quoted above, finding the petitioner
suitable for the post of constable after his
104 INDIAN LAW REPORTS ALLAHABAD SERIES
acquittal and sending him for intensive
training, I do not find any reason or
justification to remit the mater to the
Superintendent of Police, Kannauj for
reconsideration of the matter.

32. Thus considered the writ petition
deserves to be allowed and the impugned
order dated 7.4.2007 deserves to be
quashed.

33. The impugned order dated
7.4.2007
is
hereby
quashed.
The
Respondents 1 to 3 are directed to take
necessary and further action consequent
upon quashing of the impugned order, in
the matter of the recruitment of the
petitioner for his appointment on the post
of constable if there is no other legal
impediment. The authorities shall ensure
that the petitioner is allowed to complete
the intensive training, if not already
completed. The entire exercise shall be
done within a period of three months from
the date of production of a certified copy of
this judgment before the Respondent Nos. 1
to 3.

34. The writ petition is allowed. No
orders as to costs.
----------
(2020)09ILR A104
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.04.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A No. 25477 of 2003

Bhagwan Din & Anr. ...Petitioners
Versus
District Magistrate, Kaushambi & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Amar Nath Tripathi, Sri Rajendra Kumar
Dubey, Sri Santosh Kumar Pandey, Sri W.A.
Siddiqui, Sri K.J. Shukla

Counsel for the Respondents:
C.S.C.

A. Service Law - Regularisation -U.P.
Public Services (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Section 3 -
U.P. Commissioners and District Officers
Motor Vehicle Driver Service Rules, 1978 -
Rule 14, 15; U.P. Regularization of Daily
Wages Appointment on Group 'D' Posts
Rules, 2001- Rule 4(1).