# Dinesh Kumar v. State of U.P. & Anr

- **Citation:** (2024) 11 ILRA 300
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-05
- **Case number:** Writ -A No. 817 of 2024
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-kumar-v-state-of-u-p-anr-51009
- **Pages:** 14

## Headnote

A. Civil Law - Constitution of India,1950Article
226-whether
the
omission
to
disclose pending criminal cases by a
selected candidate in a declaration form
disqualified him from govt. employment,
despite subsequent acquittal and noninvolvement in one of the cases-Nondisclosure of pending or past criminal
cases must be evaluated contextually,
taking into account the nature of offenses,
the outcome of the cases and the intent
behind the omission-The Apex Court laid
down principles in Avtar Singh cases and
subsequent cases, held that suppression
of
trivial
matters
or
unintentional
omissions cannot automatically disqualify
a
candidate-Employers
must
exercise
discretion reasonably and fairly, avoiding
arbitrary decisions in assessing character
verification
and
suitability
for
appointment-Hence, the court quashed
the rejection order issued by the State
and
directed
the
issuance
of
the
appointment
letter
to
the
petitioner
within one month-the court held that the
petitioner's
omission
was
neither
deliberate nor material to his suitability
for the post, given his acquittal and the
District Magistrate's favorable report.

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,952 of 44,854. This is a partial read: ask again with offset=39952 for what follows._

300 INDIAN LAW REPORTS ALLAHABAD SERIES
applicants having inflicted injury upon
complainant and his family members.

16. It is submitted that from a bare
perusal of the complaint and statement of
the complainant, provisions of Sections 420
504, 506 IPC are not made out and is a
factor which was not considered by the trial
court.

17.

Learned
Additional
Government Advocate has opposed the
application with the submission that at the
stage of taking cognizance of a complaint,
the aspects required to be considered by the
trial court have been adverted to.

18. Prima facie submissions
advanced by learned counsel for applicants
have force and require consideration for
which opposite parties are granted time to
file counter affidavit.

19. List this case on 18.12.2024,
before appropriate Court along with service
report.

20. Till next date of listing, the
proceedings in Complaint Case No.326 of
2019; Amjad Khan versus Manoj Yadav &
Ors., under Sections 420, 452, 504 & 506
I.P.C., Police Station Babina, District
Jhansi as well as order dated 29.08.2024
passed in Criminal Revision Case No.42 of
2024; Manoj Yadav & Ors. versus State of
U.P. & Ors shall remain stayed.
----------
(2024) 11 ILRA 300
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.11.2024

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ -A No. 817 of 2024

Dinesh Kumar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article
226-whether
the
omission
to
disclose pending criminal cases by a
selected candidate in a declaration form
disqualified him from govt. employment,
despite subsequent acquittal and noninvolvement in one of the cases-Nondisclosure of pending or past criminal
cases must be evaluated contextually,
taking into account the nature of offenses,
the outcome of the cases and the intent
behind the omission-The Apex Court laid
down principles in Avtar Singh cases and
subsequent cases, held that suppression
of
trivial
matters
or
unintentional
omissions cannot automatically disqualify
a
candidate-Employers
must
exercise
discretion reasonably and fairly, avoiding
arbitrary decisions in assessing character
verification
and
suitability
for
appointment-Hence, the court quashed
the rejection order issued by the State
and
directed
the
issuance
of
the
appointment
letter
to
the
petitioner
within one month-the court held that the
petitioner's
omission
was
neither
deliberate nor material to his suitability
for the post, given his acquittal and the
District Magistrate's favorable report.

The writ petition is allowed. (E-6)

List of Cases cited:

1. St. of W.B. & ors. Vs Mitul Kr. Jana Civil
Appeal No. 8510 of 2011

2. Commr. Of Police, Delhi & anr. Vs Dhavat
Singh (1999) 1 SCC 246
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
301
3. Joginder Singh Vs U.T. of Chandigarh & ors.
(2015) 2 SCC 377

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

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

6. Ravindra Kr. Vs St. of U.P. & ors. (2024) SCC
OnLine SC 180

7. Vishal Kr. Vs St. of U.P. & 4 Ors, SPLA No.
532 of 2023

8. Satyendra Singh Vs St. of U.P.& ors., Writ-A
No. 16791 of 2023

9. Chandrajeet Kr. Gond Vs HC at Alld (2024)
SCC OnLine Alld. 251

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

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

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

(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
on the ground of non-disclosure of criminal
cases registered against him even though
the candidate was not named in the charge
sheet filed in one case and was acquitted in
the other case.

2. No counter affidavit is required
in the case as copies of instructions to the
Standing Counsel and necessary documents
have been handed over to the Court by the
Standing Counsel.

3. The petitioner applied for
appointment to the post of Samiksha
Adhikari / Sahayak Samiksha Adhikari in
Civil
Secretariat
of
Public
Service
Commission, Board of Revenue and the
office of the Chief Election Officer in
pursuance to the advertisement dated
05.03.2021 issued by the Uttar Pradesh
Public Service Commission notifying the
Samiksha Adhikari / Sahayak Samiksha
Adhikari (General / Special Recruitment)
Examination - 2021. The petitioner was
selected for appointment and was asked to
fill up a verification form / declaration
which required the petitioner to disclose the
details of the criminal case, if any, pending
or registered against him. The petitioner
submitted his declaration form indicating
that no criminal case was either pending or
registered
against
him.
However,
subsequently,
the
petitioner
filed
an
affidavit stating that Case Crime No. 198 of
2019 under Sections 147/ 323/ 504/ 506/
325 IPC and Case Crime No. 215 of 2018
under Section 354(D) IPC and Section 12
of the Protection of Children From Sexual
Offences Act, 2012 had been registered
against him. It has been stated in the writ
petition that a charge-sheet had been filed
in Case Crime No. 198 of 2019 registering
Case No. 271 of 2020 in the court of
Additional
Chief
Judicial
Magistrate,
Bhadohi. In the supplementary affidavit
filed by the petitioner, it has been stated
that the petitioner has been acquitted in
Case No. 271 of 2020 by order dated
27.03.2024 passed by the Additional Chief
Judicial Magistrate, District Bhadohi. It has
been further brought on record that the
petitioner was not named in the charge
sheet submitted in Case Crime No. 215 of
2018

4. In his report dated 04.07.2023,
the
District
Magistrate,
Bhadohi
recommended that there was no legal
impediment in appointing the petitioner as
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Assistant Review Officer subject to the
final decision of the trial court in Case
Crime No. 198 of 2019. In his report, the
District Magistrate noted that the petitioner
was
wrongly
named
in
the
First
Information Report registering Case Crime
No. 215 of 2018 and was not named in the
charge sheet and that the petitioner was not
involved in any organized crime or mafia
activities and no case involving moral
turpitude
was
pending
against
him.
However, by order dated 11.12.2023 passed
by
the
Joint
Secretary,
Secretariat
Administration Section - 5 (Establishment),
Government of Uttar Pradesh, Lucknow,
the claim of the petitioner for appointment
as Assistant Review Officer has been
rejected on the ground that the petitioner
had
suppressed
material
information
regarding pendency of criminal cases
against him. The order dated 11.12.2023
has been challenged in the present petition.

5. It has been argued by the
counsel for the petitioner that the failure of
the petitioner to disclose the pendency of
criminal cases against him was not
deliberate but was due to oversight and that
the petitioner had subsequently filed his
affidavit disclosing the two criminal cases
registered against him. It was argued by the
counsel for the petitioner that in light of
Office Memorandum dated 28.04.1958, the
recommendations of the District Magistrate
were relevant materials which had to be
considered by the appointing authority but
in his order dated 11.12.2023, the Joint
Secretary
has
not
considered
the
recommendations of the District Magistrate
made vide his report dated 04.07.2023. It
was argued that in his order dated
11.12.2023, the Joint Secretary has also not
considered that the incident giving rise to
Case Crime No. 198 of 2019 was trivial in
nature and could not have been a reason to
disqualify the petitioner. It was further
argued that the order dated 11.12.2023 has
been passed by the Joint Secretary
arbitrarily and mechanically and reveals a
total non-application of mind, therefore, the
order dated 11.12.2023 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 declaration/
verification form included a warning that in
case,
any
information
given
in
the
declaration form was found to be false or
any material information was concealed,
the candidate would stand disqualified for
appointment and his services would also be
liable to be terminated. It was argued by the
Standing Counsel that admittedly, the
petitioner had knowledge of the criminal
cases pending against him and had made a
false representation stating that no criminal
case was pending against him, therefore,
the petitioner stood disqualified to be
appointed as Assistant Review Officer and
there is no illegality in the order passed by
the Joint Secretary rejecting the claim of
the petitioner for appointment. It was
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
303
argued that for the aforesaid reasons, the
writ petition is liable to be dismissed. In
support of his contention, the counsel for
the respondent 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 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
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, the nature of the
suppression as well as the nature of the
case 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
304 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
305
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 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. 31 of 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
306 INDIAN LAW REPORTS ALLAHABAD SERIES
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
that no complaints were found against him
as well as the fact that 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.

11. 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 information 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
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
307
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.

12. 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
examine whether the procedure of inquiry
adopted by the authority was fair and
reasonable. In Ravindra Kumar (Supra),
the Supreme Court considered Satish
Chandra Yadav (supra) and held that mere
non-disclosure of a criminal case by a
candidate who had been acquitted cannot
be fatal for the candidate's employment and
broad brushing every non-disclosure as a
disqualification would be unjust.

13. 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.

14. 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 of
and factors relevant for verification of
character and antecedents of applicants for
government service.

15. 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
308 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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.
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
309
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
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."

16. 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 the applicant had not
disclosed in his affidavit 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 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 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
310 INDIAN LAW REPORTS ALLAHABAD SERIES
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
Government shall continue to be as
follows:
The
character
of
a
candidate for direct appointment
must be such as to render him
suitable
in
all
respects
for
employment in the service or post
to which he is to be appointed. It
would be the duty of the appointing
authority to satisfy itself on this
point."
10. It will be clear from
the aforesaid instructions issued
by the Governor that the object of
the verification of the character
and antecedents of government
servants
before
their
first
appointment is to ensure that the
character of a government servant
for a direct recruitment is such as
to render him suitable in all
respects for employment in the
service or post to which he is to be
appointed and it would be a duty
of the appointing authority to
satisfy itself on this point.

11. In the facts of the
present case, we find that though
Criminal Case No. 275 of 2001
under Sections 324/323/504 IPC
had been registered against the
appellant at Jaswant Nagar Police
Station,
District
Etawah,
admittedly the appellant had been
acquitted by order dated 18-7-2002
by the Additional Chief Judicial
Magistrate, Etawah.
12. On a reading of the
order dated 18-7-2002 of the
Additional
Chief
Judicial
Magistrate it would show that the
sole witness examined before the
court, PW 1, Mr Akhilesh Kumar,
had deposed before the court that
on 2-12-2000 at 4.00 p.m. children
were quarrelling and at that time
the appellant, Shailendra and Ajay
Kumar amongst other neighbours
had reached there and someone
from the crowd hurled abuses and
in the scuffle Akhilesh Kumar got
injured when he fell and his head
hit a brick platform and that he was
not beaten by the accused persons
by any sharp weapon. In the
absence of any other witness
against
the
appellant,
the
Additional
Chief
Judicial
Magistrate acquitted the appellant
of the charges under Sections
323/34/504 IPC. On these facts, it
was not at all possible for the
appointing authority to take a view
that the appellant was not suitable
for appointment to the post of a
police constable."

17. The principles deducible from
the judicial precedents referred earlier and
also
the
Office
memorandum
dated
28.4.1958, so far as they are relevant for a
decision of the present writ petition, are
that the purpose of seeking information
from the candidate regarding any criminal
case registered or pending against him is to
verify the character and antecedents of the
candidate. Verification of character and
antecedents of a candidate is required to
adjudge the suitability of the candidate for
appointment.
Information
given
to
employer by a candidate regarding criminal
cases must be true and there should be no
11 All. Dinesh Kumar Vs. State of U.P. & Anr.
311
suppression or misrepresentation. However,
even a candidate who has suppressed
material information has a right not to be
dealt with arbitrarily and the decision of the
competent authority has to be reasonable
and objective having due regards to the
facts of the case. Broad- brushing every
non-disclosure as a disqualification would
be unjust and it would be arbitrary and
unreasonable to disqualify a candidate
merely because of non-disclosure of a
criminal case which was trivial in nature
and related to a petty offence which if
disclosed would not have rendered him
unfit for the post in question. In cases
where there is non-disclosure of criminal
case by the candidate, the nature of the case
and the seriousness of the offence with
which the applicant is charged, the end
result of the trial as well as the socioeconomic strata to which the candidate
belongs are some of the factors which are
to be considered while adjudging the
suitability of a candidate for appointment.
In a case trivial in nature or for a petty
offence,
the
employer
may
ignore
suppression of fact or false information by
condoning the lapse if the applicant is not
otherwise unfit for appointment. Apart
from the aforesaid, chance of reformation
has to be afforded to young offenders in
suitable cases. Conviction in a criminal
case would not, in itself, be sufficient to
disqualify a candidate and it is the
circumstances of conviction which are to
be
taken
into
account
and
the
circumstances in which the applicant is
presently placed is also to be considered.
The report of the District Magistrate
regarding the character and antecedents of
the
candidate
and
also
the
recommendations of the District Magistrate
are relevant documents which have to be
considered by the appointing authority
while deciding the suitability of a candidate
for appointment. The aforesaid factors are
also to be considered by the courts while
deciding the nature of relief to be given to a
candidate.

18. In the present case, the Joint
Secretary has mechanically rejected the
claim of the petitioner only on the ground
of non-disclosure of criminal cases by the
petitioner. While rejecting the claim of the
petitioner, the Joint Secretary 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 in which the petitioner was put
on trial and the fact that the petitioner was
not charge-sheeted in the case registered
against him under Section 354(D) I.P.C.
read with Section 12 of the POCSO Act.
The socio-economic strata to which the
petitioner belongs has also not been
considered by the Joint Secretary and there
is no consideration regarding the suitability
of the petitioner for appointment. For the
aforesaid
reasons,
the
order
dated
11.12.2023 passed by the Joint Secretary is
contrary to law and is liable to be quashed.

19. So far as the relief to be
granted to the petitioner is concerned,
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. However, in
the present case, the petitioner has been
disqualified
and
has
been
refused
appointment only on the ground of nondisclosure of criminal cases registered
against him. In view of the reasons given
above, mere non-disclosure of the criminal
312 INDIAN LAW REPORTS ALLAHABAD SERIES
cases could not be fatal for the appointment
of the petitioner. In view of the aforesaid
and also for reasons stated subsequently, no
useful purpose would be served to remit
back the matter to the Joint Secretary for a
fresh decision.

20. The admitted facts in the
present case are that two criminal cases
were registered against the petitioner. It is
not the case of the State respondents that
multiple criminal cases were registered
against the petitioner. In Case Crime No.
215 of 2018 registered under Sections
354(D) of the Indian Penal Code read with
Section 12 of POCSO Act, 2012, the
petitioner was not named in the chargesheet and was not put on trial in the
aforesaid case. Though the offence in the
aforesaid case involves moral turpitude, the
registration of the case cannot be held
against the petitioner because the petitioner
was not named in the charge-sheet. The
petitioner was acquitted in the other case,
i.e., Case Crime No. 198 of 2019 registered
under Sections 147/ 323/ 325/ 504/ 506
IPC. The petitioner was acquitted in the
said case giving benefit of doubt. However,
even if the petitioner had been convicted in
the case, the said circumstance could not
have been held against him to consider his
suitability for appointment as the case was
trivial in nature and arose out of a petty
quarrel between two families.