# Fakhruddin Ali v. State of U.P. and another

- **Citation:** (2005) 3 ILRA 876
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-04-04
- **Case number:** Civil Misc. Writ Petition No.6671 of 2005
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/fakhruddin-ali-v-state-of-u-p-and-another-40604
- **Pages:** 3

## Headnote

Constitution
of
India
Art.
226appointment-petitioner finally selected
on the Post of Police Constable-required
to file affidavit about his character and
antecedent-petitioner
in
affidavit
disclosed the pendancy of Criminal casematter sent for verification of character
to
the
District
Magistrate-who
also
reported about non involvement of any
3 All] Fakhruddin Ali V. State of U.P. and another
877
other Criminal case-except the aforesaid
one not send on training-held-petitioner
yet not convicted-can not be denied the
appointment
on
the
basis
of
the
pendancy of Criminal case.

Held: Para 3

In my view, the approach adopted by the
respondents is incorrect. Denying the
petitioner an appointment on the basis
of
assumption
and
presumption
is
violative of Article 14 and 16 of the
Constitution of India. The petitioner has
a fundamental right of being given an
appointment on the basis of his selection
and he cannot be denied an appointment
merely on the basis that he has been
named in the first information report.
The
petitioner
has
not
yet
been
convicted nor the District Magistrate had
certified that his antecedents are of such
a nature that he could not be given an
appointment, therefore the petitioner
could not be denied an appointment
letter merely on the basis of the
pendency of a case in a criminal Court.
Case law discussed:
1996 SCC-605
2003 (3) UPLBEC-2193

## Text

876 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
of compulsory retirement was affirmed.
The Division Bench of this Court in
Special Appeal categorically issued a
direction to the respondents to calculate
the retirement benefits, on the basis of the
order of compulsory retirement. The
period, which the petitioner had worked,
on the basis of the interim order, was not
to be calculated for the purpose of
calculating the retirement benefits. The
direction of the Court, did not allow the
respondents to deduct the salary, which
the petitioner had received on the basis of
an interim order. In my view, the
petitioner was justified to receive the
salary because he had worked and
performed is duty during that period. In
my view, this period, should be treated as
an extension of service and, therefore, the
petitioner would be entitled to retain his
salary. The authority while rejecting the
representation of the petitioner had also
referred
the
matter
to
the
State
Government for its opinion. The State
Government,
By
an
order
dated
04.04.2005
informed
the
Police
Department, that the salary which the
petitioner had received, pursuant to the
interim order, could not be deducted from
his retirement benefits. In view of the
categorical stand taken by the State
Government, it is no longer open to the
Police Department to deduct any amount
from the retirement benefits for which the
petitioner was entitled.

6. Consequently, the writ petition is
allowed in respect of the relief as
modified above and a mandamus is issued
to the respondents not to deduct any
amount from the gratuity or from the
pension, in relation to the salary, which
the petitioner had received, pursuant to
the interim order passed in Writ Petition
No.13578 of 1990. The amount so
deducted shall be refunded to the
petitioner within three months without
any payment of interest from the date of
production of a certified copy of this
order, failing which, interest would be
paid at the rate of 12 % per annum. It is
made clear, that the other reliefs, which
the petitioner has claimed, in the writ
petition, has not been pressed by the
petitioner.

7. In view of the aforesaid stand
taken by the State Government, the
judgment cited by the standing counsel in
the case of State of U.P. vs. Harendra
Kumar, 1995 ALJ 1603 has no relevance
to the present facts and circumstances of
the case. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.08.2005

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No.6671 of 2005

Fakhruddin Ali

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

Counsel for the Petitioner:
Sri Devesh Pandey
Sri Syed wajid Ali

Counsel for the Respondents:
S.C.

Constitution
of
India
Art.
226appointment-petitioner finally selected
on the Post of Police Constable-required
to file affidavit about his character and
antecedent-petitioner
in
affidavit
disclosed the pendancy of Criminal casematter sent for verification of character
to
the
District
Magistrate-who
also
reported about non involvement of any
3 All] Fakhruddin Ali V. State of U.P. and another
877
other Criminal case-except the aforesaid
one not send on training-held-petitioner
yet not convicted-can not be denied the
appointment
on
the
basis
of
the
pendancy of Criminal case.

Held: Para 3

In my view, the approach adopted by the
respondents is incorrect. Denying the
petitioner an appointment on the basis
of
assumption
and
presumption
is
violative of Article 14 and 16 of the
Constitution of India. The petitioner has
a fundamental right of being given an
appointment on the basis of his selection
and he cannot be denied an appointment
merely on the basis that he has been
named in the first information report.
The
petitioner
has
not
yet
been
convicted nor the District Magistrate had
certified that his antecedents are of such
a nature that he could not be given an
appointment, therefore the petitioner
could not be denied an appointment
letter merely on the basis of the
pendency of a case in a criminal Court.
Case law discussed:
1996 SCC-605
2003 (3) UPLBEC-2193

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri Syed wajid Ali, the
learned counsel for the petitioner and the
learned standing counsel appearing for the
respondents.

2. The petitioner applied for the post
of
Constable.
The
select
list
was
published on 23.10.2004 in which the
petitioner's name was found at serial
no.195. Based on this selection, the
petitioner was medically examined and
was found fit. The petitioner was required
to submit an affidavit with regard to his
character and antecedent. In this affidavit,
the petitioner indicated that a criminal
case No.460 of 2003, under Sections 147,
323, 504, 506, 342, 307, 427 I.P.C. was
pending. Based on this affidavit, the
matter was sent to the District Magistrate
concerned for verification of his character
and antecedents. The District Magistrate
by an order dated 31.5.2005 certified his
character as good and further submitted
that he was not involved in any other case
except in Case Crime No.460 of 2003.
Inspite of this certification issued by the
District Magistrate, the petitioner was not
given an appointment nor was he sent for
training. Consequently, the petitioner has
filed the present writ petition praying that
a writ of mandamus be issued to the
respondent no.2 to appoint the petitioner
on the post of a Constable and further
direct the respondents to send the
petitioner for training.

3. The respondents in their counter
affidavit have stated that the petitioner's
integrity cannot be certified on account of
the fact that a criminal case was pending
against him and, therefore, he could not
be appointed. In my view, the approach
adopted by the respondents is incorrect.
Denying the petitioner an appointment on
the basis of assumption and presumption
is violative of Article 14 and 16 of the
Constitution of India. The petitioner has a
fundamental right of being given an
appointment on the basis of his selection
and he cannot be denied an appointment
merely on the basis that he has been
named in the first information report. The
petitioner has not yet been convicted nor
the District Magistrate had certified that
his antecedents are of such a nature that
he could not be given an appointment,
therefore the petitioner could not be
denied an appointment letter merely on
the basis of the pendency of a case in a
criminal Court.
878 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
4.

In
Delhi
Administration,
through its Chief Secretary and others
v. Sushil Kumar, 1996 SCC 605
[Labour and Service 492], the Supreme
Court held that the verification of the
character and antecedents is one of the
most important criteria to test whether the
selected candidate was suitable to a post
or not. In the present case, the District
Magistrate has certified that the petitioner
has a good character except for his
involvement in the criminal case. In my
opinion, the respondents could not deny
an appointment on the post of Constable
merely because of the pendency of the
criminal trial.

5. In Sanjay Kumar v. State of
U.P. and others [2003] 3 UPLBEC
2193, this Court held that lodging of an
F.I.R. alone was not sufficient for an
incumbent to be denied an appointment
on the post of a Government office. This
judgment squarely applies to the present
facts and circumstances of the case.

6. In view of the aforesaid, the
petitioner is entitled to the relief claimed.
The writ petition is allowed and a
mandamus is issued to respondent no.2 to
call the petitioner and give him a
provisional appointment and send him for
training within two weeks from the date
of production of a certified copy of this
order.
It
is
made
clear
that
the
appointment of the petitioner would be
subject to the result of the criminal trial. It
is open to the respondents to make
another verification with regard to the
antecedents of the petitioner's character
after the judgement given by the trial
Court.

Petition Allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2005

BEFORE
THE HON'BLE ANJANI KUMAR, J.

Civil Misc. Writ Petition No. 66925 of 2005

Gauri Shankar

...Petitioner
Versus
Sita Ram and another ...Respondents

Counsel for the Petitioner:
Sri Shiv Murti Yadav

Counsel for the Respondents:
S.C.

Code of Civil Procedure-Section-115- as
amended by U.P. Act No. 14 of 2003Scope
of
Revision-whether
deciding
amendment
application
amounts
to
deciding the proceeding finally? Held-
'yes' revision-maintainable.

Held: Para 5

In view of what has been stated above,
it is clear that deciding an application for
amendment is deciding the proceedings
finally, therefore I am not in agreement
with the submission made by learned
counsel for the petitioner that revision is
not maintainable. My aforesaid view is
supported by the decision of the Apex
Court reported in 2003 (3) A.W.C., 2198
(SC)-Shiv Shakti Co-operative Housing
Society, Nagpur Vs. Swaraj Developers
and others. In view of the law laid down
by the apex Court in the case of Shiv
Shakti (supra), this writ petition has no
force and is accordingly dismissed.

Case law discussed:
2002 (8) ACJ 119-distinguished
2003 (3) AWC-SC 2198 relied on