# Ghanshyam v. D.M., Lalitpur and others

- **Citation:** (2006) 3 ILRA 1135
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-07-27
- **Case number:** Civil Misc. Writ Petition No.39957 of 2005
- **Bench:** A.P. Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghanshyam-v-d-m-lalitpur-and-others-40757
- **Pages:** 5

## Headnote

Constitution
of
India
Art.
226Cancellation of Appointment-Petitioner
intentionally
given
false affidavit-for
purpose
of
seeking
appointmentcertainly reflect the character of such
candidate-held-giving false affidavit to
be a reasonable ground for refusal of
employment.

Held: Para 15

It is true that the alleged non disclosure
of a false criminal case against the
petitioner may not be a ground for non
suiting the petitioner but the filing of a
false affidavit to gain employment will
certainly reflect on the character of a
candidate. The petitioner has not been
able to deny the said fact and therefore,
the filing of an affidavit voluntarily not
disclosing correct facts in my opinion
could be a reasonable basis to refuse
employment.
Case law discussed:
1997 (2) UPLBEC-1201
2003 (3) SCC-437
1996 (11) SCC-605
2005 (2) SCC-746
1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2006

## Text

3 All] Ghanshyam V. D.M., Lalitpur and others
1135
and such Magistrate shall dismiss him
accordingly, unless the Magistrate has
reason to think that such dismissal would
be improper."

5. A perusal of the same indicates
that the dismissal shall be made only if
the Magistrate has reason to think that
such
a
dismissal
is
required.
The
principles of natural justice are implicit in
the said provision and therefore it was
incumbent upon the District Magistrate to
have at least given a show cause notice to
the petitioner before dispensing his
services in order to ensure fairness.

6. A perusal of the impugned order
does not indicate that any show cause or
opportunity was offered to the petitioner
prior to the removal order. Learned
counsel for the respondent has been
unable to point out any recital in the said
order, which could justify the aforesaid
action
of
the
District
Magistrate.
Accordingly, the impugned order dated
3.6.2006
is
unsustainable
being
in
violation of principles of natural justice
and is hereby set aside. The District
Magistrate, Lalitpur shall provide an
opportunity of hearing to the petitioner
and thereafter pass an appropriate order in
accordance with the rules preferably,
within a period of three months from the
date of production of a certified copy of
this order before him.

7. Accordingly, the writ petition is
allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.07.2006

BEFORE
THE HON'BLE A.P. SAHI, J.

Civil Misc. Writ Petition No.39957 of 2005

Arvind Kumar

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

Counsel for the Petitioner:
Sri M.D. Singh Shekhar
Sri Jagdeo Singh

Counsel for the Respondents:
Sri Sandeep Mukherjee
S.C.

Constitution
of
India
Art.
226Cancellation of Appointment-Petitioner
intentionally
given
false affidavit-for
purpose
of
seeking
appointmentcertainly reflect the character of such
candidate-held-giving false affidavit to
be a reasonable ground for refusal of
employment.

Held: Para 15

It is true that the alleged non disclosure
of a false criminal case against the
petitioner may not be a ground for non
suiting the petitioner but the filing of a
false affidavit to gain employment will
certainly reflect on the character of a
candidate. The petitioner has not been
able to deny the said fact and therefore,
the filing of an affidavit voluntarily not
disclosing correct facts in my opinion
could be a reasonable basis to refuse
employment.
Case law discussed:
1997 (2) UPLBEC-1201
2003 (3) SCC-437
1996 (11) SCC-605
2005 (2) SCC-746
1136 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
(Delivered by Hon'ble A.P. Sahi, J.)

1. The petitioner was an applicant
for the post of constable under the
Provincial Armed Constabulary, a wing of
the Uttar Pradesh Police Services.

2. The petitioner has prayed for a
mandamus directing the respondent to
permit the petitioner to join training and
further
for
payment
of
allowances
admissible to him on the post.

3. The petitioner has been denied
appointment, even though he has been
selected, on the ground that the petitioner
tendered a false affidavit. Giving of an
incorrect
information
about
his
antecedentss, therefore, amounted to an
act which dis entitles him for any
appointment. A photo stat copy of the said
affidavit is appended as annexure CA 2 to
the counter affidavit.

4. Challenge to the aforesaid action
of the respondent is on the ground that the
verification clause as contained in the
form, which was required to be filled up
by the petitioner did not require any
information with regard to the pendency
of a criminal case against the candidate.
Learned counsel for the petitioner has
invited the attention of the court to clause
11 of the said verification roll, which only
requires an information in respect of any
conviction by a court of law in a criminal
case. It is urged that in the absence of any
such requirement of filing an affidavit, the
same can be treated as superfluous and
cannot be taken into consideration for
denying the appointment. Apart from this
it is urged that the respondents were
atleast required to give notice to the
petitioner
in
this
regard
before
withholding training of the petitioner.
Learned counsel for the petitioner has
further stated that the lodging of the F.I.R.
itself was found to be false and the
Judicial Magistrate on 3.1.2005 passed an
order for expunging the proceedings and
further launching a criminal proceeding
against the first informant for having
tendered a false information.

5. Sri M.D. Singh Shekhar, learned
counsel for the petitioner submitted that in
law it will be presumed that the there was
no such proceeding pending against the
petitioner and further once the Judicial
Magistrate had passed an order, then there
was no occasion for tendering any such
information about the pendency of the
case.

6. A part from this he has invited the
attention
of
the
court
to
the
certificate/report tendered by the District
Magistrate J.P. Nagar to the respondent
no.3 in respect of the petitioner dated
2.3.2005 to supplement the character
certification of the petitioner.

7. Relying on several decisions of
this court and the Apex court Sri Shekhar
has urged that the petitioner cannot in any
way be held responsible for tendering
incorrect information with regard to his
antecedentss and therefore, he deserves to
be sent on training.

8. The decisions relied upon by Sri
Shekhar are in the case of Qamrul Hoda
1997 (2) UPLBEC 1201, which decision
was affirmed by the Division Bench in the
case of Awadesh Kumar Sharma
decided on 24.1.2000 in writ petition
no.3864 of 2000. Sri Shekhar next invited
the attention of the court to the decision of
the Apex court in the case of Regional
Manager Vs. Presiding Officer, 1999
3 All] Arvind Kumar V. State of U.P. and others
1137
J.T. (1) 241 and the decision of the
learned Single Judge of this court in the
case of Satish Kumar Shukla Vs. Union
of India, 2002 (1) UPLBEC 610.
However, the decision on which he
heavily relies on has been appended as
annexure IV, in the case of Harendra Vs.
State of U.P. (writ petition No.2420 of
2005) decided on 1.2.2005. Sri Shekhar
then urged that tendering of an incorrect
affidavit, which was not required under
the rules is absolutely superfluous and
therefore, the said affidavit may at best
amount to swearing an incorrect affidavit
and not tendering of false information.
Accordingly, the same cannot be a ground
for non suiting the petitioner as he has
correctly
filled
up
the
form
of
verification.

9. After having examined the
aforesaid contentions I find that the stand
taken in the counter affidavit is clearly to
the effect that the swearing of a false
affidavit itself dis entitled the petitioner
for engagement as a constable. In another
case, which has been simultaneously dealt
with and decided by me today, other
decisions on this issue have been referred
to therein. The said case is of Krishna
Kumar Vs. State of U.P. writ petition
No.60896 of 2005. The same was also
with regard to the engagement of a
constable in U.P. Police Services, wherein
the stand taken by the respondents is that
under
the
circular
issued
by
the
department every candidate has to tender
a correct information with regard to his
antecedents including the pendency of a
criminal case or detention or arrest. In the
instance case, the selection is prior to the
said circular dated 6.2.2005. The format
of the affidavit, which has been filled up
by the petitioner is the same, which has
been later on referred to in the said
circular dated 6.2.2005. It appears that
this affidavit was called for by the
respondents for the purposes of verifying
the character and antecedents of a
candidate. Sri Shekhar has urged that
even assuming that such an affidavit was
required to be given even then, the same
would not vitiate the selection.

10. I have already indicated in the
order of Krishna Kumar's case that the
case of Qamrul Hoda cannot now be
pressed into service in view of the
decision of the Apex court in the Case of
Kendriya Vidhalay Sanghathan Vs.
Ram Ratan Yadav 2003 (3) S.C.C. 437.
The decision relied upon by Sri Shekhar
in the case of Regional Manager Vs.
Presiding Officer (supra) also cannot be
cited as a precedent as the said decision
itself makes that clear in the last line of
the said judgment. The decision in the
case of Satish Kumar (supra) was
rendered prior to the decision in the case
of Kendriya Vidhalaya Sangathan and it
does not notice the decision of the
Supreme Court in the case of Delhi
Administration Vs. Shushil Kumar
reported in 1996 (11) S.C.C. 605. The
filing of a false affidavit has been held to
be a case of moral turpitude and
appointment has been denied by this court
in the Division Bench decision of Sheo
Govind Singh Vs. I.G. Police 2005 (4)
E.S.C. 2720.

11. However, the decision, which
now required to be considered is in the
case of Harendra (supra) relied on by the
learned counsel for the petitioner. The
learned Single Judge has held therein that
filing of an affidavit was only superfluous
and thee was no requirement of furnishing
any such detail. On the said basis it was
held that the petitioner may be held guilty
1138 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
of swearing a false affidavit, but he
cannot be held guilty for swearing a false
verification roll. Relying on the cases of
Qamrul Hoda and Awadesh Kumar
Sharma, the petition was allowed.

12. In my opinion, tendering of an
affidavit
does
not
appear
to
be
superfluous as it was sought by the
department for collecting information
with
regard
to
the
character
and
antecedents of a candidate. It is intended
to supplement additional information in
this
regard
and
is
therefore
not
superfluous. This is evident from the
nature of the affidavit and also the
subsequent
circular
dated
6.2.2005
referred to in Krishna Kumar's case.
Secondly, the affidavit is a solemn
affirmation on oath tendering information
and giving a solemn undertaking that the
information which has been tendered is
correct. The same was relied upon by the
candidate for seeking employment. In
neither of the cases, that is the present
writ petition or Krishna Kumar's case, the
petitioners have sought impounding of the
affidavit
or
withdrawing
from
the
contents thereof. The petitioner, therefore,
cannot be permitted to resile back by
simply stating that it was superfluous. The
affidavit was tendered for the purpose of
seeking
employment
and
furnishing
information about the antecedents and
character of the petitioner.

13. The judgment in the case of B.C.
Naidu, 2005 (2) S.C.C.746, was a case
where a candidate was being charged with
an allegation that he did not fill up the
verification form correctly, but it was
ultimately found that the verification form
did not require tendering of any such
information about the pendency of a case.
The said case was not a case where any
false affidavit had been sworn in addition
to the information that was required in the
verification roll. It was held that no such
information was required to be indicated
by a candidate in the verification roll.

14. The instant case and the case of
Krishna
Kumar
stand
on
different
footings on facts. The petitioner has
voluntarily tendered an affidavit giving
incorrect information. The Apex court in
the case of Delhi Administration Vs.
Shushil Kumar (supra) has held that it is
not the gravity of a criminal offence,
which has to be looked into but what is
relevant
is the
antecedents
of
the
candidate. This is necessary in order to
enable the employer to form an opinion
about the candidature of a person before
inducting him into service. These aspects
have not been dealt with and considered
by the learned Single Judge in the
judgment dated 1.2.2005 in Harendra's
case. In my view the said decision would
therefore not advance the cause of the
petitioner.

15. It is true that the alleged non
disclosure of a false criminal case against
the petitioner may not be a ground for non
suiting the petitioner but the filing of a
false affidavit to gain employment will
certainly reflect on the character of a
candidate. The petitioner has not been
able to deny the said fact and therefore,
the filing of an affidavit voluntarily not
disclosing correct facts in my opinion
could be a reasonable basis to refuse
employment.

16. Accordingly, I do not find this to
be a fit case for interference under Article
226 of the Constitution of India.
Dismissed.
---------
3 All] Arvind Kumar V. State of U.P. and others
1139
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2006

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 52517 of 2005

Rajresh Kumar Singh

...Petitioner
Versus
The Union of India and others ...Respondents

Counsel for the Petitioner:
Sri Assem Kumar Rai

Counsel for the Respondents:
Sri K.C. Sinha, A.S.G. India.
Sri Rajiv Sharma

Constitution
of
India-Art.
226Compassionate
Appointment-claiming
parity
on
higher
post-can
not
be
accepted once the petitioner acceptedappointment on the post of L.D.C.-
exception
to
normal
mode
of
recruitment-can not claim parity with
other appointee on the post of U.D.A.-
rejection order held proper.

Held: Para 12

The crux of the matter of the petitioner
is that he was offered appointment on
compassionate ground on the post of
Lower Division Assistant, which he has
accepted. It is settled law that the
appointment on compassionate ground is
not a matter of right but is exception to
normal
mode
of
recruitment.
The
petitioner having accepted the post of
Lower
Division
Assistant
on
compassionate ground he could not have
claimed higher post on the ground of
parity with some other persons who
have been offered appointment on the
post of U.D.C. Some of them were
offered appointment on the post of
U.D.C. and some of them were offered
appointment on the post of L.D.C. Their
case is different then the case of the
petitioner and there is no question of
parity. Even though the impugned order
may have been passed by respondent
no.3, no relief can be granted to the
petitioner
as
he
has
accepted
the
compassionate appointment on the post
of L.D.C. hence he cannot claim higher
post subsequently on the ground of
parity.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

2. The petitioner was appointed as
Lower Division Assistant on 16.1.1996 on
compassionate
ground.
He
made
a
representation-dated
28.12.98
to
the
respondents for appointment on the post
of Upper Division Clerk claiming parity
with some other persons who were
appointed on compassionate ground. The
representation of the petitioner was
rejected by respondent no.3 vide order
dated 6/9/10.11.99. The petitioner again
moved an application-dated 24.12.1999 as
well
as
reminder-dated
5.6.2000
reiterating his claim which was also
rejected by respondent no.3, the Director
Administration,
Khadi
&
village
Industries Commission, Lucknow.

3. Aggrieved the petitioner preferred
an appeal on 5.7.2000 before the
Chairman/Chief Executive Officer, Khadi
and Village Industries Commission, 3,
Irla Road, Vile Parley (West) Mumbai.
Since the appeal was not being decided by
respondent no.2, he filed writ petition no.
52369 of 2004 before this Court, which
was disposed of with a direction to
respondent no.2 to decide the appeal of
the petitioner within a period of two
months from the date of submission of a
certified copy of the order.