# Kamlesh Kumar Verma v. State of U.P. & Anr

- **Citation:** (2019) 2 ILRA 1625
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Case number:** Service Single No. 6682 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kamlesh-kumar-verma-v-state-of-u-p-anr-44615
- **Pages:** 4

## Headnote

A. Service law - appointment denied on
ground of non-disclosure of pending
criminal case - one Shri Dililp Kumar
Jaiswal who is charged with more
serious offence permitted to join - the
Court held that the discretion exercised
by the appointing authority should be
reasonable - the Court permitted to join
the service subject to the final outcome
of the criminal proceedings

Writ Petition allowed (E-10)
Cases Cited:-

## Text

2 All. Kamlesh Kumar Verma Vs State of U.P. & Anr.
1625
argument that since one has been working
for some time in the post, it will not be just to
discontinue him, even though he was aware
of the nature of the employment when he first
took it up, is not one that would enable the
jettisoning of the procedure established by
law for public employment and would have
to fail when tested on the touchstone of
constitutionality and equality of opportunity
enshrined in Article 14 of the Constitution."
(emphasis supplied)

12. Admittedly, the petitioner was
appointed
on
contract
basis
on
a
consolidated salary for a fixed term and the
same was extended from time to time on the
same terms and conditions. By efflux of
time the appointment of the petitioner came
to an end on 31.05.1996. In view of the
settled legal position the petitioner has no
right to have his contract renewed and to
continue on the post in question. No
mandamus can be issued to the respondents
to continue the petitioner in service.

13. Moreover, the services of the
petitioner were terminated way back in the
year 1996 and since then he is out of job.
More than 20 years have passed. Even
otherwise, at this distance of time no relief,
whatsoever, can be granted to the petitioner.

14. For the foregoing reasons the
writ petition is devoid of merit and is
accordingly dismissed.

15. No order as to cost.
----------
(2019)10ILR A 1625

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.09.2019
BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.
Service Single No. 6682 of 2019

Kamlesh Kumar Verma ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Deomani Tripathi, Sri Ashok Kumar
Mishra, Sri Girish Chandra Verma.

Counsel for the Respondents:
C.S.C.

A. Service law - appointment denied on
ground of non-disclosure of pending
criminal case - one Shri Dililp Kumar
Jaiswal who is charged with more
serious offence permitted to join - the
Court held that the discretion exercised
by the appointing authority should be
reasonable - the Court permitted to join
the service subject to the final outcome
of the criminal proceedings

Writ Petition allowed (E-10)
Cases Cited:-

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

2. Commissioner of Police & ors Vs Sandeep
Kumar (2011) 4 SCC 644

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri G.C. Verma, learned
counsel for the petitioner and learned
State Counsel for the State-respondents.

2. By means of this petition, the
petitioner has assailed the office memo
dated 28.1.2019 passed by the Secretary,
Department of Home (Police), Anubhag9, Lucknow refusing to give appointment
to the petitioner for the reason that the
petitioner has concealed the relevant fact
regarding pending criminal cases against
1626 INDIAN LAW REPORTS ALLAHABAD SERIES
him. The petitioner has also challenged
the order dated 6.2.2019 passed by the
Director General of Prosecution, U.P.
Lucknow.

3. Learned counsel for the petitioner
has drawn attention of this Court towards
Annexure No.3 to the writ petition, which
is an order dated 11.12.2018 passed by
this Court in the matter of the petitioner in
Service
Single
No.33643
of
2018,
whereby the said writ petition was finally
disposed of directing the competent
authority to take fresh decision in the
matter in the light of the Judgment of the
Hon'ble Apex Court in re; Avtar Singh
Vs. Union of India and others, (2016) 8
SCC 471. In the aforesaid order dated
11.12.2018
this
Court
had
taken
cognizance of the fact that one Sri Dilip
Kumar Jaiswal, against whom serious
criminal cases were pending, was allowed
to join, therefore it was expected that
while passing the fresh order, the
aforesaid
fact
should
have
been
considered by the competent authority
carefully.

4. So as to verify the reasons of the
impugned order, I have perused Annexure
No.19 to the writ petition, which is a
declaration form being submitted by the
petitioner and perusal thereof clearly
reveals that the petitioner has clearly
indicated that a criminal case is pending
against him. He has indicated that Crime
No.322/2005 is pending before the Court
of Addl. District & Sessions Judge-First,
Pratapgarh. In the impugned order, there
is one reference given regarding N.C.R.
No.277/12 under Sections 323, 504 & 506
IPC, which has admittedly been expunged
by the court concerned vide order dated
6.12.2014. Learned counsel for the
petitioner has indicated in para-19 of the
writ petition that in said case, the final
report was submitted by the Investigating
Officer and the said case was disposed of
by the Court concerned on 6.12.2014. The
petitioner was absolutely unaware about
the aforesaid case as no notice, summon
etc. has been issued to the petitioner at
any point of time. The aforesaid content
of the writ petition was replied by the
answering opposite parties in para-16 of
the counter affidavit wherein the fact that
the petitioner was absolutely unaware
about the pendency of the said case has
not been disputed, however this much has
been indicated that the petitioner has not
disclosed the offences. This is beyond any
comprehension when the petitioner was
absolutely unaware about any case, which
was registered under N.C.R., how could
he have disclosed such fact. Secondly,
there is no dispute that the petitioner has
correctly intimated/ disclosed about the
pendency of the criminal case bring
no.322/2005 pending in the court of Addl.
District
&
Sessions
Judge-First,
Pratapgarh, however he had not disclosed
the Sections under which he was charged.
The aforesaid fact was disclosed by the
petitioner
on 7.2.2017
whereas
the
impugned order has been passed firstly in
the year 2018, meaning thereby on the
basis of information so disclosed by the
petitioner at the time of attestation, the
competent authority must have verified
each and every thing relating to the said
criminal
case
pending
against
the
petitioner. Relevant sections against the
petitioner are 147, 148, 323, 324, 504,
506, 427 IPC read with Section 3 (1) (x)
of the SC/ST Act.

5. It is noted here that vide order
dated 16.4.2018, the candidature of Sri
Dilip Kumar Jaiswal was examined and
against Sri Dilip Kumar Jaiswal, two
2 All. Kamlesh Kumar Verma Vs State of U.P. & Anr.
1627
crime cases were registered i.e. Criminal
Case
No.7046/2002,
Case
Crime
No.147/98,
under
Sections
147/352/188/504/506 IPC, however in
that case Sri Jaiswal was exonerated but
in Case Crime No.227/99, under Sections
307/504/506 IPC, an interim order was
granted in favour of Sri Jaiswal but the
fact remains that the case under Section
307 IPC was pending against him but vide
order dated 6.9.2018 (Annexure No.14 to
the writ petition), Sri Jaiswal has been
permitted to submit his joining at Aligarh.

6. So far as severity of the offence is
concerned, the present petitioner has been
charged under less serious offences
comparing to Sri Dilip Kumar Jaiswal.
Despite the aforesaid fact, the petitioner
has not been permitted to submit his
joining rather he has been stopped to
submit his joining whereas Sri Dilip
Kumar Jaiswal has been permitted to
submit his joining. The impugned order
against the petitioner has been passed in
the light of the dictum of the Hon'ble
Apex Court in re; Avtar Singh (supra).
Paragraphs 38.1 to 38.4, 38.5 & 38.6 of
the judgment of the Hon'ble Apex Court
in re; Avtar Singh (supra) are being
reproduced herein below:-

"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/
instruction/ 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:

38.5. 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."

7. Learned State counsel has
vehemently pressed para-38.6 saying that
it is a discretion of the appointing
authority to permit such appointment
wherein criminal cases are pending.

8. No doubt, it is a discretion of the
appointing authority to permit someone to
submit his/ her joining if criminal cases
are pending but such discretion should be
reasonable one as unfettered discretion
has not been appreciated by the Hon'ble
Apex Court and this Court.

9. The sole reason of the impugned
order is that the petitioner has not
disclosed the facts properly whereas
1628 INDIAN LAW REPORTS ALLAHABAD SERIES
attestation form clearly indicates that the
petitioner has disclosed the facts relating
to pendency of criminal case against him.
Therefore, even in the light of the dictum
of the Hon'ble Apex Court in re; Avtar
Singh (supra), the petitioner should have
not been refused to submit his joining
when one identically placed person,
namely, Sri Dilip Kumar Jaiswal, whose
antecedents/ material is more serious than
the petitioner, has been permitted to
submit his joining.

10. The Hon'ble Apex Court in re;
Commissioner of Police and others v.
Sandeep Kumar, (2011) 4 SCC 644, in
para-12 has held as under:-

"12. It is true that in the
application form the respondent did not
mention that he was involved in a criminal
case under Sections 325/34 IPC. Probably he
did not mention this out of fear that if he did
so he would automatically be disqualified. At
any event, it was not such a serious offence
like murder, dacoity or rape, and hence a
more lenient view should be taken in the
matter."

11. The Hon'ble Apex Court has held
that the offence under Section 325/34 IPC is
not so serious to refuse appointment of any
person. In the light of the aforesaid dictum
of the Hon'ble Apex Court, in the present
case, the offence of the petitioner is less
serious than the offence under Section 325
IPC inasmuch as under Section 325 IPC, the
punishment prescribed as seven years
whereas in none of the sections, the
petitioner's charge is having punishment of
about seven years. Therefore, it appears that
while passing the impugned order dated
28.1.2019, the competent authority has not
invoked his discretion reasonably and the
reason so indicated in the impugned order is
misconceived inasmuch as the petitioner
has disclosed his details regarding criminal
case in his attestation form, therefore, the
impugned orders dated 28.1.2019 and
6.2.2019, which have been passed by the
Secretary, Home (Police), Lucknow and the
Director General of Prosecution, U.P.,
Lucknow whereby claim of the petitioner
on the post of A.P.O. has been cancelled are
liable to be quashed and accordingly, both
the orders dated 28.1.2019 and 6.2.2019,
which are contained in Annexures No.1 & 2
to the writ petition, are hereby quashed.

12. The opposite parties are directed
to permit the joining of the petitioner on
the post of A.P.O. in the same manner the
order has been passed in the case of Sri
Dilip Kumar Jaiswal. It is needless to say
that such order would be conditional one
and shall depend upon the final outcome
of the criminal proceedings.

13. The writ petition is accordingly
allowed.

14. No order as to costs.
----------

(2019)10ILR A 1628

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2019

BEFORE

THE HON'BLE ASHOK KUMAR, J.

Writ- C No. 63354 of 2015
connected with
Writ- C No. 60856, 10636 of 2015

Committee of Management Lalauli Inter
College & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents