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

- **Citation:** (2023) 1 ILRA 1235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-13
- **Case number:** Special Appeal Defective No. 466 of 2022
- **Bench:** Surya Prakash Kesarwani, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-kumar-v-state-of-u-p-ors-49579
- **Pages:** 15

## Headnote

A. Service Law - Recruitment/Selection -
Cancellation of candidature - Irrespective
of the fact whether the dispute is of trivial
nature
or
not,
it
is
the
credibility/creditworthiness of a particular
employee which matters most when it
comes to a public employment. There
should not be any mechanical or rhetorical
incantation of moral turpitude to deny
appointment in a government service
simplicitor which would depend on the
facts of each case. The judicial philosophy
flowing through the mind of the judges is that
every individual deserves an opportunity to
improve, learn from the past and move ahead in
life
for
self-improvement.
To
make
past
conduct, irrespective of all considerations, may
not always constitute justice. (Para 18, 19)

B. The learned Single Judge dismissed the writ
petition of the petitioner-appellant merely
observing that the impugned order was
passed on 31.01.2019 whereas the order
of acquittal was passed a day thereafter
on 01.02.2019 and thus, the petitioner
was facing trial as on the date of the
impugned order dated 31.01.2019. This
view
to
uphold
the
order
dated
31.01.2019 cannot be sustained. (Para 21)

C. When the accused is acquitted after full
consideration of the prosecution case and
the prosecution miserably fails to prove
the charges levelled against the accused,
it can possibly be said that the accused
was honourably acquitted. (Para 18)

If it is found by the Screening Committee
that the person against whom a serious
case
involving
moral
turpitude
is
registered is discharged on technical
grounds or is acquitted of the same charge
but the acquittal is not honourable, the
Screening Committee would be entitled to
cancel his candidature. Stricter norms need
to be applied while appointing persons in a
disciplinary force because public interest is
involved in it. (Para 18)

The learned Single Judge has recorded that the
allegations against the petitioner were of
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
matrimonial dispute of committing cruelty with
his wife and demand of dowry which were not
only against one person but against public at
large. But, here the petitioner-appellant was
acquitted in the aforesaid criminal case u/s 498A
etc. not on the basis of compromise or the
witnesses
turned
hostile
but
after
due
consideration of facts and appreciation of
evidences led by the parties, i.e. the prosecution
and the defence. (Para 21)

The petitioner-appellant is in service of
the GOI since the year 2002 and his
credibility/creditworthiness
in
public
employment was never found doubtful. He
after
taking
permission
from
his
parent
department,
appeared
in
the
Assistant
Prosecution Officer Examination, 2015 and fully
disclosed pendency of the criminal case. He was
acquitted as
prosecution
failed
to prove
allegations beyond reasonable doubt. There was
absence of logical chain in the story set up by
the prosecution and the allegations made
against the petitioner were of general nature.
(Para 12, 20)

Special appeal and Writ petition are
allowed. (E-4)

Precedent followed:

## Text

_Characters 0–39,978 of 52,657. This is a partial read: ask again with offset=39978 for what follows._

1 All. Lalit Kumar Vs. State of U.P. & Ors.
1235
petitioner, specifically the statement of the
petitioner, which is at page 66 of the writ
petition, after giving opportunity of hearing
to the petitioner. The consequential orders
dated 25th January, 2017 and 25th April,
2017 passed by the appellate authority as
well as the revisional authority respectively
are also hereby set aside. The disciplinary
authority-respondent no.4 shall pass a fresh
order within a period of four months from
the date of production of a certified copy of
this order.

34. Learned counsel for both the
parties agree that the matter may not be
remanded for fresh inquiry, however, may
only be remanded for a fresh decision on
the quantum and nature of punishment to
be awarded by disciplinary authority.
Accordingly,
respondent
no.4
while
passing the decision a fresh, will consider
on the question of the nature of punishment
to be awarded considering the facts and
circumstances under which petitioner was
absent from duty.
----------
(2023) 1 ILRA 1235
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Special Appeal Defective No. 466 of 2022

Lalit Kumar ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment/Selection -
Cancellation of candidature - Irrespective
of the fact whether the dispute is of trivial
nature
or
not,
it
is
the
credibility/creditworthiness of a particular
employee which matters most when it
comes to a public employment. There
should not be any mechanical or rhetorical
incantation of moral turpitude to deny
appointment in a government service
simplicitor which would depend on the
facts of each case. The judicial philosophy
flowing through the mind of the judges is that
every individual deserves an opportunity to
improve, learn from the past and move ahead in
life
for
self-improvement.
To
make
past
conduct, irrespective of all considerations, may
not always constitute justice. (Para 18, 19)

B. The learned Single Judge dismissed the writ
petition of the petitioner-appellant merely
observing that the impugned order was
passed on 31.01.2019 whereas the order
of acquittal was passed a day thereafter
on 01.02.2019 and thus, the petitioner
was facing trial as on the date of the
impugned order dated 31.01.2019. This
view
to
uphold
the
order
dated
31.01.2019 cannot be sustained. (Para 21)

C. When the accused is acquitted after full
consideration of the prosecution case and
the prosecution miserably fails to prove
the charges levelled against the accused,
it can possibly be said that the accused
was honourably acquitted. (Para 18)

If it is found by the Screening Committee
that the person against whom a serious
case
involving
moral
turpitude
is
registered is discharged on technical
grounds or is acquitted of the same charge
but the acquittal is not honourable, the
Screening Committee would be entitled to
cancel his candidature. Stricter norms need
to be applied while appointing persons in a
disciplinary force because public interest is
involved in it. (Para 18)

The learned Single Judge has recorded that the
allegations against the petitioner were of
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
matrimonial dispute of committing cruelty with
his wife and demand of dowry which were not
only against one person but against public at
large. But, here the petitioner-appellant was
acquitted in the aforesaid criminal case u/s 498A
etc. not on the basis of compromise or the
witnesses
turned
hostile
but
after
due
consideration of facts and appreciation of
evidences led by the parties, i.e. the prosecution
and the defence. (Para 21)

The petitioner-appellant is in service of
the GOI since the year 2002 and his
credibility/creditworthiness
in
public
employment was never found doubtful. He
after
taking
permission
from
his
parent
department,
appeared
in
the
Assistant
Prosecution Officer Examination, 2015 and fully
disclosed pendency of the criminal case. He was
acquitted as
prosecution
failed
to prove
allegations beyond reasonable doubt. There was
absence of logical chain in the story set up by
the prosecution and the allegations made
against the petitioner were of general nature.
(Para 12, 20)

Special appeal and Writ petition are
allowed. (E-4)

Precedent followed:

1. Avtar Singh Vs U.O.I. & ors., (2016) 8 SCC
471 (Para 5)

2. Satish Chandra Yadav Vs U.O.I. & ors., 2022
SCC
Online
SC
1300,
judgment
dated
26.09.2022 (Para 18)

Precedent distinguished:

1. St. of Raj. Vs Chetan Jeff, 2022 SCC Online
SC 597 (Para 14)

2. U.O.I. & ors. Vs Methu Meda, (2022) 1 SCC 1
(Para 17)

Present
special
appeal
assails
judgment and order dated 22.07.2022,
in Writ-A No. 679 of 2020, passed by
the learned Single Judge and to allow
the writ petition which was filed for
quashing the impugned order dated
31.01.2019 passed by the Secretary,
Home (Police), Govt. of U.P., Lucknow
as well as order dated 06.11.2019
passed
by
Joint
Secretary,
Home
(Police), Govt. of U.P., Lucknow.

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Prabhakar Awasthi,
learned counsel for the petitioner-appellant
and Sri Satish Kumar Srivastava, learned
Additional Chief Standing Counsel for the
State-respondents.

2. The petitioner-appellant has filed
the present special appeal praying to set
aside the judgment and order dated
22.07.2022 in Writ-A No.679 of 2020 (Lalit
Kumar vs. State of U.P. and others) passed
by the learned Single Judge and to allow
the writ petition.

3. The petitioner has filed the
aforesaid Writ-A No.679 of 2020 praying
for the following relief:

"i) Issue a writ, order or direction in
the nature of certiorari, quashing the
impugned order dated 31.01.2019 passed
by the respondent no.2 (Annexure No.6 to
this writ petition) as well as order dated
06.11.2019 passed by respondent no.3
(Annexure no.12 to this writ petition).

ii) Issue a writ, order or direction in
the nature of mandamus commanding/
directing
the
respondents
to
give
appointment to the petitioner on the post of
Assistant Prosecution Officer."

Facts of the Present Case:-

4. Briefly stated, facts of the present
case are that the petitioner-appellant was
already working as Upper Divisional Clerk in
the
office
of
the
Director
General
(Meteorology), Ministry of Earth Sciences,
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1237
Government of India, New Delhi. An
advertisement
inviting
applications
for
recruitment
on
the post
of Assistant
Prosecution
Officer
was
issued.
The
appellant-petitioner applied for the aforesaid
post after obtaining permission from his
aforesaid parent department to appear in the
aforesaid selection process. The Uttar
Pradesh
Public
Service
Commission,
Allahabad issued provisional admit card to
the petitioner for appearing in Assistant
Prosecution Officer Examination, 2015. The
petitioner appeared in the examination and
was declared successful in the preliminary
examination.
Thereafter,
the
petitioner
appeared in the main examination of the
aforesaid recruitment process and was
declared successful. He was called for
interview by the Commission vide interview
letter dated 21.08.2017. He was finally
selected for the post of Assistant Prosecution
Officer. He was directed to appear for
medical examination before the Uttar Pradesh
Medical Board vide letter dated 15.12.2017
and the petitioner appeared for medical
examination on 26.12.2017. In his application
form, the petitioner-appellant had already
declared that there is matrimonial dispute in
the shape of a Criminal Case No.1459 of
2008 under Section 498A, I.P.C., yet, even
after selection, the candidature of the
petitioner was cancelled by the respondent
No.2 vide order dated 31.01.2019. The
petitioner was acquitted in the aforesaid
Criminal Case No.1459 of 2008 vide
judgment dated 01.02.2019 passed by the
Additional Chief Judicial Magistrate, Court
No.3, Ghaziabad. In the aforesaid criminal
case, the court of Additional Chief Judicial
Magistrate, after detail discussion and
appreciation of evidences, concluded as
under:

"उपर क्त पररििाि से थ्ष्ट है ग्रक जहाों एक
ओर अग्रभय जन द्वारा बताये गये घट्नािम में
ताग्रकिक तातिम्य का अभाव है वहीों दूसरी ओर
अग्रभयुक्तगण के ग्रवरूद्ध लगाये गये आर प
सामान्य प्रकृग्रत के हैं तथा ग्रजन घट्नाओों का
उल्लेि अग्रभय जन द्वारा ग्रकया जा रहा है, उनके
ग्रतग्रथय ों में सामन्जस्य का अभाव उपर क्त
पैरािाफ की पररििाि से दृग्रष्टग िर ह ता है। स्पष्ट
रूप से अग्रभय जन अग्रभयुक्तगण के ग्रवरूद्ध
लगाये गये आर प ों क युखक्तयुक्त सोंदेह से परे
ग्रसद्ध करने में असफल रहा है। तदनुसार
अग्रभयुक्तगण द षमुक्त ग्रकये जाने य ग्य है।"

5. Aggrieved with the cancellation of
his candidature, the petitioner preferred a
Writ-A No.3794 of 2019, which was
disposed of by order dated 11.03.2019
directing the respondent No.2 to reconsider
and re-evaluate the suitability of the
petitioner for appointment in accordance
with law and in the light of the principles
enunciated in the case of Avtar Singh vs.
Union of India and others, (2016) 8 SCC
471. Thereafter, the respondent No.2
passed an order dated 06.11.2019 rejecting
the representation of the petitioner holding
as under:

"8- ररट् याग्रिका सोंख्या-ए-3794/2019
लग्रलत कुमार बनाम उिर प्रदेश राज्य व अन्य में
मा० न्यायालय द्वारा पाररत उक्त आदेश ग्रदनाोंक
11.03.2019 के िम में श्री लग्रलत कुमार ने
अपने प्राथिना पत्र ग्रदनाोंक 18.03.2019 द्वारा
शासन के कायािलय-ज्ञाप ग्रदनाोंक 31.01.2019
द्वारा उनके सहायक अग्रभय जन अग्रिकारी के
पद पर ग्रकये गये ियन से ग्रनरस्त ग्रकये गये
अभ्यथिन पर पुनग्रविार ग्रकये जाने का अनुर ि
ग्रकया है।

9- अवगत कराना है ग्रक ग्रकसी अभ्यथी के
अभ्यथिन ग्रनरस्त ह ने के बाद में उसे मा०
न्यायालय द्वारा दोषमुक्त किये जाने िे
प्रिरण में पुनः सेवा में कलये जाने िी िोई
व्यवस्था नहीों है। अतः मा० उच्चतम न्यायालय
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
द्वारा अवतार ग्रसोंह बनाम यूग्रनयन आफ इखण्डया
एवों अन्य एस०एल०पी० (सी०) नों०-20525/2011
में पाररत ग्रनणिय/मागिदशिक ग्रसद्धाोंत ग्रदनाोंक
21.07.2016 के आिार पर मा० उच्च न्यायालय,
इलाहाबाद में य ग्रजत ररट् याग्रिका सोंख्या-ए3794/2019 लग्रलत कुमार बनाम उिर प्रदेश
राज्य व अन्य में मा० न्यायालय द्वारा पाररत
ग्रनणिय ग्रदनाोंक 11.03.2019 के अनुपालन में
यािी श्री लग्रलत कुमार के प्रत्यावेदन कदनाोंि
18.03.2019 पर उनिी उपयुक्तता पर समग्र
रूप से पुनकवाचार एवों पुनमूाल्ाोंिन किया
गया, ग्रजसमें उपर क्त वग्रणित तथ् ों के दृग्रष्टगत
यािी श्री लग्रलत कुमार क सेवा में ग्रलये जाने का
क ई अवसर नहीों बनता है।

10- अतः सम्यक् ग्रविार परान्त मा० उच्च
न्यायालय, इलाहाबाद में य ग्रजत ररट् याग्रिका
सोंख्या-ए-3794/2019 लग्रलत कुमार बनाम उिर
प्रदेश राज्य व अन्य में मा० न्यायालय द्वारा पाररत
ग्रनणिय ग्रदनाोंक 11.03.2019 के अनुपालन में
यािी श्री लग्रलत कुमार के प्रत्यावेदन ग्रदनाोंक
18.03.2019 क एतद्द्वारा ग्रनस्ताररत करते हुए
ग्रनरस्त ग्रकया जाता है।"

6. Aggrieved with the aforesaid order
dated 06.11.2019, the petitioner filed WritA No.679 of 2020, which was dismissed by
the impugned order dated 22.07.2022.
Aggrieved with the impugned order, the
petitioner has filed the present special
appeal.

Submissions
on
behalf
of
the
petitioner-appellant:-

7. Learned counsel for the petitionerappellant submits as under:-

(i) The impugned judgment has been
passed on misreading of the judgment of
the acquittal dated 01.02.2019 in Criminal
Case No. 1459 of 2008 (State Vs. Braj
Singh Ken and others), under Sections
498A, 323, 504 I.P.C. and Section 3/4
Dowry Prohibition Act, Police Station
Sihanigate, District Ghaziabad.

(ii) The impugned judgment of the
learned
Single
Judge
is
based
on
misreading
of
judgment
of
Hon'ble
Supreme Court in Avtar Singh Vs. Union of
India and others [(2016) 8 SCC 471].

(iii) The petitioner was in government
employment working as Upper Divisional
Clerk in the office of Director General
(Meteorology), Ministry of Earth Sciences,
Government of India, New Delhi and
applied for Assistant Prosecution Officer
after obtaining permission from his parent
department. He appeared in the Assistant
Prosecution Officer Examination-2015 and
was declared successful. He appeared in the
interview before the Uttar Pradesh Public
Service Commission pursuant to the
interview letter dated 21.08.2017 and was
finally selected for the post of Assistant
Prosecution Officer. When the petitioner
himself has disclosed about the aforesaid
criminal case in which he was acquitted by
judgment dated 01.02.2019 passed by the
Additional Chief Judicial Magistrate, Court
No. 3, Ghaziabad in Criminal Case No.
1459 of 2008. Despite this fact, the
respondent no. 1 passed the order dated
06.11.2019 observing that in light of
principles laid down by the Hon'ble
Supreme Court in Avtar Singh case (supra),
the representation of the petitioner is
rejected. Thus, the representation of the
petitioner was rejected by order dated
06.11.2019, against which, the petitioner
filed Writ-A No. 679 of 2020, which has
been dismissed by the impugned judgment
without proper appreciation of facts,
evidences and the law laid down by the
Hon'ble Supreme Court.

Submissions on behalf of the Staterespondents:-
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1239

8. Learned Additional Chief Standing
Counsel supports the impugned judgment.
He refers to paragraphs 10 and 11 of the
impugned judgment and submits that
candidature of the petitioner was rejected
on the ground of pendency of criminal
case, however, on the next day i.e.
01.02.2019 trial court acquitted him. Since
the petitioner was not acquitted gracefully,
therefore, there is no illegality in the orders
dated 31.01.2019 and 06.11.2019.

9. Paragraphs 10-11 of the impugned
judgment of the learned Single Judge as
heavily relied by the learned Additional
Chief Standing Counsel in his aforenoted
submissions, are reproduced below:

"10. In the above referred facts and
the rival submission, it would be apposite
to quote paragraph 32 of State of
Rajasthan & Ors. Vs. Chetan Jeff, 2022
SCC OnLine SC 597:

"32. In State of M.P. vs. Abhijit Singh
Pawar, (2018)18 SCC 733, when the
employee participated in the selection
process,
he
tendered
an
affidavit
disclosing the pending criminal case
against him. The affidavit was filed on
22.12.2012. According to the disclosure, a
case registered in the year 2006 was
pending on the date when the affidavit was
tendered. However, within four days of
filing such an affidavit, a compromise was
entered
into
between
the
original
complainant and the employee and an
application for compounding the offence
was filed under Section 320 Cr.P.C. The
employee came to be discharged in view of
the deed of compromise. That thereafter
the
employee
was
selected
in
the
examination and was called for medical
examination. However, around the same
time, his character verification was also
undertaken and after due consideration of
the character verification report, his
candidature was rejected. The employee
filed a writ petition before the High Court
challenging rejection of his candidature.
The learned Single Judge of the High
Court of Madhya Pradesh allowed the
said writ petition. The judgment and order
passed by the learned Single Judge
directing the State to appoint the employee
came to be confirmed by the Division
Bench which led to appeal before this
Court. After considering a catena of
decisions on the point including the
decision in Avtar Singh Vs. Union of India,
(2016) 8 SCC 471, this Court upheld the
order
of
the
State
rejecting
the
candidature of the employee by observing
that as held in Avtar Singh (supra), even in
cases where a truthful disclosure about a
concluded case was made, the employer
would still have a right to consider
antecedents of the candidate and could not
be compelled to appoint such candidate."

 (emphasis added)
11. In the light of State of Rajasthan &
Ors. Vs. Chetan Jeff, (supra), considering
the facts and circumstances of present case,
rival submissions as well as the material
available on record, it is not in dispute that
at
the
time
of
submitting
the
verification/attestation
form,
petitioner
disclosed that he was facing a trial for the
offence as referred above and by the
impugned
order,
candidature
of
the
petitioner was rejected on the ground of
pendency of said criminal case, however on
the next date i.e. 1.2.2019, learned trial
court passed the judgment and acquitted
the petitioner. It is also not in dispute that
nature of acquittal was not ''clean or
honorouable' as the prosecution was failed
to prove case against the petitioner beyond
reasonable doubt."

Discussion and Findings:-
1240 INDIAN LAW REPORTS ALLAHABAD SERIES

10. We have carefully considered the
submissions of the learned counsels for the
parties and perused the record of the special
appeal.

11. Undisputedly, the petitioner was
working as Upper Divisional Clerk in the
office of the Director General (Meteorology),
Ministry of Earth Sciences, Government of
India, New Delhi when he applied for the
post of Assistant Prosecution Officer and
accordingly
appeared
in
the Assistant
Prosecution Officer, Examination, 2015. Also
undisputedly he made true and full disclosure
of the aforesaid pendency of Criminal Case
No.1459 of 2008. The aforesaid criminal case
was the result of Case Crime No.93 of 2007
lodged by the wife against him, his father Sri
Braj Singh ken, his mother Smt. Sita Devi
and his younger brother Praveen Kumar
under Section 498A, 323, 504 I.P.C. and
Section 3/4, Dowry Prohibition Act.

12. We have perused the judgment
dated 01.02.2019 in the aforesaid Criminal
Case No.1459 of 2008 and we find that the
informant made merely general allegations
against the petitioner. Even the prosecution
witnesses including the informant could not
make any specific allegation nor could prove
any incident nor could prove demand of
dowry by the petitioner. Therefore, after
detailed discussion and appreciation, the trial
court held that there is absence of logical
chain in the story set up by the prosecution,
that the allegations made against the
petitioner are of general nature and that
clearly the prosecution has failed to prove
allegations
beyond
reasonable
doubt.
Consequently, the petitioner and his family
members were acquitted.

13. The trial court in its aforesaid
judgment in Criminal Case No.1459 of
2008 has recorded three definite findings
which
we
have
noted
above.
The
allegations against the petitioner was found
to be general in nature. His acquittal was
not by giving benefit of doubt but on
account of absence of logical chain of story
set up by the prosecution and allegation
against the accused including the petitioner
were of general nature . That apart, the
petitioner was already in service in the
office of Director General (Meteorology),
Ministry of Earth Sciences, Government of
India, New Delhi and he was not ousted
from service by the Government of India
on account of the aforesaid criminal case.
Therefore, merely on account of lodging of
a criminal case in which the petitioner was
ultimately acquitted; neither it can be said
that the petitioner has become unsuitable
for appointment in another government job,
i.e. on the post of Assistant Prosecution
Officer nor a view adverse to the petitioner
can be taken on the basis of the judgment
of Hon'ble Supreme in the case of Avtar
Singh (supra) (SCC) on the facts of the
present case.

14. Reliance placed by the learned
standing counsel upon Paragraph-32 of the
judgment in the case of State of Rajsthan
vs. Chetan Jeff, 2022 SCCOnline SC 597,
is totally misplaced on facts of the present
case. In the case of Chetan Jeff (supra), the
facts were that the employee came to be
discharged in view of the deed of
compromise. In the present set of facts, the
petitioner has been acquitted not on the
basis of compromise but on merits of the
case.

15. In the case of Avtar Singh (supra)
(paras-29 to 38.11), Hon'ble Supreme
Court held as under:

"29. The verification of antecedents is
necessary to find out fitness of incumbent,
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1241
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
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 come 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.

31. Coming to the question whether an
employee
on
probation
can
be
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
discharged/refused appointment though he
has been acquitted of the charge/s, if his
case was not pending when form was filled,
in such matters, employer is bound to
consider grounds of acquittal and various
other aspects, overall conduct of employee
including the accusations which have been
levelled. If on verification, the antecedents
are otherwise also not found good, and in
number of cases incumbent is involved then
notwithstanding acquittals in a case/cases,
it would be open to the employer to form
opinion as to fitness on the basis of
material on record. In case offence is petty
in nature committed at young age, such as
stealing a bread, shouting of slogans or is
such which does not involve moral
turpitude, cheating, misappropriation etc.
or otherwise not a serious or heinous
offence and accused has been acquitted in
such a case when verification form is filled,
employer may ignore lapse of suppression
or
submitting
false
information
in
appropriate cases on due consideration of
various aspects.

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. 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.

33. The fraud and misrepresentation
vitiates a transaction and in case employment
has been obtained on the basis of forged
documents, as observed in M. Bhaskaran's
case (supra), it has also been observed in the
reference order that if an appointment was
procured fraudulently, the incumbent may be
terminated without holding any inquiry,
however we add a rider that in case employee
is confirmed, holding a civil post and has
protection of Article 311(2), due inquiry has
to be held before terminating the services.
The case of obtaining appointment on the
basis of forged documents has the effect on
very eligibility of incumbent for the job in
question, however, verification of antecedents
is different aspect as to his fitness otherwise
for the post in question. The fraudulently
obtained appointment orders are voidable at
the option of employer, however, question has
to be determined in the light of the discussion
made in this order on impact of suppression
or submission of false information.

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
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1243
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.

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 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 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
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

 (Emphasis supplied by us)

16. As per law settled by the Supreme
Court in the case of Avtar Singh (supra),
it was open for the respondent to adjudge
antecedents of the petitioner to assess his
suitability but ultimate action should be
based
on
objective
criteria
of
due
consideration of all relevant aspects.
Perusal of the impugned orders dated
31.01.2019 and 06.11.2019 passed by the
respondent No.2 shows that although the
respondent No.2 has noted certain facts
including the fact that the petitioner is
posted as Upper Divisional Clerk in a
department of Government of India since
the year 2002, and has no criminal history/
background and has been acquitted in the
aforesaid criminal case and yet rejected his
representation without objective criteria
and without due consideration of all
relevant aspects. It is further relevant to
mention that by the judgment and order
dated 11.03.2019 in Writ-A No.3794 of
2019 (Lalit Kumar vs. State of U.P. and 2
others), the learned Single Judge noted the
contention of the State-respondents that
"the ends of justice would merit the matter
being remitted to the second respondent for
reconsideration and re-evaluation of the
suitability of the petitioner for appointment
in accordance with law ............". The writ
petition was disposed of by the learned
Single Judge in the light of the statement of
the State-respondents as noted above. But
perusal of the impugned order dated
06.11.2019 shows that the respondent
No.2
neither
reconsidered
nor
reevaluated the suitability of the petitioner
based on any objective criteria but
arbitrarily rejected the representation of
the petitioner.

17. The judgment of Hon'ble Supreme
Court in the case of Union of India and
others vs. Methu Meda, (2022) 1 SCC 1
relied by learned Additional Chief Standing
Counsel is distinguishable on the facts of
the present case inasmuch as in the said
case, there was accusation of kidnapping
and acquittal was because the complainant
turned hostile. In the present set of facts,
the accusation was made by the wife of the
petitioner against him, his father, mother
1 All. Lalit Kumar Vs. State of U.P. & Ors.
1245
and brother which could not be proved by
the prosecution. The trial court found that
accusation against the petitioner were of
general nature. Thus, the judgment in the
case of Methu Meda (supra) is of no help
to the respondents.

18. In a recent judgment in the case of
Satish Chandra Yadav vs. Union of India
and others reported in 2022 SCCOnline
SC 1300 (judgment dated 26.09.2022)
(paras-75, 86, 88, 89 and 90), Hon'ble
Supreme Court has held, as under:

"75. This Court before settling the
issues in the case of Avtar Singh v. Union of
India and Others, (2016) 8 SCC 471,
discussed the said principles extensively in
the matter of Commissioner of Police, New
Delhi and Another v. Mehar Singh, (2013)
7 SCC 685. In this case, a candidate for the
post of constable in the Delhi Police had
disclosed his involvement in a criminal
case, wherein he was acquitted on technical
grounds.
The
candidate
had
his
candidature for the post rejected by the
Standing Committee. The candidate argued
that as he had been acquitted, the Standing
Committee by rejecting his candidature had
overreached the decision of the competent
Authority. This Court, while deciding on
the issue and whether the respondent was
honourably acquitted, held as under:

"25.
The
expression
"honourable
acquittal" was considered by this Court in
S. Samuthiram 2013 (1) SCC 598. In that
case this Court was concerned with a
situation where disciplinary proceedings
were initiated against a police officer.
Criminal case was pending against him
under Section 509 IPC and under Section 4
of the Eve-Teasing Act. He was acquitted in
that case because of the non-examination
of key witnesses. There was a serious flaw
in the conduct of the criminal case. Two
material witnesses turned hostile. Referring
to the judgment of this Court in RBI v.
Bhopal Singh Panchal (1994) 1 SCC 541
where in somewhat similar fact situation,
this Court upheld a bank's action of
refusing to reinstate an employee in service
on the ground that in the criminal case he
was acquitted by giving him benefit of
doubt and, therefore, it was not an
honourable acquittal, this Court held that
the High Court was not justified in setting
aside the punishment imposed in the
departmental proceedings. This Court
observed that the expressions "honourable
acquittal", "acquitted of blame" and "fully
exonerated" are unknown to the Criminal
Procedure Code or the Penal Code. They
are coined by judicial pronouncements. It is
difficult to define what is meant by the
expression "honourably acquitted". This
Court expressed that when the accused is
acquitted after full consideration of the
prosecution case and the prosecution
miserably fails to prove the charges
levelled against the accused, it can possibly
be said that the accused was honourably
acquitted.

26. In light of the above, we are of the
opinion that since the purpose of the
departmental proceedings is to keep
persons,
who
are
guilty
of
serious
misconduct or dereliction of duty or who
are guilty of grave cases of moral
turpitude, out of the department, if found
necessary,
because
they
pollute
the
department, surely the above principles will
apply with more vigour at the point of entry
of a person in the police department i.e. at
the time of recruitment. If it is found by the
Screening Committee that the person
against whom a serious case involving
moral turpitude is registered is discharged
on technical grounds or is acquitted of the
same charge but the acquittal is not
honourable,
the
Screening
Committee
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
would be entitled to cancel his candidature.
Stricter norms need to be applied while
appointing persons in a disciplinary force
because public interest is involved in it.

x x x x x x x x x

34. The respondents are trying to draw
mileage from the fact that in their
application and/or attestation form they
have disclosed their involvement in a
criminal case. We do not see how this fact
improves their case. Disclosure of these
facts in the application/attestation form is
an essential requirement. An aspirant is
expected to state these facts honestly.
Honesty
and
integrity
are
inbuilt
requirements of the police force. The
respondents should not, therefore, expect to
score any brownie points because of this
disclosure. Besides, this has no relevance to
the point in issue. It bears repetition to
state that while deciding whether a person
against whom a criminal case was
registered and who was later on acquitted
or discharged should be appointed to a
post in the police force, what is relevant is
the nature of the offence, the extent of his
involvement, whether the acquittal was a
clean acquittal or an acquittal by giving
benefit of doubt because the witnesses
turned hostile or because of some serious
flaw in the prosecution, and the propensity
of such person to indulge in similar
activities in future. This decision, in our
opinion, can only be taken by the Screening
Committee created for that purpose by the
Delhi Police. If the Screening Committee's
decision is not mala fide or actuated by
extraneous considerations, then, it cannot
be questioned.
35.