# Madhusoodan v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1060
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-11-08
- **Case number:** Spl. Appeal No. 98 of 2021
- **Bench:** Rajesh Bindal, C.J. Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhusoodan-v-state-of-u-p-ors-46473
- **Pages:** 4

## Headnote

A. Service Law - Appointment - Concealment -
Pendency of criminal case - Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 - It
could not be disputed that the application form did
not require the appellant to disclose pendency of any
criminal proceedings. All what the application required
was to disclose whether the appellant had been
convicted of any offence or not and in the instant
case, the appellant has not been convicted by any
competent court in respect of any offence. Also, till
such time the application form was filled and the
affidavit was furnished by the appellant, he was not
served with summons of the criminal case, hence the
affidavit of the appellant stating to the best of
his knowledge that he has not been convicted
by any court of law, cannot be said to be a
statement which was incorrect or suffered from
any concealment. (Para 9 to 11, 14, 15)

Hon'ble Court after noticing the dictum of the Apex
Court in the case of Sandeep Kumar's case (infra) as
well as Avtar Singh's case (infra) held that it was not
open for the Authorities to have taken a different
view on the same set of facts. Also, for the reason
that once the learned Single Judge in its judgment
dated 05.08.2019 had already noticed that the case
of the appellant was covered by the judgment of
Avtar Singh's case (infra), (Para 8, 16)

Appeal allowed. (E-4)

Precedent followed:

## Text

1060 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute between the parties so as to be deemed
to have been issued in exercise of powers
conferred under Article 226 of the Constitution.
It is open to the appellant to raise his grievance
before the Single Judge before whom the matter
is to be taken up as per the direction of the
learned Single Judge.

12. In view of the aforementioned facts
and circumstances, the preliminary objection
raised with regard to maintainability of the
special appeal under the provisions of Chapter
VIII Rule 5 of the Allahabad High Court Rules,
1952, is sustained.

13. The special appeal is held to be not
maintainable and is accordingly dismissed.
----------
(2021)12ILR A1060
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.11.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE JASPREET SINGH, J.

Spl. Appeal No. 98 of 2021

Madhusoodan ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Mr. Anand Prakash Pandey

Counsel for the Respondents:
Mr. Manjiv Shukla, Addl. C.S.C.

A. Service Law - Appointment - Concealment -
Pendency of criminal case - Allahabad High
Court Rules, 1952 - Chapter VIII Rule 5 - It
could not be disputed that the application form did
not require the appellant to disclose pendency of any
criminal proceedings. All what the application required
was to disclose whether the appellant had been
convicted of any offence or not and in the instant
case, the appellant has not been convicted by any
competent court in respect of any offence. Also, till
such time the application form was filled and the
affidavit was furnished by the appellant, he was not
served with summons of the criminal case, hence the
affidavit of the appellant stating to the best of
his knowledge that he has not been convicted
by any court of law, cannot be said to be a
statement which was incorrect or suffered from
any concealment. (Para 9 to 11, 14, 15)

Hon'ble Court after noticing the dictum of the Apex
Court in the case of Sandeep Kumar's case (infra) as
well as Avtar Singh's case (infra) held that it was not
open for the Authorities to have taken a different
view on the same set of facts. Also, for the reason
that once the learned Single Judge in its judgment
dated 05.08.2019 had already noticed that the case
of the appellant was covered by the judgment of
Avtar Singh's case (infra), (Para 8, 16)

Appeal allowed. (E-4)

Precedent followed:

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

2. Commissioner of Police & ors. Vs Sandeep Kumar,
(2011) 4 SCC 644 (Para 12)

Present Special Appeal challenges order dated
20.01.2021, passed by learned Single Judge as
well as order dated 31.08.2019, passed by
respondents.

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant intracourt appeal has been
preferred under Chapter VIII Rule 5 of
Allahabad High Court Rules, 1952 assailing the
order dated 20.01.2021 passed by the learned
Single Judge in Writ Petition No.33715 (S/S) of
2019 (Madhusoodan Vs. State of U.P. & others).

2. In order to appreciate the controversy
involved, certain brief facts giving rise to the
instant appeal are being noticed hereinafter.

3. The appellant had applied for the post of
Police Constable in the Uttar Pradesh Police in
11 All. Madhusoodan Vs. State of U.P. & Ors.
1061
pursuance of an advertisement issued by the
Uttar Pradesh Police Recruitment and Promotion
Board Lucknow, for Police Constable and
Constable P.A.C. (male) Direct Recruitment,
2015. The appellant was selected and he was
also provided with a provisional admit card. The
appellant also participated in the physical test
scheduled on 23rd of April, 2016, thereafter the
documents of the appellant were verified and he
was also found medically fit.

4. Thereafter, on 30.06.2018, the appellant
received a notice from the Additional District
Magistrate (Judicial), Ambedkar Nagar seeking
his explanation regarding the case registered
against the appellant. The appellant replied to
the same. However, the reply of the appellant
did not find favour. Consequently by means of
order dated 21.07.2018, the appellant was not
found fit for appointment on the ground of
pendency of criminal case number NCR No.292
of 2013 under Sections 323, 504, 506, 427 IPC,
at police station Jalalpur, District Ambedkar
Nagar.

5. The appellant assailed the order dated
21.07.2018 before learned Single Judge of this
Court. After hearing the parties the learned
Single Judge, after noticing the dictum of Apex
Court in the case of Avtar Singh Vs. Union of
India 2016 reported as (2016) 8 SCC 471
partly allowed the writ petition. The relevant
portion of the judgment dated 05.08.2019 reads
as under:-

"Consequently,
keeping
in
view
the
aforesaid principles of law enunciated by
Hon'ble the Supreme Court in the case of Avtar
Singh (supra), the order impugned cannot be
sustained. As such, the writ petition is partly
allowed. A writ of certiorari is issued quashing
the impugned order dated 21.07.2018, a copy of
which is annexure 1 to the petition. A writ of
mandamus is issued directing the competent
authority to consider the case of the petitioner
and pass a reasoned and speaking order strictly
in light of the principles of law laid down by
Hon'ble the Supreme Court in the aforesaid
judgment within a period of three weeks from
the date a certified copy of this order is produced
before him.
Consequences to follow."

6. The respondents thereafter considering
the case of the appellant again by means of the
impugned order dated 31.08.2019 rejected the
case of the appellant. Being aggrieved against
this order of rejection dated 31.08.2019 the
appellant preferred the writ petition in this Court
which has been dismissed by the learned Single
Judge.

7. The Court has heard the learned counsel
for the appellant Shri Anand Prakash Pandey
and the learned Standing Counsel for the Staterespondents Shri Manjiev Shukla.

8. Submission of the learned counsel for
the appellant is that the respondents have erred
in rejecting the case of the appellant and even
the learned Single Judge has not noticed that the
appellant had not concealed any fact regarding
the said criminal case. It is also urged that the
case of Avtar Singh (supra) was squarely
applicable as already held by the learned Single
Judge in the first round of litigation in its
judgment dated 05.08.2019 passed in Writ
Petition No.22104 (S/S) of 2018.

9. Further submission of the learned
counsel for the appellant is that the application
form which was filled, did not require the
appellant to disclose the pendency of any
criminal case. Learned counsel has drawn the
attention of the Court to the application form
which has been brought on record as Annexure
A-1 with this appeal and has pointed out that all
what the application form required is to state
whether the appellant has been convicted by any
competent court.
1062 INDIAN LAW REPORTS ALLAHABAD SERIES

10. It is also urged that in so far as the
appellant is concerned, he was not even aware of
the said proceedings. He has drawn the attention
of the Court to the extracts of the order-sheet of
the case NCR No.292 of 2013 and has indicated
that though the summons were issued by the
Court but the same were never served on the
appellant till the time, he had filled the said
application and even subsequently he had
furnished an affidavit and till such time, he was
not aware of the said proceedings. It is only on
11.09.2019 that the appellant had been served
with the summon.

11. Thus, the submission is that the
appellant has never been convicted at any time.
Even at the time of filling of the application he
was not aware of the proceedings as till then he
was not served with the summons and thus there
was never any concealment or intention to
conceal the pendency of any proceedings. Even
though the application did not seek any
information regarding pendency of any criminal
case.

12. It is submitted that once in Avtar
Singh's case (supra) wherein the Apex Court has
laid down principles to be considered while
making an appointment of a person against
whom certain cases are pending and morefully
enunciated in para 38 of the said report and the
same were squarely applicable and held by the
learned Single Judge in its judgment dated
05.08.2019 passed in Writ Petition No.22104
(S/S) of 2018, it was not open for the
respondents to have taken any other view, hence
the impugned order dated 31.08.2019 was bad in
the eyes of law and this aspect of the matter has
not been considered by the learned Single Judge.
Learned Counsel for the appellant has relied
upon a decision of the Apex Court in the case of
Commissioner of Police and others Vs.
Sandeep Kumar reported in (2011) 4 SCC 644
in support of his submissions.

13. Learned Standing Counsel, on the other
hand, has submitted that since the appellant did
not inform the Authorities regarding the
pendency of the criminal case, consequently the
impugned order passed by the Authorities,
finding the appellant not fit for appointment,
cannot be faulted. Moreover, even the learned
Single Judge has found that the pendency of the
criminal case was not properly disclosed and a
petition under Article 226 of the Constitution of
India being discretionary in nature and having
been dismissed for want of disclosure in the
aforesaid circumstances, the appeal is also
devoid of merits and may not be entertained and
is liable to be dismissed.

14. Apparently, what the learned Standing
Counsel could not dispute is the fact that the
application form did not require the appellant to
disclose pendency of any criminal proceedings.
All what the application required was to disclose
whether the appellant had been convicted of any
offence or not and in the instant case, the
appellant has not been convicted by any
competent court in respect of any offence.

15. Learned Standing Counsel also could
not dispute the fact that till such time the
application form was filled and the affidavit was
furnished by the appellant, he was not served
with the summons of the criminal case, hence
the affidavit of the appellant stating to the best
of his knowledge that he has not been convicted
by any court of law, cannot be said to be a
statement which was incorrect or suffered from
any concealment.

16. Noticing the dictum of the Apex Court
in the case of Sandeep Kumar's case (supra) as
well as Avtar Singh's case (supra) also for the
reason that once the learned Single Judge in its
judgment dated 05.08.2019 had already noticed
that the case of the appellant was covered by the
judgment of Avtar Singh's case (supra), it was
11 All. State of U.P. & Ors. Vs. Pooja Singh
1063
not open for the Authorities to have taken a
different view on the same set of facts.

17. It is also not disputed that the sole
ground of passing the order dated 31.08.2019 is
the alleged non-disclosure of the criminal case.

18. In view of the aforesaid, we find that
the dismissal of the writ petition by the learned
Single Judge was not justified, accordingly, we
are of the view that the appeal deserves to be
allowed.
Consequently,
the
order
dated
20.01.2021 passed by the learned Single Judge is
set aside so also the impugned order dated
31.08.2019 shall stand set aside and the writ
petition shall stand allowed.

19. Consequences to follow.

20. In the facts and circumstances, there
shall be no order as to costs.
----------
(2021)12ILR A1063
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2021

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE PIYUSH AGRAWAL, J.

Spl Appl. (D) No. 660 of 2021

State of U.P. & Ors. ...Appellants
Versus
Pooja Singh ...Opp. Party

Counsel for the Appellants:
Sri Rama Nand Pandey

Counsel for the Respondents:
Sri Om Prakash Singh

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
of
Dependents of Government Servants Dying
in Harness Rules, 1974 - Rule 2(c)(iii) - This
Court has held that exclusion of married
daughter from the ambit of expression of
"family" as defined u/Rule 2(c) of the Rules
is
illegal
and
unconstitutional.
Meaning
thereby, even married daughters are eligible
for appointment on compassionate basis,
and hence, cannot be treated ineligible, as such,
as this Court has not framed any law rather has
merely declared the law. (Para 10)

B. No concealment of fact - When the
respondent
filed
application
seeking
compassionate appointment, she was not married
as she is stated to have married on December 01,
2001 whereas the application for compassionate
appointment was filed on October 13, 1999.
Hence, it is not a case of concealment of fact
in the application filed by the respondent.
(Para 7, 8)

Considering the fact that the respondent is in
service for the last more than 15 years and, there
was no concealment of fact as such in the
application filed by her seeking compassionate
appointment,
no
ground
is
made
out
for
interference. (Para 11)

Appeal dismissed. (E-4)

Precedent followed:

1. Smt. Vimla Srivastava Vs St. of U.P. & anr., 2016
(1) ADJ 21 (DB) (Para 4, 10)

2. The St. of U.P. & anr. Vs Neha Srivastava, Special
Leave Petition No. 22646 of 2016, decided on
23.07.2019 (Para 4, 10)

Present Special Appeal assails judgment and
order dated 25.01.2021, passed by learned
Single Judge.

(Delivered by Hon'ble Rajesh Bindal, C.J.)

1. Order dated January 25, 2021 passed by
learned Single Judge has been challenged by the
State by filing the present intra-Court appeal.

2. The respondent had approached this
Court challenging the order dated September 1,
2017, whereby the order of her appointment on
compassionate basis was cancelled on the