# Navanit Yadav v. State of U.P. & Ors

- **Citation:** Service Single No. 24576 of 2019
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-26
- **Case number:** Service Single No. 24576 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/navanit-yadav-v-state-of-u-p-ors-46310
- **Pages:** 5

## Headnote

Law-Indian
Penal
CodeSection
147,323,504
&
506-ServiceAppointment- Petitioner was declared unfit
for the post of Junior Assistant after selection.
Reason mentioned was the pendency of a
criminal case against the petitioner u/s 147,
323, 504 and 506 IPC. The Court held that, as
the petitioner was not aware about the
pendency of criminal case at the time of
submitting his declaration, he could not have
disclosed the same. Also, his offence was not so
serious to refuse appointment. (Para 9, 10)
Writ petition allowed. (E-4)

Precedent followed:
1220 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

3-5 All. Navanit Yadav Vs. State of U.P. & Ors.
1219
illegality
committed
by
concerned
authority.
Since
appointment
of
respondent-3 was already made subject to
result of writ petition and subsequently it
was also stayed, the mere fact that after
filing of writ petition, respondent-3 was
appointed would make no difference.

29. In the result, writ petition is
allowed. Appointment of respondent-3 is
declared illegal and hereby set aside.

30. The facts disclosed above show
that despite interim order passed by this
Court,
respondent-3
was
allowed
to
continue and paid salary, therefore, for the
period subsequent to order 04.04.2001, the
amount of salary which has been paid to
respondent-3 is clearly unauthorized and
illegal. However, since he has worked, I do
not find it appropriate to direct recovery of
salary from respondent-3 but this illegality
and
contemptuous
act
has
been
perpetuated/be allowed by the then District
Magistrate, therefore, in my view entire
amount which has been paid towards salary
to respondent-3, on and after the stay order
passed by this Court on 04.04.2001, must
be recovered from concerned Officials who
held Office of District Magistrate from that
date till now and allowed this illegality. I
order accordingly. The respondent-1 shall
give opportunity to concerned District
Magistrate(s) who held the Office during
this period and make recovery of the
amount which has been paid as salary to
respondent-3
from
such
District
Magistrate(s) who held Office during this
period and allowed salary to be paid to
respondent-3 despite stay order passed by
this Court on 04.04.2001.

31. Considering the facts and
circumstances and also the fact that original
application form of petitioner nowhere
shows that he submitted certificate of
sports and even otherwise almost 20 years
have passed, I find it appropriate that the
vacancy on the post of 'Junior Clerk', after
setting
aside
the
appointment
of
respondent-3, will be filled in by initiating
process of recruitment, afresh.

32. However, petitioner shall be
entitled to cost which I quantify to Rs. 1 lac
against respondents-1 and 2.
----------
(2020)03-05ILR A1219
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.02.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 24576 of 2019

Navanit Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Jagdambika Prasad Tripathi, Indra Jeet
Yadav, Vishwanath Prasad Tripathi

Counsel for the Respondents:
C.S.C.

A.
Criminal
Law-Indian
Penal
CodeSection
147,323,504
&
506-ServiceAppointment- Petitioner was declared unfit
for the post of Junior Assistant after selection.
Reason mentioned was the pendency of a
criminal case against the petitioner u/s 147,
323, 504 and 506 IPC. The Court held that, as
the petitioner was not aware about the
pendency of criminal case at the time of
submitting his declaration, he could not have
disclosed the same. Also, his offence was not so
serious to refuse appointment. (Para 9, 10)
Writ petition allowed. (E-4)

Precedent followed:
1220 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Avtar Singh VsU.O.I. & ors., (2016) 8 SCC
471 (Para 7, 11)

2. Commissioner of Police & ors. Vs. Sandeep
Kumar, (2011) 4 SCC 644 (Para 8)

Petition assails order dated 09.08.2019,
passed
by
Regional
Food
Controller,
Ayodhya Region, Ayodhya.

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

1. Heard Sri J.P. Tripathi, learned
counsel for the petitioner and Dr. Udai
Veer Singh, learned Addl. C.S.C. for the
State respondents.

2. This Court has passed order dated
5.2.2020 which reads as under :

"By means of this petition the
petitioner has assailed the order dated
9.8.2019 passed by the Regional Food
Controller, Ayodhya Region, Ayodhya
declaring the petitioner unfit for the post of
Junior Assistant on which he was finally
selected. The reasons so indicated in the
impugned order is that the petitioner while
submitting his information on 6.8.2018 has
concealed the fact that one criminal case
bearing Crime No. 238/2017 under section
147, 323, 504 and 506 I.P.C. at P.S.
Naunhara, District Ghazipur was pending
wherein the charge-sheet has been filed
against the petitioner on 13.1.2018.

The learned counsel for the
petitioner has categorically indicated in
para 10 of the writ petition that petitioner
was
absolutely
unaware
about
the
aforesaid criminal case and charge-sheet
inasmuch as the petitioner could know
about the aforesaid fact on the police
verification being made against him in the
month of March, 2019 and immediately
after knowing the aforesaid fact the
petitioner intimated the authorities that he
has obtained bail in the aforesaid case. Not
only the above the petitioner has preferred
a letter to the department on 13.5.2019
which has been enclosed with the counter
affidavit
wherein
the
petitioner
has
intimated the fact that he was absolutely
unaware about the aforesaid case and
since he has been released on bail and the
matter is pending before the criminal court,
therefore, if the petitioner is held guilty in
the aforesaid criminal case his services
may be terminated. On that application of
the petitioner the appointing authority has
preferred
a
letter
dated
13.6.2019
(Annexure no. 7) to the Commissioner,
Food and Civil Supplies apprising the fact
that as per opinion of D.G.C.(Civil),
Ayodhya there is no legal impediment
appointing the petitioner on the post in
question. However, on the said letter the
Additional Commissioner, Food and Civil
Supplies has written letter dated 12.7.2019
(Annexure no. 8) to the Regional Food
Controller, Ayodhya to take appropriate
decision as he is the appointing authority,
thereafter the Regional Food Controller
has passed the impugned order dated
9.8.2019. In the counter affidavit this fact
has not properly been replied as to whether
the petitioner was informed about the
pending criminal case and the charge-sheet
which was filed on 13.1.2018. If the
aforesaid
fact
was
not
within
the
knowledge of the petitioner then the
premise of the authorities on which the
impugned order has been passed would not
be said to be correct.

Therefore, in view of the above
the learned Addl. C.S.C. is directed to
obtain the information from the Court
concerned wherein the charge-sheet dated
13.1.2018 has been filed against the
petitioner regarding the information of the
criminal case being given to the petitioner
3-5 All. Navanit Yadav Vs. State of U.P. & Ors.
1221
on or before 8.6.2018 when the petitioner
has
submitted
his
declaration.
The
aforesaid exercise shall be carried out
within a period of two weeks.
List this petition on 24.2.2020 within top 10
cases.

Learned counsel for the petitioner
may also file the order-sheet of the Court
concerned to convince the Court that on or
before
8.6.2018
the
information
of
pendency of any criminal case or chargesheet has not been provided to him. "

3. In compliance of the aforesaid
order learned counsel for the petitioner has
already filed affidavit bringing on record
the certified copy of the order-sheet of the
learned
court-below
i.e.
A.C.J.M.,
Ghazipur demonstrating the fact as to when
the petitioner could know about the
pendency of the criminal case.

4. Learned Addl. C.S.C. has also
produced
the
letter
dated
22.2.2020
preferred by the Regional Food Controller,
addressing to the C.S.C. of this Court
enclosing
therewith
some
relevant
correspondences, the same are taken on
record. As per aforesaid instructions this
much has been indicated that the chargesheet in the issue in question has been
submitted before the Court concerned on
13.1.2018 and the petitioner has filed his
declaration before the competent authority
on 8.6.2018, before submission of chargesheet, therefore, the fact was known to the
petitioner regarding pendency of criminal
case. In the aforesaid instruction it has
nowhere been indicated as to how such
information was provided to the petitioner.

5. The affidavit so filed by Sri
Tripathi, learned counsel for the petitioner
clearly indicates that the learned courtbelow has issued notice to the petitioner on
17.10.2018 directing him to appear before
the
Court
concerned
on
5.1.2019.
Therefore, there is no doubt that the
petitioner could know about the pendency
of criminal case only after the notice has
been issued by the Court concerned on
17.10.2018 for his appearance on 5.1.2019.

6. In view of the above it is clear that
when the petitioner has filed declaration on
8.6.2018 he was absolutely unaware about
the pendency of the criminal case inasmuch
as he could know about the aforesaid fact
on or after 17.10.2018.

7. The issue in question has already
been settled by the Hon'ble Apex Court
while issuing guidelines in such type of
matters as to how those circumstances can
be dealt with, in re: Avtar Singh vs. Union
of India & others reported in (2016) 8
SCC 471. The relevant para of the
judgment in re: Avtar Singh (supra) are
38.1 to 38.4, 38.5 and 38.6, which 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
1222 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

8. The Hon'ble Apex Court in re:
Commissioner of Police and others vs.
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."

9. 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 09.08.2019, the
competent authority has not invoked his
discretion reasonably.

10. In view of the above, I am of
the considered opinion that since the
petitioner was not aware about the
pendency of the criminal case at the
time of submitting his declaration,
therefore, he could have not disclosed
such fact in his declaration. Therefore,
it appears that the impugned order dated
9.8.2019 is liable to be revisited
inasmuch as the order impugned suffers
from arbitrariness and discrimination,
hence, the same is liable to be set aside.

11. Accordingly, a writ in the
nature of certiorari is issued quashing
the order dated 9.8.2019 passed by the
Regional Food Controller, Ayodhya
Region, Ayodhya (Annexure no. 1). The
matter is remitted back to the authority
concerned to pass appropriate orders
strictly
in
accordance
with
law
considering the facts and circumstances
of the issue in question as well as the
dictum of Hon'ble Apex Court in re:
Avtar Singh (supra). The compliance of
the aforesaid order shall be made with
promptness preferably within a period
of one month.

12. In view of above observations,
writ petition is Allowed.

13. No order as to costs.
----------
3-5 All. Radhey Shyam Birla Vs. Union of India & Ors.
1223
(2020)03-05ILR A1223
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.

WRIT A No. 30517 of 2005

Radhey Shyam Birla ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Kshetresh Chandra Shukla, Sri Vivek
Kumar Singh

Counsel for the Respondents:
S.S.C., Sri Devendra Pratap Singh, Sri
Jitendra Nath Sharma, Kirtika Singh, Sri
V.B. Singh

A. Service Law -General Clauses Act,
1897-: Section 27;- Indian Evidence Act,
1872:- Section 114(e), 114(f);- Indian
Post Office Act, 1898:- Sections 2(f), 3, 4,
17, 14 - Voluntary Retirement Scheme -
Resignation - It is for the sendee, who
deny service of registered letter upon him
and attempted to challenge endorsement
of "refusal" made by Postman, to lead
evidence which includes examination of
"Postman" also and in case he fails to do
so, legal presumption will go against him
and will remain to be unrebutted unless
there is other material to show otherwise.
Nothing of this sort has been shown in the case
in hand. (Para 45)
Petitioner
withdrew
his
resignation
and
communicated this fact to the respondents vide
letters dated 07.07.2003 and 21.07.2003 which
was sent by registered post. It is not the case of
the respondents that registered letter is not
properly addressed and, hence, presumption of
service lies in favour of petitioner unless proved
otherwise by respondents. Respondents as per
the own case set up finally accepted resignation
of petitioner vide letter dated 30.01.2004 i.e.
after withdrawal of resignation which could not
have been done. Therefore, acceptance of
resignation letter dated 31.07.2002 is invalid
and not in accordance with law. (Para 7, 16, 46)

B.
Meaning
of
words
"resign"
and
"resignation" referred to - A conditional
resignation is not a valid resignation (Para
52 to 62) - It can be safely said that letter of
resignation tendered by petitioner in the present
case is a conditional letter of resignation. It
states that resignation may be accepted on
payment of all outstanding dues, which shows
that resignation was simultaneous to payment
of all outstanding dues. Hence, it could not have
been accepted. (Para 50, 51)
Therefore, the contention of the respondent
that withdrawal of resignation being conditional,
will not be treated to be a withdrawal, does not
suffice, as the resignation itself is rendered
invalid. (Para 49)

C. Constitution of India: Article 12 - A
public functionary cannot be permitted to
act like a dictator causing harassment to a
common man and in particular when the
person subject to harassment is his own
employee - The respondents being "State"
under
Art.
12,
its
officers
are
public
functionaries. Petitioner has placed on record
certain
documents
to
show
that
some
employees have been retained by respondents
which is sought to be explained by respondents
that a skeleton staff was maintained to take out
formal closure activities. This means that entire
staff has not been terminated. In these facts
and circumstances, there is no reason to deny
relief to petitioner to which he is entitled,
particularly when
respondent-Employer
has
committed fault. They cannot be allowed to take
advantage of their own wrong. (Para 64, 65, 66,
73, 74)
Therefore, the contention that Unit in which
petitioner was working is closed in 2004 itself
and, therefore, petitioner neither can be given
re-employment or reinstatement nor any other
service benefit, does not suffice. (Para 63)
Writ petition allowed. (E-4)

Precedent followed

1. Whitfield Vs. Lord Le Despencer, (1778) 2
Cowp. 754 (Para 20, 23)