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

- **Citation:** (2021) 4 ILRA 181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-19
- **Case number:** Writ A No. 7114 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanny-kumar-v-state-of-u-p-ors-46973
- **Pages:** 16

## Headnote

A. Service law - Post in UP Police -
Recruitment - Non-disclosure of criminal
cases, including one of moral turpitude -
Effect - Act of deliberate non disclosure or
willful suppression of criminal cases by a
182 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate invites penalties. However, at
times mere non disclosure may not be
grave enough to cause a dismissal from
service - Equally in other cases, the fact of
disclosure in itself may not prevent the
invalidation of the appointment - Held,
nature of criminal cases have a more
decisive say in the matter. (Para 21)
B. Service law - Recruitment - Evaluation
of suitability - Nature - Administrative or
Quasi
judicial
or
Judicial
-
Held,
determination of suitability of a candidate
for appointment is an administrative
decision which is part of the recruitment
process.
The
process
of
evaluating
suitability for appointment is not an
adjudication of guilt or innocence as in a
criminal case. Nor is it a quasi judicial
process or a civil law proceeding. (Para
29)
C.
Service
law
-
Departmental
proceedings - Acquittal in criminal case -
Effect
-
Honourable
acquittal
and
Acquittal simplicitor - Difference - While
Honourable acquittal is an acquittal as if
the prosecution did not happen, acquittal
on benefit of doubt is an acquittal on
account of witnesses turning hostile - An
acquittal in a criminal trial simplicitor will
not lead to an automatic discharge in
departmental proceedings. (Para 38 and
39)
D. Service law - Suitability of candidates -
Evaluation
-
Evidentiary
standard
of
preponderance
of
probabilities
-
Departmental proceeding and Selection
process - Difference - Rights of a
government
employee
facing
departmental
proceedings
are
significantly different from a candidate
who is participating in a selection process.
The
evidentiary
standard
of
preponderance
of
probability
is
not
applicable
to
the
proceedings
which
consider the suitability of a candidate
before making the appointment - Held,
authority while determining the suitability
of a candidate for public employment is
not
required
to
reach
the
level
of
evidentiary standards demanded of the
prosecution in a criminal trial or asked of
a party in a civil trial or required of a
department in a disciplinary enquiry.
(Para 45 and 51)
E. Service law - Recruitment - Selection
process - Suitability of candidate - False
declaration - Deliberate suppression of
criminal case - Effect - Principle of law
laid down in Avtar Singh's case followed -
Multiplicity of cases manifested repetitive
criminal
conduct
and
thus
assumed
significance - Cases involving heinous
nature of offences or offences involving
moral
turpitude
may
dissuade
the
competent authority from approving the
candidate for appointment - Held, the
competent authority cannot be faulted for
finding that the aforesaid antecedents
revealed traits which made the petitioner
unsuitable for appointment. (Para 59, 60,
75 and 76)
Writ Petition dismissed (E-1)
Cases relied on :-

## Text

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4 All. Sanny Kumar Vs. State of U.P. & Ors.
181
which event, there can be a consequential
direction relating to continuity of service).
What requires to be noted in cases where
finding of misconduct is affirmed and only the
punishment is interfered with (as contrasted
from cases where termination is held to be
illegal or void) is that there is no automatic
reinstatement; and if reinstatement is directed,
it is not automatically with retrospective effect
from the date of termination. Therefore, where
reinstatement is a consequence of imposition of
a lesser punishment, neither back wages nor
continuity of service nor consequential
benefits, follow as a natural or necessary
consequence of such reinstatement. In cases
where the misconduct is held to be proved, and
reinstatement is itself a consequential benefit
arising from imposition of a lesser punishment,
award of back wages for the period when the
employee has not worked, may amount to
rewarding the delinquent employee and
punishing the employer for taking action for
the misconduct committed by the employee.
That should be avoided. Similarly, in such
cases, even where continuity of service is
directed, it should only be for purposes of
pensionary/retirement benefits, and not for
other benefits like increments, promotions, etc.

20. But there are two exceptions.
The first is where the court sets aside the
termination as a consequence of employee
being exonerated or being found not guilty
of the misconduct. Second is where the
court reaches a conclusion that the inquiry
was held in respect of a frivolous issue or
petty misconduct, as a camouflage to get
rid of the employee or victimise him, and
the
disproportionately
excessive
punishment is a result of such scheme or
intention. In such cases, the principles
relating to back wages, etc. will be the
same as those applied in the cases of an
illegal termination.(emphasis by Court)

16.

The
decision
in
J.K.
Synthetics Ltd. might have been rendered
in a very different statutory context and
relating to a different jurisdiction, to which
a different jurisprudence applies, but the
fundamental principles about ordering
reinstatement of an employee and his rights
to back-wages and continuity of service are
the
same,
as
those
expressed
in
Fundamental Rule 54 and 54-A.

17. In view of facts that obtain here,
this Court does not find any good ground to
interfere.

18. In the result, this writ petition
fails and stands dismissed.

19. Costs easy.
----------
(2021)04ILR A181
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.03.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 7114 of 2020

Sanny Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhanu Pratap Singh, Sri Rateesh Singh

Counsel for the Respondents:
Sri Vikram Bahadur Yadav, S.C.

A. Service law - Post in UP Police -
Recruitment - Non-disclosure of criminal
cases, including one of moral turpitude -
Effect - Act of deliberate non disclosure or
willful suppression of criminal cases by a
182 INDIAN LAW REPORTS ALLAHABAD SERIES
candidate invites penalties. However, at
times mere non disclosure may not be
grave enough to cause a dismissal from
service - Equally in other cases, the fact of
disclosure in itself may not prevent the
invalidation of the appointment - Held,
nature of criminal cases have a more
decisive say in the matter. (Para 21)
B. Service law - Recruitment - Evaluation
of suitability - Nature - Administrative or
Quasi
judicial
or
Judicial
-
Held,
determination of suitability of a candidate
for appointment is an administrative
decision which is part of the recruitment
process.
The
process
of
evaluating
suitability for appointment is not an
adjudication of guilt or innocence as in a
criminal case. Nor is it a quasi judicial
process or a civil law proceeding. (Para
29)
C.
Service
law
-
Departmental
proceedings - Acquittal in criminal case -
Effect
-
Honourable
acquittal
and
Acquittal simplicitor - Difference - While
Honourable acquittal is an acquittal as if
the prosecution did not happen, acquittal
on benefit of doubt is an acquittal on
account of witnesses turning hostile - An
acquittal in a criminal trial simplicitor will
not lead to an automatic discharge in
departmental proceedings. (Para 38 and
39)
D. Service law - Suitability of candidates -
Evaluation
-
Evidentiary
standard
of
preponderance
of
probabilities
-
Departmental proceeding and Selection
process - Difference - Rights of a
government
employee
facing
departmental
proceedings
are
significantly different from a candidate
who is participating in a selection process.
The
evidentiary
standard
of
preponderance
of
probability
is
not
applicable
to
the
proceedings
which
consider the suitability of a candidate
before making the appointment - Held,
authority while determining the suitability
of a candidate for public employment is
not
required
to
reach
the
level
of
evidentiary standards demanded of the
prosecution in a criminal trial or asked of
a party in a civil trial or required of a
department in a disciplinary enquiry.
(Para 45 and 51)
E. Service law - Recruitment - Selection
process - Suitability of candidate - False
declaration - Deliberate suppression of
criminal case - Effect - Principle of law
laid down in Avtar Singh's case followed -
Multiplicity of cases manifested repetitive
criminal
conduct
and
thus
assumed
significance - Cases involving heinous
nature of offences or offences involving
moral
turpitude
may
dissuade
the
competent authority from approving the
candidate for appointment - Held, the
competent authority cannot be faulted for
finding that the aforesaid antecedents
revealed traits which made the petitioner
unsuitable for appointment. (Para 59, 60,
75 and 76)
Writ Petition dismissed (E-1)
Cases relied on :-
1. Avtar Singh Vs U.O.I. & ors.; (2016) 8 SCC
471
2. Commissioner of Police, New Delhi & ors. Vs
Mehar Singh; (2013) 7 SCC 685
3. B. Ramakrishna Yadav & ors. Vs The
Superintendent of Police & ors.; AIR 2016 AP
147
4. R.P. Kapur Vs U.O.I. ; AIR 1964 SC 787
5. Management of R.B.I. Vs Bhopal Singh
Panchal; (1994) 1 SCC 541
6. Commissioner of Police, New Delhi Vs Mehar
Singh; (2013) 7 SCC 685
7.
Inspector
General
of
Police
Vs
S.
Samuthiram; (2013) 1 SCC 598
8. RBI Vs Bhopal Singh Panchal; (1994) 1 SCC
541
9. St. of M.P. Vs Bunty; (2019) SCC OnLine SC
430
10. Shankarshan Das Vs U.O.I.; (1991) 3 SCC
47
11. St. of Bihar Vs The Secretariat Assistant
Successful Examinees Union; (1994) 1 SCC 126
4 All. Sanny Kumar Vs. State of U.P. & Ors.
183
12. Mohammed Imran Vs St. of Mah.; (2019) 17
SCC 696
13. Commissioner of Police & ors. Vs Sandeep
Kumar; (2011) 4 SCC 644

(Delivered by Hon'ble Ajay Bhanot, J.)

 1. The petitioner has assailed the
order
dated
15.06.2020
passed
by
respondent no. 3- Superintendent of Police,
Jalaun,
cancelling
his
selection
as
Constable in the U.P. Police.

2. The judgment is being structured in
the following conceptual framework to
facilitate the discussion:

I
.
Introduction

I
I
.
Submissions of learned counsels
I
I
I
.
Facts

I
V
.
Legal perspectives

IV.i. Examination of suitability of
Candidates for appointment

A
Material for formation

B
Nature of proceedings

C
Standard of evidence &

D
Procedure for enquiry

IV.ii
Line of Enquiry by the authorities

A.
Consideration of criminal cases

B
Mitigating factors
IV.iii
Decision of the authority
V
.
Analysis of facts and conclusions

I. Introduction:

3. The recruitment process for various
posts in the U.P. Police was initiated by
notification
dated
14.01.2018.
The
petitioner applied in response to the said
notification. The petitioner was selected for
appointment to the post of Constable in the
UP Police.

4. The declaration made by the
petitioner in the affidavit of verification
on 22.04.2019 during the recruitment
process disclosed following criminal
cases:

"(1) NCR 131/2015 धारा
323, 504, 506 IPC, थाना हाथरस िेट में
िोषमुक्त है

(2) FIR No. 0030/ 2018 मदहला
थाना हाथरस धारा 498, 323, 504, 506 IPC
तथा

िहेि अदधदनयम 3, 4 में िोषमुक्त
184 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) FIR No. 0760/2018 धारा
354(घ ) 120-B, 504, 506, 11, 22 67(a)
I.P.C. में दिचाराधीन दििेचनाधीन"

5.

The
petitioner
was
denied
appointment as Constable. Being aggrieved
the petitioner approached this Court by
instituting a writ petition, registered as Writ
A No. 3547 of 2020, Sanny Kumar Vs.
State of U.P. and Others. The operative
portion of the judgment in Sanny Kumar
(supra) dated 04.03.2020 is extracted
hereinunder:

"In view of the above, as no
useful purpose would be served in keeping
the matter pending, with the consent of
parties the matter is being decided at this
stage. It is directed that in case petitioner
approaches the respondent no. 3 through a
comprehensive representation along with
certified copy of this order within fifteen
days from today, the respondent no. 3 shall
consider
and
decide
the
same,
in
accordance with law, keeping in mind the
guidelines issued by Apex Court in case of
Avtar Singh (Supra), and taking into
account the result of the criminal cases
lodged against the petitioner, preferably
within a period of two months from the
date of receipt of representation of
petitioner."

6. Pursuant to the said order passed by
this Court, the impugned order dated
15.06.2020 was passed.

II.
Submissions
of
learned
counsels:

7. Shri Bhanu Pratap Singh, learned
counsel assisted by Shri Rateesh Singh,
learned counsel for the petitioner contends
that the petitioner had truthfully declared
details of all the criminal cases pending
against him in the affidavit of verification.
The petitioner has not been chargesheeted
in two cases. One of the cases is an
offshoot of a matrimonial dispute of his
brother.
The
impugned
order
has
overlooked the acquittal of the petitioner by
the court in one criminal case. The
authority has not adopted any standard of
evidence while considering the material
against the petitioner. In absence of
conviction by a court, appointment cannot
be refused.

8. Per contra, Shri Vikram Bahadur
Yadav, learned Standing Counsel for the
State of U.P. submits that the petitioner was
named in multiple criminal cases. The
petitioner was not acquitted honourably by
the trial court in the first case. The
petitioner
was
named
in
the
first
information reports lodged in the other
cases including one for an act of moral
turpitude. The fact that the Investigation
Officer did not chargesheet the petitioner
does
not
exonerate
the
petitioner,
particularly, when trials are on foot.

9. The competent authority gave full
consideration to all material facts in the
right
perspective.
Persons
with
such
criminal profiles are not fit for appointment
in the police force.

10. Heard learned counsel for the
parties.

III. Facts of the case and the
impugned order:

11. The undisputed facts necessary for
adjudication of this controversy can be
prised out from the impugned order. The
declaration
made
by
the
petitioner
disclosing the criminal prosecutions faced
by him was part of the recruitment process.
4 All. Sanny Kumar Vs. State of U.P. & Ors.
185
Before approving the appointment the
Superintendent of Police, Hathras, by
communication dated 25.05.2019, sought
an opinion of the District Magistrate,
Hathras, in the matter.

12. According to the impugned order
dated 15.06.2020, the District Magistrate,
Hathras,
constituted
a
committee
to
consider the suitability of the petitioner for
appointment. The petitioner was given an
opportunity to tender his defence before the
committee.

13. The impugned order considers the
defence of the petitioner before the
committee. The petitioner asserted that he
was acquitted in the first case. His
nomination in the criminal case registered
by his sister-in-law was false. The motherin-law of his brother also set up her
younger daughter to falsely implicate the
petitioner in another case. The findings of
the committee are then set out at length in
the impugned order.

14. The criminal case registered as
NCR No. 131 of 2015 under Sections 323,
504, 506 I.P.C. Police Station Hathras
Gate, District Hathras was tried as Criminal
Case No. 1924 of 2015, (State Vs.
Raghuvir Singh and Others). The impugned
order records that the committee found that
the acquittal of the petitioner in the said
case by the learned trial court was not
honourable. The petitioner was acquitted
by the learned trial court, solely on account
of the prosecution witnesses turning
hostile.

15. The committee referencing the
Case Crime No. 760 of 2018, under
Sections 354kha, 120-B, 504, 506 I.P.C.
and Sections 11 and 22 of POCSO Act,
2012 read with Section 67A of IT Act,
found that the petitioner had been accused
of
sending
obscene
messages,
and
outraging the modesty of a minor girl child.
These offences are grave and come within
the ambit of moral turpitude. The case has
gone to trial. The defence of the petitioner
was untenable.

16. The third case was registered by
the wife of the petitioner's brother, as Case
Crime No. 30 of 2018, under Sections 498A, 323, 504, 506, 307 and 313 I.P.C. and
3/4 of Dowry Prohibition Act, at Police
Station Mahila Thana, District Hathras.

17. The District Magistrate, based on
the committee report found against the
suitability of the petitioner for appointment
in the U.P. Police.

18. The Superintendent of Police,
Hathras, agreed with the findings of the
committee and recommendation of the
District
Magistrate,
Hathras.
The
competent authority also recorded his
conclusions independently. The acquittal of
the petitioner was not honourable. The
petitioner was involved in several serious
criminal cases, including one of moral
turpitude. The latter cases are pending
before the trial court. The petitioner was
not suitable for appointment in the police
force. Accordingly, the candidature of the
petitioner for appointment as a Constable in
the U.P. Police was cancelled by the
impugned order dated 15.06.2020.

19. The process of recruitment to
public office envisages affirmation of an
affidavit, or filling up an attestation form,
or a declaration to be made by a candidate
disclosing details of past and pending
criminal prosecutions against him.
186 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Cases broadly fall in two
categories, namely, where the candidate
has disclosed criminal cases, and when
the candidate has concealed information
pertaining to criminal prosecution.

21. The act of deliberate non
disclosure or willful suppression of
criminal cases by a candidate invites
penalties. However, at times mere non
disclosure may not be grave enough to
cause a dismissal from service. Equally
in other cases, the fact of disclosure in
itself may not prevent the invalidation
of the appointment. Nature of criminal
cases have a more decisive say in the
matter.

22.

As
noticed
earlier
the
petitioner had disclosed all the criminal
cases against him in the declaration
submitted during the recruitment.

IV. Legal perspective:

IV.i.
Examination
of
suitability
of
candidates
for
appointment
:
Role
of
Criminal
Antecedents:

23.
The
impact
of
criminal
antecedents on the appointment of a
selected candidate was crystallized in
Avtar Singh v. Union of India and
Others1. However, the submissions
made at the bar expand the scope of the
controversy and require consideration
of the contours and nature of an enquiry
by the competent authority into the
criminal antecedents of the candidate
and its bearing on appointment.

24. The purpose and subject matter
of the proceeding, the rights engaged,
material
for
consideration,
and
consequences of the decision, decide
the nature of the enquiry and procedure
to be adopted.

25. The purpose of the enquiry is to
determine suitability of a candidate to hold
office. The police is a disciplined force
which is charged with the duty to uphold
the law and order in the State. Personnel in
uniform belonging to disciplined forces, are
expected to bear impeccable character and
possess
unimpeachable
integrity.
Adherence to these standards is essential
to enable them to discharge their duties
effectively, and retain the confidence of the
public at large.

26. The narrative will be fortified by
reference to judicial authorities in point.
The need for appointing persons of
untarnished character in the police force
was underscored in Commissioner of
Police, New Delhi and others Vs. Mehar
Singh2

"The police force is a disciplined
force. It shoulders the great responsibility
of maintaining law and order and public
order in the society. People repose great
faith and confidence in it. It must be worthy
of that confidence. A candidate wishing to
join the police force must be a person of
utmost rectitude. He must have impeccable
character and integrity. A person having
criminal antecedents will not fit in this
category. Even if he is acquitted or
discharged in the criminal case, that
acquittal or discharge order will have to be
examined to see whether he has been
completely exonerated in the case because
even a possibility of his taking to the life of
crimes poses a threat to the discipline of the
police force. The Standing Order, therefore,
has entrusted the task of taking decisions in
these matters to the Screening Committee.
4 All. Sanny Kumar Vs. State of U.P. & Ors.
187
The decision of the Screening Committee
must be taken as final unless it is mala fide.
In recent times, the image of the police
force is tarnished. Instances of police
personnel behaving in a wayward manner
by misusing power are in public domain
and are a matter of concern. The reputation
of the police force has taken a beating. In
such a situation, we would not like to dilute
the
importance
and
efficacy
of
a
mechanism like the Screening Committee
created by the Delhi Police to ensure that
persons who are likely to erode its
credibility do not enter the police force. At
the same time, the Screening Committee
must be alive to the importance of trust
reposed in it and must treat all candidates
with even hand."

27. In B. Ramakrishna Yadav and
others Vs. The Superintendent of Police
and others,3 the Full Bench of Hon'ble
High Court of Andhra Pradesh held:

"Verification of character and
antecedents is one of the important
features in service jurisprudence so as to
find out whether a selected candidate is
suitable to the post. Having regard to the
antecedents of a candidate, if appointing
authority finds that it is not desirable to
appoint such person, in particular to a
discipline force, it can deny employment
or
even
terminate
such
person,
if
appointed, within the shortest possible
time from the date of verification of
character and antecedents. This has to be
scrupulously
followed
in
case
of
recruitment in police force, it being a
disciplined force. As observed by the
Supreme Court in Mehar Singh (supra),
people repose great faith and confidence
in the police force, and therefore, the
selected candidate must be of confidence,
impeccable character and integrity. A
person having criminal antecedents is,
undoubtedly, not fit in this category,
more particularly when he has suppressed
the information about his involvement in
criminal case(s) irrespective of the fact
whether the case was pending or he was
acquitted."

28. Criminal antecedents are thus
accepted in law as reliable guides for an
employer to assess character traits and
evaluate the suitability of a candidate for
appointment.

IV.i.-B.
Nature
of
the
proceeding/Scope
of
Enquiry
into
suitability for appointment:

29. Determination of suitability of a
candidate
for
appointment
is
an
administrative decision which is part of the
recruitment
process.
The
process
of
evaluating suitability for appointment is not
an adjudication of guilt or innocence as in a
criminal case. Nor is it a quasi judicial
process or a civil law proceeding.

IV.i-A.
Material
for
consideration by the authority.

30. In public employment diverse
material for formation of opinion in regard
to the suitability of a candidate is acquired
from different sources.

31. The diversity of material available
with the authority to form its opinion is
inherent in the process of determining the
suitability of the candidate. The material
before the authority may be reliable and
conclusive or credible but probative. Both
kinds of material are liable to be
considered. Material of probative value but
188 INDIAN LAW REPORTS ALLAHABAD SERIES
credible worth is not to be discarded, and
there is no impediment in its consideration.

32. One such source is the record of
criminal proceedings against the candidate.
The full inventory of material before the
authority includes the F.I.R., the evidence
collected during the criminal investigation,
chargesheet submitted in court, evidence
emerging during the trial, the judgment
rendered by a court of law. On the foot of
such material, the competent authority can
make its decision on the fitness of the
candidate for appointment.

IV.i.-C. Method of Evaluation
of Material/ applicability of Standards of
evidence:

33. The competent authority is not
always bound by the findings of the
court, nor is it invariably constrained by
the opinion of the investigation officer.
The reasons are not far to seek.

34. The purposes of a criminal
investigation,
criminal
trial,
civil
proceeding, departmental enquiry, are
distinct from the rationale behind the
exercise of verification of criminal
antecedents
of
a
candidate
for
appointment in a recruitment process.
The nature of rights engaged in the
respective proceedings are also different.
The lattermost proceeding is an executive
function, while former proceedings are
judicial and quasi judicial in nature
respectively.

35. Criminal prosecution of an
individual before the court of law is to
bring an offender of criminal laws to
justice, and to punish the guilty. The
object of the competent authority in a
recruitment process is only to determine
the suitability of a candidate to hold a
public post.

36. Secondly, strict
rules of
evidence apply to criminal prosecution.
The prosecution can succeed only when it
attains the standard of evidence which
proves the guilt of the accused beyond
reasonable
doubt.
The
competent
authority
on
the
contrary
is
not
constrained by any such standard of
evidence.

37. Acquittal by the criminal court
happens when evidence is not sufficient
to sustain a conviction. Failure to prove
an offence before a court of law in a
criminal
trial
may
not
reduce
the
probative value of said evidence before
the competent authority in a recruitment
process. Such evidence when placed
before the competent authority may
constitute credible material of probative
value to render a candidate unsuitable for
appointment. The scope of discretion of
the competent authority will also depend
on the nature of findings of the court on
the same evidence.

38. Weight is given by judicial
authorities to the nature of acquittal over
the mere fact of acquittal. Cases in point
accordingly
classify
acquittals
in
different categories-honourable acquittal,
acquittal as if the prosecution did not
happen, acquittal on benefit of doubt,
acquittal on account of witnesses turning
hostile.

39 . An acquittal in a criminal trial
simplicitor will not lead to an automatic
discharge in departmental proceedings.
This proposition was enunciated in R.P.
Kapur vs. Union of India (UOI)4 in the
following terms:
4 All. Sanny Kumar Vs. State of U.P. & Ors.
189

"9... Take again the case where
suspension
is
pending
criminal
proceedings.
The
usual
ground
for
suspension pending a criminal proceeding
is that the charge is connected with his
position as a government servant or is
likely to embarrass him in the discharge of
his duties or involves moral turpitude. In
such a case a public servant may be
suspended pending investigation, enquiry
or trial relating to a criminal charge. Such
suspension also in our opinion is clearly
related to disciplinary matters. If the trial
of
the
criminal
charge
results
in
conviction, disciplinary proceedings are
bound to follow against the public servant
so convicted, even in case of acquittal
proceedings
may
follow
where
the
acquittal is other than honourable. The
usual practice is that where a public servant
is being tried on a criminal charge, the
Government
postpones
holding
departmental enquiry and awaits the result
of the criminal trial and departmental
proceedings follow on the result of the
criminal trial. Therefore, suspension during
investigation, enquiry or trial relating to a
criminal charge is also in our opinion
intimately related to disciplinary matters.
We cannot therefore accept the argument
on behalf of the respondent that suspension
pending a departmental enquiry or pending
investigation, enquiry or trial relating to a
criminal charge is not a disciplinary matter
within the meaning of those words in
Article 314.....

 (emphasis supplied)

40.

The
distinction
between
honourable acquittal and acquittal based on
benefit of doubt was considered in relation
to the right to reinstatement in service and
other service benefits in Management of
Reserve Bank of India Vs. Bhopal Singh
Panchal5, by laying down the law as
under:

"13.....When
the
High Court
acquitted the respondent-employee by its
order of November 21, 1977 giving the
benefit of doubt, the Bank rightly refused
to reinstate him in service on the ground
that it was not an honourable acquittal as
required by Regulation 46(4).

15.... It is only if such employee
is acquitted of all blame and is treated by
the competent authority as being on duty
during the period of suspension that such
employee is entitled to full pay and
allowances for the said period."

41. Commissioner of Police, New
Delhi Vs. Mehar Singh6 attempted to
define
the
expression
"honourable
acquittal" after acknowledging that the term
often eludes precise definition. Mehar
Singh (supra) after placing reliance on the
law laid down in Inspector General of
Police Vs. S.
Samuthiram7,
and
RBI vs. Bhopal Singh Panchal8 held as
under:

"25. The expression "honourable
acquittal" was considered by this Court
in S. Samuthiram [Inspector General of
Police v. S. Samuthiram, (2013) 1 SCC
598 : (2013) 1 SCC (Cri) 566 : (2013) 1
SCC (L&S) 229] . 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
190 INDIAN LAW REPORTS ALLAHABAD SERIES
turned hostile. Referring to the judgment of
this
Court
in RBI v. Bhopal
Singh
Panchal [(1994) 1 SCC 541 : 1994 SCC
(L&S) 594 : (1994) 26 ATC 619] , 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."

42. More recently in line with the said
authorities, in State of M.P. Vs. Bunty9 it
was held:

"13. The law laid down in the
aforesaid decisions makes it clear that in
case of acquittal in a criminal case is based
on the benefit of the doubt or any other
technical reason. The employer can take
into consideration all relevant facts to take
an appropriate decision as to the fitness of
an incumbent for appointment/continuance
in service. The decision taken by the
Screening Committee in the instant case
could not have been faulted by the Division
Bench."

43. The value of a chargesheet
submitted by an Investigation Officer in a
court, for the authority considering the
suitability of candidate for appointment
would now merit consideration.

44. The chargesheet submitted
before the court is the result of criminal
investigation by the Investigation Officer.
During investigation of a criminal case
the Investigation Officer has to be
responsive to the standard of evidence
required in a criminal trial. For the
competent
authority
nomination
or
omission
to name
a
person
in
a
chargesheet, is at best an opinion of the
Investigation Officer. Absent nomination
as an accused in a chargesheet, or even a
clean chit by an Investigation Officer,
ipso facto does not create an entitlement
for appointment. The opinion of the
Investigation Officer will deserve respect,
but it does not foreclose the discretion of
the authority. The competent authority
may for good reason based on material in
the record form a different opinion in the
matter of fitness for appointment.

45.

In
civil
proceedings
and
departmental enquiries, the standard of
evidence employed to prove a fact is
preponderance of probabilities. The rights
of
a
government
employee
facing
departmental proceedings are significantly
different
from
a
candidate
who
is
participating in a selection process. The
evidentiary standard of preponderance of
probability is not applicable to the
proceedings which consider the suitability
of
a
candidate
before
making
the
appointment.

46. The duty of an employer to
evaluate the suitability of a candidate for
appointment is paired with the right of the
candidate for a fair consideration of his
credentials.
4 All. Sanny Kumar Vs. State of U.P. & Ors.
191

47. Rights of selected candidates have
been settled by good authority.

48. In Shankarshan Das Vs. Union
of India10, the rights of candidates in a
recruitment process were posited for
determination. Selected candidates do not
acquire
an
indefeasible
right
to
be
appointed was the principle holding in
Shankarshan Das (supra), which is set out
hereunder:

"7. It is not correct to say that if a
number of vacancies are notified for
appointment and adequate number of
candidates are found fit, the successful
candidates acquire an indefeasible right to
be appointed which cannot be legitimately
denied. Ordinarily the notification merely
amounts to an invitation to qualified
candidates to apply for recruitment and on
their selection they do not acquire any right
to the post. Unless the relevant recruitment
rules so indicate, the State is under no legal
duty to fill up all or any of the vacancies.
However, it does not mean that the State
has the licence of acting in an arbitrary
manner. The decision not to fill up the
vacancies has to be taken bona fide for
appropriate reasons. And if the vacancies or
any of them are filled up, the State is bound
to respect the comparative merit of the
candidates, as reflected at the recruitment
test,
and
no
discrimination
can
be
permitted. This correct position has been
consistently followed by this Court, and we
do not find any discordant note in the
decisions in State of Haryana v. Subash
Chander Marwaha [(1974) 3 SCC 220 :
1973 SCC (L&S) 488 : (1974) 1 SCR 165] ,
Neelima Shangla v. State of Haryana
[(1986) 4 SCC 268 : 1986 SCC (L&S) 759]
, or Jatinder Kumar v. State of Punjab
[(1985) 1 SCC 122 : 1985 SCC (L&S)
174 : (1985) 1 SCR 899]."

49. State of Bihar Vs. The
Secretariat
Assistant
Successful
Examinees Union11 reinforces the said
proposition of law.

50. Reception of evidence is
invariably required when the fact finder
is required to achieve the two standards
of evidence discussed above. Insistence
on the said standards of evidence would
demand introduction of evidence in
decisions
made
in
the
recruitment
process. This is fraught with serious
consequences. The recruitment process
would
be
quagmired
in
legal
adjudications and disputes. The nature of
rights of selected candidates does not
permit
adoption
of
the
aforesaid
standards of evidence.

51. To sum up, the authority while
determining the suitability of a candidate
for public employment is not required to
reach the level of evidentiary standards
demanded of the prosecution in a criminal
trial or asked of a party in a civil trial or
required of a department in a disciplinary
enquiry.

IV.i.-D. Procedure for enquiry:

52. The conclusion of the competent
authority is an estimation at best. The
decision made by inferences drawn from
the material in the records, by its very
nature
can
never
be
proved
by
mathematical
accuracy.
However,
to
obviate possibilities of miscarriage of
justice, judicial safeguards have to be built
into the decision making process.
192 INDIAN LAW REPORTS ALLAHABAD SERIES

53. The law has set its face against an
arbitrary denial of appointment to selected
candidates. In Mohammed Imran Vs. State
of Maharashtra12, it was held:

"5. Employment opportunities are
a scarce commodity in our country. Every
advertisement invites a large number of
aspirants for limited number of vacancies.
But that may not suffice to invoke
sympathy for grant of relief where the
credentials of the candidate may raise
serious questions regarding suitability,
irrespective of eligibility. Undoubtedly,
judicial service is very different from other
services and the yardstick of suitability that
may apply to other services, may not be the
same for a judicial service. But there
cannot be any mechanical or rhetorical
incantation of moral turpitude, to deny
appointment in judicial service simplicitor.
Much will depend on the facts of a case.
Every individual deserves an opportunity to
improve, learn from the past and move
ahead in life by self-improvement. To make
past
conduct,
irrespective
of
all
considerations, an albatross around the
neck of the candidate, may not always
constitute justice. Much will, however
depend on the fact situation of a case.

9....If empanelment creates no
right to appointment, equally there can be
no arbitrary denial of appointment after
empanelment."

54. Emphasizing the need to exercise
powers reasonably and objectivity in such
matters, the Supreme Court in Avtar Singh
(supra) held thus:

"35...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
objectivity having due regard to facts of
cases."

55. The procedural safeguards in an
administrative decision making process
which has penal consequences shall apply
to these proceedings.

56. The authority has to adopt a
procedure
which
is
consistent
with
principles of natural justice.

57. Adverse material has to be
provided to the candidate. The candidate
can tender his defence to refute the
aforesaid material and point out mitigating
circumstances
in
his
favour
in
the
proceeding. When need arises fair and an
impartial opportunity of hearing may be
given to such candidate.

IV.ii. Line of Enquiry by the
authorities

58. With the nature of material,
evidentiary requirements, and procedural
details in place, the line of enquiry to be
followed by the authority shall now receive
consideration.

59.

Consequences
of
a
false
declaration
made
in
the
course
of
verification at the time of his recruitment
and invalidating effect of criminal cases on
the
prospects
for
appointment,
were
broadly settled in Avtar Singh (supra), in
the following terms:

"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:
4 All. Sanny Kumar Vs. State of U.P. & Ors.
193

(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.

(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.

(3) The employer shall take into
consideration
the
Government
orders/instructions/rules, applicable to the
employee, at the time of taking the
decision.

(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: -

(a) 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.

(b) Where conviction has been
recorded in case which is not trivial in
nature, employer may cancel candidature or
terminate services of the employee.

(c) 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.

(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.

(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) In a case of deliberate
suppression of fact with respect to multiple
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.

(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.

(9) In case the employee is
confirmed in service, holding Departmental
enquiry would be necessary before passing
194 INDIAN LAW REPORTS ALLAHABAD SERIES
order of termination/removal or dismissal
on the ground of suppression or submitting
false information in verification form.

(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.