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

- **Citation:** (2025) 5 ILRA 505
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-30
- **Case number:** Writ A No. 14182 of 2024
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-yadav-v-state-of-u-p-ors-53395
- **Pages:** 14

## Headnote

Service Law - Recruitment - Character
Verification - Criminal Case - FIR registered
after application - Disclosure by candidate -
Subsequent
quashing
on
compromise
-
Collector's opinion mechanical - Duty to
carefully evaluate antecedents - Scope of G.O.
dated 28.04.1958 - Suitability not to be rejected
mechanically on basis of mere FIR/charge-sheet
- Non-availability of vacancy not bar - Relief by
appointment against supernumerary post.

Held: Where the petitioner had applied for
police recruitment prior to registration of an FIR
against him, and thereafter made full and bona
fide disclosure of the pending case at the stage
of verification, rejection of candidature on sole
basis of such FIR/charge-sheet, without holistic
consideration of antecedents as mandated
under Government Order dated 28.04.1958, is
arbitrary and unsustainable. A mechanical
adverse opinion by Collector cannot form basis
to deny appointment. Quashing of proceedings
on compromise not by itself a disqualification.
Non-availability of post due to passage of time
or intervening recruitments cannot defeat
accrued right; appointment may be made even
against supernumerary post. Writ petition
allowed; rejection order quashed; mandamus
issued for reconsideration and appointment.

Writ petition allowed.

Case Law Discussed:

## Text

_Characters 0–39,911 of 48,126. This is a partial read: ask again with offset=39911 for what follows._

5 All. Vivek Yadav Vs. State of U.P. & Ors.
505

(iii) In case of migration from
reserved to open category, the vacancy in the
reserved category should be filled by another
person from the same specified category,
lower in rank,

(iv) If the vacancies cannot be filled
by the specified categories due to shortfall of
candidates, the vacancies are to be 'carried
forward' or dealt with appropriately by rules.

60. Horizontal reservations on the
other hand, by their nature, are not inviolate
pools or carved in stone. They are premised on
their
overlaps
and
are
'interlocking'
reservations 21. As a sequel, they are to be
calculated concurrently and along with the
inviolate 'vertical' (or "social") reservation
quotas, by application of the various steps laid
out with clarity in paragraph 11 of Justice
Lalit's judgement. They cannot be carried
forward. The first rule that applies to filling
horizontal reservation quotas is one of
adjustment, i.e. examining whether on merit
any of the horizontal categories are adjusted in
the merit list in the open category, and then, in
the quota for such horizontal category within
the particular specified/ social reservation.

61. The open category is not a
'quota', but rather available to all women and
men alike. Similarly, as held in Rajesh Kumar
Daria22, there is no quota for men. If we are to
accept the second view [as held by the
Allahabad High Court in Ajay Kumar v. State
of UP23 and the Madhya Pradesh High Court
in State of Madhya Pradesh & Anr. v. Uday
Sisode & Ors24, referred to in paragraph 20 of
Justice Lalit's judgement], the result would be
confining the number of women candidates,
irrespective of their performance, in their
social reservation categories and therefore,
destructive of logic and merit. The second
view, therefore - perhaps unconsciously
supports- but definitely results in confining the
number of women in the select list to the
overall numerical quota assured by the rule."

10. As referred above, State has not
followed dictum of Supreme Court and
wrongly clubbed reservation for women in
Open
Category
and
EWS.
Therefore,
following directions are issued :-

 (i) The concerned respondent will
prepare a separate merit list for EWS
candidates (women) providing 20% horizontal
reservation.

(ii) Thereafter, prepare a list of
likely to be disturbed selected candidates.

(iii)Thereafter, vacant seats, if any,
be identified and accommodate women
candidates (EWS) from above prepared list
according to merit, already not part of 903
selected women, however, none of already
selected candidates will be displaced.

(iv)
In
upcoming
selection
processes, State will follow correct and legal
method to apply all reservations including
horizontal reservation.

(v) The second set of petitioners are
4 in numbers and since number of vacant seats
are not on record, therefore, no relief could be
granted to them.

11. All writ petitions are disposed of.
----------
(2025) 5 ILRA 505
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 14182 of 2024

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

Counsel for the Petitioner:
Vinay Kumar Singh
506 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

Service Law - Recruitment - Character
Verification - Criminal Case - FIR registered
after application - Disclosure by candidate -
Subsequent
quashing
on
compromise
-
Collector's opinion mechanical - Duty to
carefully evaluate antecedents - Scope of G.O.
dated 28.04.1958 - Suitability not to be rejected
mechanically on basis of mere FIR/charge-sheet
- Non-availability of vacancy not bar - Relief by
appointment against supernumerary post.

Held: Where the petitioner had applied for
police recruitment prior to registration of an FIR
against him, and thereafter made full and bona
fide disclosure of the pending case at the stage
of verification, rejection of candidature on sole
basis of such FIR/charge-sheet, without holistic
consideration of antecedents as mandated
under Government Order dated 28.04.1958, is
arbitrary and unsustainable. A mechanical
adverse opinion by Collector cannot form basis
to deny appointment. Quashing of proceedings
on compromise not by itself a disqualification.
Non-availability of post due to passage of time
or intervening recruitments cannot defeat
accrued right; appointment may be made even
against supernumerary post. Writ petition
allowed; rejection order quashed; mandamus
issued for reconsideration and appointment.

Writ petition allowed.

Case Law Discussed:

1. Ram Kumar Vs St. of U.P. (2011) 14 SCC 709

2. Avtar Singh Vs U.O.I.(2016) 8 SCC 471

3.
Janhvi
Vs
St.
of
U.P.
&
ors.,
2024:AHC:190814-DB

4. Smita Shrivastava Vs St. of U.P. (cited in
Janhvi)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order of the Deputy Commissioner of
Police,
Headquarters,
Varanasi
dated
20.07.2024, rejecting the petitioner's claim
for appointment as a Police Constable
notwithstanding his selection in the Police
Constable and Constable PAC (Male)
Direct Recruitment, 2015 on ground of
unsuitability based on his involvement in a
criminal case.

2. An Advertisement, bearing No.
PRB-1 (82)/2015 was issued on 29.12.2015
by the Uttar Pradesh Police Recruitment
and
Promotion
Board,
Lucknow,
advertising posts of Police Constables,
called the Police Constable and Constable
PAC (Male) Direct Recruitment, 2015 (for
short, 'the advertisement'). The petitioner,
being eligible, applied for consideration of
his candidature vide application dated
30.01.2026. He was allotted Roll No.
00126183. He sat in the selection test and
declared successful, securing 410.73 marks.
After the petitioner had already applied,
there was an unfortunate incident, where
some family members of his were brutally
assaulted
on
07.05.2016
at
Village
Ismaliyan, Police Station Cholapur, District
Varanasi at about 9.45 a.m. The matter was
promptly reported to the Police, but the
First Information Report (FIR) came to be
registered at 11.00 p.m. on the same day
i.e. 07.05.2016 against eight men, to wit,
Vishnu son of Ram Pravesh Singh, Anoop
Singh son of Ram Asarey Singh, Pyarey
Lal Yadav, Surendra Yadav, Suresh Yadav,
all sons of Sirahu Yadav, Ram Pravesh
Singh son of Markandey Singh, Tunnu
Singh son of Nagendra Pratap Singh and
Toofani son of Chhakauri Yadav. The
aforesaid FIR was registered as Case Crime
No. 185 of 2016, under Sections 147, 148,
149, 307, 308, 323, 506 IPC and Section 7
Criminal Law Amendment Act, P.S.
Cholapur, District Varanasi. The informant
in the FIR was Panchu Yadav son of late
5 All. Vivek Yadav Vs. State of U.P. & Ors.
507
Naggu Yadav, a cousin of the petitioner's
grandfather. The incident reported through
the FIR was one of assault by the accused,
all armed with deadly weapons, including
fire arms.

3. Once the FIR lodged by the
petitioner's family was registered on
07.05.2016, relating to the incident of the
day, on the following day, a man from the
members of the accused's family, to wit,
Ram Dular Yadav son of Sirahu Yadav,
that is to say, a brother of the accused,
Pyarey Lal Yadav, Surendra Yadav and
Suresh Yadav, lodged an FIR relating to
the
same
incident
dated
07.05.2016,
mentioning the time of occurrence as 9.30
a.m. He alleged assault by the nominated
accused and the unknown men, naming the
petitioner as well amongst the assailants
and describing him as Vinod Yadav, an
alias for the petitioner, Vivek Yadav. The
FIR, last mentioned, was lodged on
08.05.2016 at 9.30 p.m., nearly a day after
registration of the FIR lodged by the
petitioner's family. This FIR was registered
as Crime No. 186 of 2016, under Sections
147, 148, 149, 452, 323, 427, 307, 324,
308, 336, 504, 506 IPC and Section 7
Criminal Law Amendment Act, P.S.
Cholapur, District Varanasi. The petitioner
says that the FIR lodged against his family
was a measure of counter-blast, ultimately
having for its object an avenue to coerce
the petitioner's grandfather's brother into
comprising the criminal case brought by
him vide Crime No. 185 of 2016.

4. The Police investigated both the
cases and submitted a charge-sheet in both
the crimes. The petitioner is an accused in
Case Crime No.186 of 2016. In that case,
after investigation the Police submitted a
challan under Sections 147, 148, 149, 323,
427, 504, 506 IPC and Section 7 Criminal
Law Amendment Act, but not under
Sections 307, 324, 308 and 336 IPC.
Parties entered into a compromise during
the course of investigation, but that did not
lead the police to exonerate either of them
of the offences charged.

5. Therefore, the accused of Case
Crime No.185 of 2016, against home a
charge-sheet was filed for the offences
punishable under Sections 147, 148, 149,
323, 506 IPC and Section 7 Criminal Law
Amendment Act, challenged it by means of
Application u/s 482 No. 39570 of 2016
before this Court. Likewise, the petitioner
and his family, who were charge-sheeted,
questioned it by means of Application u/s
482 No. 39567 of 2016. Upon the hearing
of these applications, it was pointed out by
learned Counsel for parties that the
prosecution was instituted mala fide in the
petitioner's case, whereas in the application
u/s 482 brought by the other side, the
factum of compromise was brought to the
Court's notice. In both cases, this Court
apparently
intending
to
send
the
compromise
for
verification
to
the
Magistrate, by clerical error, passed an
order refusing to quash the charge-sheet
and asked the applicants in both matters to
surrender before the Magistrate within 30
days and apply for bail. Protection from
coercive action was granted for a period of
30 days. This part of the direction and
orders in the case were the result of a
clerical
error.
Therefore,
correction
applications were filed in both the matters,
which were allowed vide orders dated
07.07.2017, recalling the orders dated
20.06.2016 in both matters and substituting
it with the corrected order, directing the
compromise
to
be
verified
by
the
Magistrate within a period of six weeks.
The compromise having been verified,
when Application u/s 482 No. 39567 of
508 INDIAN LAW REPORTS ALLAHABAD SERIES
2016, and of course the connected matter,
came up before this Court, the proceedings
against the petitioner were quashed vide
judgment and order dated 20.09.2021 in
terms of the following orders:

"Considering
the
facts
and
circumstances of case, submissions made
by counsel for parties and the material on
record, this Court is of considered opinion
that dispute between parties is a purely
private dispute and not a crime against
society. Moreover, parties have already
compromised their dispute. Consequently,
no useful purpose shall be served by
prolonging the proceedings of above
mentioned case. In view of compromise
entered into by the parties, chances of
conviction
of
accused-applicants
are
remote and bleak. As such continuation of
proceedings would itself cause injustice to
parties. The trial would only entail loss of
judicial time in a futile pursuit particularly
when torrents of litigation drown the courts
with an unimaginable flood of dockets.

In
view
of
above,
present
application succeeds and is liable to be
allowed. Entire proceedings of Criminal
Case No.5670 of 2016, (State Vs. Kamlesh
Yadav and Others), under Sections- 147,
148, 149, 323, 427, 504, 506 I.P.C. and
Section 7 Criminal Law Amendment Act,
Police Station- Cholapur, District- Varanasi
arising out of Case Crime No. 0186 of
2016, under Sections- 147, 148, 149, 452,
323, 427, 307, 324, 308, 336, 504, 506
I.P.C. and Section 7 Criminal Law
Amendment Act, Police Station- Cholapur,
District- Varanasi pending in the court of
Additional Chief Judicial Magistrate-I,
Varanasi, are hereby quashed."

6. This is not a case where the
petitioner suppressed from the respondents
the pendency of the criminal case against
him. He disclosed it at the time when the
FIR came to be registered against him.
There was no FIR against the petitioner at
the time that he applied for the post of
Constable, to wit, 30.01.2026. The FIR was
registered on 08.05.2016, relating to an
incident
that
alleged
happened
on
07.05.2016, involving some members of
his family. The petitioner, upon selection,
was issued a call letter dated 21.05.2018 for
his
medical
examination,
testimonial
verification
as
well
as
character
verification. By this time, the FIR had
come into being and the petitioner,
therefore, disclosed the fact at the time of
his character verification vide the notarized
affidavit dated 11.06.2018. The conduct of
the petitioner, in making a complete and
forthright
disclosure
about
the
case
registered against him, is above board. This
is not, therefore, a case in the slightest
measure, where it could be said that the
petitioner indulged in any suppression or
withholding of information about the FIR
registered against him.

7. What appears to have weighed
with the respondents, in rejecting the
petitioner's case for appointment, is the
fact, amongst others, that the Collector,
when asked to opine about the petitioner's
suitability for appointment in government
service, did not opine in the petitioner's
favour vide his letter dated 06.11.2018. A
reference must be made to the relevance of
the Collector's opinion in the matter of
suitability of a candidate for appointment to
government service. In the State of Uttar
Pradesh,
a
Government
Order
dated
28.04.1958 is still in vogue, that makes
very elaborate provision to check on the
criminal
antecedents
of
a
candidate,
seeking employment under the State. The
relevant part of the Government Order
dated 28.04.1958 reads:
5 All. Vivek Yadav Vs. State of U.P. & Ors.
509

"3. (a) Every direct recruit to any
service
under
the
Uttar
Pradesh
Government will be required to produce:

(i) A certificate of conduct and
character from the head of the educational
institution where he last studied (if he went
to such an institution).

(ii) Certificates of character from
two persons. The appointing authority will
lay down requirements as to kind of
persons from whom it desires these
certificates.

b)
In
cases
of
doubt,
the
appointing authority may either ask for
further references, or may refer the case to
the District Magistrate concerned. The
District Magistrate may then make further
enquiries as he considers necessary.

Note(a) A conviction need not of
itself involve the refusal of a certificate of
good character. The circumstances of the
conviction should be taken into account
and if they involve on moral turpitude or
association with crimes of violence or with
a movement which has its object to
overthrow by violent means of Government
as by law now established in free India the
mere conviction need not be regarded as
disqualification. (Conviction of a person
during his childhood should not necessarily
operate as a bar to his entering Government
service. The entire circumstances in which
his conviction was recorded as well as the
circumstances in which he is now placed
should be taken into consideration. If he
has completely reformed himself on
attaining the age of understanding and
discretion, mere conviction in childhood
should not operate as a bar to his entering
Government service).

(b) While no person should be
considered unfit for appointment solely
because of his political opinions, care
should be taken not to employ persons who
are likely to be disloyal and to abuse the
confidence placed in them by virtue of their
appointment. Ordinarily, persons who are
actively engaged in subversive activities
including members of any organization the
avowed object of which is to change the
existing order of society by violent means
should be considered unfit for appointment
under Government. Participation in such
activities at any time after attaining the age
of 21 years and within three years of the
date of enquiry should be considered as
evidence that the person is still actively
engaged in such activities unless in the
interval there is positive evidence of
change of attitude.

(c) Persons dismissed by the
Central
Government
or
by
a
State
Government will also be deemed to be unfit
for appointment to any service under this
Government.

2(d) In the case of direct recruits
to the State Services under the Uttar
Pradesh Government includes requiring the
candidates
to
submit
the
certificates
mentioned in paragraph 3 (a) above. The
appointing authority shall refer all cases
simultaneously
to
Deputy
Inspector
General of Police, intelligence and the
District Magistrate (of the home district
and of the district(s) where the candidate
has resided for more than a year within five
years of the date of the inquiry) giving full
particulars about the candidate. The District
Magistrate shall get the reports in respect of
the candidates from the Superintendent of
Police who will consult District Police
Records
and
records
of
the
Local
Intelligence Unit. The District Police or the
District Intelligence Unit shall not make
any enquiries on the spot, but shall report
from their records whether there is
anything against the candidate, but if in any
specific case the District Magistrate at the
instance of the appointing authority ask for
an enquiry on the spot the Local Police or
510 INDIAN LAW REPORTS ALLAHABAD SERIES
the Local Intelligence Units will do so and
report the result to him. The District
Magistrate shall then reports his own views
to the appointing authority. Where the
District Police or the Local Intelligence
Units report adversely about a candidate
the District Magistrate may give the
candidate a hearing before sending his
report.

(e) In the case of direct recruits
(who are lower in rank than that of a State
Service Officer) of:

(i)
the
police
(including
ministerial staff of Police Officers).

(ii) the Secretariat.

(iii) the staff employed in the
government factories,

(iv) power houses and dams.

besides requiring the candidates
to submit the certificates mentioned in
paragraph 3 (a) above, the appointing
authorities
shall
refer
all
cases
simultaneously to the Deputy Inspector
General,
C.I.D.
and
the
District
Superintendent of Police (of the home
district and of the district(s) where the
candidate has resided for more than a year
within five year of the date of the inquiry)
giving full particulars about the candidate.
The Superintendents of Police will send his
report direct to the appointing authority if
there is nothing adverse against the
candidate. In cases where the report is
unfavourable the Superintendent of Police
will forward it to the District Magistrate
who will send for the candidate concerned,
give him a hearing and then, form his own
opinion. All the necessary papers (the
Superintendent of Police's report the
candidate's statement and the District
Magistrate's finding) will there after be sent
to the appointing authority.

4. It will be seen that in cases of
direct recruit to services other than those
mentioned in paragraphs 3 (c) and 3 (d)
above, verification shall not be necessary as
a matter of routine except in cases of doubt
when
the
procedure
mentioned
in
paragraph 3 (b) shall be followed.

5. In the case of a candidate for
services mentioned in paragraphs 3 (c) and
3 (d) above-

(i) if at the time of enquiry the
candidate is residing in a locality situated
outside Uttar Pradesh or if he has resided in
such a locality at any time within five years
of the date of enquiry for a period of one
year or more it shall be the duty of the
deputy Inspector General, C. I. D. to
consult also the C. I. D. D. of the State
concerned in which the locality is situated
before making his verification report.

(ii) if the candidate was residing
before partition in area now comprising
Pakistan the Deputy Inspector General, C.
I. D. shall also make a reference to the
Director of Intelligence Bureau, Ministry of
Home Affairs, Government of India, in
addition to the usual enquires as indicated
above.

6. It has also been observed that
where the District Magistrates are required
to
send
the
attestation
forms
they
sometimes
do
not
sign
the
forms
themselves, Government consider it very
desirable that the attestation forms should
invariably be signed by the District
Magistrates them selves in all such cases."

8. The Government Order dated
28.04.1958 shows that the purpose of this
order is to verify if a person, selected and
proposed to be appointed to government
service, is indeed a man of criminal
antecedents, unsuitable for appointment
under
the
Government.
It
must
be
emphasized that the character of a person,
being unsuitable for appointment to a post
under the Government on account of his
5 All. Vivek Yadav Vs. State of U.P. & Ors.
511
criminal antecedents, is not a mathematical
inference to be drawn from the mere
registration of an FIR against the man. It is
for this reason that the task of judging the
suitability of a person for appointment to
government service has been entrusted to
the hands of the District Magistrate, who
has to opine on the issue, taking into
consideration reports from the Police, the
Crime Investigation Department (CID) or
the Local Intelligence Unit, whoever are to
report on the antecedents of the candidate.
The Collector has to apply his mind to the
entire
circumstances
and
the
reports
available in regard to a person before he
opines on his suitability.

9. If there is a case where a person
with no criminal antecedents is suddenly
reported to the Police in connection with an
alleged crime, which per se does not involve
moral turpitude or shows for the person
concerned a marginal role based on suspicion,
the Collector must verify facts to judge his
suitability, including the case and evidence
appearing against him until time he opines. He
must not act like a Post Office, where on a
mere report from the Police Station and the
S.P. that an FIR has been registered, the
Collector reports the candidate unsuitable.

10. Here, although the Collector's
opinion has not been placed before the Court,
a perusal of the impugned order does not show
or reflect that the Collector indeed gave a well
considered opinion about the candidate's
suitability. The order impugned also does not
discuss the issue, lending force to the inference
that the Collector's opinion does not carry a
holistic evaluation about the candidate's
suitability for appointment to the Police.

11. Turning to the case against the
petitioner, one finds that it was primarily a
dispute
between
the
brother of
the
petitioner's grandfather with some third
party, who landed at the petitioner's
relative's premises and beat them up
seemingly in the morning hours of
07.05.2016.
The
petitioner's
family
members reported the offenders to the
Police and their FIR was registered on the
same day by evening hours at 11 o'clock.
The FIR registered against the petitioner
fixes him in the crime along with the other
family members, but it was lodged with a
delay of almost of 24 hours. The possibility
of a blatant false implication to spite the
petitioner's family, may well have been the
reason. The fact that the petitioner had
already been selected to government
service, made him an ideal candidate to be
framed in the case along with others in the
family, so as to settle scores and compel the
petitioner's
grandfather's
brother
to
withdraw from prosecution of the case,
brought against the first informant of Crime
No.186 of 2016 and other members of his
family.

12. The Court cannot shut out its
eyes to the fact that in this State it has
become almost a malady that an able young
man with good academic record, the
moment he is selected in government
service, leads to the sudden registration of
an FIR against him or he is named in
connection with an existing FIR, involving
his family or friends. This often happens at
the instance of his family themselves or
neighbours or friends, apparently out of
jealousy. Government service, in our
country, is still a very coveted position to
hold. It most certainly evinces the negative
emotions of jealousy, hatred, even anger,
sometimes amongst neighbours and the
family members of the young person
selected. It is, particularly, so in case of
appointment to lower echelons of the police
service. The almost perfect timing of
512 INDIAN LAW REPORTS ALLAHABAD SERIES
implication, like in the present case, in
many others, certainly warrants a very
careful scrutiny about the antecedents of
the person selected in order to judge, if
indeed it is a bona fide crime registered
against him, or, is it just a device to deprive
him
of
a
hard
earned
government
employment.

13. In the present case, a reading of
the impugned order or the return filed on
behalf of the State, does not show that any
kind of a careful consideration was done.
We notice with anguish that whatever we
say in this regard, does not penetrate the
thick armor of bureaucratic insensitivity.
The moment a crime is registered against a
candidate, selected to government service
and is either brought or comes to the notice
of the Government, the officers, without
the
slightest
qualm
of
conscience,
mechanically act to guillotine the candidate
out of his hard earned public employment.
They never base their consideration upon
what is expected of them, that is, to find out
if indeed the selectee is suitable for
appointment to government service. The
District Magistrates almost never scrutinize
a candidate's case according to the spirit of
the Government Order dated 28.04.1958.
Here, also the same thing has happened.

14. We must remark that the larger
number of cases, where the candidates do
not report even a trivial crime registered
against them, is out of fear of this
insensitive attitude on the part of the
officers of the Government, charged with
offering
appointment
to
selected
candidates. The candidates, who do not
then disclose out of fear of a mechanical
rejection, are doubly accused of being
unsuitable - one for the crime/ crime
registered, and the other, due to deliberate
suppression of their antecedents. We need
not delve upon the issue of suppression,
because that is not involved here. We have
mentioned it to highlight the ill-effects of
the insensitive approach of government
officers in judging suitability. They make
liars out gentleman.

15.
Here,
the
petitioner
has
disclosed the FIR registered against him, as
already remarked, in the most bona fide
and forthright manner. He reported it at the
earliest stage after it was registered. It was
not in existence when he applied. After
selection, when he was called for character
verification etc., he disclosed it on
affidavit. The crime registered against the
petitioner is one strongly suggestive of
counter-blast and mala fide implication
because the informant of the case against
the petitioner's family, which includes him,
were reported to the Police about an
incident that happened earlier in the day,
where the petitioner's family were on the
receiving end of an assault. It is not the
respondents' case, nor does it figure in the
impugned order that prior to the FIR,
giving rise to Crime No.186 of 2016, under
Sections under Sections 147, 148, 149, 452,
323, 427, 307, 324, 308, 336, 504, 506 IPC
and Section 7 Criminal Law Amendment
Act, P.S. Cholapur, District Varanasi, any
other case was registered against the
petitioner, or there was any other material
to show his criminal antecedents. After
investigation into the crime, the Police
charge-sheeted the petitioner and his family
for offences punishable under Sections 147,
148, 149, 323, 427, 504, 506 IPC and
Section 7 Criminal Law Amendment Act.
The offences punishable under Sections
307, 324, 308 and 336 IPC were clearly not
found to be there against the petitioner or
his family by the police themselves.
Looking to the entirety of allegations in the
FIR, which is about offences of assault,
5 All. Vivek Yadav Vs. State of U.P. & Ors.
513
alleged after the petitioner's family had
lodged an FIR against the informant of
Crime No.186 of 2016 promptly, regarding
a case of assault, do not show a case
involving
serious
charge
against
the
petitioner, laced with moral turpitude. The
offences, for which the petitioner was
charge-sheeted, read together with the
circumstances, prima facie do not show the
petitioner to be an outlaw or a desperado,
unfit for public employment. Nevertheless,
an opinion in this regard on the parameters
prescribed in the Government Order dated
28.04.1958, would have to be formed on
relevant materials by the respondent
Authorities; not this Court.

16. The impugned order, in this
case, has proceeded primarily to discard the
petitioner's
candidature
as
unsuitable,
because of the fact that there was an FIR
registered against him that resulted into a
charge-sheet being filed in Court and the
fact that though the charge-sheet had been
quashed, it was the result of a compromise
between parties. An FIR after all is not a
judgment, holding the person guilty nor is
the police report filed in Court. It is a
different matter if there are multiple FIRs
registered against a person, a legitimate
inference of his criminal propensities
may be drawn, but just the registration of
an FIR and the police putting in a chargesheet, would not ipso facto tarnish the
good name of an otherwise respectable
man. It is for this reason, as already
emphasized, a very careful consideration
of
the
entire
circumstances
of
implication, the nature of the charges, the
nature of the offence attributed to the
candidate together with his reputation and
background, all must enter consideration
of the Authorities empowered to appoint,
before the decision to deny public
employment is taken.
17. In Ram Kumar v. State of
U.P. and others, (2011) 14 SCC 709,
which too was a case related to police
service,
denying
employment
to
a
candidate, who had a criminal case against
him, of which he was acquitted, it was held
by the Supreme Court:

"9. We have carefully read the
Government Order dated 28-4-1958 on the
subject "Verification of the character and
antecedents of government servants before
their first appointment" and it is stated in
the government order that the Governor has
been pleased to lay down the following
instructions in supersession of all the
previous orders:

The rule regarding character of
candidate for appointment under the State
Government shall continue to be as
follows:

"The character of a candidate for
direct appointment must be such as to
render him suitable in all respects for
employment in the service or post to which
he is to be appointed. It would be the duty
of the appointing authority to satisfy itself
on this point."

10. It will be clear from the
aforesaid
instructions
issued
by
the
Governor that the object of the verification
of the character and antecedents of
government servants before their first
appointment is to ensure that the character
of a government servant for a direct
recruitment is such as to render him
suitable in all respects for employment in
the service or post to which he is to be
appointed and it would be a duty of the
appointing authority to satisfy itself on this
point.

11. In the facts of the present
case, we find that though Criminal Case
No.
275
of
2001
under
Sections
324/323/504 IPC had been registered
514 INDIAN LAW REPORTS ALLAHABAD SERIES
against the appellant at Jaswant Nagar
Police Station, District Etawah, admittedly
the appellant had been acquitted by order
dated 18-7-2002 by the Additional Chief
Judicial Magistrate, Etawah.

12. On a reading of the order
dated 18-7-2002 of the Additional Chief
Judicial Magistrate it would show that the
sole witness examined before the court, PW
1, Mr Akhilesh Kumar, had deposed before
the court that on 2-12-2000 at 4.00 p.m.
children were quarrelling and at that time
the appellant, Shailendra and Ajay Kumar
amongst other neighbours had reached
there and someone from the crowd hurled
abuses and in the scuffle Akhilesh Kumar
got injured when he fell and his head hit a
brick platform and that he was not beaten
by the accused persons by any sharp
weapon. In the absence of any other
witness
against
the
appellant,
the
Additional
Chief
Judicial
Magistrate
acquitted the appellant of the charges under
Sections 323/34/504 IPC. On these facts, it
was not at all possible for the appointing
authority to take a view that the appellant
was not suitable for appointment to the post
of a police constable.

13. The order dated 18-7-2002 of
the Additional Chief Judicial Magistrate
had been sent along with the report dated
15-1-2007 of Jaswant Nagar Police Station
to the Senior Superintendent of Police,
Ghaziabad, but it appears from the order
dated
8-8-2007
of
the
Senior
Superintendent of Police, Ghaziabad, that
he has not gone into the question as to
whether the appellant was suitable for
appointment to service or to the post of
constable in which he was appointed and he
has only held that the selection of the
appellant was illegal and irregular because
he did not furnish in his affidavit in the pro
forma of verification roll that a criminal
case has been registered against him.

14. As has been stated in the
instructions in the Government Order dated
28-4-1958, it was the duty of the Senior
Superintendent of Police, Ghaziabad, as the
appointing authority, to satisfy himself on
the point as to whether the appellant was
suitable for appointment to the post of a
constable, with reference to the nature of
suppression and nature of the criminal case.
Instead
of
considering
whether
the
appellant was suitable for appointment to
the post of male constable, the appointing
authority has mechanically held that his
selection was irregular and illegal because
the appellant had furnished an affidavit
stating the facts incorrectly at the time of
recruitment."

18. In Avtar Singh v. Union of
India and others, (2016) 8 SCC 471,
which lays down principles governing
matters of employment, where there is in
the background implication in a criminal
case, it has been held:

"38. We have noticed various
decisions and tried to explain and reconcile
them as far as possible. In view of the
aforesaid discussion, we summarise 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
5 All. Vivek Yadav Vs. State of U.P. & Ors.
515
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 recourses 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
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."

19. A perusal of the principles
summarized in paragraph Nos. 38.4.2,
38.4.3, 38.4.4, 38.4.5 and 38.4.6, would
516 INDIAN LAW REPORTS ALLAHABAD SERIES
have particular bearing on the issues
involved here. The guidance in Avtar
Singh (supra) also requires a careful
consideration of the criminal case and
where the candidate, though accused in an
offence involving moral turpitude, or one
that is heinous or serious, but acquitted on
technical grounds, as distinguished from a
clean acquittal, it is open to the employer to
consider all relevant facts as to the
candidate's
antecedents
and
take
an
appropriate
decision
in
the
matter.
Paragraph No. 38.4.3 would show that even
in case of serious offences, where acquittal
is by way of a judgment of doubt, it is not
that the employer must always reject the
candidate. The candidate's antecedents and
other relevant facts must be taken into
consideration before arriving at a decision.

20. One more point that deserves
notice is the submission of the learned
Additional Chief Standing Counsel that the
present selection relates to the year 2015
and now we are in the year 2025. Many
selections have gone by and no post from
the relevant recruitment year is now
available. The petitioner too would have
become overage.

21. The last of the submissions
about age is only stated to be rejected. The
petitioner, at the time of filing this petition
in the year 2024, was aged 27 years. There
would, thus, be no difficulty about his age,
if appointment were offered to him.