Akhilesh Kumar Pandey vs State of U.P. and Others

V.K. Shukla, J.—In the present case, petitioner has rushed to this Court for quashing of the order dated 29.04.2010 passed by the Deputy Inspector General of Police, Establishment, U.P. Allahabad.

Background of the case, as reflected from the record, is that petitioner''s father Vidya Nath Pandey, who had been performing and discharging duties as constable, died in harness on 22.04.1993. The claim of petitioner for grant of compassionate appointment on the post of S.I. (m) was considered and turned down, then petitioner moved application on 19.11.2007 for grant of compassionate appointment on the post of constable. Requisite orders were passed in this regard on 23.05.2008. Thereafter, it appears that character verification proceedings were undertaken, and it was found that the petitioner had been arrayed as accused in case crime No. 183 of 2000, under Sections 147, 323, 504, 506 and 452 I.P.C. read with Section 3 (1) (10) of SC/ST Act, but subsequently on trial, he was acquitted from the Court of Session on 29.06.2004, and report to this effect was furnished to the Superintendent of Police, Azamgarh, who took legal advice from the Special Prosecution Officer and found that there was no legal impediment in petitioner''s being offered appointment. The Deputy Inspector General of Police, Establishment, Police Head Quarter, thereafter, on account of the fact that the petitioner had concealed the material facts and furnished wrong facts in his affidavits dated 10.07.2007 and 15.12.2007, proceeded to reject the approval so accorded on 23.06.2008. At this juncture, petitioner has rushed to this Court.

Counter and rejoinder affidavits have been exchanged and thereafter, present writ petition has been taken up for final hearing and disposal with the consent of the parties.

Sri Vijay Gautam, Advocate, appearing for the petitioner, contended with vehemence that in the matter of character verification object should be to see as to whether the incumbent was suitable for appointment to service, for which he was appointed, or not. The petitioner had furnished the said affidavits under bona fide impression that once he had been acquitted in the aforesaid criminal case, then the same was of no consequence, as such writ petition deserves to be dismissed.

Countering the said submissions, learned standing counsel, on the other hand, has contended that rightful view has been taken in the matter and no interference should be made.

After respective arguments have been advanced, the factual situation which has so emerged in the present case, it is true that the petitioner had filed wrong affidavits before the authority concerned giving therein totally wrong statement of fact that at no point of time he had ever been prosecuted in the past; and that he had never been arrested in the past. The fact of the matter is that the petitioner had been prosecuted in case crime No. 183 of 2000, under Sections 147, 323, 504, 506 and 452 I.P.C. read with Section 3 (1) (10) of SC/ST Act, as such petitioner ought to have truthful in the matter of making statement. It appears that the petitioner was not truthful and proceeded to mention the facts which were incorrect on the face of record.

In view of the judgment of Apex Court in the case of Ram Kumar Vs. State of U.P. and others in Civil Appeal No. 7106 of 2011 decided on 19.8.2011, this Court would have taken different, but in the said judgment Apex Court, in similar circumstances, wherein also in the affidavit incorrect facts had been stated at the time of recruitment, has taken the view that instead of considering the fact that the applicant was suitable for appointment to the post of the male constable, the appointing authority has mechanically held that the selection was irregular and illegal. In the said case, Apex Court has held as follows:-

We have carefully read the Government Order dated 28.04.1958 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 supercession 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 duty of the appointing authority to satisfy itself on this point.

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.

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 against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 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.

The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 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 proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, 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.

In Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav (supra) relied on by the respondents, a criminal case had been registered under Sections 323, 341, 294, 506-B read with Section 34 IPC and was pending against the respondent in that case and the respondent had suppressed this material in the attestation form. The respondent, however, contended that the criminal case was subsequently withdrawn and the offences in which the respondent was alleged to have been involved were also not of serious nature.

On these facts, this Court held that the respondent was to serve as a Physical Education Teacher in Kendriya Vidyalaya and he could not be suitable for appointment as the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age and if the authorities had dismissed him from service for suppressing material information in the attestation form, the decision of the authorities could not be interfered with by the High Court.

The facts of the case in Kendriya Vidyalaya Sangathan and Others v. Ram Ratan Yadav (supra) are therefore materially different from the facts of the present case and the decision does not squarely cover the case of the appellant as has been held by the High Court.

For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs.

In the present case also misstatement of fact has been made in the affidavit by the petitioner, but at no point of time, it was considered as to whether the incumbent was suitable for appointment to the service, wherein he was appointed or not. Following the dictum of Apex Court in the aforesaid case, present writ petition deserves to be allowed.

Consequently, present writ petition is allowed. The order impugned dated 29.04.2010 passed by the Deputy Inspector General of Police, Establishment, U.P. Allahabad, is hereby quashed and set aside. The respondents are directed to take follow-up action, within a period of two months from the date of receipt of a certified copy of this order.