Anoop Kumar Premi (Recruit Constable) vs State of U.P. and Others

Amreshwar Pratap Sahi, J.—Heard learned Counsel for the Petitioner and learned standing counsel.

The Petitioner was selected for being appointed as a Constable in the Provincial Armed Constabulary of the State of U. P. in pursuance of the advertisement dated 2.5.2006. The Petitioner after holding of the said selection was recruited on 28.8.2006. It appears that a general direction was issued by the Police Headquarters for carrying out verifications in respect of such selections and in pursuance thereof the Respondents allege that information was received about the registering of an F.I.R. against the Petitioner in Case No. 825 of 2002 being Case Crime No. 88A of 2002, u/s 420/467/471, I.P.C.

The Respondents proceeded to cancel the candidature of the Petitioner by the order dated 17.8.2007 on the ground that the Petitioner at the time of his recruitment had filed a false affidavit in relation to the columns provided for declaration in respect of the pendency of criminal cases.

The impugned order, according to the Petitioner was passed without giving any notice or opportunity to him and even otherwise the impugned order was unsustainable on merits inasmuch as the Petitioner in paragraph 16 of the writ petition categorically states that he had no knowledge about the pendency of any criminal proceedings against him till the year 2007. The order has been challenged as having been passed on non-existing grounds and on mere presumption of facts about the knowledge of the Petitioner without there being any proof in support thereof.

Learned Counsel contends that had any opportunity been given to the Petitioner, he would have explained his conduct before the Respondents and the opportunity having been denied, vitiated the impugned order.

The Respondent State has filed a counter-affidavit and the contents of para 16 of the writ petition have been replied by merely stating that the contents thereof are not admitted hence are denied.

The matter was taken up on previous occasions and an order was passed on 16.3.2010 calling upon the Respondents to disclose information, upon a report of the Senior Superintendent of Police, about the status of investigation and the criminal case to demonstrate as to whether the Petitioner was ever put to notice about the registering of the criminal case against him either through any notice, summons or warrants upto the year 2007.

The Petitioner filed a supplementary-affidavit clearly stating therein that the criminal case itself proceeded in the year 2007 and it is only then the Petitioner came to know about the said case where after he filed an application u/s 482, Code of Criminal Procedure before the Uttarakhand High Court where the proceedings in the criminal case has been stayed. A copy of the summons issued in 2007, the order sheet, the bail order and the High Court''s order have all been brought on record.

In response to the said supplementary-affidavit a supplementary counter-affidavit has been filed by Pawan Kumar, Assistant Commandant, 8th Bn. P.A.C., Bareilly where the same allegations as contained in the F.I.R. have been repeated and no material has been brought on record to demonstrate that the Petitioner had any knowledge about the pendency of the criminal proceedings against him prior to the year 2007. The affidavit which has been filed on behalf of the Respondents simply states that the Petitioner is put to strict proof of the same.

Sri Vijay Gautam, learned Counsel for the Petitioner relying on the judgment of a learned single Judge in the case of Mohd. Tahir v. State of U. P. and Ors. 2009 (5) ESC 3311 (All), contends that in the instant case the Respondents have passed the order on mere imagination and without any proof to support the same. He therefore, submits that the order being erroneous in law as well as in fact deserves to be set aside.

Learned standing counsel on the other hand contends the fact that the Petitioner had obtained registration in the Employment Exchange at Nainital on the basis of a fake certificate alleged to have been counter signed by the Senior Superintendent of Police. Nainital is the subject-matter of the criminal case pending against him. He, therefore, submits that the Petitioner sought employment in the Police Service of Uttarakhand on a fake certificate and he is facing a criminal trial in that regard. The submission, therefore, is that the Petitioner will be presumed to have knowledge about the said criminal proceedings and knowingly he filed a false affidavit at the time of recruitment in P.A.C. pursuant to the selections in the State of Uttar Pradesh.

The submission is that a presumption has to be raised with regard to the knowledge of the pendency of a criminal case against the Petitioner and therefore, the affidavit being false, his candidature has been rightly cancelled.

I have considered the rival submissions and the pleadings of the parties.

It is by now well-settled that the strict rules of procedure that is provided for in the CPC or the Evidence Act are not directly applicable to the proceedings under Article 226 of the Constitution of India, where decisions are taken on the basis of the affidavits filed. Nonetheless the principles laid down in the Rules of Procedure are applicable. A view of Section 101 read with Section 106 of the Indian Evidence Act would indicate that the burden of proof that the Petitioner had knowledge about the pendency of the criminal proceedings has nowhere been discharged by the Respondents. The Petitioner had come out with a clear case in paragraph 16 that he came to know of the procedure for the first time about the same in the year 2007 much after the Petitioner was selected as a Constable in the P.A.C.

The burden of proof about a fact specially within the knowledge of a person lies on the person himself. The Petitioner, therefore, came out with a clear case that he had no knowledge, thereupon shifting the burden upon the Respondents to come out with some evidence to demonstrate that the Petitioner had purposely withheld material facts in spite of having knowledge of the registration of the F.I.R. in 2002. The supplementary-affidavit accompanied by the evidence to demonstrate knowledge in 2007 for the first time supports the stand of the Petitioner. There is no evidence to the contrary of the Petitioner having been either subjected to any physical investigation or arrest or any such action that may reflect of knowledge of the proceedings on the part of the Petitioner prior to 2007.

It is for the said purpose, the Court vide order dated 16.3.2010 had called upon the Respondents to file an appropriate affidavit to demonstrate that the Petitioner had by any means been put to notice of the pendency of the criminal case registered way back in 2002. The pleadings brought on record, utterly fail to dislodge the aforesaid presumption and in view of this the Respondents have failed to discharge the onus that had been shifted on them. It is, therefore, to be presumed that the Petitioner had in fact no knowledge about the pendency of the criminal proceedings till the year 2007. The judgment relied upon by the learned Counsel for the Petitioner in the case of Mohd. Tahir (supra) squarely covers the issue.

The Petitioner cannot be castigated for having filed a false affidavit as demonstrably he had no knowledge of the proceedings initiated in 2002 till 2007. The State was given full opportunity but they could not counter the material filed in the supplementary-affidavit of the Petitioner in relation to the criminal proceedings.

Keeping the aforesaid submissions raised and in view of the facts that have been brought on record, it is evident that the impugned order has been passed on the basis of a mere presumption without any proof.

However, in view of the fact that the matter relates to appointment on a sensitive post of a Constable in the P.A.C., it is still open to the Respondents to collect any evidence in this regard and confront the Petitioner with the same but opportunity has to be afforded to the Petitioner in order to meet any such material brought by the Respondents before proceeding to pass any order. Admittedly, in the instant case the order dated 17.8.2007 has been passed without giving any notice or opportunity to the Petitioner.

In view of the conclusions, aforesaid the order dated 17.8.2007 is quashed leaving it open to the Respondents to pass a fresh order in the light of the observations and the findings recorded hereinabove.

The writ petition is allowed.