Bhram Deo vs State of U.P. and Others

Vikram Nath, J.—Heard Sri Vijay Gautam learned Counsel for the Petitioner and learned Standing Counsel.

Petitioner after selection was recruited as Constable in police force on 29.07.2005. By means of order dated 6.8.2006 passed by the S.S.P., Gorakhpur, the selection of the Petitioner has been cancelled on the ground that at the time of recruitment he filed a raise affidavit in relation to column provided for declaration in respect of criminal cases registered or pending against him as he failed to disclose Case Crime No. 262 of 1994, under Sections 147/148/149/302/324/504/506 Indian Penal Code.

Sri Vijay Gautam submitted that the Petitioner was appointed in 2005 and filed the affidavit on 3.7.2005 and the alleged criminal case was registered in the year 1994, wherein he was acquitted by Ist Additional Sessions Judge, Gorakhpur vide judgment dated 1.4.1999. It has further been submitted that since there was No. clause requiring that if there were criminal case in the past and has resulted in acquittal then also the fact has also to be mentioned in the declaration form and thus the petitoner in good faith did not disclose about Case Crime No. 262 of 1994 as he was acquitted.

A counter affidavit has been filed on behalf of the StateRespondents wherein the allegation with regard to the fact that FIR was lodged in 1994 and the petitoner has been acquitted vide judgment and order dated 1.4.1999 have not been denied. Only submission made by learned Standing Counsel is that since criminal case was registered against the Petitioner and despite the fact that he had been acquitted, a declaration in this regard was required to be given in the affidavit and non-disclosure amounts to concealment and in these circumstances the Petitioner''s selection/appointment has rightly been cancelled.

I have considered the arguments advanced by learned Counsel for the parties and perused the record.

Learned Standing Counsel has failed to point out that there was any clause in the declaration form that if a criminal case was registered in the past and has resulted in acquittal, then this fact was also required to be mentioned in the affidavit. If there was No. clause regarding any criminal proceeding in the past then, in my opinion, there was No. obligation on the part of the Petitioner to give a declaration to that effect and it cannot be said that non-disclosure was intentional.

The view taken by me finds supports from the judgment of a Hon''ble single Judge in Writ Petition No. 59218 of 2007 (Surendra Yadav v. State of U.P. and Ors.) decided on 26.2.2007 as well as Writ Petition No. 51282 of 2007 (Sanjay Kumar Singh v. State of U.P. and Ors.) decided on 27.1.2010.

There is yet another aspect of the matter. It is well settled that every judgment operates retrospectively unless specifically made prospectively and since the Petitioner was acquitted in Case Crime No. 399 of 1999, hence, it will be deemed that he was never involved in the criminal case, and thus, was under No. obligation to disclose the same.

The view taken by me finds supports from the Division Bench judgment of this Court in the case of Qamrul Hoda v. Chief Security Commissioner, North Eastern Railway, Gorakhpur (1997) 2 UPLBEC 1201.

Further it is admitted case between the parties that prior to cancellation of selection and appointment of the Petitioner, No. notice or opportunity of hearing was provided. Hon''ble Apex Court in the case of AIR 2000 1706 (SC) has held that such an order amounts to dismissal, therefore, notice and opportunity was necessary. Hon''ble Apex Court has further held that notice is also required under Para 541 of Police Regulations.

Admittedly, the Petitioner had been given appointment and he was working on the post. If a person is working on the post, a civil right accrues and notice and opportunity is necessary before dispensing with his services. Thus, the order impugned in this petition is in gross violation of principles of natural justice. Further as there is No. compliance of Regulation 541(2) of Police Regulation, as such, also the impugned order passed by the Respondent authority is not sustainable in law.

For the aforesaid reasons, the impugned order dated 6.8.2006 passed by Senior Superintendent of Police, Gorakhpur (Annexure No. 1 to the writ petition) is not sustainable in law and is hereby quashed. Writ petition stands allowed. However, in the facts and circumstances, there shall be No. order as to costs.