1. This writ petition, under Article 226 of the Constitution of India, is filed by the petitioners, wherein, the following prayer is made:
" to issue an appropriate Writ Order or Direction more particularly one in the nature of Writ of Mandamus declare the action of the respondent No.2 herein in issuing a show cause notice vide Rc.No. 44/RECCT/GENL. 1/2017 dated 06.05.2017 by cancelling provisional selection of post of SCT PC (AR) in recruitment 2015 on the ground of involvement in a criminal case as petitioner convicted and fined Rs 100/- as illegal, arbitrary, discriminatory and violation of law and consequently it is further prayed that this Hon’ble Court may be pleased to further declare the inaction of the respondent No.2 herein in not considering the explanation to the show cause notice dated 10.05.2017 and 23.11.2017 as illegal, arbitrary, discriminatory and violation of rule of law and further prayed that, this Hon’ble Court may be pleased to direct the respondent No.2 herein to appoint the petitioner herein for the post of SCT PC (AR) as per the selection vide Regn.No.175999 in recruitment 2015 vide Notification Rc.No.151/RECT/ ADMN.1/2015 dated 31.12.2015 and pass such other order or orders…”
(Reproduced Verbatim)
2. I have heard the submissions of Sri V.Raghunath, learned counsel for the petitioner, Sri M.V.Rama Rao, learned Special Government Pleader representing the respondents and perused the record.
3. Briefly stated, the facts of the case are that the petitioner applied for the post of SCT PC (Civil/AR/Men and Women), pursuant to the notification, dated 31.12.2015 issued by the respondent No.2. The petitioner got through the written examination and physical test and he has been provisionally selected for the said post. However, during verification of the antecedents, the petitioner was found involved in a criminal case in Crime No.216 of 2014 registered for the offence under Section 160 r/w 34 of IPC of Tukaramgate police station and he was convicted of the said offence and was sentenced to pay fine of Rs.100/- by the Court concerned. Therefore, the respondent No.2 issued a show cause notice, dated 06.05.2017, to the petitioner calling upon to show cause as to why his provisional selection to the post of SCT PC (AR) should not be cancelled as per Rules. The petitioner submitted explanation to the said show cause notice on 10.05.2017 stating that he had no knowledge that he was convicted in the subject criminal case, and as such, he could not state the same in the attestation form and accordingly, requested the respondent No.2 to pardon the mistake committed by him in filling the attestation form. However, the respondents have issued a memorandum in RC.No.71/Recruitment/Genl.1/2007, dated 19.08.2017, cancelling the provisional selection of the petitioner on the ground that he has suppressed the fact of his involvement in criminal case in both online application and attestation form. Thereafter, the petitioner made representation on 23.11.2017 requesting the respondents to forgive his mistake, but however, there is no response from the respondents. Aggrieved by the same, the petitioner filed this writ petition with the prayer stated supra.
4. Learned counsel for the petitioner would submit that the offence under which the petitioner was convicted is a petty offence. Due to lack of proper knowledge and legal complications, the petitioner, at the advise of the elders, pleaded guilty in the said crime and he was imposed with a fine of Rs.100/-. In fact, the petitioner was innocent and he was no way concerned with the alleged offence. Further, merely because of conviction in an offence which ended in imposing of fine of Rs.100/-, the petitioner cannot be denied appointment which is nothing but gross violation of rule of law, discriminatory and also violative of Article 14 of the Constitution of India. The petitioner was leading his respectable life and he is passionate to enter into police department. Though the petitioner had given plausible explanation to the show cause notice explaining the pathetic situation and the conditions prevailing then and requested the respondent No.2 to consider his case and issue appointment order, till date, there is no response from the respondent No.2. Relying on the decision of the Hon’ble Apex Court in Avtar Singh Vs. Union of India (2016) 8 SCC 471 and TS Vasudevan Nayak vs. Vikram Sarabhai and others 1988 (Supp) SCC 1975, learned counsel for the petitioner would submit that cancelling the offer of appointment due to non-disclosure would not amount to material suppression and denial of employment on the said ground is illegal. Further, in a case which is trivial in nature and in which conviction has been recorded, if disclosed, would not have rendered an incumbent unfit for the post in question. The employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse. The petitioner belongs to SC community. Having secured public employment that too in the police department, he cannot be denied appointment due to his ignorance in disclosing the fact of his involvement in a criminal case and ultimately prayed to allow the writ petition as prayed for.
5. The respondents filed counter. It has been contended on behalf of the respondents that during the antecedents verification of the petitioner, it has come to light that he was involved in a criminal case i.e., Crime No.216 of 2014 of Tukaramgate police station, registered for the offence under Section 160 of IPC. The petitioner suppressed the information about his involvement in the said criminal case in the online application as well as in the attestation form, which was submitted by him during the recruitment process. In the online application, there is column “were you involved in any criminal case at any time”, wherein, the petitioner specifically replied as “No” and to the remaining related columns, the petitioner replied as “NA.” This clearly shows that the petitioner intentionally suppressed the criminal case details. The object of seeking material information in the application or attestation form is to verify and judge the character in the antecedents of the candidate to assess his suitability to hold a post in the Government. Suppression or non-furnishing of facts or information, which is sought for in the application form, as well as in the attestation form by the candidate, is a disqualification for appointment to the post under Government Service as per Rule 3 (G) (vi) of the A.P. Police SCT Rules, 1999 read with G.O.Ms.No.97, Home (Legal.II) department, dated 01.05.2006. Though the petitioner stated that he came to know about his conviction when the SB officials informed him during antecedents verification, the said explanation is wrong inasmuch as all the ten accused in the said crime, including the petitioner, were present before the Court and they admitted their guilt before the Court. Further, the petitioner made inconsistent statements to substantiate his conduct of suppression of material facts. Irrespective of the nature of the offence, the suppression of facts is required to be viewed seriously. Hence, the respondents, after carefully going through the explanation of the petitioner and the connected records, issued orders cancelling his provisional selection. Relying on the decision of the Hon’ble Apex Court in Devendra Kumar vs. State of Uttaranchal Pradesh (2013) 9 SCC 363, the learned counsel for the respondents would submit that the purpose of seeking information is not to find out the nature or gravity of the offence or the ultimate result of the criminal case, rather such information is sought with a view to judge the character and antecedents of the job seeker or suitability to continue in service; withholding such material information or making false representation itself amounts to moral turpitude and is a separate and distinct matter altogether than what is involved in the criminal case. In view of the same, the respondent No.3 rightly rejected the candidature of the petitioner. Further, judicial review under Article 226 of the Constitution of India is directed not against the decision, but against the decision making process. There is no patent illegality which vitiates the decision making process in the instant case. The contentions raised on behalf of the petitioner are unsustainable and ultimately prayed to dismiss the writ petition. In support of his contentions, the learned Standing Counsel for the respondents relied on two decisions of the Hon’ble Apex Court in Rajasthan Rajya Vidyut Prasaran Nigam Limited and another Vs. Anil Kanwariya (2021)10 SCC 136 and State of Madhya Pradesh and State Vs. Bunty (2020)17 SCC 654 and the decision of the Division Bench of this Court in the State of Andhra Pradesh Vs. Mohd. Ismail and another W.P.No.13128 of 2011 dated 28.10.2022.
6. I have given thoughtful consideration to the submissions made by both sides and meticulously perused the entire material on record.
7. The sole ground on which the candidature of the petitioner was rejected is that he did not mention either in the online application form or in the attestation form that he was involved in a criminal case registered for the offence under Section 160 of IPC. There is no dispute that the petitioner was involved in Crime No.216 of 2014 of Tukaramgate police station registered for the offence under Section 160 of IPC. There is also no dispute that when he was produced before the concerned Magistrate, he admitted his guilt of the said offence voluntarily and basing upon such admission, he along with the other accused were sentenced to pay a fine of Rs.100/- each, in default to undergo simple imprisonment for five (5) days. The petitioner accordingly paid the fine of Rs.100/-. The case of the petitioner is that he was not having proper knowledge and the legal complications of his conviction in the said crime and he pleaded guilty and paid fine at the advise of the elders.
8. Be that as it is. It cannot be disputed that a candidate who intends to participate in the selection process is always required to furnish correct information relating to his character and antecedents in the verification/attestation form before and after induction into service. It is also equally true that a person who has suppressed the material information or has made a false declaration indeed has no unfettered right of seeking appointment. However, he has a right not to be dealt with arbitrarily and the power has to be exercised judiciously by the competent authority in a reasonable manner, with objectivity, having due regard to the facts of the case on hand. It goes without saying that the yard stick/standard which has to be applied with regard to adjudging suitability of an incumbent always depends upon the nature of the post, nature of duties, effect of suppression over suitability to be considered by the authority on due diligence of various aspects, but no hard and fast rule can be laid down in this regard.
9. In Avatar Singh’s case ((2016) 8 SCC 471 supra), the Hon’ble Apex Court, while summarizing the conclusion, laid down broad guidelines which are required to be taken note of by the appointing/competent authority in dealing with the matters where there is suppression of material information or disclosure of false information and after reconciling the earlier judgments, succinctly summarized the conclusions as under:
“34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
35. Suppression of “material” information presupposes that what is suppressed that “matters” not every technical or trivial matter. The employer has to act on due consideration of rules/instructions, if any, in exercise of powers in order to cancel candidature or for terminating the services of employee. 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.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects.
37. The “McCarthyism” is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature or discharging an employee from service.
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 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.”
10. What emerges from the exposition as laid down by the Hon’ble Apex Court in the aforementioned decision is that mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What is being noticed by the Hon’ble Apex Court in the aforementioned decision is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service.
11. A similar question came up for consideration before the Hon’ble Apex Court in Commissioner of Police vs. Sandeep Kumar 2011 (4) SCC 644 wherein, candidature of the applicant therein for the post of Constable was cancelled on the ground that he had concealed his involvement in the criminal case registered for the offence under Section 325 r/w 34 of IPC when he was 20 years of age. A division bench of the Hon’ble Apex Court, quoting an English Case Law in MORRIS vs. CROWN OFFICE 1970 2 QB 114, held as under:
…..When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
12. Further, in Avtar Singh’s case ((2016) 8 SCC 471 supra), the question as to what importance is to be attached for suppression of information in the application form though the declarant has already been acquitted/convicted at the time of submission of application form is set out in paras 21, 22 & 27 of the judgment, in the following terms:
“Suppression of ‘material’ information presupposes that what is suppressed that ‘matters’ not every technical or trivial matter. The employer has to act on due consideration of rules/instructions if any in exercise of powers in order to cancel candidature or for terminating the services of employee. 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”.
13. In the conclusion, at paras 30 (4) (a) to (c) and (5), it was observed thus:-
“(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 from 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 criminal case, the employer still has the right to consider antecedents, and appoint the candidate.”
14. It is not in dispute that mere involvement in a criminal case is a disqualification to compete for appointment to public posts. In the instant case, the petitioner was convicted of the offence under Section 160 of IPC, i.e., for committing affray, which is, admittedly, trivial in nature. Moreover, he was sentenced to pay fine of Rs.100/- upon pleading guilty voluntarily. Non-mentioning of the same in the application form and in the attestation form appears to be not deliberate. Further, the petitioner is a young person in the age group of 21 years at the time of alleged crime. It is not that all the persons involved in crimes at young age should be extended concessions, but as observed in Avatar Singh’s case ((2016) 8 SCC 471 supra), in young age people often commit indiscretions due to lack of maturity. In the instant case, the petitioner is selected for the post of Constable and he hails from a marginalized section of the society. Sometimes, societal fascinations mislead and manifest all young people. Having regard to the totality of the circumstances, I am of the considered opinion that the alleged misconduct of the petitioner in relation to the criminal case would not debar or disqualify him for the post of Constable for which he was successfully selected by qualifying in the written examination and the physical efficiency test. Further, there appears to be no deliberate concealment of any relevant fact by the petitioner. Thus, the respondents are not justified in denying the post of Constable to the petitioner for which he was selected. The conclusions arrived by the respondents in disqualifying the petitioner for the post of Constable is not cogent and lacks proper application of mind.
15. In Bunty’s case ((2021)10 SCC 136 supra) relied by the learned counsel for the respondents, the petitioner therein was involved in a case of moral turpitude for the commission of an offence under Sections 392 and 411 of IPC, which is grievous in nature. But in instant case, the petitioner was convicted for the offence under Section 160 of IPC, which is trivial in nature. Moreover the instant case is not a case of moral turpitude. Hence the cited decision is not applicable to the facts of the case on hand. In Rajasthan Rajya Vidyut Prasaran Nigam Limited’s case ((2013) 9 SCC 363 supra), the employee therein was convicted for the offences under Sections 343 and 323 of IPC, which are also grievous in nature. Since the petitioner herein was convicted for the offence under Section 160 of IPC, which is trivial in nature, the said citation is not helpful to the case of the respondents. In Mohd. Ismail’s case ((2020)17 SCC 654 supra), a Division Bench of this Court has set aside the order of the erstwhile Andhra Pradesh Administrative Tribunal allowing the O.A. in favour of the incumbent therein on the ground that at the time of committing offence, he was less than 18 years and on conviction, he was sent to Borstal School, holding that since the Police Department is highly disciplined force and paramount importance in the society, if the persons like the incumbent therein are appointed, it may lead to turbulent situation. But however, in the said decision, the allegation against the incumbent is that he has not disclosed about his conviction by the criminal Court in Sessions Case. Normally, the gravity of the offence in the Sessions Cases would be serious in nature, but in the instant case, since the offence for which the petitioner was convicted is trivial in the nature, the said citation is not applicable to the facts of the case on hand.
16. Viewed thus, this Court opines that the ends of justice would be met if the impugned show cause notice, dated 06.05.2017 issued by the respondent No.2 cancelling the provisional selection of the petitioner for the post of SCT PC (AR) in 2015 Recruitment is set aside and the respondents are directed to appoint the petitioner herein for the post of SCTPC (AR) as per his selection vide Reg.No.175999 vide Notification RC.No.151.RECT.1/2015, dated 31.12.2015.
17. Resultantly, the writ petition is allowed. The impugned show cause notice vide RC.No.44/RECT/GENL.1/2017, dated 06.05.2017 issued by the respondent No.2 and the consequential memorandum in RC.No.71/RECT/GENL.1/2017, dated 19.08.2017 issued by the respondent No.2 is hereby set aside, insofar as it relates to the petitioner herein. The respondents are directed to appoint the petitioner herein in the post of SCTPC (AR) as per his selection vide Reg.No.175999 vide Notification RC.No.151/RECT/ADMN/2015, dated 31.12.2015.
Miscellaneous petitions, if any, pending in this writ petition, shall stand closed. There shall be no order as to costs.
