(Per : HONOURABLE MR.JUSTICE V. M. SAHAI)

1. The short question that arises for consideration in this writ petition is whether a person who obtains appointment by fraud or misrepresentation is entitled to continue in service or his service is required to be terminated ?

2. The facts in brief are that on the basis of recruitment held between 20.09.2001 to 24.09.2001 the petitioner was appointed temporarily on 14.10.2001 on the post of Sainik in the Indo-Tibetan Border Police Force (M.H.A.), Government of India (for short, “the Border Police”). The appointment of the petitioner was subject to the conditions mentioned in Clause (C) of the appointment letter, which provided that, “On his character and past record declared to be satisfactory through proper channel.” He also submitted an undertaking on 27.09.2001 in the prescribed format as provided by Clause (L). Clause 3 mentioned that “Appointment shall be reserved till production of certificates and past record, issued through the proper channel.” At the time of recruitment, he was asked as to whether in any Court, any case is pending against him, either at Tehsil, Police Station or Institution and in answer the petitioner replied that no case is pending against him and this fact was stated in Column No.1. But, while filling up the Character Form, Column No.12 was left unfilled.

3. However, after the petitioner was appointed, police verification was done and the Police Commissioner, Special Branch, Ahmedabad, by letter dated 12.12.2002, informed the respondents that three cases were registered against the petitioner and they were pending with Naroda Police Station being C.R. No.I-136 of 1997, C.R. No.I-3104 of 1997 and C.R. No.I-2576 of 1998. A show cause notice dated 28.10.2003 was issued to the petitioner stating that in view of the Report of the Joint Police Commissioner, Ahmedabad that the petitioner had been acquitted in the aforesaid cases but, he had made a false statement at the time of recruitment, therefore, under Rule 22 read with Rule 17 of The Indo-Tibetan Border Police Force Rules, 1994 (for short, “the Rules”) the petitioner may show cause within 30 days why he had given false information at the time of recruitment and for giving false information why the petitioner may not be terminated. The petitioner submitted his reply on 04.11.2003. He pleaded that he was innocent and prayed for pardon.

4. A show cause notice for termination was issued under Rule 5(1) of the Central Civil Services (Temporary Service) Rules, 1965 and thereafter, the petitioner had been terminated on 31.12.2003 by a reasoned order. It is this order which had been challenged in this writ petition.

5. We have heard Ms. Roopal Patel learned counsel for the petitioner. She has urged that even if the petitioner had not disclosed whether any criminal case is pending against him or not or that the petitioner had wrongly informed the respondents that no criminal case is pending against him, even then the service of the petitioner could not be terminated in view of the provisions of Rule 22 of the Rules, as the petitioner had been subsequently acquitted in Summary Case No.1768 of 1998 on 20.02.2003. She urged that the word 'may' in Rule 22 of the Rules gives power to grant pardon from termination from service. The impugned order was not an appropriate order and was too harsh. She placed reliance on the decision of the Apex Court in Commissioner of Police and others v. Sandeep Kumar, (2011) 4 S.C.C. 644.

6. It is necessary to extract Rule 22 of the Rules as under; “22. Termination of service on grounds of furnishing false /incorrect information at the time of appointment.-The Central Government, or as the case may be, the authority as specified in Rule 17, may terminate the service of a person subject to the Act on grounds of furnishing false / incorrect information at the time of appointment of that person in the service. A show cause notice giving one month's time shall be issued to the indivi