Entitlement to appointment based on honorable acquittal and non-disclosure of criminal case in the application.

JUDGMENT :

Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records made in C.No.A3/20868/2012 dated 29.10.2020 passed by the second respondent herein and quash the same as illegal and direct the respondent to appoint the petitioner as Grade II constable as directed by this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of justice.

The petitioner has come forward with the present writ petition, to call for the records made in C.No.A3/20868/2012 dated 29.10.2020 passed by the second respondent herein and quash the same as illegal and direct the respondent to appoint the petitioner as Grade II constable as directed by this Court in W.P.No.7957 of 2013 dated 11.01.2019 to secure the ends of justice.

2. According to the petitioner, though a criminal case was registered against him and a trial was conducted in C.C.No.1082 of 2011 on the file of the Judicial Magistrate No.II, Sankagiri, he was honourably acquitted of all charges. Since he was acquitted from the said criminal case honourably, he did not disclose the factum of the criminal case at the time of application to the post of Grade II constable. It is the further case of the petitioner that to the shock and surprise, the 2nd respondent passed the impugned order, refusing to consider the petitioner for appointment to the said post.

3. The respondents relied upon the judgments of the Hon’ble Supreme Court in the case of State of Madhya Pradesh vs. Abhijit Singh Pawar reported in 2018 (18) SCC 733 and also the yet another decision in Avtar Singh Vs.Union of India and others, reported in 2016 (8) SCC 471 to contend that the petitioner is not entitled to the relief sought for. The relevant paragraph of the judgment reported in 2016 (8) SCC 471 is extracted hereunder:

22. The employer is given ‘discretion’ to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.”

4. Heard the learned counsel for the parties and perused the material documents available on record, including the judgment cited by the respondents.

5.