JUDGMENT :

SUBHASH VIDYARTHI, J.

1. Heard Sri Mohit Jauhari, the learned Standing Counsel for the Appellants and Sri Shesh Nath Bhardwaj, the learned Counsel for sole respondent.

2. The instant Intra Court Appeal has been filed by the appellant State of U.P. under Chapter VIII Rule 5 of the Allahabad High Court Rules against the judgment and order dated 27.03.2018 passed by an Hon’ble Single Judge of this Court, allowing Writ Petition No. 3878 (S/S) of 2017.

3. Briefly stated, facts of the case are that the appellants had made recruitments to the posts of constables in the Provincial Armed Constabulary (P.A.C.) in the year 1998. The respondent claims that he was appointed and was sent for training at the Recruitment Training Centre, Second Battalion, U.P. P.A.C. Sitapur, although no appointment letter was issued to him. At the time of recruitment, the respondent was required to submit an affidavit disclosing his antecedents and the respondent filed an affidavit dated 01.09.1998 categorically stating that as per his knowledge, neither any criminal case had been registered against him, nor had he been challaned by the police in any criminal case nor was any investigation pending against him. He had further stated in the affidavit that in case any fact mentioned in the application was found to be false or any fact was found to have been concealed, he should be removed from the service and be punished for the same. It was further stated the affidavit that in case any averment made in the affidavit was found to be false, his claim for recruitment may be rejected and in case any averment was found to be false even after his recruitment, he may be removed from the service and may be punished in accordance with the law and he would accept the same.

4. Upon verification of the averments made in the application and the affidavit, it was found that the respondent was an accused in Session Trial No. 428 of 1996 in the Court of Second Additional Session Judge Lucknow arising out of Case Crime No. 36 of 1995 under Sections 323, 504, 506 I.P.C. and 3 (1) (x) of the Scheduled Castes And Scheduled Tribes (Prevention Of Atrocities) Act, Police Station Nagram, Lucknow, which was pending on the date when the respondent had submitted the affidavit. Soon thereafter, on 03.11 1998, the aforesaid session trial was decided and the respondent was acquitted of the charges.

5. On 19.03.1999, the Commandant sent a letter to the respondent stating that the respondent had concealed the fact that a prosecution was pending against him. The letter further stated that by means of a letter dated 21.12.1998, the Inspector General of Police, P.A.C. had directed that selection of such candidates, as had concealed facts in the affidavit, be cancelled and cases be registered against them. Accordingly, the petitioner’s selection on the post of recruit constable in PAC was cancelled.

6. The respondent challenged the order dated 19.03.1999 terminating his service by filing Writ Petition No. 664 (S/S) of 1999 which was dismissed by means of a judgment and order dated 16.02.2004. The respondent filed Review Application No. 74 of 2004, which too was dismissed by means of an order dated 08.02.2012. The respondent then filed Special Appeal No. 135 of 2012, which was allowed by means of a judgment and order dated 28.10.2014 and the termination order dated 19.03.1999 was quashed and a direction was issued for reinstatement of the respondent in service.

7. The State challenged the aforesaid judgment and order dated 28.08.2014 by filing S.L.P. (Civil) No. 9835-9836 of 2015 and the S.L.P. was decided by means of an order dated 22.11.2016 with the observation that the case of the respondent be considered in light of the judgment passed in the case of Avtar Singh vs. Union of India and Others, (2016) 8 SCC 471.

8. In Avtar Singh vs. Union of India, (2016) 8 SCC 471, the Hon’ble Supreme Court had held that:

“30. The employer is given “discretion” to terminate or otherwise to condone the omiss