Statute/Rules Allowing Employer To Deny Appointment Only Due To Non-Disclosure Of Criminal Cases Would Be Unjust: Allahabad HC

A bench of Justice Salil Rai also opined that any decision by the employer denying appointment only because of such non-disclosure would also be contrary to the constitutional principle of fairness and non-arbitrariness in administrative actions.

“Broad- brushing every non-disclosure as a disqualification would be unjust and it would be arbitrary and unreasonable to disqualify a candidate merely because of non-disclosure of a criminal case which was trivial in nature and related to a petty offence which if disclosed would not have rendered him unfit for post in question,” the Court further remarked.

The Court added that in cases of a candidate's non-disclosure of a criminal case, factors such as the nature and seriousness of the charges, the outcome of the trial (including whether acquittal was due to technical grounds or a clean acquittal), and the candidate's socio-economic status must be considered when assessing their suitability for appointment.

“The report of the District Magistrate regarding the character and antecedents of the candidate and also the recommendations of the District Magistrate are relevant documents which have to be considered by the appointing authority while deciding the suitability of a candidate for appointment,” the Court said.

Importantly, the single judge also said that in a case trivial in nature or for a petty offence, the employer may ignore suppression of fact or false information by condoning the lapse if the applicant is not otherwise unfit for appointment.

These observations were made by the court while quashing an order of the Superintendent of Police, Ballia of rejecting the claim of one Ashish Kumar Rajbhar (petitioner) for appointment as Constable on the ground that he had concealed the criminal case registered against him.

The Court also directed the State authorities, i.e., the Secretary, Department of Home (Police Section), UP Govt, the Secretary, U.P. Police Recruitment and Promotion Board, the SP (Personnel) Uttar Pradesh Police Headquarter and the SP of District Ballia to ensure that appropriate appointment letter is issued to the petitioner appointing him on the post of Constable in pursuance to the recruitment notified in 2015 and the petitioner shall be allowed to join as such.

The Court also clarified that the petitioner would be entitled to service benefits, including pay and other allowances, as well as seniority, as a consequence of his appointment only with effect from the date of his joining.

The case in brief

Rajbhar (petitioner) was selected for a constable position in the Uttar Pradesh Police in pursuance to the advertisement issued in 2015 by the Uttar Pradesh Police Recruitment and Promotion Board.

The selected candidates were asked to file an affidavit disclosing whether any criminal case had been registered against them or was pending consideration in any court. The petitioner submitted his affidavit in June 2018, stating that no criminal case had been registered or pending against him.

However, he later discovered that a criminal case had been registered against him in April 2017, which was not mentioned in the affidavit. The petitioner subsequently filed a second affidavit disclosing the fact that a Criminal Case had been registered against him, but he was not named in the charge sheet.

Now, despite a recommendation from the District Magistrate for his appointment, the Superintendent of Police, Ballia, rejected his claim on the grounds that the criminal case was concealed in the initial affidavit.

The order was passed relying on Clause 8 (Ja) of the Office Instructions (dated May 22, 2018), which provides that a candidate would be declared unfit for appointment if he had concealed or made any misrepresentation regarding any criminal case registered against him or regarding any trial, acquittal, or conviction in a criminal case or if the candidate had been convicted for any offence involving moral turpitude.

The petitioner challenged the SP's order before the High Court, and the HC directed the SP to reconsider the matter in accordance with the law. However, the claim was also rejected in the subsequent order (March 2019).

Challenging this second rejection of his claim, Rajbhar moved the HC with the instant writ plea.

It was his primary case that his failure to disclose the criminal case pending against him did not amount to active misrepresentation or an intention to deceive the authorities. Therefore, the respondents could not have legally denied the petitioner's appointment as Constable because of the non-disclosure of the criminal case.

It was further argued that, in any case, the criminal case was trivial in nature and did not disqualify the petitioner from appointment as constable, mainly because the petitioner was not named in the charge sheet.

Opposing his plea, the Standing Counsel has argued that the petitioner had knowingly made a false representation indicating that no criminal case was registered or pending against him.

It was argued that the petitioner's concealment and misrepresentation were material suppression, disqualifying him from appointment as Constable.

Against the backdrop of these submissions, the Court primarily referred to the Supreme Court's rulings in the cases of Avtar Singh vs. Union of India & Ors. 2016 and Ram Kumar vs. State of U.P. & Others (2011) to note that even a candidate who has suppressed information has a right not to be dealt with arbitrarily and exercise of power has to be in a reasonable manner.

Further, the Court referred to Clause 3(b) of the Office Memorandum dated 28.04.1958, which allows the appointing authority to seek further references or refer the matter to the District Magistrate if there are doubts about a candidate's conduct and character.

The Court also referred to Note to Clause 3, which clarifies that a conviction alone does not disqualify a candidate; instead, the circumstances surrounding the conviction and the candidate's current situation, including any rehabilitation, should be considered in the suitability assessment.

In this case, the Court noted that the District Magistrate's report was crucial in assessing a candidate's suitability for government service as the District Magistrate had recommended the appointment.

So far as the Office Instructions dated 22.5.2018 are concerned, the Court noted that Clause 8 (Ja) of the Government order provides that where a candidate had been acquitted or convicted by a court in any criminal case, the matter shall be referred to the District Magistrate who shall submit his report/ recommendation regarding the fitness of the candidate for appointment and the Superintendent of Police shall take a decision in accordance with the recommendations of the District Magistrate.

The Court found that the Superintendent of Police, relying on Clause 8 (Ja) of the Office Instructions dated 22.5.2018, had mechanically rejected the petitioner's claim only on the ground of the petitioner's non-disclosure of the criminal case.

“While deciding the claim of the petitioner, the appointing authority has neither considered the nature of alleged suppression nor the nature of the case registered against the petitioner and has also not considered the fact that the petitioner was not even put on trial in the case. The socio-economic status of the petitioner has also not been considered by the Superintendent of Police and there is no consideration regarding the suitability of the petitioner for appointment,” the Court said as it concluded that the SP's order was contrary to law and was liable to be quashed.

In view of the reasons given above, the court allowed the petition, holding that mere nondisclosure of the criminal case could not be fatal to the petitioner's appointment.

Advocate Siddharth Khare appeared for the petitioner

Case title - Ashish Kumar Rajbhar vs. State Of U.P. And 3 Others

Case citation:

Click Here To Read/Download Order