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Judgment
By Hon’ble Ms. Manju Pandey, Member (A):-
Learned counsel for the parties are present and heard.
The applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985, praying for the following reliefs:–
“(i)To direct the respondents to allow the applicant to join on the post of Track Maintainer-IV in the Pay Matrix Level 1/Pay Band-1 Rs. 5200-20200/- + GP 1800 in Civil Engineering Department in pursuance of appointment letter dated 26.4.2023 issued by Assistant Personnel Officer/ NED, within stipulated time.
(ii)To pass any such other and further order as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.
(iii)o Award cost of the application...”
The brief facts of the case, as borne out from the record, are that the applicant applied pursuant to Railway Recruitment Cell Notification No. RRC-01/2019 for recruitment to various posts in Level-1 of the 7th CPC Pay Matrix under South Central Railway, Secunderabad. The applicant was selected for appointment to the post of Track Maintainer Grade-IV and his documents were verified on 10.02.2023. Thereafter, the Assistant Personnel Officer/NED, South Central Railway, Nanded Division, issued an offer of appointment dated 26.04.2023 to the applicant at his residential address at Village Jagopur, Police Station Mardah, District Ghazipur, Uttar Pradesh. Pursuant to the said offer, the applicant was offered appointment to the post of Track Maintainer Grade-IV in Pay Matrix Level-1, corresponding to Pay Band-1 of Rs. 5,200–20,200 with Grade Pay of Rs. 1,800/-, in the Civil Engineering Department, NED Division. The applicant, however, was not permitted to join pursuant to the said offer of appointment on account of the pendency of a criminal case bearing Case Crime No. 230/2021, registered under Sections 323, 504, 506 and 427 of the Indian Penal Code (IPC). The aforesaid criminal proceedings subsequently culminated in the acquittal of the applicant vide judgment dated 26.09.2023 passed in Criminal Case No. 14101/2021, arising out of Case Crime No. 230/2021, under Sections 323, 504 and 506 of the IPC. Following his acquittal, the applicant submitted a copy of the judgment and order dated 26.09.2023 before the DRM (P), Coordination, Engineering Department, Nanded, along with an application dated 09.10.2023, requesting appropriate action in respect of his appointment. Subsequently, in response to the letter dated 08.05.2024 issued by the respondent authorities, the Joint Director, Prosecution, Ghazipur, vide letter dated 14.05.2024, informed the Assistant Personnel Officer, South Central Railway, Nanded, that no appeal had been preferred against the judgment and order of acquittal dated 26.09.2023. The applicant thereafter submitted another representation dated 20.12.2024 before the Assistant Personnel Officer, Engineering, Nanded, South Central Railway, Nanded. As no action was taken thereon, the applicant submitted an application dated 22.01.2025 under the Right to Information Act, 2005. In response to the said application, the P.I.O. & Sr. DPO/NED, Nanded Division, Nanded, vide letter dated 10.02.2025, informed the applicant that a criminal case was pending against him at the time of his appointment. Aggrieved thereby, the applicant has approached this Tribunal by way of the present Original Application.
The applicant has, inter alia, relied upon the judgment of the Hon’ble Supreme Court in Avtar Singh v. Union of India & Others, (2016) 8 SCC 471. in support of his claim.
Per contra, in the counter affidavit filed on behalf of the respondents, the applicant’s selection for the post of Track Maintainer Grade-IV in Level-1 of the 7th CPC Pay Matrix and issuance of an offer of temporary appointment dated 26.04.2023 for the Civil Engineering Department, Nanded Division, have not been disputed. At the time of verification of the applicant’s documents, FIR No. 230/2021, under Sections 323, 504, 506 and 427 of the IPC, was found to have been registered against him, and the criminal proceedings were pending before the competent court. Bail had been granted to the applicant on 27.01.2022. Upon the criminal case being noticed during the verification process, the matter was referred to the Principal Chief Personnel Officer, South Central Railway, for advice regarding the further course of action. By communication dated 18.01.2024, withdrawal of the offer of appointment was advised on the ground that appointment to Government service could not be offered to a candidate against whom a criminal case was pending adjudication before a court of law. Subsequently, the applicant submitted a copy of the judgment dated 26.09.2023 whereby he had been acquitted in the criminal case. The matter was thereafter referred to the competent authority, and clarification was sought as to whether any appeal had been preferred against the order of acquittal. The Joint Director, Prosecution, Ghazipur, informed the respondent authorities that no appeal had been preferred against the said order of acquittal. Despite the subsequent acquittal of the applicant, the matter was again examined by the competent authority, whereupon the view was communicated that a candidate involved in a criminal case could not be considered for appointment to Government service. In response to the applicant’s application under the Right to Information Act, 2005, he was informed that, since a criminal case had been registered against him at the time of appointment, his appointment had not been considered by the competent authority. The offences involved in the criminal case included Section 506 of the IPC, which was stated to be a non-bailable offence. The reliance placed by the applicant upon the judgment of the Hon’ble Supreme Court in Avtar Singh v. Union of India & Others was also disputed. It was contended that the said judgment did not confer an absolute right of appointment upon a candidate involved in criminal proceedings and that appointment to Government service remained subject to consideration by the competent authority in accordance with the applicable rules and the circumstances of each case. On the aforesaid grounds, dismissal of the Original Application was sought on the premise that no legally enforceable right to appointment had accrued in favour of the applicant.
In reply to the counter affidavit, a rejoinder has been filed wherein the facts and submissions made in the Original Application have been reiterated. It is further submitted that the offer of appointment dated 26.04.2023 annexed with the counter affidavit as CR-2 does not relate to the applicant, as neither his name nor his roll number is mentioned therein. The applicant has already annexed his offer of appointment dated 26.04.2023 with the Original Application.It is further submitted that the respondents have not annexed the copy of the letter dated 18.01.2024 referred to in the counter affidavit, whereby the withdrawal of the offer of appointment was allegedly advised. Therefore, the contents of the said communication could not be specifically replied to. It is submitted that the applicant had already been acquitted by the learned Judicial Magistrate, 1st Class-cum-Civil Judge (Junior Division), Fast Track Court, Court No. 2, Ghazipur, in Criminal Case No. 14101/2021 vide judgment and order dated 26.09.2023. The Joint Director, Prosecution, Ghazipur, vide letter dated 13.05.2024, in response to the communication of the Assistant Personnel Officer, South Central Railway, Nanded, informed that no appeal had been preferred against the order of acquittal dated 26.09.2023. It is further submitted that the Joint Director, Prosecution, Ghazipur, had incorrectly mentioned in the said letter dated 13.05.2024 that the applicant had been acquitted on the basis of compromise. It is contended that the judgment and order dated 26.09.2023 specifically recorded that the prosecution had failed to produce credible evidence to establish the charges against the applicant. The said communication dated 13.05.2024, however, clearly confirmed that no appeal had been preferred against the order of acquittal dated 26.09.2023. It is further submitted that the communication dated 23.10.2024 was an internal correspondence between the respondent authorities and was neither addressed to the applicant nor supplied to him. It is also submitted that the Director, Prosecution, Ghazipur, had informed the Assistant Personnel Officer, South Central Railway, Nanded, that no appeal had been preferred against the judgment and order of acquittal dated 26.09.2023.
We have heard the learned counsel for both the parties and have also gone through their detailed pleadings.
The subject matter of verification of character and antecedents of a person appointed to a post has been discussed by the Hon'ble Supreme Court in Avtar Singh vs. Union of India & Ors., (2016) 8 SCC 471. The concluding observations of the Apex Court in Avtar Singh (supra) were as follows:
“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 1 (2016) 8 SCC 471 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.
The applicant in the present case had a case under Sections 323, 504, 506 and 427 of the Indian Penal Code, which came to light at the time of verification of character and antecedents. However, the applicant has been acquitted from the said criminal case. The Joint Director, Prosecution, Ghazipur, has also confirmed that no appeal has been filed in the Hon'ble High Court against the said acquittal order of the Civil Judge. However, without going into the above details, a cryptic order has been passed by the respondents stating that “Candidates involved in the criminal cases may not be considered for appointment to the Govt. service”, without really going into the merits of the case.The respondents did not consider the case of the applicant in an appropriate manner and in the light of the established law laid down by the Hon'ble Apex Court in the case of Avtar Singh (supra), (2016) 8 SCC 471.
The employer should have taken a decision by going into the merits of the case and should have seen the nature of the case and the job being offered to the applicant. The employer was required to consider whether the case adversely affects the integrity and suitability of the applicant for the job being offered to him. The nature of the allegations, the circumstances of the case, the factum of acquittal and the nature of the post were also required to be considered before taking a decision in the matter. In case the employer comes to the conclusion that the involvement of the applicant in the criminal case does not adversely affect his suitability for the post, the matter is required to be considered in accordance with the principles laid down by the Hon'ble Supreme Court in Avtar Singh (supra). However, in the present case, the decision has been taken without going into the merits of the case and without application of mind, by simply stating that “Candidates involved in criminal cases may not be considered for appointment in Government service.”
In view of the above, the respondents are directed to look into the case of the applicant afresh, keeping the aforesaid judgment of the Hon'ble Supreme Court in mind and looking into the merits of the case, the nature of the criminal case, the order of acquittal and the nature of the post for which the applicant is being considered. The respondents shall take a fresh decision in the matter within a period of three months from the date of receipt of a certified copy of this order, in accordance with law. The decision so taken shall be communicated to the applicant by passing a reasoned and speaking order.
Accordingly, the O.A. is disposed of with the aforesaid directions. No order as to costs. All pending M.A.s, if any, are also disposed of.