Sunil Kumar Bijarniya v. Union of India

3. This Court, on 22.05.2019, directed the respondents to consider the petitioner’s case afresh, and in case the same is rejected, Counter affidavit to be filed.

4. The respondents, vide Order dated 22.07.2019, rejected the representation of the petitioner.

5. Whereafter, the petitioner sought leave to amend the present writ petition, which was allowed on 14.01.2020.

SUBMISSIONS ON BEHALF OF THE PARTIES

6. Ms. Pratiksha Sharma, the learned counsel for the petitioner, at the outset, submitted that the petitioner in his Attestation Form had duly disclosed all the pending criminal cases which were in his knowledge at the relevant time. However, the petitioner was discharged from service solely on account of purported suppression of a pending FIR No. 338/2013, of which the petitioner had no knowledge at that point in time. Moreover, contrary to the established law, no Show Cause Notice or an opportunity of hearing was afforded to the petitioner before his discharge.

7. She submitted that had the petitioner’s intention been one of wilful suppression of facts, he would have concealed the pending three criminal cases against him as mentioned in the Attestation Form. However, bonafidely the petitioner had duly disclosed those cases which were in his knowledge. Had the fourth case been in the knowledge of the petitioner, he would have mentioned the same along with the other three criminal cases disclosed by him in the Attestation Form.

8. The learned counsel strenuously contended that once the respondents had duly taken the petitioner on probation after the due disclosure of the three FIRs, they could not rely on the said pending cases subsequently as a basis to reject his candidature. Moreover, the petitioner was acquitted in two criminal cases out of the three, that is, in FIR Nos 119/2013 & 120/2013, therefore, the respondents could not have casually rejected the Review Petition dated 09.01.2018 filed by the petitioner solely on the ground that no such provision existed under the Rules.

9. The learned counsel submitted that similarly his representation dated 26.09.2018 was also rejected by the respondents vide Order dated 22.07.2019, without even considering his acquittals in two FIRs and the benefit under Probation of Offenders Act, 1958, upon his conviction in the third FIR bearing no. 22/2013. This, the learned counsel submitted is in contravention to the law laid down in Commissioner of Police &Ors vs. Mukesh Kumar &Ors., 2014 (4) SCT 782 (Delhi).

10. In all the orders, she submitted, the respondents adjudicated the representations of the petitioner upholding the discharge from his services, however, assigning different and inconsistent reasons, which is against the principles of natural justice. Therefore, in light of these circumstances, the learned counsel submitted that the petitioner be reinstated in service with other reliefs as prayed for.

11. The learned counsel placed reliance on the following Judgements in support of her contentions: i. Mohammed Imran vs. State of Maharashtra (2019) 17 SCC 696; ii. Avtar Singh (supra); iii. Ravindra Kumar vs State of Uttar Pradesh (2024) 5 SCC 264; iv. Pawan Kumar vs. Union of India, 2022 SCC OnLine SC 532; v. Joginder Singh vs. State of U.P, (2015) 2 SCC 377; vi. Commissioner of Police vs. Mukesh Kumar, 2013 SCC OnLine Del 1640.

12. Per Contra, Mr. Harish Kumar Garg, the learned counsel for the respondents, contended that the petitioner had only disclosed three criminal cases pending against him instead of four, in column no. 12 of the Attestation Form. Thereafter, the said Form was sent for verification to the District Magistrate, and upon verification of it, it was revealed that the petitioner had suppressed an important information of his involvement in FIR No. 338/2013 and Charge- Sheet No. 230/2013 having been filed against him while filling the Attestation Form. Thus, he submitted, the petitioner had violated the Paragraph 3 of the Attestation Form which requires that services of a personnel would be liable to be terminated if any factual information was suppressed or falsely furnished. The learned counsel further highlighted that the petitioner had also submitted an affidavit that stated that he had three cases pending against him and that if any information furnished by him was found to be misleading, he would be liable to be discharged without any notice or assigning any reasons.

13. Mr. Garg contended that upon an adverse police verification report by the District Magistrate, the respondents discharged the petitioner from Service vide Order dated 29.07.2015 as per Rule 52.[2] and 67.[2] of the Railway Protection Force Rules, 1987 (RPF Rules) for suppression of facts, which tantamounts to false declaration.

14. He submitted that the petitioner was not a fit candidate for the Force for having made a false declaration and violated the terms and conditions of the recruitment at the very initial stage of his appointment for the post of Constable.

15. The learned counsel, relying on the decision of the Supreme Court in Avtar Singh (supra), submitted that the Appointing Authority has a right to view and reject a candidate when there is a suppression of information regarding any criminal proceedings, arrest or pendency thereof, and that the ultimate decision of the Appointing Authority cannot be faulted. Taking the same view, he submitted, the respondents did not find the petitioner to be a suitable candidate for appointment in the Disciplined Force such as the RPSF.

16. Relying on another decision in Union Territory, Chandigarh Administration & Ors. vs. Pradeep Kumar & Anr., Civil Appeal NO. 67/2018, the learned counsel contended that acquittal in criminal proceedings does not automatically entitle the candidate for appointment to the relevant post, it still remains open to the employer to consider the antecedents and examine the suitability of the concerned personnel before making such an appointment.

17. Further argument was canvassed, relying on the decisions in Commissioner of Police, New Delhi and Anr. vs. Meher Singh, (2013) 7 SCC 685, and State of Madhya Pradesh & Ors. vs. Parvez Khan, (2015) 2 SCC 591, that a Candidate to be recruited to Police service must be of impeccable character and integrity and ones with criminal antecedents will not be fit in this category, whether acquitted or discharged, unless it is shown that it was an honourable acquittal.

18. The learned counsel strenuously contended that in toto there were four criminal cases pending against the petitioner. In the FIR NO. 119/2013 and 120/2013, the petitioner was acquitted on the basis of benefit of doubt. In FIR No. 338/2013, the petitioner was acquitted on the basis of a compromise, vide Order dated 11.08.2015. Further, the petitioner was convicted in FIR No. 22/2013 but released on probation under Sections 4 (1) & 12 of the Probation of Offenders Act, 1958. Thus, in totality of these circumstances, it cannot be said that the petitioner was honourably acquitted in all the criminal cases, which still casts a serious doubt upon his suitability for being appointed as a constable in RPF.

19. The learned counsel drew sustenance from the decision of Satish Chandra Yadav vs. Union of India &Ors., (2023) 7 SCC 536, and urged that the respondents did not consider the petitioner fit for appointment and rightly rejected his representation dated 26.09.2018 vide a speaking Order dated 22.07.2019.

20. Lastly, it was contended that the petitioner was only provisionally enrolled and not confirmed in service by the respondents and was discharged during the training period itself, thus, he cannot claim reinstatement or any consequential benefits. The petition being devoid of any merits is liable to be dismissed.

ANALYSIS AND FINDINGS

21. The present matter pertains to consideration of petitioner’s candidature for the post of Constable in RPSF, which was, at first, rejected by the respondents on account suppression of one of the FIRs, not disclosed by him in the Attestation Form submitted by him on 28.05.2014, in pursuance of the selection process of his recruitment to the abovesaid post.

22. The controversy involved in the present case pertains to four FIRs registered against the petitioner, the tabular chart below enlists the relevant particulars:

1) FIR No. 119/2013 under Sections 143, 448 & 380 of IPC Acquitted on the basis of benefit of doubt vide order dated 29.11.2017.

2) FIR No. 120/2013 under Sections 143, 448 & 427 of IPC Acquitted on the basis of benefit of doubt vide order dated 29.11.2017

3) FIR No. 22/2013 under Sections 332, 333 & 353 of IPC Convicted under Section 332 & 353 and benefit of Section 4(1) & 12 of Probation of Offenders Act, 1958 accorded vide order dated 15.05.2018

4) FIR No. 338/2013 under Sections 341, 323, 325 & 34 of IPC (Not disclosed by the petitioner in the Attestation Form) Acquitted vide Order dated 11.08.2015 in terms of a compromise reached between the parties.

23. It is relevant to note that vide Order dated 02.08.2017 passed by this Court in W.P. No. 7313/2016, titled Sh. Sunil Kumar Bijarnia vs. Union of India and Ors., the respondents were directed to re-examine the case of the petitioner after examining the principal allegation made against the petitioner in the said FIR and other FIRs, and to consider whether he has been convicted/acquitted and the effect in the present context, upon his making a representation. Accordingly, the petitioner submitted a representation dated 29.08.2017 and he was also called for personal hearing on 13.10.2017.

24. The petitioner submitted that that he had no knowledge about the pendency of FIR No. 338/2013 against him, however, he had disclosed all other three FIRs in the Attestation Form as he was aware of them. Nonetheless, in the said FIR, he had been acquitted on 11.08.2015 but his three other cases were pending trial. The IG-cum- CSC/RPSF on examining the said issue, came to the conclusion that though the petitioner had been acquitted in FIR No. 338/2013 but remaining three other criminal cases with respect to FIR Nos. 119/2013, 120/2013 and 22/2013 were still pending, thus, found the petitioner not fit for government service and cancelled his candidature for appointment into government service as a Constable in RPF/RPSF vide Order dated 30.10.2017. Subsequently, a representation made to Director/Secretary (ABE) Railway Board for review of the Order dated 30.10.2017, was also dismissed. The final Impugned Order was passed by Sh. V. K. Dhaka, PCSC/RPSF, Railway Board, on 22.07.2019, which citing suppression of facts and the nature of acquittals granted to the petitioner in the criminal cases pending against him, upheld his discharge.

25. The primary grievance of the petitioner is that once the respondents had taken the petitioner on probation upon his disclosure of the three FIRs bearing No. 119/2013, 120/2013 and 22/2013, his candidature could not subsequently have been rejected on the basis of the pendency of the same FIRs, as this did not constitute any fresh circumstance on the basis of such an opinion could be framed by the Competent Authority. Insofar the FIR bearing No. 338/2013 is concerned, the petitioner submitted that he genuinely had no knowledge about the said FIR being pending against him, and thus, he could not furnish its details in the Attestation Form. Hence, there was no mala fide on his part and the respondents failed to consider the same.

26. We may note, that during the period of probation, it is the subjective satisfaction of the employer which is necessary for termination or confirmation of the service of an individual. The probationer cannot claim a right to the post. More so, it is for the employer to set up various standards which according to it forms the eligibility criteria, the fulfilment of which is necessary for confirmation to the service.

27. In this regard, it is apposite to note the observations of this Court in the case of Maan Singh vs. Union of India, 2025 SCC OnLine Del 751, which are reproduced as under: “37. In this regard, we may also note the observation by the Calcutta High Court in the case of Dinesh Paswan v. Union of India, 2013 SCC OnLine Cal 1980[3], on the validity of termination of service during the period of probation. The relevant portion reads as under: “The law is now very well settled that a probationer has no substantive right to the post and he cannot complain if his service is terminated before confirmation. This is done as a protection on the part of the employer against selecting a wrong employee and then being required to continue with him for the rest of the service period. The Supreme Court had said that they are „taken on trial‟ and that is why there is a period of probation which after successful completion is followed by confirmation. If during the period of probation the appointee is not found fit for permanent retention the employer is within his power to terminate the service of the probationer.......”

28. From the above-noted decision, it emerges that it is the right of the employer to take an informed decision, if the probationer has complied with the eligibility criteria or not for being confirmed in service, and the same cannot be curtailed. The employer is well within its power to terminate the service of an individual, if any of the parameters of the eligibility criteria are not met by a probationer.

29. The question, thus, for determination before this Court is whether in the prevailing circumstances, the non-disclosure of the fourth FIR in Attestation Form would amount to concealment as per Paragraph 3 of the Attestation Form and thereby, contravening Rule 52.[2] and 67.[2] of the RPF Rules.

30. In this regard, it would be apposite to refer to Paragraph 3 of the Attestation Form which is recorded as under: “if the fact that false information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.”

31. Rule 52.[2] and 67.[2] of RPF Rules are also necessary to be referred to, which are extracted herein below: “52.2. Where after verification, a recruit is not found suitable for the Force, he shall not be appointed as a member of the Force. xxxx 67.[2] A direct recruit selected for being appointed as enrolled member, till such time he is not formally appointed to the Force, is liable to be discharged at any stage if the Principal Chief Security Commissioner for reasons to be recorded in writing, deems it fit so to do in the interest of the Force.”

32. From the aforesaid, it emerges that the appointment of a recruit to the Force is contingent upon a verification process, and a direct recruit, before formal selection can be discharged at any stage if deemed necessary in the interest of the Force.

33. In the present case, the respondents found that the petitioner’s failure to disclose in the Attestation Form the FIR No. 338/2013 under Section 323, 341, 325 and 34 of the IPC pending against him, amounted to violation of provisions contained in Paragraph 3 of the Attestation Form by suppressing the factual information. Following the Railway Board’s Standing Instructions, Ministry of Railways, issued vide Notification No.88/SEC(E)/RC-3/6(IR)(TRG) dated 16.11.2005, which provides that furnishing of false information or suppression of any factual information in the attestation form for the purposes of character and antecedent verification shall render the candidate unfit for appointment in the Force, his candidature was rendered ‘Unfit’ for appointment in the Force.

34. At this stage, we may note the legal position with respect to verification of the character and antecedents of a candidate. It is apposite to quote the decision of the Supreme Court in Avtar Singh (supra), wherein it was held as under: “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.”

35. In Daya Shankar Yadav vs. Union of India and Ors., (2010) 14 SCC 103, while referring to the Judgment in Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, (2003) 3 SCC 437, the Supreme Court observed as under:- “In Kendriya Vidyalaya Sangathan v. Ram Ratan Yadav, this Court held that the purpose of requiring an employee to furnish information regarding prosecution/conviction etc. in the verification form was to assess his character and antecedents for the purpose of employment and continuation in service; that suppression of material information and making a false statement in reply to queries relating to prosecution and conviction had a clear bearing on the character, conduct and antecedents of the employee; and that where it is found that the employee had suppressed or given false information in regard to matters which had a bearing on his fitness or suitability to the post, he could be terminated from service during the period of probation without holding any inquiry. This Court also made it clear that neither the gravity of the criminal offence nor the ultimate acquittal therein was relevant when considering whether a probationer who suppresses a material fact (of his being involved in a criminal case, in the personal information furnished to the employer), is fit to be continued as a probationer”.

36. Undoubtedly, the verification of character and antecedent is one of the important criteria to assess ‘Suitability’ of the candidate, and it is the prerogative of an employer to adjudge antecedents of an individual. Nonetheless, to assess the suitability, the employer must have regard to objective criteria and give due consideration to all relevant facts. Concealment of a fact, that is, involvement in a criminal case leads to withholding of relevant information while filling the attestation form. Every employer presupposes a high level of integrity of a candidate and any deceit in truthful disclosure of information may not be tolerated by the employee.

37. In the present case, it is not disputed that the petitioner had disclosed in the Attestation Form, the three criminal cases pending against him. Out of which, in FIR No. 119/2013 and FIR NO. 120/2013, he was acquitted on 29.11.2017, and in FIR No. 22/2013, he was convicted and was given the benefit of Probation of Offenders Act, 1958. However, the petitioner withheld the information regarding the pending fourth criminal case against him though he was subsequently acquitted in this case. The petitioner, to explain the reason for not disclosing the fourth case, has submitted that he had no knowledge about the same. He further clarified that he was informed by the police that bail had been granted to him in FIR No. 120/2013, wherein the petitioner’s surety was one Sunil Kumar Sen. It is to be noted that in FIR No. 338/2013 also, the same individual, namely Sunil Kumar Sen, stood surety for the petitioner. It is not believable that the petitioner was bailed out without his knowledge. More so, no person would attempt to stand as a surety for an accused without the knowledge of the accused person.

38. Thus, there is no force in the submission of the petitioner that he was not aware that he was bailed out and that Sunil Kumar Sen stood as surety for him in FIR No. 338/2013. It does not appeal to reason why police officials of the concerned Police Station would bail out an accused without his knowledge and above all arrange a surety for him.

39. Be that as it may, the Supreme Court in Avtar Singh (supra) in paragraphs 38.5, 38.[6] and 38.[8] has unequivocally held that the employer retains the right to consider antecedents and make an independent assessment of suitability of a candidate even where an employee has made truthful declarations or was unaware of a pending case, let alone in instances where there appears to be willful suppression. This discretionary power assumes greater significance in the context of appointments to disciplined forces where impeccable character and integrity are paramount considerations.

40. Furthermore, from the Order dated 22.07.2019 passed by Sh. V.

Court in WP(C) No. 5623/2019 dated 22.05.2019, it emerges that a detailed order has been passed taking into consideration all the three previous FIRs as well as the concealment of the fourth FIR, observing that even the acquittals were not honorable; in FIR No. 119/2013 and 120/2013, the petitioner was acquitted by granting him benefit of doubt, and in FIR No. 338/2013, acquittal was pursuant to a compromise. Therefore, Mr. V.K. Dhaka, found the petitioner ‘unfit’ to be appointed as a Constable in the disciplined Force. The relevant extract of the Impugned Order is produced as under:- “In the instant case also, petitioner has been acquitted either on basis of benefit of doubt or on compromised ground. He was not honorably acquitted. Hence, in the light of the this observation the petitioner is unfit to be appointed as Constable in the disciplined force. In view of above observations, I find that the matter of his suppression regarding his criminal case was deliberate with an intention to get the Government job and not due to any misconception. In the light of the observations of Hon'ble Apex Court in the case of Avtar Singh Vs Union of India & Ors and in CIVIL APPEAL No. 67 OF 2018 (Arising out of SLP(C) No.20750 of 2016), it is established that the antecedents of the petitioner are not proper for appointment in a disciplined Force like RPSF. Hence, the candidature of Shri Sunil Kumar Bijaraniya S/o Shri Onkar Mal is not considered for appointment in RPSF and his representation dated 26.09.2018 is hereby rejected.”

41. It is further relevant to note that all the four criminal cases were registered against the petitioner in the same year, that is, in 2013. More so, it was also highlighted that in case FIR No. 22/2013, the petitioner had been convicted for offences punishable under Section 332 & 353 of the IPC, wherein he was involved in physical violence against Police Personnel, but was released on probation for a period of one year and granted benefit of Section 12 of the Probation of Offenders Act, 1958.

42. We are mindful of the fact that for an individual, who intends to be enrolled in a Force, different standards are expected than from an individual to be appointed in other Services. For an individual to be appointed in RPSF, a responsibility would be cast upon him to maintain the law and order situation, assisting the RPF in protecting the passengers and the property of the Railways.

43. The decision in Pawan Kumar (supra), on which the petitioner has relied upon, is distinguishable on facts and circumstances inasmuch as in the said case, there was only a single FIR registered against the individual, registered post the submission of the application form and there was a clean/honourable acquittal in the criminal proceedings that followed the same. In contrast, the petitioner in the present case was involved in four FIRs, all registered prior to the submission of the Attestation form, out of which in two FIRs, his acquittal was on the ground of benefit of doubt, and in the third FIR he was acquitted on the basis of a compromise. A similar factual situation was in Joginder Singh (supra) and in Mohammed Imran (supra). Moreover, in the decision of Ravindra Kumar (supra) also, the petitioner therein had only one FIR against him.

44. In view of the above, we do not find any merit in the petition. The same is hereby dismissed.

45.

SHALINDER KAUR, J. NAVIN CHAWLA, J. MAY 19, 2025 Click here to check corrigendum, if any