High Court
Case Details
Court No. - 34 Case :- WRIT - A No. - 5150 of 2022 Petitioner :- Shrawan Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Bal Mukund Singh,Prabhakar Awasthi Counsel for Respondent :- C.S.C. Hon'ble Saurabh Shyam Shamshery,J. Petitioner is seeking following relief :- "i) Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and to quash the impugned order dated 22.2.2022 passed by the State Government, respondent no.1 (Annexure No.14 to the writ petition). ii) Issuing a writ, order or direction in the nature of Mandamus commanding the respondents to forthwith confer appointment in favour of petitioner on the post of Assistant Prosecution Officer on the basis of select list dated 01.04.2019 wherein petitioner has been found selected which exercise may undertaken without any delay."
Legal Reasoning
Heard Shri Prabhakar Awasthi, learned counsel for petitioner and Shri Vishal Singh, learned Standing Counsel for State.
Decision
The earlier writ petition bearing Writ Petition No.8362 of 2020 was disposed of by this Court, by order dated 8.10.2020 with following directions :- "In view of the aforesaid, without going into the merits of the claim of the petitioner, it is hereby provided that respondent no. 3 shall consider and decide the representation of the petitioner without being influenced by any observation made by this Court in this order on its own merits, preferably within a period of three months from the date of production of self verified copy of this order. It is made clear that this Court has not examined the merits of the claim of the petitioner, which shall be looked into by the respondent no. 3 while deciding the claim of the petitioner. With the aforesaid observation/direction, this writ petition is finally disposed of. No order as to costs." The impugned order is passed in pursuance of above referred order whereby the authorities after considering the Avtar Singh (Supra) held that the offences against petitioners are of serious in nature and accordingly, rejected the claim of petitioners. Shri Prabhakar Awasthi, learned counsel for petitioner submits that petitioner has disclosed before the authorities about two First Information Reports, lodged against petitioner. The first First Information Report bearing Case Crime No.139 of 2013 was lodged under Sections 120B, 302, 201, 504 and 506 IPC wherein after investigation, final report was submitted wherein protest petition was also filed, however, no one appear in support of such protest petition, accordingly, it was rejected and final report was accepted. Learned counsel further submits that second First Information Report bearing Case Crime No.303 of 2010, under Sections 147, 323, 504, 506, 392 IPC wherein allegations were made against the five persons including the petitioner. However, after investigation, the charge-sheet qua to petitioner was filed only under Sections 147, 323, 504 and 506 IPC. Petitioner has challenged the above referred criminal proceedings before this Court and by order dated 14.12.2011, interim order was passed that no coercive action shall be taken against the petitioner as well as other co-accused. Learned counsel further submits that in the said case, alleged eye- witnesses have given an affidavit before Investigating Officer that they don't support the prosecution case. However, these circumstances were not considered in the light of Avtar Singh (Supra) by respondents' authorities and erroneously rejected the claim of petitioner by impugned order dated 3.3.2020. It is further submitted that as the charge-sheet was filed against petitioner only for the offence under Sections 147, 323, 504 and 506 IPC, therefore, finding in the impugned order that petitioner was involved for the offence under Section 392 IPC is contrary to the records. He further relied upon the principles as mentioned in the Avtar Singh (Supra) that charges against petitioner are of trivial nature. Petitioner has not suppressed any information and considering the facts and circumstances of case, in the light of Avtar Singh (Supra), petitioner could be allowed to join the services of police and direction be passed to send him for the purpose of training. Shri Vishal Singh, learned Standing Counsel has not disputed the submission on fact, however, submits that considering that petitioner is involved in a criminal case, therefore, he is not suitable for post in question as well as on directions of this Court, the Additional Chief Secretary, after taking note of Avtar Singh (Supra), rejected the representations of petitioner that he is involved in a serious offence. Undisputedly, in the present case, two F.I.Rs were lodged against petitioner which was duly disclosed in the Attestation Form. In one case, Final Report was submitted which was accepted as the complainant has not pressed the protest petition. So far as other criminal case is concerned, though First Information Report was lodged under Sections 147, 323, 504, 506 and 392 IPC, however, after investigation, charge sheet was filed qua to petitioner only under Sections 147, 323, 504 and 506 IPC and not under Section 392 IPC, permissible for a term which may extend to 10 years. In Avtar Singh (Supra) as well as judgment passed by this Court in Writ A No.4577 of 2019 (Sonu Yadav vs. State of Uttar Pradesh and 5 others); decided on 8.1.2021 it was held that in case, charges are of trivial nature, the employer could consider the case and may allow to join the service-in-question. In these circumstances, the nature of allegation against petitioner appears to be trivial in nature and that presently, application to quash the proceedings is pending before this Court, therefore, applying the principles enumerated in the Avtar Singh (Supra) as well as in Sonu Yadav (Supra), the order impugned dated 22.2.2022, passed by respondent no.1 - Additional Chief Secretary, is set aside and respondents' authorities are, accordingly, directed to permit the petitioner to join service on the post of Assistant Prosecution Officer on basis of select list dated 1.4.2019, if there is no legal impediment. Accordingly, the present writ petition is allowed. Order Date :- 8.4.2022 Rishabh [Saurabh Shyam Shamshery, J.] Digitally signed by RISHABH KUMAR Date: 2022.04.19 11:52:47 IST Reason: Location: High Court of Judicature at Allahabad