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grant the posting in order of preference in the interest of justice; and

(ii) Direct the Respondent No.1 to implement the Order dated 11.02.2021 passed by this Hon"ble Tribunal in O.A. No.571/2020 on the ground of parity as the applicants are identically situated as the applicants in O.A. No.571/2020.

(iii) Direct the Respondents to post the Applicants at AIIMS Jodhpur as per their first preference."

2. In support of his claim, the applicant states that in fact while the selection process was underway, on 06.06.2018 itself the applicant suo motu, preferred a representation informing about his involvement in an FIR in the year 2012, and that he stood acquitted in the FIR by the judgment dated 07.04.2014 by the competent Criminal Court at Karnal. He further adds that there was in fact no specific reason for not giving this information in the attestation form, except that it was a bonafide mistake, as he belongs to a rural background and it was his thought process that since he stands already acquitted in the said FIR, he had every reason to believe that he need not declare the same in the attestation form. He further adds that on verification done by the respondents, when this fact came to light, the applicant extended every possible cooperation that was needed at his end. He draws

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support from a judgment rendered by the Hon"be High Court of Delhi in Writ Petition(C) No.2219/2023 decided as recently as on 10.03.2023 which squarely covers the present facts.

3. Learned counsel for the applicant further places reliance upon the judgment of the Hon"ble Apex Court in Avtar Singh v. Union of India (2016) 8 SCC 471,

wherein it is urged that in spite of concealment of facts regarding involvement of the petitioner in an FIR, the authority concerned was required to apply an objective criterion and consider all attending facts and circumstances like age of the applicant, nature of the offence and his antecedents before passing an order of termination. The respondents are stated to have proceeded only on the basis that there was concealment of information without considering that there had been no further evaluation as to the nature of offence, antecedents etc. The attestation form is also stated to be non specific as after posing a question regarding registration of FIR, it did not have any question to elicit if the applicant had been acquitted.

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4. Per contra learned counsel for the respondents vehemently opposes the OA and relies on the law laid down by the Hon"ble Apex Court in Satish Chandra'

case (supra). He further states that the ground taken by the applicant that he belongs to a rural background cannot come to his rescue as the applicant is old enough, while he is trying to secure a job with the respondents the same cannot be the reason for not declaring his involvement in an FIR in which he was acquitted after facing trial. He adds that in view of the observations made by the Hon"ble Apex Court in judgment dated 21.07.2016 of a larger Bench in SLP

(C) No.20525/2011 -Avtar Singh v. UOI and Others, the competent authority issued fresh guidelines vide standing order 398/2016 for deciding cases of provisionally selected candidates in Delhi Police, who have disclosed their involvement in criminal cases/acquittal/discharge etc. or concealed the same while furnishing information in attestation form for the purpose of verification of character and antecedents. Further, there is no question of acquittal and conviction in the criminal case. It was clearly mentioned (in Hindi language) at the top of the attestation form that

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furnishing of any false information or concealing any fact will be treated as a disqualification. As such the stand of the respondents is justified.

5. Heard learned counsel for the parties. In order to decide this OA it is reiterated that:

The applicant participated in the said examination and was duly selected. An FIR was pending against him although he was acquitted before the date when the attestation form was filled and the selection process was initiated. This Tribunal on 02.02.2023 while dismissing O.A. No.1872/2022 has exhaustively dealt with the issue raised in the present Original Application. However, the applicants assailed the said judgment before the Hon"ble High Court of Delhi in Writ Petition No.2219/2023, wherein the Hon"ble High Court vide judgment dated 10.03.2023 reversing the judgement of this Tribunal, has once again elaborately dealt with the issue in hand and taken note of the judgment rendered by the Hon"ble Apex Court in Satish Chandra Yadav

v. Union of India and Others, reported in (2022) SCC Online SC 532 and held that the case of the applicant be examined in the light of the judgment of

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the Apex Court in Avtar Singh v. Union of India

(2016) 8 SCC 471. For the sake of clarity and better appreciation relevant portion of the judgement of Hon"ble High Court of Delhi dated 10.03.2023 is reproduced herein below:-

"14. It is imperative to note that the aforesaid broad guidelines/conclusions referred in para 69 by the Hon"ble Supreme Court in Satish Chandra"s case in no manner overrule the yardsticks as laid down in Avtar Singh"s case as reflected in para 38.1 to 38.11 above, which is a three Judge Bench judgment. The broad principles have been laid down considering the fact that different courts enunciated different principles over a period of time.

The observations made by the Hon"ble Supreme Court in para 31 in Avtar Singh v. Union of India (supra) are pertinent to be considered and may be reproduced:

"31. Coming to the question whether an employee on probation can be discharged/refused appointment though he has been acquitted of the charge(s), if his case was not pending when form was filled, in such matters, employer is bound to consider grounds of acquittal and various other aspects, overall conduct of employee including the accusations which have been levelled. If on verification, the antecedents are otherwise also not found good, and in number of cases incumbent is involved then notwithstanding acquittals in a case/cases, it would be open to the employer to form opinion as to fitness on the basis of material on record. In case offence is petty in nature and committed

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at young age, such as stealing a bread, shouting of slogans or is such which does not involve moral turpitude, cheating, misappropriation, etc. or otherwise not a serious or heinous offence and accused has been acquitted in such a case when verification form is filled, employer may ignore lapse of suppression or submitting false information in appropriate cases on due consideration of various aspects."

15. It is also imperative to point out that in Pawan Kumar v. Union of India (supra), the appeal was directed against the judgment and order passed by the Division Bench of the High Court of Delhi upholding the order of discharge taking recourse to Clause 9(F) of the employment notice read with Rule 67.2 of Railway Protection Force Rules, 1987. In the aforesaid case, the FIR under Section 148/149/323/506/356/ IPC was registered against the appellant on 04.04.2011, the charge-sheet was filed on 13.04.2011 and the appellant was acquitted on 12.08.2011. The aforesaid facts were not disclosed by the appellant when he filled the attestation form on 27.05.2014 with reference to the columns relating to his prosecution and was discharged from the service on 24.04.2015. The case was admittedly not pending when the process of selection was initiated vide employment notice dated 27.02.2011. The appellant therein also incorrectly disclosed the information with reference to the columns relating to arrest/prosecution and the attestation form also contained a warning that furnishing of false information or suppression of any factual information in the attestation form would be a disqualification and is likely to render the candidate unfit for employment under government.

After considering the legal position laid down in Avtar Singh (supra) which was given by a three-Judge Bench, the Hon"ble Supreme

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Court in Pawan Kumar (supra) held in para 13 as under:-

"13. What emerges from the exposition as laid down by this Court is that by mere suppression of material/false information regardless of the fact whether there is a conviction or acquittal has been recorded, the employee/recruit is not to be discharged/terminated axiomatically from service just by a stroke of pen. At the same time, the effect of suppression of material/false information involving in a criminal case, if any, is left for the employer to consider all the relevant facts and circumstances available as to antecedents and keeping in view the objective criteria and the relevant service rules into consideration, while taking appropriate decision regarding continuance/suitability of the employee into service. What being noticed by this Court is that mere suppression of material/false information in a given case does not mean that the employer can arbitrarily discharge/terminate the employee from service."

It was further held that the Authority therein had not considered the scope and ambit of Rule 52 of the Railway Protection Post Rules, 1987 that after verification of the character/antecedents of the incumbent it will be an obligation upon the authority to examine as to whether the incumbent/recruit is suitable to become a member of the Force and without appreciation in a mechanical manner confirmed the order of discharge. It was also held that as observed in Avtar Singh"s case (supra), all matters cannot be put in a straitjacket and a degree of flexibility and discretion vests with the Authorities which must be exercised with care and caution taking all the facts and circumstances

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into consideration, including the nature and type of offence. The appellant was accordingly directed to be reinstated to the service on the post of Constable on which he was selected.

16. It may also be pointed out that while referring to various cases decided by the Hon"ble Supreme Court, a reference was also made in Avtar Singh (supra) to a three Judge Bench decision of the Hon"ble Supreme Court in TS Vasudavan Nair v. Vikram Sarabhai Space Centre, 1988 Supp. SCC 795, which related to non disclosure of conviction in a case registered under the Defence of India Rules for having shouted slogans on one occasion. The three Judge Bench in the aforesaid case held that non disclosure of aforesaid case was not a material suppression on the basis of which employment could have been denied and the person adjudged unsuitable for being appointed as an LDC.

17. xx xx xx

18. We are of the considered view that keeping in perspective the guidelines as laid down in Avtar Singh (supra), the competent authority in the present case was also bound to consider the suitability of the petitioner having regard to the trivial nature of offence and the fact that the charges were neither grave nor involved moral turpitude, prior to terminating his services. The same is necessary to ensure that inquiry done by the Authority concerned in „fair and reasonable" as contemplated even in Satish Chandra"s case (supra). In the absence of said exercise being undertaken, the fact of suppression or concealment of involvement even in trivial cases would lead to automatic cancelling of candidature or termination of services, in violation of guidelines envisaged in para 38.4.1 as laid down in Avtar Singh"s case (supra), referred to above.

19. xx xx xx

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20. For the foregoing reasons, the order passed by the Tribunal is set aside along with order passed by the respondents terminating the services of the petitioner. Respondents are accordingly directed to reinstate the petitioner in service with all notional benefits including pay, seniority and other consequential benefits etc. Considering the facts and circumstances, no order as to costs."

6. For the reasons stared herein above, the show cause notice dated 09.07.2018 and order dated 19.09.2018 are quashed. Accordingly, this OA is disposed of with a direction to the respondents to examine the case of the applicant in light of the law laid down by the Hon"ble Apex Court in Avtar Singh's case

(supra). In case the applicant is found to be eligible and fit for being employed, he would be offered appointment and extended other benefits notionally in terms of his merit position in the merit list. The said exercise be completed within a period of twelve weeks from the date of receipt of a certified copy of this order. The OA is disposed of in the aforementioned terms.

7. No order as to costs.

(Pratima K Gupta) (Anand Mathur) Member(J) Member(A)

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