The Allahabad High Court has ordered the appointment of a person to the post of judicial officer of HJS cadre. He was denied appointment to this post about seven years ago due to allegations of espionage.
The Division Bench of Justice Saumitra Dayal Singh and Donadi Ramesh passed this order while hearing a petition filed by Pradeep Kumar.
The petition has been filed for the following relief:-
“(a) Issue a writ, order or direction in the nature of certiorari quashing the order of the State Government dated 26.09.2019 and the order of High Court on administrative side dated 09.07.2020;
(b) Issue a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioner as Additional District Judge in UP Higher Judicial Service in pursuance of his selection in UP Higher Judicial Service (Direct Recruitment) Examination-2016, within a period to be specified by the Court, with all consequential benefits with effect from the date from which other selected candidates have been appointed”.
The facts of the case are that the petitioner applied for selection to the UP Higher Judicial Service under the UP Higher Judicial Service (Direct Recruitment) Examination, 2016.
In that application, the petitioner disclosed the facts pertaining to Session Trial under Sections 3, 6, 9 of Official Secrets Act & Section 120-B IPC and Session Trial under Section 124-A IPC, arising out of Case at Police Station Kotwali, District Kanpur Nagar.
It was thus disclosed that the petitioner was charged and tried at those session trials. It was also disclosed, vide judgement and order dated 06.03.2014, passed by the Additional Sessions Judge, Kanpur Nagar, the petitioner was acquitted, at those trials.
The petitioner participated in the selection process. He was declared successful. He secured merit position twenty-seven. On 18.08.2017, the High Court forwarded to the State Government the list of selected candidates and recommended their appointments. Appointment letter was not issued to the petitioner.
That order was not challenged. Thereafter, the matter was considered by the State Government. Vide Office Memorandum dated 26.09.2019, the State Government has declined to offer appointment to the petitioner. That Office Memorandum has been communicated to the petitioner, by the High Court, vide its further communication dated 09.07.2020. Hence the writ petition.
Submission of the Senior Counsel for the petitioner is, other than the fact occurrence of two criminal cases lodged against the petitioner, leading to two sessions trials (noted above) faced by the petitioner, there is no adverse circumstance existing or considered by the State Government in declining to issue the appointment letter to the petitioner. As to the criminal trials faced by the petitioner, it has been strenuously urged that the entire prosecution story was concocted. It has been found to be false by the trial court, in its judgement and order dated 06.03.2014.
On the other hand, the Additional Chief Standing Counsel contends that the allegations levelled against the petitioner are most serious. The petitioner was a spy and worked for an enemy nation. He was apprehended on a joint operation of the Special Task Force (STF) of the State Government and Military Intelligence. He was charged under the Official Secrets Act. Though the criminal trials failed, the State Government had enough material to reach a conclusion that the petitioner’s character could not be certified. He was wholly undeserving of the appointment.
The Court observed that,
At present, other than the self-same material that was considered at the trial faced by the petitioner, no other or further material has come into existence and no other or further material has been considered by the State authorities, to not certify the character of the petitioner. Mere repetition of words or reiteration of the suspicion or belief, and/or continued reliance on the self-same material that gave rise to the criminal trial, is irrelevant. In absence of any foundational or basic relevant fact being proven or established before the trial Court, on strength of such material, mere reliance on the seriousness of the charge levelled, causes no consequential legal effect.
Next, it cannot be denied that the petitioner faced a heavy charge of espionage, and the matter required careful consideration by the State authorities, at the same time, it remained material and relevant that the petitioner was “honourably acquitted” at the criminal trial, with no element of truth found in the prosecution story on most fundamental/vital aspects of the allegation that had a direct bearing on the petitioner’s moral character.
Other than the fact of his arrest proven, the prosecution could neither establish that the documents/copies of alleged maps were confidential nor that any secret document had been recovered from the petitioner nor that the documents produced at the trial were the same as had been recovered from the petitioner nor that the petitioner had called or spoken or met any foreign spy/agent or person nor it was proven that the petitioner acted inimical to the interest of the country nor that he was part of any conspiracy and nor that he had committed any offence under Section 124-A IPC.
We recognize that the standard of proof in a criminal case is proof beyond all reasonable doubt whereas the proof in a civil proceeding or in a proceeding involving civil rights is one of preponderance of probabilities. At the same time, it also cannot be said, though the petitioner has been “honourably acquitted” at the criminal trial, the ‘stigma’ arising from that allegation of criminal offence (made against the petitioner), would itself cause or result in adverse civil consequences.
The Court said that,
No material exists with the State respondents to reach a conclusion that the petitioner may have worked for any foreign intelligence agency. The fact that he may have been on the “radar” of the Indian intelligence agencies, itself means nothing. To be suspected of an offence is not an offence or a scar on a citizen’s character. Unless objective material was shown to exist with the authorities for that suspicion to continue to exist, no adverse civil consequence may ever arise against a citizen, based on such a lingering suspicion, that too in the face of the result of an order of “honourable acquittal” at the criminal trial.
Unless a citizen is reasonably suspected to be involved in an illegal or other activity that may invite adverse civil consequences, the fact that an intelligence agency or police authority may opine -purely subjectively and thus suspect that such a citizen had indulged in any illegal nature of activity or to have performed such act, without any supportive objective material, may remain a wholly inactionable belief, therefore extraneous to the issue of character certification of the concerned citizen.
To say, a citizen would continue to be suspected of an offence alleged and therefore be deprived of fruits of hard labour and “honourable acquittal” earned by him, would be, to not only vicariously penalise an innocent citizen after his innocence has been established in a Court of law, but it would successfully militate against the rule of law itself, guaranteed by the Constitution. A criminal trial begins with a presumption of innocence of the person charged. Once, the charged person is “honourably acquitted”, after full appraisal of all prosecution evidence, that presumption is confirmed and sealed, by judicial pronouncement made. None may look beyond it, the Court said.
“For the reasons noted above, we find, the respondents have wrongly continued to entertain a suspicion about the character of the petitioner. They also do not have in their possession any credible or actionable material. Only the fact that the petitioner was charged with a serious offence has prevented the State authorities from acting with objectivity. We find no reason exists with the respondents to continue to entertain a belief or suspicion that the petitioner is a person who lacks good moral character to hold judicial office. The unfortunate circumstance of the petitioner having faced two criminal trials, cannot be cited as that reason.
The petitioner was “honourably acquitted” at two criminal trials faced by him and no element of truth was found in the prosecution story, in either case. Those orders have attained finality. On all vital aspects of allegation of violation of Official Secrets Act, we find that the lingering sense of suspicion with the State authorities, is to be equated with figment of imagination and nothing more”, the Court further observed while allowing the petition.
“The communication dated 26.09.2019 is quashed. Mandamus is issued to respondent no 1 to ensure Character Verification of the petitioner within a period of two weeks. Consequentially, upon completion of all formalities, appointment letter may be issued to the petitioner not later than 15th January 2025. The petitioner may be appointed against existing vacancies, as on date. This modified relief we have granted because though selected against vacancy of 2017, neither those vacancies survive in the light of the provision of UP HJS Rules and also, the petitioner does not have any work experience in the HJS cadre for the last seven years. Grant of larger relief may be detrimental both to the progression of the petitioner in service and also to the working of the cadre and its morale”, the Court ordered.
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The Division Bench of Justice Saumitra Dayal Singh and Donadi Ramesh passed this order while hearing a petition filed by Pradeep Kumar.
The petition has been filed for the following relief:-
“(a) Issue a writ, order or direction in the nature of certiorari quashing the order of the State Government dated 26.09.2019 and the order of High Court on administrative side dated 09.07.2020;
(b) Issue a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioner as Additional District Judge in UP Higher Judicial Service in pursuance of his selection in UP Higher Judicial Service (Direct Recruitment) Examination-2016, within a period to be specified by the Court, with all consequential benefits with effect from the date from which other selected candidates have been appointed”.
The facts of the case are that the petitioner applied for selection to the UP Higher Judicial Service under the UP Higher Judicial Service (Direct Recruitment) Examination, 2016.
In that application, the petitioner disclosed the facts pertaining to Session Trial under Sections 3, 6, 9 of Official Secrets Act & Section 120-B IPC and Session Trial under Section 124-A IPC, arising out of Case at Police Station Kotwali, District Kanpur Nagar.
It was thus disclosed that the petitioner was charged and tried at those session trials. It was also disclosed, vide judgement and order dated 06.03.2014, passed by the Additional Sessions Judge, Kanpur Nagar, the petitioner was acquitted, at those trials.
The petitioner participated in the selection process. He was declared successful. He secured merit position twenty-seven. On 18.08.2017, the High Court forwarded to the State Government the list of selected candidates and recommended their appointments. Appointment letter was not issued to the petitioner.
That order was not challenged. Thereafter, the matter was considered by the State Government. Vide Office Memorandum dated 26.09.2019, the State Government has declined to offer appointment to the petitioner. That Office Memorandum has been communicated to the petitioner, by the High Court, vide its further communication dated 09.07.2020. Hence the writ petition.
Submission of the Senior Counsel for the petitioner is, other than the fact occurrence of two criminal cases lodged against the petitioner, leading to two sessions trials (noted above) faced by the petitioner, there is no adverse circumstance existing or considered by the State Government in declining to issue the appointment letter to the petitioner. As to the criminal trials faced by the petitioner, it has been strenuously urged that the entire prosecution story was concocted. It has been found to be false by the trial court, in its judgement and order dated 06.03.2014.
On the other hand, the Additional Chief Standing Counsel contends that the allegations levelled against the petitioner are most serious. The petitioner was a spy and worked for an enemy nation. He was apprehended on a joint operation of the Special Task Force (STF) of the State Government and Military Intelligence. He was charged under the Official Secrets Act. Though the criminal trials failed, the State Government had enough material to reach a conclusion that the petitioner’s character could not be certified. He was wholly undeserving of the appointment.
The Court observed that,
At present, other than the self-same material that was considered at the trial faced by the petitioner, no other or further material has come into existence and no other or further material has been considered by the State authorities, to not certify the character of the petitioner. Mere repetition of words or reiteration of the suspicion or belief, and/or continued reliance on the self-same material that gave rise to the criminal trial, is irrelevant. In absence of any foundational or basic relevant fact being proven or established before the trial Court, on strength of such material, mere reliance on the seriousness of the charge levelled, causes no consequential legal effect.
Next, it cannot be denied that the petitioner faced a heavy charge of espionage, and the matter required careful consideration by the State authorities, at the same time, it remained material and relevant that the petitioner was “honourably acquitted” at the criminal trial, with no element of truth found in the prosecution story on most fundamental/vital aspects of the allegation that had a direct bearing on the petitioner’s moral character.
Other than the fact of his arrest proven, the prosecution could neither establish that the documents/copies of alleged maps were confidential nor that any secret document had been recovered from the petitioner nor that the documents produced at the trial were the same as had been recovered from the petitioner nor that the petitioner had called or spoken or met any foreign spy/agent or person nor it was proven that the petitioner acted inimical to the interest of the country nor that he was part of any conspiracy and nor that he had committed any offence under Section 124-A IPC.
We recognize that the standard of proof in a criminal case is proof beyond all reasonable doubt whereas the proof in a civil proceeding or in a proceeding involving civil rights is one of preponderance of probabilities. At the same time, it also cannot be said, though the petitioner has been “honourably acquitted” at the criminal trial, the ‘stigma’ arising from that allegation of criminal offence (made against the petitioner), would itself cause or result in adverse civil consequences.
The Court said that,
No material exists with the State respondents to reach a conclusion that the petitioner may have worked for any foreign intelligence agency. The fact that he may have been on the “radar” of the Indian intelligence agencies, itself means nothing. To be suspected of an offence is not an offence or a scar on a citizen’s character. Unless objective material was shown to exist with the authorities for that suspicion to continue to exist, no adverse civil consequence may ever arise against a citizen, based on such a lingering suspicion, that too in the face of the result of an order of “honourable acquittal” at the criminal trial.
Unless a citizen is reasonably suspected to be involved in an illegal or other activity that may invite adverse civil consequences, the fact that an intelligence agency or police authority may opine -purely subjectively and thus suspect that such a citizen had indulged in any illegal nature of activity or to have performed such act, without any supportive objective material, may remain a wholly inactionable belief, therefore extraneous to the issue of character certification of the concerned citizen.
To say, a citizen would continue to be suspected of an offence alleged and therefore be deprived of fruits of hard labour and “honourable acquittal” earned by him, would be, to not only vicariously penalise an innocent citizen after his innocence has been established in a Court of law, but it would successfully militate against the rule of law itself, guaranteed by the Constitution. A criminal trial begins with a presumption of innocence of the person charged. Once, the charged person is “honourably acquitted”, after full appraisal of all prosecution evidence, that presumption is confirmed and sealed, by judicial pronouncement made. None may look beyond it, the Court said.
“For the reasons noted above, we find, the respondents have wrongly continued to entertain a suspicion about the character of the petitioner. They also do not have in their possession any credible or actionable material. Only the fact that the petitioner was charged with a serious offence has prevented the State authorities from acting with objectivity. We find no reason exists with the respondents to continue to entertain a belief or suspicion that the petitioner is a person who lacks good moral character to hold judicial office. The unfortunate circumstance of the petitioner having faced two criminal trials, cannot be cited as that reason.
The petitioner was “honourably acquitted” at two criminal trials faced by him and no element of truth was found in the prosecution story, in either case. Those orders have attained finality. On all vital aspects of allegation of violation of Official Secrets Act, we find that the lingering sense of suspicion with the State authorities, is to be equated with figment of imagination and nothing more”, the Court further observed while allowing the petition.
“The communication dated 26.09.2019 is quashed. Mandamus is issued to respondent no 1 to ensure Character Verification of the petitioner within a period of two weeks. Consequentially, upon completion of all formalities, appointment letter may be issued to the petitioner not later than 15th January 2025. The petitioner may be appointed against existing vacancies, as on date. This modified relief we have granted because though selected against vacancy of 2017, neither those vacancies survive in the light of the provision of UP HJS Rules and also, the petitioner does not have any work experience in the HJS cadre for the last seven years. Grant of larger relief may be detrimental both to the progression of the petitioner in service and also to the working of the cadre and its morale”, the Court ordered.
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