Rajasthan High Court - Jodhpur
Akashdeep Morya vs The Raj.High Court,Jodhpur & Anr on 21 March, 2018
Author: Gopal Krishan Vyas
Bench: Gopal Kishan Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 12290 / 2017
Akashdeep Morya S/o Sh. Laxman Das Morya, Aged About 36
Years, B/c Dhanak (scheduled Caste), R/o Ward No. 13,
Keshrisinghpur, District Sri Ganganagar.
----Petitioner
Versus
1. The Rajasthan High Court, Jodhpur Through the Registrar
General, Rajasthan High Court, Jodhpur.
2. State of Rajasthan Through the Secretary, Law & Legal Affairs
Department, Government of Rajasthan, Jaipur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Nimesh Suthar and Mr. VR Choudhary
For Respondent(s) : Mr. Mr. Manoj Bhandari, Mr. Suniel Purohit
and NK Mehta, Govt. Counsel,
_____________________________________________________
HON'BLE MR. JUSTICE GOPAL KISHAN VYAS
HON'BLE MR. JUSTICE RAMCHANDRA SINGH JHALA Judgment Per Hon'ble Mr. Justice Gopal Krishan Vyas Date of Judgment :: 21st March, 2018 It is second round of litigation. Against denial of appointment, the petitioner who belongs to SC category preferred DBCWP No.13192/2015 in which after considering the reply filed by the respondent High Court, an order was passed on 8.3.2017 whereby the writ petition was disposed of with liberty to the petitioner to file representation alongwith copy of the judgment (2 of 25) [CW-12290/2017] rendered by the Hon'ble Supreme Court in the case of Avtar Singh Vs. Union of India & Ors. reported in (2016) 8 SCC 471 and respondents were directed to decide the representation of the petitioner within a period of two weeks from the date of receiving certified copy of the order in the light of adjudication made by the Hon'ble Supreme Court in the case of Avtar Singh (supra). The respondent High Court in compliance of the aforesaid direction again rejected the claim of the petitioner for appointment vide communication dated 5.5.2017 (Annex.39), which is under challenge in this writ petition. The instant writ petition has been filed by the petitioner seeking following reliefs:
"a. The action of the respondents while not giving appointment to the petitioner arbitrarily may kindly be declared bad in the eye of law;
b. the order/letter dated 19.11.2015 i.e. annex.15 and order dt. 05.05.2017 i.e., annexure-39 along with all relevant orders and recommendations (which are in respondents' holding), rejecting/not recommending the candidature of the petitioner for the post of civil judge and judicial magistrate in pursuant to advertisement annex.1, may kindly be quashed and set aside.
c. The rejection of the petitioner's candidature for the post of Civil Judge & Judicial Magistrate in pursuance to the advertisement i.e., Annex.1 may kindly be quashed and set aside.
d. The respondents may kindly be directed to declare the petitioner fit for the appointment on the (3 of 25) [CW-12290/2017] post of Civil Judge & Judicial Magistrate and give appointment to the petitioner on the post of Civil Judge & Judicial Magistrate w.e.f. the date on which lower to him in merit was given appointment with all consequential service benefits and arrears with necessary orders as to joining the service of Civil Judge & Judicial Magistrate.
e. Any other order which this Hon'ble Court
considers just and proper in the facts and
circumstances of this case, may kindly be passed in
favour of the petitioners; and,
f. Costs of this writ petition may kindly be allowed
to the humble petitioner."
As per facts of the case, online applications for recruitment on 187 posts of Civil Judge (Junior Division) & Judicial Magistrate, First Class were invited by the respondent Rajasthan High Court vide advertisement dated 25.11.2013 under the Rajasthan Judicial Service Rules, 2010 (hereinafter referred to as the Rules of 2010 for short).
The selection process was initiated for the said post and the petitioner being eligible for the post in question applied as per the terms and conditions of the advertisement through online application form.
The petitioner was allowed to appear in the preliminary examination held on 23.3.2014 vide roll number 17498. In the preliminary examination, he was declared successful and permitted to appear in the main examination held on 14- (4 of 25) [CW-12290/2017] 15.6.2014 for appearing in the main examination roll number 1074 was issued to him. The petitioner appeared in the examination at Jaipur Center, thereafter, result of main examination was declared on 10.7.2014 in which he was declared successful and qualified for interview.
After declaration of result, the petitioner was called to appear in the interview in the RJS Examination, 2013 held on 10.11.2014. After interview final result was declared in which the name of the petitioner was included in the select list at S.No.150 and petitioner was directed to appear for medical examination alongwith other candidates and after medical examination, on 26.6.2015 an order was issued by the State Government whereby out of 187 selected candidates, the appointment was given only to 165 candidates in which the name of the petitioner was absent, but other candidates of less merit than the petitioner were given appointment under the category of Scheduled Caste quota. After some time, 9 persons were also appointed out of 187 candidates and all the candidates were sent for training vide order dated 17.7.2015. The petitioner was denied appointment without disclosing reason, therefore, being aggrieved and dissatisfied, a representation was submitted by the petitioner on 7.9.2015 and raised his grievance for denial of appointment.
During the pendency of representation, another order of appointment of 7 selected candidates was issued on 30.9.2015 for the post of Civil Judge (Junior Division) & Judicial Magistrate, First Class, therefore, an application was filed by him on 5.10.2015 under Right to Information Act, 2005 for obtaining information (5 of 25) [CW-12290/2017] about the reasons for not providing appointment, but no reply was given to him.
On 26.10.2015, a communication was received thereby the application filed by him under RTI was rejected by the respondents on the ground that information being confidential. Being aggrieved and dissatisfied with the action of the respondents for not providing appointment, even after selection, the petitioner preferred DBCWP No.13192/2015 before this Court and raise his grievance. During pendency of the writ petition, a copy of single line non-speaking order rejecting/not recommending his name for appointment was received by him on 19.11.2015. In the writ petition notices were issued and reply was filed by the respondents.
In the reply, facts stated in paras nos.1 to 14 were not refuted to the extent in consonance with the record, but it is specifically stated that the name of the petitioner was included in the select list at S.No.150 and names of all the selected candidates were sent to the State Government with the request that verification of the antecedents, character and medical fitness of the selected candidates be made at the earliest and after completing process, the same may be sent back to the High Court for further action. The State Government informed through its communications that out of 187 selected candidates, the criminal proceedings are either pending or disposed of qua 12 selected candidates. It is further stated that out of 12 candidates, the petitioner Akashdeep Morya is one of them against whom four FIRs were registered in between the period from 1999 to 2012, (6 of 25) [CW-12290/2017] the following details of those FIRs and out come of those FIRs wer given in the reply, which is as follows:
FIR no./Police Under Sections Police Decision of Station investigation court 81/25.6.99 341, 323, 147, Charge sheet Acquitted on 148, 149, 504, dated 5.2.2001 324 IPC 26.7.1999 75/3.5.11 420, 406, FR FR accepted on 120B IPC No.78/29.5.11 1.10.2011 106/6.6.11 452, 323, 34 FR FR accepted on IPC No.120/30.6.11 18.10.11 98/30.5.12 341, 323, 324, Charge sheet Acquitted on 34 IPC dated 27.6.12 16.7.12 Upon receiving the verification reports of character, antecedents, conduct and medical reports of aforesaid 12 candidates was placed before the committee for consideration. So far as the petitioner is concerned, it is submitted that the Hon'ble Committee in its meeting held on 6.7.2015 requested not to recommend the name of the petitioner on the ground that although there is acquittal in all the four cases but looking to the nature of the criminal cases reported against him, he does not deserve indulgence to be considered for appointment on the post of Civil Judge Cadre and accordingly does not recommend for appointment. The recommendation of the Hon'ble Committee was placed before the Full Court in its meeting held on 8.8.2015 and Hon'ble Full Court resolved to request the Hon'ble Committee to re-examine the matter relating to criminal proceedings, conviction on the basis of their disclosure made in the application form by the candidate. In pursuance of Fully Court decision, the matter of 12 candidates was again placed before the Hon'ble Committee.
(7 of 25) [CW-12290/2017] The Hon'ble Committee after taking into consideration material placed on record, took following decision for petitioner and resolution was passed on 26.8.2016, which reads as under:
"7. Akash Deep Morya (S.No.150) : As per the paper book, following criminal case have been registered against the candidate : -
FIR no./Police Under Sections Police Decision of Station investigation court 81/25.6.99 341, 323, 147, Challan dated Acquitted on 148, 149, 504, 26.7.1999 5.2.2001 on 324 IPC the basis of compromise 75/3.5.11 420, 406, FR FR accepted on 120B IPC No.78/29.5.11 1.10.2011 106/6.6.11 452, 323, 34 FR FR accepted on IPC No.120/30.6.11 18.10.11 98/30.5.12 341, 323, 324, Challan dated Acquitted on 34 IPC 27.6.12 16.7.12 on the basis of compromise The object of verification is to ascertain the antecedents and character of the candidate to consider his fitness and suitability for employment and keeping in view his alleged involvement in the criminal matters and taking note of R.19 of the scheme of Rules, 2010 and the following guiding principles laid down by the Apex Court in Daya Shanker Yadav Vs. UOI & Ors. reported in (2010) 14 SCC 103, which reads as infra :-
"(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the offence/crime in which he was involved.
(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which are technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honorably acquitted and (8 of 25) [CW-12290/2017] exonerated, the employer may ignore the fact that the declarant had ben prosecuted in a criminal case and proceed to appoint him or continue him in employment.
(c) xxxxxx
(d) Where the attestation from or verification from does not contain proper or adequate queries requiring the declarant to close his invovmenet in any criminal proceedings, or where the candidate was unaware of initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints etc.) learns about the involvement of the declarant, the employer can have recourse to courses
(a) or (b) above."
The aforesaid guiding principles have been further reiterated in State of Madhya Pradesh & Ors. Vs. Parvez Khan reported in (2015) 2 SCC 591,.
Taking note of the antecedents which reflects the character of the candidate, the Committee resolves not to recommend him for appointment."
The aforesaid recommendation of the committee was accepted by the Full Court by way of circulation case no.8/2015 dated 29.8.2015.
The aforesaid decision for denial of appointment was communicated to the petitioner vide communication dated 19.11.2015. Against that communication, during the pendency of the writ petition, the Hon'ble Supreme Court delivered the judgment of Avtar Singh (supra), therefore, the DBCWP No.13192/2015 was disposed of vide order dated 8.3.2017 with direction to consider the representation of the petitioner in the light of judgment rendered by the Hon'ble Apex Court in the case of Avtar Singh (supra).
(9 of 25) [CW-12290/2017] In compliance of aforesaid direction, the representation of the petitioner was again placed before the Lower Judicial Committee in its meeting held on 21.4.2017 in which case of the petitioner was considered in the light of the judgment of the Hon'ble Supreme Court in the case of Avtar Singh (supra), the committee noted that four different FIRs were registered against the petitioner from 1999 to 2012 and while considering all those cases, took decision that as per the judgment of Avtar Singh (supra), even if acquittal is recorded in a case involving serious nature, the employer can consider relevant facts as to antecedents and in this case, four criminal cases have been registered against the candidate Sh. Akashdeep Morya, one after another and offences of all the cases were serious in nature and acquittal were not clean, therefore, in adjudging his candidature comparison with other candidates is not relevant and while giving afoerasid reasons, the committee rejected the claim of the petitioner for appointment.
It is argued by the counsel for the petitioner that in para no.18 of the writ petition, explanation is on record about four cases registered against him, which reads as under:
"1) FIR No.81/99 dt. 25.06.1999 PS Keshrisinghpur U/s 341, 323, 147, 148, 149 IPC - result - Acquittal on the basis of compromise and/after trial.
Although petitioner was minor, aged 17 years at the time of incident (petitioner's date of birth is 08.01.1982).
It was Cross FIR against FR no.80/99 lodged by brother of petitioner against Gurdev Singh and Ors.
(10 of 25)
[CW-12290/2017]
All accused were acquitted vide order
Dt.05.02.2001. Copies of the judgments
dt.05.02.2001 passed by the learned trial court in criminal cases leading to FIRs no.80/99 and 81/99 of PS Keshrisinghpur are annexed herewith and marked as Annexure-16 & annexure-17 respectively.
2) FIR No.75/11 dt.03.05.2011 PS Keshrisinghpur u/s 420, 406 and 120B IPC - result-
FR given for the reason FIR lodged under misconception dt.26.05.2011. FR accepted by court and acquittal on dt.15.10.2011.
3) FIR no.106/11 dt.06.06.2011 PS Keshrisinghpur u/s 452, 323, 34 IPC. Result - FR was filed in the same on Dt.30.6.2011 and the order sheet was drawn in that respect on Dt.18.10.2011.
4) FIR no.98/12 dt. 30.05.2012 PS
Keshrisinghpur U/s 323, 341, 32 IPC - result-
acquittal on basis of compromise dt. 16.7.2012 - Accused were acquitted after compromise and/after trial."
It is argued by the counsel for the petitioner that petitioner's family had a command and uncommand agricultural land in joint account situated at Chak 2 U, Murabba No.19, Tehsil Srikaranpur, District Sri Ganganagar. The total measurement of the land is 6 bighas and 10 biaswas out of which 1 bigha and 2 biswas is command land and rest of the land is uncommand land. The land of Killa No.1 to 5 and Killa No.6/2 and Killa No.10 is in possession of the petitioner's family and they by their hard labour, developed their piece of land and are cultivating the same.
According to the petitioner, an agreement was entered in between the petitioner and his brother as first party (buyer) and (11 of 25) [CW-12290/2017] Sh. Guru Charan Singh as second party (seller) for agricultural land of 5 bighas situated in Killas No.21 to 25, Murraba No.19, Chak 2 U, Tehsil Srikaranpur, District Sri Ganganagar on dated 30.9.2009 and on dated 28.4.2010 and possession of the land was given to buyers. In the meanwhile, the seller Gurcharan Singh became greedy and for grabbing more money, he refused to get the sale deed executed. Therefore, a civil suit alongwith application for grant of temporary injunction was filed by the petitioner and his brother against sh. Gurucharan Singh before the learned Addl. District & Sessions Judge, Sri Karanpur on 7.10.2010 for specific performance of the agreement dated 30.9.2009 for registration of the sale deed which was registered as CO No.31/2010 and 32/2010, which is pending consideration. In the meanwhile, Gurcharan Singh did an oral agreement to sell the same land to Maya W/o Mahendra Singh. Mahendra Singh then induced and abetted Gurcharan Singh to get an FIR lodged against the brother of the petitioner so as to compel them to settle the civil dispute. It is also pleaded that thereafter said Gurucharan Singh lodged the FIR no.75/11 under Section 420, 406, 120B IPC on 3.5.2011 against the brother of the petitioner and also gave the name of the petitioner and his father also in the FIR because of the obvious reason that the petitioner's father was a government servant. The petitioner's family had to make compromise under pressure and a settlement was arrived upon by both the parties that the petitioner's family would withdraw the civil case and Gurucharan Singh would withdraw the criminal case. Therefore, the civil suit no.31/2010 was withdrawn on the same (12 of 25) [CW-12290/2017] day and the FR no.52/2011 was filed by the police on dated 26.5.2011 saying that the FIR no.75/2011 was got lodged under misconception. It is also stated that as soon as the aforesaid cases were withdrawn, the sale deed with regard to the land of killa No.21 to 25, Murraba No.19, Chack 2-U, Tehsil Sri Karanpur, District Sri Ganganagar was executed on 4.7.2011.
According to the petitioner thereafter said Mahendra Singh induced one neighbor Dharmendra Singh (cultivator of Mahendra Singh) to file a frivolous case against the petitioner's father, brother and the petitioner on 6.6.2011 stating therein the incident dated 2.6.2011, 4 days prior to FIR. Between these 4 days, Dharmendra Singh and other persons tried to compel the famil of the petitioner to leave the right of the water flow and make compromise with them, but when the family of the petitioner did not agree, then a frivolous afterthought FIR was got lodged. In the said FIR, after investigation, the investigating agency submitted FR on 30.6.2011 and the order sheet was also drawn in that respect on 18.10.2011 by the learned ACJM, Sri Karanpura.
Thereafter, not satisfied with the aforesaid, the said Mahendra Singh lodged the FIR no.98/2012, whereas the fact of the matter remains that the petitioner, his brother and his cultivator of the farm were waiting for the water turn commencing from 10.05 pm to 11.00 pm, at that time, Mahendra Singh and his son Ram Chandra alongwith other persons came and started quarrelling for their water turn. The petitioner asked them about the water slip but they forcefully tried to get the water turn. Then Mahendra Singh and other 5-6 persons started beating the (13 of 25) [CW-12290/2017] petitioner, his brother and the cultivator Karan Singh. The petitioner and his cultivator were beaten badly, then they had to take right to private defence of their life and property. Thus, the Mahendra Singh lodged the aforesaid FIR and to the contrary, the petitioner also lodged counter FIR no.99/2012 on 30.5.2012 against Mahendra Singh and 5-6 other persons on the basis of Parcha Bayan recorded in the hospital.
Admitted as per the facts of the case at the time of filling up application for the post of Civil Judge Cadre there was no pendency of cases against the petitioner because all the four cases were decided and out of four cases in FIR no.81 dated 25.6.1999 after filing charge-sheet he was acquitted on 5.2.2001 after compromise because for the same incident cross FIR no.80/99 was registered against the complainant party at Police Station Keshrisinghpur and in that case also, charge-sheet was filed against the complainant party in which compromise arrived at between both the parties and finally both the cases were decided after compromise on 5.2.2001.
Another case was registered at Police Station Keshrisinghpur on 3.5.2011 after 12 years of first incident in which after investigation police filed Final Report which is accepted by the competent court on 1.10.2011. Similarly, another FIR no.106 was registered on 6.6.2011 under Section 452, 323 and 34 IPC against three persons Laxman Das, Akashdeep Morya (petitioner) and Kanti at Police Station Keshrisinghpur in which after investigation, police submitted final report and same was accepted by the concerned court on 18.10.2011.
(14 of 25) [CW-12290/2017] Another FIR no.98 dated 30.5.2012 was registered under Section 323, 341 and 34 IPC in which charge-sheet was filed on 27.6.2012, but the said case was decided on the basis of compromise arrived at between the parties. Meaning thereby, there was no pendency of cases against the petitioner and all the cases were decided prior to filling online application form for recruitment for the post of Civil Judge Cadre.
As per facts of the case even though none of the case was pending against the petitioner and after appearing in the competitive examination he was selected and his name find place at S.No.150 and recommended for appointment, but respondents denied appointment without considering the fact that out of four cases in two cases after investigation police filed FR, which is accepted by the competent court and in two cases, which was registered under Section 341, 323, 324, 147, 148 and 149 IPC, the petitioner was acquitted on the basis of compromise and all the cases were registered in connection with same land dispute in between the parties. Therefore, obviously, as per the verdict in the case of Avtar Singh (supra) it was the duty of the respondents to provide appointment tot the petitioner on the post of Civil Judge cadre as per his merit, but the appointment has been denied upon unsustainable grounds, therefore, it is submitted that as per the verdict in the case of Avtar Singh (supra), the petitioner is entitled for appointment, therefore, the order dated 19.11.2015 (Annex.15) and order/letter dated 5.5.2017 (Annex.39) may be quashed and respondents may kindly be directed to declare the petitioner fit for appointment on the post of (15 of 25) [CW-12290/2017] Civil Judge and Judicial Magistrate and provide appointment with all consequential benefits because as per the verdict of Hon'ble Supreme Court in Avtar Singh's case, the petitioner is very much entitled for appointment on the said post.
Per contra, it is argued by Mr. Manoj Bhandari appearing on behalf of the respondents that it is a case in which petitioner is claiming appointment on the post of Civil Judge cum Judicial Magistrate and upon such post candidate having good character and good antecedents can be appointed none else, but as per the directions issued by the Division Bench of this Court in DBCWP No.13192/2015, the case of the petitioner was again considered in the light of verdict given by the Hon'ble Supreme Court in the case of Avtar Singh (supra) and after due considerations, the committee after considering the fact of registration of four cases against the petitioner gave opinion that as per the pronouncement of the Hon'ble Supreme Court in Avtar Singh's case even if finding of acquittal is recorded in a case of serious nature, the employer can consider the relevant facts as to antecedents to reject the candidature and in this case, admittedly four criminal cases were registered against the petitioner one after another for the offences of serious in nature and acquittals were not clean, therefore to adjudge the candidature, comparison with other candidates is not relevant. While making above observations, the committee took note of all the relevant aspects and gave opinion that petitioner does not deserve appointment on the post of Civil Judge cadre, therefore, rejected the representation filed by the petitioner.
Learned counsel for the respondents vehemently argued that (16 of 25) [CW-12290/2017] petitioner is accepting the fact that four cases were registered against him and out of four cases, two cases were decided on the basis of compromise and in two case, FR was filed. Meaning thereby, before selection, petitioner faced trial in two cases in which, ultimately, acquitted on the basis of compromise, therefore, obviously it cannot be said that conduct of the petitioner was not clouded before his selection. The committee considered all important aspects of the matter in the light of Avtar Singh's case and finally held that it is a case in which appointment cannot be given to the petitioner due to registration of four cases one after another of serious nature. According to learned counsel for the respondents decision has rightly been taken by the committee while considering verdict in Avtar Singh's case in which there is discretion left with the employer so as to consider the entire scenario and facts to assess the suitability of the candidate, therefore, instant writ petition may kindly be dismissed.
After hearing learned counsel for the parties, we have minutely examined the facts of the case and legal proposition of law laid down by the Hon'ble Supreme Court. There is no dispute with regard to the selection of the petitioner on the post of Civil Judge (Jr.Div.) and Judicial Magistrate as per his performance. Admittedly, the petitioner was declared successful in written examination as well as in the interview and after selection, his name was sent alongwith all selected candidates to the State Government with the request for verification of antecedents, character and medical fitness and in so far as the petitioner is (17 of 25) [CW-12290/2017] concerned, the State Government sent information that four cases were registered against him.
The first FIR no.81 dated 25.6.1999 was registered at 9.30 pm against the petitioner at Police Station Keshrisinghpur, but for the said incident an FIR No.810 was already registered against the complainant party for the offence under Sections 341, 323, 147, 148, 149 IPC read with Section 3 of the SC/ST Act. Admittedly, the FIR no.80/99 was registered against the complainant party prior to registration of the FIR no.81 against five persons including the petitioner. Both the FIRs were registered for the same incident in which police filed charge-sheet against both the parties under Section 341, 323, 147, 148, 149, 504 and 323 IPC. Meaning thereby, it was not a case in which allegation was levelled against the petitioner only, but allegations were against more than five persons, therefore, police filed the charge-sheet for the aforesaid offences in which petitioner was acquitted on the basis of compromise arrived between the parties. Upon perusal of the facts of the incident it cannot be said that the said case was serious in nature. The quarrel took place in between the parties for the land, therefore, FIRs were filed by both the parties in which ultimately compromise arrived and accused of both the parties were acquitted.
After 12 years of first incident in the year 1999, another FIR no.75 was registered against the petitioner alleging offence under Sections 420, 406 and 120B IPC for the reason that civil suit was filed by the petitioner and his brother seeking decree of specific performance of contract. The said FIR was registered to (18 of 25) [CW-12290/2017] pressurize the petitioner and his brother to withdraw the civil suit, therefore, after investigation, the investigating officer submit final report before the competent court with following findings and observations :
"vr( eqdnek gktk esa urhtk vk[kjh cflxk vne odq ¼xyr Qgeh½ es is"k vnkyr dj fuosnu gS fd ckn voyksdu ,Q vkj Lohd`r QjekosaA"
The said FR was accepted by the concerned court on 1.10.2011, which is not in dispute.
The third FIR no.106 was registered against the petitioner on 6.1.2011 for the offences under Sections 452, 323 and 34 IPC in which after investigation, SHO Police Station Keshrisinghpur submitted final report with following observations:
"vr( eqdnek gktk esa urhtk ,Q vkj vne odq@ukdkfcy nLrunkth iqfyl /kkjk 504 vkbZ ih lh esa is"k vnkyr dj fuosnu gS fd ckn voyksu ,Q vkj Lohd`r QjekosaA"
The said FR was accepted by the court in the presence of complainant Dharmendar Singh on 18.10.2011 (Annex.26).
The forth FIR No.98 was registered against the petitioner and his brother Kranti at Police Station Keshrisinghpur on 30.5.2012 for the offences under Sections 341, 323, 324 and 34 IPC by one Mahendra Singh for the dispute of water turn from canal in which charge-sheet was filed under Section 341, 323, 34 and 324 IPC but in the said case, the compromise was arrived at between the parties because it was dispute in between neighbors for water supply turn, which is accepted by the same court on 16.7.2012.
(19 of 25) [CW-12290/2017] We have perused all the four FIRs and find that in none of the case was registered against the petitioner was serious in nature which is evident from the fact that out of four cases, in two cases, FR was submitted after thorough investigation and in the investigation it is found that no such case is made out. In two other cases, charge-sheet were filed not only against the petitioner but against other persons also, in which ultimately compromise was arrived between the parties because offences were not serious in nature.
Upon appreciation of entire facts and documentary evidence on record, there is no doubt that out of four cases, in two cases compromise was arrived at between the parties because offences were for simple nature, for the dispute of water supply upon agricultural land, in which ultimately compromise arrived between the parties and the petitioner alongwith his brother was acquitted and complainant was also acquitted in one of the case in the cross FIR registered upon complaint of accused party. Admittedly, no criminal case pending against the petitioner when online application form was submitted by him for recruitment upon the post in question. In case of Avtar Singh (supra), the Hon'ble Supreme Court held that whole idea of verification of character and antecedents is that the person suitable for the post should be appointed and candidate should not have antecedents of such a serious nature which may adjudge him unsuitable for the post. The verification of antecedents is necessary to find out fitness of the candidates. The case in hand there is no allegation of suppression of information. More so, it is a case in which (20 of 25) [CW-12290/2017] petitioner has categorically explain that out of four cases, two cases were found to be false after investigation, therefore, FR was submitted and accepted by the court. In two other cases offences were of simple injuries in which compromise arrived between the parties because those offences were compoundable as per Cr.P.C., therefore, petitioner and other persons were acquitted by the Court.
In Avtar Singh's case relied upon by the petitioner, following observations were made to assess the suitability of the candidate by the Hon'ble Supreme Court in para no.34 of the judgment, which reads as under:-
"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."
Similarly in para no.38.4.3 of the judgment, following adjudication is made by the Hon'ble Supreme Court, which reads as under:
"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."
As per the reply, the case of the petitioner was considered (21 of 25) [CW-12290/2017] by the lower judicial committee in the light of the judgment of the Hon'ble Supreme Court in the case of Avtar Singh (supra) in its meeting held on 21.4.2017 and after deliberations, following decision was taken by the committee, the relevant abstract of the consideration is as under:-
"CONSIDERATION OF REPRESENTATION OF SHRI AKASH DEEP MORYA (MERIT NO.150) AS PER SELECTION LIST OF RECRUITMENT OF RJS EXAMINATION, 2013 SUBMITTED IN COMPLIANCE OF HON'BLE COURT ORDER DATED 08.03.2017 PASSED IN D.B.C.W.P. NO.3192/2015 AKASH DEEP MOURYA VS RAJASTHAN HIGH COURT.
In compliance of order dated 08.03.2017 of Hon'ble Rajasthan High Court passed in D.B.C.W.P. No.13192/2015, Akash Deep Morya Vs Rajasthan High Court, the representation of Shri Akash Deep Morya was considered in the light of the adjudication made by Hon'ble Supreme Court in Avtar Singh's case.
In Avtar Singh's case, it has been held by the Hon'ble Supreme Court, inter-alia, as under:-
"If acquittal had already been recorded in a case involving moral turpitude or offence 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 employer."
The Committee noted that four different FIRs were registered against Shri Akash Deep Morya from the year 1999-2012, details of which are as under:-
1. In FIR No.81/1999, charge sheet was filed against Shri Akash Deep Morya and others for the offences u/s 341, 323, 148, 149, 504 and 324 IPC in which the allegation against Shri Morya is to inflict Sword blow on the hand of victim.
On the basis of compromise, Shri Morya was acquitted from the charges for the offences u/s 341, 323, 324 & 504 IPC and for the remaining offences, he was acquitted for want of evidence.
2. In FIR No.75/2011 u/s 420, 406 and 120B IPC, police submitted FR which was accepted on the ground that the (22 of 25) [CW-12290/2017] parties have compromised the matter and the complainant does not want to proceed further.
3. In FIR No.106/2011 u/s 452, 323, 34 IPC police submitted FR on the basis of compromise with the finding that offence under Section 504 IPC only is made out which is non-cognizable. FR was accepted by the Court on the ground that that parties have compromised the matter and the complainant does not want to proceed further.
4. In FIR No.98/2012, charge sheet was filed against Shri Morya and others for the offences u/s 323, 341, 324 and 34 IPC in which allegation against Shri Morya was that he inflicted Gandasi blow on the head of one victim.
Shri Morya was acquitted for the offence u/s 323, 341 IPC on the basis of compromise and was acquitted for the offence /s (Sic! u/s) 324 IPC for want of evidence.
As per the pronouncement of Hon'ble Supreme Court in Avtar Singh's Case, even if acquittal is recorded in a case involving serious nature, the employer may consider relevant facts as antecedent.
In the instant matter, four criminal cases have been registered against Shri Morya one after the other. Offences in all the above cases were serious in nature and acquittals were not clean. In adjudging his candidature, comparison with other candidates is not relevant. Therefore, taking note of all the relevant aspects the committee is of the view that Shri Morya does not deserve appointment on the post of Civil Judge Cadre and his representation is liable to be rejected.
RESOLVED to reject the representation of Shri Akash Deep Morya."
The aforesaid decision of the committee was communicated to the petitioner by the Registrar (Admn.) vide impugned communication dated 5.9.2017 (Annex.39), which is under challenge in this writ petition.
Upon perusal of the aforesaid decision of the committee it emerges from the consideration that all the four criminal cases registered against the petitioner were considered and committee opined that offences in all the cases were serious in nature and acquittals were not clean, therefore, in adjudging the candidature, comparison with the other candidates is not relevant (23 of 25) [CW-12290/2017] as such taking note of all the relevant aspects, the committee held that Sh. Morya does not deserve appointment on the post of Civil Judge Cadre and his representation is liable to be rejected. In our humble opinion the committee has failed to consider the case of the petitioner in the spirit of verdict given by the Hon'ble Supreme Court in the case of Avtar Singh because as per committee offences in all the cases were serious in nature and acquittals were not clean, but this finding is not perverse because it is obvious from the documentary evidenced that out of four cases in two cases after investigation, FR was submitted by the police, which is accepted by the competent court and further it is not in dispute that in FIR no.81 at Police Station, Kesharisinghpur charge sheet was filed against the petitioner and other persons for offence under Section 341, 323, 148, 149, 504 and 324 IPC and for the same incident in FIR no.80 registered against the complainant upon complaint of accused party charge-sheet was filed, but in both the cases, compromise arrived between the parties and the same was accepted by the court because offences were not of serious in nature, which is evident from the sections itself.
In fourth case which is registered upon FIR no.98, the charge-sheet was filed against the petitioner and his brother for offences under Sections 323, 341, 324 and 34 IPC. In the said case there was allegation for simple injuries for the dispute arising out for water supply turn in the agricultural field. All the offences were compoundable and trible by the magistrate, therefore, compromise was arrived between the neighbourers was accepted (24 of 25) [CW-12290/2017] by the court. In view of the above position of facts, it cannot be said that petitioner was involved in the case of serious nature as observed by the committee.
As per verdict in the case of Avtar Singh (supra) though a discretion is given to the employer to assess the suitability of the candidate while considering the antecedents, but at the same time, a duty is cast upon the employer not to crush the future of a candidate who has succeeded in the competitive examination and come in merit upon his performance. Admittedly, the petitioner belongs to SC category which is weaker section of the society, against whom two false cases were registered in which after investigation, police gave opinion that no such incident took place and in other two cases registered against him for the offence of simple injuries, compromise was arrived between the parties and trial court acquitted him on the basis of compromise, therefore, we are of the opinion that decision of the committee is not in consonance with the spirit of the judgment in the case of Avtar Singh (supra).
It is important aspect of the case that petitioner who belongs to SC category which is weaker section of the society appeared in the competitive examination and succeeded in it on the basis of his performance and recommended for appointment, but due to registration of some cases against him prior to submitting application, the appointment has been denied without considering the verdict of Hon'ble Apex Court in its true spirit, in our opinion, the committee was under legal obligation to consider the case of the petitioner for appointment objectively because a person of (25 of 25) [CW-12290/2017] weaker section cannot be deprived from his legal rights which is acquired by him through competitive examination.
In our view, in such type of cases if appointments will be denied casually then nobody will trust upon the judicial system, therefore, it is the duty of the employer to apply its mind to assess the suitability of candidate objectively. It is beyond imagination that employer will treat the offence under Section 323 and 324 IPC at par with the other heinous offence. Therefore, denial of appointment to the petitioner by the respondent is not sustainable in law, more so, it is unconstitutional.
Consequently, this writ petition is hereby allowed. The order/letter dated 19.11.2015 (Annex.15) and the order dated 5.5.2017 (Annex.39) for denial of appointment to the petitioner are herby quashed and set aside. The respondents are directed to provide appointment to the petitioner on the post of Civil Judge and Judicial Magistrate as per his merit from the date, the less meritorious person was provided appointment with all consequential benefits.
(RAMCHANDRA SINGH JHALA) J. (GOPAL KISHAN VYAS) J. cpgoyal/ps