Madhya Pradesh High Court
Deepu Kumar Singh vs The State Of Madhya Pradesh on 23 October, 2021
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
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THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
W.P.No.8364/2019
Deepu Kumar Singh
Versus
The State of Madhya Pradesh and others
Date of Order 23/10/2021
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi, J
Whether approved for
reporting
Name of counsels for For Petitioners: Shri Ajay Sen,
the parties Advocate
For Respondent-State: Shri
Dharmendra Kaurav, Panel Lawyer
Law laid down
Significant Para Nos.
Reserved on : 10/08/2021
Delivered on : 23/10/2021
ORDER
(23/10/2021) Pleadings are complete.
With the consent of learned counsel for parties, matter is heard finally.
This petition has been filed by the petitioner under Article 226 of the Constitution of India, questioning the legality, validity and propriety of order dated 08/04/2019 (Annexure-P-7), whereby the petitioner's name has been removed from the select list of the post of Constable (GD), 2 on the ground that he had been prosecuted for commission of the offence punishable under Sections 147, 148, 149, 323, 452,504 and 506 of IPC.
(2) The order has been assailed mainly on the ground that under the similar facts and circumstances of the case, other candidates, who were prosecuted in some heinous offences were considered and appointed, but selection of the petitioner has been cancelled, ignoring the fact that he has already been acquitted in the case registered against him by the trial court vide judgment dated 03/06/2017 (Annexure- P-10).
(3) Counsel for the petitioner submits that the fact regarding pendency of criminal cases was duly disclosed by the petitioner in the affidavit furnished by him at the time of police verification. He further submits that on coming to know about the impugned order dated 08/04/2019 (Annexure-P-7), the petitioner made a detailed representation (Annexure-P-8) to the authorities, apprising them about his acquittal and also pointing out that some persons facing heinous crime have already been given appointment. He submits that as per Rule II of Circular/Guideline dated 24/07/2018 issued by the Home 3 Department of the Government of State of Madhya Pradesh, the petitioner is entitled to be selected on the post of Constable (GD).
(4) On the other hand, counsel appearing for the respondents/State submits that in view of the reply submitted by them, the petitioner is not eligible to get any benefit of the above circular. He further submits that though the petitioner had disclosed about the registration of the offence punishable under Sections 147, 148, 149, 323, 452, 504 and 506(B) of IPC vide Crime No.108/2011, but the Screening Committee constituted for the purpose of character verification, pursuant to the circular/guidelines dated 24/07/2018, after going through the entire material with regard to criminal antecedents of the petitioner has not found him suitable to hold the post of Constable in the Police Department.
(5) Counsel for the respondents by placing reliance upon the Larger Bench decision of this Court in the case of Ashutosh Pawar Vs. High Court of M.P. & another reported in 2018(2) MPLJ 419 and also the judgment of the Apex Court in the case of Commissioner of Police, New Delhi and another Vs. Mehar Singh, reported in (2013) 7 4 SCC 685 submits that acquittal of the petitioner does not fall within the ambit of clean and honourable acquittal, and as such he is not found suitable for the police services. (6) It is contended by counsel for the petitioner that the authorities have failed to consider the material aspect that the petitioner did not suppress any information, but disclosed the fact regarding criminal case tried against him, and he has been acquitted in the same. It is further contended that, if a person is charged and finally acquitted by the Court, it will be an acquittal in all manner. He submits that from the judgment passed in petitioner's favour, it can be said that this acquittal is a clean acquittal and he cannot be declared disqualified by saying that the acquittal given by the trial court is not an honorable acquittal. He has also drawn the attention of this Court towards the judgment of the trial court dated 03/06/2017 (Annexure-P-10), by which, petitioner has been acquitted mainly on the ground that none of the witnesses have supported the case of the prosecution. He further relied upon a decision passed by the Supreme Court in the case of Mohammed Imran Vs. The State of Maharashtra and others, in Civil Appeal No.10571/2018 arising out of 5 SLP(C) No.6599/2018 and W.P.No.10342/2013 (Pankaj Shakya Vs. Secretary State of M.P.& another) decided on 05/08/2014 by the Indore Bench of this Court and submitted that the offence registered against the petitioner does not fall within the purview of "moral turpitude", accordingly the petitioner's selection cannot be cancelled. (7) I have considered the submissions made by learned counsel for parties and perused the record. (8) The question that emerges for consideration is whether the decision taken by the respondents in cancelling the selection of the petitioner on the ground that he is not suitable for appointment because he had some past criminal antecedents is justified or not, considering the fact that other similarly situated candidates who have been prosecuted in some heinous offences have been appointed; and whether such decision of the respondents suffers from 'malice in law' or not ?
(9) Undisputably, the petitioner was tried for the offences under Sections 147, 148, 323, 452, 504, 506 and 149 of IPC, but he has also been acquitted vide judgment dated 03/06/2017 (Annexure-P-10). The respondents vide impugned order dated 08/04/2019 (Annexure-P-7) 6 cancelled the selection of the petitioner as found him unsuitable on the basis of screening done by the Screening Committee. However, the State has not clarified the factual existing position as has been pointed out by the petitioner in his petition vide Annexure-P-11, which is a list of candidates, who have been appointed, though they have faced crime of serious nature. It is nowhere stated and clarified by the respondents that since the petitioner has been tried in an offence relating to "moral turpitude", therefore, he has been deprived from selection, but it is stated that only because a case was registered against him somewhere in the year 2011 and decided in the year 2017, he was not found suitable to be appointed in police department.
(10) In the case of Mohd.Imran(supra), the Supreme Court has dealt with the appointment relating to the judicial services and observed that undoubtedly, judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be same for a judicial service. But, there cannot be any mechanical or rahetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. 7 Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in the life by self-improvement. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will, however depend on the facts situation of the case.
(11) The Supreme Court has also taken note of law laid down by in the case of Avtar Singh Vs. Union of India and others, (2016) 8 SCC 471, saying that if empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment. (12) In the present case also, the petitioner was part of selection process and cleared few steps of selection, but was removed from the select list only on the ground that he has been tried in a criminal offence registered against him somewhere in the year 2011.
(13) This Court in the case of Virendra Jatav Vs. State of M.P. and others, reported in (2020) 4 MPLJ 601 has also considered the case of Avtar Singh (supra) and observed as under :-
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"The acquittal of a candidate, as a rule of thumb, does not give him any right to be appointed even if he is selected. The employer needs to examine the 'suitability' on various facets including (i) the nature of job needs to be performed by him; (ii) the nature of department in which he will be performing the duties; (iii) the status of post and other attendant circumstances; and (iv) the nature of accusation & his acquittal etc. A candidate, after acquittal in one department which is only doing ministerial job may be treated to be 'suitable' whereas for another department/post considering the nature of work, may be treated as 'unsuitable'. Thus, no strict parameters regarding judging such suitability can be reduced in writing with the accuracy and precision. It varies from post to post and from department to department. Perhaps for this reason, the Apex Court has not held that after clean acquittal, the candidate has an indefeasible right of appointment and much discretion is left with the employer to decide his 'suitability'"
(14) The appointment of the petitioner was made in the police department. No doubt, the nature of appointment and the duties performed by the policeman in the police 9 department is not equal to the services of an employee in other department. The police department is known to be a disciplinary force and accordingly for any appointment made in the said department the employer has to apply different yardstick, but it does not mean that the department can make discrimination in appointing one person having criminal antecedents, and rejecting the claim of another person of the same status.
(15) The Supreme Court in the case of Joginder Singh Vs. Union Territory of Chandigarh and others, reported in (2015) 2 SCC 377 has also discussed a case, in which, a candidate was found unsuitable as he was tried for a charge under Section 376 of IPC, but later on acquitted. In the same circumstance a person tried under Sections 294, 504 and 34 of IPC, but acquitted and has been appointed. Thus, that discrimination was deprecated by the Supreme Court directing reconsideration of the case of the employee. (16) In the present case also, if situation has been clarified by the petitioner annexing a list Annexure-P-11 showing that some persons have been appointed, though faced criminal charges, but have been acquitted later on, then the petitioner cannot be discriminated in such manner. 10 (17) The Supreme Court in the case of Kalabharti Advertising Vs. Hemant Vimalnath Narichania & others (2010) 9 SCC 437 has considered the aspect of legal malice and also observed that if the action of the State runs contrary to the purpose, for which statutory power was required to be exercised, then such action falls within the ambit of 'legal malice'.
(18) In the present case, the petitioner has very categorically pleaded that there are other similarly situated candidates who have criminal antecedents and they have been appointed, but petitioner was removed from the list of select candidate declaring him unsuitable. It is nothing but a discriminatory action of the authority indicating 'malice in fact' or 'malice in law'.
19. The respondents have not denied this aspect in their reply and also not countered at the time of argument, therefore, I am of the opinion that considering the view taken by the Supreme Court in case of Mohd.Imran(supra) the matter can be remitted back to the authority for reconsidering this aspect as to when others have been selected and appointed then how the petitioner could be deprived. The authority is also under an obligation to 11 consider that the case registered against the petitioner does not fall within the meaning of "moral turpitude" and is of the year 2011, in which, he has been acquitted in the year 2017, and no other criminal past has been pointed out. As such, petition is allowed. Impugned order dated 08/04/2019 (Annexure-P-7) is set-aside. The matter is remitted back to the authority to reconsider the claim of the petitioner on the above observations. The said exercise be completed within a period of three months from the date of receipt of copy of this order.
Accordingly, petition stands allowed.
(SANJAY DWIVEDI) JUDGE SUSHMA sushma Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875c KUSHWAHA 18e5a68787947df0c5, pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F 5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2021.10.25 11:19:33 +05'30' 12 13