Madhya Pradesh High Court
Sanjay Kumar Jatav vs The State Of Madhya Pradesh on 20 August, 2019
Author: Sanjay Yadav
Bench: Sanjay Yadav
1
THE HIGH COURT OF MADHYA PRADESH
W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others)
Gwalior, Dated:-20.8.2019
Shri G.S. Sharma, learned counsel for the appellant.
Heard on admission.
(1) This appeal under Section 2 (1) of Madhya Pradesh Uchcha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 is
directed against the order dated 22.10.2018 passed in
W.P.No.18818/2018; whereby, rejection of appellant's candidature
for appointment to the post of Constable has been upheld. The
rejection of candidature was for the reasons that the appellant
concealed the fact of his criminal prosecution in verification form.
(2) Having participated in the process of recruitment to the post
of Constable and being placed in the select list, the candidature of the
appellant was cancelled on the finding that he did not disclose in the
verification form the fact that he was proceeded in a Criminal Case
vide Crime No.438/2014 for the offence punishable under sections
323, 325 and 504 IPC, by order dated 14.8.2014. The order was
successfully challenged in W.P.No.8204/2015. However, the order
was modified in W.A.No.912/2017, which was decided on
11.12.2017 in the following terms:
"Therefore, the conclusion that the respondent is
not eligible, without any foundation cannot be given the stamp of approval. Learned Single Judge was, thus, within his right in setting aside the 2 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) order. However, since it is within the domain of the competent Authority to consider the incumbent for an appointment, the direction by learned Single Judge directing the issuance of appointment order and for consequential benefit cannot be given the stamp of approval. Consequently, the direction for appointment, back-wages, seniority and other consequential benefits is set aside. The appellants shall consider the case of respondent in the terms of paragraphs 38.4.1 and 38.4.3 Avtar Singh (Supra) and pass an order within three months from the date of communication of this order." (3) On reconsideration fresh order was passed on 24.5.2018;
whereby, his candidature was rejected on the findings:
Þvkns'k vkj{kd p;u ijh{kk 2013 ¼f}rh;½ ds varxZr vkj{kd ¼th Mh½ ds in ij p;fur mEehnokj lat; dqekj iq= jes'k panz tkVo] jksy uacj 642775] fuoklh xzke o iksLV fgxkSuk [kqnZ Fkkuk flfoy ykbu] ftyk eqjSuk }kjk mlds fo:) Fkkuk flfoy ykbu eqjSuk esa iathc) vi Ø 438@11 /kkjk 323] 325] 504 rkfg esa jkthukek ds vk/kkj ij nks"keqfDr ckor tkudkjh dk mYys[k vuqizek.ku QkeZ ds dkye ua 12 ,oa 'kiFki= esa ugh fd;k x;k FkkA vr,o pfj= lR;kiu izdj.k ds ijh{k.k mijkar Nkuchu lfefr }kjk vH;kFkhZ lat; dqekj tkVo dks iqfyl foHkkx dh lsok ds fy, v;ksX; ik;k tkus ls dk;kZy;hu vkns'k Ø iqv@xquk@LFkk@1550@15 fn 19-2-2015 }kjk mldk uke p;u lwph ls i`Fkd fd;k x;k FkkA mijksDr ds laca/k esa ekuuh; mPp U;k;ky;] Xokfy;j esa nk;j fjV vihy Ø 912@17 e iz 'kklu ,oa vU; fo:) lat; dqekj tkVo esa ikfjr fu.kZ; fnukad 11-12-17 ds ikyu esa ekuuh; mPpre U;k;ky; ds okn Øekad vorkj flag fo:) ;wfu;u vkQ bafM;k ,oa vU; ¼,l ,y ih ¼lh½ Ø 20525@2011½ fnukad 21-7-2016 esa tkjh fn'kk funsZ'kksa ds izdk'k esa fnaukd 23-3-2018 dks vk;ksftr Nkuchu lfefr dh cSBd esa 3 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) izdj.k dh iqu% leh{kk dh x;hA leh{kk ij ik;k x;k fd vH;FkhZ lat; tkVo ds fo:) Fkkuk flfoy ykbu ftyk eqjsuk esa vi Ø 438@11 /kkjk 323] 325] 504] 34 Hkknfo dk izdj.k iathc+) dj pkyku U;k;ky; esa izLrqr fd;k x;k gSA U;k;ky; }kjk fnukad 10-2-14 dks jkthukek ds vk/kkj ij nks"keqDr fd;k x;k gSA vH;kFkhZ ij iathc) vijk/k dh /kkjk 325 Hkknfo uSfrd v/kksiru ds varxZr gSA vH;FkhZ }kjk vijk/k dk mYys[k vuqizek.ku QkeZ esa ugha fd;k x;k gSA vorkj flag fo:) Hkkjr la?k ds fu.kZ; ds iSjk 30 esa fn;s x;s ekxZnf'kZr fl)karksa ds izdk'k esa dh x;h leh{kk esa vH;FkhZ lat; dqekj tkVo ds izdj.k dh fLFkfr fuEu izdkj ikbZ x;h %& 1 vH;FkhZ }kjk vuqizek.ku QkeZ esa mlds fo:) iathc) vijk/k dk ys[k ugha fd;k x;k gSA 2 'kklu ds funsZ'k Øekad ,Q&17&74@2002@lh&1 fnaukd 5 twu 2003 ds vuqlkj /kkjk 325 Hkknfo uSfrd v|ksiru dh Js.kh esa gksdj xaHkhj izd`fr ds gSA mDr izdj.k esa vH;FkhZ dks jkthukek ds vk/kkj ij nks"keqDr fd;k x;k gS rFkkfi ,slh nks"keqfDr Clean or Honorable acquittal dh Js.kh esa ugh vkrh gSA vijk/k dk fopkj.k fd'kksj U;k;ky;
esa ugha gqvk gSA ¼,½ bl laca/k esa ;g Hkh mYys[kuh; gS fd iqfyl deZpkfj;ksa dh lsok 'krsZa ,oa vkpj.k e iz iqfyl jsX;wys'ku ds vuqlkj fu/kkZfjr gS]a ftlds iSjk 64 esa ;g vis{kk dh tkrh gS fd iqfyl dk vf/kdkjh vius futh thou esa 'kkafriw.kZ O;ogkj dk vkns'k izLrqr djsxk rFkk lHkh izdkj ds i{kikr ls nwj jgsxkA ¼ch½ ;wuhQkeZ lsok@ukSdjh pkgus okys O;fDr dh lsok;sa vU; lsok;sa vU; lsok okys mEehnokj ls fHkUu Lrj dh Js.kh esa vkrh gSA iqfyl foHkkx esa p;fur mEehnokj dk drZO; izns'k dh dkuwu O;oLFkk ,oa turk dh tky eky dh lqj{kk dk fuoZgu djuk gksrk gSA iqfyl dh lsok esa mPp uSfrd vkpj.k gksuk o vijkf/kd xfrfof/k;ka u gksuk vko';d gSA ¼lh½ 'kkldh; lsodksa ds lac/k esa 'kklu ds mRre vkpj.k laca/kh fl)karksa ds vuqlkj 'kkldh; dehZ dks mRre Nfc okyk gksuk pkfg;s] pawfd iqfyl foHkkx ds vf/kdkfj;ksa ij vijkf/kd izo`fRr ds yksxksa ij vadq'k yxkus dh ftEesnkjh gksrh gS] vr% tufgr esa vkijkf/kd fjdkMZ ds O;fDr dks iqfyl foHkkx esa fu;qDr fd;k tkuk mfpr ugha gSA 3 mDr izdj.k esa vH;FkhZ dks vijk/k ds rF;ksa dh tkudkjh vuqizek.ku QkeZ Hkjrs le; Fkh] ftldk mYys[k QkeZ esa ugha fd;k x;k gSA vH;FkhZ ls vuqizek.ku QkeZ esa vijk/k ds laca/k esa mYys[k djus dh vis{kk dh x;h Fkh] tks mlds }kjk ugha dh x;h gSA 4 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) 4 vH;FkhZ dks vuqizek.ku QkeZ Hkjrs le; vijk/k dk Kku Fkk] ftldk mYys[k ugha fd;k x;k gSA mijksDrkuqlkj leh{kk mijkar Nkuchu lfefr }kjk vH;FkhZ lat; dqekj tkVo dks iqfyl lsok ds v;ksX; ik;s tkus dk fu.kZ; fy;k x;k gSA vr,o vH;FkhZ lat; dqekj tkVo] jksy uacj 6427754 ds lsok ds fy, v;ksX; ik;s tkus ls mldk uke p;u lwph ls i`Fkd fd;s tkus lac/kh vkns'k ,r~n }kjk tkjh fd; tkrs gSaAÞ (4) Learned Single Judge on its challenge declined indulgence on the findings:
"12. From a bare reading of the paragraph 38.4.1 and 38.4.3, the Apex Court has allowed discretion to the competent authority to ignore suppression of fact or furnishing of false information by condoning the lapses if the offence is petty in nature which does not render the incumbent unfit for the post in question.
12.1 In the present case, the offence is voluntarily causing grievous injury which cannot be termed as petty in nature especially when overt act of assault with Lathi is alleged against the petitioner and it is not a case of implication merely with the aid of section 34 or 149 of IPC. Therefore, discretion exercised by the competent authority while passing the impugned order treating offence u/S. 325 IPC as one of the relevant consideration for rendering the petitioner unfit for employment in police force, cannot be found fault with and deserves no interference in the limited discretionary jurisdiction under Article 226 of the Constitution of India.5
THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) 12.2 The Apex court in Paragraph 38.4.3 has extended further discretion upon the employer to consider all relevant facts available as to antecedents and may take decision as to continuance of the employee in service if it is found that the candidate has been acquitted of any offence involving moral turpitude or offence of heinous/serious nature on technical ground which is not clean and honourable.
12.3 Factual matrix when tested on the anvil of law laid down in paragraph 38.4.3, it is seen that the offence in question u/S. 325 IPC does not involve moral turpitude but is not of petty nature and is a serious offence especially when the overt act of petitioner of assaulting with Lathi has caused grievous injury of fracture in the arm/hand of the injured. Therefore, the employer may not be right in treating the offence u/S. 325 IPC as involving moral turpitude but it cannot be denied that the said offence is not petty in nature and is serious enough to make available the required discretion to the recruiting/appointing authority to treat the said offence as a bar to public employment which herein is a disciplined force.
13. The most relevant and crucial factor which dissuades this court from exercising writ jurisdiction in favour of the petitioner is the suppression of material fact about criminal antecedent in the verification form as held supra.6
THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) The act of suppression in the verification form reflects adversely on the moral fiber and character of the candidate thereby enabling the employer to oust the petitioner from competition and choose another eligible candidate, though less meritorious, but of clean image and character for induction into the police force."
(5) Appellant takes exception to the order on the ground that the learned Single Jude glossed over the aspect that the offences registered against him did not involve moral turpitude, and the appellant was also acquitted of all the offences.
(6) In our considered opinion it is not the offence or an acquittal thereof which is relevant, the relevant is its disclosure in the verification form, which enables the employer to know the antecedent and access whether he can be employed. Therefore, non-disclosure of the criminal cases in verification form has been treated as unpardonable act of concealment, and the consequential disqualification.
(7) In Avtar Singh Vs. Union of India and others, (2016) 8 SCC 971, it is held by their Lordships:
"38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order 7 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper."
(8) In State of Madhya Pradesh and others Vs. Abhijit Singh Pawar, Civil Appeal No.11356 of 2018, it is held:
"17. We must observe at this stage that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature of the respondent was in any way actuated by malafides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss Writ Petition No.9412 of 2013 preferred by the respondent. No costs."
(9) The issue as present one came up for consideration before Full Bench of our High Court in Ashutosh Pawar Vs. High Court of Madhya Pradesh & Another (2018 (2) M.P.L.J. 419), wherein following questions were dwelt upon:-
"1. Whether in all cases, where an FIR lodged against a person for minor offences has been quashed on the basis of a compromise arrived at between the parties or a person has been acquitted on account of a compromise between the parties, 8 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) the character of the person applying for appointment thereafter, has to be treated as Good and such a person cannot be held ineligible for appointment under the Rules of 1994 ?
2. Whether the High Court in exercise of its powers under Article 226 of the Constitution of India, can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person ?
3. Whether the High Court while allowing such a petition in exercise of its powers under Article 226 of the Constitution of India can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates were appointed and to grant him back dated seniority and all other benefits or whether the High Court should simply remit the matter back to the authority for taking a decision in this regard ?
4. Whether the high standards of adjudging the good character of a candidate for appointment as a Judicial Officer, which has been adopted and 9 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) followed by the State under the Rules of 1994 till the decision in the case of Arvind Gurjar (supra) were and are right and proper or whether in view of the decision in the case of Arvind Gurjar (supra), the same should be considered to be relaxed to the extent that in all cases the character of a person should be treated to be good where he has been acquitted for minor offences on the basis of a compromise?
5. Whether the decision in the case of Arvind Gurjar (supra) lays down the correct law ?
6. Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide ?"
Presently we are concerned with issue no.2. Dwelling on the same, it is held:
"40. In view of the law laid down in above said judgments, there is no doubt that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court only examines the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. We find that the decision of the State Government holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged.
41. Even if the High Court finds that the 10 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) decision of the State Government is suffering from some illegality, the jurisdiction of the High Court in a writ petition under Article 226 of the Constitution of India is to remit the matter to the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own. The Supreme Court in a judgment reported as (1994) 4 SCC 448 (State of Haryana vs. Naresh Kumar Bali) was examining a question: as to whether there could be a direction to appoint a candidate, who sought appointment on compassionate ground. The Supreme Court held as under:-
"16. With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India v. Asha Ramchhandra Ambekar (1994) 2 SCC
718. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been 11 THE HIGH COURT OF MADHYA PRADESH W.A.No.703/2019 (Sanjay Kumar Jatav Vs. State of M.P. and others) repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article 226."
(10) When the impugned order is tested on the anvil of above analysis, it cannot be faulted with.
(11) Consequently, appeal fails and is dismissed. No costs.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
Pawar/-
ASHISH PAWAR
2019.08.28
11:03:57
+05'30'