Madhya Pradesh High Court
Yogesh Bharti vs The State Of Madhya Pradesh on 7 November, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
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THE HIGH COURT OF MADHYA PRADESH
Writ Petition No.17147/2020
Yogesh Bharti Vs. The State of M.P. and others
Gwalior, Dated :07/11/2020
Shri G.S. Sharma, Advocate for petitioner.
Shri Sankalp Sharma, Panel Lawyer for respondents/State.
Heard through video conferencing.
This petition under Article 226 of the Constitution of India has been filed against the order dated 27/10/2020 passed by respondent no.4, thereby rejecting the candidature of the petitioner for his recruitment to the post of Constable, SAF.
2. The necessary facts for disposal of the present petition in short are that in the year 2013, an advertisement was issued for recruitment on the post of Constable in Police Department and the petitioner appeared in the said recruitment process and was declared successful. After the petitioner cleared all the examinations including the physical test successfully, he was called upon to fill up the character verification form in which he disclosed that he has been acquitted in Crime No.440/2011 registered at Police Station Civil Lines, Morena for offence under Section 25 (2) of the Arms Act. Thereafter, the petitioner was given posting under the unit of Commandant, 29 th Battalion, Special Security Force, Datia. By order 5/12/2014, the petitioner was informed that his appointment/candidature has been cancelled in the light of the order dated 19/12/2014 passed by DIG (Security) Bhopal, therefore, he challenged the said order by filing 2 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others Writ Petition No.8203/2015, which was disposed of with a direction to the respondents to decide the representation by passing a speaking order within a period of two months. Accordingly, the representation filed by the petitioner was dismissed by order dated 12/1/2017. The said order was again challenged by the petitioner by filing Writ Petition No.2196/2017, which was allowed by this Court by order dated 2/1/2019 and the respondents were directed to give appointment to the petitioner. The order dated 2/1/2019 passed by this Court was challenged by the State of M.P. by filing Writ Appeal No.931/2020, which was allowed by order dated 28/9/2020 and the directions given by this Court to give appointment to the petitioner was set aside while maintaining the remaining part of the order, the respondents were directed to consider the case of the petitioner for his recruitment. It is submitted that now the respondents by order dated 27/10/2020 have once again rejected the candidature of the petitioner.
3. Challenging the order passed by the respondent no.4, it is submitted by the counsel for the petitioner that once this Court had already come to a conclusion that the acquittal of the petitioner in a criminal case amounted to honorable acquittal, therefore, the respondents should not have cancelled the candidature of the petitioner.
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THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others
4. Heard learned counsel for the petitioner.
5. From the plain reading of impugned order dated 27/10/2020, it appears that while filling up the verification form at the first instance the petitioner had disclosed that he was tried for an offence under Section 25 (2) of the Arms Act and he was acquitted. After the writ petition was allowed by this Court by order dated 2/1/2019 in Writ Petition No.2196/2017, the petitioner was once again called upon to fill up his verification form and at the second instance he disclosed that one more offence under Sections 147, 148, 149, 452, 294, 336 and 323 of IPC in Crime No.198/2016 was registered against him at Police Station Civil Lines, Morena and he has been acquitted by order dated 18/12/2017 on the ground that all the witnesses have turned hostile. The recruitment to the post of Police Constable was initiated in the year 2013 and although the petitioner was contesting his case for recruitment to the post of Police Constable, but it appears that he did not improve his conduct and was involved in commission of another offence. It is not disputed that the petitioner was acquitted because the witnesses had turned hostile. From the impugned order dated 27/10/2020, it is clear that once incised wound admeasuring 7 X 1/4 cm. into bone deep was found on the occipital region of injured Ramveer and one incised wound admeasuring 6 X 1/4 cm. into bone deep was found on the occipital region of another 4 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others injured Angad. Apart from above two mentioned injuries, various other injuries which could have been caused by sharp edged weapon and hard & blunt objects were found on the body of the injured and 32 bore country made pistol was also seized from the possession of the petitioner. Thus, it is clear that although the witnesses might have turned hostile, but looking to the nature of the injuries, which were sustained by them, it can be said that the conduct of the petitioner has made him ineligible for his appointment to the post of Police Constable.
6. The Supreme Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471 has held as under:-
"38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.
38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.
38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :
38.4.1. In a case trivial in nature in which 5 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.
38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.
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.
38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.
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 cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.
38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would take decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.6
THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others 38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.
38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."
The Supreme Court in the case of State of Madhya Pradesh and Others vs. Abhijit Singh Pawar, passed in Civil Appeal No. 11356 of 2018 (Arising out of SLP (c) No.17404 of 2016) by judgment dtd. 26th November, 2018 has observed as under:-
''14. In Avtar Singh (supra), though this Court was principally concerned with the question as to non- disclosure or wrong disclosure of information, it was observed in paragraph 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.
15. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) of Cr.P.C., the law declared by this Court in Mehar Singh (supra), specially in paragraphs 34 and 35 completely concludes the issue.
Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account 7 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.
16. The reliance placed by Mr. Dave, learned Amicus Curiae on the decision of this Court in Mohammed Imran (supra) is not quite correct and said decision cannot be of any assistance to the respondent. In para 5 of said decision, this Court had found that the only allegation against the appellant therein was that he was travelling in an auto-rickshaw which was following the auto-rickshaw in which the prime accused, who was charged under Section 376 IPC, was travelling with the prosecutrix in question and that all the accused were acquitted as the prosecutrix did not support the allegation. The decision in Mohammed Imran (supra) thus turned on individual facts and cannot in any way be said to have departed from the line of decisions rendered by this Court in Mehar Singh (supra), Parvez Khan (supra) and Pradeep Kumar (supra).
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 mala fides 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.'' The Supreme Court in the case of Mohammed Imran Vs. State of Maharashtra and others passed in C.A. No. 10571 of 2018, by order dated 12-10-2018 has held as under :-
''6.Employment opportunities is a scarce commodity in our country. Every advertisement invites a large 8 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that my apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective of all considerations, albatross around the neck of the candidate, may not always constitute justice. Much will, however, depend on the fact situation of a case."
The Supreme Court in the case of Union of Territory, Chandigarh Administration and Ors. vs. Pradeep Kumar and Another, reported in (2018) 1 SCC 797 has held as under:-
''11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision.......
12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India and Others(2016) 8 SCC 471, three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), (SCC p. 508) ''38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider 9 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others antecedents, and cannot be compelled to appoint the candidate."
13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character.
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17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside. The Supreme Court in the case of The State of M.P. and others Vs. Bunty by order dated 14/3/2019 passed in Civil Appeal No.3046/2019 has held as under:-
"13. The law laid down in the aforesaid decisions makes it clear that in case of acquittal in a criminal case is based on the benefit of the doubt or any other technical reason. The employer can take into consideration all relevant facts to take an appropriate 10 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others decision as to the fitness of an incumbent for appointment/continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench."
The Full Bench of this Court in the case of Ashutosh Pawar vs. State of M.P. reported in 2018 (2) MPJR 178 has held as under:-
" Decision of Criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar vs. State of M.P.) is overruled. Another Division Bench judgment in W.A. No.367/2015 (Sandeep Pandey vs. State of M.P. and others) is also overruled. Jurisdiction of the High Court in a writ petition under Art. 226 of the Constitution of India is to examine the decision-making process than to act as Court of appeal to substitute its own decision. In appropriate case, if the Court finds decision- making process is arbitrary or illegal, the Court will direct the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own.
The expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity of a candidate who seeks appointment as 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any taint. The standard of conduct in the case of Judicial Officer is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well. The same must be in tune with the highest standard of propriety and probity."
The Suupreme Court in the case of State of Orissa Vs. Gobinda Behera by Judgment dated 31-1-2020 passed in C.A. No. 893 of 2020 has held as under :
7. The respondent was seeking public employment in the State police service. His duties, on appointment to the service, would be of a responsible character, bearing intrinsically on the maintenance oflaw and order and with consequences for personal liberty of citizens. To expect that an application for such a position would be truthful in the disclosure of information sought about the antecendents is a justifiable basis for assessment of personality and character. The employer can legitimately conclude that a person who has suppressed material facts doesnot deserved to be in employment.
7. Accordingly, this Court is of the considered opinion that even prior to advertisement for recruitment to the post of Police Constable, the petitioner was involved in commission of crime and an offence under Section 25 (2) of the Arms Act was registered against him. Thereafter, in the year 2016, i.e. subsequent to initiation of the recruitment process, the petitioner was once again involved in commission of an offence. Although in both the cases the petitioner 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.17147/2020 Yogesh Bharti Vs. The State of M.P. and others was acquitted, but in Crime No.198/2016 he was acquitted because the witnesses had turned hostile. Looking to the nature of injuries, which were sustained by the injured persons, it is clear that the injured were beaten mercilessly by the applicant and the other co-
accused persons. The acquittal of the petitioner on the ground that witnesses had turned hostile cannot be said to be an honorable acquittal. The employer can always decide the question of suitability of a candidate. The Police Department is a disciplined force with men in uniform and any person, who has a criminal mindset and was involved in two criminal cases, i.e. one prior to recruitment process and another subsequent to the recruitment process, cannot be held eligible for holding the post of Police Constable. Accordingly, this Court is of the considered opinion that the respondents did not commit any mistake by rejecting the candidature of the petitioner for the post of Police Constable.
8. Accordingly, the petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun* Digitally signed by ARUN KUMAR MISHRA ARUN KUMAR MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=51f931b13b82ad5df5aefb2200fa24abe6935164546dbcd5c17c43c78b5ee233, cn=ARUN KUMAR MISHRA Date: 2020.11.10 17:01:03 +05'30'