Himachal Pradesh High Court
Sirmour vs Himachal Road on 15 November, 2022
Bench: Tarlok Singh Chauhan, Virender Singh
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE15th DAY OF NOVEMBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN, JUDGE
&
HON'BLE MR. JUSTICE VIRENDER SINGH, JUDGE
CIVIL WRIT PETITION NO.6851 OF 2022
Between:-
SANJAY KUMAR, AGED ABOUT 24
YEARS, SON OF SH. DEEN DYAL,
R/O VILLAGE & P.O. SURLA,
TEHSIL
NAHAN, DISTRICT
SIRMOUR, H.P.
...PETITIONER
(BY SH. SANJEEV BHUSHAN, SR.
ADVOCATE WITH SH. RAJESH
KUMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (HOME)
GOVERNMENT OF HIMACHAL
PRADESH.
2. DIRECTOR GENERAL OF POLICE,
HIMACHAL PRADESH, SHIMLA-
02.
3. SUPERINTENDENT OF POLICE,
NAHAN, DISTRICT
SIRMOUR, H.P.
4. VIKAS PANWAR S/O SH.
PRADEEP KUMAR, PRESENTLY
UNDER TRAINING AT
POLICE TRAINING CENTRE
DROH, DISTRICT KANGRA,
H.P.
...RESPONDENTS
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2
(BY SH. ASHOK SHARMA, A.G.
SH. J. S. GULERIA, DY.
ADVOCATE GENERAL WITH
SH. RAJAT CHAUHAN, LAW
.
OFFICER)
Reserved on : 07.11.2022.
This petition coming on for orders this day, Hon'ble Mr. Justice
Tarlok Singh Chauhan, passed the following :
ORDER
The instant petition after amendment has been filed kindly be issued by the petitioner for the grant of following substantive reliefs:
i. That appropriate writ, order or direction may very r and the impugned communication (Annexure P-3) dated 09.09.2022 may very kindly be quashed and set aside by further directing the respondents to appoint the petitioner for the post of General Duty Constable (Male) with all consequential benefits of pay, arrear, seniority from the same date when his juniors in the selection process get the same in the interest of law and justice.
ii. That appropriate writ, order or direction may very kindly be issued and the appointment offered to respondent No.4 may very kindly be quashed and set aside in the interest of law and justice and in the alternative if the respondents want to accommodate him also then petitioner be given all financial benefits from the date he alongwith the other junior persons of the petitioner have been sent for training, alongwith interest @ 9% per annum.
iia. That appropriate writ, order, direction may very kindly be issued and clause 19.2 of Recruitment & Promotion Rules dated 05.08.2021 may very kindly be quashed and set aside being violative of various judgments pronounced by this Hon'ble Court, as also the Hon'ble Apex Court, in the interest of law and justice.::: Downloaded on - 15/11/2022 20:33:34 :::CIS 3
2. The respondents on 10.9.2021 issued recruitment notice for filling up the posts of 1334 Constables, out of which, .
103 posts of Constables, were allocated to District Sirmour. The petitioner being eligible applied for the same and after qualifying the written as well as physical test was directed to undergo medical examination, wherein he was declared fully fit.
3. Thereafter, after verifying the antecedents, the respondents on the basis of a case, which was registered against the petitioner, vide FIR No.113/2019 dated 20.11.2019, under Sections 297, 34 and 323 IPC, have kept appointment of the petitioner in abeyance.
4. The respondents have filed reply where they have sought to justify their action of not appointing the petitioner on the ground of his being involved in a criminal case, by placing reliance on Clause-19 of H.P. Govt. Notification dated 5.8.2021 (Recruitment Rules) and Stage-08 of Recruitment Notice dated 10.9.2021.
5. We have heard the learned counsel for the parties and have gone through the material placed on record.
6. It is not in dispute that the petitioner has duly disclosed the pendency of criminal case while filling up the attestation form for his verification of character and antecedents. Thus, there is no concealment on the part of the petitioner.
::: Downloaded on - 15/11/2022 20:33:34 :::CIS 47. Now, the moot question is that whether the respondents could have kept the appointment of the petitioner .
in abeyance on the basis of Clause 19 or not.
Character 19 (1) The verification of character and antecedents and of the selected candidates who have been antecedents selected provisionally will be carried out through concerned district police but the process for issuance of appointment letters will not be withheld due to pendency of such verification.
The appointing authorities will issue provisional appointment letters after obtaining the filled and duly signed attestation form and duly signed r attestation form and self declaration from the candidate. In case, a candidate is found to have been convicted in a court of law, applicant/candidate shall not be offered appointment irrespective of the nature of the offence and the period of sentence.
(2) In case of a candidate against whom investigation trial is pending the offer of appointment may be held in abeyance until candidate/applicant get clearance during investigation or trial. Such a candidate shall be deemed to have become overage on his account alone.
(3) The post may be filled up from the waiting list and the candidate will be offered subsequently occurring vacancy.
The Clause uses word "may" as against "shall".
8. It is well settled proposition of law that the observance of the word 'may' used in the statute is only directory, in the sense, non-compliance with those provisions will ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 5 not render the proceedings invalid. The word 'may' is not a word of compulsion. Going by the plain language, the use of the .
expression 'may' denotes that an enabling power is conferred on the authority concerned. It implies a discretion. it is also settled proposition that the enabling words like 'may' or 'shall' are construed as compulsive depending upon the context, and the objective underlying such provision, the conditions subject to which the power has to be exercised and the consequences that ensue by construing it by one way or the other i.e. permissive or compulsive.
9. It is often said that the word 'may' and 'shall' are used as interchangeable terms while interpreting the statutory provisions notwithstanding their grammatical meaning. But it is not accurate to say that the word 'may' sometimes acquires the meaning of 'must' or 'shall'.
10. As pithily and graphically expressed by Cotton, L.J. in Inre Nichols v. Baker, 59 LJ Ch 661, 'May' can never mean must, so long as the English language retains its meaning; but it gives a power and then it may be a question, in what cases, when any authority or body has a power given to it by the word 'may', it becomes its duty to exercise that power. In other words, it is the context which can attach the obligation to the power compelling its exercise in a certain way. The context, both legal and factual, may impart to the power that obligatoriness.
::: Downloaded on - 15/11/2022 20:33:34 :::CIS 611. As a general rule, the word 'may' is permissive and operative to confer discretion. The ultimate rule in construing .
auxiliary verbs like 'may' and 'shall' is to discover the legislative intent; and the use of the words 'may' and 'shall' is not decisive of its discretion or mandates. The use of word 'may' and 'shall' help the courts in ascertaining the legislative intent without giving to either a controlling or a determinating effect. The courts have further to consider the subject matter, the purpose of the provisions, the object intended to be secured by the statute which is of prime importance, as also the actual words employed.
12. Now, in so far as Clause 19 is concerned, the Rule makers by using the expression 'may', we are of the considered view that the respondents never intended to make Rule 19 mandatory as the authorities were fully aware that merely on account of pendency of investigation or trial, a candidate appointment could not be withheld without actually looking to the nature, seriousness and the gravity etc. of the offence, for which, the candidate has been accused, or else the Rule making authority would have expressly used the expression "shall" and not "may". After all, offences of trivial nature cannot be considered or equated with the offences of heinous and serious nature like rape and murder.
::: Downloaded on - 15/11/2022 20:33:34 :::CIS 713. No doubt, the pendency of criminal case and registration of FIR is to be taken into account while considering a .
candidate for appointment and even at the time of training, as per the Rules, but then even the gravity and nature of the offence has to be considered and, therefore, mere registration of criminal case by itself cannot be a ground for the appointing authority to deny appointment or for that matter withhold regularization. This was so held by this Court in CWP No.2110 of 2019, titled, Rajinder Kumar vs. Himachal Road Transport Corporation & another, decided on 22.10.2019, wherein the Court while dealing with the case of regularization, that was denied to the petitioner solely on the basis of the case registered by the brother of the petitioner as counter blast. It was in this background, that this Court made the following observations:-
5. Pre-condition for regularization, as per the Government instructions is that an employee, who completes three years of continuous service on contract basis, is entitled for regularization. For the purpose of regularization what has to be looked into is; firstly whether he is a fit person for regularization; secondly, whether he has completed three years of continuous service which is mandatory for regularization; and thirdly, whether his character and conduct is good in order to hold the post in Government/Corporation. When these are the facts and reqirement for the purpose of regularization then merely on the ground of registration of a criminal case, a person cannot be deprived of his right of regularization. Since there are many offences which are stated in the IPC but, ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 8 the Head of Office or the Appointing Authority has to look into the nature of criminal case involved. From the FIR produced, the offences against the petitioner are under .
Sections 341, 323 and 34 IPC. These offences are common and trivial in nature in respect of a driver, who has to negotiate his vehicle on public road and it is normal that whenever a person who has to negotiate a vehicle on a public road, touches the Government vehicle. This itself may not be sufficient to register a criminal case. Merely registration of a case itself should not be a ground to deprive the petitioner for regularization. The Head of Office is always presumed that he should protect his employees where cases are filed against its employees. The pendency of a criminal case and registration of FIR is to be taken into account but it depends upon the gravity and nature of the offence. Merely registration of a criminal case itself is not a ground and it shows that the Appointing Authority or the Head of Office has not applied its mind in the present case. Getting an employment/ regularization though is not a fundamental right but consideration for regularization is a fundamental right for the purpose of Article 16 of the Constitution of India. When such is a fundamental right for consideration then while dealing with such rights, the respondents should take all care and caution. The respondents in the present case are dealing with the right to life of an employee which ultimately affects his dependents as well. When such interest is involved, which includes the employee as well as his family members, dealing always should be with more care and caution and not in a mechanical and negligent manner.
6. The Hon'ble Supreme Court in State Bank of India vs P. Soupramaniane, referred supra in para-7 held as to what is the meaning of moral turpitude. It is important and beneficial for Head of the Department to take note of the observations made by the Hon'ble Supreme Court in para- 7, which reads as under:
::: Downloaded on - 15/11/2022 20:33:34 :::CIS 9"7. Moral Turpitude' as defined in the Black's Law Dictionary (6th ed.) is as follows:
"The Act of baseness, vileness, or the depravity in the .
private and social duties which man owes to his follow man, or to society in general, contrary to accepted and customary rule of right and duty between man and man."
"implies something immoral in itself regardless of it being punishable by law"; "restricted to the gravest offences, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind."
According to Bouvier's Law Dictionary, 'Moral Turpitude' is :
r "An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man."
Burton Legal Thesaurus defines 'Moral Turpitude' as :
"Bad faith, bad repute, corruption, defilement, delinquency, discredit, dishonor, shame, guilt, knavery, misdoing, perversion, shame, ice, wrong."
7. In State of Haryana vs. Ved Kaur, referred sura the Hon'ble Supreme Court has also observed in para-8, which reads as under:
"8. The instructions dated 26.03.1975 which were relied upon in the present case, had been considered by this Court in Pawan Kumar v. State of Haryana and another and paragraph 12 of the decision is relevant for present purposes. The said paragraph was as under:
"12. Moral turpitude" is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity. The Government of Haryana while ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 10 considering the question of rehabilitation of ex-convicts took a policy decision on 2-2-1973 (Annexure E in the Paper-book), accepting the recommendations of the .
Government of India, that ex-convicts who were convicted for offences involving moral turpitude should not however be taken in government service. A list of offences which were considered involving moral turpitude was prepared for information and guidance in that connection. Significantly Section 294 IPC is not found enlisted in the list of offences constituting moral turpitude. Later, on further consideration, the Government of High Court of H.P. 6 Haryana on 17/26-3-1975 explained the policy decision of 2-2-1973 and decided to modify the earlier decision by streamlining determination of moral turpitude as follows:
"... The following terms should ordinarily be applied in judging whether a certain offence involves moral turpitude or not;
(1) whether the act leading to a conviction was such as could shock the moral conscience of society in general.
(2) whether the motive which led to the act was a base one.
(3) whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
Decision in each case will, however, depend on the circumstances of the case and the competent authority has to exercise its discretion while taking a decision in accordance with the abovementioned principles. A list of offences which involve moral turpitude is enclosed for your information and guidance. This list, however, cannot be said to be exhaustive and there might be offences which are not included in it but which in certain situations and circumstances may involve moral turpitude." Section 294 IPC still remains out of the list. Thus the conviction of the ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 11 appellant under Section 294 IPC on its own would not involve moral turpitude depriving him of the opportunity to serve the State unless the facts and circumstances, which .
led to the conviction, met the requirements of the policy decision above-quoted."
8. In the light of the observations made by the Hon'ble Supreme Court and the material placed before us, we are of the opinion that a criminal cases when comes in the way of regularization in respect of an employee, it has to be carefully scrutinized by the Head of Office or Appointing Authority, unless it is to be held it is a case of serious nature and colourable exercise of powers."
14. This Court cannot lose sight of the fact that today employment opportunities are scarce commodity in our country.
Every advertisement invites large number of aspirants for limited number of vacancies. However, this by itself may not be sufficient to invoke sympathy for grant of relief where the credentials of the candidate may raise serious question regarding suitability, irrespective of eligibility.
15. The Police service is disciplined service where the yardstick of suitability is different from other services, but there cannot be any mechanical or rhetorical incantation of moral turpitude to deny appointment in service simplicitor. Much of which 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 consideration, albatross around the neck of the candidate, more especially, when the allegations are yet to be ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 12 proved may not always constitute justice and will further depend on fact situation of a case. This was so observed by the Hon'ble .
Supreme Court in Mohammed Imran vs. State of Maharashtra and others (2019) 17 SCC 696.
16. Earlier to that, another three Judges Bench of the Hon'ble Supreme Court while dealing with the suppression of material facts for submitting false information in Avtar Singh vs. Union of India and others (2019) 8 SCC 471, held that, in case of trivial nature, in which conviction and acquittal has 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. The "McCarthyism" is antithesis to constitutional goal, chance of reformation has to be afforded to young offenders in suitable cases, interplay of reformative theory cannot be ruled out in toto nor can be generally applied but is one of the factors to be taken into consideration while exercising the power for cancelling candidature for discharging an employee from service.
17. An accusation for petty offences, may in a given circumstance, render a person unsuitable for the post. However, same standard cannot be applied to each and every post. It is precisely for this reason that the Rule making authority has ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 13 vested the authority with discretion to look into the accusation against an applicant and only thereafter take a decision whether .
to appoint the candidate to the post of a General Duty Constable or withhold the appointment letter during the pendency of the case.
18. Similar issue regarding the appointment of Constable came up before the learned Single Judge of Hon'ble Punjab and Haryana High Court, in CWP No.26398 of 2016 (O&M), titled Amarjeet Singh vs. State of Punjab and another, decided on 13.02.2020, wherein it is held that the appointment of the petitioner cannot be denied only on account of the registration of FIR in spite of being a selected candidate for the post in question. The learned Single Judge while allowing the petition observed, as under :
"The uncontroverted factual premise is that on the date of advertisement and submission of application form there was no FIR against the petitioner. Name of the petitioner figures in FIR No.22 dated 11.07.2016 at Police Station Women Cell Firozepur under Sections 406/498-A IPC at the instance of his sister-in-law. Challan was presented in the Court after completion of investigation on 22.12.2017 and name of the petitioner had been placed in column No.2. Petitioner is not facing trial inasmuch as no charges have been framed against him. Even an application moved by the complainant under Section 319 Cr.P.C. to summon the petitioner herein to face trial as an additional accused stands dismissed by the Trial Court vide order dated 04.06.2019 at Annexure P-12.::: Downloaded on - 15/11/2022 20:33:34 :::CIS 14
This Court is of the considered view that mere registration of an FIR cannot be made the basis and equated with a finding of guilt recorded by a competent Court. In .
other words registration of a case cannot lend the colour of conviction. The action of the respondent department in not 3 of 6 issuing an appointment letter to the petitioner for the post of Constable inspite of his selection and merit position would amount to holding the petitioner guilty of the offence. Such a course of action would be totally unwarranted. In taking such view this Court would draw support from the observations made by the learned Single Judge of the Rajasthan High Court in Harsh Gupta Vs. Rajasthan State Electricity Board 1995, (1) SCT 485 and which are as under:-
r"On the merits of the case, I would like, once again, to make it clear that at the time of selection, the petitioner had no blemish whatsoever against him. The only material which came into existence after his selection is in the form of registration of first information report against almost all the members of the family of the petitioner roping them in an offence under Section 498A IPC. The question is, whether mere registration of a case by the police can be made the basis for holding that the petitioner's character is doubtful or unsatisfactory. The answer of this question will depend on as to whether registration of a case by the police can be equated with a finding of guilt recorded by a competent Court or Tribunal. Registration of a case simpliciter does not automatically result in conviction of a person. It does not per se cause a stigma on character of a person. Therefore, the information which the police had forwarded to the authorities of the Board regarding the character of the petitioner was misleading. Apparently, the authorities of the Board have, without applying their mind, mechanically acted on the report sent by the police authority at Ajmer. Authorities of the Board never bothered to find out as to what is the nature of the allegation levelled against the petitioner; what is the stage of the case and as to whether ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 15 the petitioner has been found guilty of an offence. I am of the considered opinion that action which the respondent- Board has taken is not in terms of para 6 of the order of .
appointment dated 4 of 6 23.11.1991. This view of mine is fully supported by D.B. Judgment of this Court in Gopi Lal v. State of Rajasthan and another, [1989 (2) RLR 748]. The Division Bench has observed as under:
We may, therefore, sum up that the service of a Government servant cannot be terminated or the Government servant cannot be discharged from service only on account of the pendency of a criminal case against him. The reason is obvious. Unless the guilt is proved, one is presumed to be innocent. Moreover, criminal case may be launched out of enmity etc. It is, therefore, the conviction and not the pendency of a criminal case which should be taken into account for disciplinary action."
The judgement in Delhi Administration's case (supra) would have no applicability to the facts of the present case as in that case there was a concealment of being involved in Criminal proceedings whereas in the present case there is no concealment whatsoever as on the date of submission of application for the post by the petitioner, the FIR had not even been registered.
Rule 12.14 (1) of the Punjab Police Rules 1934 reads as under:-
12.14. Recruits - Status of.-- (1) Recruits shall be of good character and great care shall be taken in selecting men of a type suitable for police service from candidates presenting themselves for enrolment."
As per mandate of the afore-reproduced rule the recruits are to be of good character and great care has to be taken while selecting recruits. There is no material whatsoever with the respondent authorities to conclude that the petitioner herein is not of good character. Mere ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 16 registration of an FIR cannot be made the basis of invoking the Rule 12.14 (1) and particularly in a situation where pursuant to investigation having 5 of 6 been carried out, .
the petitioner has not even been challaned and no charges have been framed against him. Denial of appointment letter inspite of being a selected candidate on the strength of Rule 12.14 (1) of the Punjab Police Rules cannot sustain.
19. Adverting to the facts of the instant case, it would be noticed that it was not only the petitioner alone, as an accused in the FIR, but a number of persons have been arrayed as an accused. According to the petitioner, there was a dispute with respect to the cremation place between two groups of villagers.
Earlier some beatings had been given to the uncle of the petitioner, which led to registration of an FIR No.110/2019, at Police Station, Nahan, on 14.11.2019 and there were as many as nine persons named in the instant FIR. As a counter blast, the opposite party lodged and FIR on 20.11.2019, being FIR No.113/2019, that too after six days, which has been lodged solely for roping the uncle of the petitioner.
20. In the facts and circumstances of the case, we are of the considered view that the respondents could not have straightway kept in abeyance the appointment of the petitioner without considering the relevant factors like the nature and gravity of the accusation because, in case, these allegations are subsequently found to be false or not proved in the trial, resulting in acquittal, the same would cause undue hardship to the petitioner, as the petitioner would then be appointed only ::: Downloaded on - 15/11/2022 20:33:34 :::CIS 17 after getting clearance during investigation and trial and would be offered appointment subsequently occurring vacancies for no .
fault on his part, which may take several years if not decades.
21. In the given facts and circumstances of the case, we deem it appropriate to allow the instant petition by directing the third respondent to consider the gravity and nature of offence alongwith all accumulative facts and circumstances including the FIR registered against the petitioner and may thereafter take a decision with regard to the offering appointment to the petitioner or keeping the same in abeyance until the petitioner gets clearance during investigation or trial. We further clarify that while considering the matter, the respondents shall not be influenced by what has been observed above, as the observations are only prima facie and tentative and shall not otherwise be treated as binding on the respondents. Meaning thereby, that the respondents shall take an independence decision in the matter.
22. As regards the prayer made by the petitioner for setting aside the appointment offered to respondent No. 4, the prayer, at this stage is clearly premature and is accordingly rejected.
23. After considering the Rule 19.2 (supra), we really see no reason to quash the same as we have already considered and interpreted the same to be discretionary and not mandatory.
::: Downloaded on - 15/11/2022 20:33:34 :::CIS 1824. The petition stands disposed of in the aforesaid terms, so also pending application(s) if any. Parties are left to .
bear their own costs.
( Tarlok Singh Chauhan) Judge ( Virender Singh ) Judge 15th November, 2022 (chaman/sanjeev) ::: Downloaded on - 15/11/2022 20:33:34 :::CIS