Madhya Pradesh High Court
Devendra Rathore vs The State Of Madhya Pradesh Thr on 3 January, 2017
Writ Petition No.5171/2015 1
(Devendra Rathore Vs. State of M.P. & Ors.)
3.1.2017.
Shri Sanjay Kumar Sharma, learned counsel for the
petitioner.
Shri Harish Dixit, learned Govt. Advocate for the
respondents/State.
Petitioner has challenged the order dated 19.6.2015 passed by the Assistant Inspector General of Police (Recruitment /Selection) whereby petitioner's candidature to the post of Constable has been cancelled on the ground that a criminal case No.129/2014 was pending against the petitioner under the provisions of Sections 147, 148, 149, 294, 323, 447, 506-B of IPC in which petitioner was acquitted on 23.6.2014 on the basis of compromise.
Learned counsel for the petitioner submits that similar issue has been considered by the Division Bench of Principal Seat at Jabalpur in Writ Petition No.5887/2016 (Arvind Gurjar Vs. State of M.P. & another) wherein considering the law laid down in the case of Avtar Singh Vs. Union of India passed in SLP No. 20525/2011 on 21st July, 2016, Division Bench has held that if criminal case registered against the petitioner has resulted in acquittal of the petitioner on the basis of compromise, it cannot be said that petitioner does not have good character, hence petitioner cannot be denied appointment to the post of Civil Judge, Class II, and consequently allowed the petition. In view of the said judgment, learned counsel for the petitioner prays for quashing of the impugned order with further direction to the respondents/State to consider the case of the petitioner for appointment to the post of Constable in the light of the law laid down in the case of Avtar Singh (supra).
Learned counsel for the respondents/State has relied on Writ Petition No.5171/2015 2 the judgment of the Supreme Court in the case of State of M.P. & Ors. Vs. Parvez Khan as reported in (2015) 2 SCC 591 and has submitted that once petitioner was involved in serious offence, then he is not eligible for appointment in police service because he has secured acquittal through compromise.
The fact remains that in the light of the law laid down in the case of Avtar Singh (supra), wherein in para 22 & 29 the Apex Court has observed as under :-
"22. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed would not have affected adversely fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and Writ Petition No.5171/2015 3 while doing so effect of conviction and background facts of case, nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.
29. 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 or discharging an employee from service. "
it is a fit case to direct the authorities to consider the candidature of the petitioner for appointment on the post of Constable in the light of the aforesaid judgment of the Apex Court. Accordingly, Annexure P/1 is quashed and respondents are directed to bestow their consideration to the case of the petitioner in the light of the law laid down in the case of Avtar Singh (supra) and pass a speaking order within a period of two months from the date of receipt of certified copy of the order.
With the aforesaid, the petition is disposed of.
(Vivek Agarwal) Judge ms/-