Himachal Pradesh High Court
Sanjay Kumar vs State Of Himachal Pradesh And Others on 10 January, 2023
Bench: Tarlok Singh Chauhan, Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.9026 of 2022.
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Reserved on: 06.01.2023.
Date of decision: 10.01.2023.
Sanjay Kumar .....Petitioner.
Versus
State of Himachal Pradesh and others .....Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting? 1 No For the Petitioner : Mr.Sanjeev Bhushan, Senior Advocate with Mr. Rakesh Chauhan, Advocate.
For the Respondents : Mr. Anup Rattan, Advocate General with Mr. Y.P.S. Dhaulta, Additional Advocate General and Mr. J.S. Guleria, Deputy Advocate General, for respondent Nos. 1 to 3.
Mr. Mohan Singh, Assistant OASI present along with records.
Tarlok Singh Chauhan, Judge The instant petition has been filed for grant of the following substantive reliefs:
"i). That appropriate writ, order or direction may very kindly be issued and the impugned order 09.09.2022 (Annexure P-1) and order dated 26.12.2022 (Annexure P-5) 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 2 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 have been appointed, 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 his also, then petitioner be given all financial benefits from the date, he along with the other junior persons of the petitioner have been sent for training, along with interest @ 9% per annum."
2. This is the third round of litigation at the instance of the petitioner.
3. Aggrieved by non-appointment, the petitioner filed CWP No. 6851 of 2022 which was allowed by this Court vide its judgment dated 15.11.2022 in the following terms:
"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.
::: Downloaded on - 10/01/2023 20:35:03 :::CIS 36. 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.
7. 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 and 19 (1) The verification of character and antecedents of the antecedents selected candidates who have been selected provisionally will be carried out through concerned district police but the process for issuance of r 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 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 ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 4 sense, non-compliance with those provisions will 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.
11. 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 ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 5 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.
13. 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, ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 6 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 requirement 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, 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/ ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 7 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:
"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 :
"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 :
::: Downloaded on - 10/01/2023 20:35:03 :::CIS 8"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 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.::: Downloaded on - 10/01/2023 20:35:03 :::CIS 9
(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. r Thus the conviction of the 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.
::: Downloaded on - 10/01/2023 20:35:03 :::CIS 1015. 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 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.
::: Downloaded on - 10/01/2023 20:35:03 :::CIS 1117. An accusation for petty offences, may in a given circumstance, render a person unsuitable for the post.
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However, same standard cannot be applied to each and every post. It is precisely for this reason that the Rule making authority has 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 - 10/01/2023 20:35:03 :::CIS 12
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:-
"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 the petitioner has been found ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 13 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 registration of an FIR cannot be ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 14 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 after getting clearance during investigation and trial and would be offered appointment subsequently ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 15 occurring vacancies for no fault on his part, which may take several years if not decades.
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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 independent decision in the matter."
4. In compliance to the aforesaid orders, 3rd respondent i.e. the Superintendent of Police, Nahan, passed a consideration order dated 26.11.2022 wherein after reproducing the facts, the claim of the petitioner was rejected by according following reasons:
"Therefore, in pursuant of the judgment/order passed by the Hon'ble High Court of HP, matter has been considered and since the petitioner/candidate is involved in criminal case FIR No.113/2019 dated 20.11.2019 u/s 297, 34, 323 IPC registered at Police Station Nahan, therefore, he cannot be given offer of appointment and his offer of appointment is hereby held in abeyance until he gets clearance during investigation or trial as per clause 19(2) of recruitment rules notified vide Govt. of ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 16 H.P. Notification No. Home (A) A (3)-2/2020 dated Shimla- 171002, the 05.08.2022."
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5. The order passed by 3rd respondent was then assailed before this Court by filing CWP No. 8337 of 2022 and the same was allowed by directing 3rd respondent to pass a fresh consideration order keeping in view not only the letter but also the spirit of the earlier order that had been passed by this Court on 15.11.2022 in CWP No. 6851 of 2022. However, 3rd respondent has again rejected the claim of the petitioner for appointment by according the following reasons:
"And whereas, pursuant to the order ibid, the case of the petitioner has been reconsidered. On the reconsideration, the following points came into existence:
1. That the case against the petitioner is pending before the Ld. Trial Court and has not yet concluded. The decision of the case cannot be predicted as the petitioner may be acquitted or convicted by the Ld. Court. If the petitioner is appointed and rendered in police services at this stage, in case of his conviction in future, it will cause loss to the State Exchequer.
2. That there are specific allegations against the petitioner in the complaint that petitioner (Named as Tanu) along with co-accused insulted one human corpse and caused hindrance in performing of funeral ceremony and thereby wounded the feeling of the complainant party. The petitioner also pelted stones at the complainant party due to which Surender Kumar S/o Sh. Babu Ram sustained injuries on the relevant date and time. Hence, feeling of ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 17 society at large have been hurt due to the offence committed by the petitioner and other co-accused.
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3. That in clause 19(2) of Recruitment Rules notified vide Govt. of H.P. Notification No. Home (A) A(3)-2/2020 dated 05.08.2022, it is clearly mentioned that the candidate against whom investigation trial is pending his appointment may be held in abeyance until he gets clearance during investigation or trial. Hence, in the present matter, the appointment of the petitioner was kept in abeyance till the outcome of the criminal case. In case petitioner is offered appointment prior to the clearance during investigation or trial, resultantly the rule 19(2) of recruitment rules notified vide HP Govt. Notification dated 05.08.2021 shall become redundant.
Therefore, in the light of the above narrated facts and circumstances and in pursuant of the judgment/ order passed by the Hon'ble High Court of HP on 01.12.2022, matter has been re-considered and as per Recruitment Rules 19(2) as well as nature and gravity of offence committed by the petitioner namely Sanjay Kumar, this office is unable to offer appointment to the aforementioned petitioner until he gets clearance in the trial.
However, as and when applicant gets clearance from trial in the Court of Law, he will be offered appointment to the post of Constable from occurring vacancy. The case of the petitioner has been reconsidered and decided accordingly."
6. We have heard the learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 10/01/2023 20:35:03 :::CIS 187. It would be noticed that the consideration order consists of three paragraphs.
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8. As regards the first ground, it has been stated that the case against the petitioner is pending and he may be acquitted or convicted by the Ld. Trial Court. But the moot question is whether, in such circumstances, the offence can be said to be of such a serious nature as may amount to moral turpitude and is by itself sufficient to deprive the petitioner of his appointment when admittedly the petitioner alone has not been arraigned as an accused in the FIR that has been lodged where a number of persons have been arraigned. The dispute therein is amongst two groups of villagers. Earlier some beatings had been given to the uncle of the petitioner which led to the registration of the FIR No.110/2019 at Police Station, Nahan, on 14.11.2019 and as many as 9 persons were named in that FIR. However, as a counter-
blast, the opposite party thereafter lodged an FIR No.113/2019 on 20.11.2019 i.e. after six days of lodging of the FIR by the petitioner's uncle. This fact has been duly noticed by the Court while passing the judgment in CWP No.6851 of 2022 as is evident from paragraphs 19 to 21 (supra).
9. Given the factual background, even reason No.2 in itself cannot be a sufficient ground to withhold the appointment of the petitioner, especially, when the uncle of the petitioner was the first to ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 19 lodge the FIR, whereas, the FIR of the opposite party came to be registered much later i.e. after six days.
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10. Likewise, even third reason by construing the word "may"
as "shall" and thereby depriving the petitioner of his appointment is again contrary to the letter and spirit of the order passed by this Court in CWP No. 6851 of 2022 (supra).
11. The 3rd respondent was duty bound to have reached at a decision by taking into account the relevant considerations and should not have taken into account the wholly irrelevant and extraneous considerations. It is not the answer that 3 rd respondent acted bonafide or that he bestowed painstaking consideration. The reasons as given by 3rd respondent are not good reasons as the relevant factors have been kept out of consideration and irrelevant considerations were made the basis of the consideration order.
12. In such circumstances, the instant writ petition is allowed and the impugned orders dated 09.09.2022 (Annexure P-1) and 26.12.2022 (Annexure P-5) are quashed and set aside. The official-
respondents are directed to appoint the petitioner to the post of General Duty Constable (Male) forthwith with consequential benefits of seniority, the same shall, however, be subject to the outcome of the criminal case. However, since the petitioner has not worked on the ::: Downloaded on - 10/01/2023 20:35:03 :::CIS 20 post, the actual monetary benefits shall be payable to him only from the date of this judgment.
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13. Pending application(s), if any, also stands disposed of.
(Tarlok Singh Chauhan) Judge (Virender Singh) Judge 10th January, 2023.
(krt) ::: Downloaded on - 10/01/2023 20:35:03 :::CIS