Rajasthan High Court - Jodhpur
Imtiyaj Ali vs State Of Rajasthan on 3 March, 2022
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 14240/2021
Imtiyaj Ali S/o Sh. Masum Ali, Aged About 24 Years, R/o Ward
No. 22, Fafiya Colony, Bhinmal, Dist. Jalore (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Animal Husbandary Department, Govt. Of Rajathan,
Secretariat, Jaipur.
2. The Deputy Director, Animal Husbandary Department,
Govt. Of Rajasthan, Jaipur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 16998/2021
Bheeya Ram Jajra S/o Amara Ram, Aged About 45 Years, R/o
Mahesh Nagar, Dangawas, Tehsil Merta, District Nagaur (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Principal Secretary Rural
Development And Panchayati Raj Department,
Government Of Rajasthan Secretariat, Jaipur.
2. Principal Secretary, Department Of Education,
Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.
3. The Director, Elementary Education, Rajasthan, Bikaner,
District Bikaner, Rajasthan.
4. Chief Executive Officer, Zila Parishad, Barmer.
5. Vikas Adhikari, Panchayat Samiti, Pyalla Kalan, District
Barmer.
----Respondents
For Petitioner(s) : Mr. Sushil Bishnoi
Mr. J.K. Vishnoi.
For Respondent(s) : Mr. Pankaj Sharma, AAG
Mr. M.C. Bishnoi,GC
HON'BLE MR. JUSTICE ARUN BHANSALI
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Order
03/03/2022
These writ petitions have been filed by the petitioners aggrieved against rejection of their candidature for appointment to the post of Livestock Assistant and Teacher Gr.-III (Level-II) respectively.
In the case of petitioner - Imtiyaj Ali, he applied pursuant to the advertisement dated 14.03.2018 for the post of Livestock Assistant and was accorded appointment by order dated 04.02.2020 at Sub-centre, Chura, Jalore.
During course of police verification, it was found that against the petitioner in FIR No.183/16, registered under Sections 354, 452, 323, 384 & 327 IPC, trial was pending. The respondents based on the said police verification report by order dated 25.02.2020 relying on Clauses 1(i) & 1(v) of Circular dated 15.07.2016, came to the conclusion that the petitioner was not eligible and consequently cancelled the order of appointment.
In the case of petitioner - Bheeya Ram Jajra, he applied pursuant to the Recruitment Notification dated 11.09.2017 for the post of Teacher Gr.III (Level-II), he was provisionally selected by order dated 08.09.2021 and was accorded appointment by order dated 26.10.2021 by Zila Parishad, Barmer at Government Upper Primary School, Darguda, Block Paylakalan. Pursuant thereto, Panchayat Samiti Paylakalan issued order of appointment on 28.10.2021.
During the course of police verification, it was reported that pursuant to FIR No.74/2015, registered under Section 8/18 of the NDPS Act, 1985, trial was pending against the petitioner and in (Downloaded on 03/03/2022 at 08:39:26 PM) (3 of 9) [CW-14240/2021] FIR No.505/2019, for the offence under Sections 447, 143, 323, 341 another trial was pending against him.
The Vikas Adhikari, Panchayat Samiti Paylakalan by his communication dated 17.11.2021, sent to Panchayat Primary Education Officer, informed him about the pending trials against the petitioner and indicated that the petitioner was ineligible for appointment and consequently, he was not permitted to join pursuant to the order of appointment. The Vikas Adhikari in his communication dated 17.11.2021 referred to circular dated 04.12.2019 issued by the Department of Personnel in this regard.
It is submitted by learned counsel for the petitioners that the action of the respondents in holding the petitioners ineligible for appointment referring to circulars dated 15.07.2016 & 04.12.2019 issued by the Department of Personnel, is not justified.
Submissions were made that there is no bar in the Rules for according appointment to the candidates, who are facing trial in criminal cases. On the other hand, the provisions prescribe that a conviction by a Court of Law need not by itself, entail the refusal of a certificate of good character and the circumstances of the conviction should be taken into account and therefore, the action of the respondents based on the pending trial against the petitioners, cannot be countenanced.
Further submissions were made that this Court in Mahendra Singh Rathore v. State of Rajasthan & Ors. : SBCWP No.19152/2018, decided on 11.02.2019, has referring to the case of Khama Ram Vishnoi v. State of Rajasthan & Ors. : 2000(2) WLC (Raj.) 702 and State of Rajasthan & Ors. v. Mukesh Kumar :
DBSAW No.500/2016, decided on 06.03.2017, has come to the conclusion that mere pendency of the criminal case cannot be a (Downloaded on 03/03/2022 at 08:39:26 PM) (4 of 9) [CW-14240/2021] disqualification, even conviction was not a disqualification and therefore, cancellation of petitioners' appointment / their disqualification is not justified and consequently, the orders impugned deserve to be quashed and set-aside.
Learned Additional Advocate General and Government Counsel appearing for the respondents vehemently opposed the submissions.
It was submitted that it is well within the prerogative of the employer to lay down the conditions for appointment and as the Department of Personnel by its circulars dated 15.07.2016 & 04.12.2019 has clearly laid down the circumstances, in which candidate should be held ineligible for appointment, which includes pendency of trial in relation to nature of cases indicated therein, which includes allegations pertaining to involvement in outraging the modesty of women, NDPS Act etc., the respondents are justified in passing the orders impugned.
Submissions were made that after the judgments in the case of Khama Ram Vishnoi (supra) and Mukesh Kumar(supra), the law now has been settled by the Hon'ble Supreme Court in series of judgments wherein it has been held that involvement in an offence/s involving moral turpitude and violent activities, even where there has been an acquittal, must be honourable and that appointment in such cases would depend on nature of offences charged with and mere acquittal would not be sufficient and that the State employer like any other, has an element of latitude or choice on who should enter its service and once the norms has been fair and reasonable and applied fairly, no interference was required.
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(5 of 9) [CW-14240/2021] It has further been laid down that the State has to take into consideration the Government order applicable to the employee at the time of taking decision and that pendency of criminal case may have adverse impact and appointment authority considering the seriousness of crime can take a decision and therefore, the action of the respondents cannot be faulted.
Reliance has been placed on Avtar Singh v. Union of India & Ors. : (2016) 8 SCC 471; State of Rajasthan & Ors. v. Love Kush Meena : (2021) 8 SCC 774; Commissioner of Police v. Raj Kumar :
AIR 2021 SC 4053.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
At the outset, it may be noticed that petitioner - Imtiyaj Ali is facing trial on allegations of outraging the modesty of women (354 IPC), Extortion (384 IPC), House-trespass (452 IPC), Voluntarily causing hurt (323 IPC) and Voluntarily causing hurt to extort property (327 IPC).
Petitioner - Bheeya Ram Jajra is facing trials (i)- under Section 8/18 of the NDPS Act for possession of narcotics drugs and (ii)- Criminal trespass (447 IPC), Unlawful assembly (143 IPC), Voluntarily causing heart (323 IPC), Wrongful restraint (341 IPC).
Strong reliance has been placed on applicable Service Rules pertaining to the requirement of 'character', wherein by way of note it has been provided that conviction by a Court of Law need not in itself involve the refusal of a certificate of good character, the circumstances of the conviction must be taken into account and if they involve no moral turpitude and association with crimes of violence or with movement which has its object the overthrow (Downloaded on 03/03/2022 at 08:39:26 PM) (6 of 9) [CW-14240/2021] by violent means of the Government as by law established, the mere conviction need not be regarded as disqualification.
A bare look at the provisions relating to character and note appended therein, would indicate that the same is by way of exception and wherein also the condition is non-involvement in cases involving moral turpitude or crimes of violence etc. The Department of Personnel, has issued circulars dated 15.07.2016 & 04.12.2019 referring to the provisions relating to character in the Rules and has clearly laid down guidelines qua cases / circumstances in which the candidates must be held ineligible for appointment. The circulars, inter-alia, provide cases where the involvement is in cases involving outraging the modesty of women, NDPS Act, involvement in offences under Chapter XVI & XVII IPC, 498A IPC, SC/ST Act, 1989 & POCSO Act, 2012.
The Hon'ble Supreme Court in Avtar Singh (supra), wherein the reference was made to the Larger Bench, inter-alia, summarized its conclusion and laid down as under :-
"38.3. The employer shall take into consideration the government orders / instructions/rules, applicable to the employee, at the time of taking the decision. 38.5. 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.
38.8. 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."
Further in the case of Love Kush Meena (supra), a case arising from State of Rajasthan, wherein the petitioner was granted relief by the Court, the judgment was reversed and it was held that merely on account of acquittal the person does not become entitle for grant of appointment.
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(7 of 9) [CW-14240/2021] Similar view was expressed in the case of Raj Kumar (supra), wherein it has been laid down as under :-
"29. Public service - like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service. Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.
30. The High Court's approach, evident from its observations about the youth and age of the candidates, appears to hint at the general acceptability of behaviour which involves petty crime or misdemeanour. The impugned order indicates a broad view, that such misdemeanour should not be taken seriously, given the age of the youth and the rural setting. This court is of opinion that such generalizations, leading to condonation of the offender's conduct, should not enter the judicial verdict and should be avoided. Certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security."
In Union of India & Ors. v. Methu Meda : (2022) 1 SCC 1 again it was laid down that the employer has the right to consider the suitability of the candidate as per government orders / instructions / rules at the time of taking the decision for induction of the candidate in employment.
In Anil Bhardwaj v. Hon'ble High Court of Madhya Pradesh & Ors. : AIR 2020 SC 4971, the declaration of the candidate as unfit for appointment because of pendency of criminal case under Section 498A IPC was upheld.
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(8 of 9) [CW-14240/2021] In view of above position as laid down by the Hon'ble Supreme Court in the case of Avtar Singh (supra) pertaining to the right of the employer to consider the suitability of the candidate as per government orders / instructions / rules at the time of taking the decision for induction of the candidate in employment and subsequent judgments wherein even in cases of acquittal, it has been left to the decision of the competent authority to take a view, which must not be arbitrary and nondiscriminatory as to whether the person should be employed. Further, for pendency of the criminal case, non-suiting of appointment has also been upheld.
Looking to the nature of offences for which the petitioners are facing trial, the same clearly falls within the prohibited offences, for which the circulars clearly provide that the candidate would be ineligible while petitioner - Imtiyaj Ali is facing allegations of outraging the modesty of women and under Chapter XVI & XVII IPC, petitioner - Bheeya Ram Jajra is facing allegations under NDPS Act and Chapter XVI & XVII IPC, and therefore, in those circumstances, the action of the respondents cannot be faulted on any count.
So far as, the judgments in the case of Mahendra Singh Rathore (supra) is concerned, the same is based on judgment in Khama Ram Vishnoi, which judgment in the case of Khama Ram Vishnoi (supra), in light of law laid down by the Hon'ble Supreme Court in the case of Love Kush Meena (supra), Methu Meda (supra), Raj Kumar (supra), has lost its efficacy and therefore, the (Downloaded on 03/03/2022 at 08:39:26 PM) (9 of 9) [CW-14240/2021] judgment in the case of Mahendra Singh Rathore (supra) would not come to the aid of the petitioners.
Consequently, the writ petitions have no substance, the same are, therefore, dismissed.
(ARUN BHANSALI),J Rmathur/-
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