Rajasthan High Court - Jodhpur
Manju Kumari Meena vs The State Of Rajasthan on 4 March, 2020
Author: Dinesh Mehta
Bench: Dinesh Mehta
(1 of 9) [CW-2082/2020] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2082/2020 Manju Kumari Meena D/o Shri Nanaji, Aged About 25 Years, By Caste Meena, Resident Of Village Bilakh (Falasomawat Devi Ghati), Tehsil Rishabhdeo District Udaipur.
----Petitioner Versus
1. The State Of Rajasthan, Through Secretary, Department Of Education (Gr. 2), Government Of Rajasthan, Secretariat, Rajasthan, Jaipur.
2. Joint Director (School Education), Udaipur Division, Udaipur.
3. The District Education Officer, HQ, Secondary Education, Udaipur.
----Respondents For Petitioner(s) : Mr. R. S. Choudhary For Respondent(s) : Mr. Hemant Choudhary JUSTICE DINESH MEHTA Judgment 04/03/2020
1. The petitioner has invoked writ jurisdiction of this Court questioning the action of the respondents, who have not allowed her to join on the post of Physical Training Instructor Grade-III.
2. The facts appertain to the present writ petition are that pursuant to the advertisement dated 04.05.2018, issued for filling up the vacant post of PTI Grade-III in TSP area, the petitioner submitted her application form.
3. Petitioner cleared the written examination and was duly selected. An appointment order came to be issued by respondent (Downloaded on 06/03/2020 at 08:51:30 PM) (2 of 9) [CW-2082/2020] No. 3, requiring the petitioner to join duties by 18.01.2020, subject to furnishing a character certificate.
4. In furtherance of the requirement of character certificate, the Superintendent of Police, Udaipur issued a police verification certificate dated 03.02.2020, indicating therein that the petitioner had two cases, lodged against her, out of which in one case the petitioner has been acquitted vide order dated 25.11.2011 on the basis of compromise, whereas in another case the petitioner has been given benefit of Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the 'Act of 2000'), vide order dated 23.12.2011
5. Mr. Choudhary, learned counsel for the petitioner, submitted that in face of such police verification report, the respondents are not permitting her to join the duties. It is also the assertion of the petitioner that on 07.02.2020, when the petitioner contacted the respondents, they verbally informed her that she would not be permitted to join duties.
6. Mr. Hemant Choudhary, learned counsel for the respondents, submitted that it is true that petitioner was not allowed to join in wake of her involvement in criminal cases. But the same was done in light of the circular dated 4.12.2019 issued by the Department of Personnel.
7. He read the contents of the circular dated 04.12.2019 and submitted that petitioner's criminal antecedents are required to be examined in terms of circular aforesaid and the facts narrated are required to be gone into by the competent authority, as mentioned in the circular dated 04.12.2019.
8. Heard.
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9. Having gone through the charges leveled, this Court is of the view that the cases filed against the petitioner were of trivial nature, given the fact that it was the altercation between the brother and sister, for which two cases came to be registered; she has been acquitted in one case on the basis of compromise (vide order dated 25.11.2011) and in another case, being a juvenile, she was given benefit of Section 15 of the Act of 2000 (vide order dated 23.12.2011).
10. So far as the first case is concerned, in which the petitioner has been acquitted on the basis of compromise, it is to be noted that the Trial Court has accepted the compromise looking to the nature of the offence. Involvement in such case cannot be treated to be adverse to petitioner's character, more particularly after she has been acquitted.
11. Adverting to the other case, it is pertinent that the petitioner was, though, convicted, but has been given benefit of Section 15 (1) of the Act of 2000.
12. Suffice it to observe that the provisions of Section 15 of the Act of 2000 provides a clear immunity from the rigorous of conviction. Section 15 of the Act of 2000 is pari materia to Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015 (hereinafter referred to as the 'Act of 2015'), which is being reproduced hereunder:
"24. Removal of disqualification on the findings of an offence :
(1) Notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law:(Downloaded on 06/03/2020 at 08:51:30 PM)
(4 of 9) [CW-2082/2020] Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict with law by the Children's Court under clause
(i) of sub-section (1) of section 19, the provisions of sub-section (1) shall not apply.
(2) The Board shall make an order directing the Police, or by the Children's court to its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed:
Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children's Court."
13. Rule 12 of the Rajasthan Education Subordinate Service Rules, 1971 provides the procedure for character certificate or disqualification for appointment. The same reads as under :
"12. Character - The character of a candidate for direct recruitment in the service, must be such as will qualify him for employment in the service. He must produce a certificate of good character in which he was last educated and two such certificates written not more than six months prior to the date of application, from two responsible persons not connected with his college or university or school and not related to him.
Note- (1) A conviction by a Court of Law need not in itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with movement which has its object the overthrow by violent means of the Government as by law established, the mere conviction need not be regarded as disqualification.(Downloaded on 06/03/2020 at 08:51:30 PM)
(5 of 9) [CW-2082/2020] (2) Ex-prisoner who by their disciplined life while in prison and by their subsequent good conduct, have proved to be completely reformed should not be discriminated against, on grounds of their previous conviction for purposes of employment in the Service.
Those who are convicted of completeley reformed on the production of a report to that effect from the Superintendent, After-Care-Home or if there are no such Home in a particular district, from the Superintendent of police of that district. (3) Those convicted of offences involving moral turpitude shall be required to produce a certificate from the Superintendent, After-Care-Home, endorsed by the Inspector General of prisons, to the effect that they are suitable for employment as they have proved to have been completely reformed by their disciplined life while in prison and by their subsequent good conduct in an After-Care-Home."
14. Note appended with Rule 12 of the Rules of 1971 clearly provides that the conviction involving offences not relating to moral turpitude per se cannot be regarded as disqualification.
15. A gainful reference of observations of Hon'ble the Supreme Court in the case of Avtar Singh Vs. Union of India & Ors. reported in (2016) 8 SCC 471 would be worthwhile; relevant para(s) thereof are being reproduced hereunder:
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
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 (Downloaded on 06/03/2020 at 08:51:30 PM) (6 of 9) [CW-2082/2020] should be no suppression or false mention of required information.
38.2 While passing order of termination of services or cancellation of 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 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 (Downloaded on 06/03/2020 at 08:51:30 PM) (7 of 9) [CW-2082/2020] 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 Departmentalenquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form. 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 (Downloaded on 06/03/2020 at 08:51:30 PM) (8 of 9) [CW-2082/2020] 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."
16. Looking to the nature of the offence involved and considering the fact that petitioner has been acquitted and given benefit of Section 15 of the Act of 2000, it cannot be said that her character disqualifies her for employment in the service
17. This Court is of the considered opinion that though the petitioner has been given the benefit of provisions of Section 15 of the Act of 2000 only in case relating to FIR No.162/2011 (offences under Sections 323, 325, 504/34 IPC), but she has been acquitted on the basis of compromise in relation to FIR No.13/2011 (offences under Sections 323, 341 & 34 IPC). Even in case No. 13/2011, had the compromise not been arrived at, petitioner would have been given the benefit of provisions of Section 15 of the Act of 2000.
18. In view of the mandate of Section 24 of the Act of 2015 (Section 15 of the Act of 2000) and looking to the fact that both the cases lodged against the petitioner were under Section 323, 341 & 34 of IPC relating to same incident, this Court is of the view that immunity provided by Section 24 of the Act of 2015, equally applies to both the cases and thus, the petitioner cannot be held (Downloaded on 06/03/2020 at 08:51:30 PM) (9 of 9) [CW-2082/2020] ineligible consequent to her conviction or acquittal on the basis of compromise.
19. That apart, in light of the judgment of Hon'ble the Apex Court in Avtar Singh's case (supra) and Rule 12 of the Rules of 1971, this Court does not see any impediment in petitioner's way of securing appointment.
20. As an upshot of the foregoing discussion, the writ petition is allowed. The respondent No.4 is directed to assess petitioner's character certificates, having due regard to observation made hereinabove.
21. The petitioner shall appear before the respondent No.4 - District Education Officer, Headquarter, Secondary Education, Udaipur on 17.03.2020, along with certificate of good character issued by the competent authority, who shall thereafter issue joining order to the petitioner, within a period of ten days.
22. The stay application is also disposed of.
(DINESH MEHTA),J 327-A.Arora/-
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