Rajasthan High Court - Jaipur
Anil Kumar vs State Of Raj And Ors on 11 December, 2018
Author: Alok Sharma
Bench: Alok Sharma
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 13527/2017
Anil Kumar S/o Shri Rohitash, R/o Village Mehara Jatuwas, Tehsil
Khetri, District Jhunjhunu, Rajasthan.
----Petitioner
Versus
1. The State Of Rajasthan Through Principal Secretary,
Department Of Home, Government Of Rajasthan,
Government Secretariat, Jaipur.
2. Director General Of Police, Police Headquarters, Tonk
Road, Jaipur.
3. Superintendent Of Police, District Jhalawar, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Vigyan Shah, Mr. Kamlesh
Sharma, Mr. Rajaram Chaudhary, Mr.
Akshit Gupta
For Respondent(s) : Mr. NM Lodha, Advocate General
Dr. AS Khangarot, Addl. Government
Counsel
HON'BLE MR. JUSTICE ALOK SHARMA
Judgment
11/12/2018
Under challenge is the order dated 19/24.7.2017
whereby the petitioner's representation (against his non
appointment to the post of Constable (Driver) in District Jhalawar
despite his eligibility and merit), made pursuant to the order dated
1.5.2017 in S.B. Civil Writ petition No. 3470/2016 has been
rejected for the purported reason of the petitioner suffering
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criminal prosecution as of the last date of submission of
application (i.e. 22.8.2013) for appointment to the post of
Constable (Driver). It was held that even though the petitioner
was subsequently acquitted in terms of the compromise with the
complainants - such acquittal did not tantamount to a clear and
honourable acquittal rendering the petitioner suitable for
appointment as Constable (Driver).
The facts necessary for the adjudication of the issue
which arises in this petition are that following an advertisement
dated 14.7.2013 for appointment under the Rajasthan Police
Subordinate Service Rules, 1989 (hereafter 'the Rules of 1989')
inter-alia to the post of Constable (Driver) in various districts, the
petitioner applied for one such post in District Jhalawar. Clause
9(ix) of the advertisement provided that the suitability of
candidates applying for the post of Constable (Driver) inter-alia
would be determined in terms of the Circular dated 29.4.1995
issued by the Director General of Police, Rajasthan which had been
upheld by the Apex Court in Civil Appeal No. 782/2004 - State of
Rajasthan Versus Mohammed Salim and consequently those who
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suffered prosecution for offences entailing moral turpitude and
violent acts and had not been honourably acquitted would not be
suitable for appointment.
The petitioner having been admitted to the processes
for recruitment under the Rules of 1989 following his application
pursuant to the advertisement dated 14.7.2013, passed the
written examination and was also successful in the Physical
Standard Test (PST) and Physical Efficiency Test (PET). He found
place in the select list for appointment to the post of Constable
(Driver) in District Jhalawar. Then as required he furnished a
character verification certificate which inter-alia required
disclosure of any criminal case lodged against the petitioner. The
petitioner in the circumstances disclosed two criminal cases
pending against him, one Cr Case No. 94/2013 arising out of FIR
No. 123/2013 , Police Station, Khetri, District Jhunjhunu for
offences under Section 323, 341 and 451 IPC (all minor in nature
as triable by any Magistrate) and the other, Cr. Case No. 343/2012
arising out of FIR No. 211/2012, Police Station, Khetri, District
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Jhunjhunu lodged by petitioner's wife under Section 498A and 406
IPC - against minor and triable by a Magistrate First Class.
The appointments to the post of Constable (Driver) in
District Jhalawar were then made but the petitioner was not so
appointed. In the circumstance, the petitioner approached this
Court under SBCWP No. 3470/2016 challenging his non
appointment on the ground of pending cases against him which
was extraneous to Rule 13 of the Rules of 1989 and its evident
object and purpose. Vide order dated 1.5.2017, the Court directed
that the Committee already constituted by the State Government
to address the cases such as of the petitioner, consequent to the
judgment of this Court in the case of Babu Lal Meena Versus State
of Rajasthan & Ors. - SBCWP No. 2073/2016; decided on
13.2.2017, address on an appropriate representation, the
petitioner's grievance with regard to his non appointment to the
post of Constable (Driver) in District Jhalawar. It would be
appropriate to observe at this stage that this Court while disposing
of the petition directing consideration of his grievance as agitated
before it by a Committee already constituted for the purpose, in-
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fact invoked in a manner of speaking a judicially created
alternative dispute redressal mechanism for reasons of its heavy
docket. When such an order was made by the Court, it was
expected that the grievance of the petitioner remitted for
consideration to the Committee would be justly and fairly
addressed with due application of mind and reasoned order rooted
in facts and law passed. That was however not done and the
Committee under the order impugned rejected the petitioner's
representation mechanically finding in its 'wisdom' and the
'discretion' that the pendency of the minor criminal cases rendered
the petitioner unsuitalbe and even his subsequent acquittal on the
basis of compromise/s dated 12.4.2014 and 26.5.2016 was of no
avail as it was not an honourable and clean acquittal. In so doing,
the Committee has not even adverted to Rule 13 of the Rules of
1989 which is the statutory Rule for character verification of
candidates for appointment as Constables including Constable
(Driver) in the Rajasthan police force. Nor has it even adverted to
the fact which it ought to have for the lawful and fair exercise of
its discretion that the criminal cases against the petitioner were
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not grave in nature as the legislature had made them triable only
by any Magistrate / Magistrate of the First Class in respect of
which the petitioner theoretically would even on conviction be
entitled to the benefit of Section 3 of the Probation of Offenders
Act, 1958 (hereafter 'the Act of 1958') and only an admonition
with all its intended consequent benefits of removal of disabilities.
The order dated 19/24.7.2017 passed by the
Committee rejecting the petitioner's representation is thus quite
inevitably under challenge before this Court. And no wonder this
Court has a heavy docket and will so continue to have if the other
institutions of the Government circumvent their duty to do justice
on the issues before them, more particularly even when the issue
concerned relates to the life, livelihood, manhood and potential
family of citizen. The Apex Court in Ashok Kumar Yadav Versus
State of Haryana [(1985) 4 SCC 4171] has held that it is not only
the duty of Courts to do justice but the very same duty to do
justice also attaches with equal rigor on all institutions of the
government where they are required to exercise discretion in their
functioning.
(7 of 20) [CW-13527/2017]
Mr. Vigyan Shah appearing for the petitioner submitted
that in terms of condition no. 9(ix) of the advertisement dated
14.7.2013 a successful candidate was liable to be held unsuitable
for public appointment only in the event of his being found
involved or convicted of committing offences entailing moral
turpitude, violent acts and anti-national seditious activity. He
submitted that an offence of mortal turpitude entails depravity,
vileness or baseness of a person reflective of his inherent
criminality which in service jurisprudence renders him unsuitable
for public appointment. Mr. Vigyan Shah further submitted that in
any event the advertisement dated 14.7.2013 referred to the
Circular dated 29.4.1995 provides that where a criminal case is
pending against a candidate selected and judgment thereon is
awaited, even though he may not be taken in service but yet if he
is honourably acquitted within three years of his application for
appointment, he is to be considered for appointment - obviously
as per his merit in the select list. Mr. Vigyan Shah pointed out that
the advertisement in the instant case for appointment of
Constable (driver) under which the petitioner applied was issued
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on 14.7.2013. And criminal case no. 93/2013 (where) arising out
of FIR No. 123/2013, Police Station, Khetri, District Jhunjhunu
for offences under Section 323, 341 and 451 IPC ended in
acquittal of the petitioner by way of compromise vide order dated
12.4.2014. Similarly the other Cr. Case No. 343/2012 (where)
arising out of FIR No. 211/2012 , Police Station, Khetri, District
Jhunjhunu lodged by petitioner's wife under Section 498A and 406
IPC, also ended in acquittal of the petitioner by way of
compromise vide order dated 26.5.2016. Thus, Mr. Vigyan Shah
submitted, that both the criminal cases against the petitioner
stood concluded within 3 years of the petitioner's application for
the post of Constable (Driver) in which he had disclosed the
factum of pendency of the aforesaid cases. Mr. Vigyan Shah
submitted that this Court in Rai Sahab Versus State of Rajasthan
and Anr. - 2013 (3) WLC 485 has held in the context of the
Circular dated 29.4.1995 that acquittal on compromise is akin to
honourable acquittal. It was submitted that without more the
petitioner in the facts above is entitled to appointment on the post
of Constable (Driver) in Jhalawar as per his merit in the select list.
(9 of 20) [CW-13527/2017]
Mr. Vigyan Shah in the next leg of his argument then
referred to Rule 13 of the Rules of 1989 to submit that even a
person convicted of an offence if not involving any moral turpitude
nor associated with crimes of violence or a movement which had
as its object to overthrow by violent means the Government, was
entitled to be considered for appointment after he had in terms of
sub-rule (2) of Rule 13 of the Rules of 1989 submitted a certificate
of being reformed by the Superintendent, after-care home or
where no such home obtained from the Superintendent of Police
of the District. Mr. Vigyan Shah submitted that the petitioner with
his acquittal was not even required to submit a certificate of
reformation. Emphasizing the reformative intent of Rule 13 of the
Rules of 1989 and the very narrow and limited band of
unsuitability for employment under the Rules of 1989, Mr. Vigyan
Shah submitted that the petitioner acquitted of non-grave
offences alleged with no element of moral turpitude, on the basis
of compromises which partake the character of honourable
acquittals under the Court's judgment in Rai Sahab Versus State of
Rajasthan (supra), cannot be held unsuitable and denied
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appointment as Constable (Driver) despite his merit in the select
list.
Mr. Vigyan Shah then submitted that the judgment
of the Apex Court in Avtar Singh Versus Union of India (2016)
8 SCC 471 adverted to in the impugned order dated
19/24.7.2017 could not at all have entailed a perfunctory
rejection of the petitioner's representation as has been done.
In fact para 38.6 of the said judgment reads as under:
"(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.
And the discretion under para 38.6 when exercised
has to be judicial, submitted Mr. Vigyan Shah. In so doing, all
relevant considerations have to be accounted for which in the
instant case would be the non - grievous nature of offences
as alleged, their context, subsequent acquittals on
compromise /s akin to honourable acquittal as also the all
important rule 13 of the Rules of 1989 and its distinctly
reformative object & purpose. That having not been done the
discretion of the Committee dismissing the petitioner's
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representation is vitiated by legal malice and hence the
impugned order dated 19/24.7.2017 deserves to be set-
aside. Consequent thereto appropriate directions for the
petitioner's appointment as Constable (Driver) as per his
merit in the relevant select list be passed for upholding of the
rule of law and the interest of justice.
Mr. NM Lodha, Advocate General appearing for the
respondents submitted that the advertisement dated
14.7.2013 for appointment inter-alia of Constable (Driver) in
the State of Rajasthan in clause 9(ix) referred to the Circular
dated 29.4.1995 relating to the suitability for appointment as
Police Constables. Those facing criminal investigation / trial
were not to be appointed. It was submitted that the
petitioner admittedly was facing at the relevant time as of the
last date of submission of the application form i.e. 22.8.2013
criminal investigation / trial in FIR No. 123/2013 Police Station,
Khetri, District Jhunjhunu for offences under Section 323, 341 and
451 IPC (Cr Case No. 94/2013), and in FIR No. 211/2012 Police
Station, Khetri, District Jhunjhunu for the offences under Section
498A and 406 IPC (Cr. Case No. 343/2012). Mr. N.M. Lodha
submitted that petitioner's suitability for appointment thus has to
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be evaluated as on the aforesaid last date of submission of his
application form i.e. 22.8.2013. His subsequent acquittal on the
basis of compromise in both the cases on 12.4.2014 and
26.5.2016 respectively was of no event. It has also been
submitted that the police force is a uniformed force where
discipline is central. A candidate with a past criminal record albeit
relating to criminal investigation / trial albeit for non-grave
offences, triable by any Magistrate / Magistrate of the First Class,
is not suitable for appointment. Mr. N.M. Lodha submitted that in
terms of Avtar Singh Versus Union of India (supra), it is in the
discretion of the appointing authority to evaluate as to whether in
the context of the antecedents of a candidate, which includes
criminal investigation / trial against him, he is suitable for
appointment. That discretion in the instant case has been
reasonably and fairly exercised by a committee of senior police
officers and there is hence no warrant to interfere therewith in the
exercise of this Court's equitable extraordinary jurisdiction under
Article 226 of the Constitution of India merely for the reason that
another possible view could be taken as has been propagated by
the counsel for the petitioner.
Heard. Considered.
(13 of 20) [CW-13527/2017] The appointment to the post of Constable (Driver) is to be made under the Rules of 1989. Rule 13 of the Rules of 1989 material for the determination of the issue in the instant case reads as under:
13. Character. - The Character of a candidate for direct recruitment must be such as to qualify him for employment in the Service. He must produce a certificate of good character from the Principal Academic Officer of the University or College or School 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 School or College or University and not related to him.
Notes.- (1) A conviction by a Court of Law need not of 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 a movement, which has its object to overthrow by violent means a Government as established by law, the mere conviction need not be regarded as a disqualification.
(2) Ex-Prisoners, who by their disciplined life, while in prison and by either subsequent good conduct have proved to be completely reformed, should not be discriminated on grounds of the previous conviction, for purposes of employment in the service. Those who are convicted of offences not involving moral turpitude shall be deemed to have been completely reformed on the production of a report to that effect from the Superintendent. After-care Home or if there are no such homes in a particular district, from the Superintendent of Police of that district. Those convicted of offences involving moral turpitude shall be required to produce a certificate from the Superintendent, After- care Home endorsed (14 of 20) [CW-13527/2017] by the Inspector General of Prisons to the effect that they are suitable for employment as they provided to completely reformed by their disciplined life while in Prison and by their subsequent good conduct in an After-care Home."
The aforesaid Rule makes it quite pellucid that appointment of a meritorious candidate cannot be negated out of hand and mechanically even for reason of a conviction if it does not involve offences of moral turpitude, association with crimes of violence or with a movement with the object of overthrowing and by violent means a government as established by law - all very serious and grave offences. The question then to ask in the context of factors clearly defined for unsuitability for employment in subordinate police services is whether non-grave offences as certain offences may be classified for reason of the legislature making them triable by any Magistrate / Magistrate of First Class which on conviction would in law such as the Probation of Offenders Act, 1958 ordinarily entail only an admonition or probation can entail - despite a subsequent honourable acquittal in actuality --- holding of a meritorious candidate as unsuitable for appointment. The answer to the question has to be an emphatic NO. And that answer attracts to the case at hand where (15 of 20) [CW-13527/2017] to regurgitate, the petitioner at the time of his applying for the post of Constable (Driver) was facing 2 FIRs, one for offences under Sections 323, 341 and 451 IPC (triable by any Magistrate) and the other an FIR for offences under Section 498A and 406 IPC (triable by Magistrate of First Class) - offences generated also by the friction of arranged matrimony, social conditions et al not necessarily entailing inherent criminality at cross purposes with public service. And the trial following the two FIRs have both ended without a conviction on a compromise which the Court in Rai Sahab Versus State of Rajasthan (supra) has held to be akin to a honourable acquittal.
This Court in the case of Kailash Chand Jat Versus State of Rajasthan & Ors. (SBCWP No. 353/2017; decided on 3.12.2018 has in somewhat similar circumstances considered the question as to whether criminal offences not entailing moral turpitude or being of grave nature can, by themselves and without anything more, render an otherwise meritorious candidate unsuitable for appointment to public service. It was held as under:
"The Apex Court in the case of Pawan Kumar Versus State of Haryana (1996) 4 SCC 17 was dealing with a case of removal from service for reason of a conviction under Section 294 IPC (obscene acts and songs) where the accused had entered into a plea of guilty and paid a fine of Rs. 20/-. The Court thereupon considered as to what rendered one unsuitable for (16 of 20) [CW-13527/2017] government appointment (albeit Class-IV then before Court). The Court then proceeded to delineate what moral turpitude rendering unsuitable for appointment was. In this context it observed in para 14 as under:
"Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people through out the country appearing before summary courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost along them being traffic, municipal and other petty offences under the India; Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or in experienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this (underlying mine). Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need be made that punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. This can brook no delay, whatsoever."
The Apex Court in the paragraph reproduced above has exhibited the crying need for justice oriented approach and sensitivity to an individual's life, hope and aspirations such that they are not stymied by a heartless interpretation of law (17 of 20) [CW-13527/2017] with the potential of perpetuating injustice. And in the instant case with reference to facts obtaining, there is also a need for justice through sensitivity in human affairs, [as the Apex Court requires in Pawan Kumar Versus State of Haryana (supra)], taking a pragmatic not pedantic view of law and resurrecting the petitioner's hope in life by extricating him from the morass of laws' otherwise labyrinthine interpretations."
The case of the petitioner is on a higher pedestal than that of Kailash Chand Jat as unlike him facing trial for minor offences the petitioner stands acquitted on a compromise - and hence honourable.
I am of the considered view that offences under Sections 323, 341 and 451 IPC alleged against the petitioner in FIR No. 123/2013 Police Station, Khetri, District Jhunjhunu and offences under Section 498A and 406 IPC alleged against the petitioner in FIR No. 211/2012, Police Station, Khetri, District Jhunjhunu did not even remotely entail any moral turpitude nor any violent act reflective of his character which would constitute a threat to the society or be detrimental to the public interest if he were to be appointed as a Constable (Driver) on his merit.
Besides, it is an admitted fact that Circular dated 29.4.1995 issued by the Director General of Police which was adverted to in the advertisement dated 14.7.2013 itself provided that in the event a meritorious candidate on the select list for appointment in (18 of 20) [CW-13527/2017] the police force were at the relevant time facing trial is acquitted within a period of 3 years from the last date of his application for appointment (in the instant case 22.8.2013), he would be entitled to be considered to be appointed as per his merit. In the instant case, the petitioner has admittedly been acquitted based on compromises on 12.4.2014 and 26.5.2016 respectively in criminal trials following investigation in FIR No. . 123/2013 Police Station, Khetri, District Jhunjhunu for offences under Sections 323, 341 and 451 IPC and in FIR No. 211/2012, Police Station, Khetri, District Jhunjhunu for offences under Section 498A and 406 IPC.
The acquittals are within 3 years of the date of petitioner's application for appointment as Constable. Further as held by this Court in the case of Rai Sahab Versus State of Rajastha (supra) acquittal in criminal trial on the basis of compromise is akin to a honourable acquittal.
The same view has also been taken by the High Court of Punjab and Haryana in the case of Bhagwan Versus The Director General of Police, Haryana (MANU/PH/3662/2015), where it was held:
"that since the accused, victim and the witnesses have compromised / turned hostile the prosecution would not have been able to prove alleged charges and in (19 of 20) [CW-13527/2017] such situation the petitioner would have been honourably acquitted, had the matter been tried on merits."
The upshot of the aforesaid discussion is that the impugned order dated 19/24.7.2017 mechanically passed by the Committee as communicated by the Inspector General of Police, Headquarters, at Jaipur is vitiated by malice in law in failing to reckon for relevant facts and more particularly Rule 13 of the Rules of 1989 and hence deserving of being quashed and set-
aside. It is so. It is held on the facts of the case and state of law adverted to hereinabove that the petitioner is suitable for appointment to the post of Constable (Driver) in district Jhalawar to which he was selected on his competitive merit after due process following the advertisement dated 14.7.2013. The appointments of Constable (Drivers) pursuant to the advertisement dated 14.7.2013 having been made on or about 7.10.2015, the petitioner has already suffered over 3 years delay in his appointment. In the circumstance, it is directed that the petitioner be given in all circumstances the benefit of his selection as Constable (Driver) in District Jhalawar and be so appointed within a period of four weeks from the date of presentation of certified copy of this judgment as per his merit on the select list.
(20 of 20) [CW-13527/2017] Following his appointment as directed, the petitioner would be entitled to all notional benefits.
The writ petition stands allowed, as indicated above.
ALOK SHARMA),J DK Powered by TCPDF (www.tcpdf.org)