Rajasthan High Court - Jaipur
Rajesh Suman vs . State Of Rajasthan & Anr. on 21 August, 2015
Author: Alok Sharma
Bench: Alok Sharma
In the High Court of Judicature for Rajasthan Bench at Jaipur ORDER S. B. Civil Writ Petition No. 8937/2015 Rajesh Suman Vs. State of Rajasthan & Anr. Date of Order ::: August 21st, 2015 HONBLE MR. JUSTICE ALOK SHARMA Mr. Sameer Sharma for the petitioner
Mr. Virendra Lodha Sr. Advocate with Mr. Jai Lodha for the respondent Nigam The petitioner having been selected on the post of Technician-III as a probationer trainee under the order dated 15.5.2015 issued by the Rajasthan Rajya Vidyut Utpadan Nigam Limited (Hereinafter the Nigam), yet unable to join the said post for the reason of a police report dated 1.6.2015 indicating pendency of a criminal case against him, seeks the intervention of this Court and a direction that he be allowed to join on the post of Technician-III with the Nigam.
The facts of the case are that the Nigam invited applications for appointment as Technician-III. The petitioner on application made was admitted to the examination, passed it successfully and was required to appear for interview on 15.4.2015 before the Selection Committee for verification of his original documents as to his eligibility. He was also required to submit a declaration in the format prescribed that no criminal case was pending against him in any Court and he had not been convicted. If convicted or any criminal case was pending against the petitioner, details thereof was required to be mentioned in the declaration.
The petitioner states to have filed the requisite declaration dated 13.4.2015 disclosing that a criminal case No. 129/2007 was pending against him in the Court of Civil Judge (Jr. Division) South, Kota City under sections 323 and 341 IPC and appeared at the interview for document verification on 15.4.2015. Found eligible and meritorious, vide order dated 15.5.2015 the petitioner was appointed on the post of Technician-III as a probationer trainee for a period of two years subject to terms and conditions set out. Clause 15 of the letter of appointment dated 15.5.2015 provided that it was subject to production of a character certificate and the probationer trainee would be required to produce antecedents / verification report issued from the Superintendent of police of the concerned District where he resided failing which the appointment order would stand automatically cancelled without any further notice / information. Under condition No. 17 the antecedents of the selected candidates could also be got verified from the Police by the Nigam and in case of doubtful or unsatisfactory character, the appointment terminated without notice. Condition No. 19(j) of the letter of appointment dated 15.5.2015 which required a self attested affidavit from the selected candidate that no criminal case was pending against him/her and that he had not been convicted in any criminal case.
The petitioner sought a verification of his character from the Superintendent of Police, Kota City as required by Clause 15 of the letter of appointment dated 15.5.2015. Vide verification report dated 1.6.2015 the Superintendent of Police, Kota City, indicated that the petitioner was facing a criminal case No. 1/2007 for the offence under sections 341, 323, 324, 326, 308 IPC and 4/25 of the Arms Act and was under trial. The petitioner in the circumstances first apparently requested the Joint Director (P&A) of the Nigam to allow him to join on the said post. On the same day, possibly better advised but in circumstances not clear, the petitioner requested the Joint Director (P&A) of the Nigam to extend his joining time clearly hoping to have the pending criminal case relating to offences alleged (owing to a domestic altercation between cousins) triable by a Magistrate, sorted out. On 5.6.2015 the Joint Director (P&A) of the Nigam allowed the petitioner joining time upto 6.7.2015.
However unable to have the criminal case pending against himself resolved and running out of time, the petitioner approached this Court on 2.7.2015 by filing the instant petition with prayers as detailed here-in-above.
Reply to the petition has been filed. The substance thereof is that when called for interview and document verification on 15.4.2015, the petitioner was required to file a declaration in the prescribed format disclosing if he was facing a criminal trial or had been convicted. The petitioner however only submitted an incomplete undertaking indicating therein that he was neither facing any criminal trial nor had been convicted. The petitioner was thus appointed vide letter dated 15.5.2015 subject inter-alia to character verification from the jurisdictional Superintending of Police. It has been submitted that the petitioner is guilty of suppression of the fact of pendency of criminal case during his selection process, filing of a false undertaking as also setting up a case before this Court on the basis of the purported page 2 of the undertaking dated 13.4.2014 which was never submitted before the Nigam. The petitioner then sought time to join vide letter dated 4.6.2015 was allowed time vide letter dated 5.6.2015 upto 6.7.2015. The petitioner has then laid this petition on a false cause of action in the Nigam's alleged arbitrary refusal to allow him to join when it is the petitioner's own inability to comply with the conditions of the appointment letter dated 15.5.2015 owing to his earlier suppression of a criminal case pending during the selection process which is the cause for the petitioner not joining. It has been submitted that it is now disclosed in the writ petition that vide verification certificate dated 1.6.2015 the jurisdictional Superintending of Police found the petitioner an accused in FIR No. 1/2007 Police Station Kunhadi District Kota for offences under section 323, 324, 341, 326 and 308 IPC as also for an offence under section 4/25 of the Arms Act.
Mr. Sameer Sharma counsel for the petitioner has denied both the petitioner approaching this Court with soiled hands or suppressing the fact of the pendency of a criminal case during the selection process for the post of Technician-III. He submitted that without the requisite undertaking being complete as per Clause 12 of the call letter, the petitioner's documents would not have been verified nor could the petitioner have been issued the appointment letter dated 15.5.2015. He submitted that had the undertaking been incomplete at the time of document verification, the petitioner could have been required to complete it. The undertaking was in-fact complete and page 2 thereof disclosed the pendency of case No. 129/2007 for offence under sections 323, 341 IPC before the Court of the Civil Judge (Junior Division) South, Kota. Photo copy of the said undertaking has been filed as Annexure-2 to the petition and no falsity or misrepresentation can be attributed to the petitioner on that count. It has been further submitted that the verification report dated 1.6.2015 issued by the Superintendent of Police, Kota is absolutely erroneous and without application of mind. Counsel pointed out that on 15.3.2007 the case committed to the District & Sessions Judge, Kota was remitted under section 228 of the Code of Criminal Procedure, 1973 to the Chief Judicial Magistrate, Kota finding that the only charges made out against the petitioner were under sections 323, 341, 326 read with 34 IPC- all triable by a Magistrate. Thereupon case No. 129/2007 was registered before the CJM, Kota. As the criminal case in issue arose from an altercation between cousins, the charges under section 323 and 341 IPC has been compounded on an application under section 320 Cr.P.C. vide order dated 29.6.2015 resulting in the petitioner's acquittal in terms of section 320(8) Cr.P.C. This was followed by the charge under section 326 IPC against the petitioner being quashed by this Court in Criminal Misc. Petition No. 3536/2015 on 29.7.2015 noting the request of the complainant and his statement that the case against the petitioner had been initiated on some misunderstanding.
Counsel finally submitted that for public employment, the purpose of character verification/ certificate- all can only be to evaluate the suitability of the selected candidate for the post in issue. Mere pendency of a criminal case removed from the circumstances in which the incident took place, devoid of any consideration of the charges before the trial court and the role attributed to the successful candidate in the criminal case, by itself cannot be sufficient for denial of appointment to public office. The petitioner was not charged with a serious offence such as for murder, rape, dacoity or one relating to violent opposition to a government duly constituted and even fraud or cheating to render him unsuitable for public employment. The petitioner was charged with (now acquitted) of minor offences triable by a Magistrate and that too with the aid of section 34 IPC- by association having been attributed a common intention. This too the complainant has stated to have been occasioned by his misunderstanding and misapprehension. Relying on Rai Sahab Vs. State of Rajasthan & Anr. 2013 (3) WLC (Raj.) 483 and various Judgments of the Hon'ble Supreme Court and this Court referred in detail therein, it has been submitted that the writ petition be allowed as prayed for.
Per contra Mr. Virendra Lodha Sr. Advocate has empathetically reiterated the case set up in the reply to the petition. It has been submitted that an incomplete undertaking was filed on 13.4.2015 wherein a categorical statement of no pendency of a criminal case has been falsely made. Page 2 of the undertaking was not filed and requisite information of pending case No. 129/2007 before the Civil Judge (Junior Division) South, Kota not provided. Even otherwise page 2 of the undertaking purportedly filed on 13.4.2015 does not disclose the charge under section 326 IPC punishable by Life Imprisonment. Had the correct facts of a pending criminal case been disclosed, the letter of appointment dated 15.5.2015 would not have been issued. The said letter of appointment thus having been fraudulently obtained, the petitioner had no right under it. Further in any event the joining time under the Nigam's letter dated 5.6.2015 had been extended only upto 6.7.2015. That has now elapsed and the petitioner has no subsisting right even under the letter of appointment dated 15.5.2015. Sr. Counsel finally submitted that the fact that now the criminal case against the petitioner under sections 324, 341 and 326 IPC has been quashed/ compounded is of no avail as that was subsequent to the petitioner suppressing correct information which by itself exhibits a character unsuitable for appointment to the post of Technician-III.
Heard. Considered.
I find no force in the contention of the counsel for the respondent Nigam that the petitioner had suppressed, during the selection process, the factum of a criminal case pending against him. It is not in dispute that at the time of the petitioner appearing for interview on 15.4.2015 he was required to file an undertaking in the format provided for by the respondent Nigam disclosing any pending criminal case or resulting in correction. The petitioner's say is that in the requisite declaration dated 13.4.2015 filed by him at the time of the interview on 15.4.2015 at page 2 Clause 5 he disclosed the pendency of criminal case No. 129/2007 before the Civil Judge (Junior Division) South, Kota City under sections 341 and 323 IPC. The respondent- Nigam has however stated that only page No.1 of the undertaking upto Clause 3 was filed and page No.2 with Clause 4 and 5 was not submitted. The Nigams case is not credible for the reason that in the event of the requisite declaration being incomplete, it was incumbent upon the Nigam to inform the petitioner requiring him to complete it and in the event of his failure to do so, to reject his candidature. This was not done. Contrarily the Nigam accepted the declaration and selected the petitioner for appointment as reflected in its letter of appointment dated 15.5.2015 where he was placed at S.No. 21 in the list of successful candidates. The mere fact that the petitioner stated at clause 3 of his declaration dated 13.4.2015 that he was being not prosecuted in a criminal case and had not been convicted is of little affect. Clause 3 of the declaration was as formated and cannot be looked at in isolation without regard to the petitioner's disclosure in clause 5 of the declaration at page 2 regarding a pending criminal case against him. Further non-mention of the offence under section 326 IPC in the declaration dated 13.4.2015 cannot be fatal nor the petitioner can be said to have suppressed a material fact- the fact of the pending criminal case already having been mentioned. Besides an offence under section 326 IPC albeit punishable by Life Imprisonment has not been held by the Legislature to be a grave one in as much it is triable by a Magistrate. For reasons detailed above I also find no force in the contentions of the Sr. Counsel for the respondent Nigam that the petitioner has not approached this Court with clean hands and filed page 2 of the declaration dated 13.4.2015 before this Court even while it was not so filed before the respondents on 15.4.2015.
Aside of the aforesaid I am also of the considered view that mere pendency of a criminal case by itself was not a disqualification in the selection to the post of Technician-III. Were it so, the advertisement for the post would have excluded at the very inception and made ineligible all candidates suffering a conviction or facing criminal trial. This was not so. Only subsequent to the success in the written examination a declaration was required with regard to conviction or pending criminal trial. Clause 12 of the call letter reads as under:
A declaration that no criminal case is pending against you in any Court and you have not been convicted in any criminal case. If you have been convicted or any criminal case is pending against you, the detail should be mentioned (Format of declaration enclosed).
Clause 12 of the call letter thus indicates that a conviction or even pendency of a criminal case was not a ground for rejection out of hand. Details of the criminal case pending or of conviction were required to be mentioned. The purpose of the details sought was the evaluation of the conviction or criminal case pending and its bearing on the ability of the selected candidate to discharge his duties on the post in issue and his suitability therefor. Thus even in respect of a criminal case pending or a conviction which was final qua a selected candidate the respondent Nigam was under duty to evaluate the circumstances of the case, the charge framed and role assigned to the selected candidate as the accused. Suitability of the concerned candidate was then to be determined by a considered decision. This has not been done and the petitioner- a duly selected candidate in a written examination is sought to be shut out from obtaining employment as per his merit mechanically and without good cause.
The Hon'ble Apex Court in the case of Commissioner of Police & Ors Vs. Sandeep Kumar, (2011) 4 SCC 644 has taken a lenient and pragmatic view on the consequences to follow from suppression of fact regarding pendency of criminal case attributable to a candidate seeking appointment to public office more particularly when the suppression related to minor not major offences. Para 12 of the aforesaid Judgment may be appropriately, reproduced hereunder:
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. In any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
In Ram Kumar Vs. State of Uttar Pradesh & Others, (2011) 14 SCC 709, the Hon'ble Apex Court held, albeit in the background of a government order, that as the object of verification of the character and antecedents for public employment in respect of a successful candidate was to ensure his suitability for public office, hence a mechanical rejection of the candidature of a candidate for reason of suppression of the fact of a pending criminal case should not necessarily and inevitably follow. It was held that the purpose of verification of character was to evaluate a selected candidate's suitability for appointment and such evaluation ought to be done with due application of mind. I am of the considered view that the observations of the Hon'ble Apex Court in the case of Ram Kumar Vs. State of Uttar Pradesh & Ors. (supra) in the context of a government order would generally apply to cases where a selected candidate is sought to be excluded from public employment for reason of a pending criminal case with regard to minor offences being suppressed by him.
It is no doubt true that the Judgments of Hon'ble Apex Court in the cases of Commissioner of Police & Ors. Vs. Sandeep Kumar and Ram Kumar Vs. State of Uttar Pradesh & Ors. (supra) have been noted by the Hon'ble Apex Court, along-with other Judgments rendered to the contrary, in the case of Jainendra Singh Vs. State of U.P. (2012) 8 SCC 748 and the matter referred to a Larger Bench for an authoritative pronouncement. Yet the Judgments of the Hon'ble Apex Court in the two cases; Commissioner of Police & Ors. Vs. Sandeep Kumar and Ram Kumar Vs. State of Uttar Pradesh & Ors. (supra) were not over-ruled being Judgments of Coordinate Bench of equal strength. Importantly even in Jainendra Singh Vs. State of U.P. (supra) a reference to para 29.4 would indicate that the Hon'ble Apex Court has held that the suppression of the fact of a pending criminal case by the candidate in the course of the selection process by itself would not be enough perse to exclude him from appointment but allegations in the pending criminal case would have to be evaluated for the candidate's suitability with reference to the nature of employment as well as other aspects (emphasis mine) to which appointment is to be made. Further most cases referred to by the Hon'ble Apex Court in Jainendra Singh (supra) taking a view contrary to the Court/s view in Sandeep Kumar and Ram Kumar(Supra) such as in Kendriya Vidyalaya Sangathan Vs. Ram Ratan Yadav (2003) 3 SCC 437, Union of India Vs. M. Bhaskaran, 1995 Supp. (4) SCC 100, Delhi Administration Vs. Sushil Kumar (1996) 11 SCC 605, Bank of Baroda Vs. Central Government Tribunal (1999) 2 SCC 247, R. Radhakrishnan Vs. Director General of Police (2008) 1 SCC 660, Union of India & Others Vs. Bipad Bhanjan Gayen (2008) 11 SCC 314, Daya Shankar Yadav Vs. Union of India & Ors. (2010) 14 SCC 103 and State of West Bengal & Others Vs. Sk. Nazrul Islam (2011) 10 SCC 184, related to consequences of suppression of fact of a pending criminal case in the selection process for appointment in the uniformed services where the Hon'ble Apex Court observed that the antecedents were of great importance. The case at hand is not one of appointment in the uniformed services but as a Technician-III with the respondent-Nigam. Consequently, aside of having held that the petitioner was not guilty of suppression of the fact of a pending criminal case, I am also of the view that even otherwise in the context of the nature of the public employment sought by the petitioner, the pendency of a criminal case relating to minor offences triable by Magistrate in respect of which the petitioner has since been acquitted, should not warrant his exclusion from appointment to the post of Technician-III.
This Court has comprehensively dealt with the issue of denial of appointment on the ground of pendency of criminal cases and where a selected candidate has been acquitted in a criminal case even subsequent to his selection. Reference can be made to the Judgment in the case of Rai Sahab Vs. State of Rajasthan & Anr. (supra). Therein considering various Judgments of the Hon'ble Apex Court and this Court it was observed that in the present era of rampant unemployment depriving an individual from the valuable right of employment on unsubstantial grounds would be unjust and a welfare state as a model employer ought not to be allowed to circumvent the rights of a selected candidate by quibbling about the conditions of appointment which do not go to the root of the matter- unless there has been an egregious attempt at fraud and /or misrepresentation to obtain public employment and unless the lacunae found was ex-facie destructive of the suitability of a candidate. This is not so in the present case.
I am of the considered view that a duly selected candidate should not be deprived of his livelihood for pedantic reasons.
Consequently, I would allow this writ petition and direct the respondents that the petitioner be allowed to join the post of Technician-III as per the letter of appointment dated 15.5.2015.
(Alok Sharma) J.
Sharma NK All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
NK Sharma, Sr.P.A