Rajasthan High Court - Jodhpur
Ramesh Bishnoi vs Union Of India & Ors on 8 March, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1310 / 2018
Ramesh Bishnoi S/o. Shri Ganpat Ram, aged about 27 years,
resident of House No.67, Village Gajjewala, PO-Ranjeetpura, PS
Bajju, Tehsil Kolayat, District Bikaner (presently R/o. C/o. Shri
Mool Singh, A-89, K.K. Colony, Bikaner (Raj.)
----Petitioner
Versus
1. Union of India through the Secretary, Ministry of Home Affairs,
New Delhi-110 0504.
2. The Director General, Central Industrial Security Force, Block
No.12, CGO Complex, Lodi Road, New Delhi-110 003.
3. The Director, CISF, National Industrial Security Academy,
Hyderabad-500 078 (AP)
4. Senior Commandant, CISF, National Industrial Security
Academy, Hyderabad-500 078 (AP)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. KK Shah
For Respondent(s) : Mr. Deelip Kawadia
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order Reportable 08/03/2018
1. The petitioner by way of filing this writ petition is claiming for the following reliefs :-
"(i) writ petition may kindly be allowed with costs and the impugned order dated 16.01.2018 (communicated vide letter dated 17.01.2018) (Annex.1) may kindly be quashed and set aside and the petitioner may kindly be directed to be sent for training, which has started a few days back only.
(ii) Any other appropriate writ, order or direction which this Hon`ble Court deems just and proper may kindly be passed in favour of the petitioner."
(2 of 11) [CW-1310/2018]
2. The facts as noticed by this Court are that the petitioner is seeking recruitment on the post of Sub-Inspector in Central Industrial Security Force (CISF) in pursuance of advertisement dated 28.3.2015 issued by the Staff Selection Commission. The petitioner passed written examination and physical endurance test and thus was selected and was offered appointment in Central Industrial Security Force vide offer of appointment dated 15.9.2016. The petitioner submitted the verification certificate signed by the Superintendent of Police, Bikaner, in which, it was categorically mentioned that a charge- sheet has been filed against the petitioner on 30.6.2009 in the court of MJM, Kolayat in FIR No.70/2009 for the offence under Sections 354, 447 and 509 IPC pertaining to Police Station, Bajju, District Bikaner and the petitioner has been acquitted from the aforesaid offence on 24.11.2011. Such information was there in the verification certificate dated 30.9.2016. The petitioner was also required to submit Attestation Form, in which, the petitioner clearly mentioned "YES" against the column of information regarding any previous conviction, thus, the petitioner rendered all necessary information regarding criminal case as and when sought by the respondents and did not conceal any material fact.
3. Counsel for the petitioner categorically pointed out that the petitioner's date of birth is 05.9.1991 and charge-sheet of criminal case was filed on 30.6.2009 when the petitioner was minor. Counsel for the petitioner further pointed out that the allegation against the petitioner was that he teased a girl and was harassing her for many days and even went to the extent of (3 of 11) [CW-1310/2018] catching hold of her hand. Counsel for the petitioner stated that the girl and her parents did not depose against the petitioner, hence, order of acquittal dated 24.11.2011 was passed. Counsel for the petitioner argued that the respondents without taking into consideration the facts relating to acquittal and also there being no concealment on the part of petitioner, cancelled his offer of appointment of vide order dated 03.6.2017, thus, the petitioner having left with no option preferred writ petition before this Court against cancellation of offer of appointment, being S.B. Civil Writ Petition No.7522/2017, wherein following order was passed by this Court on 06.12.2017; operative portion reads as follows :-
"3. This Court confines that Avtar Singh (supra) is the latest precedent law governing the field, hence, it would be appropriate to dispose of the matter with a direction to the respondents to consider case of petitioner strictly in light of the guidelines given in Avtar Singh (supra).
4. The decision shall be taken by the respondents within a period of 15 days from today. In case the petitioner is found entitled, he shall be given training alongwith the ongoing training course."
4. The outcome of disposal of earlier writ petition was that the respondents were required to consider petitioner's case within the parameters of precedent law of Avtar Singh as well as the policy/guidelines of respondents. Counsel for the petitioner further pointed out that MHA policy/ guidelines formulated by the respondents dated 01.2.2012 (Annex.R/2) stipulates that a candidate shall not be debarred if he/she has been finally acquitted/discharged by a Court from the offences in-question. Counsel for the petitioner laid emphasis on Clause 2(VI) of the (4 of 11) [CW-1310/2018] guidelines. The relevant portion of MHA Policy Guidelines dated 01.2.2012 reads as follows :
"2 (VI). Involvement in minor offences, traffic violations, juvenile in conflict with law (tried in open courts/Juvenile Justice Boards) and accident cases will not debar any individual for appointment in CAPFs & ARs provided that appointments for the post of Driver and those related to driving will not be offered to the individuals, punished for serious traffic offences."
Counsel for the petitioner also pointed out from the same Policy the offences coming under the head of 'Moral Turpitude', as follows :
"MORAL TURPITUDE Moral Turpitude refers to a conduct that shocks the public conscience and a crime of moral turpitude is inherently base, vile or depraved, contrary to social stands of morality and done with reckless, malicious or evil intent. The following crimes shall definitely be construed as acts of moral turpitude :
a) Murder
b) Voluntary man slaughter
c) Rape
d) Domestic violence
e) Prostitution
f) Blackmail
g) Malicious destruction of property
h) Arson
i) Alien smuggling
j) Harbouring a fugitive
k) Bribery (5 of 11) [CW-1310/2018]
l) Perjury"
Counsel for the petitioner pointed out that the petitioner's alleged act does not fall within the domain of Moral Turpitude offences mentioned in the Policy. Counsel for the petitioner thereafter pointed out that the respondents dismissed the consideration on three counts vide its order dated 16.1.2018 (Annex.1), which reads as follows :
"i) He has merely been acquitted from criminal charges due to lack of adequate evidence and compromise as all the complainants and witnesses turned hostile.
ii) The offence in the charge-sheet U/Ss.354 & 447 IPC, falls in the category of serious offence. MHA guidelines says that "though later on acquitted by extending benefit of doubt or acquitted for reasons that the witnesses have turned hostile due to fear of reprisal by the accused person(s), he/she will generally not be considered suitable for appointment in the CAPF.
iii) As per Para.30(5) of JO dated 21.07.2016 in SLP (C)No. 20525/2011 (Avtar Singh Vs. UoI and Ors.) wherein at Para.30(5) the Hon`ble Supreme Court has authorized the Department to consider the antecedents and the department cannot be compelled to appoint the candidate even when he has made declaration truthfully of a concluded criminal case."
As regards the first reason "acquitted from criminal charges due to lack of adequate evidence and compromise"
counsel for the petitioner argued that this reason could not have been considered by the Screening Committee because the Policy of respondents itself makes it clear that a candidate shall not be debarred if he/she has been finally acquitted/discharged (6 of 11) [CW-1310/2018] by a competent court. As per counsel for the petitioner the second reason mentioned is "the offence in the charge-sheet U/Ss.354 & 447 IPC, falls in the category of serious offence"
which as per the Policy of respondents do not fall within the domain of offence affecting moral turpitude. Learned counsel for petitioner has further submitted that Avtar Singh gives leverage to check antecedents of a candidate, whereas antecedents of the petitioner has not at all been called for by the respondents to show that there was any past criminal antecedent besides the instant case which disqualifies the petitioner from the appointment. Counsel for the petitioner has further emphasized on the fact that the application of mind by the Screening Committee is contrary to the norms, which has to be followed by the respondents and further stated that MHA Policy/ Guidelines clearly bifurcate juvenile offenders and gives protection to them and states that a juvenile who has come in conflict with law and has been dealt with under the provisions of Juvenile Justice Act, she/she shall not suffer any disqualification on account of conviction in an offence under the said law.
5. Counsel for the respondents vehemently opposed the submissions made by counsel for the petitioner by stating that a clear application of policy and precedent law of Avtar Singh is reflected from the decision given by Screening Committee vide order dated 16.01.2018 (Annex.1) wherein petitioner's case was re-examined on 02.1.2018 and a recommendation was made that the petitioner is unsuitable for appointment in CISF, a uniform force. To strengthen his argument, learned counsel for (7 of 11) [CW-1310/2018] the respondents relied upon latest decision of Hon`ble Supreme Court rendered in the case of Union Territory, Chandigarh Administration & Ors. Vs. Pradeep Kumar & Anr. (Civil Appeal No.67 of 2018, decided on 08.1.2018), the relevant portion of which reads as follows :
"15. From the above details, we find that the Screening Committee examined each and every case of the Respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took decision that the Respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per guideline 2(A)(b) and object of such screening is to ensure that only persons with impeccable character enters police force. While so, the court cannot substitute its views for the decision of the Screening Committee.
16. On behalf of the Respondents, much reliance was placed upon Joginder Singh v. Union Territory of Chandigarh and Ors. (2015) 2 SCC 377. In the said case, the Appellant thereon was charged Under Sections 148, 149, 323, 325 and 307 Indian Penal Code but acquitted by the trial court holding that the prosecution has failed to prove the charges levelled against him since complainant as well as injured eye witnesses failed to identify the assailants and the complainant had stated that his signature was obtained on a blank sheet by the Investigating Officer. The case involved was a family dispute. In such facts (8 of 11) [CW-1310/2018] and circumstances, this Court held that acquittal of Appellant Joginder Singh was an honourable acquittal and hence, he should not be denied appointment to the post in question. The decision in Joginder Singh case does not advance the case of the Respondents herein.
17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the Respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.
18. In the result, the impugned judgment is set aside and the appeals are allowed. The cancellation of candidature of the Respondents is upheld. No costs."
Counsel for the respondents argued that since no malafide has been attributed to the Screening Committee, then the decision of Screening Committee must be taken as final and ought not to interfered with by the Courts. Central Industrial Security Force being disciplinary force and the post of Sub-Inspector demands an impeccable integrity and track record besides good character and suitability. Once deficiency in character has been noted by the Screening Committee, then appointment can't be given. Counsel for the respondents further justified that offence under Sections 354 & 447 IPC are of such nature that it would amount to have an impact upon the life of (9 of 11) [CW-1310/2018] petitioner. Counsel for the respondents argued that each and every aspect of the matter was taken into consideration by the Screening Committee in light of Avtar Singh's case and policy/guidelines of MHA and even if disclosure has been made truthfully, then too, an employer has a right to consider fitness of a candidate. Under such circumstance even if petitioner's acquittal is honourable, then too, the petitioner is not entitled for any relief from this Court. Counsel for the respondents has drawn attention of Court to non-obstante clause (iii) and (v). Clause (iii) shall not apply in the case where acquittal is given by giving benefit of doubt and offences are serious as per Schedule-A. Counsel for the respondents has shown Annexure- A-Sections of Indian Penal Code concerning serious offences/moral turpitude, which categorically includes Section 354 IPC as serious offence. In rejoinder, learned counsel for the petitioner stated that Policy itself says that where the Appointing Authority is of the opinion that it is necessary or expedient to do so, it may after consultation with the Ministry of Home Affairs, by order, for reasons to be recorded in writing, relax any of the provisions of this Policy with respect to any individual, class or category of individuals. Thus, the respondents ought to have excluded juvenile offender from conflict of law.
6. After hearing learned counsel for the parties and perusing record of case, particularly, Police/Guidelines of MHA, this Court is of the opinion that the petitioner, who was a minor, (10 of 11) [CW-1310/2018] probably teased a girl and went to the extent of catching hold of her hand and finally the girl and her parents decided to pardon the boy by not giving any evidence against him resulting into acquittal of the petitioner. This Court finds that the respondents while passing impugned order 16.1.2018 (Annex.1) have not adhered to the Policy on the face of it and, therefore, in light of precedent law of Avtar Singh the respondents were required to make application of mind in accordance with their own Policy. The judgment cited by counsel for the respondents will not apply in the present case as here the result of Screening Committee is directly in conflict with Policy of the respondents to deal with such situation, which is a standard policy, uniformly applicable to recruitment of candidates on the post of Sub-Inspector in CISF. Out of the three reasons summarized by the Screening Committee it its impugned order, the petitioner has been disqualified on account of acquittal being not honourable, whereas already this Court has taken note of the fact that the Policy itself states that if a person has been finally acquitted, then his recruitment could be considered. Charge-sheet for the offence under Sections 354 and 447 of IPC falls in the category of serious offence as mentioned in Annex.A but ultimately petitioner cannot be made to suffer disqualification on account of merely charges being levelled against him for the offence under Sections 354 & 447 IPC. This Court also notes that the precedent law of Avtar Singh requires the respondents to consider antecedents. In the instant case, the Screening Committee failed to call for antecedents, except the one, to (11 of 11) [CW-1310/2018] support disqualification of the petitioner. More so, petitioner had been acquitted long before the recruitment process and he disclosed each and every fact regarding criminal case to the respondents as and when required. The policy of the respondents not to penalize the juveniles also clearly helps the petitioner. That being so, the impugned order dated 16.1.2018 (communicated vide letter dated 17.01.2018) (Annex.1) is quashed and set aside; the respondents are directed to activate offer of appointment of the petitioner earlier made to the petitioner for the post of Sub-Inspector in Central Industrial Security Force. The order may be operated upon within a period of thirty days from today and all notional benefits shall be prospectively given.
(DR. PUSHPENDRA SINGH BHATI)J. Sanjay