Rajasthan High Court - Jodhpur
The State Of Rajasthan vs Shiv Puri on 4 July, 2019
Bench: S. Ravindra Bhat, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 695/2019
1. The State Of Rajasthan, through the Secretary, Home
Department, Govt. Of Rajasthan, Jaipur.
2. The Director, Prosecution Directorate, Rajasthan, Room
No. 7116-17, 7226, Food Building Secretariat, Jaipur-
302005.
----Appellants
Versus
Shiv Puri S/o Shri Ganesh Puri, aged About 37 years, B/c Puri,
R/o Outside Usta Ki Bari, Bikaner (Raj.).
----Respondent
For Appellant(s) : Mr.Manish Vyas, AAG
For Respondent(s) : Mr.Vinay Jain
HON'BLE THE CHIEF JUSTICE S. RAVINDRA BHAT
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Reportable Judgment
04/07/2019
1. Issue notice. Mr. Vinay Jain, learned counsel appearing on behalf of the respondent accepts notice. With consent of counsel for both parties, the appeal was heard finally.
2. The state of Rajasthan appeals the decision of a learned single judge, who directed the appointment of the respondent (i.e. a candidate for a post in the Rajasthan Prosecution Subordinate Service, hereafter called "the petitioner"), overruling the contention that he had been held guilty and convicted for offences punishable under Section 307, Indian Penal Code (IPC).
3. The facts of the case are that the petitioner applied as a candidate for one of the 272 posts advertised in the Rajasthan Prosecution Subordinate Service Rules and was selected pursuant to a public recruitment process. He was ranked at 68th position in the merit list. Earlier, he had been charged for commission of crimes punishable under Sections 307, 326,324, 323 read with (Downloaded on 09/07/2019 at 10:17:21 PM) (2 of 9) [SAW-695/2019] Section 148, IPC pursuant to information lodged with the police authorities on 31-05-1999. He and other co-accused stood trial. The petitioner and one Sohan Puri were convicted for committing the offence punishable under Section 307 IPC, on 26-11-2005. The petitioner was sentenced to undergo five years' rigorous imprisonment. He filed an appeal before this court; in that, the sentence imposed on the petitioner was suspended by order dated 12-12-2005.
4. Due to his conviction in a criminal case, the petitioner was denied appointment, though he was ranked high on the merit list. Aggrieved, he preferred a writ petition, SBCW No. 7167/2017, which was disposed of on 28.11.2017 with directions to the respondents to consider the petitioner's representation in light of law laid down in the case of Avtar Singh v. Union of India & Ors. (2016) 8 SCC 471 and pass appropriate orders strictly in accordance with law. The petitioner represented to the state, indicating that his conviction was suspended by this Court and, therefore, he was entitled to be accorded appointment. However, the state by its order dated 19.02.2018, concluded that as the conviction was recorded against the petitioner, in respect of an offense which was not trivial he was disentitled from appointment; the state rejected the representation.
5. In these circumstances, the petitioner approached this court yet again, in a writ petition which was allowed by the impugned order. In that petition, it was contended that in S.B. Criminal Misc. Stay Application No.3718/2016 in his criminal appeal filed by him against the order of conviction, after noticing the fact that the petitioner had cleared the Public Service Commission Examination and if the conviction was not suspended, he would not be appointed. Thereafter, this court suspended the conviction and, therefore, the State was not justified in ignoring the order of suspension of conviction and in refusing the appointment to him. The State, on the other hand, supported the impugned order. It was submitted that the petitioner has been convicted of offenses under Sections 307, 326, 324, 148, 149 and 323 IPC and, (Downloaded on 09/07/2019 at 10:17:22 PM) (3 of 9) [SAW-695/2019] therefore, he was not entitled to be appointed looking at the nature of offenses.
6. The learned single judge, after considering the facts, allowed the writ petition, and directed the petitioner's appointment, holding, inter alia, as follows:
"I have considered the submissions made by learned counsel for the parties and have perused the material available on record. A perusal of the order dated 19.02.2018 (Annex.-8) would reveal that the respondents have passed the order in a mechanical manner by referring to the conviction of the petitioner and coming to the conclusion that the case, in which the conviction was recorded was not trivial in nature, however, the respondents have failed to consider the observations made by this Court while suspending the conviction of the petitioner.
The relevant portion of the order dated 14.12.2016 (Annex.- 1) passed by a coordinate Bench of this Court reads as under:-
"5. I have considered the arguments advanced and have also perused the judgment cited by counsel for the appellant.
6. In the judgment cited before this Court, the appellant therein were convicted under Section 307 of IPC and were sentenced to undergo imprisonment of seven years, a contention was raised that the department has initiated the disciplinary proceedings which may result in termination of his service, the court suspending the order of conviction.
7. In the present case in hand, the appellant has cleared the Public Service Commission examination and has secured 68th rank, if the conviction order is not suspended, the appellant would not be appointed even though he has secured 68th position.
8. Considering the entire facts and circumstances of the case, I deem it just and proper to suspend the conviction awarded to the accused appellant.
9. Consequently, this present application for suspension of conviction is allowed."
Once this Court after taking into consideration the fact that the petitioner was convicted of offense under Section 307 has suspended the conviction of the petitioner noticing that the petitioner has obtained a good position in examination conducted by Public Service Commission, the respondents could not have negated the said order by simply ignoring it. Once the conviction has been suspended noticing the facts and circumstances of the case including the petitioner having cleared the exam, it was incumbent on the respondents to pass order after considering the said aspect and, therefore, the order impugned cannot be sustained. Consequently, the (Downloaded on 09/07/2019 at 10:17:22 PM) (4 of 9) [SAW-695/2019] writ petition filed by the petitioner is allowed. The order dated 19.02.2018 (Annex.-8) is quashed and set aside. The respondents are directed to accord appointment to the petitioner pursuant to his selection, if he is otherwise eligible. However, the said appointment shall remain subject to final outcome of S.B. Criminal Appeal No. 894/2005 pending before this Court and in case, the conviction of the petitioner is upheld, the order of appointment shall stand cancelled automatically and it shall not be required of the respondents to thereafter issue any show cause notice to the petitioner in this regard. The petitioner would be entitled to consequential benefits other than monetary benefits from the date persons lower in merit were accorded appointment by the respondents. The needful may be done by the respondents within a period of six weeks from today."
7. It was argued on behalf of the state that the petitioner's conviction was in respect of serious offences and that the suspension of sentence or even the ground of stay of conviction could not have been determinative. Learned counsel highlighted that selection and appointment of the petitioner was the sole basis of stay of conviction, which had remained on the record for over a decade. It was only after the publication of the merit list that the petitioner realized that the conviction was an impediment to his appointment, and sought for its stay. Counsel highlighted that as a member of the prosecution service, an official is charged with the duty of ensuring that the law is enforced. Having been convicted of serious offences that were heinous, the petitioner could not claim any entitlement to appointment, as long as the conviction was not vacated on the merits. Therefore, the single judge should not have directed his appointment.
8. Counsel for the writ petitioner urged the court not to upset the findings of the single judge. He relied heavily on the previous order of the single judge, who had directed consideration of the petitioner's representation in its proper perspective. The state did not consider the petitioner's claim objectively and decided to decline appointment. It was stressed that the spirit and true purport of the judgment in Avtar Singh (supra) was not followed. Counsel also emphasized that with the stay of conviction, the cloud against the petitioner or embargo against appointment, did not exist. He relied on the decision reported as Navjot Singh Sidhu v State of Punjab (2007) 2 SCC 574 in this regard.
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9. From the factual narrative, it is evident that the single judge premised the impugned order solely on the order staying the conviction and the fact that in the previous writ petition, the court had directed the state to consider the petitioner's claim for appointment in the light of the decision in Avtar Singh (supra). In that judgment, the Supreme Court considered the disparate views of its different Benches, which led to the following points of reference to the larger bench:
"30. When we consider the above principles laid down in the majority of the decisions, the question that looms large before us is when considering such claim by the candidates who deliberately suppressed information at the time of recruitment, can there be different yardsticks applied in the matter of grant of relief.
31. Though there are very many decisions in support of the various points culled out in the above paragraphs, inasmuch as we have noted certain other decisions taking different view of coordinate Benches, we feel it appropriate to refer the abovementioned issues to a larger Bench of this Court for an authoritative pronouncement so that there will be no conflict of views and which will enable the courts to apply the law uniformly while dealing with such issues."
10. Thus, the question that the court decided, after a careful review of its previous rulings, was the effect of withholding or suppression of information relating to a previous criminal charge, by a candidate seeking appointment to a public post under the state or the union. The conclusions recorded in the judgment, inter alia, are as follows:
"While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.
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 (Downloaded on 09/07/2019 at 10:17:22 PM) (6 of 9) [SAW-695/2019] to knowledge of employer, any of the following recourse appropriate to the case may be adopted:-
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.
Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee. 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 all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee."
11. It is therefore, clear that the ultimate decision in a case where the charges are not of a trivial nature and the candidate has been convicted, the employer has the discretion to cancel the candidature. Clearly, therefore, the decision of the state to not issue appointment letter to the petitioner, was in due exercise of that discretion, because it was not disputed (nor even contended to the contrary) that the offence punishable under Section 307 (attempt to murder) is a serious one, which in this case, resulted in a sentence of five years' rigorous imprisonment. The charge and the conviction is of a kind that can under no circumstances be characterized as "trivial"; the offence is triable by a court of sessions.
12. Now, the court proposes to deal with the submissions made (which found favour with the single judge) with respect to the order of stay of conviction made in this case. A three judge Bench of the Supreme Court in Rama Narang v Ramesh Narang (1995) 2 SCC 513 held that the power of the Appellate Court under Section 389, Cr.PC. did encompass the power to stay conviction and also stated that "19....But while granting a stay or suspension of the order of conviction the Court must examine the pros and cons and if it feels satisfied that a case is made out for grant of such an (Downloaded on 09/07/2019 at 10:17:22 PM) (7 of 9) [SAW-695/2019] order, it may do so and in so doing it may, if it considers it appropriate, impose such conditions as are considered appropriate..." This view was reiterated in State of Tamil Nadu v A. Jaganathan (1996) 5 SCC 329, K.C. Sareen v Central Bureau of Investigation 2001 (6) SCC 584 and State of Maharastra v Gajanan 2003 (12) SCC 432. Later in Ravi Kant S. Patil v Sarvabhouma S. Bagali 2007 (1) SCC 673 the Supreme Court observed as follows:
"All these decisions, while recognizing the power to stay conviction, have cautioned and clarified that such power should be exercised only in exceptional circumstances where failure to stay the conviction, would lead to injustice and irreversible consequences."
13. In the present case, the order granting stay of conviction does not discuss the merits of the appeal, or even any details about the offences and prima facie if the appeal has merits, unlike in Navjyot Sidhu (supra) where a fairly in-depth analysis of the nature of allegations, the charges and the findings were considered. What swayed the court, staying conviction in this case, was the sole fact that the petitioner had cleared the selection and if stay was not granted, he would be deprived the appointment. This court is of the opinion that such an order of stay of conviction can hardly inure in favour of a candidate, who is convicted of an offence and whose appeal has not been decided. Significantly, the petitioner did not seek stay of conviction even earlier, or even at the stage when he had applied for selection. Given these facts, the lack of any exceptional feature, save the fact that the petitioner would have been deprived of the chance of appointment, could not be construed as so grave an injustice as to compel the court to grant the order. In other words, there is no discussion of the merits of the conviction or why the appeal has a strong prima facie case; the order is entirely premised on the petitioner's selection and possible prejudice because of denial of appointment.
14. This court recollects that Public Prosecutors are to be independent of the executive and all external influences, also independent of the police and the investigation process. A person (Downloaded on 09/07/2019 at 10:17:22 PM) (8 of 9) [SAW-695/2019] occupying the office is independent of executive interference. He is independent from the Court but has duties to the Court. He is in charge of the trial, appeal and other processes in Court. He is, in fact, a limb of the judicial process, officer of Court and a minister of justice assisting the Court. He has duties not only to the State and to the public to bring criminals to justice according to the rule of law but also duties to the accused so that innocent persons are not convicted. The law expects - or rather strives for- an independent body of prosecuting officers, free from the executive and all external influences, free from police and must be able to enforce the rule of law without fear or favour, advance public interest in punishing the guilty and protecting the innocent.
15. In Ajay Kumar -vs- State 1986 Crl LJ 932, the court, commenting on the impartial role of the public prosecutor appointed to conduct the criminal proceedings in that case, held as follows:
"The public prosecutor is a functionary of the State appointed to assist the Court in the conduct of a trial, the object of which is basically to find the truth and to punish the accused if he is found guilty according to the known norms of law and procedure. It is no part of his obligation to secure conviction of an accused, in any event, or at all costs. Nor is he intended to play a partial role or become party to the persecution of the accused or lend support, directly or indirectly, to a denial of justice or of fair trial to the accused. His plain task is to represent the State's point of view on the basis of the material which could be legitimately brought before the Court at the trial. If all State actions must be just, fair and reasonable, he would be under no less duty as a functionary of the State to discharge his functions as a public prosecutor in an equally just, fair and reasonable manner irrespective of the outcome of the trial. In that sense, he is part of the judicature system, and an upright public prosecutor has no friends and foes in Court. He has no prejudices, preconceived notions, bias, hostility or his own axe to grind. He represents public interest, but is not a partisan in the narrow sense of the term..."
16. These observations are made in the context of the peculiar facts of this case, because the writ petitioner aspires to join the office of the Public Prosecutor. Such being the case, the argument of the state that it did not wish to accept his candidature, despite (Downloaded on 09/07/2019 at 10:17:22 PM) (9 of 9) [SAW-695/2019] his success in the recruitment process, is, in this court's opinion, justified. The state's order, made pursuant to directions in SBCW No. 7167/2017, that he was convicted of a serious offence, and that it therefore exercised discretion not to appoint him, was reasonable.
17. In the light of the above discussion, the impugned order and directions of the learned Single Judge are hereby set aside; consequently, the respondent's writ petition has to fail. The appeal is allowed; all pending applications are disposed of.
(DR. PUSHPENDRA SINGH BHATI),J (S. RAVINDRA BHAT),CJ 99-Parmar/-
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