Rajasthan High Court - Jodhpur
Rai Sahab vs State (Personnel) & Anr on 27 April, 2013
Author: P.K. Lohra
Bench: P.K. Lohra
[1]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Rai Sahab V/s. State of Rajasthan & Anr.
S.B. CIVIL WRIT PETITION NO.4229 OF 2012
Writ Petition under Article 226 of the
Constitution of India.
***
Date of Judgment:: April 27, 2013
PRESENT
HON'BLE MR. JUSTICE P.K. LOHRA
Mr. Raman Deep Singh Kharlia, for the petitioner.
Mr. I.S. Pareek, Addl. Govt. Counsel, for the respondents.
Reportable
BY THE COURT:
The core issue, which requires judicial scrutiny in this petition, is whether "honourable acquittal" of an individual for an offence attributed to him can be insisted by the employer to facilitate his appointment after due selection and what are the legal attributes of the term "honourable acquittal"?
Character of someone is vital for adjudging his suitability for the job. Louis Nizer has rightly summed up the "character" in these lines:
"There is no substitute for character and there is no room about where you find it."[2]
This petition under Article 226 of the Constitution of India is laid by the petitioner for assailing the impugned order dated 13th of April 2012 (Annex.6) with a prayer to quash the same. Apart from the relief of besetting the impugned order, the petitioner has also sought a direction against the respondents to declare him suitable for the post of Constable and offer him appointment on the said post pursuant to his selection which was made as per Rajasthan Police Subordinate Service Rules, 1989 (for brevity, hereinafter referred to as 'the Rules of 1989').
Succinctly stated, the facts of the case are that in the year 2010 process for recruitment on the posts of Constables was initiated by the respondents in adherence of the Rules of 1989 vide advertisement dated 14th October 2010. Being eligible for direct recruitment, the petitioner offered his candidature for selection and he was adjudged suitable. As per the petitioner, he has also qualified the physical fitness test and his name figures at Serial No. 28 in the select list. Pursuant to the selection, the petitioner was asked to submit relevant documents vide letter dated 16th July, 2011 (Annex.5). After submission of the documents, the petitioner received a communication dated 13th April [3] 2012 (Annex.6), whereby he was declared unsuitable for the job by citing the reason that in criminal case No.182 of 2005 under Sections 341, 323 and 34 Indian Penal Code his acquittal was not honourable. In substance, in the impugned communication, it is clarified that taking into account the character and antecedents of the petitioner, he cannot be offered appointment on the post of Constable. Calling in question the communication (Annex.6), the petitioner has urged in the writ petition that the same is absolutely arbitrary and unreasonable. He has further attacked the communication Annex.6 on the anvil of it being a consequence of non-application of mind without considering the intent of Rule 13 & 14 of the Rules of 1989. While referring to the memorandum issued by the department dated 29th of April 1995, the petitioner has averred in the writ petition that he has not concealed any material information while applying for the job nor he was involved in any offence involving moral turpitude and as such the communication is not sustainable. While taking a dig at the phraseology employed in the memorandum "acquitted honourably", the petitioner has narrated in the writ petition that the memorandum has not been interpreted properly and looking to the petty offences, which were attributed to the petitioner, denial of appointment to him is bad in law.
[4]
The writ petition is contested by the respondents and reply to Show Cause Notice was submitted. While stoutly defending the impugned communication, the respondents have urged in the reply that acquittal of the petitioner for the offences under Section 323, 341 and 34 IPC was by way of compromise which means that the petitioner has admitted his guilt and as such the same cannot be construed as "honourable acquittal". Laying stress on the observations of the Apex Court in the case of Delhi Administration Vs. Sushil Kumar [(1996) 11 SCC 605], the respondents have submitted in the reply that verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State. In the return, the respondents have also referred to the judgment of Apex Court in case of R. Radhakrishnan Vs. Director General of Police [(2008) 1 SCC 660). As per the version of the respondents in the reply, the petitioner was denied appointment for the reason that he was involved in the act of violence and his acquittal was by way of compromise and it was not an honourable acquittal. Joining the issue with the petitioner on construction of Rule 13 of the Rules of 1989, the respondents have averred in the reply that the petitioner has misconstrued Rule 13 of the Rules of 1989. [5] Emphasizing the memorandum dated 29th of April 1995 issued by the Director General of Police, the respondents have submitted in the reply that any candidate involved in violence is not eligible for appointment in the disciplined forces.
I have heard the learned counsel for the parties and scanned the materials on record.
Learned counsel for the petitioner, Mr. Ramandeep Singh Kharlia, has argued that the petitioner has not concealed any material information from the respondents and therefore his minor indiscretion ought to have been overlooked by the respondents before issuing the impugned communication. Learned counsel for the petitioner has further submitted that acquittal of the petitioner for the offences under Section 323, 341 and 34 IPC, may be by way of compromise, cannot be construed as an embargo for his appointment to the post of Constable in the given circumstances. The learned counsel for the petitioner Mr. Kharlia has further contended that having adjudged the suitability of the petitioner for the post, now it is not expected from the respondents to deny him appointment on the technical ground of so called character and antecedents verification, more particularly when the [6] petitioner has been exonerated from the charges by a competent criminal court. Assailing the action of the respondents, the learned counsel for the petitioner has strenuously urged that the petitioner was not involved in any offence involving moral turpitude and after his acquittal, may it be by way of compromise, the insistence of honourable acquittal is per-se fallacious and therefore the impugned communication cannot be sustained. Learned counsel for the petitioner has also questioned the impugned communication by arguing that it is a glaring example of outcome of mechanical exercise of power and non- application of mind and consequently the same cannot be sustained. To substantiate his arguments, the learned counsel for the petitioner has placed reliance on the following judgments:
1. Commissioner of Police & Ors. Vs. Sandeep Kumar [(2011) 4 SCC 644]
2. State of Rajasthan & Ors. Vs. Girish Kumar [D.B. Civil Special Appeal (Writ) No.231 of 2012, decided on 23.04.2012]
3. Prema Ram Dukia Vs. State of Rajasthan & Ors. [2012 (3) WLC (Raj.) 528]
4. Kunj Behari Meena Vs. State of Rajasthan & Ors. [2009 (4) WLC (Raj.) 43]
5. Subhash Chand Vs. State of Rajasthan & Ors.
(S.B. Civil Writ Petition No.3625 of 2008, decided on 22.12.2008)
6. Munni Ram Kadwasara Vs. State & Ors. (S.B. Civil Writ Petition No.12206 of 2011, decided on 04.05.2012)
7. Ram Kumar Vs. State of U.P. & Ors. [JT 2011 (9) 200] [7] In Commissioner of Police's case (supra), the Apex Court, while considering the fact that the incumbent has concealed his involvement in criminal case under Section 325/34 IPC, gave him clean chit by holding that the so called offence was committed by him as a youth by observing that youth often commit indiscretions, which are often condoned. The Apex Court in Para 12 of the judgment observed as infra:
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. At 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 case of D.B. Civil Special Appeal (Writ) No.231 of 2012 (supra), a Division Bench of this Court has upheld the order passed by the learned Single Judge by observing that mere registration of a criminal case against an incumbent is not an impediment to offer him appointment on the post of Constable in terms of memorandum dated 29th of April 1995.
In Pema Ram Dukia's case (supra) also, learned Single Judge of this Court has opined that concealment by [8] someone for his involvement in offences under Sections 341, 323/34 IPC, wherein he was subsequently acquitted or given benefit of probation, while offering his candidature for selection, cannot be viewed seriously and therefore in the peculiar facts and circumstances of that case, the Court has taken a lenient view and granted him relief. The learned Single Judge in this behalf made following observations in Para 11 & 12 of the verdict:
11. Upon perusal of the aforesaid judgment, it is abundantly clear that Hon'ble Supreme Court held that youth often commit indiscretions which are often condoned. It is also observed that probably the applicant did not mention the fact out of fear that if he did so he would automatically be disqualified, therefore, at any event, it was not such serious offence as murder, rape or dacoity calling for a serious view, therefore, more lenient view should be taken in such matters.
12. After taking into consideration the facts of the present case, it appears that the case under Sections 341, 323/34, IPC was registered against the petitioner, in which, he was acquitted for offence under Section 341, IPC but held guilty for offence under Section 323/34 IPC, and the criminal Court released the petitioner vide judgment dated 24.07.2007 while giving him benefit under Section 3 of the Probation of Offenders Act much prior to the advertisement for appointment was issued; meaning thereby, the facts of the cited case render strength to the case of the petitioner herein.[9]
In Kunj Behari Meena's case (supra), the learned Single Judge of this Court while considering the effect of pendency of case under Sections 323, 352 IPC has held that these are not the offences involving moral turpitude; therefore, mere pendency of the criminal case under these sections cannot be construed as a valid ground for denial of appointment. The Court has observed that such denial is arbitrary and contrary to rules. The learned Single Judge made following observations in Para 8 & 9 of the judgment:
8. I am in respectful agreement with the aforesaid judgment of this Court in Mukesh Kr. Arvind v. State and Another and am of the view that the denial of appointment to the petitioner on the ground of pendency of the criminal case for offences u/s 452/323 IPC, which does not involve moral turpitude or violence, therefore, the same is not only contrary to Rule 16 of the Rules of 2008 but arbitrary also.
9. A careful reading of Rule 16(3) and 16(4) of the Rules of 2008 would reveal that even ex-prisoner or convict of moral turpitude or violence is also entitled for employment subject to production of suitability/reformation certificate of the Prescribed Authority. Thus, the conviction even of offences of moral turpitude or violence is not totally prohibited. In Subhash Chand's case (supra), learned Single Judge of this Court while considering registration of the case against an individual under Section 341 & 323 IPC read with Section 34 IPC at the tender age of 15 has held that at the time of registration of the case, the incumbent was minor [10] and furthermore he has subsequently been acquitted for the offences, cannot be deprived of his right to appointment after due selection on the post of Constable.
In Munni Ram Kadwasara's case (supra) also, the learned Single Judge granted indulgence to the petitioner despite concealment on his part about the registration of criminal case under Section 447, 147, 148, 149, 427 and 379 IPC and issued directions to consider his case for appointment pursuant to advertisement.
In Ram Kumar's case (supra), the Apex Court had the occasion to consider the involvement of an incumbent for offence under Section 324, 323 and 504 IPC and despite his concealment and filing of wrong affidavit about registration of case, quashed and set aside his termination order by taking into account the fact that subsequently he was acquitted for the offences. While construing the Government order for verification of the character and antecedents of the government servant, the Apex Court made following observations in Para 7 and 7.1 of the said verdict:
7. We have carefully read the Government Order dated 28.04.1958 on the subject 'Verification of the character and antecedents of government servants before their first appointment' and it is stated in the Government [11] order that the Governor has been pleased to lay down the following instructions in supersession of all the previous orders.
"The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point."
7.1 It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
Per contra, learned Addl. Government Counsel Mr. I.S. Pareek has vehemently argued that there is no infirmity much less legal infirmity in the impugned communication. The learned counsel for the respondents would urge that while issuing the impugned communication, the competent authority has considered all the pros and cons and applied its mind in the light of rigor of memorandum dated 29th of April 1995 and therefore no interference with the impugned communication is [12] warranted. The learned Addl. Govt. Counsel has contended that the petitioner was involved in the act of violence and offences involving moral turpitude, therefore, he was not eligible for appointment in police force. Mr. Pareek with full vehemence at his command has urged that acquittal of the petitioner as a consequence of compromise between the rival parties amounts to admission of guilt and the same cannot be construed as honourable acquittal within the four corners of memorandum dated 29th of April 1995. Thus, according to the learned counsel for the respondents, the competent authority has rightly pressed into service the intent of memorandum dated 29th of April 1995 while issuing the impugned communication and the same cannot be faulted in any manner whatsoever. The learned Addl. Government Counsel has contended that verification of character and antecedents of an incumbent, who is aspirant for recruitment in disciplined force, cannot be liberally construed so as to render it an empty formality. According to learned counsel for the respondents, a member of disciplined force is entrusted the duties of maintaining law and order and therefore in the matter of verification of his character and other antecedents no latitude is permissible and for achieving the said objective the memorandum dated 25th of April 1995 has been issued by the Director General of Police. The learned Addl. Government Counsel, in [13] support of his contentions, has placed reliance on the following judgments:
1. Delhi Administration Vs. Sushil Kumar [(1996) 11 SCC 605]
2. Rajendra Vs. State of Rajasthan & Ors. [D.B. Civil Special Appeal (Writ) No.119 of 2011, decided on February 22, 2013]
3. State of Rajasthan & Ors. Vs. Mohammed Saleem (Civil Appeal No.782 of 2004, decided on December 10, 2009)
4. Jainendra Singh Vs. State of U.P. [(2012) 8 SCC 748] In Delhi Administration's case (supra), the Apex Court while considering the importance of verification of character and antecedents for appointment to the post of Constable has held that the same is an important criterion to test whether the selected candidate is suitable to the post under the State. The Apex Court, in this behalf has made following observations in Para 3 of the verdict:
3. This appeal by special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6-9-1995 in OA No.1756 of 1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No.65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated [14] 18.12.1990 culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedent is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service.
In Rajendra's case (supra), Division Bench of this Court had occasion to consider the impact of concealment of conviction by an individual. The Division Bench, while [15] taking note of the fact that the incumbent was convicted for a minor offence under Section 9/11 of the Rajasthan Smoking Act, declined to interfere with the order passed by the learned Single Judge. Division Bench made following observations in the said verdict:
"Upon hearing the learned counsel for the parties and on a consideration of the materials on record, in particular, the application form as well as verification rolls submitted by the appellant/writ petitioner, we are of the unhesitant opinion that the view taken by the concerned State authority and sustained by the learned Single Judge is a plausible one. Not only the application form reflects in clear terms the corrections made by the appellant/writ petitioner to the answers in the negative provided earlier, the verification rolls submitted later on by him on the query bearing on his conviction in a criminal case and consequential punishment, do not tally therewith. Not only in the first verification roll, the answer had been negative to the query No.8 as above, in the second verification roll permitted to be submitted by him by the concerned State authority, he furnished a wrong case number asserting that he had not been convicted or punished in the said case. This, to say the least, is not borne out and is otherwise belied by the judgment and order dated 24.9.2008 passed in Criminal Original Case No.6/2008 by the learned Additional Civil Judge (J.D.) cum Judicial Magistrate No.7, Jodhpur whereby he was not only convicted under Section 9/11 of the Rajasthan Smoking Act but was imposed the punishment of a fine of Rs.200/- in default simple imprisonment for seven days. These inconsistencies in the inputs furnished by the appellant/writ petitioner, in our view, in the face of the consequence of cancellation of the candidature as contemplated under the declaration appended to the application form, as taken note of by the concerned State [16] authority, in denying appointment to the appellant/writ petitioner, cannot be brushed aside as insignificant and inconsequential. We find ourselves in agreement with the analysis of the facts and ultimate conclusions recorded by the learned Single Judge. In this view of the matter, we do not feel persuaded to intervene."
In Mohammed Saleem's case (supra), the Apex Court, while upsetting the Full Bench decision of this Court, has upheld the memorandum dated 29th of April 1995. The observations made by the Apex Court are reproduced as infra:
"Learned counsel for the respondent submitted that a Full Bench of the Rajasthan High Court in the case of Dharam Pal Vs. State of Rajasthan RLW 2000(2) 815 has quashed the said Memorandum dated 29.4.1995. We respectfully do not agree with the aforesaid Full Bench decision of the High Court and hold that the said Memorandum dated 29.4.1995 is perfectly valid as we are also of the opinion that a person who is involved in a criminal offence certainly cannot be taken into police service."
In Jainendra Singh's case (supra), which is a recent pronouncement of the Apex Court, the Apex Court has viewed seriously the issue of deliberate suppression of facts by the candidates/appointees for disciplined forces. Highlighting the importance of verification of character and antecedents as important criteria to test suitability of an individual for the post under the State, the Apex Court, in [17] Para 29 of the verdict, has summarized following cardinal principles on the issue:
29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two-Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1 Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2 Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3 When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4 A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5 The purpose of calling for information regarding involvement in any criminal case or [18] detention or conviction is for the purpose of verification of the character/antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6 The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7 The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8 An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9 An employee in the uniformed service pre-
supposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10 The authorities entrusted with the responsibility of appointing Constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a Constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of Constable.
Taking into account the fact that different views [19] are taken by coordinate Benches of the Apex Court, the matter has been referred to larger Bench of Apex Court for an authoritative pronouncement on the subject, as is evident from Para 31 of the verdict, which is reproduced as infra:
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.
I have given my anxious consideration to the arguments advanced at Bar and minutely examined the legal precedents on which the learned counsel for the parties have placed reliance.
A close scrutiny of the factual scenario in the instant case clearly and unequivocally reveals that the petitioner has not concealed material information. In these circumstances, the parameters and yardsticks set out by the Apex Court in Jainendra Singh's case (supra) cannot antagonize the selection of the petitioner for the post in question. While applying the cardinal principles, the Court [20] is not expected to show a myopic vision to scuttle the chances of a selected incumbent for appointment. One more important aspect is that on the main issue, i.e. importance of verification of character and antecedents of an individual, the matter has been referred to larger Bench of Apex Court without making comment on the decisions of the coordinate Benches. Thus, the law laid down by the coordinate Benches on the subject is still binding precedents. My this view is fully fortified from a recent pronouncement of the Apex Court in case of National Insurance Company Limited Vs. Saju P. Paul [(2013) 2 SCC 41] wherein the question pertaining to issue pending consideration by a larger Bench was considered by the Apex Court. The Apex Court, after consideration of the issue made following observations:
"The pendency of consideration of above questions by a larger Bench does not mean that the course was followed in Baljit Kaur and Challa Bharathmma should not be followed, more so in a peculiar fact situation of this case."
Coming to the Division Bench judgment of this Court in Rajendra's case (supra), the facts are materially different from the case in hand. In that case, the incumbent was convicted under Section 9/11 of the Rajasthan Smoking Act but this vital information was concealed by him. Therefore, this judgment cannot be of [21] any assistance to the respondents.
In case of Delhi Administration's case (supra) although the Apex Court has laid emphasis on verification of character and antecedents of an individual, but then in that case also charges against the incumbents were serious in nature, inasmuch as he was prosecuted for offences under Section 304, 324/34 IPC, and therefore, the Apex Court has not considered it proper to grant any sort of indulgence to him. One more redeeming fact which has weighed heavily against the incumbent was that his selection was also provisional and as such the Court has not exercised its discretion in his favour.
Now adverting to the offences for which the petitioner was tried, suffice it to say that these offences are not of serious nature so as to categorize them as offences involving "moral turpitude". "Moral turpitude" as defined in Law Lexicon, means - "Moral turpitude means, in general, shameful wickedness - so extreme a departure from ordinary standards of honest, good morals, justice, or ethics as to be shocking to the moral sense of the community. It has also been defined as an act of baseness, vileness, or depravity in the private and social duties which one person owes to another, or to society in general, contrary to the [22] accepted and customary rule of right and duty between people".
Apart from the fact that offences are not of the nature involving moral turpitude, one more significant feature of the case is that the petitioner was acquitted for all the offences by way of compromise. The compromise was recorded by a competent criminal court in adherence of the provisions of the Code of Criminal Procedure 1973 (for short, 'Cr.P.C.') as all the offences were compoundable. At this stage, it is significant to ascertain the actual meaning of the term "compromise". As per Webster's Encyclopedic Unabridged Dictionary, the term "compromise" means -
"A settlement of differences by mutual concessions; an agreement reached by adjustment of conflicting or opposing claims, principles etc by reciprocal modification of demands."
As per Law Lexicon, the term "compromise means -
"A compromise is always bilateral and means a mutual adjustment.
According to New Standard Dictionary, a compromise means agreement or adjustment for the settlement of a controversy by mutual concessions, often involving partial surrender."
Now, this Court is required to see the legal implications of compounding of offence. Section 320 [23] Cr.P.C. envisages the provision for compounding offences in specified cases. Compounding of offence operates as an acquittal even if no acquittal order is recorded and not a discharge. So a prosecution of the accused for the same offence or offences involved in the compounded offence is barred. It is also clear from bare perusal of Section 320 Cr.P.C. that if the offence is within sub-section (1), the Court is bound to accept the compromise if it is legal. The legal position is no more res-integra that compounding of offences permitted by Section 320 Cr.P.C. cannot be opposed to public policy.
In this view of the matter, a distinction between honourable acquittal and acquittal by compounding of offence is wafer thin. Its proximity with the honourable acquittal is much closer than discharge and acquittal by extending benefit of doubt. Even otherwise, a compromise is bilateral act involving the complainant and accused both. There are fair chances wherein the complainant is apprehensive about sufficiency of evidence to bring home guilt against the accused tempting him for compromise. Thus, in totality, construing the acquittal of the petitioner on the touch stone of memorandum dated 29th April 1995, in my considered opinion, it can be treated akin to honourable acquittal. This sort of purposeful and benevolent [24] interpretation of the memorandum in the peculiar facts and circumstances of this case is also desirable. From a bare perusal of the memorandum dated 29th April 1995, it is amply clear that although the author of the memorandum has used the phraseology "acquitted honourably" but no endeavour is made to explain the said term. Moreover, from the recital contained in the memorandum it is crystal clear that acquittal of an individual as a consequence of compounding of offence has not been dealt with and therefore the same cannot be construed as an embargo for consideration of his case for recruitment. Thus, the submission of the learned counsel for the respondents, that the petitioner has not been acquitted honourably in the given circumstances, cannot be accepted and this sort of ambitious contention amounts to overstretching the requirements envisaged in the memorandum. At this stage, it has become imperative for this Court to overrule the argument of the learned counsel for the respondents that acquittal of the petitioner by way of compromise means that the petitioner has admitted his guilt. On the face of it, this argument is preposterous.
Commission of the alleged offences by the petitioner in his prime youth is also a mitigating factor tilting equity in his favour. Therefore, looking to the merit [25] position of the petitioner in the select list and the ratio decidendi of law laid down by the Apex Court in Commissioner of Police & Ors. Vs. Sandeep Kumar (supra) and other judgments of this Court, referred to supra, on which the learned counsel for the petitioner has placed reliance, denial of reliefs to the petitioner, in my view, may result in travesty of justice. In the present era of rampant unemployment, depriving an individual from valuable right on certain technical pretext is bound to result in inequality jeopardizing his entire future career. A welfare State, as a model employer, cannot be allowed to jettison legitimate aspirations of a selected incumbent by creating a situation where hopes end in despair. Thus, viewed from any angle, the present writ petition deserves acceptance.
The net result of the above discussion is that the present writ petition is allowed, the impugned order dated 13th of April 2012 (Annex.6) is quashed and set aside, and the respondents are directed to consider the candidature of the petitioner for the purpose of appointment as Constable and if he stands in merit, appointment may be accorded to him as Constable in the order of merit from the date appointment is accorded to similarly situated persons. The respondents may undertake the said exercise within a period of two months from the date of the order. [26]
In the facts and circumstances of the case, costs are made easy.
(P.K. LOHRA), J.
arora/