Gauhati High Court
Amarjit Das vs The State Of Assam And 4 Ors on 1 June, 2017
Author: Nelson Sailo
Bench: Nelson Sailo
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
PRINCIPAL SEAT AT GUWAHATI
WP(C) No. 4558/2016
Sri Sanjib Pathak
Son of Sri Dinesh Pathak,
Resident of Village & P.O.-Nagaon,
Dist.- Barpeta, Assam.
...... Petitioner.
-Versus-
1) The Gauhati High Court
Represented by the Registrar General,
Guwahati High Court, Guwahati-1.
2) The State of Assam
Represented by the Secretary to the Govt. of Assam,
Judicial Department, Assam Secretariat,
Dispur, Guwahati-6.
3) The District & Sessions Judge, Barpeta, Assam.
..... Respondents.
WITH
WP(C) No. 3239/2016
Sri Amarjit Das
Son of Sri Basudev Das,
Resident of Village & P.O.-Sundardia,
Dist.- Barpeta, Assam.
...... Petitioner.
WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 1 of 7
-Versus-
1) The State of Assam
Represented by the Secretary to the Govt. of Assam,
Judicial Department-cum-Legal Remembrancer,
Assam Secretariat, Dispur, Guwahati-6.
2) The District & Sessions Judge, Barpeta, Assam.
..... Respondents.
BEFORE
THE HON'BLE MR. JUSTICE NELSON SAILO
For the Petitioners : Mr. U.C. Rabha
Mr. R. Dubey,
Advocates.
For the respondents : Ms. D.D. Barman
G.A.
Mr. S.K. Medhi,
SC, GHC.
Date of Hearing & Judgment : 1st June, 2017
JUDGMENT AND ORDER (ORAL)
Heard Mr. R. Dubey, the learned counsel for the petitioner in WP(C) No.3239 of 2016 and Mr. U.C. Rabha, the learned counsel for the petitioner in WP(C) No.4558 of 2016. Also heard Mr. Ms. D.D. Barman, the learned Additional Senior Government Advocate, Assam, for the respondent No.1 in WP(C) No.3239 of 2016 and for the respondent No.2 in WP(C) No.4558 of WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 2 of 7 2016 as well as Mr. S.K. Medhi, the learned Senior Counsel and Standing Counsel, GHC, for the other respondents.
2. Since the two writ petitions pertain to the same issue they are being taken up for final disposal by this common judgment and order.
3. The case of the petitioner in WP(C) No.3239 of 2016 is that he responded to an advertisement published by the respondent No.2 i.e. the District and Sessions Judge, Barpeta whereby, five (5) posts of Process Server was advertised. Pursuant to his application, the petitioner was called for the written test as well as the viva-voce test and consequently, vide notification dated 13.10.2015 (Annexure-5), his name figured at Serial No.2 of the select list amongst the unreserved category. However, the petitioner was not appointed while the other selected candidates in the select list dated 13.10.2015 were appointed. He therefore, made an inquiry from the office of the respondent No.2 wherein he was informed that a decision was taken by the respondent No.2 not to appointment him since he was convicted in a criminal case involving moral turpitude. The writ petitioner being aggrieved is before this Court.
4. Appearing for the writ petitioner, Mr. R. Dubey submits that although vide judgment and order dated 24.01.2011 passed in Criminal Appeal No.25/2010, he was held guilty of an offence under Section 325 of the IPC but the same cannot be construed to an offence involving moral turpitude. The learned counsel by referring to the finding of the Appellate Criminal Court in its judgment submits that as per the evidence of the P.W.No.6, who was the only eye witness of the incident, on being cross examined admitted that while the petitioner wanted to assault the victim with the help of a stick, the stick accidently touched the eye of the victim resulting in the injury. Therefore, the Court found that there was no intention on the part of the petitioner to assault the victim in his eyes.
WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 3 of 7Accordingly, the judgment and order passed by the learned Trial Court was modified with a fine of Rs.3000/- which the petitioner has already paid. He therefore, submits that since the petitioner was let off by the criminal court, the respondent authority be directed to appoint the petitioner as Process Server. Mr. R. Dubey further submits that the Division Bench of the Punjab and Haryana High Court in the case of Parvesh Vs. State of Haryana in WP(C) No.2124 of 2009 which was decided on 20.08.2009 is a case of similar nature. The High Court held that the term moral turpitude is not defined anywhere and it shifts and fluctuates in keeping with the changes in the moral standards of the people or the country. However, in the general sense moral turpitude would mean an act of baseness, vileness or depravity in private and social duties which a man owes to his fellow man or societies. It was also observed that there is no hard and fast rule as to what constitutes moral turpitude. It often involves the question of intend but it is not involved in every criminal act. Whether any particular conviction involves moral turpitude may be a question of fact and frequently depending on surrounding circumstances. In the said judgment, the High Court after examining various Apex Court's judgment came to the conclusion that Section 325 of the IPC amongst others would not be one of the offences involving moral turpitude and thus, allowed the writ petition.
5. Mr. R. Dubey further refers to the decision of the Rajasthan High Court rendered in the case of Kunj Behari Meena vs. The State of Rajasthan and Others reported in 2010(2) RLW 1802 (Raj.) to contend that the appointment cannot be denied only on account of a criminal case being registered and pending against the candidate. The High Court by referring to the Rajasthan Rural Medical and Health Subordinate Service Rules, 2008, held that the minor offences under Section 325 of the IPC amongst others do not come under the purview of moral turpitude. Not only does a person who has been convicted by a competent court but even an ex-prisoner who by leading a disciplined life and proved to be reformed by subsequent good WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 4 of 7 conduct are also to be considered to be qualified for appointment in Government service and as a result, the writ petition was allowed.
6. Mr. S.K. Medhi, the learned Senior Counsel and Standing Counsel, GHC, for the respondent No.2 submits that the facts of the case are broadly not disputed. Although, the petitioner was selected for appointment, the respondent authority upon perusing the police verification report came to learn about the involvement of the writ petitioner in a criminal case and therefore, the matter was kept in abeyance as resolved in the Selection Board meeting held on 08.12.2015. Mr. S.K. Medhi relies upon the case of Commissioner of Police, New Delhi and Another vs. Mehar Singh reported in (2013) 7 SCC 685 to deny the contention of the petitioner that Section 325 of the IPC does not involve moral turpitude. He submits that in fact in the Delhi Police Administration, Section 325 of the IPC amongst others are included amongst the offences involving moral turpitude. Although there are no such specific provisions to be considered in the instant recruitment process, a similar corollary can be drawn and therefore, the petitioner cannot claim appointment a matter of right. He also submits that the decisions relied upon by the petitioner's counsel are clearly distinguishable, since the petitioners therein were either acquitted by the criminal court or a criminal trial was pending disposal. However, as for the present case, the petitioner was convicted by the Criminal Court and therefore, he cannot compare his case with the referred cases.
7. The case of the petitioner in WP(C) No.4558/2016 is that he too was one of the applicants against the five (5) posts of Process Server as was advertised by the District and Sessions Judge, Barpeta. Mr. U.C. Rabha, the learned counsel appearing for the petitioner submits that the petitioner figured at Serial No.5 in the merit list dated 13.10.2015 and upon coming to learn that all the advertized posts were not filled up, he approached the respondent No.3 by filing a representation on 14.12.2015 to consider him WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 5 of 7 for appointment as the writ petitioner in WP(C) No.3239/2016 was convicted by a Criminal Court. However, since the respondent authority neither appointed him nor took any decision, he is before this Court.
8. Mr. U.C. Rabha therefore submits that since the petitioner was convicted by a criminal Court, there is no question of appointing him against the post in question and in support of his submission, he relies upon the decision of the Apex Court rendered in the case of Allahabad Bank and Another vs. Dipak Kumar Bhola reported in (1997) 4 SCC 1. He submits that in order to be appointed against the post in question one would be required to have a good character, high moral standard and integrity amongst others and therefore, the petitioner who was convicted by a Criminal Court cannot be considered for appointment to the post. He therefore, submits that since the petitioner appears at Serial No.6 of the merit list, he should be appointed against the unfilled vacancy.
9. I have considered the submissions made by the rival parties and perused the materials available on record. This Court while issuing notice of motion on 27.05.2016 in WP(C) No.3239/2016 had directed that one post of Process Server in the establishment of the District and Secessions Judge, Barpeta should not be filled up and undisputedly, one post is kept vacant. Against the two writ petitions, an affidavit-in-opposition has been filed separately by the District and Sessions Judge, Barpeta, where it is contended that the decision to fill up the lone remaining vacancy in the post of Process Server was kept in abeyance as decided by the Selection Board on 08.12.2015. Therefore, without entering into the merits of the cases and dwelling upon the submissions made by the rival parties, I am of the considered opinion that the Selection Board should consider and take a decision in the matter.
WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 6 of 710. In that view of the matter, the Selection Board in the establishment of the District and Sessions Judge, Barpeta is directed to consider and decide as to whether Sri Amarjit Das whose name appeared at Serial No.2 under Roll No.2637 in the select list notified vide Notification dated 13.10.2015 should be appointed to the post of Process Server in question. If it is decided against him, the Selection Board shall consider appointing Sri Sanjib Pathak whose name appears at Serial No.5 of the select list dated 13.10.2015. Such exercise should however be done and completed within a period of 6 (six) weeks from the date of receipt of a certified copy of this order.
11. Before parting with the records, it is made clear that the Selection Board shall not in any manner be influenced by the observations and discussions made herein above including the stand taken in the affidavit-in- opposition in as much as, as can be seen, they are yet to decide on the matter and it was only kept in abeyance. In other words, the Selection Board shall undertake a fresh consideration to arrive to its finding.
12. With the above observation and direction, both the writ petitions stand disposed of. No cost.
JUDGE sumita WP(C) No.4558/2016 with WP(C) No.3239/2016 Page 7 of 7