Central Administrative Tribunal - Jaipur
Gajendra Singh vs M/O Railways on 2 December, 2022
1
OA No. 378/2018
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
...
ORIGINAL APPLICATION No. 378/2018
Order reserved on: 17.11.2022
Date of order:02.12.2022
CORAM:
HON'BLE MR. DINESH SHARMA, MEMBER (A)
HON'BLE MRS. HINA P. SHAH, MEMBER (J)
Gajender Singh S/o Shri Bhagwan Singh, aged about
52 years, R/o Village Post Bhandeda, Via Bandikui,
Tehsil Baswa, District Dausa (Raj.). (applied for the
post of Goods Guards in Railway dept).
......Applicant
(By Adv.: Shri Iliyas Khan)
VERSUS
1. Union of India through the General Manager,
West Central Railway Headquarter, Jabalpur
(M.P.)
2. Chairman, Railway Recruitment Board 2010,
Nehru Marg, Ambedkar Circle, (Raj.).
3. Divisional Railway Manager (Bhopal), Personnel
Branch, Bhopal (M.P.).
4. Assistant Personnel Officer West Central Railway,
Bhopal.
.... Respondents
(By Adv: Shri Anand Sharma)
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OA No. 378/2018
ORDER
Per : Smt. Hina P. Shah, Member (J)
The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 for the following reliefs:-
".......this original application may kindly be accepted and allowed and the order dated 13.07.2018 (Annexure-A/-1) and 28.06.2018. (Annexure-A/-1) may kindly be quashed and set aside the respondents may kindly be directed to give appointment to the applicant on the post of Goods Guards with all consequential benefits (including seniority Pay Fixation & other benefits admissible under the law) from the date Junior to him was given appointment."
2.a) The brief facts of the case, as stated by the applicant, are that since he possessed the requisite qualifications and other eligibility conditions, required for the post of Goods Guard, he applied for the said post being ex-serviceman in pursuance of the advertisement No. 03/2015 dated 26.12.2015. He submitted his job priority/preference and participated in the selection procedure and was shortlisted for document verification. The Selection Committee had recommended his name for appointment on the post of Goods Guard at West Central Railway (WCR). 3 OA No. 378/2018
2.b) As per condition No. 20 of order dated 26.03.2018, he submitted attestation form as required pertaining to disclosure of criminal cases pending/ decided against a selected candidate. Applicant further states that he has disclosed about the case registered against him and that he was acquitted as the prosecution failed to prove the allegation beyond doubt vide order dated 07.11.2016.
2.c) Respondents vide letter dated 28.06.2018 rejected his candidature declaring him unsuitable/ ineligible/ unfit for the post stating that criminal case is registered in "serious sections" against him. It is further stated that the Respondents without considering the facts that he was already acquitted in criminal case on 07.11.2016 and no other case is pending and that he has not concealed the fact of criminal case in the attestation form but they have rejected his candidature. He represented against the said rejection but Respondents vide letter dated 13.07.2018 affirmed about the said rejection. Thus, being aggrieved by the impugned rejection letter dated 13.07.2018 and 28.06.2018 (Annexure-A/1), the applicant approached this Tribunal for redressal of his grievance.
4OA No. 378/2018
3.a) After issue of notices, the respondents have stated that the Applicant was prosecuted u/s 3(1)(v)(x)of SC/ST Act which offences were grievous in nature. As per rule 101 of IREM Vol-I, "the appointing authority should satisfy itself that the character and antecedents of the person to be appointed are such as they do not render him unsuitable for appointment to government service in accordance with the instructions issued by the Railway Board to Railway Administration from time to time."(Annexure-R/1). Thus on the said basis Applicant was not found suitable for appointment on Railway services for the post of Goods Guard by the competent authority.
3.b) Respondents further state that as held by the Apex Court in case of Avtar Singh v/s. UOI & Ors. in SLP (C) No. 20525/2011, decided on 21.07.2016 that, "in case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate." Therefore, the appointing authority found it not desirable to appoint applicant on the post of Goods Guard on account of 5 OA No. 378/2018 his antecedent criminal records as mentioned in his attestation form. Thus, it is crystal clear that the appointing authority has rightly found Applicant ineligible for the post of Goods Guard vide letter dated 13.07.2018. Hence, the present Original Application deserves to be dismissed. In support of their contentions, the respondents have relied upon the following judgments:-
"(a) Hon'ble Supreme Court's judgment in the case of Rajasthan High Court, Jodhpur v/s.
Akashdeep Morya & Anr., (Civil Appeal No. 5733/2021), decided on 16th September 2021.
(b) Hon'ble Supreme Court's judgment in the case of UOI & Ors. vs. Methu Meda, (Civil Appeal No. 6238/2021), decided on 6th October 2021.
4.a) The applicant has also filed a rejoinder denying the contentions raised by the respondent. He further stated that mere registration of criminal case in serious offence does not debar a candidate from being appointed in government service. The character of the Applicant is unblemished and there is no antecedent against the Applicant. Even after the case of Avtar Singh, the Apex Court and High Courts have considered the issue of registration of criminal case 6 OA No. 378/2018 against the selected candidate and have directed the Respondents to give appointment to the selected candidate on the post of constable even in a case in which a candidate was convicted for using unfair means in the examination. In the present case, the candidate has neither concealed material fact nor suppressed any facts in respect of eligibility of the selection post.
4.b) Thus, since the applicant has neither concealed any material facts even while filing O.A. nor has he produced any fabricated documents, therefore, mere pendency of criminal case against the selectee, his appointment cannot be withheld and he should be offered an appointment with the condition of outcome of criminal case. Hence, the applicant states that since his case is genuine and he cannot be debarred from service, the present O.A. deserves to be allowed. In his support, the applicant has relied upon several judgments, some of them are as under: -
(1) Hon'ble Apex Court judgement in case of Umesh Chandra Yadav V/s. The Inspector General of Police & Ors. reported in 2022 Live Law (SC)300.
(2) Doongar Singh Rawat V/s. UOI & Ors decided by Hon'ble CAT Jaipur Bench in OA No. 575/2013 on 14.08.2019.7 OA No. 378/2018
(3) Hon'ble High Court of Rajasthan, Jaipur Bench's judgment in the case of UOI & Ors.
V/s. Doongar Singh Rawat, in DBCWP No. 15577/2019 decided on 08.01.2020.
(4) Ravi Kant Sharma V/s. UOI & Ors. decided by Hon'ble CAT Jaipur bench in OA No. 24/2014 on 6.04.2022.
(5) Hon'ble High Court of Rajasthan, Jaipur Bench's judgment in the case of Rajendra Kumar Verma vs. the State of Rajasthan & Anr.in SB Civil Writs No.1589/2016 decided on 13.12.2016.
(6) Hon'ble High Court of Rajasthan, Jaipur Bench's judgement in case of Surendra Singh Nathawat V/s.UOI & Ors. in SB Civil Writs No.10907/2008 decided on 2.08.2017. (7) Hon'ble High Court of Rajasthan, Jaipur Bench's judgement in case of Surendra Singh Nathawat V/s.UOI & Ors. in DBCWP No. 223/2018 decided on 22.01.2019.
5. We have heard learned counsels for the parties at length and considered the pleadings of the parties as well as the judgments relied upon by the parties.
6. The applicant as well as the respondents have reiterated their submissions as stated earlier.
7. The factual matrix of the case is that the GOI M/o Railways had issued an advertisement CEN No. 03/2015 on 26th December, 2015 for recruitment of various posts including Goods Guard. Since the 8 OA No. 378/2018 applicant was possessing the requisite educational qualifications and he fulfilled all the eligibility criteria in respect of selection to the post of Goods Guard under ex-serviceman quota, he applied for the said post. After screening of his application, he was shortlisted for document verification and after the same, the selection committee had recommended his name for appointment on the post of Goods Guard at West Central Railway.
8. After receipt of offer of appointment as per the formalities he was required to fill an attestation form for disclosure of criminal cases pending/decided against him which he duly submitted. He has clearly mentioned about a criminal case u/s 3(1)(v)(x)of SC/ST Act registered against him on account of a property dispute with regard to a plot he purchased. He mentioned that he was acquitted in the said case as the prosecution failed to prove the allegations levelled against him beyond doubt vide order dated 07.11.2016.
9. Applicant was given an offer of appointment dated 26.03.2018 and was made to submit an Affidavit along with Attestation Form. To his utter 9 OA No. 378/2018 shock, the applicant received a rejection letter dated 28.06.2018 whereby his candidature was rejected declaring him as unsuitable / ineligible / unfit for the post of Goods Guard on the ground that a criminal case is registered against him in serious offences. Thereafter the Applicant made a representation dated 04.07.2018 to the Respondents but the same was also rejected vide letter dated 13.07.2018.
10. It is the case of the respondents that the applicant was involved in serious offences and he was prosecuted u/s 3(1)(v)(x)of the SC/ST Act & sec 447 of IPC and a criminal case was registered against him being criminal case No. 03/2013 before the Special Judge SC/ST (P.A) Act, Dausa, Rajasthan wherein he was prosecuted for offences grievous in nature. As per Rule 101 of the Indian Railway Establishment Manual Vol. I (Revised Edition 1989), which reads as under :
"The appointing authority should satisfy itself that the character and antecedents of the person to be appointed are such as do not render him unsuitable for appointment to government service in accordance with the instructions issued by the Railway Board to Railway Administration from time to time."10 OA No. 378/2018
11. Thus, on the basis of the said provisions, the competent authority did not found him eligible for the post of Goods Guard since, according to them, the Applicant was involved in offences which were grievous in nature. According to them, "the Post of Goods Guard in Railway Department shoulders the great responsibility of transportation of passengers & Goods and people repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the post of Goods Guard must be a person of utmost rectitude. He must have impeccable character and integrity".
12. Coming to the grounds raised by the Applicant that he has not concealed anything in the attestation form as well as in the application form, we find them to be sustainable since mere pendency of a criminal case does not amount to rejection of candidature of the Applicant.
13. Coming to the judgements relied by the Respondents in case of Madhu Medha (supra), the offence in the said case was of heinous nature that of kidnapping for demand of ransom as well the Applicant was seeking appointment in CISF, such are 11 OA No. 378/2018 not the facts in the present case. Also with regard to the case of Akashdeep Morya (supra), in the said case, Applicant was involved in number of cases and in one of them allegation was pertaining to inflicting sword blow on the hand of the victim and one more case he had inflicted Gandasi blow in the head of the victim and the cases were found to be of serious nature but in facts of the present case, we do not find the offence either to be heinous or of a serious nature.
14. On the other hand we are in agreement with the judgements relied by the Applicant especially in case of Umesh Chandra Yadav (supra), wherein the Apex Court has observed that when the incident occurred the person accused was juvenile and after he was discharged after about almost a decade the selection process came to be initiated, the Apex Court considered that in the peculiar facts, the suppression of material information was unsustainable and deserved to be set aside. But, in the present case, we find that neither the Applicant has misrepresented nor concealed any fact about his criminal case in the Attestation Form and we also do not find that the offence where he is acquitted on benefit of doubt to be 12 OA No. 378/2018 of serious or of grievous nature that he cannot be appointed to the said post of Goods Guard.
15. We find that the Applicant has neither misrepresented nor willfully suppressed nor concealed any material information about the criminal case registered against him u/s 3 (1)(v)(x) of SC/ST Act in the Attestation Form. He has also mentioned about his acquittal in the said case on 07.11.2016. The Applicant has revealed all these facts in the present Original Application also. Thus as per the Hon'ble Apex Court judgement in case of Avtar Singh (supra) at para 30(4)(c) it is observed that where the acquittal was on technical grounds or the benefit of doubt extended, if the offence involved moral turpitude or was a heinous offence then alone the employer would be entitled to consider all relevant antecedents. For non-heinous offence, the court has taken the view that the same have to be condoned as a lapse and in the present case there is no such offence.
16. In view of the observations and discussions made herein-above, the impugned order dated 13.07.2018 and 28.06.2018 (Annexure-A/1) deserves to be quashed and set aside and, accordingly, the same is 13 OA No. 378/2018 quashed and set aside. The respondents are directed to allow the applicant to resume/join on the post of Goods Guard with all consequential benefits from the date junior to him was given appointment. Accordingly, the Original Application is allowed. No order as to costs.
17. In view of the order passed in the Original Application, nothing survives in M.A. No. 130/2019 and the same is also disposed of.
(Hina P. Shah) (Dinesh Sharma) Member (J) Member (A) !Vv~