Ajay Kumar Karya vs State Of Madhya Pradesh And Others

The petitioner has filed the present petition being aggrieved by order dated 24.12.2018 and 24.1.2019 whereby he has been denied the appointment on the post of Constable (GD) despite his selection for the said post.

Facts of the case, in short, are as under :

(i) The respondents invited applications from eligible candidates for filling up the posts of in Police Department of the State by way of direct recruitment - Police Constable Recruitment Test, 2016. The petitioner being an eligible candidate applied for the said post and appeared in the examination, with Roll No.21076083. He was called for physical proficiency test held on 19.9.2016 at Sagar.

(ii) After completing the entire selection process, final selection list was issued. The petitioner was selected for the post

of Constable (GD) and was allotted 24th Battalion, S.A.F., Jaora (Ratlam) for posting. He was directed to report in the Office of Superintendent of Police( Senani). Thereafter, he was directed to appear before the Chief Medical Officer for medical verification. He submitted his joining in the Unit of 24th Battalion, S.A.F., Jaora and also submitted the character verification deceleration .

(iii) The petitioner has declared that he was falsely implicated in Crime No.11/2017 for offence u/s. 354D, 354A of the IPC and u/s. 3(1)(w)(ii) of Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act for which he was prosecuted in the Court of Special Judge, Harda in Special Case No.2/2017. After conclusion of the trial, learned Special Judge has acquitted the petitioner from all the charges.

(iv) The Superintendent of Police, Harda also submitted the character verfication report to the Inspector General of Police about the aforesaid case against the petitioner. He has also mention about offence under the Protection of Child from Sexual Offences Act against the petitioner but, according to the petitioner, no such offence has been registered against him in the above case.

(v) Respondent No.3 vide letter dated 24.6.2017 directed the petitioner to appear before the Scrutiny Committee on 30.6.2017 in order to take final decision in respect of his character verification. The petitioner appeared along with detailed representation. Vide order dated 11.8.2017, respondents have cancelled the candidature of the petitioner and removed his name from the list of selected candidates on the basis of character verification report.

(vi) Being aggrieved by the aforesaid order dated 11.8.2017, the petitioner approached this Court by way of W.P. No.4693/2018. Vide order dated 30.10.2018, the petition was disposed of by remitting the matter to the competent authority to reconsider the case of the petitioner in the light of judgment of apex Court in the case of Avtar Singh V/s. Union of India : (2016) 8 SCC 471.

(vii) In compliance of the aforesaid direction, again the representation of the petitioner was considered and the respondents have found the petitioner unfit for the job vide order dated 24.1.2019, hence the present petition before this Court.

The petitioner has assailed the impugned orders on the ground that though he was prosecuted in Special Criminal Case No.2/2017, but none of the witnesses have deposed against him in the Court and the learned Special Judge after considering all the evidence came on record has honourably acquitted him. There is no acquittal on the ground of benefit of doubt or by way of compounding, therefore, the authorities have wrongly rejected his candidature on the basis of aforesaid prosecution. In support of his contention, he has placed reliance over the judgment of this Court in the case of Nilesh Jat V/s. State of M.P. (W.P. No.16780/2017 decided on 23.4.2019); and judgment of apex Court in the case of Mohammed Imran V/s. State of Maharashtra : 2018 SCC OnLine SC 1943.

After notice, the respondents have filed the return by submitting that the petitioner was acquitted from the charges as all the witnesses have turned hostile and it is an acquittal based on the compromise, but the fact remains that he had been tried for offences involving moral turpitude and crime against the society hence he is unfit for the job in a disciplined force like Police Department. The petitioner has been declared unfit under the provisions of Para 53(c) of the M.P. Police Regulations which requires good moral character and should not have antecedents. The respondents have placed reliance over the judgment of apex Court in the case of Pawan Kumar V/s. State of Haryana : (1996) 4 SCC 17, in which, moral turpitude has been elaborately defined. They have also placed over the judgment of apex Court in the case of Commissioner of Police

V/s. Mehar Singh : (2013) 1 SCC 598 in which it has been held that the candidate wishing to join the police force must be a person of utmost rectitude. He must have unimpeachable character and integrity. Even if he is acquitted or discharged in the criminal case, but such acquittal or discharge will have to be examined from the angle that he has been complete exonerated in the case and fit to work in a disciplined police force. In support, the respondents have also filed the statement of witnesses recorded during trial. The respondents, thus, prayed for dismissal of the petition.

I have heard the learned counsel for the parties and perused the record.

The petitioner has not been declared unfit for appointment on the post of Constable (GD) only on the ground that he was prosecuted u/s. 354D, 354A of the IPC and u/s. 3(1) (w)(ii) of Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act before the Special Judge. The FIR was lodged against the petitioner on a complaint made by a girl who belongs to the category of Scheduled Caste. She was student of Class XII and according to her, a boy came inside her class room of the coaching class and started teasing her. In her statement in the Court, she has specifically stated that the boy who came inside the coaching class is not present in the Court room and she did not recognise him. She specifically stated that the accused i.e. present petitioner who is present in the Court has not committed anything wrong with her. She was cross-examined by the Public Prosecutor in detail , but she remained stuck on her statement. Her friend (P.W.3) was also examined in the Court who has also totally denied such incident. Her another classmate (P.W.4) has also not supported the prosecution case. Her father was also examined and he has also not supported the prosecution case. Therefore, when none of the witnesses have deposed against the present petitioner hence he has been fully exonerated from all the charges and which comes under the category of clean acquittal. Neither the complainant nor the prosecution has challenged the said judgement of acquittal and the same has attained finality. It is also not the case of the respondents that the petitioner has suppressed the aforesaid fact before the respondents in the application form.

The Scrutiny Committee considered the case of the petitioner in light of the law laid down by the Apex Court in case of Avtar Singh (supra). In para 38.83 of the said judgement it has been held that the employer shall take into consideration the Government orders / instructions / rules applicable at the time of taking decision and as per para 38.4.3 if acquittal has been recorded in the case involving moral turpitude or offence of a heinous/of a serious nature on a technical ground and it is not a case of clean acquittal or the benefit of reasonable doubt has been given the employer may consider all relevant facts available as to the incident and may take appropriate decision as to the continuance of the employee. In para 38.5 it has been held that in case where the employee has made declaration truthfully concluded criminal case the employer still has a right to consider the antecedent and cannot be compelled to appoint the candidate. Clause is reproduced below:

"38.5 In a 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."

In view of the above, it is clear that the Court cannot compel the employer to appoint the candidate and it is a pure discretion of the employer to consider his antecedent despite conclusion of a criminal case. In case of Mohammed Imran Vs. State of Maharashtra (Supra), the Apex Court has held that except for a criminal case under reference in which he has been acquitted the appellant has a clean record and there is no adverse material against him to deny him the fruit of his academic labour in a competitive selection for the post of judicial officer and directed the respondents to reconsider the candidature of the petitioner. Para 10, 11 and 12 are reproduced below:

"10. In the present proceedings, on 23.03.2018, this Court had called for a confidential report of the character verification as also the antecedents of the appellant as on this date. The report received reveals that except for the criminal case under reference in which he has been acquitted, the appellant has a clean record and there is no adverse material against him to deny him the fruits of his academic labour in a competitive selection for the post of a judicial officer. In our opinion, no reasonable person on the basis of the materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer. An alleged single misadventure or misdemeanour of the present nature, if it can be considered to be so, cannot be sufficient to deny appointment to the appellant when he has on all other aspects and parameters been found to be fit for appointment. The Law is well settled in this regard in Avtar Singh vs. Union of India and others, (2016) 8 7 SCC 471. If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment.

In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may demand.

We, therefore, consider the present a fit case to set aside the order dated 04.06.2010 and the impugned order dismissing the writ petition, and direct the respondents to reconsider the candidature of the appellant. Let such fresh consideration be done and an appropriate decision be taken in light of the present discussion, preferably within a maximum period of eight weeks from the date of receipt and production of the copy of the present order. In order to avoid any future litigation on seniority or otherwise, we make it clear that in the event of appointment, the appellant shall not be entitled to any other reliefs."

Apart from the above verdict of Apex court even as per clause 6 (viii) of the circular dated 05.06.2003 issued by Home Department of State of Madhya Pradesh the candidate after acquittal by a competent Court on merit would eligible be for appointment. Though, the alleged offence is in the category of moral turpitude but the fact remains that he had been acquitted from the charges.

In case of Roopanarayan Sahu (supra) Division bench this Court has denied the appointment to the petitioner therein because he was acquitted by giving benefit of doubt in respect of the offences punishable under Section 452 and 380 of IPC, therefore, facts of that case are distinguishable from the present case.

In a recent judgement of the Apex Court in case of State of Madhya Pradesh & Others Vs. Bunti (Civil Appeal No.3046/2019), the writ petitioner has been denied the appointment in the Police force as he was also acquitted from the offence said to have been committed under Section 392 and 411 of IPC by giving the benefit of doubt. The Apex Court has held that having not been granted the clean acquittal in a criminal case merely by grant of benefit of doubt, clouds cannot be said to have been clear as to criminal antecedent of the respondent thus, the perception formed by the Screening Committee that he was unfit into inducted in the disciplined force was appropriate. The Apex Court has not found any fault in the decision taken by the Screening Committee as the writ petitioner was acquitted in a criminal case based on the benefit of doubt or any other technical reason. The Apex Court has also held that the employer can take into consideration all the relevant facts to take decision an appropriate decision of an incumbent for appointment/continuance in the service.

But in the present case, as held above, the petitioner has been acquitted from the charges as the prosecution failed to prove the charges beyond reasonable doubt, therefore, it is a clean acquittal not on the technical reason or on benefit of doubt. Therefore as held by the Division bench in the case of State of M.P. & Others Vs. Bhanu Singh Sikarwar (supra), the respondents are required to consider other antecedents of the petitioner in respect of fitness of the petitioner in case of eligibility of the petitioner to get the employment.

Under regulation 57 of the M.P. Police Regulation, the Superintendent of Police is the competent authority to enquire about the antecedent and character of the candidate who have successfully passed the selection test, therefore, the concerned Superintendent of Police is directed to examine the antecedents and character of the petitioner and submit a report to the Screening Committee .

The Screening Committee is again directed to reconsider the case of the petitioner afresh in vew of the aforesaid discussion and clause 6.7 of the circular dated 05.06.2003.

The petition stands allowed to the extent indicated above.

No order as to costs.