Arun Sharma vs State Of Madhya Pradesh & Others

In this petition under Article 226 of the Constitution of India, the petitioner has assailed the validity, legality and propriety of the order dated 03/11/2017

(Annexure P/1) passed by the respondent No.3 whereby, the appointment on the post of Constable (G.D.) has been denied to the petitioner.

(2) The brief facts leading to filing of this case are that the petitioner has participated in the process for recruitment of Constable, cleared its all stages

and was finally selected. However, candidature of the petitioner was canceled on the finding based on disclosure in the verification form that the

petitioner was proceeded in a criminal case for the offence punishable under Sections 294, 323, 506 (Part -2) of IPC and Section 3(1)(x) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, even though the said case resulted in acquittal on account of the charges

having not been found proved beyond reasonable doubt. Being aggrieved, the petitioner filed W.P. No.5165/2017 in which he prayed for consideration

of the case in the light of the case of Avtar Singh Vs. Union of India [2016 (8) SCC 471]. This Court vide order dated 17/08/2017 disposed of the

petition with the direction to consider and decide the case taking into consideration the law laid down by the Hon'ble Apex Court in the case of Avtar

Singh (Supra) within a period of two months. The respondent No.3, in turn, decided the case in a mechanical manner without application of mind only

on the basis of the presumption that charges against the petitioner involved moral turpitude and rejected the petitioner's candidature vide impugned

order dated 03/11/2017 (Annexure P/1). Being aggrieved, the petitioner has filed the present writ petition.

(3) Learned counsel for the petitioner contends that acquittal of the petitioner in all the charges leveled against him got washed off. It is also submitted

by the counsel for the petitioner that there is no previous history of the petitioner being involved in any crime, which would have led the employer draw

a conclusive finding that the petitioner is not fit for Government job.

(4) Learned counsel for the petitioner further contended that Division Bench of this Court in WA No.46/2018 has taken a view that except the

antecedent forming subject matter of Crime No.63/2013, there is no other criminal case against the petitioner nor it is shown that the petitioner is

involved in any other case. As such, the respondents ought to have made a deeper probe as to the past of the petitioner, which as apparent from the

impugned order, has not been done. The Division Bench of this Court quashed the order of the writ court and relegated the matter to the competent

authority to pass a fresh order after considering the case of the petitioner in the light of the observation made therein.

(5) Learned Government Advocate for the respondents/State has relied upon the judgment of the Hon'ble Apex Court in the case of Avtar

Singh (Supra), Union Territory, Chandigarh Administration and Others Vs. Pradeep Kumar and another passed in Civil Appeal No.67/2018 (SC)

dated 08/01/2018 and order dated 12/01/2018 of this Court in the case of Ashutosh Pawar Vs. High Court of Madhya Pradesh and Another (Writ

Petition No.5865/2016) in support of his contention. Learned Government Advocate has also placed reliance on the judgment of the Hon'ble Apex

Court in the case of Commissioner of Police New Delhi and another Vs. Mehar Singh [(2013) 7 SCC 685] in support of his contention. It is further

submitted that even though, the petitioner has been acquitted from all the charges, it was still within the competence of the appointing authority to have

taken into consideration the antecedents of the petitioner. As it was because of his involvement in the crime of moral turpitude, the decision was taken

to cancel his candidature.

(6) Heard counsel for the both the parties. Â

(7) In Avtar Singh (supra), it is held:

“38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize

our conclusion thus:

38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after

entering into service must be true and there should be no suppression or false mention of required information.

38.2 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.

38.3 The employer shall take into consideration the Government orders/instructions/ rules, applicable to the employee, at the time of taking the

decision.

38.4 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 to knowledge of employer, any of the following recourses appropriate to the case

may be adopted :

38.4.1 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.

38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the

employee.

38.4.3 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.

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.

38.6 In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in

facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

38.7 In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an

employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases

were pending may not be proper.

38.8 If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing

authority would take decision after considering the seriousness of the crime.

38.9 In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or

dismissal on the ground of suppression or submitting false information in verification form.

38.10 For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was

required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same

can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of

suppression or submitting false information as to a fact which was not even asked for.

38.11 Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him.â€​

(8) It is held by the Hon. Supreme Court in Pradeep Kumar and another (supra):-

“13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the

employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar

Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person

having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably

acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening

Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character.â€​

(9) In Ashutosh Pawar (supra), the law laid down is:-

“Decision of Criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may

make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post

is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a

certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the

functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character.

Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar Vs. State of M.P.) is overruled. Another Division Bench judgment in

W.A. No.367/2015 (Sandeep Pandey Vs. State of M.P. and others) is also overruled.

Jurisdiction of the High Court in a writ petition under Art.226 of the Constitution of India is to examine the decision-making process than to act as

Court of appeal to substitute its own decision. In appropriate case, if the Court finds decision-making process is arbitrary or illegal, the Court will direct

the Authority for consideration rather than to substitute the decision of the competent Authority with that of its own.

The expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity

of a candidate who seeks appointment as Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any

taint. The standard of conduct in the case of Judicial Officer is higher than that expected of an ordinary citizen and also higher than that expected of a

professional in law as well. The same must be in tune with the highest standard of propriety and probity.â€​

(10) In the present case, it is evident that the petitioner had fairly disclosed the fact about the criminal antecedents in which he was acquitted. This

information is foundation of passing the impugned order. Admittedly, except antecedent forming subject matter of crime No.63/2013, there is no other

criminal case against the petitioner nor it is shown that he is involved in other cases.

(11) In view of the above and as held by the full Bench of High Court in Ashutosh Pawar (supra), the competent authorities ought to have examined

the antecedents of the petitioner not only in the context of crime registered at crime No.63/2013 but also it was required to cause a deeper probe as to

the past of the petitioner which has not been done as apparent from the impugned order. It is only on the basis of declaration given by the petitioner in

his verification form and a conclusion is arrived that the petitioner is not fit to be appointed for the police force.

(12) In view of the aforesaid, the impugned order dated 03/11/2017 (Annexure P-1) is set aside and the matter is relegated to the competent authority

to pass a fresh order after taking into consideration the fact of his acquittal and conduct a detailed deeper probe and pass a speaking and reasoned

order as expeditiously as possible preferably within a period of three months from the date of receipt of certified copy of the order. However, it is

made clear that this Court has not expressed any opinion on the merits of the case.

(13) With the aforesaid, the writ petition stands disposed of.