Pardeep vs State of Haryana and Others

Tejinder Singh Dhindsa, J.—The petitioner has filed the instant writ petition questioning the action of the State in denying him appointment to the post of JBT teacher, inspite of being a selected candidate, only on account of registration of an FIR. Brief facts leading to the filing of the petition are that the Haryana Staff Selection Commission issued advertisement No. 4/2009 dated 13.8.2009 inviting applications from eligible candidates for recruitment to 967 posts of JBT teachers. It has been pleaded that the petitioner belongs to the General Category and was eligible to apply for the post of JBT teacher in the light of the essential eligibility conditions contained in the advertisement. Accordingly, the petitioner applied for the post and subjected himself to the process of selection. The petitioner was even called upon to appear for an interview and verification of documents on 7.6.2010 and thereafter in the select/merit list pertaining to Male JBT teachers of District Jind, his name figured at merit position No. 240.

Apparently, on account of a matrimonial dispute and on account of a complaint by the wife of the petitioner, FIR No. 343 was lodged at Police Station Nissing, under Sections 406, 498-A, 323 and 506 of the Indian Penal Code on 2.10.2010. On account of registration of the FIR, the petitioner was arrested and remained in jail for a period of six days and was allowed bail thereafter by the Judicial Magistrate 1st Class, Karnal vide order dated 20.12.2010.

Appointment letters having been issued to all the other selected candidates, the petitioner approached the respondent authorities as regards non-issuance of an appointment letter in his favour despite his selection and name figuring in the select/merit list. The petitioner was orally informed that it is on account of the registration of an FIR against him that he cannot be issued the letter of appointment. Resultantly, the present petition.

Learned counsel for the petitioner has vehemently argued that mere registration of a case cannot be a ground for recording a finding that the petitioner is a person of doubtful character. Learned counsel would argue that it is only if a person is convicted of an offence by a competent Court of law, that a justifiable basis would vest with the State Government in denying appointment to such candidate.

A separate reply has been filed on behalf of the Haryana Staff Selection Commission in which it has been specifically admitted that the petitioner is a selected candidate for the post of JBT teacher in Education Department, Haryana and that the Commission had recommended his name for appointment against the General Category subject to verification of his antecedents.

A joint reply has been filed by the Under Secretary, Elementary Education, office of Director, Elementary Education Haryana on behalf of respondents No. 1 and 2. Learned State counsel in terms of referring to the averments contained in the written statement would argue that the petitioner had concealed the fact as regards registration of FIR No. 343 dated 2.10.2010 before the respondent-authorities and, accordingly, he had divested himself of any claim as regards appointment to the post of JBT teacher. Learned counsel has further justified the action of the respondent-Department in not issuing an appointment letter in favour of the petitioner on the ground that a criminal case involving moral turpitude is pending against him. Reliance has also been placed upon the instructions dated 17/26.3.1975 issued by the Chief Secretary to Government Haryana and appended as Annexure R-IV along with the written statement to submit that as per such instructions, offence u/s 406 of the Indian Penal Code is serious and involves moral turpitude. Reference has also been made to a decision of the Hon''ble Supreme Court dated 13.10.2011 in Civil Appeal No. 8638 of 2011 (arising The State of West Bengal and Others Vs. Sk. Nazrul Islam, ), titled as State of West Bengal and others v. SK. Nazrul Islam, wherein it had been held that a mandamus could not have been issued by the High Court to appoint the respondent therein as a Constable when a criminal case under Sections 148, 323, 380, 427, 506 of the Indian Penal Code was pending against him.

Learned counsel for the parties have been heard at length.

At the very outset, the assertion made on behalf of the State that there has been a concealment on the part of the petitioner as regards registration of an FIR against him would require consideration. Admittedly, the petitioner had applied for the post of JBT teacher in pursuance to advertisement dated 13.8.2009 issued by the respondent-Commission. The petitioner had been called upon to appear in an interview and the result of the selected JBT teachers was declared on 7.6.2010. The registration of FIR No. 343 is on 2.10.2010. Clearly, at the stage of submission of application form by the petitioner as also till the declaration of the result by the respondent-Commission, no FIR had been lodged. The assertion of concealment against the petitioner, as such, is without any basis.

The issue that would arise in the present case is as to whether the State Government would be justified in denying appointment to the petitioner merely on account of registration of an FIR inspite of having been selected for the post in question. Suffice it to observe that at the stage of selection, the FIR had not been registered and as such, there was no blemish against him. This Court is of the considered view that mere registration of an FIR cannot be made the basis and equated with a finding of guilt recorded by a competent Court. In other words, registration of a case cannot lend the colour of conviction. The action of the respondent-Department in not issuing an appointment letter to the petitioner for the post of JBT teacher inspite of his selection and merit position would amount to holding the petitioner guilty of the offence. Such a course of action would be totally unwarranted. In taking such view, this Court would draw support from the observations made by the learned Single Judge of the Rajasthan High Court in Harsh Gupta v. Rajasthan State Electricity Board, 1995 (1) SCT 485 which are as under:--

On the merits of the case, I would like, once again, to make it clear that at the time of selection, the petitioner had no blemish whatsoever against him. The only material which came into existence after his selection is in the form of registration of first information report against almost all the members of the family of the petitioner roping them in an offence u/s 498-A IPC. The question is, whether mere registration of a case by the police can be made the basis for holding that the petitioner''s character is doubtful or unsatisfactory. The answer of this question will depend on as to whether registration of a case by the Police can be equated with a finding of guilt recorded by a competent Court or Tribunal. Registration of a case simpliciter does not automatically result in conviction of a person. It does not per se cause a stigma on character of a person. Therefore, the information which the police had forwarded to the authorities of the Board regarding the character of the petitioner was misleading. Apparently, the authorities of the Board have, without applying their mind, mechanically acted on the report sent by the police authority at Ajmer. Authorities of the Board never bothered to find out as to what is the nature of the allegation levelled against the petitioner; what is the stage of the case and as to whether the petitioner has been found guilty of an offence. I am of the considered opinion that action which the respondent-Board has taken is not in terms of para 6 of the order of appointment dated 23.11.1991. This view of mine is fully supported by D.B. judgment of this Court in Gopi Lal v. State of Rajasthan and another, [1989 (2) RLR 748]. The Division Bench has observed as under:--

We may, therefore, sum up that the service of a Government servant cannot be terminated or the Government servant cannot be discharged from service only on account of the pendency of a criminal case against him. The reason is obvious. Unless the guilt is proved, one is presumed to be innocent. Moreover, criminal case may be launched out of enmity etc. It is, therefore, the conviction and not the pendency of a criminal case which should be taken into account for disciplinary action.

In a somewhat similar and relevant circumstances, this Court had been called upon to examine the validity of a termination order passed by the State of Punjab in respect of a teaching fellow merely on account of registration of an FIR in Civil Writ Petition No. 4948 of 2010 (Gurchetan Singh Atwal v. State of Punjab and others) decided on 1.2.2011 on account of a matrimonial dispute. Holding the order of termination to be per se bad in law, it was observed in the following terms:--

Admittedly, the petitioner has not been convicted by any competent court of law. Simply on registration of an FIR and that too by the wife of the petitioner, the petitioner''s services have been terminated. Mere registration of the FIR does not in any manner establish the allegations in the FIR or disprove the character of the petitioner unless the petitioner is convicted in criminal offence by competent court of law. No rule or law has been brought to the notice of this Court by the State counsel justifying the impugned order. The impugned order is per se bad in law and is liable to be set aside.

The reliance placed by the learned counsel appearing for the State upon the judgment of the Hon''ble Supreme Court of India in State of West Bengal (supra) would have no bearing on the facts of the present case. In that case, a criminal case under Sections 148, 323, 380, 427, 506 of the Indian Penal Code was pending against the respondent therein who was an applicant for the post of Constable. In the present case, it is the registration of an FIR under Sections 498-A, 406, 323 and 506 of the Indian Penal Code that has been registered against the petitioner in pursuance to a matrimonial dispute, and that too, after the selection process for the post of JBT teacher already stood finalized. The facts of the present case are clearly distinguishable.

Even the reliance placed by the learned counsel appearing for the State upon the instructions dated 17/26.3.1975, Annexure R-IV, is totally misplaced. It has been contended that in the light of such instructions, an offence u/s 406 of the Indian Penal Code has been held to be involving moral turpitude and, accordingly, the action in withholding the letter of appointment to the petitioner would be justified. A perusal of the instructions would clearly reveal that they have been issued on the subject rehabilitation of ex-convicts released from jails; question of making them eligible for appointment under Government. The petitioner is neither an ex-convict and nor is he seeking rehabilitation by way of appointment to the post of JBT teacher. The instructions dated 17/26.3.1975, thus, would have no applicability to the facts of the present case. For the reasons recorded above, the present writ petition is allowed. Respondents are directed to issue an appointment letter to the petitioner for the post of JBT teacher in the light of his merit position in the General Category, within a period of eight weeks from the date of receipt of a certified copy of this order. The petitioner is also held entitled to all the consequential benefits in the nature of seniority, pay fixation with effect from the date a person lower in merit to him had been so appointed to the post of JBT teacher in the same very process of selection. It is, however, clarified that the petitioner shall not be paid the actual arrears of salary for the period in question.

Petition allowed in the aforesaid terms.