Rajesh Harijan vs State of Rajasthan and Others

Gopal Krishan Vyas, J.�Instant writ petition has been filed by the petitioner for quashing order dt. 13.09.2011 (Annex.-3) and to issue direction to the respondents to given appointment to the petitioner. Undisputedly, the petitioner was selected for the post of Constable in pursuance of the advertisement issued by the respondents in pursuance of the vacancies advertised in the session 2008-09 and, after selection, the petitioner was selected for the post of Constable but appointment was denied to the petitioner on the ground that upon character verification it is found that a criminal case No. 67/2000 was registered against the petitioner for offences under Secs. 323, 324, 324/34, I.P.C. at Police Station Kanore, in which he was found guilty but while giving benefit of probation he was released vide judgment dt. 8.8.2011.

Learned counsel for the petitioner submits that the controversy involved in this case is squarely covered by the judgment delivered in the case of Rai Sahab v. State of Rajasthan & Anr., 2013 (2) RLW 1714, in which, this Court has held that if candidate is not involved in any offence relating to moral turpitude and acquitted on the basis of compromise, then, he is required to be considered for appointment and, in this case, the petitioner was not involved in any case of moral turpitude; but for offences under Secs. 323, 324, 324/34, I.P.C. he was held guilty but given benefit of probation, therefore, the respondents cannot deny appointment to the petitioner in view of Sec. 12 of the Probation of Offenders Act, Therefore, directions may be issued to the respondents to provide appointment to the petitioner-ignoring the fact that the petitioner was convicted but released on probation under Sec. 12 of the Probation of Offenders Act.

In the reply filed by the respondents, it is submitted that the petitioner was involved in a criminal case and after trial he was found guilty but benefit of probation was given to him, therefore, it cannot be said that the petitioner was acquitted honourably by the criminal Court. Therefore, the respondent Police Department can assess the character of petitioner for the purpose of denying appointment to the petitioner.

In support of his contention, the respondents counsel invited attention of the Court towards the judgment of the Hon''ble Supreme Court in the case of Commissioner of Police, New Delhi and Another Vs. Mehar Singh, , and submits that according to the aforesaid judgment the petitioner is not entitled for appointment.

After hearing learned counsel for the parties, I have perused the judgment cited by learned counsel for the petitioner in the case of Rai Sahab, reported in 2013 (2) RLW 1714, so also, Section 12 of the Probation of Offenders Act and judgment cited by learned counsel for the respondents in the case of Commissioner of Police v. Mehar Singh.

It is true that in the criminal case registered against the petitioner for offences under Secs. 323, 324, 324/34, I.P.C. the petitioner was held guilty by the Addl. Chief Judl. Magistrate No. 2, Udaipur but he was released on probation while giving him benefit under Sec. 12 of the Probation of Offenders Act vide judgment dt. 08.08.2011. The purpose of enactment of the Probation of Offenders Act and Sec. 12 thereof is to give chance to the offender to improve and to maintain good behaviour and conduct in character. Section 12 of the Probation of Offenders Act is as follows:

"12. Removal of disqualification attaching to conviction.--Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Sec. 3 or Sec. 4 shall not suffer disqualification, if any, attaching to a conviction of an offender under such law:

Provided that nothing in this section shall apply to a person who, after his release under Sec. 4 is subsequently sentenced for the original offence."

Upon perusal of the above provision, it is abundantly clear that with open eyes the aforesaid provision was incorporated by the legislature, therefore, upon the facts of the present case the judgment cited by learned counsel for the respondents, rendered by the Hon''ble Supreme Court in Mehar Singh''s case (supra), is not applicable because in that judgment the question was altogether different and was not related with benefit under the Probation of Offenders Act Therefore, in the opinion of this Court, respondent Police Department is under obligation to consider the eligibility of the petitioner in the light of Sec. 12 of the Probation of Offenders Act or the purpose of providing appointment to the petitioner because for the offence which is not related with moral turpitude the trial Court granted benefit of probation provided under Secs. 3 and 4 of the Probation of Offenders Act.

In view of the above, instant writ petition is allowed. The order dt. 13.09.2011 is hereby quashed and set aside with further direction to the respondents to consider the case of the petitioner for appointment as per his merit if he is otherwise eligible, within a period of one month from the date of receipt of certified copy of this order. There shall be no order as to costs.