Sardarsingh vs Smt.Chainkunwar

Taking exception to the order dated 5-02-2009 passed

by the learned Single Judge in W.P. No.8935/2008(S) in this intra-

court appeal preferred under Section 2(1) of the Madhya Pradesh

Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam,

2005, assail is to the decision of the respondents denying the

appointment to the petitioner-appellant on the post of constable, on

the ground of verification of antecedents and character of the

appellant.

The factual expose adumbrated in a nutshell : that the

petitioner-appellant was a candidate, who submitted his candidature

for appointment on the post of constable on being found eligible and

successful in the selection process. His name was empanelled for

appointment and the order dated 28-5-2007 (Annexure-P/2) was

issued asking the petitioner to appear and participate in the further

process of submitting the form and other credentials for

appointment. It is submitted that the appellant appeared and

submitted his declaration and verification form, vide Annexure-P/3

and in column No.12 he had stated that he was arrested in respect of

the offence punishable under sections 457 and 380 of the Indian

Penal Code [for short `the IPC ''] and was acquitted by the criminal

Court.

The main grievance of the appellant is that even though

he had made declaration in the form in column No.12 and inspite of

the fact that he has been acquitted in the criminal case vide order

contained in (Annexure-P/4) dated 7-8-2007 the respondents have

cancelled his selection on the ground that his acquittal was on the

bedrock of benefit of doubt and he is unfit for seeking appointment

in the Police Department. Case of the appellant is that he had not

made any suppression of facts and in the criminal case which was

instituted against him, he has been acquitted of the alleged charges

and the order of acquittal has also been maintained by the appellate

Court.

Counsel for the State submitted that even though in

Column No.12 of Annexure-P/3 - the declaration form, the

appellant had mentioned the fact about his involvement in a criminal

case, but the respondents have examined the case of the petitioner-

appellant in the light of the Circular dated 5-6-2003 (Annexure-R/1)

issued by the Department of Home, Govt. of M.P., Bhopal and it

was found that as the appellant was prosecuted for the offence

involving moral turpitude under Section 380 of the IPC and,

therefore, he was declared unfit for employment in the Police

Department. It is further submitted that in the Circular (Annexure-

R/1) in clause 6(ii) in the schedule list of offences, which can be

considered as the offences falling under the category of moral

turpitude, disentitiling for appointment in service. It is contended

that even after acquittal in the criminal case, the competent authority

has the right to evaluate the case of a candidate in the light of the

Circular (Annexure-R/1) and determine the suitability of the

candidate for appointment in the Police Department.

Learned counsel for the appellant placed reliance upon

the judgment of the apex Court rendered in the case of Avtar Singh

vs. Union of India and others, (2016) 8 SCC 471 and contended

that since there is no concealment of the criminal case in the

verification form submitted by the appellant, therefore, he could not

have been denied the appointment by the respondents. He

strenuously urged that the offence which was registered against the

appellant does not involve moral turpitude.

Before adverting to the facts of the present case, it is

apposite to refer the case of Arvind Gurjar vs. State of M.P. [W.P.

No .5887/2016, decided on 27-10-2016] wherein a co-ordinate

Bench of this Court, taking into consideration the facts of the case,

held that the decision of the State denying appointment of the

petitioner on the police verification despite his acquittal based on

compromise in a case of trivial nature was not proper and directed

the State to appoint the petitioner. In the said case, the petitioner

who was a student, got involved in a minor altercation between the

students, the matter was compromised and the same was accepted

by the Court. The Principal of the College had issued a character

certificate in favour of the petitioner to the effect that the petitioner

had successfully completed BA.LL.B Course without being

involved in any illegal activities. In this backdrop of the facts, this

Court had directed the Government to issue an appropriate order

after quashing the decision of the employer denying the

appointment. At this stage we would like to clarify, that in exercise

of powers under Article 226 of the Constitution of India, while

issuing a writ of certiorari the High Court demolishes the order

which it considers to be without jurisdiction or palpably erroneous,

but does not substitute its own views, as held in the case of T.C.

Basappa vs. T. Nagappa, AIR 1954 SC 440 referred and followed

by Full Bench in the case of Shailendra Kumar vs. D.F.O. &

another [W.A. No.286/2017, decided on 6-7-2017] while

answering reference on the issue of maintainability of an intra-court

appeal preferred under Section 2(1) of the Madhya Pradesh Uchcha

Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam 2005 against

an order passed by the learned Single Bench assailing an award

passed by the Tribunal. Therefore, after quashing the decision of

the employer denying the appointment on consideration of entire

materials, ordinarily, this Court would not direct the employer to

offer appointment to such candidate but, to relegate the matter to the

employer for fresh consideration. Keeping in view para 38.5 of the

judgment passed by the apex Court in Avtar Singh (supra) wherein

it is held that that 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 aforesaid discussion, the order passed by

this Court in the case of Arvind Gurjar (supra) was on

consideration of peculiar facts of the said case.

Now, coming to the facts of the present case. Regard

being had to the submissions advanced on behalf of the parties, we

perused the record in proper perspective. It is not in dispute that the

respondents have rejected the claim of the petitioner-appellant for

his appointment on the ground that he has suppressed any fact with

regard to his involvement in the criminal case, nor it is their case

that his acquittal is based on conferring the benefit of doubt,

therefore, he is unfit for appointment. It is the case of the

respondents that for appointment the Home Department, Govt. of

M.P., has issued a Circular (Annexure-R/1) dated 5-6-2007 and in

clause 6(ii) of the said Circular, special conditions are laid down to

consider the case of the employees who have been prosecuted in a

criminal case and how the same has to be dealt with, even after they

are acquitted of the charges.

A bare perusal of the Circular indicates that if a person

is prosecuted in a court of law and acquitted either by trial Court or

the appellate Court, even in such cases, the competent authority has

to apply its mind independently by following the facts in entirety. If

it is found that the person was prosecuted for an offence involving

moral turpitude and his involvement disentitles him from claiming

the employment, he should not be given appointment. In Annexure-

R/1, list of offences which according to the respondents falls in the

category of offences involving moral turpitude.

Thus, it is amply clear that in the present case the

respondents have not rejected the claim of the appellant on the

ground of suppression of information or his acquittal by granting

benefit of doubt, but the respondents have evaluated the claim of the

appellant in the light of the Circular issued by the Department and

found that the appellant was involved in a case where an offence

involving moral turpitude was existing, and they found the appellant

unfit to be appointed in the Police Department.

A careful reading of sub-clause (ii) of Clause 6 indicates

that there may be acquittal by granting benefit of doubt, liberty is

granted to the competent authority to evaluate the entire factual

aspects and to take a decision as to whether the person concerned,

should be employed or not. There is a further provision contained in

clause 2 whereas sub-clause 3 contemplates a provision wherein

even if offence does not fall in the category of those involving moral

turpitude, even in such cases after acquittal, if there is suppression

of his prosecution, the appointment can be denied. Further, sub-

clause (viii) of clause 6 indicates that if the Court has given clean

acquittal, such person should be granted appointment without any

evaluation by the competent authority.

Clause 6 of the Circular as a whole, clearly indicates

that only in the cases where the acquittal is clean without any benefit

of doubt, appointment order has to be issued as a matter of course,

but in other cases, power is conferred to the Competent Authority to

evaluate the entire record and examine the suitability and fitness of

the candidate for the said post.

At this stage it is condign to state that a three-judge

Bench of the apex Court in Avtar Singh (supra) has reviewed the

entire case law on the subject, i.e., jurisdiction of an employer to

adjudge eligibility and suitability in the matter of selection or

appointment in the event of suppression of material information or

giving false information in the application form as to conviction,

acquittal, arrest or pendency of a criminal case and in the event

where the employee has made a declaration truthfully of a

concluded trial or for the offence of trivial nature and ultimately

resulting into acquittal based on a compromise prior to submission

of the application form for appointment. In para 38 of the judgment

the Supreme Court has summarised the conclusions regarding nature

of offences and their ultimate eventualities in the context of scope of

jurisdiction of the authority to deal with these aspects while taking a

decision for judging the suitability and eligibility of a candidate for

employment on the post.

In the present case, the employer has examined the case

of the appellant in the light of the Circular dated 5-6-2003 issued by

the Department. It was found that the appellant was involved in a

case of theft of crown (MUKUT) from a temple, the value of the

aforesaid stolen property was more than 40 lacs and the appellant

was prosecuted in respect of the offence punishable under sections

452 and 380 of the IPC. The courts found that even though the

stolen property was recovered from the possession of the appellant,

but there was some discrepancy in the seizure-memo, Ex.P/4;

statement of the Investigating Officer (PW-6) and seizure witnesses

and, therefore, the appellant was extended the benefit of doubt and

he was acquitted. The competent authority evaluated the entire

matter in proper perspective after going through the judgements of

the trial Court as well as the appellate Court and ascribed the finding

that the appellant has been granted benefit of doubt to the

discrepancies in the statements of witnesses. However, considering

the nature of the case and implication of the appellant and taking

note of the fact that he is not acquitted on a clear finding of non-

existing of guilt but has acquitted him by extending the benefit of

doubt and, therefore, he was not found fit to be considered for

appointment in the Police Department in accordance to the

requirements of the Circular (Annexure-R/1).

Thus, the decision taken by the Department was not

mechanical, but it was a conscious decision after taking into

consideration the facts and circumstances of the case in proper

perspective. Further, if a candidate is to be recruited to the Police

service, he must be worthy confidence of an utmost rectitude and

must have impeccable character and integrity. The persons having

criminal antecedents, would not fall within the ambit of the said

category. Even if he is acquitted or discharged, it cannot be

presumed that he can be completely exonerated. [See: State of

Madhya Pradesh and others vs. Parvez Khan, (2015) 2 SCC 591]

In the conspectus of the above discussion, we are of the

considered opinion, that there is no illegality or impropriety in the

decision taken by the respondents, denying appointment to the

appellant-petitioner, the same is in accordance with law expounded

in Avtar Singh (supra) and the findings ascribed by the learned

Single Judge are impeccable and deserve stamp of approval of this

Court.

In view of the aforesaid analysis, the inevitable

conclusion is that the appeal is devoid of any substance and deserves

to be dismissed and accordingly, we so direct. However, in the facts

and circumstances of the case, there shall be no order as to costs.