Manoj Yadav vs State Of U.P. And 3 Others
2022 Latest Caselaw 9901 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                Reserved On:- 22.06.2022  
 
 Delivered On:- 11.08.2022  
 
Case :- WRIT - A No. - 16150 of 2019 
 
Petitioner :- Manoj Yadav 
 
Respondent :- State Of U.P. And 3 Others 
 
Counsel for Petitioner :- Ram Chandra Yadav 
 
Counsel for Respondent :- C.S.C. 
 
Hon'ble Siddharth, J.

1. Heard Sri S.B. Singh, Advocate holding brief of Sri Ram Chandra Yadav, learned counsel for the petitioner and learned Standing Counsel for the State.

2. This writ petition has been filed praying for quashing of the order dated 04.09.2019 passed by the respondent no. 3, Superintendent of Police, Rae Bareilly. Further direction has been sought against the aforesaid respondent no. 3 to permit the petitioner for training and after completion of training issue appointment letter to him.

3. The brief facts of the petition are that the petitioner applied for the post of Civil Police Constable, PAC (Male) and was declared successful in the selection. His name found place in the merit list in O.B.C category. He filed an affidavit disclosing the offences wherein he was involved dated 30.05.2018. On 08.06.2018 the petitioner was directed to appear before the Medical Board, Azamgarh by the Senior Superintendent of Police, Azamgarh and he appeared before the Medical Board and was selected.

4. After medical test he was sent for training to District - Rae Bareilly where he was restrained from training on the ground that he was involved in criminal cases. The respondent no. 4, U.P. Police, Headquarter, Allahabad, informed that there is no such case pending against the applicant which may disentitle him for appointment in the Police / P.A.C department. Despite favourable report in his favour he was not permitted to complete his training since he approached this court by way of Writ Petition No. 3899 of 2019 which was disposed of directing the respondent no. 3 to take appropriate decision in the light of communication sent by the Superintendent of Police, Azamgarh dated 20.06.2019. In pursuance of the aforesaid order of this court dated 17.07.2019 by the impugned order dated 04.09.2019 the respondent no. 3 has rejected the prayer of the petitioner for joining the training on the ground that the applicant was earlier implicated in Case Crime No. 646 of 2010, under Sections 302/307 IPC and 7 Criminal Law Amendment Act and was acquitted because the witnesses turned hostile. Case Crime No. 350 of 2010, under Sections - 457, 380, 381, 411 IPC was registered against him at Police Station- Rani Ki Sarai, District- Azamgarh, and another Case Crime No. 854 of 2010, under Section 3(1) of Gangster Act was registered against him. The respondent no. 3 found that the applicant was not fit for being given appointment in the disciplined police force and has rejected his claim.

5. Learned counsel for the petitioner has submitted that in Case Crime No. 646 of 2010, under Section 302/307 IPC and Section 7 Crl. Law Amendment Act, Police Station- Rani Ki Sarai, the petitioner was acquitted vide judgment and order dated 17.12.2015. In Case Crime No. 350 of 2010, under Sections 381/411/457/380 IPC, Police Station- Rani Ki Sarai, District- Azamgarh, the petitioner was released on probation for a probation period of one year and also fined and in Case Crime No. 854 of 2010, under Section 3(1) of the U.P. Gangsters Act, Police Station- Rani Ki Sarai, District- Azamgarh he was released on probation for the period of 21.06.2018 to 21.05.2019 and also fined.

6. All those criminal cases were registered against the petitioner in the year 2010 when the petitioner was minor apart from which in Case Crime No. 854 of 2010, the decision of concerned court came on 09.05.2018.

7. In this regard, the State Government issued the G.O. dated 28.04.1958.

Clause (b) of para 3 of the said G.O. provides as under :

(b) In cases of doubt, the appointing authority may either ask for further references, or may refer the case to the District Magistrate concerned. The District Magistrate may then make further enquiries as he considers necessary.

Note-(a) : A conviction need not of itself involve the refusal of ta certificate of good character. The circumstances of the conviction should be taken into account and if they involve on moral turpitude or association with crime of violence or with a movement which has its object to overthrow by violent means of Government as by law now established in free India the mere conviction need not be regarded as disqualification. (Conviction of a person during his childhood should not necessarily operate as a bar to his entering Government service. The entire circumstances in which his conviction was recorded as well as the circumstances in which he is now placed should be taken into consideration. If he has completely reformed himself on attaining the age of understanding and discretion, mere conviction in childhood should not operate as a bar to his entering Government service.

8. In pursuant to the provision aforesaid, the Superintendent of Police, Azamgarh referred the matter to the District Magistrate, Azamgarh and according to the Superintendent of Police, Azamgarh, the petitioner was found fit for entering in the Government Service and therefore the basis taken by the respondent no. 3 for refusing the claim of the petitioner is glaring example of arbitrariness and contrary to the G.O. aforesaid.

9. The petitioner was acquitted in one case and in remaining two cases, he was released on probation extending the benefit of Probation of First Offenders Act. The section 12 of the Probation of First Offenders Act provides as under :-

" Section 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 section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

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

10. After year 2010, no F.I.R or complaint for commission of any offence was registered against the petitioner which is evident from this report of police station Rani Ki Sarai and therefore the case of petitioner does not falls within the ambit of scope of exception provided in section 12 of the Act and therefore the restriction on disqualification attaching to conviction of petitioner by section 12 of the Probation of First Offenders Act shall be applicable to the case of the petitioner even after imposition of the fine upon him.

11. Section 12 imposed restriction upon disqualification of a person attaching to a conviction of an offence in case the order under Section 3 and 4 of the Act, 1958 is passed. The order passed under Section 3 and 4 of the Act 1958 containing any punishment of fine does not exclude the petitioner from the ambit and scope of Section 12 of the Act.

12. Learned counsel for the petitioner has further submitted that at the time of alleged offences the petitioner was minor. Counsel for the petitioner has relied upon the judgment of the Apex Court in the cases of (1) Union of India and Other vs. Ramesh Bishnoi, 2019 (0) Supreme (SC) 1307, (2) Shivam Maurya vs. State of U.P and Others, 2020 (5) ADJ 6, and (3) Kishan Paswan vs. Union of India and others, 2020 (0) Supreme (All) 956 in support of his arguments that the petitioner is not under any disability, on account of involvement in criminal cases while he was minor, for appointment in police service.

13. Learned Standing Counsel has filed counter affidavit and has submitted that after being declared selected in the Uttar Pradesh Police Constable & Constable PAC Direct Recruitment-2015, petitioner was allotted District Raibareilly for the J.T.C. Training/appointment and the relevant records (after character verification and medical examination) were sent by the Senior Superintendent of Police, Azamgarh to District Raibareilly.

From perusal of the report regarding petitioner's character verification received from the Senior Superintendent of Police, Azamgarh, it was revealed that following criminal cases were registered against him:

(a) Case Crime no. 646 / 2010 u/s. 302/307 IPC and Section 7 CLA Act registered at P.S.- Rani Ki Sarai, District Azamgarh, wherein he finally came to be acquitted by the Juvenile Justice Board, Azamgarh on 17.12.2015 on account of witnesses of the case turning hostile.

(b) Case Crime no. 350/2010 u/ss. 381, 411, 457, 380 IPC registered at P.S. Rani Ki Sarai, District Azamgarh, wherein by means of order dated 23.1.2017 passed by the Juvenile Justice Board, Azamgarh, he was directed to be kept with his parents on one years' probation of good conduct with imposition of fine.

(c) Case Crime no. 854/2010 u/s. 3(1) of the U.P. Gangster Act registered at P.S. Rani Ki Sarai, District Azamgarh, in which also, by means of order dated 9.5.2018 passed by the Juvenile Justice Board, Azamgarh, he was directed to be kept with his parents on one years' probation of good conduct with imposition of fine.

14. During the course of petitioner's character verification, it was reported by P.S. Rani Ki Sarai in its report dated 22.6.2018 that all the criminal cases registered against petitioner pertained to the period when he was minor and there existed no other criminal case pending against him. This apart, it was also indicated therein that in Case Crime no. 854/2010 u/s 3(1) of the U.P. Gangster Act, one year's probation period was yet to be completed.

15. On the basis of said report and the materials placed before him, the District Magistrate, Azamgarh, through his letter dated 11.9.2018, opined that the petitioner was eligible for appointment in Government Service in view of the government order dated 28.4.1958.

16. It is relevant to mention here that in Para-8(ja) of the government order dated 28.4.1958 as well as in the Circular dated 22.5.2018 issued by the U.P. Police Headquarter, it has clearly been mentioned that if a candidate has been punished for an offence involving 'Moral Turpitude', he shall be declared ineligible for appointment in Government Service and his candidature will be cancelled. Even Hon'ble Apex Court in case of Avtar Singh Vs. Union of India & Ors., (2016) 8 SCC 471 and other several decisions has directed that the Employer will have to consider all the departmental rules, regulations and orders while deciding the eligibility of a candidate.

17. Since the Uttar Pradesh Police is a disciplined force assigned with the duty to maintain law and order, peace and tranquility and also to ensure maintaining of public faith in its functioning and therefore, before appointing a candidate in it, his honesty, integrity and flawless character must be ascertained. In the present case, registering of several criminal case against petitioner, as indicated hereinabove, showed 'Moral Turpitude' on his part and therefore, merely on the ground that he was acquitted or put to probation for one year in those cases, his ''Moral Turpitude' does not automatically come to an end. Under such circumstances, petitioner was not given appointment in the U.P. Police pursuant to his selection.

18. The petitioner's claim for appointment on the post in question was rejected by the Competent Authority by passing a well-reasoned and speaking order, particularly in view of the fact that petitioner was found involved in the offences involving ''Moral Turpitude' and not suitable for appointment in a disciplined Police Force like U.P. Police. Thus, petitioner has not made out any case for interference by this Hon'ble Court and his writ petition being devoid of any merit, deserves to be dismissed with cost.

19. The issue of juvenile offender's non-culpability has been considered in number of judicial pronouncements and some of them have been referred to by the learned counsel for the petitioner which need consideration before proceeding further.

20. In paragraph nos. 8 to 10 of the judgment of the Apex Court in the case of Union of India and Other vs. Ramesh Bishnoi, 2019 (0) Supreme (SC) 1307, it has been held, while deciding issue of earlier implication of juvenile in criminal case, that it gets obliterated on attaining majority by juvenile, as follows :-

" 8. In the present case, the complaint/FIR lodged against the respondent was to the effect that when he was a minor, he had teased a girl a few times and went to the extent of catching hold of her hand. However, the girl and her parents finally decided to pardon the respondent by not giving any evidence against him, resulting in the acquittal of the respondent. In the aforesaid facts, even if the aforesaid is found to be true, it cannot be said that the respondent had committed such a crime, which would be covered under the definition of moral turpitude, specially when the respondent is said to have committed the alleged offence when he was a minor.

9. From the facts, it is clear that at the time when the charges were framed against the respondent, on 30.06.2009, the respondent was well under the age of 18 years as his date of birth is 05.09.1991. Firstly, it was not disputed that the charges were never proved against the respondent as the girl and her parents did not depose against the respondent, resulting in his acquittal on 24.11.2011. Even if the allegations were found to be true, then too the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. The thrust of the legislation, i.e. The Juvenile Justice (Care and Protection of Children) Act, 2000 as well as The Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person, without any stigma. Section 3 of the Juvenile Justice (Care and Protection of Children) Act, 2015 lays down guidelines for the Central Government, State Governments, the Board and other agencies while implementing the provisions of the said Act. In clause (xiv) of Section 3, it is clearly provided as follows:

".................

(xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.

.................." In the present case, it is an admitted fact that the respondent was a minor when the charges had been framed against him of offences under Sections 354, 447 and 509 of IPC. It is also not disputed that he was acquitted of the charges. However, even if he had been convicted, the same could not have been held against him for getting a job, as admittedly he was a minor when the alleged offences were committed and the charges had been framed against him. Section 3(xiv) provides for the same and the exception of special circumstances does not apply to the facts of the present case.

10. Further, the case against the respondent is not with regard to the suppression of any conviction or charges having been framed against him. The respondent had very fairly disclosed about the charges which had been framed and his acquittal on the basis of no evidence having been adduced by the complainant against the respondent. In our considered view, the same can also not be said to be a suppression by the respondent, on the basis of which he could be deprived of a job, for which he was duly selected after following the due process and appointment having been offered to him."

21. In the case of Shivam Maurya vs. State of U.P and Others, 2020 (5) ADJ 6, this court considered the provisions of Juvenile Justice (Case and Protection of Children) Act, 2000 in the context of implication of juvenile in criminal cases in paragraph nos. 7 to 15 which are as follows:-

"7. The appellant-petitioner at the time of lodging of the said F.I.R was a juvenile. A juvenile has been defined in Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000. The same is extracted herein below:-

"(k) "juvenile" or "child" means a person who has not completed eighteenth year of age;"

8. Section 19 of the Act of 2000 reads as under:-

"19. Removal of disqualification attaching to conviction:- (1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.

(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period prescribed under the rules, as the case may be."

9. Since the appellant-petitioner was under the age of 18 at the time of lodging of the said F.I.R he had to be treated as a juvenile in conflict with law. A "juvenile in conflict with law" has also been defined under Section 2 (l) of the Act of 2000. The same reads as under:-

"(l) "juvenile in conflict with law" means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date f commission of such offence;"

10. Section 19 of the Act of 2000 has been incorporated in order to give a juvenile an opportunity to lead his life with no stigma and to wipe out the circumstances of his past. It thus provides that a juvenile shall not suffer any disqualification attaching to conviction of an offence under such Act. A "juvenile" on the date when the alleged offence has been committed is required to be dealt with under the Juvenile Justice Board (Care and Protection of Children) Act, 2000 which declares that all criminal charges against individuals who are described as "juvenile in conflict with law" be decided by the authorities constituted under the Act by the Juvenile Justice Board. If a conviction is recorded by the Juvenile Justice Board, Section 19 (1) of the Act of 2000 specifically stipulates that juvenile shall not suffer any disqualification attached to the conviction of an offence under such law. Further Section 19 (2) of the Act of 2000 contemplates that the Board must pass an order directing all the relevant records of such conviction to be removed after expiry of the period of appeal or reasons as prescribed under the rules as the case may be.

11. At the present moment it will not be out of place to mention that in the present case the Juvenile Justice Board while giving its judgment and order dated 07.07.2018 being conscious of the provision of Section 19 of the Act of 2000 directed that the records or papers will be dealt with as per the provisions of Rule 99 of Juvenile Justice ( Care and Protection of Children) Rules, 2007. The said Rule is extracted herein below:-

"99. Disposal of records or documents.-- The records or documents in respect of a juvenile or a child or a juvenile in conflict with law shall be kept in a safe place for a period of seven years and no longer, and thereafter be destroyed by the Officer-in-Charge or Board or Committee, as the case may be."

12. Section 21 of the Act of 2000 prohibits publication of the name of the "juvenile in conflict with law" with the object to protect a juvenile from adverse consequences on account of his conviction for an offence committed as a juvenile. The same reads as under:-

"21. Prohibition of publication of name, etc., of juvenile involved in any proceeding under the Act.-

(1) No report in any newspaper, magazine, new-sheet or visual media of any inquiry regarding a juvenile in conflict with law under this Act shall disclose the name, address or school or any other particulars calculated to lead to the identification of the juvenile nor shall any picture of any such juvenile be published:

Provided that for reasons to be recorded in writing the authority holding the inquiry may permit such disclosure, if in its opinion such disclosure is in the interest of the juvenile.

(2) Any person contravening the provisions of sub-section (1) shall be punishable with fine, which may extend to one thousand rupees."

13. The sensitivity in matters relating to a juvenile or child or juvenile in conflict with law was deep embedded in the legislation as is apparent from Chapter II of the Juvenile Justice (Care & Protection of Children) Rules, 2007. Rule 3 therein gives in detail the fundamental principles to be followed in administration of the Rules.

14. The said Act is a beneficial legislation. The principles of such beneficial legislation are to be applied only for the purpose of interpretation of this statute. The concealment of the pendency of criminal case against the appellant-petitioner was of no consequence. As per the requirement of law a conviction in an offence will not be treated as a disqualification for a juvenile. The records of the case pertaining to his involvement in a criminal matter are to be obliterated after a specified period of time. The intention of the legislature is clear that in so far as juveniles are concerned their criminal records is not to stand in their way in their lives. The cancellation of the candidature of the appellant-petitioner was thus bad. The authority concerned failed to appreciate the fact that the appellant-petitioner was entitled to benefit of the provisions of Act of 2000. The cancellation of the candidature of the petitioner goes contrary to the object sought to be achieved by the Act of 2000. Section 19 of the Act of 2000 protects a juvenile and any stigma attached to his conviction is also removed. The Act of 2000 does not envisage incarceration of a juvenile which clearly shows that the intention and object was not to shut the doors of a disciplined and decent civilised life. It provides him an opportunity to mend his life for the future.

15. We thus hold that the authority concerned fell in complete error in not extending the benefit of Act of 2000 to the appellant-petitioner particularly when there are specific provisions provided therein to take care of a juvenile being implicated, tried and / or convicted in a criminal matter. We thus extend the benefit provided under Section 19 of the Act of 2000 to the appellant-petitioner.

22. A single Judge decision of this Court in the case of Kishan Paswan vs. Union of India and others, 2020 (0) Supreme (All.) 956, has also been relied upon in support of the contention that in the case of juvenile general law stands excluded.

23. This Court in the case of Kishan Paswan vs. Union of India and others (supra) has held in paragraph nos. 35 and 36 that juvenile form separate class and cannot be treated at par with adult offenders. Even if a juvenile does not discloses details of his criminal prosecution as juvenile it will not affect his case as follows:-

" 35. From the preceding legal narrative, the following position of law emerges:

I. Juveniles and adults form separate classes. Criminal prosecution of an adult is a lawful basis for determination of suitability of a candidate for appointment to public office. However prosecution of juveniles is in a separate class. Using criminal prosecution faced by a candidate as a juvenile to form an opinion about his suitability for appointment, is arbitrary illegal and violative of Article 14 of the Constitution of India.

II. The requirement to disclose details of criminal prosecutions faced as a juvenile is violative of the right to privacy and the right to reputation of a child guaranteed under Article 21 of the Constitution of India. It also denudes the child of the protection assured by the Juvenile Justice Act, 2000 (as amended from time to time). Hence the employer cannot ask any candidate to disclose details of criminal prosecution faced as a juvenile.

III. The candidate can hold his silence or decline to give information about the criminal prosecution faced as a juvenile. Denial of such information by the candidate will not amount to a false declaration or a willful suppression of facts.

IV. The conviction by a Juvenile Justice Board under the Juvenile Justice Act, 2000 of a juvenile is not a disqualification for employment. As a sequitor prosecution faced as a juvenile is not a relevant fact for forming an opinion about the criminal antecedents and suitability of the candidate for appoinment. Non disclosure of irrelevant facts is not "deliberate" or willful concealment of material facts. Hence non-disclosure of such criminal cases cannot invalidate the appointment of the said person.

V. Clarification:

These holdings shall not apply to cases beyond the ambit of Juvenile Justice Act, 2000 (as amended from time to time) and also in cases of heinous crimes committed by persons in the age group of 16 to 18 years.

36. The questions posed earlier are answered in terms of the preceding holdings. I find that the respondents authorities have acted in a manner contrary to law by requiring the petitioner to disclose criminal prosecution faced by him as a juvenile. The petitioner in defence of his fundamental rights lawfully denied the said information. Hence the petitioner did not deliberately or wilfully conceal any material facts, to secure his appointment.

24. This court finds that in the case of Kishan Paswan (Supra) of this Court the petitioner did not disclosed his criminal history at the time of recruitment. However in the present case the petitioner was fair enough to disclose the three cases wherein he was earlier implicated when he was juvenile. Therefore, his conduct was not wanting in this regard. It is not a case of respondents that the petitioner concealed the criminal history or the final result of the cases registered against him when he was juvenile. It is not case of the respondents that the petitioner was not a juvenile at the time he was implicated in the three cases. The District Magistrate rightly recorded the finding in his favour as per relevant government order which was ignored the respondent no. 3. The respondents have not been able to reply to the arguments advanced on behalf of the counsel for the petitioneer based on judgments of the Apex Court and this Court.

25. After considering the above dictum of the Hon'ble Supreme Court and this court this court finds that the impugned order dated 04.09.2019 passed by the respondent no. 3 cannot be sustained and is hereby quashed.

26. The respondents are directed to sent to the petitioner for training forthwith and subject to competing his training successfully he shall be issued appointment letter and shall be deemed to be appointed for the purpose of seniority only from the period when his batch of selected candidates were given appointments.

27. The writ petition is accordingly, allowed.

28. No order as to costs.

Order Date :- 11.08.2022

Rohit