Mr. Suhas Arun Malve vs State Of Maharashtra Through ...
2016 Latest Caselaw 6161 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            CIVIL APPELLATE JURISDICTION




                                                       
                           WRIT PETITION NO.11266 OF 2016


    Mr Suhas Arun Malve                                  ... Petitioner




                                                      
          v/s
    State of Maharashtra and others                      ... Respondents

Mr Uday Warunjikar with Mr Sachinkumar P. Rajepandhare for

Petitioner.

Ms Sushma Bhende, AGP for Respondent No.1.

Mr Amit Borkar for Respondent No.2.

                              CORAM             : S.C. DHARMADHIKARI &
                                                  B.P. COLABAWALLA JJ.

                                         DATE   : 19TH OCTOBER 2016.
      
   



    JUDGMENT [ PER B. P. COLABAWALLA J. ] :-

1. This Writ Petition has been filed under Article 226 of

the Constitution of India seeking a direction to quash and set aside

the communications/orders dated 14th December, 2015 and 26th

July, 2016 passed by the Law and Judiciary Department of the

Government of Maharashtra (Respondent No.1). An additional

direction is sought that the Respondents be directed to appoint the

Petitioner to the post of Civil Judge, Junior Division and Judicial

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Magistrate, First Class, as recommended by the Respondent No.3.

It is the Petitioner's case that despite being recommended by

Respondent No.3 to the said post and being included at Sr. No.121

in the merit list, Respondent No.1, on the basis of the

opinion/recommendation of Respondent No.2, decided not to

recommend the name of the Petitioner for judicial service.

2. The basic facts relating to the present controversy are

as follows:-

(a) The Petitioner claims to an Advocate by profession and

practicing since the year 2004. He has B.A. and LL.B.

degrees. Respondent No.1 is the State of Maharashtra,

through the Law and Judiciary Department.

Respondent No.2 is the High Court of Judicature at

Bombay, through its Registrar General and Respondent

No.3 is the Maharashtra Public Service Commission (for

short, "MPSC").

(b) It is the case of the Petitioner that since there were

vacancies for the post of Civil Judge, Junior Division

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and Judicial Magistrate, First Class, Respondent No.3

issued advertisement No.65 of 2014 inviting

applications for the said post. Pursuant to the said

advertisement, the Petitioner submitted his online

application seeking to apply to the post of CJJD and

JMFC. Accordingly, the Petitioner presented himself

and passed the preliminary examination and was

selected for the main examination. The Petitioner

thereafter appeared for both papers and secured 112

marks in the written examination as well as 27 marks

in the interview. Accordingly, in the final result, the

Petitioner secured the rank No.121 in the merit / select

list. Based on this, Respondent No.3 recommended the

name of the Petitioner to Respondent No.1 by its letter

dated 15th June, 2015. Thereafter, the Petitioner also

received a letter dated 24th June, 2015 calling him for

medical examination and verification of documents.

The Petitioner was also directed to furnish all details in

the attestation form, which according to the petitioner,

was duly done. In the said attestation form, the

Petitioner also disclosed that there was a criminal case

filed against him under sections 498-A, 323, 504, 506

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r/w section 34 of Indian Penal Code, 1860 ("IPC") being

R.C.C. No.123 of 2012. It was further disclosed that the

said case was pending and had not been finally decided.

(c) It is in these circumstances that the Petitioner received

a communication dated 14th December, 2015 from

Respondent No.1 stating that Respondent No.2 had

opined that the recommendation in favour of the

present Petitioner cannot be accepted. Thereafter, on

10th March 2016, the learned JMFC, Court No.3,

Pandharpur, District Solapur, was pleased to deliver his

judgment in R.C.C. No.123 of 2012 holding that the

charges against the accused therein including the

Petitioner were not proved and therefore, came to be

acquitted. In view of this acquittal, the Petitioner, on

19th March, 2016 made a representation that his

recommendation should now be accepted and he should

be appointed to the post of CJJD and JMFC. In view

thereof, Respondent No.1 forwarded the said

representation to Respondent No.2. It is thereafter

averred in the Petition that on 16th July 2016,

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Respondent No.2 has given a negative opinion and in

view of the same, on 26th July 2016 the Petitioner

received a communication from Respondent No.1 that

the Petitioner was not suitable for the said post. It is in

these circumstances that a challenge has been laid in

the present Petition to the communication / orders

dated 14th December, 2015 and 26th July, 2016 issued

by Respondent No.1.

3. In this factual backdrop, Mr Warunjikar, learned

counsel appearing on behalf of the Petitioner, submitted that on a

perusal of the impugned communications, it was clear that the

Petitioner's appointment had been rejected only in view of the

criminal case filed against the Petitioner. He submitted that this

criminal case against him was a completely frivolous one. Even

though when the Petitioner had applied for the said post the

criminal case was pending against him, he has been subsequently

acquitted of all charges in the said case and no appeal has been filed

therefrom. This being the case, it was totally incorrect on the part

of Respondent No.1 in not accepting the recommendations of

Respondent No.3 and appointing the Petitioner to the said post.

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4. Mr. Warunjikar submitted that this has been done only

because of the opinion and recommendation of Respondent No.2.

Mr Warunjikar brought our attention to the Maharashtra Judicial

Service Rules, 2008 and more particularly Rules 4 and 8 thereof.

Relying upon the aforesaid provisions, Mr Warunjikar submitted

that the "Appointing Authority" for the cadre of District Judges and

Civil Judge, Junior Division, was the Governor and for promotion to

the cadre of Civil Judge, Senior Division, was the High Court. He

submitted that Rule 8 prescribed the conditions relating to

suitability, fitness and character and stipulated that no person

selected for nomination shall be appointed inter alia unless the

"Appointing Authority" is satisfied that he is of good character and

is in all respects suitable for appointment to the service. Mr

Warunjikar submitted that in the facts of the present case, the

Appointing Authority (viz. the Governor) had not opined about the

character of the Petitioner and the Petitioner was not appointed

merely on the basis of the opinion of Respondent No.2 viz. the High

Court. He submitted that the High Court was not the Appointing

Authority under the Rules and therefore, its

opinion/recommendation could not have been the basis for not

appointing the Petitioner to the post of CJJD and JMFC. For all the

aforesaid reasons, Mr Warunjikar submitted that we should

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exercise our equitable, extraordinary and discretionary jurisdiction

under Article 226 of the Constitution of India and quash and set

aside the impugned communications / orders dated 14th December,

2015 and 26th July, 2016 respectively. In support of the aforesaid

proposition, Mr Warunjikar relied upon a decision of Division Bench

of this Court in the case of Satyanarayan Ramswarup Shrama v/s

Under Secretary (M.P.S.C.) and others, reported in 2010 (5)

ALL MR 235.

5. On the other hand, Mr Amit Borkar, learned counsel

appearing on behalf of Respondent No.2, submitted that on perusal

of the judgment delivered in criminal case filed against the

Petitioner, it was clear that the learned Magistrate had not held

that the accusations against the Petitioner were entirely baseless or

malafide. The learned Magistrate acquitted the Petitioner by

granting him the benefit of doubt. This was therefore not a case of a

clean acquittal, was the submission. In this regard, he brought to

our attention the findings of the learned Magistrate and more

particularly paragraphs 30 to 32 of the decision of acquittal. Mr

Borkar submitted the offences alleged against the Petitioner were

under sections 498-A, 323, 504, 506 r/w section 34 of the IPC. He

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submitted that section 323 dealt with voluntarily causing hurt and

section 498-A was a charge levelled against a person for subjecting

a woman to cruelty. Similarly, section 503 was with reference to

criminal intimidation and section 504 dealt with intentional insult

with intent to provoke breach of the peace. He submitted that

looking to all these sections and under which the Petitioner was

charged, it can hardly be disputed that the charges levelled against

the Petitioner were of a serious nature and which have to be taken

into consideration whilst considering him for appointment as a

Judicial Officer. Placing reliance on Rule 8 of the Maharashtra

Judicial Service Rules 2008, Mr Borkar submitted that the same

mandates that no person selected for nomination shall be appointed

unless the Appointing Authority is satisfied that he is of good

character and is in all respects suitable for appointment to the

service. It is in these circumstances that a request was made to the

Hon'ble High Court of Bombay on its Administrative Side for

offering its views in respect of the suitability or otherwise of the

Petitioner who was on merit / select list for appointment to the post

of CJJD and JMFC. After considering the criminal case filed

against the Petitioner and the serious charges levelled against him

as well as the antecedents of the Petitioner, the High Court came to

the conclusion that the Petitioner was not suitable for appointment

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to the said post of CJJD and JMFC. He submitted that for all the

aforesaid reasons, the Petition is devoid of any merit and ought to

be dismissed.

6. We have heard the learned counsel for the respective

parties at length and have also perused the papers and proceedings

in the Writ Petition along with the annexures thereto. Before we

deal with the rival contentions, we would like to state that it is now

well settled that in service jurisprudence a candidate in the select

list / merit list has no fundamental right to be appointed. His only

right is to be considered for appointment and in a fair manner. If

any authority is required for this proposition, the Supreme Court in

the case of Union Territory of Chandigarh v. Dilbagh Singh1 has

succinctly set this out at paragraphs 11 and 12, which read thus:-

"11. In Shankarasan Dash v. Union of India [(1991) 3 SCC 47 :

1991 SCC (L&S) 800 : (1991) 17 ATC 95 : JT (1991) 2 SC 380] a Constitution Bench of this Court which had occasion to examine the question whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his

name in the merit list (select list) of candidates for such post has answered the question in the negative by enunciating the correct legal position thus: (SCC pp. 50-51, para 7) "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification

1 (1993) 1 SCC 154

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merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to

the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an

arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been

consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174

: (1985) 1 SCR 899] ."

12. If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right

to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate

expectation of being appointed in such posts due to his name finding a place in the select list of candidates, cannot claim to have

a right to be heard before such select list is cancelled for bona fide and valid reasons and not arbitrarily. In the instant case, when the Chandigarh Administration which received the complaints about the unfair and injudicious manner in which select list of candidates

for appointment as conductors in CTU was prepared by the Selection Board constituted for the purpose, found those complaints to be well founded on an enquiry got made in that regard, we are unable to find that the Chandigarh Administration had acted either arbitrarily or without bona fide and valid reasons

in cancelling such dubious select list. Hence, the contentions of the learned counsel for the respondents as to the sustainability of the judgment of CAT under appeal on the ground of non-affording of an opportunity of hearing to the respondents (candidates in the select list) is a misconceived one and is consequently rejected."

(emphasis supplied)

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7. This proposition has also been made expressly clear by

Rule 6(7) of the Maharashtra Judicial Service Rules, 2008 which

reads thus:-

"(7) Candidates whose names are included in the list prepared

under clause (a) of sub-rule (6) above shall be considered for appointment in the order in which their names appear in the list and subject to rule 8, they may be appointed by the appointing authority in the vacancies notified under clause (a) of sub-rule 1

above. Candidates whose names are included in the wait list shall be considered for appointment after the candidates whose names are included in the list published under sub-clause (a) of sub-rule (3)

above have been appointed and have not joined or have not been appointed for any reason. Inclusion of the name of a candidate in any list prepared under clause (3) shall not confer any right of

appointment on such candidate."

(emphasis supplied)

8. At this very moment, we must note that reference

"clause (a) of sub-rule (6)" as well as to "clause (3)" in the aforesaid

provision is a typographical mistake and should be read as "clause

(a) of sub-rule (3)" and "sub-rule (3)" respectively.

9. Be that as it may, this being the position in law, we shall

now examine the contentions of both the parties. In the facts of the

present case, it is not in dispute that the Petitioner had applied to

join judicial service to the post of Civil Judge, Junior Division and

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Judicial Magistrate, First Class. It can hardly be disputed that a

member of the judicial service is a very important person who

dispenses justice to the citizens even in the most remote areas in

the State. The ordinary citizen is not always in a position to

approach the superior Courts for justice and very often his fate is

decided by the Judges of the lower judiciary. This, therefore,

clearly indicates that a Judge of the lower judiciary clearly plays a

very important and pivotal role in the administration of justice and

which is one of the great pillars of our vibrant democracy.

Considering the functions that a member of the judicial service is

require to carry out, he has to be one who is balanced, has a sense of

fairness, has a decent knowledge of the law and his character is

unblemished. These characteristics, in our view, are extremely

vital when choosing a candidate for judicial service. It is only in

such circumstances that a perception would be created in the mind

of the litigant that not only is justice done but also seen to be done.

10. Coming to the facts of the present case, it is admitted

that a criminal case was filed against the Petitioner. The charges

levelled against him were under sections 498-A, 323, 504, 506 r/w

section 34 of the IPC. What is also important to note is that when

the Petitioner applied for the said post, a criminal case was pending

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against the Petitioner. One can hardly dispute that the charges

levelled against the Petitioner were extremely serious and not of a

petty nature such as shouting slogans, stealing bread or such which

did not involve moral turpitude, such as cheating, misappropriation

etc. True it is that the Petitioner was finally acquitted of all the

charges but on perusing the judgment of acquittal, it can be hardly

stated that the same was a clean acquittal. In fact, as can be seen

from paragraphs 30 to 32 of the judgment of acquittal, it is clear

that the Petitioner was acquitted on the ground of reasonable doubt.

The judgment of acquittal records that the evidence of the

complainant was not cogent and reliable and hence corroboration

by independent witnesses was required but not forthcoming.

Moreover, the complainant has given important admissions that

create a doubt about the ill-treatment for demand of Rs.1 lakh and

there was no evidence on record to show that the accused persons

drove out the complainant from the house for illegal demands and

complainant caused injury to herself due to such ill-treatment.

Further, the complainant had thereafter become hostile and has

stated that this was a false case and she has not supported the

contents of the complaint. Looking at this, the learned Magistrate

found that the prosecution had failed to prove the offences against

the accused persons (including the Petitioner) beyond reasonable

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doubt and hence acquitted all the accused.

11. Looking at all this, can it be said that the impugned

communications dated 14th December, 2015 and 26th July, 2016

were perverse or so unreasonable that it would shock the

conscience of the Court? To our mind, the answer to this question

would clearly be in the negative. In fact, far from this, we are of the

opinion that the decision of Respondent No.1 in not recommending

the name of the Petitioner on the basis of opinion of the High Court,

was fully justified. Looking to all the factors, the High Court as well

as the Respondent No.1 felt that the Petitioner would not be a

suitable candidate to be appointed in judicial service. His character

was certainly not one that could be characterized as unblemished.

To an average citizen, in a remote area, a Court of law is a temple of

justice and the persons dispensing them are looked upon with the

highest regard and respect. Therefore, when being selected for

judicial service, a candidate like the Petitioner would have to live

upto even higher standards than any other candidate applying for a

job with Government or other civil services. We, therefore, are

unable to agree with the submissions of Mr Warunjikar that there is

any infirmity in the impugned communications / orders dated 14th

December, 2015 and 26th July, 2016 that would require our

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interference under Article 226 of the Constitution of India.

12. Even the interpretation placed by Mr Warunjikar on

Rule 8 of the Maharashtra Judicial Service Rules, 2008 is wholly

misplaced. On reading Rule 8, it is clear that it is couched in the

negative and stipulates that no person selected for nomination shall

be appointed unless the Appointing Authority is satisfied that he is

of good character and is in all respects suitable for appointment to

the service.

This does not mean that it is only the Appointing

Authority that has to be satisfied. In fact, the Appointing Authority

has been give a power that even if the candidate has been

recommended for appointment, it could refuse the appointment if it

is satisfied that the Applicant is not of a good character and is in all

respects not suitable for appointment to judicial service. We

therefore find no substance in the argument of Mr Warunjikar that

the Petitioner could not have been rejected from appointment on

the basis of the recommendations of the High Court which found

him unsuitable for judicial service. A rule like Rule 8 enables the

Appointing Authority, endowed with a responsibility to select and

appoint a competent and clean person, to obtain a recommendation

from the High Court. It is not an ordinary post but a judicial post to

which the appointment is to be made. Hence, the views and opinion

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of the High Court are vital and deserve respect and weightage. This

aspect, in the case of Police Service, has been reiterated in the case

of Commissioner of Police, New Delhi and another v/s Mehar

Singh2 by the Hon'ble Supreme Court in the following words:-

"22. Clause (3) of the comprehensive policy delineated in the

Standing Order is material for the present case. It refers to the Screening Committee comprising high police officers. After a candidate, who has disclosed his involvement, is acquitted or discharged, the Committee has to assess his/her suitability for

appointment. Clause (6) states that those against whom serious offences or offences involving moral turpitude are registered and

who are later on acquitted by extending benefit of doubt or because the witnesses have turned hostile due to fear of reprisal by the accused person shall not generally be considered suitable for government service. However, all such cases will be considered by

the Screening Committee manned by senior officers. In our opinion, the word "generally" indicates the nature of discretion. As a matter of rule, such candidates have to be avoided. Exceptions will be few and far between and obviously must be

substantiated with acceptable reasons.

23. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or

discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced

officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person's involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining

2 (2013) 7 SCC 685

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it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be

to ensure that only persons with impeccable character enter the police force.

24. We find no substance in the contention that by cancelling the respondents' candidature, the Screening Committee has overreached the judgments of the criminal court. We are aware that the question of co-relation between a criminal case and a

departmental enquiry does not directly arise here, but, support can be drawn from the principles laid down by this Court in connection with it because the issue involved is somewhat identical, namely, whether to allow a person with doubtful integrity to work in the

department. While the standard of proof in a criminal case is the proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. Quite often criminal

cases end in acquittal because witnesses turn hostile. Such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on

merit after a full-fledged trial, where there is no indication of the witnesses being won over. In R.P. Kapur v. Union of India [AIR 1964 SC 787] this Court has taken a view that departmental proceedings can proceed even though a person is acquitted when

the acquittal is other than honourable.

25. The expression "honourable acquittal" was considered by this Court in S. Samuthiram [Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598 : (2013) 1 SCC (Cri) 566 : (2013) 1 SCC (L&S) 229] . In that case this Court was concerned with a

situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the

judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC 541 : 1994 SCC (L&S) 594 : (1994) 26 ATC 619] , where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court

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observed that the expressions "honourable acquittal", "acquitted of blame" and "fully exonerated" are unknown to the Criminal

Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression "honourably acquitted". This Court expressed that

when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

26. In light of the above, we are of the opinion that since the purpose of the departmental proceedings is to keep persons, who are guilty of serious misconduct or dereliction of duty or who are

guilty of grave cases of moral turpitude, out of the department, if found necessary, because they pollute the department, surely the above principles will apply with more vigour at the point of entry

of a person in the police department i.e. at the time of recruitment. If it is found by the Screening Committee that the person against whom a serious case involving moral turpitude is registered is

discharged on technical grounds or is acquitted of the same charge but the acquittal is not honourable, the Screening Committee would be entitled to cancel his candidature. Stricter norms need to be applied while appointing persons in a disciplinary force

because public interest is involved in it."

13. This only leaves us to deal with the decision cited by Mr

Warunjikar in the case of Satyanarayan R. Sharma (supra).

Firstly, we find that this decision does not deal with the

Maharashtra Judicial Service Rules, 2008 but deals with the

Bombay Judicial Service Rules, 1956 and more particularly the

interpretation of Rule 4(4)(ii) thereof. The facts of this case would

reveal that the Petitioner had applied for selection to the post of

JMFC as a member of the Bar. In the attestation form, he had

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disclosed that he was facing prosecution under sections 498-A of

the IPC. He was interviewed by the Selection Committee

constituted under the Bombay Judicial Service Rules, 1956. This

Committee selected the Petitioner and he was sent for medical

examination. However, instead of making his appointment, the

Government had written a letter dated 25th March, 2009 stating

that it had received a report from the police regarding verification

of his character and the opinion of the High Court thereon that he

was found to be unfit for appointment as JMFC. Whilst interpreting

Rule 4(4)(ii) of the Bombay Judicial Service Rules, 1956, the High

Court disposed of the Writ Petition by giving a direction that if the

Petitioner made a representation for seeking appointment, that

representation would be considered by the Government in

accordance with law within a period of three months from the date

of receipt of the representation. We fail to see how this judgment

would apply to the facts of the present case. As noted above, in the

facts of the present case, the High Court had clearly opined that

looking to the criminal case pending against the Petitioner and

other antecedents, the Petitioner was not suitable for the said post.

Furthermore, even though the Petitioner was subsequently

acquitted of the charges levelled against him, the order of acquittal

shows that benefit of doubt was given to the Petitioner and his

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acquittal was not one that could be termed as a clean acquittal. In

these facts, we find that the decision relied upon by Mr Warunjikar

is wholly misconceived and misplaced.

14. In view of the foregoing discussion, we have no

hesitation in holding that the impugned communications / orders

dated 14th December, 2015 and 26th July, 2016 do not suffer from

any infirmity and neither of them can be termed as perverse or

suffering from any error apparent on the face of the record that

require our interference under Article 226 of the Constitution of

India. Consequently, the Writ Petition is dismissed. However, in

the facts and circumstances of the case, there shall be no order as

to costs.

   



    (B.P. COLABAWALLA, J.)               (S.C.DHARMADHIKARI J.)






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