Kailash Kumar Sinha vs State Of C.G. And Ors
2021 Latest Caselaw 2568 Chatt

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                                                                          AFR
               HIGH COURT OF CHHATTISGARH, BILASPUR
                 Writ Petition (S) NO.2337 of 2013

     Kailash Kumar Sinha, S/o Manbodh Ram, aged about 36
     years, R/o Village Khartuli, Post Patiyadih, Civil and
     Revenue District Dhamtari (CG)
                                                              ­­­­Petitioner

                                 Versus

  1. The State of Chhattisgarh, through the Secretary, Home
     Department, Mahanadi Bhawan, Naya Raipur, District
     Raipur (CG)

  2. Director   General   of   Police,               Police    Headquarters,
     Chhattisgarh, Raipur (CG)

  3. The    Assistant     Inspector     General   of    Police
     (Telecommunication),          Police        Headquarters,
     Telecommunication, Chhattisgarh, Bhilai (CG)
                                                           ­­­­ Respondents

For Petitioner : Mr.A.K.Prasad, Advocate For Respondents : Mr.Sunil Otwani, Additional Advocate General with Mr.Sanjay Pathak, Panel Lawyer

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board

27/9/2021

1. The petitioner herein calls in question legality, validity

and correctness of the order dated 27.5.2011 (Annexure

P­12) by which respondent No.2 has held the petitioner to

be unsuitable for the post of Constable

(Telecommunication).

2. The petitioner applied for the post of Constable

(Telecommunication), for which final select list was issued

on 12.7.2010 and he was selected also, but in attestation

form submitted on 12.8.2010 he disclosed the pendency of

Criminal Case No.3/2011 for offences under Sections 294 and

506 read with Section 34 of the IPC pending in the Court of

Chief Judicial Magistrate, Dhamtari, therefore, he was not

appointed, but later on, he was acquitted on 14.3.2011

(Annexure P­7) by the Court of Judicial Magistrate First

Class, Dhamtari in Criminal Case No.03/2011. The petitioner

made an application / representation for issuance of

appointment letter in his favour on 17.3.2011 on the ground

of acquittal, which was considered by the appointing

authority and by the impugned order dated 27.5.2011

(Annexure P­12), it has been held that though the

petitioner has been acquitted from criminal case, but

considering his antecedents and character, he is unsuitable

/ unfit for government job and accordingly, his candidature

was rejected, which has been called by way of this writ

petition.

3. Return has been filed by the respondents/State opposing the

writ petition stating inter­alia that even the petitioner

did not disclose in his application form submitted before

the authorities about the pendency of above­stated criminal

case. Even otherwise, the decision taken by the appointing

authority not to appoint the petitioner on the post of

Constable (Telecommunication) is in accordance with law as

the petitioner is found unsuitable looking to his criminal

antecedents.

4. Mr.A.K.Prasad, learned counsel for the petitioner, would

submit that though on the date of filing the application

the petitioner's criminal case was pending before the

competent criminal Court, but later on, he has been

acquitted on 14.3.2011, therefore, he is entitled for

appointment on the said post and as such, the impugned

order deserves to be set aside.

5. On the other hand, Mr.Sunil Otwani, learned Additional

Advocate General with Mr.Sanjay Pathak, learned Panel

Lawyer for the respondents/State, would submit that

subsequent acquittal from criminal case would not entitle

the petitioner for appointment as the appointing authority

has considered the entire facts and circumstances of the

case and merely because he has acquitted, he cannot be held

to be suitable for the post of Constable

(Telecommunication).

6. I have heard learned counsel for the parties, considered

their rival submissions made hereinabove and also went

through the records with utmost circumspection.

7. True it is that while applying for the post of Constable

(Telecommunication) the petitioner did not disclose his

pending criminal case before the jurisdictional criminal

Court for offences under Sections 294 and 506 read with

Section 34 of the IPC and he came to be selected, but while

submitting attestation form he disclosed his pendency of

criminal case, therefore, he was not appointed, but later

on, upon acquittal from criminal case on 14.3.2011, he

applied for appointment on the post of Constable

(Telecommunication), which was rejected by order dated

27.5.2011 (Annexure P­12) finding him unsuitable for the

said post as he has been acquitted from criminal case only

on the basis of extending benefit of doubt.

8. The question as to whether a person who was suffering from

criminal case on the date of selection and thereafter he

has been acquitted subsequently is entitled to be appointed

is no longer res­intregra and stands authoritatively

decided by the Supreme Court in catena of decisions. Few of

them may be noticed profitably.

9. The Supreme Court in the matter of Avtar Singh v. Union of

India and others1 has held in para 38.5 that even in cases

where a truthful disclosure about a concluded case was

made, the employer would still have a right to consider

antecedents of the candidate and could not be compelled to

appoint such candidate.

10. The aforesaid para 38.5 of Avtar Singh's case (supra)

was followed with approval by their Lordships of the

Supreme Court in the matter of State of Madhya Pradesh and

others v. Abhijit Singh Pawar2 and it has been held as

under:­

"13. In Avtar Singh (supra), though this Court was principally concerned with the question as to non­ disclosure or wrong disclosure of information, it was observed in para 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.

14. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) CrPC, the law declared by this Court in Mehar Singh3, specially in

1 (2016) 8 SCC 471 2 (2018) 18 SCC 733 3 Commr. of Police v. Mehar Singh, (2013) 7 SCC 685

paras 34 and 35 completely concludes the issue. Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely the ground of benefit of doubt or as a result of composition."

11. The principle of law laid down in Avtar Singh (supra)

was further followed with approval by the Supreme Court

recently in the matter of Rajasthan Rajya Vidyut Prasaran

Nigam Limited and another v. Anil Kanwariya4 in which it

has been held as under:­

"12. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment, i.e., while submitting the declaration/verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of TRUST. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."

12. Reverting to the facts of the present case in the

4 2021 SCC OnLine (SC) 739

light of principle of law laid down by the Supreme Court in

the above­stated judgments (supra), it is quite vivid that

though the petitioner in his attestation form has disclosed

about pendency of criminal case and he has been

subsequently acquitted from criminal charge, yet the

respondent / employer had right and authority to consider

antecedents of the candidate and employer cannot be

compelled to appoint the petitioner on the said post. The

petitioner cannot claim appointment as a matter of right

particularly in the instant case it is not clean and

honourable acquittal, but the petitioner has been acquitted

on the ground of benefit of doubt and as such, the decision

of the respondent­authority not to appoint the petitioner

considering his antecedents and record finding him

unsuitable / unfit for government job as Constable in

police service cannot be branded as arbitrary or illegal.

In my considered opinion, no case is made out for

interference in the impugned order of respondent No.2 while

rejecting the candidature of the petitioner on the ground

of finding unsuitable for the post of Constable

(Telecommunication), which is strictly in accordance with

law. I do not find any merit in this writ petition.

13. Accordingly, the writ petition deserves to be and is

hereby dismissed leaving the parties to bear their own

cost(s).

Sd/­

(Sanjay K.Agrawal) Judge