Chattisgarh High Court

Subhash Chandra vs State Of Chhattisgarh on 2 February, 2022

                                     1

                                                                            AFR
                HIGH COURT OF CHHATTISGARH, BILASPUR
                  Writ Petition (S) No.616 of 2022

     Subhash Chandra S/o Shri Dilbar, Aged about 26 years, R/o
     village Bandha, P.S. & Tehsil Takhatpur, District Bilaspur
     (CG)

                                                             Petitioner

                                 Versus

  1. State of Chhattisgarh, Through the Principal Secretary,
     Home Department Mahanadi Bhawan, Naya Raipur, Tah. & Dist.
     Raipur (CG)

  2. Director General of Police, Police Head Quarter, Sector
     19, New Raipur, Atal Nagar, DistRaipur (CG)

  3. The Assistant Director General of Police, Police Head
     Quarter, Sector 19, New Raipur, Atal nagar, District
     Raipur (CG)

  4. The   Superintendent       of   Police,       Rajnandgaon,       District
     Rajnandgaon (CG)

                                                             Respondents

For Petitioner : Mr.Ravindra Sharma, Advocate For Respondents : Mr.Amrito Das, Addl.A.G.

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board (Through Video Conferencing)

2/2/2022

1. Heard Mr.Ravindra Sharma, learned counsel for the

petitioner and Mr.Amrito Das, learned Additional Advocate

General for the respondents/State on the question of

admission.

2. The petitioner participated in recruitment process

initiated for the post of Constable (GD & driver) and

according to him, he has been selected after passing all

tests including medical test, but respondent

No.4/Superintendent of Police, Rajnandgaon has declined to

issue order of appointment in favour of the petitioner on

the ground that criminal case is pending against him.

3. It is admitted position on record that the petitioner has

been convicted for offences under Sections 279 & 304A of

the Indian Panel Code (hereinafter called as 'IPC') and

Section 3/181 of the Motor Vehicles Act, 1988 (hereinafter

called as 'Act of 1988') by the Judicial Magistrate First

Class, Takhatpur on 08.10.2021 and appeal against that

order is pending consideration before the jurisdictional

appellate Court and he has made a representation for

issuance of appointment order in his favour.

4. Mr.Ravindra Sharma, learned counsel appearing for the

petitioner, would submit that though the petitioner has

been convicted for the aforesaid offences, yet his

substantive jail sentence has been suspended and

therefore, he is entitled to be appointed on the post of

Constable (GD). He would further submit that the

petitioner is ready to face consequence, if ultimately his

conviction is maintained by the appellate Court. He would

rely upon the judgment of the Supreme Court in the matter

of Avtar Singh v. Union of India and others1.

5. On the other hand, Mr.Amrito Das, learned Additional

Advocate General appearing for the respondents/State,

would oppose the writ petition and submit that since the

petitioner has been convicted for offences under Sections

279 & 304A of the IPC and Section 3/181 of the Act of 1988

and jail sentence has been imposed for one year for

offence under Section 304A of the IPC and six months for 1 (2016) 8 SCC 471

offence under Section 279 of the IPC and fine of ₹ 500/

has also been imposed under Section 3/181 of the Act of

1988 and appeal is pending consideration before the

appellate Court. Therefore, no mandamus can be issued for

issuance of appointment order / for consideration of the

petitioner's case for appointment on the post of Constable

(GD) and as such, the writ petition deserves to be

dismissed.

6. Admittedly and undisputedly, the petitioner has been

selected on the post of Constable (GD), but he has been

convicted for the aforesaid offences and jail sentence as

well as fine sentence has been imposed upon him and his

appeal is pending consideration before the appellate Court

against the order of conviction and against jail sentence

awarded to him, in the meanwhile, he has filed this writ

petition seeking direction to respondent No.4 to consider

his case for appointment on the post of Constable (GD) as

he has already been selected for the said post.

7. The question that once the petitioner has been convicted

for criminal offences and he has been awarded jail

sentence and fine sentence also, whether a writ of

mandamus can be issued to the authorities to consider his

case for appointment on the post of Constable (GD).

8. The Supreme Court in the matter of State of West Bengal

and others v. SK. Nazrul Islam2 has clearly held that a

writ of mandamus cannot be issued to appoint a particular

person as a Constable so long as candidate has not been 2 (2011) 10 SCC 184

acquitted in the criminal case of the charges. It was

observed as under:

"5. We have heard learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/448/427/506 IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a Constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/448/427/506 IPC, he cannot possibly be held to be suitable for appointment to the post of Constable."

9. Similarly, the Supreme Court in the matter of Commissioner

of Police, New Delhi and another v. Mehar Singh 3 has

observed as under:

"35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we

3 (2013) 7 SCC 685

would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand."

10. Recently, the Supreme Court in the matter of

Rajasthan Rajya Vidyut Prasaran Nigam Limited and another

v. Anil Kanwariya4 has held that an employee cannot claim

the appointment and/or continue to be in service as a

matter of right. It was observed as under:

"14. 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."

11. Reverting to the facts of the present case in light

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

4 (2021) 10 SCC 136

abovestated judgments, it is quite vivid that since the

petitioner stands convicted as on date for offences

including the offence under Section 304A of the IPC and

jail sentence has been awarded to him and that jail

sentence has been suspended by the criminal Court, in that

circumstance, as held by the Supreme Court in SK. Nazrul

Islam (supra), no mandamus can be issued to consider the

petitioner's case as Constable (GD) including the

consideration of the petitioner's representation. However,