Sanjay Chouhan vs State Of Madhya Pradesh
2021 Latest Caselaw 3724 MP

1                                                                                          WA No.229/2021


    High Court of Madhya Pradesh: Bench at Indore
                            WRIT APPEAL NO. 229/2021
                     Sanjay Chouhan Vs. State of MP & Ors.
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Coram:
                  Justice Sujoy Paul, Judge
                  Justice Anil Verma, Judge
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Presence :
       Shri.L.C. Patne, learned counsel for appellant.
       Shri Aditya Garg, learned GA for respondent/ State.
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       Whether approved for reporting : No
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                                             ORDER

(Passed on 30th July, 2021)

Sujoy Paul, J:-

This intra Court Appeal filed under Section 2(1) of M.P. Uchha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005, assails the order dated 7th January, 2020 passed in WP No.9481/2019 whereby the learned Single Judge has declined interference on the impugned order dated 2/2/2019 whereby the candidature of appellant was rejected for the post of Police Constable.

02. The case of appellant is that he submitted his candidature for the post of Police Constable in SC category. After successfully clearing the written examination, physical proficiency test, the appellant was duly selected for the post of Constable (GD) in the Police Constable Recruitment Test, 2012. The appellant filed due information about factum of registration of criminal cases against him as also the outcome of such cases. He gave a specific declaration that as on date no criminal case is pending before any Court of law.

03. Shri L.C. Patne, learned counsel for appellant submits that there were two criminal cases registered against the appellant for committing petty offences. The appellant stood acquitted from both the cases. His one acquittal is based on "rajinama" whereas second one was on merits. This is second visit of the appellant to this Court. Earlier he

filed WP No.4141/2017 which was disposed of on 7/9/2018. This Court considered the judgment of Supreme Court in Avtar Singh Vs. Union of India & Ors. (2018) 1 SCC 268 and directed the respondents to consider the representation of appellant by taking into account the judgment of full bench of this Court in Ashuthosh Pawar Vs. High Court of MP & another 2018 (2) MPLJ 419 and take a fresh decision. It is urged that in Avtar Singh (supra), the Apex Court clearly held in para 38.3 that employer is required to take into account the government instructions in vogue. Thus, decision was required to be taken on the representation of appellant by taking into account the principles laid down in Avtar Singh (supra) and Ashuthosh Pawar (supra) and as per government's governing circular dated 5th June, 2003 which is recently considered by Supreme Court in Anil Bharadwaj Vs. High Court of Madhya Pradesh 2020 SCC Online 832.

04. Further more, Shri Patne submits that the impugned order dated 2/2/2019 (clause 4) shows that appellant's conviction is treated u/S.457 of IPC whereas appellant was never tried for committing offence under the said Section. Thus, impugned order is based on irrelevant consideration. So far the offence u/S.332 is concerned, the appellant stood exonerated on merits from the said offence. No doubt said offence is described as "moral turpitude" as per governing circular dated 5th June, 2003 (Annexure P/6), the appellant cannot be deprived from the fruits of selection in view of judgment of Supreme Court in Civil Appeal No.7011/2009 State Bank of India & Ors. Vs. P.Soupramaniane. Lastly, it is submitted that Clause (8) of the governing circular covers the case of appellant. In view of judgment of Supreme Court reported in (2019) 17 SCC 696 Mohd. Imran Vs. State of Maharashtra the aspect of 'moral turpitude' should not be mechanically applied. The respondents should have adopted a reformative approach and should not have deprived the appellant from the fruits of employment and opportunity to become a good citizen.

05. Per contra, Shri Aditya Garg, learned G.A for respondents opposed the prayer and fairly submitted that Clause 4 of impugned order dated 2/2/2019 (Annexure P/13) contains a wrong finding that appellant's arraignment for committing offence u/S.459 falls within the ambit of "moral turpitude". This is clearly a typographical error. However, minus this finding also the impugned order is justifiable because (i) appellant was admittedly tried for committing an offence u/S.332 of IPC which as per governing circular dated 5 th June, 2003 is treated as "moral turpitude" (ii) merely because appellant is exonerated, it cannot be said that he has an enforceable right of appointment (iii) the appellant was rightly held as not suitable for employment in police. No fault can be found in such a finding.

06. No other point is pressed by learned counsel for parties.

07. We have bestowed our anxious consideration on rival contentions and perused the record.

08. Indisputably, the governing circular dated 05.6.2003 Annexure P/6 on which heavy reliance is placed by Shri Patne clearly shows that the offence under section 332 of the IPC falls within the category of "moral turpitude". Admittedly, the appellant was tried for committed the said offence under section 332 of the IPC. However, the appellant stood exonerated from the said criminal case. By placing reliance on the clause viii of the circular of Home Department dated 05.06.2003, the appellant prayed for a direction to appoint him. The clause viii of the said circular in our view does not create any enforceable right in favour of a candidate who has been exonerated on merits. The said exoneration of candidate only makes him eligible for consideration for appointment. It is prerogative of the employer to adjudge the suitability of the candidate even after his exoneration.

09. Rule 6 of the MP Civil Services (General Condition of Services) Rules, 1961 reads as under :-

"6. Disqualification.- (1) No male candidate who has more than one wife living and no female candidate who has married a person having already a wife living shall be eligible for appointment to any service or post:

Provided that the Government may, if satisfied that there are special grounds for doing so, exempt any such candidate from the operation of this rule. (2) No candidate shall be appointed to a service or post unless he has been found after such medical examination as may be prescribed, to be in good mental and bodily health and free from any mental or bodily defect likely to interfere with the discharge of the duties of the service or post :

Provided that in exceptional cases a candidate may be appointed provisionally to a service or post before his medical examination, subject to the condition that the appointment is liable to be terminated forthwith, if he is found medically unfit. (3) No candidate shall be eligible for appointment to a service or post if, after such enquiry as may be considered necessary, the appointing authority is satisfied that he is not suitable in any respect for service or post.

[(4) No candidate shall be eligible for appointment to a service or post who has been convicted of an offence against women :

Provided that where such cases are pending in a Court against a candidate his case of appointment shall be kept pending till the final decision of the Criminal Case.] "

(emphasis supplied)

10. Needless to emphasis that the said rules are statutory in nature being framed under proviso to article 309 of the Constitution of India. Thus, executive instruction on which heavy reliance is placed by the learned counsel for the appellant will not

prevail on the judgment of appointing authority regarding 'suitability' of a candidate. Putting it differently, Sub-rule 3 of Rule 6 of the aforesaid gives ample power to appointing authority to get satisfied whether a candidate is 'suitable' in all respect for the service/post.

The judgment of Anil Bhardwaj (supra) was relied upon to show that the governing circular needs to be adhered to. As discussed above, in the teeth of rule 6 (3) of Rules 1961, the executive instructions does not improve the case of appellant. The executive instruction can supplement the rule but cannot supplant it. Even otherwise, in our view, the governing circular aforesaid only makes the candidate as "eligible'' and is not an authority to decide the question of "suitability" of a candidate. Pertinently, in Anil Bhardwaj (supra), the appeal of the candidate was dismissed by the Apex Court and the order of High Court was affirmed wherein despite his subsequent acquittal he was not found to be "suitable". Para 24 reads as under:-

"24. Reverting to the facts of the present case, the decision of Examination-cum-section and Appointment Committee for holding the appellant unsuitable was based on the relevant consideration, i.e., a criminal case against the appellant under section 498-A/406/34 IPC was pending consideration which was registered on the complaint filed by the wife of the appellant. Such decision of the Committee was well within the jurisdiction and power of the Committee and cannot be said to be unsustainable. The mere fact that subsequently after more than a year when the persons whose candidature has been cancelled has been acquitted cannot be a ground to turn the clock backward.

(emphasis supplied)

11. There is a marked difference between "eligibility" and "suitability". The single bench of this Court (Jabalpur) considered

this aspect in a great detail in WP No.21231/2017 (Madhur Vs State of MP). This Court opined as under :-

"Thus, spinal issue in the present case is whether the respondents have misused their discretion or such exercise of discretion is capricious or contrary to law. Sub rule 3 of Rule 6 of Rules of 1961 gives ample power to the Appointing/Competent Authority to examine the aspect of suitability of an employee. The said provision, in no uncertain terms makes it clear that if Appointing Authority is satisfied that a candidate is not suitable in any respect for service or post, he can take appropriate decision in this regard. In the impugned order although enabling provision of the Rules of 1961 were not quoted, the power of said authority can be traced from Sub rule 3 of Rule 6 of Rules of 1961. The question of suitability can be gone into by the Competent Authority in the teeth of Sub- rule 3 of Rule 6. This is trite law that wrong quoting of provision or not mentioning of provision will not denude the authority from taking a decision or passing an order, if source of power can be traced from an enabling provision/statute. Thus, the argument of Shri Yadav that there is no mention of Rules of 1961 in the impugned order will not improve the case of the petitioner. In the considered opinion of this Court, the employer has acted on due consideration of rules. In Avtar Singh (supra), it was poignantly held that for deciding the suitability what yardstick is to be applied depends upon the nature of post, higher post would involve more rigorous criteria. The suitability of candidate has to be considered by authorities concerned considering post/nature of duties and power has to be exercised on due consideration of various aspects. Every eventuality cannot be reduced in writing in any judgment. Thus, it was left open to the discretion of the Appointing Authority to decide whether a candidate is suitable for appointment. Indisputably, petitioner was selected for a sensitive post and facing criminal cases which are not of trivial nature. In this backdrop, it cannot be said that the respondents have either misused their discretion or acted contrary of the rules. Rule 8(3)(a) deals with crime against women.

In such cases only the candidature was decided to be kept alive till conclusion of proceedings. There is no such allegation against the petitioner in aforesaid crime numbers. Thus, said rules of Rules of 2015 have no application in the present case.

The "suitability" cannot be confused with eligibility". In the 'Major Law Laxicon' by P. Ramanatha Iyer about the word following view is expressed-"the word 'suitable' does not require a definition because any man of experience would know who is suitable. However, each case has to be viewed in the context in which the word "suitability" or "suitable" is used, the object of the enactment and the purpose sought to be achieved." A constitution Bench of Supreme Court in State of J & K vs. Trilokinath Khosa (1974) 1 SCC 19 and another Bench in State of Orissa vs. N.N. Swami (1977) 2 SCC 508 opined that eligibility must not be confused with the suitability of the candidate for appointment. These judgments were considered by Calcutta High Court in 2013 SCC Online 22909 (All b. Ed. Degree Holders Welfare Association vs. State of West Bengal ). In (2009) 8 SCC 273 (Mahesh Chandra Gupta vs. Union of India) it was again held that suitability of a recommendee and the consultation are not subject to judicial review but the issue of lack of eligibility or an effective consultation can be scrutinized.. The Supreme Court in (2014) 11 SCC 547 (High Court of Madras vs. R. Gandhi) while dealing with appointment on a constitutional post opined that 'eligibility' is an objective factor. When 'eligibility' is put in question, it could fall within the scope of judicial review. The aspect of 'suitability' stands excluded from the purview of judicial review. At the cost of repetition, the Apex Court opined that 'eligibility' is a matter of fact whereas 'suitability' is a matter of opinion "

(emphasis supplied)

12. The said judgment of Single Bench in the case of Madhur (supra) was unsuccessfully challenged by the petitioner therein in WA No.1078/2012, which was dismissed on merits by a detailed

order passed on 03.07.2019. These orders of High Court were not interfered with by the Apex Court in SLP No.24354-24355/2019 (Madhur Vs. State of MP) decided on 21.10.2019.

13. Pertinently, in the case of Madhur (supra), the single bench further opined as under :-

"11. The scope of judicial review of a matter of this nature is limited. The decision making process is subject matter of judicial review and not the decision itself. A Full Bench of this Court in a recent judgment passed in WP. No.5865/16 (Ashutosh Pawar vs. High Court of M.P. & Another) considered a catena of judgments of Supreme Court and came to hold that High Court in exercise of power under Article 226 of the Constitution can only examine the decision making process and cannot step into the shoes of the Competent Authority in relation to a final decision. 10 W.P. No.21231/2017.

12. This is trite law that administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision- making process and not legality of the order perse. The test is to see whether there is any infirmity in the decision making process and not in the decision itself. Mere possibility of another view cannot be ground for interference. To characterize a decision of the administrator as ``irrational'' the Court has to hold, on material, that it is a decision ``so outrageous'' as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future. [See (2005) 5 SCC 181 (State of NCT vs. Sanjeev)]

13. The same view was taken by the Supreme Court in (2002) 3 SCC 496 (Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr.). In (2008) 7 SCC 580 (State of Meghalaya & Ors. vs. Mecken Singh N. Marak), it was laid

down that when a statute gives discretion to the Administrator to take decision, scope of judicial review would remain limited. The scope of judicial review is limited to the deficiency in decision making process and not the decision of Administrator. [See (2006) 2 SCC 1 & 165 (Rameshwar Prasad vs. Union of India), (2004) 4 SCC 714 (State of U.P. vs. Johri Lal), (2004) 11 SCC 213 & 218 (Delhi Development Authority vs. UEE Electricals Engg. (P) Ltd., (2005) 10 SCC 84 & 95 (Damoh 11 W.P. No.21231/2017 Sagar Panna Rural Regional Bank vs. Munna Lal Jain), (2005) 5 SCC 181 (State of NCT of Delhi vs. Sanjeev) and (2006) 8 SCC 200 (Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel)]

14. In (2006) 8 SCC 590 (Muni Suvrat Swami Jain SMP Sangh vs. Arun Nathuram Gaikwad & Ors.), it was poignantly held that the High Court cannot impede the exercise of discretion by the statutory authority by issuance of a mandatory order.

15. In the considered opinion of this Court, the respondents have taken a plausible decision regarding suitability of petitioner by taking into account the relevant factors namely criminal cases, nature of duties and power attached to the post. The said discretion exercise is founded upon enabling provision ingrained in Rule 6 of Rules of 1961. I am unable to hold that such exercise of power and impugned order is arbitrary or capricious in nature. This plausible view taken by the respondents does not require any interference by this Court."

(emphasis supplied)

14. A plain reading of judgment of full bench in the case of Ashutosh Mishra (supra) and order passed by this court in Madhur (supra), leaves no room for any doubt that merely because a candidate is 'eligible' does not mean that he is 'suitable' as well. It is the right and prerogative of an employer to take a decision on the 'suitability' on the basis of job nomenclature, nature of department and services required to be taken from the employee. The question of 'eligibility' is subject to judicial review

but the decision on 'suitability' is a prerogative of the employer.

This is also trite that merely because the appellant stood exonerate, he does not become 'suitable' to get the employment.

15. The Apex Court in Mohd. Imran (supra) made it clear that "but that may not suffice to invoke sympathy for grant of relief where credentials of the candidate may raise questions regarding suitability, irrespective of eligibility.

16. In the said case, the Apex Court interfered with because the appellant therein was discriminated qua similarly situated persons. In the instant case, there is no pleadings or foundation regarding any discrimination. Thus, judgment of Mohd. Imran (supra) is of no assistance of the appellant.

17. In the case of State Bank of India (supra), the Apex Court opined as under :-

"There can be no manner of doubt about certain offences which can straightaway be termed as involving moral turpitude e.g offences under the Prevention of Corruption of Act, NDPS Act etc. The question that arises for our consideration in this case is whether an offence involving bodily injury can be categorized as a crime involving moral turpitude. In this case, we are concerned with an assault. It is very difficult to state that every assault is not an offence from an aggravated assault. All cases of assault or simple hurt cannot be categorized as crimes involving moral turpitude. On the other hand, the use of a dangerous weapon which can cause the death of the victim may result in an offence involving moral turpitude. n the instant case, there was no motive for the respondent to cause the death of the victims. The criminal Courts below found that the injuries caused to the victims were simple in nature. On an overall consideration of the facts of this case, we are of the opinion that the crime committed by the respondent does not involve moral turpitude. As the respondent is not guilty of an offence involving moral turpitude, he is not liable to be discharged from service."

(emphasis supplied)

18. A bare reading of this paragraph makes it clear that there cannot be any straight jacket formula to determine whether an assault involves "moral turpitude". It appears on the factual background in which the such incident of assault had taken place.

In the instant case, the employer has seen this aspect and treated the appellant as unsuitable. We are unable to hold that the said decision is either illegal, irrational or the decision making process is polluted. In the governing circular itself, the offence under section 332 of the IPC is treated to be a 'moral turpitude'.

19. Reverting back to the clause 4 of the impugned order dated 02.02.2019, it is noteworthy that finding mentioned in clause 4 relating to offence under section 457 of the IPC are erroneous and factually incorrect. However, this erroneous finding is not sufficient to axe the order dated 02.02.2019 Annexure P/13. The Apex Court laid down the Doctrine of Severability on the anvil of which the impugned order can be tested. In 1960 2 SCR 146 (Y.Mahaboob Sheriff Vs. Mysore State Transport Authority), the Apex Court held that it is open to sever the illegal part of the order from the part which is legal. This principle was followed in 1966 2 SCR 204 (R. Jeevarantnam Vs. State of Madras). It was held that two parts of composite order are separable. The first part of the order operates as a dismissal of the appellants as from October 17, 1950. The invalidity of the second part of the order, assuming this part to be invalid, does not affect the first part of the order. The order of dismissal as from October 17, 1950 is valid and effective. The appellant has been lawfully dismissed, and he is not entitled to claim that he is still in service. The same principle was followed in (1976) 2 SCC 495 (State of Mysore

Vs. K. Chandrasekhara Adiga). It was clearly held that where valid and invalid portion of the order are severable, the test is whether after excision of the invalid part, the rest remains viable and self-contained. The deletion cannot render rest of the order illegal or ineffective if it can survive independently and found to be valid. In 2014 (12) SCC 106 (State Bank of Patiala Vs. Ram Niwas Bansal), it was again held that two parts of the order are clearly severable assuming that second part of the order is invalid. There is no reason that the first part of the order should not be given the fullest effect. Reliance can be placed on another judgment of Apex Court in the case of Gujarat Mineral Development Corporation Vs. P.H Brahmbhatt reported in 1974 (3) SCC 601. Pertinently, Allahabad High Court in Gajendra Prasad Saxena, VS. State of UP reported in 2015 SCC OnLine ALL 8706 applied the Doctrine of "Partial Quashing" and opined that the principle of unconstitution provision of a statue being severed and struck down leaving other parts untouched is well known. The said principle of severability has been extended to administrative orders also.

20. Minus clause 4 of the impugned order dated 02.02.2019 also, the impugned order contains sufficient reason for treating the appellant as 'unsuitable' to perform the duties in police department.

21. In view of foregoing analysis, we find no reason to interfere in this Intra Court Appeal.

22. The appeal fails and is hereby dismissed.

                           (SUJOY PAUL)                                 (ANIL VERMA)
                             JUDGE                                         JUDGE
    Vm/sourabh
Digitally signed by SOURABH
YADAV
Date: 2021.07.30 17:03:32 +05'30'