Dilip Ahake vs The State Of Madhya Pradesh
2021 Latest Caselaw 6697 MP

                                 1

      THE HIGH COURT OF MADHYA PRADESH
          PRINCIPAL SEAT AT JABALPUR
                W.P.No.1297/2020

                        Dilip Akhake
                           Versus
             State of Madhya Pradesh and others

Date of Order               23/10/2021
Bench Constituted           Single Bench
Order delivered by          Hon'ble Shri      Justice   Sanjay
                            Dwivedi, J
Whether approved for
reporting
Name of counsels for        For Petitioners: Shri D.N.Pandey
the parties
                            For Respondent-State: Shri Manish
                            Kholia, Panel Lawyer
Law laid down
Significant Para Nos.

Reserved on :       11/08/2021
Delivered on :      23/10/2021

                           ORDER

(23/10/2021) Pleadings are complete.

With the consent of learned counsel for parties, matter

is heard finally.

(2) This petition has been filed by the petitioner under

Article 226 of the Constitution of India, questioning the

legality, validity and propriety of the order dated

03/01/2020 (Annexure-P-4), whereby the respondents have

rejected the claim of the petitioner for grant of

compassionate appointment considering his criminal

antecedents holding him unfit to be appointed in police

services.

(3) Learned counsel for the petitioner submits that in all

the criminal cases registered against the petitioner, he has

been given clean acquittal by the trial court, but the

respondents without considering the aforesaid fact has

declared the petitioner unfit to be appointed in police

services only on the basis of his criminal antecedents. It is

also contended by the petitioner that the orders passed by

the trial court has attained finality as no further appeal

challenging those orders has been filed. He submits that the

petitioner has not suppressed any material fact with regard

to the criminal cases registered against him, therefore,

considering the fact that he has been acquitted, the authority

should not have rejected his claim, and he should have been

given the compassionate appointment.

(4) The respondents have filed their return taking stand

therein that the petitioner though was acquitted in the

criminal case i.e Sessions Trial No.469/14 and Sessions

Trial No.138/2014, but that acquittal does not fall within

the ambit of clean and honourable acquittal. As per the

respondents, the case of the petitioner was considered in the

light of the guidelines dated 04/11/2019 (Annexure-R-1)

issued by the department with regard to character

verification of the candidates selected to be appointed in a

police force. The respondents have also taken a stand that in

a Sessions Trial No.469/2014, the petitioner was tried under

Section 363, 366, 376(1) of IPC & Section 4 of POCSO

Act, 2012, in which he was acquitted vide order dated

02/05/2016 as prosecution witnesses have not supported the

case of prosecution, and they have turned hostile, but the

acquittal as such does not fall within the purview of clean

and honorable acquittal. Likewise, in a Sessions Trial

No.138/2014, offence registered under Section 394/34 of

IPC for committing loot and assaulting complainant the

acquittal was also made, but offence was of "moral

turpitude". Apart from this, vide crime no.267/2013

registered at P.S.Nagpur, Maharashtra under Section 379/34

of IPC the petitioner was acquitted as the Court had no

option but to acquit, because witnesses were not coming

forward to get their statement recorded, therefore, this

acquittal is also not a clean and honourable acquittal. In

pursuance to the application submitted by the petitioner, his

case was placed before the Screening Committee on

07/11/2019 and on the basis of the screening done by the

Screening Committee the order dated 03/01/2020

(Annexure-P-4) was passed by the respondents-authorities.

(6) Counsel for the petitioner submits that the petitioner

has not suppressed any fact with regard to registration of

criminal cases and has also mentioned in the application

form that in all those cases he has been acquitted, therefore,

after acquittal the claim of the petitioner could not have

been rejected.

(7) Counsel for the respondents on the other hand has

opposed the submissions and submits that this Court in the

case of Virendra Jatav Vs. State of M.P.& others, 2020

(4) MPLJ 601 & in Ashutosh Pawar Vs. High Court of

M.P., (2018) 2 MPLJ, 419 Full Bench of this Court has

clearly laid down that, if a candidate is declined for

appointment in a police department on the ground that he is

unsuitable for employment, then the decision of suitability

is not open for judicial review and as such petition is not

maintainable and is liable to be dismissed.

(8) I have considered the submissions made by learned

counsel for the parties and perused the record.

(9) Undoubtedly, the offence tried in Sessions Trial

No.469/2014 and 138/2014 relates to moral turpitude. The

Scrutiny Committee keeping in view the law laid down by

the High Court in the case of Virendra Jatav(supra),

criminal antecedents of the petitioner and taking note of the

fact that the employer has declared the petitioner unsuited

to be appointed in police department, has rightly taken a

decision that the petitioner is not eligible to get the

appointment in the police department.

The relevant paragraph Nos.17, 18, 19, 20, 21, 22, 23,

24, 25 and 27 of the order passed in Virendra

Jatav(supra) reads as under:

17. In the case of Avtar Singh (supra), the Apex Court considered almost 21 previous judgments on the point. As noticed, reliance is placed on two paragraphs by Shri Ghildiyal. It is apposite to quote the same which reads as under:-

"38.4. ...

38.4.1 ..

38.4.2 ..

38.4.3. If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal, or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take appropriate decision as to the continuance of the employee.

38.5. In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate."

(Emphasis Supplied)

18. Apart from this, if different clauses of Para 38 are read minutely, it will be clear like noonday that the Supreme Court has nowhere held that in the event a selected candidate is 'honourably acquitted' or 'acquitted on merits', it is obligatory on the employer to appoint him. On the contrary, a conjoint reading of different paras of Avtar Singh (supra) makes it clear that the Apex Court has held that it depends on the nature of duty/employment, the job nomenclature, the sensitivity of post/department and other relevant factors on the basis of which it is prerogative/discretion of the employer to take a decision regarding 'suitability' of a candidate. No judgment is brought to the notice of this Court wherein the Apex Court directed that in case of 'honourable acquittal' of candidate, the employer has no authority and discretion to examine the 'suitability' of a candidate.

19. As per judgment of the Supreme Court in Mehar Singh and Avtar Singh (supra), the Screening Committee considered the case of the petitioner. No procedural impropriety in decision making process adopted by committee is pointed out to this Court. The whole argument is focused on the last para of impugned order dated 26.10.18 (Annexure P/5). It is apt to quote the same which reads as under:-

vr%mijksDr leLr izfrikfnr fl)[email protected];kas dks n`f"Vxr j[krs gq, vkids fo:) iathc) vijk/k eas uSfrd v/kskiru ds vk;ke gksus ds dkj.k ;|fi mDr izdj.k eas vkidks nks"keqDr fd;k x;k gS ,slh nks"keqfDr Clean/Honourable Acquittal dh Js.kh eas u vkus dk dkj.k vkidks bl iqfyl lsok ds v;ksX; ik;k tkrk gS A

A plain reading of this para shows that respondent No.5 treated the petitioner as 'unsuitable' because the allegations mentioned against him related to 'moral turpitude'. Indisputably, the allegations relating to Section 376 of IPC falls within the ambit of 'moral turpitude'.

20. The acquittal of a candidate, as a rule of thumb, does not give him any right to be appointed even if he is selected. The employer needs to examine the 'suitability' on various facets including (i) the nature of job needs to be performed by him; (ii) the nature of department in which he will be performing the duties; (iii) the status of post and other attendant circumstances; and (iv) the nature of accusation & his acquittal etc. A candidate, after acquittal in one department which is only doing ministerial job may be treated to be 'suitable' whereas for another department/post considering the nature of work, may be treated as 'unsuitable'. Thus, no strict parameters regarding judging such suitability can be reduced in writing with the accuracy and precision. It varies from post to post and from department to department. Perhaps for this reason, the Apex Court has not held that after clean acquittal, the candidate has an indefeasible right of appointment and much discretion is left with the employer to decide his 'suitability'.

21. This Court after considering the judgment of Full Bench in Ashutosh Pawar (supra) in WP. 21231/17, Madhur vs. State of M.P. decided on 17.04.18[2018 MPLJ Online 66] opined that 'suitability' cannot be confused with 'eligibility'. No doubt the eligibility is subjected to judicial review but 'suitability' is not. The relevant portion reads as under:-

"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 W.B. 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)

22. In Ashutosh Pawar (supra), the Full Bench considered following question:-

"2. Whether the High Court in exercise of its powers under Article 226 of the Constitution of India, can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person?"

It was answered as under:-

"40. In view of the law laid down in above said

judgments, there is no doubt that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court only examines the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. We find that the decision of the State Government holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged."

23. At the cost of repetition, in the present case, the petitioner has not pointed out any flaw in the decision making process. As held in catena of judgments of Supreme Court, which were considered in Ashutosh Pawar (supra), it is clear like cloudless sky that ultimate decision which is an 'opinion' of employer is beyond the scope of judicial review. More so, on considering the nature of job of police/discipline force, it cannot be said that decision to treat the petitioner as 'unsuitable' is malicious in nature. In the case of Pradeep Kumar (Supra), the Apex Court considered the judgment of Parvez Khan and Avtar Singh (Supra) and opined that the scope of judicial review of decision of screening committee is very limited. It was poignantly held that acquittal in a criminal case is not conclusive of suitability of the candidate in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. It was further held that acquittal in a criminal case does not automatically entitled the candidate for appointment to the post. It is still open to the employer to consider the antecedents and examine whether he is 'suitable' for appointment to the post. It is pertinent to mention that in the same judgment, Supreme Court came to hold that the Court should not dilute the importance and efficacy of a mechanism like the Screening Committee created to ensure that person 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 the trust reposed in it and must treat all candidates with an even hand. "The decision of the Screening Committee must be taken as final unless it is shown to be mala fide". Thus, the decision of Screening Committee can be examined only on the anvil of mala fides.

24. Pausing here for a moment, petitioner in the writ petition, on more than one occasion has termed the rejection order Annexure P/5 as 'arbitrary' and 'malafide'. However, it is not described with necessary clarity as to how the impugned order can be termed as 'mala fide'. The mere allegation of malafide is not sufficient unless there is sufficient foundation on the strength of which the order/action is termed as 'mala fide'. (1986) 4 SCC 566, State of M.P. vs. Nandlal Jaiswal, the Apex Court held that "it is true that in the writ petitions the petitioners used words such as 'mala fide', 'corruption' and 'corrupt practice' but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied in so far as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing".

25. The aspect of 'legal malice' was considered by Supreme Court in (2010) 9 SCC 437, Kalabharati Advertising v. Hemant Vimalnath Narichania. The Apex Court opined that if an act is taken with an oblique or indirect object/motive and runs contrary to the purpose for which statutory power was required to be exercised, action falls within the ambit of 'legal malice'. The petitioner could not point out the necessary ingredients which can establish 'malice in fact' or 'malice in law'. It is equally settled that whenever allegations as to mala fides have been levelled, sufficient particulars and cogent materials making out prima facie case must be set out in the pleadings. Vague allegation or bald assertion that the action taken was malafide and malicious is not enough. In the absence of material particulars, the court is not expected to make 'fishing' inquiry into the matter. [See (2009) 13 SCC 758, Swaran Singh Chand vs. Punjab SEB]. In view of this legal position, I am unable to hold that petitioner could make out a case of judicial review on the decision taken by Screening Committee/department.

27. It is noteworthy that while examining the scope of judicial review on decision of expert bodies like Selection Committee, [See M. Sathia Priya (supra)] the scope of judicial review was extended to examine existence of bias, malafide and arbitrariness whereas while determining the scope of judicial review in case of Screening Committee, the Apex Court in Pradeep Kumar (supra) confined it to the aspect of existence of 'mala fide' only.

(10) As observed supra, I find no good ground to take

a different view as taken by this Court in the case of

Virendra Jatav(supra) taking note of several Supreme

Court's judgments and also Full Bench decision of this

Court. Accordingly, I do not find any illegality in the

impugned order dated 03/01/2020 (Annexure-P-4) whereby

the claim of the petitioner for grant of compassionate

appointment has been rejected by the respondents

considering his criminal antecedents where under he was

tried by the court below under different charges of Indian

Penal Code.

(11) The petition therefore, without any substance

and is hereby dismissed.

(Sanjay Dwivedi) Judge

Digitally signed by SUSHMA KUSHWAHA

SUSHMA sushma DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd87 5c18e5a68787947df0c5,

KUSHWAHA pseudonym=3162691BECDE33282E19E0CEBA20524E3148208 9, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D 4F5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2021.10.25 11:11:54 +05'30'