Deepu Kumar Singh vs The State Of Madhya Pradesh
2021 Latest Caselaw 6698 MP

                                 1

     THE HIGH COURT OF MADHYA PRADESH
         PRINCIPAL SEAT AT JABALPUR

                    W.P.No.8364/2019
                    Deepu Kumar Singh
                         Versus
          The 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 Ajay Sen,
the parties                 Advocate

                            For   Respondent-State:     Shri
                            Dharmendra Kaurav, Panel Lawyer
Law laid down
Significant Para Nos.

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

                        ORDER

(23/10/2021) Pleadings are complete.

With the consent of learned counsel for parties, matter

is heard finally.

This petition has been filed by the petitioner under

Article 226 of the Constitution of India, questioning the

legality, validity and propriety of order dated 08/04/2019

(Annexure-P-7), whereby the petitioner's name has been

removed from the select list of the post of Constable (GD),

on the ground that he had been prosecuted for commission

of the offence punishable under Sections 147, 148, 149,

323, 452,504 and 506 of IPC.

(2) The order has been assailed mainly on the ground that

under the similar facts and circumstances of the case, other

candidates, who were prosecuted in some heinous offences

were considered and appointed, but selection of the

petitioner has been cancelled, ignoring the fact that he has

already been acquitted in the case registered against him by

the trial court vide judgment dated 03/06/2017 (Annexure-

P-10).

(3) Counsel for the petitioner submits that the fact

regarding pendency of criminal cases was duly disclosed by

the petitioner in the affidavit furnished by him at the time of

police verification. He further submits that on coming to

know about the impugned order dated 08/04/2019

(Annexure-P-7), the petitioner made a detailed

representation (Annexure-P-8) to the authorities, apprising

them about his acquittal and also pointing out that some

persons facing heinous crime have already been given

appointment. He submits that as per Rule II of

Circular/Guideline dated 24/07/2018 issued by the Home

Department of the Government of State of Madhya

Pradesh, the petitioner is entitled to be selected on the post

of Constable (GD).

(4) On the other hand, counsel appearing for the

respondents/State submits that in view of the reply

submitted by them, the petitioner is not eligible to get any

benefit of the above circular. He further submits that though

the petitioner had disclosed about the registration of the

offence punishable under Sections 147, 148, 149, 323, 452,

504 and 506(B) of IPC vide Crime No.108/2011, but the

Screening Committee constituted for the purpose of

character verification, pursuant to the circular/guidelines

dated 24/07/2018, after going through the entire material

with regard to criminal antecedents of the petitioner has not

found him suitable to hold the post of Constable in the

Police Department.

(5) Counsel for the respondents by placing reliance upon

the Larger Bench decision of this Court in the case of

Ashutosh Pawar Vs. High Court of M.P. & another

reported in 2018(2) MPLJ 419 and also the judgment of the

Apex Court in the case of Commissioner of Police, New

Delhi and another Vs. Mehar Singh, reported in (2013) 7

SCC 685 submits that acquittal of the petitioner does not

fall within the ambit of clean and honourable acquittal, and

as such he is not found suitable for the police services.

(6) It is contended by counsel for the petitioner that the

authorities have failed to consider the material aspect that

the petitioner did not suppress any information, but

disclosed the fact regarding criminal case tried against him,

and he has been acquitted in the same. It is further

contended that, if a person is charged and finally acquitted

by the Court, it will be an acquittal in all manner. He

submits that from the judgment passed in petitioner's

favour, it can be said that this acquittal is a clean acquittal

and he cannot be declared disqualified by saying that the

acquittal given by the trial court is not an honorable

acquittal. He has also drawn the attention of this Court

towards the judgment of the trial court dated 03/06/2017

(Annexure-P-10), by which, petitioner has been acquitted

mainly on the ground that none of the witnesses have

supported the case of the prosecution. He further relied

upon a decision passed by the Supreme Court in the case of

Mohammed Imran Vs. The State of Maharashtra and

others, in Civil Appeal No.10571/2018 arising out of

SLP(C) No.6599/2018 and W.P.No.10342/2013 (Pankaj

Shakya Vs. Secretary State of M.P.& another) decided

on 05/08/2014 by the Indore Bench of this Court and

submitted that the offence registered against the petitioner

does not fall within the purview of "moral turpitude",

accordingly the petitioner's selection cannot be cancelled.

(7) I have considered the submissions made by learned

counsel for parties and perused the record.

(8) The question that emerges for consideration is

whether the decision taken by the respondents in cancelling

the selection of the petitioner on the ground that he is not

suitable for appointment because he had some past criminal

antecedents is justified or not, considering the fact that

other similarly situated candidates who have been

prosecuted in some heinous offences have been appointed;

and whether such decision of the respondents suffers from

'malice in law' or not ?

(9) Undisputably, the petitioner was tried for the offences

under Sections 147, 148, 323, 452, 504, 506 and 149 of

IPC, but he has also been acquitted vide judgment dated

03/06/2017 (Annexure-P-10). The respondents vide

impugned order dated 08/04/2019 (Annexure-P-7)

cancelled the selection of the petitioner as found him

unsuitable on the basis of screening done by the Screening

Committee. However, the State has not clarified the factual

existing position as has been pointed out by the petitioner in

his petition vide Annexure-P-11, which is a list of

candidates, who have been appointed, though they have

faced crime of serious nature. It is nowhere stated and

clarified by the respondents that since the petitioner has

been tried in an offence relating to "moral turpitude",

therefore, he has been deprived from selection, but it is

stated that only because a case was registered against him

somewhere in the year 2011 and decided in the year 2017,

he was not found suitable to be appointed in police

department.

(10) In the case of Mohd.Imran(supra), the Supreme

Court has dealt with the appointment relating to the judicial

services and observed that undoubtedly, judicial service is

very different from other services and the yardstick of

suitability that may apply to other services, may not be

same for a judicial service. But, there cannot be any

mechanical or rahetorical incantation of moral turpitude, to

deny appointment in judicial service simplicitor.

Much will depend on the facts of a case. Every individual

deserves an opportunity to improve, learn from the past and

move ahead in the life by self-improvement. To make past

conduct, irrespective of all considerations, an albatross

around the neck of the candidate, may not always constitute

justice. Much will, however depend on the facts situation

of the case.

(11) The Supreme Court has also taken note of law laid

down by in the case of Avtar Singh Vs. Union of India

and others, (2016) 8 SCC 471, saying that if empanelment

creates no right to appointment, equally there can be no

arbitrary denial of appointment after empanelment.

(12) In the present case also, the petitioner was part of

selection process and cleared few steps of selection, but

was removed from the select list only on the ground that he

has been tried in a criminal offence registered against him

somewhere in the year 2011.

(13) This Court in the case of Virendra Jatav Vs. State of

M.P. and others, reported in (2020) 4 MPLJ 601 has also

considered the case of Avtar Singh (supra) and observed as

under :-

"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'"

(14) The appointment of the petitioner was made in the

police department. No doubt, the nature of appointment and

the duties performed by the policeman in the police

department is not equal to the services of an employee in

other department. The police department is known to be a

disciplinary force and accordingly for any appointment

made in the said department the employer has to apply

different yardstick, but it does not mean that the department

can make discrimination in appointing one person having

criminal antecedents, and rejecting the claim of another

person of the same status.

(15) The Supreme Court in the case of Joginder Singh Vs.

Union Territory of Chandigarh and others, reported in

(2015) 2 SCC 377 has also discussed a case, in which, a

candidate was found unsuitable as he was tried for a charge

under Section 376 of IPC, but later on acquitted. In the

same circumstance a person tried under Sections 294, 504

and 34 of IPC, but acquitted and has been appointed. Thus,

that discrimination was deprecated by the Supreme Court

directing reconsideration of the case of the employee.

(16) In the present case also, if situation has been clarified

by the petitioner annexing a list Annexure-P-11 showing

that some persons have been appointed, though faced

criminal charges, but have been acquitted later on, then the

petitioner cannot be discriminated in such manner.

(17) The Supreme Court in the case of Kalabharti

Advertising Vs. Hemant Vimalnath Narichania & others

(2010) 9 SCC 437 has considered the aspect of legal malice

and also observed that if the action of the State runs

contrary to the purpose, for which statutory power was

required to be exercised, then such action falls within the

ambit of 'legal malice'.

(18) In the present case, the petitioner has very

categorically pleaded that there are other similarly situated

candidates who have criminal antecedents and they have

been appointed, but petitioner was removed from the list of

select candidate declaring him unsuitable. It is nothing but a

discriminatory action of the authority indicating 'malice in

fact' or 'malice in law'.

19. The respondents have not denied this aspect in their

reply and also not countered at the time of argument,

therefore, I am of the opinion that considering the view

taken by the Supreme Court in case of Mohd.Imran(supra)

the matter can be remitted back to the authority for

reconsidering this aspect as to when others have been

selected and appointed then how the petitioner could be

deprived. The authority is also under an obligation to

consider that the case registered against the petitioner does

not fall within the meaning of "moral turpitude" and is of

the year 2011, in which, he has been acquitted in the year

2017, and no other criminal past has been pointed out. As

such, petition is allowed. Impugned order dated

08/04/2019 (Annexure-P-7) is set-aside. The matter is

remitted back to the authority to reconsider the claim of the

petitioner on the above observations. The said exercise be

completed within a period of three months from the date of

receipt of copy of this order.

Accordingly, petition stands allowed.

(SANJAY DWIVEDI) JUDGE

SUSHMA sushma Digitally signed by SUSHMA KUSHWAHA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=06cc7ec7869e71b23c61580e1aaad85481f7ea48cd875c

KUSHWAHA 18e5a68787947df0c5, pseudonym=3162691BECDE33282E19E0CEBA20524E31482089, serialNumber=0844205F54108DDA40342AD423EF1D3DE29D4F 5E3FC94CC59B05D91905B104C7, cn=SUSHMA KUSHWAHA Date: 2021.10.25 11:19:33 +05'30'