Madhya Pradesh High Court
Virendra Jatav vs The State Of M.P. on 18 April, 2022
Author: Purushaindra Kumar Kaurav
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE PURUSHAINDRA KUMAR KAURAV
ON THE 18th OF APRIL, 2022
WRIT APPEAL No.84 of 2021
Between:-
VIRENDRA JATAV, S/O SHRI GULAB
SINGH, AGE - 30 YEARS, OCCUPATION
- UNEMPLOYED, R/O - VILLAGE &
POST JHARKHEDA, TEHSIL
SHYAMPUR, DISTRICT SEHORE (M.P.)
.....APPELLANT
(SHRI PRASHANT SINGH KAURAV - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH,
THROUGH: PRINCIPAL SECRETARY,
DEPARTMENT OF HOME, VALLABH
BHAWAN, BHOPAL (M.P.) - 462001.
2. THE DIRECTOR GENERAL OF POLICE,
STATE OF MADHYA PRADESH, POLICE
HEADQUARTER, JAHANGIRABAD,
BHOPAL (M.P.)
3. THE ASSISTANT INSPECTOR GENERAL
OF POLICE (PERSONNEL), STATE OF
MADHYA PRADESH, POLICE
HEADQUARTER, JAHANGIRABAD,
BHOPAL (M.P.)
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4. THE INSPECTOR GENERAL OF POLICE,
PERSONNEL/SECURITY, SPECIAL
BRANCH, MADHYA PRADESH, BHOPAL
(M.P.)
5. COMMANDANT, 26TH BATTALION,
SPECIAL ARMED FORCE, DISTRICT
GUNA (M.P.)
....RESPONDENTS
(SHRI S. S. CHOUHAN - GOVERNMENT ADVPCATE)
-----------------------------------------------------------------------------------------------
This appeal coming on for orders this day, Hon'ble Shri
Justice Purushaindra Kumar Kaurav, passed the following:
ORDER
This intra Court appeal takes exception to order dated
20.08.2020, passed by the learned Single Judge in Writ Petition No.
27106 of 2018, whereby petition filed by appellant-petitioner has
been dismissed.
2. The facts of the case are that in pursuance of an advertisement
issued by the respondents, the appellant appeared for recruitment test
for the post of Police Constable conducted in the year 2017. The
appellant was selected for the post of Constable (G.D.) and was
allotted 26th Battalion, Special Armed Forces, Guna Unit. Vide order
dated on 10.08.2018, the appellant was directed to appear before the
screening committee on 17.08.2018 at 10:00 A.M. with respect to his
character verification. The appellant appeared on 10.08.2018 and
explained the circumstances. On 26.10.2018 the respondent
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authorities, while taking into consideration the fact that Crime No.19
of 2008 for offences punishable under Sections 363, 366, 376 and
506/34 of IPC was registered against the appellant at Police Station -
Doraha, District Sihore, found that the nature of the service to which
the appellant was to be inducted requires that an incumbent should
not only be eligible but his character should be above-board and a
person having criminal antecedents should not be inducted to a force
that requires observance to strict discipline and accordingly he was
not found "suitable" for appointment on the post in question for
Police Department. The appellant challenged the order dated
26.10.2018 before this Court. Learned Single Judge vide impugned
order dismissed the petition. Hence, the appellant is in this intra
court appeal.
3. Learned counsel appearing for the appellant submits that the
decision taken by the authorities not to appoint the appellant is
erroneous. The same has been passed without taking into
consideration the fact that crime in question was registered against
the appellant in the year 2008. The same was with respect to love
affair of the appellant with a girl belonging to other caste and
therefore, at the instance of parents of the girl, an F.I.R. was
registered. The competent Court has honorably acquitted the
appellant and a perusal of the finding recorded by the competent
Court would clearly demonstrate that acquittal was honorable. The
appellant did not suppress any material fact and had clearly
disclosed in his form that he had faced a criminal trial where he was
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honorably acquitted. Under such circumstances, according to him,
learned Single Judge has erred in dismissing the writ petition,
therefore, an interference is called for. He placed reliance on the
decision of the Hon'ble Supreme Court in the matter of R.P. Kapur
Vs. Union of India and Another1, Avtar Singh Vs. Union of India
and Others2, Swaran Singh Chand Vs. Punjab State Electricity
Board and Others3, G.Jayalal Vs. Union of India and Others4 and
Mohammed Imran Vs. State of Maharashtra and Others 5 and the
full bench decision of this Court in the matter of Ashutosh Pawar
Vs. High Court of M.P. and Another6,.
4. Learned counsel appearing for the State opposed the
submissions made by learned counsel for the appellant and
submitted that there is a limited scope of judicial review in
examining the decision of the expert. There is a marked distinction
between "suitability" and "eligibility" and according to him, the
appellant may be "eligible", but he has not been found "suitable" by
the employer and therefore, no fault can be found with. He placed
reliance on a decision of the Hon'ble Supreme Court in the case of
Union Public Service Commission Vs. M. Sathiya Priya and
Others7, Union Territory, Chandigarh Administration and Others Vs.
Pradeep Kumar and Another8, M.P. Special Police Establishment Vs.
1 AIR 1964 SC 787
2 (2016) 8 SCC 471
3 (2009) 13 SCC 758
4 (2013) 7 SCC 150
6 (2018) 2 MPLJ 419
7 (2018) 15 SCC 796
8 (2018) 1 SCC 797
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State of M.P and Others9, Mutha Associates and Others Vs. State of
Maharashtra and Others10, State of Madhya Pradesh and Others Vs.
Parvez Khan11, Commissioner of Police, New Delhi and Another Vs.
Mehar Singh12, Gangacharan Baijnath Prasad Vs. State of Madhya
Pradesh and Others13
5. We have heard the learned counsels appearing for the parties
and perused the record.
6. Before proceeding further, it would be appropriate to examine
the impugned order rejecting the "suitability" of the appellant which
was communicated to him vide order dated 26.10.2018. Extract of
the same reads as under:
**vkids }kjk izLrqr tkudkjh o iqfyl izfrosnu ds vk/kkj ij vkids
fo:) Fkkuk& nksjkgk] ftyk& lhgksj] e/;izns'k esa vi0dz0& [email protected]]
/kkjk& 363]366]376]506&ch]34 Hknfo dk izdj.k iathc) fd;k tkdj
foospuk mijkar pkyku U;k;ky; esa is'k fd;k x;k FkkA izdj.k esa
U;k;ky; }kjk nks'keqDr fd;k x;k gSA
mijksDr vkijkf/kd izdj.k ,oa rF;ksa dh xgu leh{kk iqfyl eq[;ky;
Lrj xfBr Nkuchu lfefr ¼Screening Committee½ }kjk vkidks
O;fDrxr lquokbZ dh volj nsus ds mijkar rFkk "kklu ,oa ekuuh;
[email protected] U;k;ky;ksa }kjk le;≤ ij tkjh fn'kk&funsaZ'kksa rFkk
gky gh esa ekuuh; mPpre U;k;ky; }kjk ¼,l,yih dz0 [email protected] fu.kZ;
fnukad 21-07-2016½ vorkj flag V/S Hkkjr la?k esa ikfjr fu.kZ; esa
izfrikfnr fof/kd fl)kUrksa ds vkyksd esa dh xbZA
lqLFkkfir fl)kUr ds vuqlkj ;qfuQkeZ [email protected] pkgus okys
mEehnokj dh lsok,W vU; lsok okys mEehnokj ls fHkUu Lrj dh Js.kh esa
vkrh gSA iqfyl lsok esa p;fur mEehnokj dk drZO; izns'k dh dkuwu
O;oLFkk ,oa turk dh tku&eky dh lqj{kk lqfuf'pr djuk gksrk gSA iqfyl
dh lsok esa mPp uSfrd vkpj.k gksuk o vkijkf/kd xfrfof/k;ksa esa izR;{k ;k
ijks{k :i ls lafyIr u gksuk vko";d gS] pqWfd iqfyl foHkkx esa p;fur
mEehnokjksa ij vijkf/kd izo`fRr ij vadq'k yxkus dh egRoiq.kZ ftEesnkjh
9 (2004) 8 SCC 788
10 (2013) 14 SCC 304
11 (2015) 2 SCC 591
12 (2013) 7 SCC 685
13 (1994) MPLJ 792
- 6 -
gksrh gS] vr% tufgr esa vkijkf/kd fjdkMZ okys mEehnokj dks iqfyl lsok
esa fu;qDr fd;k tkuk mfpr ugha gSaA
vr% mijksDr leLr izfrikfnr fl)[email protected];ksa dks n`f'Vxr j[krs gq,
vkids fo:) iathc) vijk/k esa uSfrd v/kksiru ds vk;ke gksus ds
dkj.k ;|~fi mDr izdj.k esa vkidksa nks'keqDr fd;k x;k gS] ,slh nks'keqfDr
Clean/Honourable Acquittal dh Js.kh esa u vkus ds dkj.k vkidks bl
iqfyl lsok ds v;ksX; ik;k x;k gSA**
7. The Hon'ble Supreme Court in the matter of Avtar Singh2 has
clearly held that even in a case where the employee has made
declaration truthfully of the concluded criminal case, the employer
still has a right to consider criminal antecedents, and cannot be
compelled to appoint the candidate. In the instant case, the employer
has not attributed any suppression by the appellant but has taken a
decision after due application of mind that services to which the
appellant was to be inducted requires utmost sensitivity as being
member of a Police Force. An incumbent is required to protect the
rights of the citizens. It is thus seen that the employer is entitled to
examine the "suitability" on various facets including: (i) the nature
of job to be performed by an employee; (ii) The nature of
department in which an employee will have to perform his duties;
(iii) the status of post and other attendant circumstances and (iv) the
nature of allegation and acquittal etc. The aforesaid facets are only
illustrative, but not exhaustive. A close analysis of the judgment
relied upon by the parties would show that "suitability" is not to be
confused with "eligibility". The scope for interference on the
question of "eligibility" is of-course larger than the scope for
interference in the matter of "suitability". In other words the aspect
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of "suitability" stands in a much narrower compass from purview of
judicial review as "suitability" is a matter of opinion. The Full
Bench of this Court in the case of Ashutosh Pawar5 has clearly held
that in exercise of power of judicial review under Article 226 of the
Constitution of India, this Court only examines the decision making
the process and does not substitute itself as a court of appeal over the
reasons recorded by the State Government.
8. The Division Bench of this Court recently in its decision dated
17.01.2022 in Writ Petition No.5530 of 2019 had an occasion to
consider a case of non-appointment on the post of Judicial Officer by
the High Court almost on the same ground. A criminal case was
lodged against such candidate and he was not found "suitable" to be
appointed on the post of Civil Judge, Class-II. This Court
considered the decisions of the Hon'ble Supreme Court in the
matters of Mohammed Ibrahim Vs. State of Maharashtra14
Commissioner of Police and Others Vs. Sandeep Kumar15, Union
Territory, Chandigarh Administration and Others8, C. Ravichandran
Iyer Vs. Justice A.M. Bhattacharjee16, State of Madhya Pradesh Vs.
Abhijeet Singh Pawar17 Commissioner of Police, New Delhi and
Another Vs. Mehar Singh12, State of Madhya Pradesh and Others Vs.
Parvez Khan11 and in para 8 of the decision it has been held as under:-
"A judicial officer has to discharge the sovereign functions in
administration of justice. Thus, the expectations from a judicial
officer are of much higher standard. Keeping in mind the said
principle, if a decision is taken by the employer, that a person against
14 (2019) 17 SCC 696
15 (2011) 4 SCC 644
16 (1995) 5 SCC 457
17 (2018) 18 SCC 733
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whom chargesheet was filed for offences under Section
294,323,341,506-B,427 of the IPC and the closure was made only on
the basis of a compromise such a decision normally should not be
interfered with in exercise of power of judicial review. In absence of
any strong reason such as rejection of the candidature being actuated
by reasons of mala fide or the decision suffering from non-application
of mind, the scope of interference by this court under judicial review is
limited. The High Court under Article 226 of the constitution only
examines the decision making process and does not act as a court of
appeal to substitute its own decision. Even if the decision making
process is found to be arbitrary or illegal, the High Court normally
directs the authority for reconsideration rather than to substitute the
decision of the authority with that of its own. However, the said
situation has not arisen in the present case."
9. Taking into consideration the overall facts and circumstance of
the case, we do not find that there is any allegation of mala fide. The
decision making process cannot be said to be unfair or arbitrary. The
conclusion drawn by the state authorities does not appear to be
perverse. Therefore, this Court cannot substitute the decision of the
authority with that of its own. We do not find any error in the order
passed by the learned Single Judge. Hence, we decline to interfere
into the same.
10. The writ appeal is accordingly dismissed.
(RAVI MALIMATH) (PURUSHAINDRA KUMAR KAURAV)
CHIEF JUSTICE JUDGE
Jasleen
JASLEEN SINGH
SALUJA
2022.04.23
10:46:29 +05'30'
