Amit Katheria vs The Union Of India
2022 Latest Caselaw 16414 MP

                                           1

         IN THE HIGH COURT OF MADHYA PRADESH
                      AT GWALIOR
                                      BEFORE
        HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                     ON THE 12th OF DECEMBER, 2022

                   WRIT PETITION NO. 28430 OF 2022

        BETWEEN:-

        AMIT KATHERIA, AGED ABOUT 26 YEARS,
        S/O SHRI RAKESH BABU KATHERIA,
        OCCUPATION UNEMPLOYED, R/O ASHOK
        BIHAR COLONY, DISTRICT SHIVPURI
        (MADHYA PRADESH)
                                                                 ........PETITIONER

        (BY SHRI D.S. RAGHUVANSHI - ADVOCATE)

        AND

  1.    THE UNION OF INDIA THROUGH
        SECRETARY, GOVERNMENT OF MADHYA
        PRADESH, MINISTRY OF HOME AFFAIRS,
        NEW DELHI

   2.   THE COMMANDANT/TRG,                CISF NISA,
        HYDERABAD
                                                              ........RESPONDENTS

    (BY SHRI PRAVEEN KUMAR NEWASKAR - ASSISTANT SOLICITOR
GENERAL)
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        This petition coming on for admission this day, the Court passed
the following:
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                                      ORDER

This petition under Article 226 of the Constitution of India has

been filed seeking following reliefs:-

"(i) That, the impugned order dated 24.11.2022 (Annexure P1) be directed to be quashed and set aside.

(ii) That, the respondents may kindly be directed to permit the petitioner to join his duties to the post of S.I. (CISF) with all consequential benefits.

(iii) That, other relief which is just and proper in the facts and circumstances of the case may also be granted.

2. It is submitted by the counsel for the petitioner that an advertisement was issued for recruitment to the post of S.I. in CISF. On 11.12.2019 pre-examination was conducted in Gwalior. Physical test was conducted on 02.12.2020 and the main examination was conducted on 26.07.2021 and the final result was declared on 10.12.2021. The petitioner was declared successful. Medical test was conducted on 20.12.2021 and verification of documents was done on 28.12.2021 and final merit list was published on 31.01.2022. The order of appointment was issued on 10.05.2022 and the petitioner was directed to join on the post by 06.06.2022. Thereafter the respondents did not accept the joining of the petitioner and by the impugned order dated 24.11.2022 selection order of the petitioner has been cancelled. Reason for cancellation of offer of appointment is that the petitioner was tried and was punished for offence under Section 13 of Gambling Act in Crime No.85/2017 and a fine of Rs.100/- was imposed. It is submitted that the petitioner had not suppressed his conviction in the character verification form. Further, the respondents have discriminated the petitioner because a person, who too was fined under the same category of offence, has been appointed and has been held to be eligible and qualified to hold the post in Madhya Pradesh Police. The cancellation of appointment of the

petitioner is contrary to the judgment passed by the Supreme Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471.

3. Per contra, the petition is vehemently opposed by the counsel for the State. It is submitted that once a person has been convicted, then the appointing authority has jurisdiction to consider the effect of such conviction. The petitioner had applied for the post of S.I./Exe in CISF. Only the employees, who are having impeccable character, are to be given appointment in CISF. The conviction of the petitioner for offence under Section 13 of Gambling Act is not conducive to the duties attached to the post of S.I./Exe in CISF.

4. Counsel for the respondents has also relied upon the judgment passed by this Court in the case of Anoop Singh Thakur Vs. State of Madhya Pradesh and others reported in 2020 (1) MPLJ 607 which has been affirmed by the Division Bench of this Court in W.A. No.918/2019.

5. Heard the learned counsel for the parties.

6. The Supreme Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471 has held as under:-

"38.1 Information given to the employer by a candidate as to conviction, acquittal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of required information.

38.2. While passing order of termination of services or cancellation of candidature for giving false information, the employer may take notice of special circumstances of the case, if any, while giving such information.

38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filling of the application/ verification form and such fact later comes to knowledge of employer, any of the following recourse appropriate to the case may be adopted :

38.4.1. In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence which if disclosed would not have rendered an incumbent unfit for post in question, the employer may, in its discretion, ignore such suppression of fact or false information by condoning the lapse.

38.4.2 Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

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.

38.6. In case when fact has been truthfully declared in character verification form regarding pendency of a criminal case of trivial nature, employer, in facts and circumstances of the case, in its discretion may appoint the candidate subject to decision of such case.

38.7. In a case of deliberate suppression of fact with respect to multiple pending cases such false information by itself will assume significance and an employer may pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

38.8. If criminal case was pending but not known to the candidate at the time of filling the form, still it may have adverse impact and the appointing authority would

take decision after considering the seriousness of the crime.

38.9. In case the employee is confirmed in service, holding Departmental enquiry would be necessary before passing order of termination/removal or dismissal on the ground of suppression or submitting false information in verification form.

38.10. For determining suppression or false information attestation/verification form has to be specific, not vague. Only such information which was required to be specifically mentioned has to be disclosed. If information not asked for but is relevant comes to knowledge of the employer the same can be considered in an objective manner while addressing the question of fitness. However, in such cases action cannot be taken on basis of suppression or submitting false information as to a fact which was not even asked for.

38.11. Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

7. The Supreme Court in the case of State of Madhya Pradesh and Others vs. Abhijit Singh Pawar, passed in Civil Appeal No. 11356 of 2018 (Arising out of SLP (c) No.17404 of 2016) by judgment dtd. 26th November, 2018 has observed as under:-

''14. In Avtar Singh (supra), though this Court was principally concerned with the question as to non-disclosure or wrong disclosure of information, it was observed in paragraph 38.5 that even in cases where a truthful disclosure about a concluded case was made, the employer would still have a right to consider antecedents of the candidate and could not be compelled to appoint such candidate.

15. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) of Cr.P.C., the law declared by this Court in Mehar Singh (supra), specially in paragraphs 34 and 35

completely concludes the issue. Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.

16. The reliance placed by Mr. Dave, learned Amicus Curiae on the decision of this Court in Mohammed Imran (supra) is not quite correct and said decision cannot be of any assistance to the respondent. In para 5 of said decision, this Court had found that the only allegation against the appellant therein was that he was travelling in an auto- rickshaw which was following the auto-rickshaw in which the prime accused, who was charged under Section 376 IPC, was travelling with the prosecutrix in question and that all the accused were acquitted as the prosecutrix did not support the allegation. The decision in Mohammed Imran (supra) thus turned on individual facts and cannot in any way be said to have departed from the line of decisions rendered by this Court in Mehar Singh (supra), Parvez Khan (supra) and Pradeep Kumar (supra).

17. We must observe at this stage that there is nothing on record to suggest that the decision taken by the concerned authorities in rejecting the candidature of the respondent was in any way actuated by mala fides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge as well as by the Division Bench and dismiss Writ Petition No.9412 of 2013 preferred by the respondent. No costs.''

8. The Supreme Court in the case of Mohammed Imran Vs. State of Maharashtra and others passed in C.A. No. 10571 of 2018, by order dated 12-10-2018 has held as under :-

''6. Employment opportunities is a scarce commodity in our country. Every advertisement invites a large number of aspirants for limited number of vacancies. But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that my apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opporunity to improve, learn from the past and move ahead in life by self-improvement. To make past conduct, irrespective of all considerations, albatross around the neck of the candidate, may not always constitute justice. Much will, however, depend on the fact situation of a case.

9. The Supreme Court in the case of Union of Territory, Chandigarh Administration and Ors. vs. Pradeep Kumar and Another, reported in (2018) 1 SCC 797 has held as under:-

''11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision.......

12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India and Others(2016) 8 SCC 471, three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), (SCC p. 508) ''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."

13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character.

* * *

17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.

10. The Supreme Court in the case of The State of M.P. and others Vs. Bunty by order dated 14/3/2019 passed in Civil Appeal No.3046/2019 has held as under:-

"13. The law laid down in the aforesaid decisions makes it clear that in case of acquittal in a criminal case is based on the benefit of the doubt or any other technical reason. The employer can take into consideration all relevant facts to take an appropriate

decision as to the fitness of an incumbent for appointment/continuance in service. The decision taken by the Screening Committee in the instant case could not have been faulted by the Division Bench."

11. Thus, it is clear that even in case of acquittal of an employee, the employer can consider the relevant facts to take a proper decision as to fitness of an incumbent for appointment/continuance in service. However, in the present case, the petitioner was convicted for offence under Section 13 of Public Gambling Act and a fine of Rs.100/- was imposed. CISF is an uniformed disciplined force. If the respondents are of the view that convicted accused for offence under Section 13 of the Public Gambling Act is not suitable for his appointment in CISF, then it cannot be said that such satisfaction of the authorities is unwarranted. If the petitioner is in the habit of playing gambling, then his habit may spoil the other employees of CISF.

12. Be that whatever it may.

13. The subjective satisfaction of the authorities are not open for judicial review unless and until it is not based on any evidence or sufficient material. In the present case, conviction of the petitioner for offence under Section 13 of Public Gambling Act is sufficient material for the authorities to record their satisfaction.

14. So far as the ground of discrimination raised by the petitioner is concerned, it is suffice to mention here that a similarly situated person might have been given appointment in police force, but both the establishments, i.e., police force as well as CISF are different and they are discharging different duties and the decision taken by some other department cannot be utilized for ascertaining as to whether the petitioner has been discriminated or not.

15. Under these circumstances, this Court is of the considered opinion that no case is made out warranting interference.

16. Accordingly, the petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE Abhi Digitally signed by ABHISHEK CHATURVEDI Date: 2022.12.13 17:10:07 +05'30'