Madhya Pradesh High Court
The State Of Madhya Pradesh vs Mohd. Raajik Khan on 27 October, 2022
Author: Chief Justice
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27th OF OCTOBER, 2022
WRIT APPEAL NO.1225 OF 2022
BETWEEN:-
1. THE STATE OF MADHYA PRADESH, THROUGH
THE SECRETARY, HOME DEPARTMENT,
VALLABH BHAWAN, BHOPAL (M.P.)
2. ASSISTANT INSPECTOR, GENERAL OF POLICE
SPECIAL BRANCH (VERIFICATION) BHOPAL
(M.P.)
3. LIGHT MACHINERY AND ELECTRICAL
MECHANICAL DIVISION WATER RESOURCES
DEPARTMENT, THROUGH EXECUTIVE
ENGINEER, NARSINGHPUR (M.P.)
4. WATER RESOURCES DEPARTMENT, THROUGH
CHIEF ENGINEER (E/M), BAANDH SURAKSHA
BHAWAN, LINK ROAD NO.3, TULSI NAGAR
(M.P.)
..... PETITIONERS
(BY SMT. JAHNAVI PANDIT - DEPUTY ADVOCATE GENERAL)
AND
MOHD. RAAJIK KHAN, S/O LATE MOHD. SHAAJID
KHAN, OCCUPATION UNSKILLED ASST. O/O EXECUTIVE
ENGINEER (LIGHT MACHINERY & ELECTRICITY
MECHANICAL), DIVISION NARSINGHPUR VILLAGE
GANGAI BAZAAR, POST BHEEMGARH COLONY,
DISTRICT SEONI (M.P.)
2
.... RESPONDENT
(BY SHRI ANOOP SAXENA - ADVOCATE)
---------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, Hon'ble Shri
Justice Vishal Mishra, passed the following:
ORDER
Assailing the order dated 09.07.2022 passed by the learned
Single Judge in allowing the Writ Petition No.7941 of 2021, the
respondent is in appeal.
2. It is the case of the writ petitioner that father of the petitioner was
working in the respondent/Department on the post of Dumper Operator
who died in harness on 03.09.2017. The petitioner applied for grant of
compassionate appointment in lieu of services rendered by his late
father. He was appointed on compassionate basis vide order dated
31.08.2020 with a condition that if in the character verification the
petitioner is found to be unbecoming of a Government servant, his
appointment will be liable to be cancelled. The character verification of
the petitioner was got done and the information from the police
department was received, wherein it was pointed out that the petitioner
was prosecuted for the offences under Section 354, 294, 323, 506, 34 of
Indian Penal Code and under Section 7/8 of the POCSO Act, 2012
registered at Crime No.215/15 at Police Station Kevlari District Seoni.
However, he was acquitted of the same, vide judgment of acquittal
dated 08.11.2019. The Authorities have passed the impugned order
cancelling the order of compassionate appointment of the petitioner
dated 26.03.2021.
3. It is argued that once the petitioner has already been acquitted
from all the charges levelled against him and especially the fact that he
has disclosed regarding the criminal case registered against him, the
order of cancellation of appointment of the petitioner could not have
been passed. The Authorities were well aware of the fact that the
criminal case of the petitioner was pending consideration; and he was
on bail in that case. Therefore, the appointment order was issued in
favour of the petitioner. Without granting any opportunity of hearing to
the petitioner, the Authorities have cancelled the appointment order of
the petitioner. Therefore, the petition was filed.
4. The Writ Court considering the fact that the petitioner has been
acquitted in the criminal case and placing reliance upon the judgment
passed by the Hon'ble Supreme Court in the case of Pawan Kumar Vs.
Union of India (Civil Appeal No.3574/2022) decided on 02.05.2022,
has allowed the writ petition.
5. Counsel appearing for the appellant contends that father of the
petitioner passed away on 03.09.2017. He was granted appointment on
the post on 31.08.2020 subject to certain conditions. The Condition
No.7 of the appointment order was relevant which says that in terms of
Clause 13.3 of the Policy, the appointment was granted on a condition
of character verification. It was clearly mentioned that in case the
petitioner is found to be unbecoming of a Government servant on
verification, then his appointment shall be cancelled. It is not a case of
suppression of fact or whether the petitioner has been honourably
acquitted or not, rather it is a case where the petitioner on verification
was found to be unbecoming of a Government servant. It is submitted
that the case law which has been relied upon by the Writ Court is
dealing with the question of suppression of material for granting of
false information regarding criminal case. Thus, this analogy is not
applicable to the case of the petitioner, rather the judgment of Avtar
Singh Vs. Union of India and others reported in (2016) 8 SCC 471 is
applicable to the case of the petitioner, wherein it is held that the
employer is having every right to consider the case of the candidate like
the petitioner for appointment to the post in question. The suitability of
the candidate is required to be seen whether he is entitled to be
appointed as a Government servant or not. The aforesaid aspect was
further considered by the Full Bench of this Court in the case of
Ashutosh Pawar Vs. High Court of M.P. reported in 2018 (2) MPLJ
419. Therefore, she has prayed for setting aside of the impugned order.
6. Counsel appearing for the respondent has opposed the
contentions and has supported the impugned order contending therein
that the appointment order of the petitioner was being issued knowing
well about the fact that the criminal case is pending. He was granted
appointment in lieu of the services rendered by his late father. It is
submitted that he has already been acquitted in the criminal case,
therefore, appointment of the petitioner on the said post was justified. It
is argued that the Writ Court has considered the latest judgment of the
Hon'ble Supreme Court in the case of Pawan Kumar (supra) and has
allowed the writ petition. The Writ Court has found that the petitioner's
acquittal was clean and the integrity could not have been doubted nor
the petitioner has incurred any kind of ineligibility for appointment to
the said post, therefore, quashed the order of cancellation of
appointment with a specific direction for reinstatement within a period
of 30 days. He has prayed for dismissal of the appeal.
7. Heard the learned counsel for the parties and perused the record.
8. From the perusal of the record, it is seen that the appointment of
the petitioner was granted on certain conditions. Condition No.7 of the
appointment order is relevant which reads as under :-
"eè;çns'k 'kklu lkekU; ç'kklu foHkkx ea=ky; Hkksiky ds
ifji= da- lha -3a [email protected]@[email protected] Hkksiky fnukad 29 flrEcj 2014 ds
df.Mdk 13 ds midf.Mdk 13-3 ds vuqlkj vuqdFkk fu;qfä bl 'krZ ds
lkFk nh tk jgh gS fd fu;qfä ds i'pkr ;fn pfj= lR;kiu ¼iqfyl
osfjfQds'ku½ esa ;g ik;k tkrk gS fd lacafèkr vH;kFkÊ@'kkldh; lsod
lsok esa j[ks tkus ;ksX; ugha gS] rks mls nh xbZ vuqdEik fu;qfä lekIr
dj nh tkosxhA""
9. From the aforesaid condition, it is apparently clear that the
petitioner was granted the conditional appointment subject to character
verification, wherein it was observed that if he is found unbecoming of
the Government servant then his appointment will be cancelled.
Admittedly, the criminal case was registered against the petitioner in the
year 2015 for the offence punishable under under Sections 354, 294,
323, 506, 34 of Indian Penal Code and under Section 7/8 of the POCSO
Act, 2012 registered at Crime No.215/15 at Police Station Kevlari
District Seoni. He was acquitted in the year 2019, owing to the fact that
the complainant has turned hostile in the matter. At the time of
consideration of appointment, character verification of the petitioner
was got done, wherein the report was submitted by the Authorities with
respect to criminal case of the petitioner.
10. The present case is not the case of suppression of any information
by the petitioner or whether the acquittal of the petitioner was a clean
acquittal. Rather, it is a case where the compassionate appointment was
granted to the petitioner conditionally. The character verification of the
petitioner was got done and it was found that the petitioner is found to
be unbecoming of Government servant. The law with respect to rights
of the employer for grant of appointment to the candidates who are
having criminal background and subsequent acquittal is apparently
clear by the three Judges Bench of the Hon'ble Supreme Court in the
case of Avtar Singh (supra) wherein in para 38, the Hon'ble Supreme
Court has held as under :-
"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".
11. The aforesaid guidelines framed by the Hon'ble Supreme Court
in the case of Avtar Singh (supra) make it clear that the employer is
having every right to consider the candidature of the candidate for
appointment having any criminal background. It is the right of the
employer to appoint more suitable candidate who is having no criminal
background. The aforesaid aspect of the case was further considered by
the Full Bench of this Court in the case of Ashutosh Pawar (supra)
wherein the Court has held as under :-
"32. ...... Decision of criminal case on the basis of
compromise or an acquittal cannot be treated that the
candidate possesses good character, which may make him
eligible, as the criminal proceedings are with the view to find
culpability of commission of offence wheras the appointment to
the civil post is in view of his suitability to the post. The test for
each of them is based upon different parameters and, therefore,
acquittal in a criminal case is not a certificate of good conduct
to a candidate. The competent authority has to take a decision
in respect of the suitability of candidate to discharge the
functions of a civil post and that mere acquittal in a criminal
case would not be sufficient to infer that the candidate
possesses good character."
12. From the analysis of the aforesaid judgments, it is clear that the
employer is having every right to consider the suitability of a candidate
even after his/her acquittal in a criminal case.
13. In view of the aforesaid, the Authorities have rightly found that
the petitioner is unbecoming of a Government servant. Therefore, the
impugned order dated 26.03.2021 in the writ petition was well reasoned
and justified order. The Writ Court has failed to appreciate the legal
proposition settled by the Hon'ble Supreme Court in the case of Avtar
Singh (supra) and thereafter by the Full Bench of this Court in the case
of Ashutosh Pawar (supra). Thus, the impugned order dated
09.07.2022 passed by the learned Single Judge in Writ Petition No.7941
of 2021 is unsustainable and is hereby set aside. The order dated
26.03.2021 passed by the respondents/Authorities cancelling the
appointment of the petitioner is upheld.
14. Accordingly, the writ appeal is allowed. No order as to costs.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
AM.
Digitally signed by ANINDYA
SUNDAR MUKHOPADHYAY
Date: 2022.11.02 18:20:57 +05'30'
