Rajesh Gujre vs The State Of Madhya Pradesh
2023 Latest Caselaw 8920 MP

                              1          W.P. No.8757 of 2017




IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

                 ON THE 16th OF JUNE, 2023
               WRIT PETITION No. 8757 of 2017
BETWEEN:-
RAJESH GUJRE S/O SHRI SANTU RAO, AGED
ABOUT    30     YEARS,    OCCUPATION:
UNEMPLOYED R/O GOYAL FACTORY ROAD,
INFRONT OF SAI MANDIR, VIVEKANAND
WARD, BHAGGUDHANA, DISTRICT - BETUL
(MADHYA PRADESH)


                                                .....PETITIONER
(BY SHRI ANKUR SHRIVASTAVA - ADVOCATE)

AND
1.   STATE OF MADHYA PRADESH THROUGH
     PRINCIPAL    SECRETARY,    HOME
     DEPARTMENT (POLICE) MANTRALAYA,
     VALLABH BHAWAN BHOPAL (MADHYA
     PRADESH)


2.   THE DIRECTOR GENERAL OF POLICE,
     POLICE            HEADQUARTER,
     JAHANGIRABAD, BHOPAL   (MADHYA
     PRADESH)


3.   INSPECTOR   GENERAL   OF   POLICE
     (SELECTION) POLICE HEADQUARTER,
     JAHANGIRABAD,   BHOPAL   (MADHYA
     PRADESH)


4.   INSPECTOR GENERAL OF POLICE, ZONE
     HOSHANGABAD, BHADBHADA ROAD,
     BHOPAL (MADHYA PRADESH)
                                       2            W.P. No.8757 of 2017




5.   THE SUPERINTENDENT OF POLICE,
     DISTRICT - HARDA (MADHYA PRADESH)


                                                      .....RESPONDENTS
(BY SHRI JUBIN PRASAD - PANEL LAWYER)

      This petition coming on for admission this day, the court passed the
following:
                                ORDER

This petition under Article 226 of the Constitution of India has been filed against the order dated 26/04/2017 passed by the Superintendent of Police, District Harda in case No.S.P./Harda/ Est./ 1312-A/17, by which the candidature of the petitioner on the post of Police Constable has been rejected.

2. The facts necessary for disposal of the present petition in short are that the respondents had invited applications for filling up the post of Constables in the Police Department. The advertisement was issued in the year 2013. The petitioner participated in the said recruitment process. Ultimately, the petitioner was selected for the post of Constable (GD). The petitioner was allotted unit at S.P. office Harda and the candidates were required to fill up the character verification form as well as to undergo medical verification by the medical Board. The petitioner submitted his joining and submitted his character verification form. In the character verification form, apart from other information, the petitioner also disclosed that he was prosecuted for offence under Sections 452, 323, 509, 506-B and 34 of IPC in criminal case No.360/2004 and by judgment dated 06/11/2012 passed by Judicial Magistrate, First Class, Betul, the petitioner was acquitted. The

petitioner, thereafter was directed to appear before the character verification Screening Committee and accordingly, he appeared before the Committee but no order was passed by the Screening Committee. The petitioner thereafter filed an application under RTI Act seeking decision of the Screening Committee but the same was declined, however the petitioner came to know that the Committee has declared the petitioner unfit for police services and accordingly, the petitioner submitted his representation to the Director General of Police. When the respondents did not decide the representation, the petitioner preferred W.P. No.15050/2014 which was decided by this Court by order dated 13/10/2014 and the respondents were directed to decide the representation within a period of four weeks from the date of receipt of certified copy of the order. Thereafter, the Superintendent of Police, Harda by letter dated 11/11/2014 informed the petitioner that the Screening Committee has found the petitioner unfit for services as he was prosecuted for one offence which involves moral turpitude and the acquittal of the petitioner was not a clean and honourable acquittal.

3. It is the case of the petitioner that the petitioner was falsely implicated and ultimately, he was acquitted. Therefore, he was granted honourable acquittal and thus the rejection of his candidature was bad in law. The petitioner thereafter filed a representation as well as W.P. No.18663/2014. This court by order dated 11/01/2017 directed the respondents to decide the representation in the light of the order passed by this Court. Screening Committee was again constituted and the representation filed by the petitioner was dismissed by order dated 26/04/2017. Thus, this petition has been filed.

4. It is submitted by the counsel for the petitioner that once the

petitioner was acquitted in a criminal case, therefore it would not amount to any disqualification for consideration of his candidature in Police Department. It is further submitted that while deciding the representation, the respondents have not considered the merits of the criminal cases as well as the antecedents of the petitioner and therefore, the impugned order suffers from infirmity. To buttress his contentions, the counsel for the petitioner has relied upon the judgment passed by the Supreme Court in the case of Mohammed Imran Vs. State of Maharashtra and Others decided on 12/10/2018 in Civil Appeal No.10571 of 2018 (arising out of SLP(C) No.6599 of 2018), the orders passed by the co-ordinate Bench of this Court in the case of Brij Kishor Sharma Vs. The State of Madhya Pradesh and others decided on 26/07/2019 in Writ Petition No.4020/2017 and in the case of Ratnesh Kumar Singh @ Ratnesh Vs. The State of Madhya Pradesh and others decided on 29/09/2022 in Writ Petition No.1203/2018.

5. Per contra, the counsel for the State has supported the order passed by the respondents. It is submitted that the petitioner was not awarded honourable acquittal but in fact he was acquitted on the basis of compromise, which cannot be said to be an honourable acquittal. Even otherwise, the employer is entitled to consider the suitability of the candidates and looking to the duties attached to the police Constable, the incumbent must have impeccable character. Since the petitioner had criminal background, therefore his candidature was rightly rejected.

6. Heard the learned counsel for the parties.

7. The petitioner has filed a copy of judgment dated 06/11/2012

passed by JMFC, Betul in Criminal Case No.1325/2006.

8. Dinesh (PW-1) has stated that in the year 2004, Rajesh had extended threat and thereafter 8-10 persons came to his house and he was beaten by belt and his wife and son were also beaten.

9. Kamni (PW-2) had alleged that the accused persons had extended threat but it was not specifically alleged that the petitioner or any other accused had given the said threat.

10. Further, the report allegedly lodged by the witnesses with regard to the aforesaid threat was not produced and in the FIR (Ex.P-1) there was no such mention of such incident. Furthermore, Kamni (PW-2) had alleged that Akhilesh had come with 8-10 persons. Akansha and Anil were not examined as witnesses.

11. In paragraph 18 of the judgment, the Trial Court has specifically stated that Dinesh (PW-1) and Kamni (PW-2) have not stated anything about the presence of the petitioner on the spot. Thus, it is clear that the witnesses had turned hostile on the question of identity. Under these circumstances, the petitioner was acquitted by giving the advantage of benefit of doubt. Thus, it is clear that in fact the petitioner was acquitted for the reason that the witnesses have turned hostile.

12. Now the moot question for consideration is as to whether such acquittal can be said to be an honourable acquittal thereby making the petitioner eligible for consideration of his case for appointment.

13. The Supreme Court in the case of State of Rajasthan and Others Vs. Love Kush Meena reported in (2021) 8 SCC 774 has held as under:-

"25. We may also notice this is a clear case where the endeavour was to settle the dispute, albeit not with the job in mind. This is obvious from the recital in the judgment of the trial court

that the compoundable offences were first compounded during trial but since the offence under Sections 302/34 IPC could not be compounded, the trial court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal."

14. Once the acquittal was not an honourable acquittal then in the light of 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, the employer can consider the implication of such criminal record.

15. The Supreme Court in the case of Avtar Singh (supra) 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."

(Underline Supplied)

16. 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 dated 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.''

17. 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 opportunity 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."

18. 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.

19. 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."

20. The Full Bench of this Court in the case of Ashutosh Pawar vs. State of M.P. reported in 2018 (2) MPJR 178 has held as under:-

"Decision of Criminal Court 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 whereas 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. Division Bench judgment of this Court in W.P.No.5887/2016 (Arvind Gurjar vs. State of

M.P.) is overruled. Another Division Bench judgment in W.A. No.367/2015 (Sandeep Pandey vs. State of M.P. and others) is also overruled. Jurisdiction of the High Court in a writ petition under Art. 226 of the Constitution of India is to examine the decision-making process than to act as Court of appeal to substitute its own decision. In appropriate case, if the Court finds decision-making process is arbitrary or illegal, the Court will direct the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own.

The expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity of a candidate who seeks appointment as Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any taint. The standard of conduct in the case of Judicial Officer is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well. The same must be in tune with the highest standard of propriety and probity."

21. This Court in the case of Anil Kumar Balmik vs. State of M.P. and others by order dated 02.09.2020 passed in W.P.No.23104/2019(s) has held has under:-

"Compounding of offence" is nothing but an undertaking by the victim to give up the prosecution of the offender.

22. This Court in the case of Bhagwat Singh Vs. State of M.P. and others decided on 08/12/2021 in Writ Petition No.26996/2021 has held as under:-

"8. Although it is the case of the petitioner that he had not suppressed the factum of registration of

criminal case and acquittal of the petitioner on the basis of compromise, but it appears that the screening committee after considering the case, found that the petitioner is not fit for police service.

9. By the impugned order, the candidature of the petitioner has been once again rejected on the ground that since the petitioner has been acquitted on the basis of compromise, therefore, it cannot be said to be an honourable acquittal. As already held by the Full Bench of this Court in the case of Ashutosh Pawar (supra), an acquittal on the basis of compromise cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with a view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. Further, the Supreme Court in the case of Pradeep Kumar (supra) has held that entering into the police service requires good character, integrity and clean antecedents.

10. Undisputely, it is for the employer to consider the suitability of a candidate. Eligibility and suitability are to different aspects and this Court cannot substitute its finding by holding that the candidate should be held to be suitable. This Court in the case of Anil Kumar Balmik (supra) has held as under:

"Suitability" cannot be confused with "Eligibility". A coordinate Bench of this Court in the case of Madhur Vs. State of M.P. by order dated 17-4-2018 passed in W.P. 21231 of 2017 has held 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 9 W.P.

No.21231/2017 by Calcutta High Court in 2013 SCC Online 22909 (All b. Ed. Degree Holders Welfare Association vs. State of West Bengal ). 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. In this view of the matter, when Competent Authority has examined the suitability in the teeth

of relevant enabling provision i.e. Rule 6 (3) of Rules of 1961, interference is totally unwarranted. While exercising the power under Article 226 of the Constitution of India cannot act as an Appellate Authority and cannot substitute its own findings.

The Supreme Court in the case of UPSC v. M. Sathiya Priya, reported in (2018) 15 SCC 796 has held as under :

18........It is the settled legal position that the courts have to show deference and consideration to the recommendations of an Expert Committee consisting of members with expertise in the field, if malice or arbitrariness in the Committee's decision is not forthcoming. The doctrine of fairness, evolved in administrative law, was not supposed to convert tribunals and courts into appellate authorities over the decision of experts. The constraints--

selfimposed, undoubtedly--of writ jurisdiction still remain. Ignoring them would lead to confusion and uncertainty. The jurisdiction may become rudderless.""

23. Thus, it is clear that it is for the employer to consider the suitability of a candidate. The suitability of a candidate is within the exclusive domain of the employer.

24. Furthermore, in the case of Pradeep Kumar (supra), the Supreme Court has held that for recruitment in the Department of Police, the aspirant must have an impeccable unblemished record and the aspirant must have good character, integrity and clean antecedents.

25. Since the petitioner was tried for an offence under Section 452 of

IPC and he was acquitted for the reason that the witnesses have turned hostile on the question of identity, which cannot be said to be an honourable acquittal, this Court is of the considered opinion that no case is made out for interfering with the decision taken by the screening committee.

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

(G.S. AHLUWALIA) JUDGE shubhankar Digitally signed by SHUBHANKAR MISHRA Date: 2023.06.21 19:31:44 +05'30'