Madhya Pradesh High Court
Deepak Singh Gautam vs The State Of Madhya Pradesh on 17 October, 2023
Author: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 17 th OF OCTOBER, 2023
WRIT PETITION No. 1276 of 2022
BETWEEN:-
DEEPAK SINGH GAUTAM S/O LATE SHRI UMESH
PRATAP SINGH, AGED ABOUT 28 YEARS, H NO. B-1 13TH
BATTALION SAF SIKANDAR KAMPO LASHKAR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI D.P.SINGH- ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH ITS
PRINCIPAL SECRETARY HOME DEPARTMENT,
MANTRALAYA, GOVT. OF M.P., VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. THE DIRECTOR GENERAL OF POLICE POLICE
HEAD QUARTER S JAHANGEERABAD BHOPAL
(MADHYA PRADESH)
3. THE COMMANDANT 13TH BATTALION SPECIAL
ARMED FORCE GWALIOR (MADHYA PRADESH)
.....RESPONDENTS
(BY SMT. PADAMSHRI AGRAWAL- PANEL LAWYER FOR THE STATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
I.A.No.1400/2022, an application for amendment in the memo of writ
petition, is taken up.
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Signed by: MADHU On due consideration, the same is rejected.
SOODAN PRASAD
Signing time: 19-10-2023
10:23:32 AM 1.Heard on writ petition.
2.By way of present petition under Article 226 of the Constitution of
India the challenge is to the order dated 23.12.2020 passed by respondent No.3
by which the application of the petitioner for compassionate appointment on the
post of Constable was rejected on the ground that the Scrutiny Committee in its
meeting held on 27th November, 2020 found that against the petitioner two
offences; (1) vide crime No.366/17 under Sections 323, 294, 506, 34 of IPC
and (2) vide crime No.224/2018 registered under Sections 323, 294, 354, 34 of
IPC were registered and though the petitioner in the earlier offence registered in
the year 2017 was honourably acquitted, but since the second offence
registered in the year 2018 involved an offence of moral turpitude under Section
354 of IPC, therefore, in the light of decision of the Apex Court in the case of
Commissioner of Police, New Delhi & Another Vs. Mehar Singh, reported
i n AIR 2013 SC 2861 did not recommend the case of the petitioner for
appointment in the police services and accordingly the said application was
rejected.
3.Learned counsel for the petitioner has argued that the petitioner, a
qualified post-graduate having degree of B.Sc. and M.Sc. in Mathematics and
also having certificate of DCA and also is a qualified Stenographer and
Secretarial Assistant, had applied for compassionate appointment in place of his
father who was working under the control of respondent No.3 on the post of
Constable Tradesman who died on 2.11.2019. It was further argued that his
father has left liability of his mother and three younger sisters who are unmarried
and for discharging the liabilities of surviving members of the family, he had
applied for compassionate appointment. It was also argued that the application
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of the petitioner was supported by all the requisite documents which were sent
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SOODAN PRASAD
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for verification before an enquiry committee wherein while scrutiny it was found
that two offences vide crime No.366/17 under Sections 323, 294, 506, 34 of
IPC and vide crime No.224/2018 under Sections 323, 294, 354, 34 of IPC were
registered against the petitioner. The report of the committee was then
forwarded to the competent authority i.e. respondent No.3 who vide impugned
order dated 23.12.2020 has rejected the application for compassionate
appointment on the ground that since one of the offence registered vide crime
No.224/2018 against the petitioner was involving offence of moral turpitude i.e.
Section 354 of IPC and the acquittal of the petitioner was on account of victim
turning hostile, therefore, it cannot be said to be a clean or honourable acquittal,
and therefore, keeping in view the law laid down by the Apex Court in the case
of Mehar Singh (supra) the application of the petitioner was rejected which is
per se illegal, as the competent authority while rejecting the application did not
considered the involvement of the petitioner in the matter involving moral
turpitude and also did not considered seriousness of the allegations levelled
against him, as from very fact of the criminal record, it would be evident that
initially at the time of lodging of the FIR as well as at the time of recording of
statement under Section 161 of Cr.P.C. of the prosecutrix the name of the
petitioner was not mentioned and it was for the first time that name of the
petitioner surfaced while the statement of the victim was recorded before the
concerned Court.
4.It was further submitted that even in the statement recorded before the
Court she has not levelled any allegation which would have attracted the
provisions of Section 354 of IPC, rather some oral altercation with present
petitioner and the other co-accused persons was alleged.
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SOODAN PRASAD
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5.While placing reliance in the matter of Avtar Singh vs. Union of India
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and others, (2016) 8 SCC 471 specially referring to para 38.4.3 it is submitted
that if acquittal had already been recorded in a case involving moral turpitude of
offence of heinous/serious nature, on technical grounds 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 then may take
appropriate decision as to the continuance of the employee, but this fact has not
been considered by the competent authority.
6.Learned counsel has further placed reliance in the matter of Satish
Chandra Yadav Vs. State of Madhya Pradesh, reported in 2022 LiveLaw
(SC) 798 and has contended that though the acquittal in a criminal case would
not automatically entitle the petitioner for appointment to the post, but it would
be still required by the employer to consider the antecedents and examine
whether the candidate is suitable and fit for appointment to the post. But since
this aspect has also not been considered by the competent authority while
considering the application for compassionate appointment, therefore, the
impugned order is per se illegal.
7.Further reliance was placed in the matter of Arvind Yadav vs. State of
Madhya Pradesh & Ors. passed in W.P.No.2688 of 2019 wherein in similar
set of facts the Coordinate Bench of this Court had set aside the order denying
the appointment to the petitioner on the ground that acquittal in the offence
punishable under Section 354 of IPC was not a clean and honourable acquittal
and directed the respondents to reconsider the case of the petitioner and pass
order afresh. Thus, on the strength of above arguments, it was submitted that
the impugned order, Annexure P/1 dated 23.12.2020 being based on extraneous
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consideration requires to be set aside.
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SOODAN PRASAD
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8.Per contra, learned counsel for the State while supporting the impugned
order dated 23.12.2020 submitted that no illegality has been committed by the
competent authority in rejecting the application of the petitioner for
compassionate appointment in place of his father as at the time of scrutiny of
the application, the committee had found two cases registered against him and
one of the said offence was involving moral turpitude as allegations under
Section 354 of IPC were levelled against the petitioner therein. Learned counsel
for the State while placing reliance on the judgment of the Apex Court in the
case of Mehar Singh (supra) specially from para 28 onwards, submitted that
the police force is a disciplined force. It shoulders a great responsibility of
maintaining law and order and public order in the society. A candidate wishing
to join the police force must be a person of utmost rectitude. He must have
impeccable character and integrity. A person having criminal antecedents will
not fit in this category. Even if he is acquitted or discharged in the criminal case,
the acquittal or discharge order will have to be examined and it would be
required to see whether he has been completely exonerated in the case because
even a possibility of his taking to the life of crimes poses a threat to the
discipline of the police force. Therefore, it was contended that the claim of the
petitioner has rightly been considered and the impugned order has rightly been
passed. Thus, it was contended that no infirmity can be gathered from the
impugned order which would entail its quashing.
9.Heard learned counsel for the parties and perused the record.
10.The sum and substance of the case appears to be that a person can be
denied appointment on the ground that he was involved in criminal case, and
therefore, he cannot be appointed in a disciplined force which requires
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SOODAN PRASAD impeccable character and integrity. The Hon'ble Apex Court in the case of
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Avtar Singh (supra) has observed that the involvement of the candidate in a
criminal case may have adverse impact, the appointing authority would take a
decision after considering the seriousness of the case as to whether the person
can be appointed or not. The relevant extract of Avtar Singh (supra) where
the crux of the issue has been analyzed is reproduced herein below :-
"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 recourses
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.
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SOODAN PRASAD 38.4.3. If acquittal had already been recorded in a case
involving moral turpitude or offence of heinous/serious nature,
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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
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be considered in an objective manner while addressing the
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question of fitness. However, in such cases action cannot be
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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."
11.This Court in the matter of Braj Kishore Dhakad vs. The State of
Madhya Pradesh and others passed in W.P.No.6351 of 2018 on 21.4.2023
while relying on the judgment passed the Hon'ble Apex Court in the case of
Satish Chandra Yadav (supra) has held that even in case of acquittal in a
criminal case, appointment shall not be automatic, but it would be open to the
employer to consider the antecedents and thereafter examine whether the
candidate concerned is suitable and fit for appointment to the post or not. The
relevant extract of the judgment in the matter of Satish Chandra Yadav
(supra) on which the reliance was placed in Braj Kishore Dhakad (supra) is
summarized as follows :-
"a) Each case should be scrutinised thoroughly by the public
employer concerned, through its designated officials more so,
in the case of recruitment for the police force, who are under a
duty to maintain order, and tackle lawlessness, since their
ability to inspire public confidence is a bulwark to society as
security. [See Raj Kumar (supra)]
b) Even in a case where the employee has made declaration
truthfully and correctly of a concluded criminal case, the
employer still has the right to consider the antecedents, and
cannot be compelled to appoint the candidate. The acquittal in
a criminal case would not automatically entitle a candidate for
appointment to the post. It would be still open to the employer
to consider the antecedents and examine whether the candidate
concerned is suitable and fit for appointment to the post.
c) The suppression of material information and making a
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prosecution, conviction etc., has a clear bearing on the
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character, conduct and antecedents of the employee. If it is
found that the employee had suppressed or given false
information in regard to the matters having a bearing on his
fitness or suitability to the post, he can be terminated from
service.
d) The generalisations about the youth, career prospects and
age of the candidates leading to condonation of the offenders
conduct, should not enter the judicial verdict and should be
avoided.
e) The Court should inquire whether the Authority concerned
whose action is being challenged acted mala fide.
f) Is there any element of bias in the decision of the Authority ?
g) Whether the procedure of inquiry adopted by the Authority
concerned was fair and reasonable?"
12.In the aforesaid matter, the Hon'ble Apex Court has referred one of its
own decision in the matter of Mohd. Imran Vs. State of Maharashtra,
reported in 2019 (Volume 17) SCC 696 wherein the Hon'ble Apex Court has
observed as under :-
"5. 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 may 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, an albatross around the neck of the
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candidate, may not always constitute justice. Much will,
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6. That the expression `moral turpitude' is not capable of
precise definition was considered in Pawan Kumar vs. State of
Haryana and another, (1996) 4 SCC 17, opining :
"12. "Moral turpitude" is an expression which is used in
legal as also societal parlance to describe conduct
which is inherently base, vile, depraved or having any
connection showing depravity".
7. The appellant by dint of hard academic labour was
successful at the competitive examination held on 16.08.2009
and after viva voce was selected and recommended for
appointment by the Maharashtra Public Service Commission
on 14.10.2009.
In his attestation form, he had duly disclosed his prosecution
and acquittal. Mere disclosure in an appropriate case may not
be sufficient to hold for suitability in employment. Nonetheless
the nature of allegations and the conduct in the facts of a case
would certainly be a relevant factor. While others so
recommended came to be appointed, the selection of the
appellant was annulled on 04.06.2010 in view of the character
verification report of the police.
8. It is an undisputed fact that one Shri Sudhir Gulabrao Barde,
who had been acquitted on 24.11.2009 in Case No.3022 of
2007 under Sections 294, 504, 34, IPC, has been appointed.
We are not convinced, that in the facts and circumstances of the
present case, the appellant could be discriminated and denied
appointment arbitrarily when both the appointments were in
judicial service, by the same selection procedure, of persons
who faced criminal prosecutions and were acquitted. The
distinction sought to be drawn by the respondents, that the
former was not involved in a case of moral turpitude does not
leave us convinced. In Joginder Singh (supra), it was observed
as follows:
"25. Further, apart from a small dent in the name of this
criminal case in which he has been honourably
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SOODAN PRASAD indicate that the antecedents or the conduct of the
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10:23:32 AM Appellant was not up to the mark to appoint him to the
post".
9. In the present proceedings, on 23.03.2018, this Court had
called for a confidential report of the character verification
as also the antecedents of the appellant as on this date. The
report received reveals that except for the criminal case
under reference in which he has been acquitted, the appellant
has a clean record and there is no adverse material against
him to deny him the fruits of his academic labour in a
competitive selection for the post of a judicial officer. In our
opinion, no reasonable person on the basis of the materials
placed before us can come to the conclusion that the
antecedents and character of the appellant are such that he is
unfit to be appointed as a judicial officer. An alleged single
misadventure or misdemeanour of the present nature, if it can
be considered to be so, cannot be sufficient to deny
appointment to the appellant when he has on all other aspects
and parameters been found to be fit for appointment. The
Law is well settled in this regard in Avtar Singh vs. Union of
India and others, (2016) 8 SCC 471. If empanelment creates
no right to appointment, equally there can be no arbitrary
denial of appointment after empanelment.
10. In the entirety of the facts and circumstances of the case,
we are of the considered opinion that the consideration of the
candidature of the appellant and its rejection are afflicted by a
myopic vision, blurred by the spectacle of what has been
described as moral turpitude, reflecting inadequate
appreciation and application of facts also, as justice may
demand.
11. We, therefore, consider the present a fit case to set aside
the order dated 04.06.2010 and the impugned order dismissing
the writ petition, and direct the respondents to reconsider the
candidature of the appellant. Let such fresh consideration be
done and an appropriate decision be taken in light of the
present discussion, preferably within a maximum period of
eight weeks from the date of receipt and production of the copy
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of the present order. In order to avoid any future litigation on
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appointment, the appellant shall not be entitled to any other
reliefs".
13.From the impugned order, Annexure P/1 dated 23.12.2020 it can be
seen that the principles of law as laid down by the Apex Court in the case of
Avtar Singh & Satish Chandra Yadav (supra) were not considered and in a
very mechanical manner the application for compassionate appointment filed by
the petitioner was rejected. Also the competent authority though had placed
reliance in the matter of Mehar Singh (supra), but has not taken note of para
28 of the aforesaid order, wherein the Hon'ble Apex Court has observed as
under :-
"A candidate wishing to join the police force must be a person
of utmost rectitude. He must have impeccable character and
integrity. A person having criminal antecedents will not fit in
this category, even if he is acquitted or discharged in the
criminal case, that acquittal or discharge order will have to be
examined to see whether he has been completely exonerated in
the case because even a possibility of his taking to the life of
crimes poses a threat to the discipline of the police force. The
Standing Order, therefore, has entrusted the task of taking
decisions in these matters to the Screening Committee. The
decision of the Screening Committee must be taken as final
unless it is mala fide. Thus, this Court from the very basic
judgment on the issue have taken a view that the judgments of
acquittal are to be examined/scrutinized first and only
thereafter a decision can be taken by the authority as the fitness
of the candidate in the disciplined force."
14.Thus, this Court finds that the impugned order cannot be sustained
and the matter requires to be remanded back to the respondents/competent
authority to consider the case of the petitioner afresh keeping in view the
guidelines as laid down by the Apex Court in the case of Avtar Singh &
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Satish Chandra Yadav (supra) . Accordingly, order, Annexure P/1 dated
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SOODAN PRASAD
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23.12.2020 is hereby quashed and the petition is allowed to the above extent
and disposed of.
15.Let this exercise be carried out within a period of six months from the
date of receipt of certified copy of the order.
(MILIND RAMESH PHADKE)
JUDGE
ms/-
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SOODAN PRASAD
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