Bahadur vs The State Of Madhya Pradesh
2023 Latest Caselaw 17770 MP

                          1                    W.P.No.23193/2018



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
              ON THE 26th OF OCTOBER, 2023
               WRIT PETITION No. 23193 of 2018

BETWEEN:-

BAHADUR S/O SHRI DEVIDAS, AGED ABOUT 27
YEARS, OCCUPATION: NILL R/O 263 NEAR
GOHLARI MATA CHOWK, KHANDWA DISTRICT
KHANDWA (MADHYA PRADESH)
                                                 .....PETITIONER

(BY SHRI AJAY SEN - ADVOCATE)

AND

1.    THE STATE OF MADHYA PRADESH THR.
      PRINCIPAL    SECRETARY     HOME
      DEPARTMENT    VALLABH   BHAWAN,
      BHOPAL (MADHYA PRADESH)


2.    THE    SECRETARY    PROFESSIONAL
      EXAMINATION BOARD CHAYAN BHAWAN,
      MAIN ROAD NO. 1, CHINAR PARK (E)
      (MADHYA PRADESH)


3.    THE DIRECTOR GENERAL OF POLICE
      POLICE   HEAD    QUARTER BHOPAL
      (MADHYA PRADESH)


4.    ADDITIONAL INSPECTOR GENERAL OF
      POLICE (CHAYAN/ BHARTI) POLICE HEAD
      QUARTER BHOPAL (MADHYA PRADESH)


5.    THE   SUPERINTENDENT      OF   POLICE,
                               2                        W.P.No.23193/2018



     BURHANPUR,   DISTRICT           BURHANPUR
     (MADHYA PRADESH)
                                                      .....RESPONDENTS

(BY SHRI GAJENDRA PARASHAR - PANEL LAWYER)

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

This petition under Article 226 of Constitution of India has been filed seeking following reliefs:-

"(i) It is, therefore, prayed that this Hon'ble court may kindly be pleased to quash the impugned order dated 31.08.2018 contained in Annexure P/4.

(ii) It is, therefore, prayed that this Hon'ble Court may kindly be pleased to direct the respondents to appoint the petitioner on the post of Constable at Burhanpur District.

(iii) Any other relief as deemed fit and proper in the circumstances of his case, along with the cost of this writ petition be also awarded."

2. It is the case of petitioner that in the year, 2017 Constable Recruitment Test was conducted for recruitment to the post of Police Constable. The petitioner as well as other candidates applied for the said post. The petitioner participated in the recruitment process and he successfully passed all the tests and S.P., District Burhanpur Unit was allotted to him.

3. Now, by the impugned order dated 31.08.2018, respondent No.5/Superintendent of Police, Burhanpur has issued the impugned

order thereby informing the petitioner that he is ineligible for the post of Constable for the reason that petitioner was tried in a criminal case for offence under Section 363, 376 and 506 (b) of IPC. However, it is the case of petitioner that since petitioner was awarded clean acquittal and therefore the trial of petitioner will not have any adverse impact on his selection.

4. Per contra, it is submitted by counsel for State that petitioner has filed a copy of the judgment passed by the Court of IInd Additional Sessions Judge, Khandwa in Special Session Trial No.101/2014, from which it is clear that the prosecutrix had turned hostile and although she had admitted that when she came out of her house in the night for answering the call of nature, the petitioner had also reached there but thereafter she stated that nothing was done by the petitioner and since, her father had seen the prosecutrix while she was talking to the petitioner, therefore a dispute had arisen. However, she had admitted her signature in the FIR but she denied the allegation of kidnapping or rape. Under these circumstances, it cannot be said that the petitioner had got clean and honorable acquittal.

5. Considered the submissions made by the counsel for parties.

6. Before considering the facts of the case, this Court would like to consider the law governing the field.

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

"24. Examining the controversy in the present case in the conspectus of the aforesaid legal

position, what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused. No doubt, in that facts of the present case, the person who ran the tractor over the deceased lady was one of the other co-accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co-accused including the respondent.

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.

26. The judgment in Avtar Singh case [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit

of reasonable doubt, that cannot make the candidate eligible."

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

9. 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."

10. 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."

11. 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."

12. 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."

13. 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."

14. 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.

15. 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.""

16. Recently, the Supreme Court in the case of State of Madhya Pradesh and Others Vs. Bhupendra Yadav decided on 20th September, 2023 in SLP(Civil) No.27301/2018 has held as under:

"10. As can be discerned from the above decision, an employer has the discretion to terminate or condone an omission in the disclosure made by a candidate. While doing so, the employer must act with prudence, keep in mind the nature of the post and the duties required to be discharged. Higher the post, more stringent ought to be the standards to be applied.

Even if a truthful disclosure has been made, the

employer is well within its right to examine the fitness of a candidate and in a concluded criminal case, keep in mind the nature of the offence and verify whether the acquittal is honourable or benefit has been extended on technical reasons. If the employer arrives at a conclusion that the incumbent is of a suspect character or unfit for the post, he may not be appointed or continued in service.

11. In Daya Shankar Yadav. v. Union of India and Others [(2010) 14 SCC 103], where this Court was called upon to examine the purpose of seeking information with respect to the antecedents of a candidate, it was observed that the same were essential so as to ascertain the suitability for the post and the disclosures made in the verification form relating to the character and antecedents of the candidate can result in the following consequences:

"15. When an employee or a prospective employee declares in a verification form, answers to the queries relating to character and antecedents, the verification thereof can therefore lead to any of the following consequences:

(a) If the declarant has answered the questions in the affirmative and furnished the details of any criminal case (wherein he was convicted or acquitted by giving benefit of doubt for want of evidence), the employer may refuse to offer him employment (or if already employed on probation, discharge him from service), if he is found to be unfit having regard to the nature and gravity of the

offence/crime in which he was involved.

(b) On the other hand, if the employer finds that the criminal case disclosed by the declarant related to offences which were technical, or of a nature that would not affect the declarant's fitness for employment, or where the declarant had been honourably acquitted and exonerated, the employer may ignore the fact that the declarant had been prosecuted in a criminal case and proceed to appoint him or continue him in employment.

(c) Where the declarant has answered the questions in the negative and on verification it is found that the answers were false, the employer may refuse to employ the declarant (or discharge him, if already employed), even if the declarant had been cleared of the charges or is acquitted. This is because when there is suppression or non-disclosure of material information bearing on his character, that itself becomes a reason for not employing the declarant.

(d) Where the attestation form or verification form does not contain proper or adequate queries requiring the declarant to disclose his involvement in any criminal proceedings, or where the candidate was unaware of

initiation of criminal proceedings when he gave the declarations in the verification roll/attestation form, then the candidate cannot be found fault with, for not furnishing the relevant information. But if the employer by other means (say police verification or complaints, etc.) learns about the involvement of the declarant, the employer can have recourse to courses (a) or (b) above."

(emphasis added)

12. In State of Madhya Pradesh and Others v. Abhijit Singh Pawar [(2018) 18 SCC 733 ] where the State Government had invited applications for filling up the post of Subedars, Platoon Commanders and Inspectors of Police, the respondent candidate who participated in the selection process, filed an affidavit disclosing pendency of a criminal case against him which was subsequently compounded on a compromise arrived at between him and the complainant under Section 320 of the Code of Criminal Procedure16. Though the respondent was selected on clearing the written examination his candidature was rejected. The reasons offered for declining him an appointment were that the candidate selected is required to maintain law and order of the State and it was considered improper to appoint a person having a criminal record. The said decision was overturned by the learned Single Judge of the High Court and the view taken was affirmed by the Division Bench. When the State Government approached this Court in appeal, citing the decisions in Mehar Singh (supra); R.K. Kapur v. Union of Indian and Another [AIR 1964 SC 787]; State of Madhya

Pradesh and Others v. Parvez Khan [(2015) 2 SCC 591]; Pradeep Kumar (supra); and Avatar Singh (supra), the following observations were made :-

13. In Avtar Singh [Avtar Singh v. Union of India, (2016) 8 SCC 471 : (2016) 2 SCC (L&S) 425] , though this Court was principally concerned with the question as to non-disclosure or wrong disclosure of information, it was observed in para 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.

xxx xxx xxx

16. We must observe at this stage that there is nothing on record to suggest that the decision taken by the authorities concerned 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 [Abhijit Singh Pawar v. State of M.P., WP No. 9412 of 2013, order dated 31-7- 2014 (MP)] as well as by

the Division Bench [State of M.P. v. Abhijit Singh Pawar, 2015 SCC OnLine MP 7517] and dismiss Writ Petition No. 9412 of 2013 preferred by the respondent. No costs.

13. In Rajasthan Rajya Vidhut Prasaran Nigam Limited and Another v. Anil Kanwaria [(2021) 10 SCC 136], where the employer had invited applications for the post of a Technical Helper and on qualifying for the said post, the respondent therein was appointed as a probationer trainee, in the course of his police verification which was a pre-condition for confirming him to the post, it had transpired that he had been convicted by the trial Court for offences under Sections 323 and 341 of the IPC but was extended benefit under the Probation of Offenders Act, 1958 and released on good conduct. This Court observed that at the time of submitting an application for appointment, the respondent had already suffered a conviction by the competent Court which fact was withheld by him and he had filed a false declaration. These facts emerged only after receiving the police verification report. After distilling the law on appointments obtained by fraud or misrepresentation/by suppression of material facts, this Court proceeded to quash and set aside the order passed by the learned Single Judge and upheld the order passed by the Division Bench of the High Court, directing reinstatement of the respondent - employee and held that said decision was unsustainable in view of the fact that the employee had not disclosed/suppressed material facts and had filed a false declaration.

14. In the captioned case, this Court expressed a view that even where there was a subsequent

acquittal, the employee having furnished false information/indulged in suppression of material fact of a pending criminal case, cannot claim appointment as a matter of right. Following are the observations made regarding the credibility of such an employee from the perspective of the employer:

"14. The issue/question may be considered from another angle, from the employer's point of view. The question is not about whether an employee was involved in a dispute of trivial nature and whether he has been subsequently acquitted or not. The question is about the credibility and/or trustworthiness of such an employee who at the initial stage of the employment i.e. while submitting the declaration/ verification and/or applying for a post made false declaration and/or not disclosing and/or suppressing material fact of having involved in a criminal case. If the correct facts would have been disclosed, the employer might not have appointed him. Then the question is of trust. Therefore, in such a situation, where the employer feels that an employee who at the initial stage itself has made a false statement and/or not disclosed the material facts and/or suppressed the material facts and therefore he cannot be continued in service because such an employee cannot be relied upon even in future, the

employer cannot be forced to continue such an employee. The choice/option whether to continue or not to continue such an employee always must be given to the employer. At the cost of repetition, it is observed and as observed hereinabove in catena of decision such an employee cannot claim the appointment and/or continue to be in service as a matter of right."

15. On applying the law expounded by this Court in a series of decisions to the facts of the instant case, we find that the Division Bench of the High Court has dismissed the appeal1 preferred by the appellant - State Government and set aside the order passed by the learned Single Judge who had upheld the order passed by the Competent Authority8, terminating the services of the respondent on the ground that he was candid enough to make a disclosure in his verification form stating that he had been chargesheeted in a criminal case3 wherein he was later on acquitted and there was no other criminal case pending against him at the relevant time.

16. We are, however, unable to concur with the aforesaid view. Even though the respondent had truthfully declared that he was involved in a criminal case which was decided by the trial Court vide judgement 26th October, 2015, on perusing the facts of the said case as noted hereinabove and the observations made in the judgement, quite clearly, this was not a case of clean acquittal. It is evident from the facts narrated that after the chargesheet was filed, the respondent had arrived at a compromise with the complainant and filed an application

under Section 320 of the CrPC, based on which the offence under Section 341 IPC was compounded. As for the remaining offences for which the respondent was charged i.e. Section 354(D) of the IPC and Section 11 (D)/12 of the POCSO Act, they were non compoundable and therefore, the matter was taken to trial. The respondent was acquitted by the trial Court primarily on account of the fact that the complainant did not support the case set up by the prosecution and the other prosecution witnesses had turned hostile. In such circumstances, the respondent's plea that he had been given a clean acquittal in the criminal case, is found to be devoid of merits.

17. This is a classic example of the situation contemplated in para 38.4.3 of Avatar Singh (supra) where the charges framed against the respondent herein involved moral turpitude and though he was acquitted on the prosecution witnesses having turned hostile, but given the facts and circumstances of the case which led to his acquittal, we are of the view that the appellant

- State Government was well within its right to exercise its discretion against the respondent and terminate his services on the ground that he was unfit for appointment in the police department. Here was a case where the complainant had reneged from the statement made to the police in view of a settlement arrived at with the respondent. It is noteworthy that the incident, subject matter of the criminal case3 had occurred on 14th February, 2015, and judgement was pronounced by the trial Court on 26th October, 2015. In the very next year, when the appellant - State Government invited applications for appointment to the post of Constable, the respondent had submitted his application. Even

though this is a case of candid disclosure of the criminal case3 on the part of the respondent, which had culminated in an acquittal, but having regard to the fact that the prosecution could not succeed in proving the case against the respondent for the reasons noted hereinabove and further, being mindful of the fact that the case involved moral turpitude and the respondent was charged with non-compoundable offences of a serious nature, we are of the firm view that the judgment of the trial Court cannot be treated as a clean acquittal.

18. The aforesaid aspects were rightly factored in by the appellant - State Government while issuing the communication dated 24th August, 20178 and declaring that the respondent was unfit for appointment to the said post. The yardstick to be applied in cases where the appointment sought relates to a Law Enforcement Agency, ought to be much more stringent than those applied to a routine vacancy. One must be mindful of the fact that once appointed to such a post, a responsibility would be cast on the respondent of maintaining law and order in the society, enforcing the law, dealing with arms and ammunitions, apprehending suspected criminals and protecting the life and property of the public at large. Therefore, the standard of rectitude to be applied to any person seeking appointment in a Law Enforcement Agency must always be higher and more rigourous for the simple reason that possession of a higher moral conduct is one of the basic requirements for appointment to a post as sensitive as that in the police service.

19. We are, therefore, of the opinion that mere acquittal of the respondent in the criminal case3 would not automatically entitle him to being declared fit for appointment to the subject post.

The appellant-State Government has judiciously exercised its discretion after taking note of all the relevant factors relating to the antecedents of the respondent. In such a case, even one criminal case faced by the respondent in which he was ultimately acquitted, apparently on the basis of being extended benefit of doubt, can make him unsuitable for appointment to the post of a Constable. The said decision taken by the appellant-State Government is not tainted by any malafides or arbitrariness for the High Court to have interfered therewith. As a result, the judgement dated 17th November, 2017, passed by the learned Single Judge is upheld while quashing and setting aside the impugned judgment dated 24th January, 2018, passed by the Division Bench of the High Court. The appeal is allowed. Parties are left to bear their own costs."

17. If the facts of the present case are considered in the light of the law laid down by the Supreme Court in the above mentioned cases, then it is clear that the petitioner was prosecuted for offence under Sections 363, 376 (2) (i) of IPC and under Section 3/4 of Protection of Children from Sexual Offences Act. The allegations against the petitioner was that on 16.06.2014, prosecutrix had gone to attend the marriage of the Daughter of Sukhlal. At about 11:30 in the night, when she came out of her house to answer the call of nature, petitioner came there and under a threat to her life he kidnapped her and took her towards the Well of Shivram where he forcibly committed rape on her and detained her in the forest for the whole night. On the next day, he brought her to Khalwa by Bus and thereafter went away. From Khalwa, she went to the house of her sister Neeta. On Thursday, she

was taken to her house by her uncle where she narrated the entire incident to her mother and accordingly, FIR was lodged. Pubic hair, vaginal slide and underwear etc. of the prosecutrix were seized. However, from the judgment, it is clear that the prosecutrix had turned hostile on the question of kidnapping and her rape.

18. Thus, it is clear that the acquittal of petitioner was not honorable and clean. It is well established principle of law that even in the case of acquittal, the employer can always consider the suitability of the candidate. For recruitment to the Police Force, a person of utmost integrity, honesty and sincerity is required.

19. Accordingly, this Court is of the considered opinion that in view of the serious nature of allegations, which were made against petitioner coupled with the fact that he got acquittal only because of the fact that the prosecutrix turned hostile on the question of kidnapping and rape. If the evidence given by the prosecutrix in the Court is considered, then it is clear that she had admitted that in the night when she came out of her house to answer the call of nature, the accused met her. It is really surprising that how the petitioner was knowing that prosecutrix is likely to come out of her house in the wee hours.

20. Be that whatever it may be.

21. Once, the acquittal of petitioner is not honorable and clean and his acquittal is only on account of the fact that the prosecutrix did not support the prosecution case regarding her kidnapping and rape coupled with the fact that the prosecution also failed to produce the medical and scientific evidence to prove the culpability of the

petitioner coupled with the fact that the person seeking appointment in the Police Force must be of an impacable character with utmost integrity, sincerity and honesty, this Court is of the considered opinion that no case is made out warranting interference. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE

vinay* VINAY KUMAR BURMAN 2023.10.30 10:28:21 +05'30'