Madhya Pradesh High Court
Nitin Gautam vs State Of Madhya Pradesh on 27 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 27th OF MARCH, 2025
WRIT PETITION No. 4202 of 2013
NITIN GAUTAM
Versus
STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri B.P.Singh - Advocate for petitioner.
Shri G.K.Agrawal - Government Advocate for the State.
Shri Shivendra Singh Raghuvanshi - Advocate for respondents No.6 to
10.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking the following reliefs:-
"(i) That, this Hon'ble Court may kindly be pleased to allow this
petition and further be pleased to issue the appropriate writ
calling the record of the selection process from the respondents
for the post of Malaria Technical Supervisor.
(ii) That, impugned order Annexure P-1 dated 14.02.2013
appointing respondent No.6 to 10 as Malaria Technical
Supervisor and selection list Annexure P-2 to that extent may
kindly be declared as illegal and the same may kindly be
quashed.
(iii) That, a further direction may kindly be given to the
respondents to grant proper marks for work experience to the
petitioner and select and appoint the petitioner as Malaria
Technical Supervisor in place of respondent No.6 to 10.
(iv) Any other relief, which this Hon'ble Court may deem fit and
proper, mahy also be given to the petitioner along with costs.
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2. It is submitted by counsel for petitioner that an advertisement was
issued for recruitment to the post of Malaria Technical Supervisor. As per
the advertisement, the educational qualification for candidate was Graduation
in Science with Biology Subject. It was also mentioned that the persons
having the work experience shall be given preference. In the note appended
to the said advertisement, it was specifically mentioned that the appointment
shall be on contractual basis for a period of one year which can be extended
subject to good performance by the candidate. It was also required that the
candidate applying for Malaria Technical Supervisor must have a license to
drive two wheeler vehicle and preference shall be given to the resident of the
said districts. In note No.9, it was also mentioned that the candidate would be
required to appear for interview on his own expenses. By referring to the
final result, it is submitted by counsel for petitioner that although the
petitioner has secured maximum marks in written examination but he was
deliberately given less marks in interview, as a result he could not compete
with other candidates and was ultimately declared unsuccessful. It is
submitted that petitioner is aggrieved by the less marks given by the
Selection Committee in the interview.
3 . Heard learned counsel for petitioner.
4. Per contra, petition is vehemently opposed by counsel for the State.
By referring to the note sheet, which is at page 30 of the return, it is
submitted by Shri G.K.Agrawal that since the Selection Committee was
competent to develop its own procedure for selection therefore, the interview
was conducted.
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5. Shri S.S. Raghuvanshi has also supported the selection of the
respondents No.6 to 10. However it is submitted by Shri Raghuvanshi that
respondent No.6 has already left the job, therefore, this petition so far as it
relates to respondent No.6 is concerned, has rendered infuctuous.
6. In view of the aforesaid submissions, it is made clear that this
petition shall be considered only with regard to appointment of respondents
No.7, 8, 9 and 10.
7. Heard learned counsel for the parties.
The first question for consideration is as to whether the Selection
Committee was competent to develop its own procedure for making his
selection or not ?
8. The petitioner himself has filed the guidelines which also govern the
recruitment to the post of Malaria Technical Supervisor (MTS). The
guidelines pertaining to selection reads as under:-
"Malaria Technical Supervisor (MTS)
Selection:
Selection of the MTS will be done at the district level. A
selection committee will be formulated under the Chairmanship
of the District Collector with the CMO/DHO and
DVBDCO/DMO as members. The committee will develop its
own procedure of selection through interview/written
examination/multiple choice questions etc.
The vacancy would be widely advertised to get the best available
skills in the market.
In tribal areas, preference would be given to local candidates
who belong to ST category.
Training:
The MTS would be trained on the technical and supervisory
aspects of Malaria prevention and control. Modules for the
training will be developed. A 10 days induction training to be
imparted including extensive visits.
Three day annual reorientation training will also be provided to
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enhance the skills found to be specifically deficient."
9. Thus it is clear that Selection of MTS was to be done at a District
Level. A selection committee was to be constituted under the chairmanship
of the District Collector with the CMO/DHO and DVB DCO/BMO as
members. The committee was competent to develop its own procedure of
selection through interview/written examination/multiple choice questions
etc. In the advertisement itself, it was specifically mentioned that candidates
will be required to appear for interview on their own expenses and as per the
guidelines for recruitment to the post of Malaria Technical Supervisor, the
Selection Committee had full authority to develop its own procedure for
selection through interview/written examination/multiple choice questions
etc.
10. It is submitted by counsel for petitioner that since petitioner was
deliberately given less marks for interview, therefore his sum total was less
than that of respondents No.6 to 10 whereas respondents No.6 to 10 have
been awarded exorbitant marks with a solitary intention to oust the petitioner
from the selection process.
11. Considered the aforesaid submissions made by counsel for
petitioner.
12. It is well establish principle of law that in case if any allegation of
malafide or bias is made against a person, then that person is necessary party
and if the said person is not impleaded then question of malafide cannot be
considered.
13. The Supreme Court in the case of State of Bihar and another Vs.
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P.P. Sharma and another , reported in 1992 Supp (1) SCC 222 has held as
under :-
"55. It is a settled law that the person against whom mala fides or
bias was imputed should be impleaded eo nomine as a party
respondent to the proceedings and given an opportunity to meet
those allegations. In his/her absence no enquiry into those
allegations would be made. Otherwise it itself is violative of the
principles of natural justice as it amounts to condemning a
person without an opportunity. Admittedly, both R.K. Singh and
G.N. Sharma were not impleaded. On this ground alone the High
Court should have stopped enquiry into the allegation of mala
fides or bias alleged against them......."
1 4 . The Supreme Court in the case of Dr.J.N. Banavalikar Vs.
Municipal Corporation of Delhi and another, reported in AIR 1996 SC 326
has held as under:-
"21......Further, in the absence of impleadment of the junior
doctor who is alleged to have been favoured by the course of
action leading to removal of the appellant and the person who
had allegedly passed mala fide order in order to favour such
junior doctor, any contention of mala fide action in fact i.e.
'malice in fact' should not be countenanced by the Court......"
15. The Supreme Court in the case of All India State Bank Officers'
Federation and others Vs. Union of India and others, reported in JT 1996 (8)
S.C. 550 in para 22, has said where a person, who has passed the order and
against whom the plea of mala fide has been taken has not been impleaded,
the petitioner cannot be allowed to raise the allegations of mala fide. The
relevant observations of the Apex Court are reproduced as under : -
"22......the person against whom mala fides are alleged must be
made a party to the proceeding. Board of Directors of the Bank
sought to favour respondents 4 and 5 and, therefore, agreed to
the proposal put before it. Neither the Chairman nor the
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Directors, who were present in the said meeting, have been
impleaded as respondents. This being so the petitioners cannot be
allowed to raise the allegations of mala fide, which allegations,
in fact, are without merit."
Furthermore, the petitioner is alleging against the selection committee
which is a body consisting of multiple members. Even the selection
committee has not been made a party. It is very difficult to prove allegation
of malafide against a body. Since the marks were awarded by the selection
committee on the basis of performance of petitioner in interview and in
absence of any material as well as in absence of necessary parties, this Court
is not in a position to adjudicate as to whether the members of the selection
committee had deliberately awarded less marks to the petitioner or not ?
16. It is next contended by counsel for the petitioner that respondent
No.9 Shri Gaurav Bhargav had submitted a forged experience certificate and
inspite of that he was granted three marks for his past experience. It is further
submitted that if a candidate has submitted forged documents then that, by
itself, it is a serious matter requiring the rejection of his candidature.
17. It is submitted by Shri S.S. Raghuvanshi that the return filed by
respondents No.6 to 10 in W.P.4156/2013 has been adopted by them in the
present petition also. By referring to paragraph 7 of return filed in
W.P.No.4156/2013, it is submitted that respondent No.9 had submitted a
certificate which was issued with regard to volunteer services rendered by
him under the instructions of the Specialist, without there-being any written
appointment and payment.
18. Considered the experience certificate relied by the respondent No.9
Gaurav Bhargav which has been filed as Annexure P/9 as well as reply
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issued under the Right to Information Act.
19. The Supreme Court in the case of State of Rajasthan and Others
Vs. Chetan Jeff, reported in 2022 LiveLaw (SC) 483 has held as under :-
"6.2. The question is not whether the offences were trivial in
nature or not. The question is one of suppression of material fact
by the original writ petitioner in respect of his criminal
antecedents and making a false statement in the application
form. If in the beginning itself, he has suppressed the
material fact in respect to his criminal antecedents and in fact
made an incorrect statement, how can he be appointed as a
constable. How can he be trusted thereafter in future ? How it is
expected that thereafter he will perform his duty honestly and
with integrity? "
6.3 . Therefore, as such the authorities were justified in
rejecting the candidature of the respondent for the post of
constable.
6.4. At this stage the decision of this Court in the case of Daya
Shankar Yadav (supra) is required to be referred to. In paras 14
and 16, it is observed and held as under:
"14. Rule 14 of the Central Reserve Police Force Rules,
1955 relevant in this case relates to verification.
Clauses (a) and (b) of the said Rule are extracted below:
"14. Verification.--(a) As soon as a man is enrolled,
his character, antecedents, connections and age shall
be verified in accordance with the procedure
prescribed by the Central Government from time to time.
The verification roll shall be sent to the District Magistrate
or Deputy Commissioner of the District of which the recruit
is a resident.
(b) The verification roll shall be in CRP Form 25 and after
verification shall be attached to the character and
service roll of the member of the force concerned."
The purpose of seeking the said information is to ascertain
the character and antecedents of the candidate so as to
assess his suitability for the post. Therefore, the candidate
will have to answer the questions in these columns
truthfully and fully and any misrepresentation or
suppression or false statement therein, by itself would
demonstrate a conduct or character unbefitting for a
uniformed security service.
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16. Thus an employee on probation can be discharged from
service or a prospective employee may be refused
employment : (i) on the ground of unsatisfactory
antecedents and character, disclosed from his conviction
in a criminal case, or his involvement in a criminal
offence (even if he was acquitted on technical grounds or
by giving benefit of doubt) or other conduct (like
copying in examination) or rustication or suspension or
debarment from college, etc.; and (ii) on the ground of
suppression of material information or making false
statement in reply to queries relating to prosecution or
conviction for a criminal offence (even if he was ultimately
acquitted in the criminal case). This ground is distinct from
the ground of previous antecedents and character, as it
shows a current dubious conduct and absence of character
at the time of making the declaration, thereby making him
unsuitable for the post."
6.5 In State of A.P. v. B. Chinnam Naidu, (2005) 2 SCC 746 ,
this Court has observed that the object of requiring
information in the attestation form and the declaration
thereafter by the candidate is to ascertain and verify the
character and antecedents to judge his suitability to enter into or
continue in service. It is further observed that when a candidate
suppresses material information and/or gives false information,
he cannot claim any right for appointment or continuance in
service.
6.6 In Devendra Kumar v. State of Uttaranchal, (2013) 9 SCC
363, while joining the training, the employee was asked to
submit an affidavit giving certain information, particularly,
whether he had ever been involved in any criminal case. The
employee submitted an affidavit stating that he had never been
involved in any criminal case. The employee completed his
training satisfactorily and it was at this time that the employer in
pursuance of the process of character verification came to know
that the employee was in fact involved in a criminal case. It was
found that the final report in that case had been submitted by the
prosecution and accepted by the Judicial Magistrate concerned.
On the basis of the same, the employee was discharged abruptly
on the ground that since he was a temporary government servant,
he could be removed from service without holding an enquiry.
The said order was challenged by the employee by filing a writ
petition before a Single Judge of the High Court which was
dismissed. The Division Bench upheld that order, which was the
subject matter of appeal before this Court. Dismissing the appeal,
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this Court observed and held that the question is not whether the
employee is suitable for the post. The pendency of a criminal
case/proceeding is different from suppressing the information of
such pendency. The case pending against a person might not
involve moral turpitude but suppressing of this information
itself amounts to moral turpitude. It is further observed that the
information sought by the employer if not disclosed as required,
would definitely amount to suppression of material information
and in that eventuality, the service becomes liable to be
terminated, even if there had been no further trial or the person
concerned stood acquitted/discharged.
6.7 In the case of Jainendra Singh v. State of U.P., (2012) 8 SCC
748, in para 29.4, this Court has observed and held that "a
candidate having suppressed material information and/or
giving false information cannot claim right to continue in service
and the employer, having regard to the nature of employment as
well as other aspects, has the discretion to terminate his services.
In para 29.6, it is further observed that the person who
suppressed the material information and/or gives false
information cannot claim any right for appointment or
continuity in service. In para 29.7, it is observed and held
that "the standard expected of a person intended to serve in
uniformed service is quite distinct from other services and,
therefore, any deliberate statement or omission regarding a
vital information can be seriously viewed and the ultimate
decision of the appointing authority cannot be faulted.
6.8 In Daya Shankar Yadav v. Union of India, (2010) 14 SCC
103, this Court had an occasion to consider the purpose of
seeking the information with respect to antecedents. It is
observed and held that the purpose of seeking the
information with respect to antecedents is to ascertain the
character and antecedents of the candidate so as to assess his
suitability for the post. It is further observed that 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 lead to any of
the following consequences: (SCC pp. 11011, para 15)
"15. ... (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
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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 nondisclosure 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."
Thereafter, it is observed and held that an employee can
be discharged from service or a prospective
employee may be refused employment on the ground of
suppression of material information or making false
statement in reply to queries relating to prosecution or
conviction for a criminal offence (even if he was ultimately
acquitted in the criminal case).
6.9 In State of M.P. v. Abhijit Singh Pawar, (2018) 18
SCC 733, when the employee participated in the selection
process, he tendered an affidavit disclosing the pending
criminal case against him. The affidavit was filed on 22-12-2012.
According to the disclosure, a case registered in the year 2006
was pending on the date when the affidavit was tendered.
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However, within four days of filing such an affidavit, a
compromise was entered into between the original
complainant and the employee and an application for
compounding the offence was filed under Section 320 CrPC. The
employee came to be discharged in view of the deed of
compromise. That thereafter the employee was selected in the
examination and was called for medical examination.
However, around the same time, his character verification was
also undertaken and after due consideration of the character
verification report, his candidature was rejected. The employee
filed a writ petition before the High Court challenging rejection
of his candidature. The learned Single Judge of the
High Court of Madhya Pradesh allowed the said writ petition.
The judgment and order passed by the learned Single
Judge directing the State to appoint the employee came
to be confirmed by the Division Bench which led to appeal
before this Court. After considering a catena of decisions on the
point including the decision in Avtar Singh v. Union of
India, (2016) 8 SCC 471, this Court upheld the order of the State
rejecting the candidature of the employee by observing that as
held in Avtar Singh (supra) , 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.
6.10 After reproducing and/or reconsidering para 38.5 of the
decision in Avtar Singh (supra) , in Abhijit Singh Pawar
(supra), in para 13, this Court observed and held as under:
"13. In Avtar Singh [Avtar Singh v. Union of India, (2016)
8 SCC 471, though this Court was principally concerned
with the question as to nondisclosure 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."
6.11 Recently, in the case of Rajasthan Rajya Vidyut
Prasaran Nigam Limited v. Anil Kanwariya, (2021) 10
SCC 136 , this Court had an occasion to consider the
submission on behalf of an employee whose services were
terminated on the ground of filing a false declaration to the effect
that neither a criminal case is pending against him nor has he
been convicted by any Court of law, that subsequently he has
been granted the benefit of Section 12 of the Probation of
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Offenders Act and therefore his services ought not to have been
terminated. This Court has observed in paras 13 & 14 as under:
"13. Even otherwise, subsequently getting the benefit
of Section 12 of the 1958 Act shall not be helpful to the
respondent inasmuch as the question is about filing a false
declaration on 14-4-2015 that neither any criminal case is
pending against him nor has he been convicted by any court
of law, which was much prior to the order passed by the
learned Sessions Court granting the benefit of Section 12 of
the 1958 Act. As observed hereinabove, even in case of
subsequent acquittal, the employee once made a false
declaration and/or suppressed the material fact of
pending criminal case shall not be entitled to an
appointment as a matter of right.
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."
20. Respondent No.9 has submitted an experience certificate dated
25.04.2006 purportedly issued by CMHO, Shivpuri to the effect that the
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respondent No.9 has worked as a Dresser in District Hospital Shivpuri from
24.01.2006 to 24.04.2006. In reply to the application filed under the Right to
Information Act, it was informed by the concerning department that the
attendance register of the period on 24.01.2006 to 24.04.2006 does not
contain the signatures of Gaurav Bhargav. It was also mentioned that record
pertaining to services rendered by Gaurav Bhargav was also not available in
the office.
21. Accordingly, counsel for the State was directed to point out as to
whether the respondents No.1 to 5 have adjudicated the aforesaid objections
with regard to forged certificate submitted by Shri Gaurav Bhargav or not ?
22. By referring to the various note sheets which have been filed
alongwith the return, it is fairly submitted by counsel for the respondents
No.1 to 5 that there is no finding with regard to the objection of submission
of forged experience certificate submitted by Shri Gaurav Bhargav.
23. In view of the specific return filed by Shri Gaurav Bhargav in
W.P.No.4156/2013, it is clear that he has not worked as Dresser. An evasive
return has been filed by Gaurav Bhargav in W.P.No.4156/2013, thus it is
clear that he had merely claimed that he had worked as Volunteer under the
instructions of the Specialist without there being any written appointment.
How the CMHO or Specialist can allow any private person to work in a
District Hospital has not been explained either by counsel for the State or by
counsel for respondent No.9. Even if respondent No.9 was allowed to work
as volunteer then how he was allowed to work as a Dresser without there
being any record as the work of dresser is an important part of treating the
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wounds of patients. Further when the objection was raised, no decision was
taken by the respondents No.1 to 5 in that regard. Under these circumstances,
it is held that the respondent No.9 Gaurav Bhargav had filed forged
experience certificate on the basis of which three additional marks were
given to him.
24. It is really surprising that the respondent No.9 was granted three
additional marks on the ground that he is having an experience of 2 years and
10 months whereas even the certificate which has been filed by petitioner as
Annexure P/9 merely says that the respondent No.9 had worked only for a
period of three months i.e. 24.01.2006 to 24.4.2006. The respondent No.9
has also not claimed that he has worked somewhere else for a period of 2
years and 10 months. He has also not filed copy of any experience certificate
alongwith return. Therefore, it is clear that not only the experience certificate
relied upon by the respondents No.9 was forged but the selection committee
has also wrongly given three marks for having an experience of 2 years and
10 months.
25. Now the only question for consideration is as to whether this Court
should reassess the merit lists after deducting the three additional marks
which were granted to the respondent No.9 or whether the finding of forged
document by itself would make respondent No.9 ineligible to participate in
his selection process.
26. Playing fraud on the selection committee or filing the forged
documents is a serious matter which cannot be ignored. It is not a simple case
of a wrong award of three marks only on the basis of some genuine
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documents. Fraud vitiates everything. Therefore, instead of reducing three
marks from the total of respondent No.9 which was awarded to him while
preparing the merit list, this court is of the considered opinion that since the
respondents No.9 had filed a forged experience certificate, therefore his
candidature as well as selection is liable to be quashed. Accordingly,
selection of respondent No.9 Shri Gaurav Bhargav is hereby quashed and the
post held by Shri Gaurav Bhargav is hereby delcared vacant. Shri Gaurav
Bhargav will stop performing work as MTS with immediate effect.
27. Now the next question of consideration is as to whether
respondents should be allowed to reprepare the merit list on the basis of
marks obtained by candidates or not. Since one of the contention of counsel
for petitioner is that he was deliberately awarded less marks, therefore in the
fitness of things, this Court does not find it fit to direct the respondents to
award appointment to the petitioner on the post which was held by Shri
Gaurav Bhargav. Therefore, the post which was held by Shri Gaurav
Bhargav is declared as open for fresh recruitment.
28. Petition succeeds and is allowed to the extent indicated above .
(G. S. AHLUWALIA)
JUDGE
AK/-
