State Of Rajasthan vs Suryakant S/O Shri Dharamveer ...
2021 Latest Caselaw 7482 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                  D.B. Special Appeal Writ No. 780/2021

1.      State      Of     Rajasthan,          Through         Its   Secretary   Jail
        Department, Rajasthan Jail Department, Government Of
        Rajasthan Secretariat, Jaipur (Raj.)
2.      Director General Cum Inspector General, Jail, Rajasthan,
        Jaipur.
3.      Dy. Inspector General Jail, Range Jaipur (Raj.)
                                                                     ----Appellants
                                        Versus
Suryakant S/o Shri Dharamveer Singh, Aged About 23 Years,
Resident Of Village Bhogana, Post Sonkh, Tehsil Goverdhan,
District Mathura (U.p.).
                                                                    ----Respondent

For Appellant(s) : Ms. Charvi Patni on behalf of Dr. V.B. Sharma, AAG For Respondent(s) : Mr. Gajendra Singh Rathore

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE UMA SHANKER VYAS

Judgment

10/12/2021

This appeal is filed by the State Government to challenge the

judgment of the learned Single Judge dated 25.03.2021 allowing

the petition of the present respondent by setting aside an order

dated 18.10.2018 passed by the authority cancelling selection of

the petitioner to the post of Jail Guard. Brief facts are as under:-

The present respondent-original petitioner had applied for

the post in question which was advertised by the department on

29.10.2015. The last date for applying as per the advertisement

was 02.12.2015. The petitioner appeared in the selection process

and was duly selected. The medical examination of the petitioner

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was carried out on 14.06.2018 and appeared for document

verification pursuant to the call letter issued on 08.06.2018. The

petitioner was however not offered appointment. Instead, the

department passed order on 18.10.2018 cancelling his selection

making observations to the following effect:-

(i) A criminal case for offences punishable under Sections 354,

452 and 506 of IPC has been registered before the Court of the

Magistrate, Mathura in which final report has been submitted on

30.06.2016 which is under consideration before the Court.

(ii) The petitioner did not mention this incident in the character

verification form and thereby tried to conceal these facts.

The petitioner would point out that a criminal case was

lodged against him after he had filed his application for

appointment. He therefore had no occasion to disclose any such

event. He would also point out that the Magistrate had acquitted

him on 11.09.2018. On 18.10.2018 when the Department

cancelled the petitioner's selection this fact was not taken into

account. If the petitioner was given an opportunity of being heard,

he would have pointed this out to the authority.

The petitioner thereupon filed the above numbered petition

and challenged the cancellation of his selection. This petition was

allowed by the learned Single Judge by the impugned judgment.

Reliance was placed on the decision of the Supreme Court in the

case of Avtar Singh Vs. Union of India and Ors. reported in

(2016) 8 SCC 471. The learned Single Judge was of the opinion

that the acquittal of the petitioner was honorable acquittal and the

petitioner was therefore entitled to the reliefs claimed. This

judgment the Government has challenged in this appeal.

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Appearing for the appellants learned counsel Ms. Charvi

Patni contended that the learned Single Judge committed a

serious error in setting aside the order of the competent authority

which was passed after due consideration. The petitioner had

applied for a post in Police department. The acquittal was not a

clean acquittal. It was based on the witnesses turning hostile. It

was contended that the Supreme Court in number of cases has

held that under such circumstances what would be the effect of

the acquittal of a candidate should be left to be judged by the

competent authority.

On the other hand, learned counsel for the original petitioner

opposed the present appeal contending that the learned Single

Judge has given cogent reasons. The petitioner was acquitted.

This aspect has never been examined by the competent authority.

The petitioner is wrongly blamed for non-disclosure of relevant

facts. The appeal may be dismissed.

What would be the effect of acquittal of a candidate who

seeks Government appointment, must depend on various

circumstances. We are acutely aware of the judicial trend

suggesting that such consideration should ordinarily be left to the

employer. Particularly when we are dealing with selection and

appointment to a post in disciplined force like Police department,

mere acquittal would not automatically enable a candidate to

claim appointment by way of right. The decision of Supreme Court

in case of Avtar Singh (supra) has gone at considerable length

on various aspects and laid down following propositions:-

38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of the aforesaid discussion, we summarise our conclusion thus:

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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 or required information.

38.2. While passing order of termination of 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 taken 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 pretty offece 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

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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."

There are several subsequent judgments which lay

considerable stress on the discretion being vested in the

appointing authority to consider the effect of acquittal of a

candidate in a criminal case. However, such discretion has to be

exercised with proper care and after taking into consideration all

relevant aspects of the matter.

In the present case the departmental authority has taken

into consideration two irrelevant aspects of the matter and

therefore came to a wrong conclusion. We have noted that two

reasons which were cited for cancelling the selection of the

petitioner. First reason was that a criminal case was pending

before the Magisterial Court. It was a case where according to the

authority police had filed final report which was under

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consideration by the Magistrate. This order was passed on

18.10.2018 and which ignored the important development namely

that on 11.09.2018 the Magistrate had by a judgment acquitted

the petitioner and the co-accused. Second reason cited by the

authority for cancellation was that the petitioner did not disclose

pendency of a criminal case. As noted, the last date for filing the

application for selection was 02.12.2015. FIR was filed only on

29.04.2016 in relation to an incident which allegedly took place on

19.03.2016. The petitioner had therefore no occasion to make any

such disclosure in the application form itself. The department

however relies on a list of documents to be produced after the

selection is over and the petitioner is called for document

verification. This contains the requirement of producing character

verification form by two respectable members of the community.

This clause does not specifically require a candidate to make a

disclosure about the criminal case whether it is pending or

disposed of. To expect a candidate to read such a requirement in

this declaration therefore is not proper. If there was a clear

requirement of declaration of any subsequent event after filing of

the application for appointment the same had to be spelt out and

if so done, the department could have blamed the petitioner for

non-disclosure of material facts but not otherwise. Had the

department heard the petitioner before cancelling the selection,

these issues could have been thrashed out.

Even otherwise we have perused the materials on record in

connection with the criminal case against the petitioner. The

record would suggest that the husband of the lady with whom the

petitioner and other accused had allegedly misbehaved, had filed a

complaint before the Magistrate. The Magistrate had called for

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investigation under Section 156 (3) of Cr.P.C. The police had

submitted a negative report which was opposed by the

complainant. The Magistrate had thereupon conducted the trial in

which on the basis of evidence, had acquitted the accused. It is

true that such acquittal is based on the important witnesses

turning virtually hostile. To the extent the learned Single Judge

treats this judgment as clean acquittal we may have some

reservation. However, the overall material on record would

suggest that at all stages the effort of the complainant to establish

any semblance of allegations against the petitioner and other co-

accused had not been successful. As noted, initially even the

investigating agency had found that no offence is established.

Under the circumstances to deny the petitioner the benefit of his

selection only on the ground that he was once involved in a

criminal case would be wholly arbitrary.

In the result the appeal is dismissed.

                                    (UMA SHANKER VYAS),J                                                  (AKIL KURESHI),CJ

                                   Kamlesh Kumar/N.Gandhi/2









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