Rajasthan High Court

Rajesh Kumar Son Of Shri Nawal ... vs The State Of Rajasthan on 13 July, 2021

Bench: Inderjeet Singh

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                   S.B. Civil Writ Petition No. 5607/2020

Rajesh Kumar Son Of Shri Nawal Singh, Aged About 37 Years,
Resident      Of     Opposite         New      Collectorate,           Patpara     Mohalla,
Bharatpur (Rajasthan)
                                                                            ----Petitioner
                                          Versus
1.      The State Of Rajasthan, Through The Secretary Cum
        Commissioner, Panchayati Raj Department, Government
        Secretariat, Jaipur.
2.      The Director, Elementary Education, Rajasthan, Bikaner.
3.      The        Chief     Executive         Officer,      Zila       Parishad,    Sawai
        Madhopur.
4.      The        Block      Development            Officer,          Panchayat    Samiti
        Khandar, District Sawai Madhopur.
                                                                         ----Respondents

For Petitioner(s) : Mr. Nripendra Sinsinwar. For Respondent(s) : Ms. Sanjana Shresth for Mr. C.L.

Saini, AAG

HON'BLE MR. JUSTICE INDERJEET SINGH

Order

13/07/2021

1. This writ petition has been filed by the petitioner with the

following prayer:-

i. Issue an appropriate writ, order or directions to quash and set-aside the order dated 30-08-2019 (Ann-11) issued by the respondents by which the respondents rejected the representation of the petitioner and denied him to allow to join the duties on the post of IIIrd Grade Teacher - English(L-2),(Non-TSP).

ii. By an appropriate writ, order or directions, the respondents be directed to give posting to the petitioner on the post of IIIrd Grade Teacher- English (L-2), (Non TSP) as per the appointment order dated 28-03-2018 (Ann-4) at the Government Higher Primary School, Dangarwada,

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Panchayat Samiti Khanmdar or any other suitable place.

iii. Issue such appropriate writ order of directions as may be deemed just and proper by this Hon'ble Court in the facts and circumstances of the case."

2. Brief facts of the case are that the petitioner applied for

appointment on the post of Teacher Grade-III pursuant to the

advertisement issued by the respondents and participated in the

examination held by the respondents and being successful, his

name found place in the result declared by the respondents.

However, the respondents denied appointment to the petitioner on

the ground of pendency of criminal cases against him. The

petitioner earlier filed a writ petition being S.B. Civil Writ Petition

No.7714/2018 wherein on 11.04.2018 the Co-ordinate Bench of

this Court passed the following order :-

"Heard.

Learned counsel for the petitioner submits that the petitioner even after having declared successful in the recruitment process for appointment to the post of 'Teacher Grade-III Level-II', vide order dated 28th March, 2018, is not allowed joining on the pretext of pendnecy of a criminal case.

It is further contended that the controversy raised in the instant writ application is no more res-integra in view of the law declared by the Apex Court of the land in the case of Avtar Singh Versus Union of India and others: 2016 (8) SCC 471, which has been referred to and relied upon by a Coordinate Bench of this Court in somewhat similar factual matrix in the case of Prayag Raj Gocher Versus Rajasthan Rajya Vidyut Prasaran Nigam Limited and another: S.B. Civil Writ Petition Number 2718 of 2016, decided on 21st April, 2017, observing thus:

"In the light of the orders passed in the case of Shobha Ram Meena (supra), wherein reliance was placed upon the case of Kamal Singh Meena Vs. Union of India & Others, reported as 2016 (3) W.L.C. (Raj.) 687 and in the case of Avtar Singh Vs. Union of India and Others, (Special Leave Petition No.20525/2011), reported as 2016 (8)

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SCC 471, the present petition is allowed and the respondents are directed to reconsider the case of the petitioner, in terms of the judgments of the Court in the case of Kamal Singh Meena Vs. Union of India & Ors. (supra) and of the Apex Court Avtar Singh Vs. Union of India & Ors. (supra). In the event, it is decided not to appoint the petitioner a reasoned and speaking order shall be passed by the respondents. However if the petitioner is to be appointed, an appropriate order in that regard shall also be passed. The entire exercise be completed within a period of three months from the date of presentation of a certified copy of this order."

Learned counsel for the petitioner submits that for the present; the petitioner would be satisfied, if the State-respondents are directed to consider and decide the representation of the petitioner in view backdrop of the law declared by the Apex Court of the land in the case of Avtar Singh (supra), within a time frame, which he is ready and willing to address within two weeks hereinafter.

In view of the limited prayer addressed; the instant writ proceedings are closed with a direction to the petitioner to address a comprehensive representation enclosing a copy of the order in the case of Avtar Singh (supra).

In case, a representation is so addressed within the aforesaid period, the State- respondents are directed to consider and decide the same by a reasoned and speaking order as expeditiously as possible in accordance with law. However, in no case later than four weeks from the date of receipt of the representation along with a certified copy of this order.

With the observations and directions, as indicated above, the writ application stands disposed off.

3. Pursuant to the above judgment passed by this Court, the

petitioner submitted a representation before the concerned

authorities for reconsideration of his case in the light of the

judgment passed by the Hon'ble Supreme Court in the matter of

Avtar Singh Vs. Union of India & Ors., reported in 2016(8) SCC

471. The said representation was duly considered and rejected by

the respondents vide order dated 30.08.2019.

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4. Counsel for the petitioner submits that four criminal cases were

registered against the petitioner which are as under :-

Sr.   Case No.               Party' name                Offences    Decision
No.                                                                 date
1.    Case No.12/2019        State of Rajasthan Under               19.11.2019
                             Vs. Rajesh Kumar Sections
                             @ Babli            341, 376,
                                                455, 327,
                                                323 & 201
                                                of IPC
2.    Case No.09/2019        State of Rajasthan Under       16.12.2019
                             Vs. Rajesh Kumar Sections
                             @ Babli & Anr.     307, 324,
                                                341, 323,
                                                34 & 452 of
                                                IPC
3.    Case No.298/2018       State of Rajasthan         Under      02.03.2020
                             Vs.                        Sections
                             Rajesh Kumar @             341, 323 &
                             Babli & Ors.               34 of IPC
4.    Case No.142A/2019 State of Rajasthan Under                    06.02.2020
                        Vs. Rajesh Kumar Sections
                        @ Babli            341, 323,
                                           452 & 458
                                           of IPC

5. Counsel further submits that in all the four above cases the

petitioner has been acquitted by the trial court giving him benefit

of doubt and once the petitioner has been acquitted in all the

criminal cases registered against him, the respondents are not

justified in denying appointment to the petitioner.

6. In support of the contentions, counsel for the petitioner

relied upon the judgment passed by the Division Bench of this

Court at Principal Seat, Jodhpur in the matter of State of

Rajasthan & Ors. Vs. Dinesh Singh Bithu (D.B. Spp. Appl. Writ

No.20/2020) decided on 10.03.2021 wherein para No.11 it has

been held as under:-

"11. As laid down by the Supreme Court, acquittal in a criminal case does not automatically entitle a candidate for appointment to the post and the employer has right to consider the antecedents of the candidate and decide whether he is suitable for

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appointment to the post. There cannot be any quarrel with the proposition that the acquittal or discharge by itself cannot lead to presumption that a person has been honourably acquitted/ completely exonerated. But, at the same time, if a person is acquitted of the charges for want of evidence, it would not necessarily lead to inference that the acquittal of the person by the Criminal Court of competent jurisdiction is not honourable."

7. Counsel appearing on behalf of the respondents submitted

that as many as four criminal cases were registered against the

petitioner, one of which is of committing rape with a girl and

taking into consideration the antecedents of the petitioner as well

as serious offence committed by the petitioner under section 376

IPC, the respondent employer is having every right to deny

appointment to such persons like petitioner, as such the

respondents have not committed any illegality in denying

appointment to the petitioner.

8. In support of the contentions, counsel for the respondent

relied upon the judgment passed by the Hon'ble Supreme Court in

the matter of Union Territory, Chandigarh Administration &

Ors. Vs. Pradeep Kumar & Anr. reported in (2018) 1

Supreme Court Cases 797 wherein paras No.13 & 17 it has

been held as under:-

"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

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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."

9. Counsel further relied upon the judgment passed by the

Hon'ble Supreme Court in the matter of The State of Rajasthan

& Ors. Vs. Love Kush Meena reported in AIR 2021 SC 1610

where in paras No.1, 24 to 29, it has been held as under:-

"1. The moot point which arises for consideration is whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302,323,341/34 of the Indian Penal Code [IPC] can create an opportunity for the respondent to join as a constable in the Rajasthan Police service.

24. 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 Section 302/34 IPC could not be compounded, the Trial Court continued and qua those offences the witnesses turned hostile. We

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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.

25. The judgment in Avtar Singh's case (supra) 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.

26. We may also note the submission of learned counsel for the respondent that as per para 38.3 in Avtar Singh's case (supra), the employer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that, in any case, the circular had come into force and as per the judgment in Avtar Singh's case (supra) para 38.4, it is the date of decision which is material and as on the date of decision dated 23.05.2017, the said circular was applicable.

27. We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However, such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate for appointment, despite the circular, the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court.

28. We are, thus, of the view that the impugned orders cannot be sustained and the appellants are well within their rights to have issued the order dated 23.05.2017.

29. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs."

10. Heard counsel for the parties and perused the record.

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11. This writ petition filed by the petitioner deserves to be

dismissed for the reasons; firstly the respondents rightly rejected

the claim of the petitioner seeking appointment on the subject

post looking to his criminal antecedents as the petitioner was

involved in as many as four criminal cases and he was acquitted

by the trial court only giving him the benefit of doubt; secondly

the employer has every right to deny appointment to such a

person who is involved in a serious offence like Section 376 IPC as

has been held by the Hon'ble Supreme Court in the matter of

Union Territory, Chandigarh Administration (supra); lastly in the