Rajasthan High Court - Jodhpur
Bhawani Shankar Moorh vs State Of Rajasthan on 9 February, 2022
Bench: Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5041/2019
Bhawani Shankar Moorh S/o Sh. Prabhu Dan Moorh, Aged About
22 Years, Resident Of New Karni Nagar, Police Quarter B-22,
Bikaner, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary, Home
Department, (Group-I) Government Of Rajasthan,
Secretariat, Jaipur.
2. The Director General Of Police, Hq, Jaipur.
3. The Inspector General Of Police (Recruitment), Rajasthan,
Jaipur.
4. Commandant, 1St Battalion Rac, Jodhpur.
----Respondents
For Petitioner(s) : Mr. Pravin Vyas.
For Respondent(s) : Mr. Sandeep Shah, AAG.
HON'BLE MS. JUSTICE REKHA BORANA
Order
09/02/2022
The brief facts of the case are as under:
The petitioner applied for the post of Constable in pursuance
to the notification dated 25.05.2018 issued by the respondent
Department. After having successfully passed the written
examination as well as the physical verification test and the
physical standard test, the petitioner was awaiting his
appointment order but vide communication dated 18.12.2018
(Annex.-3), it was informed that his candidature has been rejected
on the ground that a criminal case was pending against him which
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fact was verified during the police verification process. Aggrieved
against the said rejection, the present writ petition has been filed.
Learned counsel for the petitioner has submitted that the
criminal case registered against him was of the year 2011 at
which time he was a juvenile and therefore, the trial for the said
offence was conducted by Juvenile Justice Board, Bikaner. Counsel
submitted that vide Section 24 of the Juvenile Justice Act, 2015
(hereinafter referred to as 'The Act of 2015') an umbrella
protection had been granted to a juvenile and therefore, in light of
the same, the protection ought to have been extended to him
also. Counsel submitted that on the date of the passing of the
impugned order i.e. 18.12.2018, he was under trial and no order
had been passed by the Juvenile Justice Board. He argued that
even if it had been a case of conviction, the protection of Section
24 was to be granted to him as even in cases of conviction, the
same cannot amount to a disqualification.
Learned counsel for the petitioner relied upon the judgments
passed by Co-ordinate Benches of this Court in S.B. Civil Writ
Petition No. 4321/2019; Nadeem Khan v. State of
Rajasthan & Ors. decided on 01.05.2019, S.B. Civil Writ
Petition No. 11395/2015; Hanuman v. The State of
Rajasthan & Ors. decided on 28.09.2016 and S.B. Civil Writ
Petition No. 88/2017; Nirmal Kumar Vishnoi v. Employees
State Insurance Corporation & Ors. decided on 26.10.2017.
Per contra, learned counsel for the respondents submitted
that the petitioner would not be entitled to the protection of
Section 24 of the Act of 2015 as on the date of the passing of the
impugned order, the petitioner was under trial only. He submitted
that Section 24 talks of 'a child who has committed an offence and
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has been dealt with under the provisions of this Act' and
admittedly, in the present matter as there had been no final
adjudication by the Juvenile Justice Board, the same would not fall
within the category of 'has been dealt with under the provisions of
this Act'. He argued that the matter where a juvenile is undergoing
trial i.e. he has neither been convicted nor been acquitted, would
not fall within the parameters of Section 24 and hence, the
protection of the same would not be available to him.
Learned counsel for the respondents further argued that all
the judgments relied upon by the counsel for the petitioner are
those wherein the juvenile had been acquitted and therefore, the
Court came to his rescue.
In the present case, the offence is punishable under Section
302 of the Indian Penal Code which by its very nature is a heinous
crime and therefore, protection of Section 24 cannot be granted.
He further argued that in the present matter even the Juvenile
Justice Board declined to grant probation to the petitioner and
therefore too, the petitioner was not entitled to any relaxation.
Heard learned counsel for the parties and perused the
material available on record.
A perusal of the record shows that the petitioner was
convicted for offences under Sections 302/201 and 34 of the
Indian Penal Code and the appeal against the same had also been
rejected. As clear on record, the revision against the same is
pending before the High Court and the application for suspension
of sentence is pending till date. But a bare reading of Section 24
of the Act of 2015 makes it clear that the same provides for no
distinction between a juvenile who is under trial or who has been
convicted. Section 24 provides for a protection even to the
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juvenile who had been convicted therefore, it can safely be
concluded that it would include in its ambit, the cases of the
juvenile who are under trial. Therefore, argument of the learned
counsel for the respondents that Section 24 would not apply as
the petitioner was under trial on the date of the passing of the
impugned order, cannot be held to be tenable. It is clear that the
petitioner was being tried under the provisions of the Act of 2015
and therefore, it would fall within the parameters of the matter
which 'has been dealt with under the provisions of this Act'.
In the case of Nirmal Kumar Vishnoi (supra) also the
offences for which the candidate therein was tried, were under
Sections 307 and 323 of the Indian Panel Code. The same was
also a matter, wherein, the candidate was under trial and the
matter had not been adjudicated finally.
Considering the ratio as laid down in Avtar Singh v. Union
Of India reported in 2016 (8) SCC 471, in the case of Nirmal
Kumar Vishnoi (supra) it was held as under:-
"At the time of the commission of the alleged
offence, the petitioner was admittedly a juvenile,
for which he is being tried by the Juvenile Court.
The petitioner's all rights including right to seek
appointment will be governed by the provisions of
Act of 2000. The protective umbrella in the form
of Section 19 of the Act of 2000, obliterates or
dilutes the disqualification, if any, arising on
account of pendency of the criminal case against
the petitioner. Given the fact that there is
analogous provision in the shape of Section 24 in
the new Act of 2015 also.
In view of the discussion foregoing, it is held
and declared that denial of appointment to the
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petitioner is contrary to Section 19 of the Juvenile
Justice Act, 2000/ 24 of the Act of 2015; arbitrary
and violative of fundamental rights of the
petitioner, enshrined under Article 14, 16 and 21
of the Constitution of India. The oppugned action
of denial of appointment is also contrary to the
law laid down by Hon'ble the Supreme Court is
Avtar Singh's case (supra), as the petitioner is
seeking an appointment on the lowest ladder as
Multi - Tasking Staff; for which mere pendency of
a criminal case should not be treated as a hurdle
or road block."
The same ratio has been propounded in Nadeem Khan's
case (supra), and Hanuman's case (supra).
In view of the ratio as laid down in the matters mentioned
above and in view of the observations made above, the present
writ petition of the petitioner deserves to be and is allowed. The
order dated 18.12.2018 (Annex.-3) is quashed and set aside. The
respondents are directed to accord appointment to the petitioner,
if he is otherwise eligible for the same. However, it is made clear
that the petitioner would be allowed the consequential benefits
from the date the person lower in merit to him had been granted
the appointment. All the monetary benefits would be permissible
to the petitioner from the date of his appointment.
The above mentioned exercise be completed by the
Department within a period of three months from the date of
receipt of the certified copy of this order.
(REKHA BORANA),J
13-Sachin/-
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