Pawan Kumar vs State Of Rajasthan
2022 Latest Caselaw 1214 Raj

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                         JODHPUR
             D.B. Civil Special Appeal (Writ) No.1334/2019

Pawan Kumar S/o Shri Prithvi Singh aged 28 years by caste Jat,
R/o Village Ratanpura, Tehsil Bhadra, District Hanumangarh
                                                                       ----Appellant
                                    Versus
1. State of Rajasthan - Through Secretary, Home Department,
Government of Rajasthan, Jaipur
2.      Director General of Police (Recruitment), Government of
Rajasthan, Jaipur
3.      Commandant, Maharana Pratap Batalion, R.A.C. (I.R.),
Pratapgarh cum Superintendent of Police, Pratapgarh
                                                                 ----Respondents


For Appellant(s)          :     Mr. Nitin Gokhlani
For Respondent(s)         :     Mr. Manish Vyas, AAG



             HON'BLE MR. JUSTICE SANDEEP MEHTA
                 HON'BLE MR. JUSTICE SAMEER JAIN

                                 Judgment

Date of pronouncement : 27/01/2022

Judgment reserved on : 10/12/2021

BY THE COURT : PER HON'BLE MEHTA, J.

The instant intra court appeal has been filed by the

appellant Pawan Kumar being aggrieved of the order dated

13.08.2019 passed by the learned Single Bench of this court,

whereby the writ petition preferred by the appellant against the

order dated 05.03.2019 (Annex.5) declaring the appellant

ineligible for appointment on the post of Police Constable was

dismissed.

We have heard and considered the submissions

advanced at bar and have gone through the impugned order and

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the material placed on record. The appellant writ petitioner

applied for the post of Police Constable pursuant to the

recruitment notification issued by the respondents in the year

2018. He appeared in the written test, whereafter he was

summoned for Physical Standard Test/Physical Efficiency Test

(PST/PET). His name was reflected in the merit list and he was

called for document verification. During police verification, it

came to light in the year 2015, the appellant had been convicted

for the offences punishable under Sections 419 and 420 IPC by

the Court of Chief Judicial Magistrate, Kaithal, Haryana.

Consequently, his candidature was rejected vide order dated

05.03.2019 (Annex.5), which was unsuccessfully assailed in the

writ petition as stated above.

Mr. Nitin Gokhlani, learned counsel representing the

appellant, vehemently and fervently contended that the appellant

was granted probation in the criminal case, wherein he was

convicted for the offences punishable under Section 419 and 420

IPC. Thus, as per Mr. Gokhlani, the petitioner's candidature is

saved by virtue of Section 12 of the Probation of Offenders Act.

As per Mr. Gokhlani, the learned Single Judge did not consider this

legal aspect in the correct perspective. He placed reliance on the

Supreme Court judgment in the case of Avtar Singh Vs. Union

of India & Ors. [(2016) 8 SCC 471] and the Delhi High Court

judgment in a bunch of writ petitions led by Commissioner of

Police & Anr. Vs. Narender Kumar Singh [W.P. (C)

No.8499/2011 decided on 13.02.2013] and urged that the

appellant is entitled to claim protection from disqualification based

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on conviction by virtue of Section 12 of the Probation of Offenders

Act and thus, the respondents were totally unjustified in declaring

the appellant to be disqualified and in cancelling his appointment

to the post of Police Constable despite being selected on merit.

He, thus urged that the impugned orders are arbitrary and bad in

the eyes of law and hence, the same deserve to be set aside. On

these submissions, Mr. Gokhlani implored the court to accept the

appeal, set aside the impugned orders and direct appointment of

the appellant as Police Constable in the subject selection process.

Per contra, Mr. Manish Vyas, learned AAG, vehemently

and fervently opposed the submissions advanced by the

appellant's counsel. He contended that while rejecting his

candidature of the appellant, his conduct was taken into account

and it was found that the appellant had been convicted for the

offences of moral turpitude, i.e. Sections 419 and 420 IPC. He

was apprehended while impersonating another person in a

recruitment examination for the post of Conductor and thus, his

candidature was rightly rejected by the recruiting authority. He

urged that the removal of disqualification by virtue of Section 12

of the Probation of Offenders Act does not apply to the situation at

hand. He placed reliance on the judgment rendered by Hon'ble

Supreme Court in the case of State of Rajasthan & Ors. Vs.

Love Kush Meena (AIR 2021 SC 1610) and sought dismissal of

the appeal.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

placed on record. Suffice it to say that the fact regarding the

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appellant herein having been convicted for the offences punishable

under Section 419 and 420 IPC is not in dispute. The only ground

on which the impugned action is questioned is that after being

convicted in the aforesaid criminal case, the appellant was

extended the benefit of Probation of Offenders Act and hence, the

appellant is entitled to protection from disqualification by virtue of

Section 12 of the Probation of Offenders Act. The said argument,

though attractive superficially, has no legs to stand whatsoever.

The Hon'ble Supreme Court in the case of Girraj Prasad Meena

Vs. State of Rajasthan [(2014) 13 SCC 674] has settled this

aspect beyond pale by holding that the disqualification under

Section 12 of the Probation of Offenders Act refers to

disqualification provided in other statutes. Despite grant of

probation, the conviction remains. The employer is entitled to

take disciplinary action on the basis of the conviction and the

employee cannot claim a right to continue in service merely on the

ground that he had been given benefit of probation under the

Probation of Offenders Act. While dealing with this issue, the

Hon'ble Supreme Court held as below :-

10. In State of U.P. v. Ranjit Singh, AIR 1999 SC 1201, this Court has held that the High Court, while deciding a criminal case and giving the benefit of the U.P. First Offenders' Probation Act, 1938, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under:

"5. We also fail to understand how the High Court while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break and, therefore,

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he should be paid his full pay and [dearness allowance] during the period of his suspension.

This direction and observation is wholly without jurisdiction...."

(Emphasis added)

11. In Shankar Dass v. Union of India & Anr., AIR 1985 SC 772, this Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the Act 1958 observing as under:

"4. ... There are statutes which provide that persons who are convicted for certain offences shall incur certain disqualifications. For example, Chapter III of the Representation of the People Act, 1951, entitled 'Disqualifications for membership of Parliament and State Legislatures' and Chapter IV entitled 'Disqualifications for Voting' contain provisions which disqualify persons convicted of certain charges from being members of legislatures or from voting at elections to legislatures. That is the sense in which the word 'disqualification' is used in Section 12 of the Probation of Offenders Act. [Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the 1958 Act takes away the effect of conviction for the purpose of service also."

12. The provision of the Act 1958 has been dealt with by this Court elaborately in Sushil Kumar Singhal v. Regional Manager, Punjab National Bank, (2010) 8 SCC 573, wherein after considering the judgments of this court in Aitha Chander Rao v. State of A.P., 1981 Supp SCC 17; Harichand v. Director of School Education, AIR 1998 SC 788; Divisional Personnel Officer, Southern Railway & Anr. v. T.R. Chellappan, AIR 1975 SC 2216;

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and Trikha Ram v. V.K. Seth & Anr., AIR 1988 SC 285, the court held as under:

"In view of the above, the law on the issue can be summarised to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word "disqualification" contained in Section 12 of the 1958 Act refers to a disqualification provided in other statutes, as explained by this Court in the abovereferred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act."

(See also: Karamjit Singh v. State of Punjab, (2009) 7 SCC 178)."

In addition thereto, we have carefully perused the

application form submitted by the appellant, wherein in the

column of "Character Verification Details", where the following

query has been made "Whether any FIR has been ever lodged

against you?", the appellant has answered in negative. The

image of relevant part of the application form submitted by the

petitioner is reproduced hereinbelow :-

Manifestly, thus, the appellant herein concealed the

factum of lodging of the FIR and of his conviction while submitting

the application for recruitment. The impact of an applicant for a

public post concealing the fact of conviction was considered by

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Hon'ble Supreme Court in the case of Rajasthan Rajya Vidyut

Prasaran Nigam Limited Vs. Anil Kanwariya [(2021) 10 SCC

136], wherein it was held that the appointment obtained by

concealing the factum of conviction for the offence under Section

341 and 323 IPC amounts to suppression of material fact of

having been involved in a criminal case. Grant of benefit of

Section 12 of the Probation of Offenders Act was reckoned as

being of no help to the employee inasmuch as the question was

about making a false declaration. The Hon'ble Supreme Court

reversed the order of the Division Bench whereby the termination

of the employee had been set aside. The relevant paras of the

aforesaid judgment are reproduced hereinbelow for the sake of

ready reference :-

"3.2 Aggrieved by the order of termination, the respondent-employee preferred Writ Petition No. 6969 of 2016 before the learned Single Judge of the High Court. The learned Single Judge of the High Court solely relying on the judgment of this Court in the case of Avtar Singh v. Union of India, reported in (2016) 8 SCC 471, and also on order dated 9.9.2015 passed by the learned Sessions Judge in appeal granting benefit of Section 12 of the Act 1958, allowed the writ petition and quashed and set aside the order of termination and directed the appellants to reinstate the respondent- employee with all consequential benefits.

3.3 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, quashing and setting aside the order of termination and directing the appellants to reinstate the respondent-employee, the appellants-employer

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preferred appeal before the Division Bench being D.B. Special Appeal Writ No. 560 of 2019. The Division Bench also solely relying upon para 38.4.1 of the decision of this Court in the case of Avtar Singh (supra) and observing that the employee was held guilty in a dispute of trivial nature with his father, uncle, brother and cousin and as it was a trivial nature dispute and such a dispute which even if disclosed could have been ignored by the employer because of the benefit of Section 12 of the Act 1958, the Division Bench by the impugned judgment and order has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge, directing reinstatement of the employee with all consequential benefits. The review petition preferred by the appellants herein has also been dismissed.

4.3 It is further submitted that in the present case at the time when the respondent-employee applied for the advertised post, he was already convicted for the offences under Sections 341 and 323 IPC by the competent criminal court which he did not disclose. It is submitted that even thereafter also when he submitted the declaration at the time of documents verification on 14.04.2015, the respondent-employee though already suffered a conviction for the offences under Sections 341 and 323 IPC and at that time, i.e., on 14.04.2015, only the benefit under Sections 3 & 4 of the Act 1958 was given, he filed a false declaration. It is submitted that the learned trial Court did not grant the benefit of Section 12 of the Act 1958, which benefit of Section 12 of the Act 1958 was given only vide judgment and order dated 9.9.2015 by the learned Sessions Judge. It is submitted that as the respondent- employee suppressed the material fact of criminal case firstly in the year 2013 when he submitted the

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application and thereafter subsequently on 14.04.2015 when he submitted the declaration at the time of documents verification and thereafter when the services of the respondent were terminated after giving him an opportunity of being heard, the same ought not to have interfered with by the learned Single Judge and thereafter by the Division Bench.

5. The present appeals are vehemently opposed by Shri Navin Prakash, learned Advocate appearing for the respondent-employee. It is submitted that in the facts and circumstances of the case and more particularly the order passed by the learned Sessions Court granting the benefit under Section 12 of the Act 1958 and considering the fact that the dispute was of a trivial nature with the family members, the learned Single Judge rightly set aside the order of termination which has been rightly confirmed by the Division Bench.

6. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the appellants herein - employer terminated the services of the respondent on non- disclosure of the pending criminal case against him at the time when he submitted the application for appointment, submitted in the month of October/November, 2013 and thereafter in the declaration dated 14.04.2015. As observed hereinabove, the respondent was chargesheeted for the offences under Sections 143, 341 and 323 IPC vide chargesheet dated 17.01.2011. The learned trial Court convicted the respondent for the offences under Sections 341 & 323 IPC, vide judgment and order dated 5.8.2013. However, granted the benefit under

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Section 3 of the Act 1958 only. In the month of October, 2013, the appellants issued an advertisement for the post of Technical Helper and the last date for submission of the application was 14.11.2013. Pursuant to the said advertisement, the respondent applied for the said post and the written test was held on 02.02.2014 and the result of which was declared on 31.03.2015. The respondent submitted declaration on 14.04.2015 declaring that neither any criminal case is pending against him nor he has been convicted by any court of law. The date fixed for documents verification was 14.04.2015 and along with the documents verification he was required to file a declaration which he submitted stating that neither any criminal case is pending against him nor he has been convicted by any court of law. Therefore, on the date of submitting an application and even at the time when declaration was filed on 14.04.2015, there was already an order of conviction against him. Even at the relevant time, the benefit of Section 12 of the Act 1958 was not granted to the respondent, which was given subsequently vide judgment of the learned Sessions Court dated 09.09.2015.

6.3 Thus, at the time when he submitted the application for appointment in the month of October/November 2013, the respondent already suffered a conviction by the competent court which not only he did not disclose, but in fact, a false declaration was filed that neither any criminal case is pending against him nor he has been convicted by any court of law. That thereafter after receipt of the police verification/antecedents report dated 5.6.2015 from the Superintendent of Police, Sawai Madhopur and after giving a show cause notice and an opportunity of being heard to the respondent, the employer terminated the

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services of the respondent on the ground of non- disclosure /suppression of material fact and filing a false declaration.

8.2 In the case of Devendra Kumar (supra), 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, 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

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terminated, even if there had been no further trial or the person concerned stood acquitted/discharged. It is further observed by this Court in the said decision that where an applicant/employee gets an order by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal". It is further observed and held that dishonesty should not be permitted to bear the fruit and benefit those persons who have defrauded or misrepresented themselves and in such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. The relevant observations in the said decision are in paras 12, 13, 18 & 25, which are as under:

12. So far as the issue of obtaining the appointment by misrepresentation is concerned, it is no more res integra. The question is not whether the applicant 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. In fact, the information sought by the employer if not disclosed as required, would definitely amount to suppression of material information. 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. 13. It is a settled proposition of law that where an applicant gets an office by misrepresenting the facts or by playing fraud upon the competent authority, such an order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or

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temporal." [Vide S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1: AIR 1994 SC 853.] In Lazarus Estates Ltd. V. Beasley [(1956) 1 QB 702: (1956) 2 WLR 502: (1956) 1 ALL ER 341 (CA)] the Court observed without equivocation that: (QB p. 712) "... No judgment of a court, no order of a Minister can be allowed to stand if it has been obtained by fraud, for fraud unravels everything." 18. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit those persons who have frauded or misrepresented themselves. In such circumstances the court should not perpetuate the fraud by entertaining petitions on their behalf. In Union of India v. M. Bhaskaran (1995) Supp (4) SCC 100 this court, after placing reliance upon and approving its earlier judgment in Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi (1990) 3 SCC 655, observed as under: (M. Bhaskaran case, SCC p. 104, para 6) If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a court of law as the employment secured by fraud renders it voidable at the option of the employer. 25. More so, if the initial action is not in consonance with law, the subsequent conduct of party cannot sanctify the same. Sublato fundamento cadit opus - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent court. In such a case the legal maxim nullus commodum caprere potest de injuria sua propria applies. The persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial

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or investigation. [Vide Union of India v. Major General Madan Lal Yadav (1996) 4 SCC 127:1996 SCC (Cri) 592: AIR 1996 SC 1340 and Lily Thomas v. Union of India (2000) 6 SCC 224:

2000 SCC (Cri) 1056.] Nor can a person claim any right arising out of his own wrongdoing (jus ex injuria non oritur)."

In the case of State of Rajasthan & Ors. Vs. Love

Kush Meena (supra) relied upon by the learned A.A.G., the

factum regarding involvement of the candidate in a criminal case

was disclosed in the application form and the applicant therein had

been acquitted of the charges, but despite that, the Hon'ble

Supreme Court went on to hold that as the acquittal was by giving

benefit of doubt, the factum thereof would not entitle the

candidate for appointment.

In view of the above discussion, we are of the opinion

that the appellant herein is dis-entitled and disqualified to seek

appointment on the post of Police Constable owing to his conduct

as he stands convicted for the offences punishable under Sections

419 and 420 IPC, which are crimes of moral turpitude, in light of

the memorandum dated 29.04.1995 issued by the Police

Headquarters.

In addition, the appellant, having concealed the fact of

registration of the FIR and his conviction for the offences

pertaining to moral turpitude while submitting application form, is

also disentitled to seek appointment on a public post. The

impugned order dated 13.08.2019, whereby the writ petition filed

by the appellant was dismissed as well as the order dated

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05.03.2019, whereby he was declared ineligible and his

appointment on the post of Police Constable was cancelled do not

suffer from any infirmity or illegality whatsoever warranting

interference therein.

Accordingly, the appeal fails and is hereby dismissed as

being devoid of merit.

No order as to costs.

                                   (SAMEER JAIN),J                                        (SANDEEP MEHTA),J


                                    Pramod/-









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