Imtiyaj Ali vs State Of Rajasthan
2022 Latest Caselaw 3231 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 14240/2021

Imtiyaj Ali S/o Sh. Masum Ali, Aged About 24 Years, R/o Ward No. 22, Fafiya Colony, Bhinmal, Dist. Jalore (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Animal Husbandary Department, Govt. Of Rajathan, Secretariat, Jaipur.

2. The Deputy Director, Animal Husbandary Department, Govt. Of Rajasthan, Jaipur.

----Respondents Connected With S.B. Civil Writ Petition No. 16998/2021 Bheeya Ram Jajra S/o Amara Ram, Aged About 45 Years, R/o Mahesh Nagar, Dangawas, Tehsil Merta, District Nagaur (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary Rural Development And Panchayati Raj Department, Government Of Rajasthan Secretariat, Jaipur.

2. Principal Secretary, Department Of Education, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

3. The Director, Elementary Education, Rajasthan, Bikaner, District Bikaner, Rajasthan.

4. Chief Executive Officer, Zila Parishad, Barmer.

5. Vikas Adhikari, Panchayat Samiti, Pyalla Kalan, District Barmer.

                                                                  ----Respondents


For Petitioner(s)        :     Mr. Sushil Bishnoi
                               Mr. J.K. Vishnoi.
For Respondent(s)        :     Mr. Pankaj Sharma, AAG
                               Mr. M.C. Bishnoi,GC



           HON'BLE MR. JUSTICE ARUN BHANSALI




                                        (2 of 9)                     [CW-14240/2021]

                                   Order

03/03/2022

These writ petitions have been filed by the petitioners

aggrieved against rejection of their candidature for appointment to

the post of Livestock Assistant and Teacher Gr.-III (Level-II)

respectively.

In the case of petitioner - Imtiyaj Ali, he applied pursuant to

the advertisement dated 14.03.2018 for the post of Livestock

Assistant and was accorded appointment by order dated

04.02.2020 at Sub-centre, Chura, Jalore.

During course of police verification, it was found that against

the petitioner in FIR No.183/16, registered under Sections 354,

452, 323, 384 & 327 IPC, trial was pending. The respondents

based on the said police verification report by order dated

25.02.2020 relying on Clauses 1(i) & 1(v) of Circular dated

15.07.2016, came to the conclusion that the petitioner was not

eligible and consequently cancelled the order of appointment.

In the case of petitioner - Bheeya Ram Jajra, he applied

pursuant to the Recruitment Notification dated 11.09.2017 for the

post of Teacher Gr.III (Level-II), he was provisionally selected by

order dated 08.09.2021 and was accorded appointment by order

dated 26.10.2021 by Zila Parishad, Barmer at Government Upper

Primary School, Darguda, Block Paylakalan. Pursuant thereto,

Panchayat Samiti Paylakalan issued order of appointment on

28.10.2021.

During the course of police verification, it was reported that

pursuant to FIR No.74/2015, registered under Section 8/18 of the

NDPS Act, 1985, trial was pending against the petitioner and in

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FIR No.505/2019, for the offence under Sections 447, 143, 323,

341 another trial was pending against him.

The Vikas Adhikari, Panchayat Samiti Paylakalan by his

communication dated 17.11.2021, sent to Panchayat Primary

Education Officer, informed him about the pending trials against

the petitioner and indicated that the petitioner was ineligible for

appointment and consequently, he was not permitted to join

pursuant to the order of appointment. The Vikas Adhikari in his

communication dated 17.11.2021 referred to circular dated

04.12.2019 issued by the Department of Personnel in this regard.

It is submitted by learned counsel for the petitioners that the

action of the respondents in holding the petitioners ineligible for

appointment referring to circulars dated 15.07.2016 & 04.12.2019

issued by the Department of Personnel, is not justified.

Submissions were made that there is no bar in the Rules for

according appointment to the candidates, who are facing trial in

criminal cases. On the other hand, the provisions prescribe that a

conviction by a Court of Law need not by itself, entail the refusal

of a certificate of good character and the circumstances of the

conviction should be taken into account and therefore, the action

of the respondents based on the pending trial against the

petitioners, cannot be countenanced.

Further submissions were made that this Court in Mahendra

Singh Rathore v. State of Rajasthan & Ors. : SBCWP

No.19152/2018, decided on 11.02.2019, has referring to the case

of Khama Ram Vishnoi v. State of Rajasthan & Ors. : 2000(2) WLC

(Raj.) 702 and State of Rajasthan & Ors. v. Mukesh Kumar :

DBSAW No.500/2016, decided on 06.03.2017, has come to the

conclusion that mere pendency of the criminal case cannot be a

(4 of 9) [CW-14240/2021]

disqualification, even conviction was not a disqualification and

therefore, cancellation of petitioners' appointment / their

disqualification is not justified and consequently, the orders

impugned deserve to be quashed and set-aside.

Learned Additional Advocate General and Government

Counsel appearing for the respondents vehemently opposed the

submissions.

It was submitted that it is well within the prerogative of the

employer to lay down the conditions for appointment and as the

Department of Personnel by its circulars dated 15.07.2016 &

04.12.2019 has clearly laid down the circumstances, in which

candidate should be held ineligible for appointment, which

includes pendency of trial in relation to nature of cases indicated

therein, which includes allegations pertaining to involvement in

outraging the modesty of women, NDPS Act etc., the respondents

are justified in passing the orders impugned.

Submissions were made that after the judgments in the case

of Khama Ram Vishnoi (supra) and Mukesh Kumar(supra), the law

now has been settled by the Hon'ble Supreme Court in series of

judgments wherein it has been held that involvement in an

offence/s involving moral turpitude and violent activities, even

where there has been an acquittal, must be honourable and that

appointment in such cases would depend on nature of offences

charged with and mere acquittal would not be sufficient and that

the State employer like any other, has an element of latitude or

choice on who should enter its service and once the norms has

been fair and reasonable and applied fairly, no interference was

required.

(5 of 9) [CW-14240/2021]

It has further been laid down that the State has to take into

consideration the Government order applicable to the employee at

the time of taking decision and that pendency of criminal case

may have adverse impact and appointment authority considering

the seriousness of crime can take a decision and therefore, the

action of the respondents cannot be faulted.

Reliance has been placed on Avtar Singh v. Union of India &

Ors. : (2016) 8 SCC 471; State of Rajasthan & Ors. v. Love Kush

Meena : (2021) 8 SCC 774; Commissioner of Police v. Raj Kumar :

AIR 2021 SC 4053.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

At the outset, it may be noticed that petitioner - Imtiyaj Ali is

facing trial on allegations of outraging the modesty of women

(354 IPC), Extortion (384 IPC), House-trespass (452 IPC),

Voluntarily causing hurt (323 IPC) and Voluntarily causing hurt to

extort property (327 IPC).

Petitioner - Bheeya Ram Jajra is facing trials (i)- under

Section 8/18 of the NDPS Act for possession of narcotics drugs

and (ii)- Criminal trespass (447 IPC), Unlawful assembly (143

IPC), Voluntarily causing heart (323 IPC), Wrongful restraint (341

IPC).

Strong reliance has been placed on applicable Service Rules

pertaining to the requirement of 'character', wherein by way of

note it has been provided that conviction by a Court of Law need

not in itself involve the refusal of a certificate of good character,

the circumstances of the conviction must be taken into account

and if they involve no moral turpitude and association with crimes

of violence or with movement which has its object the overthrow

(6 of 9) [CW-14240/2021]

by violent means of the Government as by law established, the

mere conviction need not be regarded as disqualification.

A bare look at the provisions relating to character and note

appended therein, would indicate that the same is by way of

exception and wherein also the condition is non-involvement in

cases involving moral turpitude or crimes of violence etc.

The Department of Personnel, has issued circulars dated

15.07.2016 & 04.12.2019 referring to the provisions relating to

character in the Rules and has clearly laid down guidelines qua

cases / circumstances in which the candidates must be held

ineligible for appointment. The circulars, inter-alia, provide cases

where the involvement is in cases involving outraging the modesty

of women, NDPS Act, involvement in offences under Chapter XVI

& XVII IPC, 498A IPC, SC/ST Act, 1989 & POCSO Act, 2012.

The Hon'ble Supreme Court in Avtar Singh (supra), wherein

the reference was made to the Larger Bench, inter-alia,

summarized its conclusion and laid down as under :-

"38.3. The employer shall take into consideration the government orders / instructions/rules, applicable to the employee, at the time of taking the decision.

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.

38.8. 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."

Further in the case of Love Kush Meena (supra), a case

arising from State of Rajasthan, wherein the petitioner was

granted relief by the Court, the judgment was reversed and it was

held that merely on account of acquittal the person does not

become entitle for grant of appointment.

(7 of 9) [CW-14240/2021]

Similar view was expressed in the case of Raj Kumar (supra),

wherein it has been laid down as under :-

"29. Public service - like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service. Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.

30. The High Court's approach, evident from its observations about the youth and age of the candidates, appears to hint at the general acceptability of behaviour which involves petty crime or misdemeanour. The impugned order indicates a broad view, that such misdemeanour should not be taken seriously, given the age of the youth and the rural setting. This court is of opinion that such generalizations, leading to condonation of the offender's conduct, should not enter the judicial verdict and should be avoided. Certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security."

In Union of India & Ors. v. Methu Meda : (2022) 1 SCC 1

again it was laid down that the employer has the right to consider

the suitability of the candidate as per government orders /

instructions / rules at the time of taking the decision for induction

of the candidate in employment.

In Anil Bhardwaj v. Hon'ble High Court of Madhya Pradesh &

Ors. : AIR 2020 SC 4971, the declaration of the candidate as unfit

for appointment because of pendency of criminal case under

Section 498A IPC was upheld.

(8 of 9) [CW-14240/2021]

In view of above position as laid down by the Hon'ble

Supreme Court in the case of Avtar Singh (supra) pertaining to

the right of the employer to consider the suitability of the

candidate as per government orders / instructions / rules at the

time of taking the decision for induction of the candidate in

employment and subsequent judgments wherein even in cases of

acquittal, it has been left to the decision of the competent

authority to take a view, which must not be arbitrary and

nondiscriminatory as to whether the person should be employed.

Further, for pendency of the criminal case, non-suiting of

appointment has also been upheld.

Looking to the nature of offences for which the petitioners

are facing trial, the same clearly falls within the prohibited

offences, for which the circulars clearly provide that the candidate

would be ineligible while petitioner - Imtiyaj Ali is facing

allegations of outraging the modesty of women and under Chapter

XVI & XVII IPC, petitioner - Bheeya Ram Jajra is facing allegations

under NDPS Act and Chapter XVI & XVII IPC, and therefore, in

those circumstances, the action of the respondents cannot be

faulted on any count.

So far as, the judgments in the case of Mahendra Singh

Rathore (supra) is concerned, the same is based on judgment in

Khama Ram Vishnoi, which judgment in the case of Khama Ram

Vishnoi (supra), in light of law laid down by the Hon'ble Supreme

Court in the case of Love Kush Meena (supra), Methu Meda

(supra), Raj Kumar (supra), has lost its efficacy and therefore, the

(9 of 9) [CW-14240/2021]

judgment in the case of Mahendra Singh Rathore (supra) would

not come to the aid of the petitioners.

Consequently, the writ petitions have no substance, the

same are, therefore, dismissed.

(ARUN BHANSALI),J Rmathur/-

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