State Of Rajasthan vs Babulal Moond
2022 Latest Caselaw 7473 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
             (1) D.B. Spl. Appl. Writ No. 543/2021

1.     The State Of Rajasthan, Through The Principal Secretary,
       Medical And Health Department, Secretariat, Govt. Of
       Rajasthan, Jaipur.
2.     The    Director,    Department           Of     Medical    And   Health,
       Swasthya Bhawan, Tilak Marge, C-Scheme, Jaipur.
3.     The Addl. Director (Admn.), Department Of Medical And
       Health, Swasthya Bhawan, Tilak Marg, C-Scheme, Jaipur.
4.     Chief Medical And Health Officer, Dungarpur.
                                                                  ----Appellants
                                   Versus
Gajendra Narayan Patidar S/o Lalji Patidar, Aged About 49 Years,
Resident Of Nawalshayam, District Dungarpur.
                                                                 ----Respondent


             (2) D.B. Spl. Appl. Writ No. 455/2021
1.     State Of Rajasthan, Through The Director, Secondary
       Education, Government Of Rajasthan, Bikaner.
2.     The District Education Officer (Headquarter), Secondary,
       Bikaner.
3.     The Principal, Government Senior Secondary School,
       Napasar, District Bikaner.
                                                                  ----Appellants
                                   Versus
Babulal Moond S/o Girdhari Moond, Aged About 28 Years, Village
Moondsar, District Bikaner (Raj.).
                                                                 ----Respondent
             (3) D.B. Spl. Appl. Writ No. 506/2021
1.     State Of Rajasthan, Through Secretary, Department Of
       Education (Gr.2), Government Of Rajasthan, Secretariat,
       Jaipur.
2.     The Director, Secondary Education, Rajasthan, Bikaner.
3.     Joint Director, School Education, Pali Division, Pali.
4.     The District Education Officer, Hq, Secondary Education,
       Sirohi.
5.     Chief Block Education Officer, Pindwara, District Sirohi.
                                                                  ----Appellants


                    (Downloaded on 19/05/2022 at 09:12:22 PM)
                                            (2 of 16)                  [SAW-543/2021]


                                     Versus
Mohan Lal S/o Ratan Lal, Aged About 32 Years, New Khunja,
Ward No. 03, Opposite Meena Book Sadan, Hanumangarh
Junction District Hanumangarh.
                                                                   ----Respondent


For Appellant(s)           :     Mr. K.S. Rajpurohit, AAG.
                                 Mr. Pankaj Sharma, AAG with
                                 Mr. Rishi Soni.
For Respondent(s)          :     Mr. Himmat Jagga.
                                 Mr. O.P. Sangwa.
                                 Mr. Mahaveer Bishnoi.



              HON'BLE MR. JUSTICE SANDEEP MEHTA
      HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

                               JUDGMENT

Judgment pronounced on                    :::             19/05/2022
Judgment reserved on                      :::             25/04/2022



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

These special appeals (writ) involve common question of law

and were clubbed together. However, as the same are directed

against different orders passed by learned Single Bench and

involve distinct factual issues, the same are being decided

separately.

All the three appeals involve the issue "Whether or not

candidates, having criminal antecedents, can be permitted to join

Government service upon their selection on merit'. The State

Government has issued circulars dated 15.07.2016 and

04.12.2019 laying down the guidelines for entry into service of

such candidates. Relevant clauses which are common to both

circulars are reproduced herein below for the sake of ready

reference:

(3 of 16) [SAW-543/2021]

"Character. The character of a candidate for direct recruitment to the service must be such as to qualify him for employment in the service. He must produce a certificate of good character from the principal/Academic Officer of the University or College in which he was last educated and two such certificates written not more than six months prior to the dale of application from two responsible persons not connected with the College or University and not related to him.

(1) A conviction by a court of law need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral turpitude or association with crimes of violence or with a movement which has as its object the overthrow by violent means of the government as established by law, the mere conviction need not be regarded as a dis-qualification.

(2) Ex-prisoners, who by their disciplined life while in prison and by their subsequent good conduct have proved to be completely reformed, should not be discriminated against on grounds of their previous conviction for the purpose of employment in the service. Those, who are convicted of offences not involving moral turpitude or violence, shall be deemed to have been completely reformed on the production of a report to that effect from the Superintendent, After Care Home or if there are no such Homes in a particular district, from the superintendent of police of that district.

(3) Those convicted of offences involving moral turpitude or violence shall be required to produce a certificate from the superintendent, After Care Home, or if there is no such home in a particular district, from the superintendent of police of that district, endorsed by the Inspector General of prisons, to the effect that they are suitable for employment as they have proved to be completely reformed by their disciplined life while in prison and by their subsequent good conduct in an After Care Home.

......

.....

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(4 of 16) [SAW-543/2021]

;fn fdlh Hkh vH;FkhZ ds fo:) fuEu esa ls fdlh Hkh izdkj ds vijk/k ds rgr izdj.k vUoh{kk/khu (under trial) gS vFkok nks'kflf) mijkar ltk gks pqdh gS] rks mls jkT; ds v/khu [email protected] ij fu;qfDr gsrq ik= ugha ekuk tkuk pkfg, %&

(i) uSfrd v/kerk ;Fkk Ny] dwVjpuk] eRrrk] cykr~lax] fdlh efgyk dh yTtk Hkax djus ds vijk/k esa vUroZfyrrk (involvement) gksA

(ii) ...

(iii) ...

           (iv)    ...

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           esa varoZfyrrk gksA...."

Now, we proceed to adjudicate the individual writ appeals.

(1) D.B. Spl. Appl. Writ No. 543/2021 -

(State & Ors. vs. Gajendra Narayan Patidar)

Special Appeal (Writ) No.543/2021 has been preferred by

the State of Rajasthan for assailing the Judgment/Final Order

dated 23.01.2020 passed by the learned Single Bench of this

Court whereby, the Writ Petition No.17646/2018 preferred by the

respondent Shri Gajendra Narayan Patidar (writ petitioner) was

allowed and the appellants were directed to allow the writ

petitioner to join on the post of Lab Assistant pursuant to his

selection on merit in the recruitment process carried out in

furtherance of the Notification dated 07.02.2018.

The writ petitioner stood in merit and was selected on the

post of Lab Assistant. However, upon Character Verification, it

came to light that he was involved in a criminal case pertaining to

offences punishable under Sections 420, 467, 468, 471 and 120B

(5 of 16) [SAW-543/2021]

of the IPC for which, an FIR No.65/2009 was registered at the

Police Station Dhanmandi, Udaipur and a charge-sheet had been

filed against the writ petitioner and few others in the competent

court for the above offences.

A perusal of the charge-sheet placed on record of the writ

petition indicates that the allegations against the charge-sheeted

accused including the petitioner were of conspiring to prepare and

provide fabricated marksheets to certain aspirants so as to

facilitate their selection as ANMs. These aspirants purportedly

procured Government Jobs on the basis of the fabricated

marksheets.

When the petitioner was not allowed to join duty despite his

selection vide order dated 07.02.2018, he filed a writ petition

No.2663/2018 which came to be decided by the learned Single

Bench of this Court vide order dated 03.04.2018 directing the

respondents to get the candidature of the writ petitioner

considered by the Screening Committee and to decide the issue by

a speaking order. In pursuance of the said judgment of the

learned Single Bench, an order dated 12.10.2018 came to be

passed whereby, the representation of the petitioner was rejected

and he was denied opportunity to join service. Being aggrieved of

the said order dated 12.10.2018, the writ petitioner respondent

Gajendra Narayan Patidar filed S.B. Civil Writ Petition

No.17646/2018 which has been allowed by the learned Single

Bench vide Judgment/ Final Order dated 23.01.2020 which is

assailed in this intra court writ appeal.

We have given our thoughtful consideration to the

submissions advanced at bar and have gone through the material

on record.

(6 of 16) [SAW-543/2021]

It cannot be disputed that the offences for which, the

respondent writ petitioner was charge-sheeted are those involving

moral turpitude i.e. Sections 420, 467, 468, 471 and 120B of the

IPC and fall under Chapters XVII, XVIII and VA of the IPC. The two

circulars dated 15.07.2016 and 04.12.2019 issued by the

Department of Personnel, State of Rajasthan clearly stipulate that

an aspiring candidate for Government Job against whom, an FIR is

registered for offences covered by Chapter XVI of the Indian Penal

Code and the offences involving moral turpitude, shall not be

entitled to be appointed in Government Service.

Heavy reliance was placed by the learned counsel

representing the respondent writ petitioner on the Supreme Court

Judgment in the case of Avtar Singh Vs. Union of India & Ors.

reported in (2016)8 SCC 471. Hon'ble the Supreme Court, while

answering the reference in the case of Avtar Singh (supra), laid

down following guidelines governing the principles of entering into

Government Service of candidates with criminal antecedents:

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

(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 of required information.

(2) While passing order of termination 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.

(3) The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

(7 of 16) [SAW-543/2021]

(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 recourse appropriate to the case may be adopted : -

(a) In a case trivial in nature in which conviction had been recorded, such as shouting slogans at young age or for a petty offence 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.

(b) Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

(c) 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.

(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.

(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.

(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 pass appropriate order cancelling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

(8) If criminal case was pending but not known to the candidate at the time of filling the form, still it may have

(8 of 16) [SAW-543/2021]

adverse impact and the appointing authority would take decision after considering the seriousness of the crime.

(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. (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.

(11) Before a person is held guilty of suppressio veri or suggestio falsi, knowledge of the fact must be attributable to him."

(Emphasis supplied)

As per Point No.3, Government orders/instructions/ rules

applicable to the employee would have to be taken into

consideration at the time of taking the decision. It has been

observed at Point No.4(C) that in a case involving moral turpitude

or offence of heinous/serious nature, even if acquittal had been

recorded 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. At Point No.5, it has been observed

that in case where the employee has made a declaration truthfully

of a concluded criminal case, the employer still has right to

consider the antecedents and cannot be compelled to appoint the

candidate.

(9 of 16) [SAW-543/2021]

Since the charges against the respondent writ petitioner in

the pending criminal case pertain to offences of moral turpitude

covered under Chapters XVII, XVIII and VA of the IPC, the

circular/instructions dated 15.07.2016 and 04.12.2019 issued by

the Department of Personnel, Government of Rajasthan clearly

operate against him and hence, he cannot be employed in

Government Service on this ground alone. The Judgment in the

case of Mahendra Singh Rathore Vs. State of Raj. & Ors.

(S.B. Civil Writ Petition No.19152/2018), decided on

11.02.2019 on which, reliance was placed by learned Single

Bench while allowing the writ petition of the respondent writ

petitioner, has been assailed in D.B. Special Appeal Writ

No.1377/2019.

Learned counsel representing the respondent writ petitioner

placed reliance on the Division Bench Judgment in the case of

Akashdeep Morya vs. Rajasthan High Court & Anr. (D.B.

Civil Writ Petition No.12290/2017), decided on 21.03.2018

wherein, the candidate was granted the relief sought for despite

pendency of four criminal cases. A perusal of the said Judgment

indicates that three criminal cases, which were registered against

the writ petitioner, pertained to the trivial offences under the

Indian Penal Code. One case was registered when the writ

petitioner was a minor. Only one case involved the offences

punishable under Sections 420 and 406 IPC wherein also, the

police had given a negative Final Report which was accepted by

the Court concerned.

Apparently thus, the factual matrix involved in the case of

Akashdeep Morya (supra) is totally distinguishable from the

case at hand and hence, the ratio of the said judgment does not

(10 of 16) [SAW-543/2021]

help the cause of the respondent writ petitioner. In the case of

State vs. Mahendra Singh Meena (supra), the writ appeal filed

by the State was dismissed by the learned Division Bench and the

direction given by the learned Single Bench to offer appointment

to the writ petitioner despite pendency of the criminal case was

affirmed. In the said judgment, the Division Bench pertinently

observed that the offences attributed to the candidate did not

involve allegations of moral turpitude. Thus, the said judgment is

also of no avail to the respondent writ petitioner Gajendra Narayan

Patidar.

As a consequence of the above discussion, the impugned

order dated 23.01.2020 passed by the learned Single Bench does

not stand to scrutiny and hence cannot be sustained. Thus, the

same is reversed.

The special appeal is allowed accordingly. Stay application is

disposed of.

(2) D.B. Spl. Appl. Writ No. 455/2021 (State & Ors. vs. Babulal Moond)

The respondent writ petitioner herein, applied for selection

on the post of Lab Assistant pursuant to the recruitment

notification dated 09.05.2018. He cleared the written examination

and after completion of the requisite formalities, he was offered

provisional appointment vide order dated 08.08.2020. At the time

of joining the duty, the respondent writ petitioner submitted a

Character Certificate issued by the Superintendent of Police

whereupon, it came to light that a criminal case was pending

against him for the offences punishable under Sections 332, 336

and 353 IPC and Section 3 of the P.D.P.P. Act. Despite that, the

(11 of 16) [SAW-543/2021]

respondent was allowed to join duty. The disciplinary authority,

being the Principal, Government Sr. Secondary School, Napasar,

District Bikaner, was apprised about the pendency of the criminal

case involving the above mentioned offences whereupon, he

sought instructions from the District Education Officer, Bikaner

who issued a communication declaring the respondent herein to

be ineligible for appointment on the ground of facing a criminal

case involving offences covered under Chapter XVI of the IPC.

Thereupon, the respondent writ petitioner preferred S.B. Civil Writ

Petition No.7892/2020 which was allowed by order dated

06.04.2021 assailed by the appellant State in this writ appeal.

We have heard and considered the submissions advanced by

Shri Pankaj Sharma, learned AAG representing the appellate State

and the counsel representing the respondent writ petitioner and,

have gone through the impugned order.

Learned Single Bench allowed the writ petition of the

respondent on the basis of ratio of another Single Bench Judgment

in the case of Mahendra Singh Rathore Vs. State of Raj. &

Ors. (S.B. Civil Writ Petition No.19152/2018), decided on

11.02.2019.

A perusal of the circulars dated 15.07.2016 and 04.12.2019

issued by the Department of Personnel, State of Rajasthan clearly

indicates that there is a prohibition against appointment in service

of a candidate against whom, offences covered under Chapters

XVI and XVII of the IPC are pending. Even in the case of Avtar

Singh Vs. Union of India & Ors. reported in (2016)8 SCC 471,

Hon'ble the Supreme Court held that while taking decision to offer

appointment to an incumbent, the employer shall take into

(12 of 16) [SAW-543/2021]

consideration the applicable Government orders/

instructions/rules, etc.

It cannot be denied that as per the circulars dated

15.07.2016 and 04.12.2019 issued by the Department of

Personnel, State of Rajasthan, an incumbent against whom a case

involving offences punishable under Chapter XVI and XVII of the

IPC is pending, is not entitled to be appointed in Government

service.

As a consequence, we are of the view that the impugned

order dated 06.04.2021 passed by the learned Single Bench

cannot be sustained and hence, the same is reversed.

The special appeal is allowed accordingly.

(3) D.B. Spl. Appl. Writ No. 506/2021 (State & Ors. vs. Mohan Lal)

The State of Rajasthan has assailed the order dated

13.01.2021 whereby, S.B. Civil Writ Petition No.9600/2020

preferred by the respondent writ petitioner Mohan Lal was

accepted and the appellants were directed to offer appointment to

the respondent writ petitioner pursuant to his selection on the

post of Sr. Teacher (Subject English) vide appointment order dated

28.08.2020. The respondent was not allowed to join duty despite

his selection whereupon, he preferred the above writ petition

which came to be accepted by relying on the ratio of the Single

Bench Judgment in the case of Mahendra Singh Rathore Vs.

State of Raj. & Ors. (S.B. Civil Writ Petition

No.19152/2018), decided on 11.02.2019.

(13 of 16) [SAW-543/2021]

At the outset, it may be noted that the ratio of Single Bench

Judgment in the case of Mahendra Singh Rathore (supra) has

been assailed in D.B. Special Appeal Writ No.1377/2019.

The respondent had been denied joining on the ground of

pendency of criminal case arising out of FIR No.387/2012

registered at Police Station Anupgarh. Charge-sheet of the

criminal case has been annexed with the writ petition a perusal

whereof reveals that the respondent Mohan Pal, his father Ratanlal

son of Vajir Chand, brother Mahendra Pal, mother Vimla Devi and

one Ashok Kumar were charge-sheeted for the offences

punishable under Sections 420, 406, 467, 468, 471 and 120B IPC.

The conclusions drawn in the charge-sheet indicate that Kailash,

daughter of accused Ratan Lal and sister of the respondent herein

was married to the complainant Ratan Lal son of Jagdish Oad.

Matrimonial discord developed between the spouses whereupon,

an FIR No.35/2012 came to be filed against Ratan Lal son of

Jagdish Oad.

It further came to light that at the time of marriage of

Kailash, her father (Ratanlal son of Vajir Chand) had gifted a car

to his son-in-law (Ratan Lal son of Jagdish Oad). After lodging of

the FIR No.35/2012, the girl demanded the car back from her

husband and accordingly, he (Ratan Lal son of Jagdish Oad)

returned the car as well as signed Transfer Forms Nos.29 and 30

(under the Motor Vehicles Act).

Thereafter, Ratanlal son of Vajir Chand, got the car

transferred on the basis of the documents provided by his son-in-

law Ratan Lal son of Jagdish Oad.

However, after filing of charge-sheet in FIR No.35/2012,

Ratan Lal son of Jagdish Oad lodged the FIR No.387/2012 alleging

(14 of 16) [SAW-543/2021]

that his father-in-law Ratanlal son of Vajir Chand and his family

members (including the writ petitioner) got the car transferred by

fabricating his signatures. The police initially gave a negative Final

Report. Shri Ratan Lal son of Jagdish Oad submitted a protest

petition on which, further investigation was ordered. The

investigating officer collected the admitted and specimen

signatures of Ratanlal son of Vajir Chand and got the same

compared with the signatures on the forms used to transfer

ownership of the disputed car. Handwriting expert's report was

received with a conclusion that the signatures on the forms did

not match with the specimen signatures of the complainant Ratan

Lal son of Jagdish Oad on which, a charge-sheet came to be filed

as above against Shri Ratanlal and his family members including

the writ petitioner Shri Mohan Lal for the ofences punishable

under Sections 420, 406, 467, 468, 471 and 120B IPC. It is not in

dispute that the respondent disclosed the factum of pendency of

this criminal case while submitting the application for recruitment.

Though it would be premature to make any observation on

the merits of the criminal case (supra) but, in the peculiar facts

and circumstances of the case, this Court is required to consider

the entirety of facts and circumstances prevailing therein and

hence, the allegations of the charge-sheet were carefully

scrutinized and it comes out that there was no involvement

whatsoever of the writ petitioner in the entire transaction

whereby, the car in question was got transferred. The

investigating officer, at one point of time, submitted a negative

Final Report. Even after the investigation was reopened, only the

specimen and admitted signatures of Ratanlal son of Vajir Chand

were got compared with the disputed signatures and hence, the

(15 of 16) [SAW-543/2021]

involvement of the respondent writ petitioner in the said case is

based purely on conjectures and surmises. The two circulars dated

15.07.2016 and 04.12.2019 issued by the Department of

Personnel, State of Rajasthan on which, the counsel representing

the State placed reliance, do not debar the appointment of an

incumbent on Government post on the ground of pendency of

criminal case. Even in the Judgment of Avtar Singh Vs. Union of

India & Ors. reported in (2016)8 SCC 471. In Avtar Singh's

case, Hon'ble the Supreme Court, at Points Nos.4(C) and 5 has

observed that despite pendency of the criminal case, the employer

can consider the antecedents and may take appropriate decision

regarding continuance of the employee.

As has been discussed above, the charge-sheet of the

criminal case wherein, the respondent writ petitioner has been

arraigned as an accused does not prima facie justify his

involvement. It appears that he has been charge-sheeted in the

case simply because he is brother of Smt. Kailash who had filed

the FIR No.35/2012 against her husband Ratan Lal son of Jagdish

Oad (Complainant in FIR No.387/2012).

The learned Single Bench also considered the allegations

levelled in the FIR and came to a conclusion that there was

nothing in these allegations which could disentitle the writ

petitioner for entering into Government Service and rightly so in

our opinion.

Having discussed in detail the allegations as set out in the

FIR and the charge-sheet (supra), we are in conformity with the

view taken by the learned Single Bench that the respondent

cannot be denied entry into Government Service on the basis of

his totally unjustified involvement in the criminal case (supra).

(16 of 16) [SAW-543/2021]

The impugned Judgment dated 13.01.2021 passed by the

learned Single Bench does not warrant interference and as a

consequence, this appeal is dismissed as being devoid of merit.

A copy of this order be placed in each file.

(VINOD KUMAR BHARWANI),J (SANDEEP MEHTA),J

74-Tikam/-

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