Rajasthan High Court - Jodhpur

Amrit Pal vs State Of Rajasthan ... on 25 April, 2023

Bench: Vinit Kumar Mathur

[2023/RJJD/011789] (1 of 6) [CW-17771/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17771/2022

Amrit Pal S/o Shri Harbans Singh, Aged About 35 Years, R/o. Ward No. 4, Village Goluwala Niwadan, Piliganban, District Hanumangarh (Raj.).

----Petitioner Versus

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

2. The Chief Executive Officer, Zila Parishad Bikaner, District Bikaner (Raj.).

                                                                 ----Respondents


For Petitioner(s)         :     Mr. J. S. Bhaleria
For Respondent(s)         :     Mr. Sunil Beniwal, AAG assisted by
                                Mr. Kunal Upadhyay


         HON'BLE MR. JUSTICE VINIT KUMAR MATHUR
                          Order

25/04/2023

      Heard learned counsel for the parties.

The present writ petition has been filed against the order

dated 10.11.2022 passed by the respondent No.2, whereby the

candidature of the petitioner on the post of LDC has been rejected

on the ground that a criminal case is pending consideration

against the petitioner.

Briefly, the facts in the present matter are that the petitioner

being eligible, applied for the post of LDC in pursuance of the

advertisement issued by the respondents in the year 2013. On

04.10.2022, a provisional waiting list was issued, wherein the

name of the petitioner was reflected at Serial No.68. The

petitioner was called for document verification on 06.10.2022 &

07.10.2022. At the time of the verification of the documents, the

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petitioner disclosed the fact of a criminal case pending against him

lodged by his wife for some family dispute. After verification of

the documents, the respondents issued a list of ineligible

candidates on 10.11.2022, wherein in the last column against the

name of the petitioner, it has been mentioned that in view of the

circular of the State Government dated 04.12.2019, the petitioner

cannot be granted appointment as a criminal case under Section

498A and 323 IPC is pending consideration. Aggrieved of the order

dated 10.11.2022, the present writ petition has been preferred by

the petitioner.

Learned counsel for the petitioner submits that there is a

marital discord between the petitioner and his wife and therefore,

his wife has filed a case under Section 498A of IPC. Learned

counsel for the petitioner further submits that merely lodging the

F.I.R. by his wife under Section 498A of IPC cannot be a ground to

deny the right of the petitioner to be considered for appointment

on the post of LDC. He submits that at least an appropriate

committee of the department is required to consider the facts of

the case of the petitioner in detail before coming to the conclusion

that the petitioner is ineligible to be appointed on the post of LDC.

The consideration made vide order dated 10.11.2022 on the face

of it is non-speaking, lacunic, arbitrary and unreasonable so as to

be violative of Articles 14, 16 & 21 of the Constitution of India.

Learned counsel further submits that in identical situation,

the Hon'ble Supreme Court in the case of Avtar Singh V/s

Union of India & Ors., reported in (2018) 1 SCC 268 held that

in view of detailed directions issued by the Supreme Court in the

case of Avtar Singh V/s. Union of India, reported in (2016) 8

[2023/RJJD/011789] (3 of 6) [CW-17771/2022]

SCC 471, the matter should be considered by constituting a

committee. He, therefore, prays that the writ petition may be

allowed and the order dated 10.11.2022 (Annexure-P/5) may be

quashed and set-aside.

Per contra, learned counsel for the respondents submits that

while considering the case of the petitioner for appointment on the

post of LDC, the respondents have taken into consideration the

notification issued by the State Government on 04.12.2019. He

submits that since an F.I.R. under Section 498A of I.P.C. has been

registered against the petitioner, therefore, he is ineligible to be

considered for appointment on the post of LDC. He, therefore,

submits that no illegality has been committed by the respondents

while passing the order dated 10.11.2022.

I have considered the submissions made at the Bar and have

gone through the relevant record of the case.

The undisputed facts in the matter are that the petitioner

being eligible applied for the post of LDC in pursuance of the

advertisement issued by the respondents in the year 2013. The

petitioner's name was reflected in the provisional merit list

prepared by the respondents, however, at the time of verification

of the documents, the petitioner has been declared ineligible in

view of the fact that a case under Section 498A and 323 of I.P.C.

is pending consideration against him. The total consideration for

declaring the petitioner ineligible for the post of LDC reads as

under : -

"vH;FkhZ ds fo:) ekuuh; U;k;ky; esa vkbZihlh dh /kkjk 498 , o 323 esa ekeyk fopkj/khu gksus ij dkfeZd foHkkx ds ifji= fnukad 04-12-2019 ds"

[2023/RJJD/011789] (4 of 6) [CW-17771/2022]

A bare perusal of the order dated 10.11.2022 shows that

merely the fact of pendency of a criminal case under Section 498A

and 323 of the I.P.C. has been noted while declaring the petitioner

ineligible. In the humble opinion of this Court, the consideration

by the respondents is inappropriate in the light of the law

propounded by the Hon'ble Supreme Court in the case of Avtar

Singh(Surpa). The matter is required to be considered in the light

of directions and guidelines issued by the Hon'ble Supreme Court

in the case of Avtar Singh V/s Union of India & Ors., which

reads as under : -

"38.1. 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.

38.2. 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.

38.3. The employer shall take into consideration the government orders/instructions/rules, applicable to the employee, at the time of taking the decision. 38.4. In case there is suppression or false information of involvement in a criminal case where conviction or acquittal had already been recorded before filing of the application/verification form and such fact later comes to knowledge of employer, any of the following recourses appropriate to the case may be adopted:

38.4.1. 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.

38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may

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cancel candidature or terminate services of the employee.

38.4.3. 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.

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.

38.6. 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.

38.7. 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 canceling candidature or terminating services as appointment of a person against whom multiple criminal cases were pending may not be proper.

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.

38.9. 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.

38.10. 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

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or submitting false information as to a fact which was not even asked for.

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

4. In view of the judgment in Avtar Singh 2, operative portion of which we have extracted above, we direct the appointing authority to consider afresh the case of the appellant in the light of the law laid down by this Court and subsequent development pertaining to the order passed in appeal and pass appropriate orders thereon.

5. We make it clear that a speaking order will be passed.

6. In order to enable the appointing authority to pass orders, as above, we direct the appellant to file an appropriate representation before the appointing authority and the appointing authority will pass orders, in accordance with law, within four months from the date of receipt of a representation after affording an opportunity of hearing to the appellant."

In view of the directions and guidelines issued by the Hon'ble

Supreme Court in the case of Avtar Singh V/s Union of India &

Ors., the order passed by the respondents on 10.11.2022

declaring the petitioner ineligible is not sustainable and the same

deserves to be quashed and set-aside.

Accordingly, the present writ petition is allowed and the

respondents are directed to reconsider the matter of the petitioner

preferably by a committee constituted for the purpose and

reconsider the case of the petitioner in the light of the judgment

rendered in the case of Avtar Singh(Supra) and the circular of the

State Government issued from time to time. The entire exercise of

reconsideration shall be done by the respondents within a period