Jagdeesh Kumar vs State Of Rajasthan ...
2023 Latest Caselaw 2226 Raj

[2023/RJJD/006735]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 15899/2019

Jagdeesh Kumar S/o Shri Hanuman Ram, Aged About 28 Years, By Caste Jat, R/o NH-68, Saran Nagar, Village And Post Jalipa, District Barmer.

----Petitioner Versus

1. State Of Rajasthan, Through The Secretary, Finance Department, Government Of Rajasthan, Secretariat, Jaipur.

2. The Secretary, Department Of Personnel (Ka-2), Government Of Rajasthan, Secretariat, Jaipur.

3. The Director, Finance And Accounts, Vit Bhawan, A-Block, Janpath, Jaipur.

4. The Addl. Director Personnel 3), Finance And Accounts, Government Of Rajasthan, Vit Bhawan A-Block Janpath, Jaipur.

5. The Treasury Officer, Treasury And Accounts Officer, Barmer.

----Respondents

For Petitioner(s) : Mr. Jagdeesh Kumar, petitioner in person For Respondent(s) : Mr. Nishant Bafna for Mr. Sandeep Shah, AAG

JUSTICE DINESH MEHTA

Order

16/03/2023 I.A. No.1/2023:

For the reasons stated, the application seeking early listing

of the matter is allowed and the writ petition is heard finally with

the consent of both the parties.

S.B. Civil Writ Petition No. 15899/2019:

1. The petitioner has invoked the extra-ordinary writ

jurisdiction of this Court, calling in question the order dated

[2023/RJJD/006735] (2 of 12) [CW-15899/2019]

23.08.2018 (Annex.-9), whereby his representation for

considering his case for appointment has been rejected.

2. Narrated in brief, the facts appertain are that the petitioner

vied for the post of Junior Accountant pursuant to advertisement

dated 16.04.2015. The petitioner stood meritorious in the process

of recruitment and an appointment order dated 30.06.2017 came

to be issued in his favour.

3. During the course of verification of credentials, the petitioner

disclosed the factum of pendency of a criminal case against him

pursuant to FIR No.197 dated 11.12.2015 alleging offence under

sections 4 and 5 of Rajasthan Essential Services Maintenance Act,

1970 (hereinafter referred to as "the Act of 1970").

4. On finding petitioner's involvement in the criminal case, the

respondents vide order dated 12.07.2017, kept petitioner's

appointment in abeyance.

5. Feeling aggrieved of such decision, the petitioner preferred a

writ petition before this Court (being S.B. Civil Writ Petition

No.14305/2017), which came to be disposed of by a Coordinate

Bench vide order dated 24.07.2018. By way of order dated

24.07.2018, the respondents were directed to consider petitioner's

representation in light of judgment dated 21.07.2016 of Hon'ble

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

& Ors. : Special Leave Petition (C) No.20525/2011.

6. Petitioner's representation in furtherance of above order

dated 24.07.2018, came to be rejected by the respondent No.3

per-viam order dated 23.08.2018.

[2023/RJJD/006735] (3 of 12) [CW-15899/2019]

7. The petitioner has preferred the present writ petition laying

challenge to the order dated 12.07.2017(Annex.-6) so also the

order dated 23.08.2018 (Annex.9).

8. The basic premise on which the petitioner has approached

this Court is that subsequent to rejection of petitioner's

representation dated 23.08.2018, the criminal proceedings

pending against him (being case No.235/2016) have culminated in

the manner that the petitioner having accepted the charges

levelled against him, has been held guilty of those offences but

has been extended the benefit of sections 4/5 of the Probation of

Offenders Act, 1958 (hereinafter referred to as "the Act of 1958").

9. The petitioner argued that the action of the respondents in

cancelling his candidature is illegal and contrary to facts, inasmuch

as, the allegations levelled against him, even if presumed to be

correct, were trivial in nature. He pointed out that he was alleged

to be a member of mob, which had purportedly disrupted the

electricity supply during a strike called by the union.

10. It was argued that the petitioner had accepted his guilt to

buy peace and get rid of unending prosecution in a hope that he

will be given benefit of the Act of 1958. He nevertheless argued

that his conviction for the offences under sections 4/5 of the

Rajasthan Essential Services Maintenance Act, 1970 does not

amount to moral turpitude.

11. Without prejudice to above, the petitioner argued that vide

order dated 14.01.2019, passed in criminal case (No.235/2016)

the petitioner has been given the benefit of section 4/5 of the Act

of 1958 and by virtue of provision contained in section 12 of the

Act of 1958, the disqualification (if any) arising out of such

[2023/RJJD/006735] (4 of 12) [CW-15899/2019]

conviction stands wiped out. The respondents were required to

allow the petitioner to join the services, the petitioner

emphasised.

12. In support of his contention that the petitioner's guilt or

conviction does not amount to moral turpitude, the petitioner

invited Court's attention towards the definition of moral turpitude

given in section 2(f) of the Rajasthan Police Act, 2007, which

reads thus:

(f) "moral turpitude" means involvement in any crime which pertains to cheating, forgery, intoxication, rape, outraging the modesty of a woman, illicit traffic as defined in the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988 (Central Act No. 46 of 1988), immoral trafficking as defined in the Immoral Traffic (Prevention) Act, 1956 (Central Act No. 104 of 1956), planned violence or any offence against the State as mentioned in Chapter VI of the Indian Penal Code, 1860 (Central Act No. 45 of 1860);"

13. According to the petitioner, his conviction under the offences

under sections 4/5 of the Act of 1970 cannot be treated to be a

crime of grave nature amounting to moral turpitude, as defined in

above provision.

14. Mr. Nishant Bafna, learned counsel appearing for the

respondents, on the other hand, raised preliminary objection that

the present petition is barred by res-judicata, inasmuch as, the

petitioner has yet again challenged the order dated

12.07.2017(Annex.-6), which was the subject matter of the earlier

writ petition.

[2023/RJJD/006735] (5 of 12) [CW-15899/2019]

15. Adverting to the merit of the case, learned counsel for the

respondents argued that the petitioner was involved in the

offences under sections 4/5 of the Rajasthan Essential Services

Maintenance Act, 1970 and, therefore, he is not entitled to enter

in the State services.

16. Learned counsel argued that in any case, it is the subjective

satisfaction of the employer to offer or deny appointment, having

regard to the nature of the delinquency and nature of the post.

17. It was argued that once the respondents have recorded their

dissatisfaction and have found that the petitioner having involved

in the offences under section 4/5 of the Act of 1970, is not eligible

for appointment, the Court cannot enter into the arena of

substituting its satisfaction and pronounce upon suitability or

eligibility of a candidate.

18. He argued that even in the case of acquittal, Hon'ble the

Supreme Court has held that appointment cannot be claimed as a

matter of right, whereas in the present case, the petitioner has

admittedly been convicted.

19. Learned counsel for the respondents cited following

judgments of Hon'ble the Supreme Court:-

(i) Union Territory, Chandigarh Administration & Ors.

Vs. Pradeep Kumar & Ors. : (2018) 1 SCC 797;

(ii) Avtar Singh Vs. Union of India & Ors.: (2016) 8

SCC 471;

(iii) Commissioner of Police Vs. Raj Kumar : 2021 (8)

SCC 347; and

(iv) Union of India & Ors. Vs. Methu Meda : 2022 (1)

SCC (1)

[2023/RJJD/006735] (6 of 12) [CW-15899/2019]

20. On the question as to whether the petitioner's involvement in

commission of offences under sections 4/5 of the Act of 1970

amounts to moral turpitude, learned counsel for the respondents

argued that involvement of an employee in a strike and attempt of

disrupting electricity- which is an essential service is a serious

matter and the State was perfectly justified in refusing

appointment to the petitioner.

21. Heard rival parties and perused the material available on

record including the judgments cited by Mr. Bafna.

22. Preliminary objection raised by Mr. Bafna, if examined

carefully, has no substance, given that after passing of the earlier

order dated 12.07.2017 a fresh order dated 23.08.2018 has been

passed. Petitioner's essential grievance is against the subsequent

order dated 23.08.2018, whereby his right to appointment has

been eschewed. If the petitioner has challenged the earlier order

dated 12.07.2017 also, due to inadvertence or otherwise, his writ

petition cannot be dismissed on the ground of res-judicata.

Admittedly, the petitioner has not filed any other writ petition

oppugning the order dated 23.08.2018. Hence, the preliminary

objection raised by the respondents is liable to be and is hereby

repelled.

23. It is to be noted that the petitioner's representation in light

of Avtar Singh's case came to be rejected on 23.08.2018 and the

order of his conviction wherein benefit under sections 4/5 of the

Act of 1958 has been given, came to be passed on 14.01.2019.

24. By virtue of provision contained in section 12 of the Act of

1958, the disqualification, if any, attached with the offence gets

eclipsed.

[2023/RJJD/006735] (7 of 12) [CW-15899/2019]

25. This Court is not oblivious of the legal position settled by

Hon'ble the Supreme Court that even in the case of acquittal, it is

discretion of the State to grant or not to grant the appointment to

a candidate having regard to the offence alleged vis-a-vis the post

on which suitability is being examined. But then, the cases cited

by the learned counsel for the respondents do not deal with the

eventuality, when the person was given benefit of probation.

26. It is noteworthy that a circular has been issued by the

Department of Personnel, Government of Rajasthan on

15.07.2016 (obviously binding upon the respondents), providing

guidelines to ensure uniformity in approach in the cases relating to

new appointments. Said circular itself provides that the candidates

who have been given benefit of section 12 of the Act of 1958 shall

be eligible for appointment.

27. It will not be out of place to reproduce relevant part of the

circular, which makes it abundantly clear that according to the

State's policy, the petitioner is eligible for appointment:-

",sls [email protected];ka ftuesa vH;FkhZ dks fu;qfDr gsrq ik= ekuk tkuk pkfg,%&

(i) ftu vH;fFkZ;ksa dks vkijkf/kd izdj.k ds vUos'k.k esa nks'kh ugha ik;k x;k gks rFkk vUos'k.kksijkar ,Q-vkj- Lohd`r dh tk pqdh gksA

(ii) ftu vH;fFkZ;ksa dks fdlh vkijkf/kd izdj.k esa U;k;ky; }kjk nks'keqDr dj fn;k x;k gks] rFkk ml izdj.k esa jkT; ljdkj }kjk vihy ugha djus dk fu.kZ; fy;k tk pqdk gksA

(iii) vH;fFkZ;ksa ds ,sls izdj.k ftuesa U;k;ky; }kjk ifjoh{kk vf/kfu;e dh /kkjk 12 dk ykHk fn;k tkdj ifjoh{kk ij NksM+k x;k gksA ¼nks'kflf) fdlh fujgZrk ls xzLr [email protected]; [email protected] thou ij fdlh izdkj dk foijhr izHkko ugha½A

[2023/RJJD/006735] (8 of 12) [CW-15899/2019]

(iv) vH;fFkZ;ksads ,sls izdj.k ftuesa nks'kh djkj fn;k tkdj fd"kksj vf/kfu;e dh /kkjk 1 ¼1½ ¼,½ dk ykHk iznku fd;k x;k gksA"

28. Dealing with the identical fact situation and circular issued by

the State, in the case of Amit Singh Rathi Vs. State of Rajasthan &

Ors.: S.B. Civil Writ Petition No.2205/2021, decided on

10.03.2023, this Court has held thus:-

"11. Heard the petitioner and the learned counsel for the respondent-State and perused the material available on record.

12. Before adverting to the rival contentions, this Court would like to observe that the respondents have cancelled/revoked petitioner's appointment without following the basic canon of law,- opportunity of hearing being the first principle of natural justice. It is surprising to note that before snatching petitioner's livelihood, they did not even deem it imparative to issue a notice to him. The order impugned is thus, violative of Article 14 and 16 of the Constitution.

13. A perusal of the record makes it abundantly clear that the respondents were having all requisite details including the copy of the order dated 10.01.2020, passed in the appeal preferred by the petitioner. The judgment dated 10.01.2020, passed in the appeal preferred by the petitioner in unambiguous terms confers benefit of section 4 of the Act of 1958 upon the petitioner, so far as charges for the offences under sections 3/25 and 4/25 of the Arms Act are concerned.

14. A further look at the order dated 10.01.2020 shows that the conviction of the petitioner for the offences under sections 399 and 402 of the Indian Penal Code has been set aside.

[2023/RJJD/006735] (9 of 12) [CW-15899/2019]

15. Such being the position, it was not open for the respondents to cancel petitioner's selection/ appointment by taking an absolutely erroneous and hypertechnical view of the matter. The State's stand that petitioner's acquittal is not honourable, though does not find mention in the order impugned, but even if examined on merit, is untenable. The petitioner has been acquitted of the charges under sections 399 and 402 of the Indian Penal Code. The so called 'honourable acquittal' is not required to be mentioned in the judgments of the Courts and it is required to be deciphered from the adjudication made.

16. A perusal of para 13 of the judgment dated 10.01.2020 reveals that this Court has acquitted the appellants (including petitioner) of the charges for the offences under sections 399 & 402 of the Indian Penal Code. Given that the petitioner has been acquitted of the very charges, the respondents' stand that the his acquittal was not honourable is absolutely uncalled for and unsustainable.

17. Adverting to petitioner's conviction for the offences under sections 3/25 and 4/25 of the Arms Act, suffice it to observe that though petitioner's conviction has been affirmed qua charges, but he has been given the benefits of section 4 of Probation of Offenders Act, 1958.

18. Once the benefit of section 4 has been granted, it was not open for the respondents to cancel petitioner's candidature, else the entire purpose of the Probation of Offenders Act, more particularly section 12 thereof would be defeated. Section 12 of the Act of 1958 Reads thus:-

"12. Removal of disqualification attaching to conviction.-- Notwithstanding anything contained

[2023/RJJD/006735] (10 of 12) [CW-15899/2019]

in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:

Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence."

19. Section 12 which contains a non-obstante clause obliterates or expunges the disqualification attached to or emanating from a conviction.

20. That apart, the respondents have relied upon the circular dated 04.12.2019 in order to cancel petitioner's selection, whereas a simple look, particularly para 2(iii) thereof (reproduced hereinfra) reveals that the petitioner was entitled to be entered into the State services. The order/action of the State is clearly contrary to its own circular let alone the statutory provisions.

"2- ,sls [email protected];ka ftuesa vH;FkhZ dks fu;qfDr gsrq ik= ekuk tkuk

pkfg, %&

(i) ----------

      (ii)     -----------
      (iii)    vH;fFkZ;ksa ds ,sls izdj.k ftuesa U;k;ky; }kjk ifjoh{kk vf/kfu;e

dh /kkjk 12 dk ykHk fn;k tkdj ifjoh{kk ij NksM+k x;k gksA ¼nks'kflf) fdlh fujgZrk ls xzLr [email protected]; [email protected] thou ij fdlh izdkj dk foijhr izHkko ugha½A"

21. As an upshot of the discussion forgoing, the writ petition succeeds. The order dated 25.01.2021, rejecting petitioner's candidature and cancelling his appointment order dated 14.07.2020 is hereby quashed.

22. The respondents are hereby directed to allow the petitioner to join within a period of four weeks from

[2023/RJJD/006735] (11 of 12) [CW-15899/2019]

today, if the petitioner is otherwise eligible and suitable.

23. The petitioner shall be entitled to notional benefits from the date of issuance of his appointment order.

24. It is hereby made clear that the respondents shall be free to examine petitioner's suitability on all counts other than his conviction referred to in the order dated 25.01.2021.

25. Stay petition also stands disposed of accordingly."

29. One cannot but remain oblivious of the fact that the

prescribed punishment for the offence under section 4 of the Act

of 1970 is maximum to the extent of six months, or fine which

may extend to Rs.200/-, or with both and punishment under

section 5 of the Act of 1970 is for one year, or with fine which may

extend to Rs.1000/-, or with both.

30. In prima-facie opinion of this Court apart from the

punishment being less than a year, the offences or conviction

cannot be said to be a moral turpitude, having regard to the

allegation levelled against the petitioner.

31. Concededly, when the respondents rejected petitioner's

representation, the order dated 14.01.2019 was not in existence

and hence, there was no occasion for the respondents to consider

the aspect of petitioner having been given benefit of section 4/5 of

the Act of 1958.

32. The petitioner is directed to file a representation while

placing a copy of the order instant. He shall also furnish a copy of

the order dated 14.01.2019 and relevant law.

33. The respondents, more particularly, the respondent No.3 -

Director, Finance and Accounts, Jaipur shall consider petitioner's

[2023/RJJD/006735] (12 of 12) [CW-15899/2019]

candidature afresh, in light of order dated 14.01.2019, whereby

he has been given the benefit of probation under the Act of 1958.

He shall take into account the above reproduced part of circular

dated 15.07.2016 or other prevailing circular, issued by the State

in this regard and shall pass a fresh order, dispassionately on or

before 31.05.2023.

34. The competent authority shall also have due regard to

relevant law, as noticed hereinabove and the object of the Act of

1958, which is primarily beneficial and reformative in nature. The

competent authority should bear in mind that if a meritorious

youth simply because of having participated in a strike is dealt

with by the State with such apathetic approach, it would be an

affront to mandate of section 12 of the Act of 1958.

35. In case the petitioner is found suitable for appointment, he

shall be given notional benefits from 30.06.2017 - the date of

issuance of appointment order. Petitioner shall not claim

monetary benefits for the period prior to his joining.

36. The writ petition so also stay petition stands disposed of

accordingly.

(DINESH MEHTA),J 41-Ramesh/-

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