Rajasthan High Court - Jodhpur

Ramesh Kumar Meena vs State Of Rajasthan (2023:Rj-Jd:40014) on 21 November, 2023

Author: Kuldeep Mathur

Bench: Kuldeep Mathur

[2023:RJ-JD:40014]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 17972/2022

Ramesh Kumar Meena S/o Shri Thavaraji Meena, Aged About 40
Years, R/o Village Patiya, Post Paduna, Tehsil Girwa, District
Udaipur, Rajasthan.
                                                                       ----Petitioner
                                       Versus
1.         State of Rajasthan, Through The Secretary, Department
           Of Revenue, Government Of Rajasthan, Jaipur, Rajasthan.
2.         The Board of Revenue, Ajmer Through Its Registrar,
           Ajmer, Rajasthan.
3.         The District Collector, Land Records, District Udaipur,
           Rajasthan.
                                                                    ----Respondents


For Petitioner(s)            :     Mr.Keshav Bhati.
For Respondent(s)            :     Mr.Mrigraj Singh Rathore, Dy.G.C.



             HON'BLE MR. JUSTICE KULDEEP MATHUR

                                       ORDER

21/11/2023

By way of filing instant writ petition, the petitioner has

prayed for following reliefs:

"It is, therefore, humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed:-

A. By an appropriate writ, order or direction, the Order dated 20.10.2022 (Annex.07) passed by the respondents, cancelling the appointment of the petitioner for the post of Patwari while declaring the petitioner as ineligible may kindly be quashed and set aside.

B. By an appropriate writ, order or direction, the respondents may kindly be directed to treat the petitioner as eligible for the purpose of appointment on the post of Patwari for TSP Area while considering the Rule 18 of the Rajasthan Revenue (Land Records,

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Settlement and Colonization) Subordinate Service Rules, 2019.

C. By an appropriate writ, order or direction, the respondents may kindly be directed to allow the petitioner to join the services on the post of Patwari in pursuance of the Appointment Order dated 08.07.2022 (Annex.02) along with all consequential benefits."

The petitioner applied pursuant to the advertisement dated

17.1.2020 for the post of Patwari and was accorded appointment

vide order dated 8.7.2022 (Annex.2) issued by the Office of

District Collector (LR), Udaipur.

During the course of police verification, the petitioner herein

was found to have been convicted after trial by the competent

criminal court in the following matters:

S.No. Sessions Judgment dated Offences under sections Case No.

1. 187/2007 16.06.2009 147, 149 IPC

2. 1429/2016 24.09.2021 147, 149, 447, 323, 325 IPC

However, in the above mentioned cases, he had been given

the benefit of probation as per the Probation of Offenders Act,

1958.

After receiving police verification report, the District Collector

(LR), Udaipur vide order dated 20.10.2022 (Annex.7) has rejected

the appointment order issued in favour of the petitioner.

Learned counsel for the petitioner while challenging the

order impugned dated 20.10.2022 submitted that the conviction

of the petitioner by a court of law cannot be made a sole ground

to reject the petitioner's candidature particularly when under the

Rajasthan Revenue (Land Records, Settlement and Colonisation)

Subordinate Service Rules, 1970 it has been specifically provided

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that mere conviction of a person would not be a disqualification.

Learned counsel further submitted that the petitioner was falsely

implicated in the said criminal cases at a very young age and

therefore, the same should not be made a basis for rejection of his

candidature. In support of above contention, learned counsel

placed reliance on the judgments passed by Hon'ble the Supreme

Court in the case of Pramod Singh Kirar Vs. State of Madhya

Pradesh & Ors. reported in (2023)1 SCC 423 and Ashok Ram

Parhad & Ors. Vs. The State of Maharashtra & Ors. passed in

Civil Appeal No.822/2023 decided on 15.3.2023.

Per contra, learned counsel for the respondents submitted

that the Department of Personnel has issued circulars dated

15.7.2016 and 4.12.2019 laying down the conditions for

appointment of the selected candidates. Learned counsel

submitted that in the aforesaid circulars, the circumstances in

which the candidate should not be declared ineligible, have been

mentioned in detail. Drawing attention of the Court towards

circular dated 4.12.2019 issued by the Department of Personnel,

learned counsel submitted that any candidate who has committed

offences under Sections 147, 148 IPC is ineligible to be appointed

in the government service. Learned counsel submitted that a

coordinate Bench of this Court in the case of Bhinya Ram Jajra

Vs. State of Rajasthan (S.B. Civil Writ Petition

No.16998/2021) has been pleased to consider exactly similar

controversy and has held that the right of the employer to

consider the suitability of the candidate as per government orders/

instructions/rules at the time of making a decision for induction of

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the candidate in employment, cannot be taken away. Learned

counsel submitted that the aforesaid judgment rendered by

coordinate Bench of this Court has been upheld by Hon'ble

Division Bench while deciding D.B. Special Appeal (Writ)

No.602/2022 (Bhinya Ram Jajra Vs. State of Rajasthan)

vide order dated 2.11.2022.

The operative portion of the judgment passed by Hon'ble

Division Bench is reproduced herein below for ready reference:

"Suffice it to say that the appellant-writ petitioner seeks appointment on the post of Teacher Grade III pursuant to the selection process initiated vide recruitment notification dated 11.09.2017. He was selected and his name was reflected in the merit list. An appointment order was also issued in his favour. During mandatory police verification, it came to light that he had been charge-sheeted for the offence punishable under Section 8/18 of the NDPS Act. A copy of the charge-sheet has been annexed with the writ petition which reflects that the appellant-writ petition was apprehended while peddling opium. Apparently thus, the appellant-writ petitioner is facing trial for a very serious offence against the society and involving grave moral turpitude.

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


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orders/instructions/rules, applicable to the employee, at the time of taking the decision.

(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 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

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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)

Apparently thus, Hon'ble the Supreme Court has clearly laid down that the employer is required to take into consideration the Government orders/instructions/ rules applicable to the employee at the time of taking the decision.

Since the charges against the respondent writ petitioner in the pending criminal case pertain to grave offence of moral turpitude, 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. There is no merit in the contention that the trial has not resulted in conviction. As per the guidelines laid down in the case of Avtar Singh (supra), the employer is entitled to take into consideration the Government orders/instructions/rules applicable to the employee, at the time of taking the decision. Even if, the employee has been acquitted in a case involving offence of moral turpitude or an offence of heinous/ serious nature on technical ground, the employer can still take a decision to take appropriate action for continuation of the employee in service. In the case at hand, the Government instructions, referred to supra, clearly prohibit the entry into Government service of an individual who is involved in an offence of moral turpitude. Indisputably, the trial for the offence punishable under Section 8/18 of the NDPS Act is pending against the respondent and hence, he is having such criminal antecedents which dis-entitled him to be appointed as a Teacher.

The judgment in the case of Mahendra Singh Rathore vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No.19152/2018, decided on 11.02.2019) on which, Dr. Bhati placed reliance was

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challenged by the State of Rajasthan by filing D.B. Special Appeal (Writ) No.1377/2019 which has been accepted by this Court vide order dated 15.09.2022 and the order passed by learned Single Bench has been reversed.

In the case of Love Kush Meena (supra), Hon'ble the Supreme Court accepted the appeal filed by the State and inspite of the acquittal of the respondent, upheld the decision of the authorities in denying appointment to the employee on the ground of his criminal antecedent.

In the case of Rajkumar (supra), the peculiar facts of the case and nature of trivial offences attributed to the aspirants who had been acquitted by compromise, persuaded Hon'ble the Supreme Court to grant discretionary relief. Thus, the facts and circumstance of this judgment are totally distinguishable.

In the case of Mehu Meda (supra), the appeal preferred by the Union of India was dismissed and the judgment of the High Court granting relief to the employee who had been denied appointment despite attaining honorable acquittal in the criminal case was affirmed. Thus, the facts of the said case are also distinguishable.

In the case of Akashdeep Morya vs. Rajasthan High Court & Anr., the aspirant applied for selection in the judicial services. He was arraigned as an accused for trivial charges and was acquitted/exonerated. The appointing authority i.e., the Rajasthan High Court refused to give appointment to the candidate who approached the Division Bench of this Court by filing writ petition (No.12290/2017) which was accepted and the claim of the aspirant for appointment was upheld. However, the said judgment of Division Bench was challenged before Hon'ble the Supreme Court by filing a SLP and the judgment of the Division Bench was reversed vide judgment dated 16.09.2021.Thus, even where, the candidate had been acquitted/exonerated in cases involving trivial offences, Hon'ble the Supreme Court reversed the decision of the Division Bench denying opportunity of joining services as a judicial officer to the said candidate. The case of the appellant-writ petitioner is much more onerous because he is facing trial for the offence under the NDPS Act which is a grave offence against the society and has all attributes of moral turpitude.

In the case of State of Rajasthan & Ors. vs Gajendra Narayan Patidar (D.B. Special Appeal (writ) No.543/2021, decided on 19.05.2022), the Division Bench of this Court considered the import of the Government circulars dated 15.07.2016 &

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04.12.2019 and the Supreme Court judgment in the case of Avtar Singh (supra) in extenso and observed as below:-

"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.

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 help the cause of

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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."

As a result of the above discussion, we are of the firm view that the action of the respondents in denying appointment/posting order to the petitioner is perfectly in accordance with law. The impugned judgment of the learned Single Bench affirming the said decision is unassailable on facts and in law, hence, the same does not warrant any interference whatsoever. Accordingly, the instant intra-court appeal is dismissed as being devoid of merit."

Having considered the rival submissions advanced at the

bar; the precedent law cited at the bar and the fact that the

offences allegedly to have been committed by the petitioner fall

within the prohibited offences, for which the circulars dated

15.7.2016 and 4.12.2019 have been issued by the Department of

Personnel, in the considered opinion of this Court, the action of

the respondents cannot be faulted on any count.

Consequently, the writ petition is dismissed as being devoid

of any merit.

All pending applications if any are also dismissed.

(KULDEEP MATHUR),J 8-TarunGoyal/-