Rajasthan High Court - Jodhpur

Birbal Ram Vishnoi vs State Of Rajasthan And Ors. ... on 23 May, 2024

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      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Writ Petition No. 4803/2017

Birbal Ram Vishnoi S/o Shri Sukh Ram, R/o Vpo Tilwasani, Via
Bhavi, Tehsil Pipar City, District Jodhpur, Rajasthan.
                                                                    ----Petitioner
                                     Versus
1.       State Of Rajasthan Through The Secretary Department Of
         Education, Government Of Rajasthan, Jaipur, Rajasthan
2.       The Secretary, Rajasthan Public Service Commission,
         Ajmer, Rajasthan.
3.       The Director, Secondary Education, District Bikaner,
         Rajasthan.
4.       The District Education Officer, Secondary Education,
         District Barmer, Rajasthan.
5.       The Principal, Government Aadarsh Senior Secondary
         School, Khoja, District Barmer, Rajasthan.
                                                                  ----Respondents


For Petitioner(s)          :     Mr. Kailash Jangid
For Respondent(s)          :     Mr. Sarwan Kumar
                                 Mr. Suniel Purohit


               HON'BLE MR. JUSTICE ARUN MONGA

Judgment (Oral)

23/05/2024

1. Grievance of the petitioner stems out of inaction on the part

of the respondents in denying him the appointment on the post of

Physical Training Instructor Gr.III ('PTI Gr.-III') despite having

secured higher marks than the cut off for the OBC category, on

the ground of pendency of the criminal case against him.

2. Relevant facts pleaded in the writ petition are that pursuant

to the advertisement dated 18.09.2013 issued by the Rajasthan

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Public Service Commission ('RPSC') inviting applications for the

post of PTI Gr.-II & III under the Rajasthan Education Subordinate

Service Rules, 1971, petitioner having requisite qualification

applied for the same in OBC category. After participating in the

examination, he secured higher marks than the cut off for the OBC

category.

2.1. The petitioner was called for document verification.

Thereafter, respondent RPSC issued the amended result and

declared the cut off for the post of PTI Gr.-II & III on 16.12.2016,

wherein, petitioner's roll number was included for the post of PTI

Gr.-III. The respondents vide order dated 31.01.2027 issued

appointment letter to the petitioner and directed him to join at

Government Senior Secondary School, Khoja, Panchayat Samiti

Dhorimanna, District Barmer on the said post.

2.2. After issuance of the appointment order, petitioner submitted

a detailed representation dated 08.02.2017 alongwith an affidavit

disclosing registration of an FIR No. 244/2005 for alleged offences

under Sections 143, 380, 420, 467, & 471 IPC against him. The

Principal in turn directed the petitioner to appear before the

District Education Officer, Secondary Education, Barmer for

reconsideration of his appointment. The DEO did not permit the

petitioner to join. Hence, this writ petition.

3. Defence taken by the respondents is that the action of the

respondents, in the peculiar facts and circumstance of the case, is

perfectly legal, valid, justified and in accordance with law, which

do not suffer from any vice or infirmity in any manner whatsoever

and deserves to be sustained. In this regard, Department of

Personnel (Group-2), Jaipur issued a Circular dated 04.12.2029 on

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the subject matter of character verification of candidates selected

for government jobs.

3.1. The Employer can certainly take into account the job profile,

for which the selection is undertaken, the severity of the charge

levelled against the candidate and whether the acquittal in

question was an honourable acquittal or was merely on the ground

of benefit of doubt or as as result of composition.

3.2. In the instant case, it is evident that there is a criminal case

against the petitioner involving section of IPC relating to moral

turpitude. In such matter, answering respondents are bound to

consider grounds of taking cognizance and framing of charges and

various other aspects, overall conduct of the petitioner including

the accusations which have been levelled. On overall verification,

antecedents of the petitioner are also not found good.

4. In the aforesaid backdrop, I have heard the competing

contentions of learned counsels and perused the case file.

5. First and foremost, reliance has been placed on a judgment,

which was incidentally authored by me in a some what the similar

circumstance in the case titled as Deepak Mistry v. State of

Rajasthan & Ors. : S.B. Civil Writ Petition No. 6457/2023,

decided on 12.07.2024, relevant part of which is reproduced

hereinbelow:-

"7. Let us examine the competing contentions. Predominantly, the pendency of the trial against him seems to be the only reason for withholding the appointment letter of the petitioner. Undoubtedly, the pending trial poses significant challenges for an undertrial, as suspicions surrounding their alleged involvement in a crime often cast a shadow until they are acquitted. Consequently, they typically do not benefit from the presumption of innocence until proven guilty. However, it is essential to consider the nature of the under trial's alleged role in relation to the offense being tried, particularly if it involves moral turpitude that could impact their ability to fulfill duties associated with a potential appointment.

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8. In the case at hand, it's borne out from that petitioner himself got the FIR registered and was thus, in fact, a victim himself. He had a providential escape as he was wearing helmet as stated in the FIR narrative. Further, his being victim stems from the circumstances surrounding the incident where the deceased, found in a drunken state according to the Medical Legal Certificate (MLC- as relied upon in course of the hearing), was driving a moped that collided with the petitioner's motorcycle.

9. In the premise, it appears to be a rather fortunate outcome for the petitioner, who narrowly avoided fatal consequences in what could have easily resulted into being fatal for him as well. The surviving petitioner now finds himself facing trial, unlike the deceased who tragically succumbed to his injuries and, seemingly, contributed to the accident due to his inebriated state. Be that as it may, same is subject matter of trial.

10. To sum up, the trial's pendency seems to be adding to petitioner's victimhood and his serendipitous survival in the accident.

11. Before parting, once again adverting to Rule 18 ibid, the circumstances that led to the petitioner's involvement in criminal proceedings do not constitute moral turpitude or otherwise impinge on the duties the petitioner is expected to perform, should an appointment be offered. Additionally, indiscretions in youth do not necessarily denote a criminal disposition; therefore, a reformative approach is warranted in addressing such matters.

12. As an upshot, the writ petition is allowed and the respondents are directed to issue an appointment letter to the petitioner as it transpires that vide order dated 19.05.2023, the respondents were directed to keep one post vacant, subject to the final outcome of the writ petition.

13. It is made clear that the appointment of petitioner shall be subject to outcome of the criminal proceedings and in case petitioner is held guilty, the consequences shall follow."

6. No doubt in the aforesaid case, the nature of offence

involved was different. Having said that, it so transpires that even

in the present case the dispute is though bordering civil in nature,

but criminal proceedings have been instituted, wherein petitioner

does not appear to be prime accused and he has been arrayed as

one of the co-accused. Be that as it may, the allegations of

forgery etc. are matter of trial.

7. There is another aspect of the matter that neither any

misrepresentation nor any concealment is attributed to the

petitioner as far as disclosure of the aforesaid proceedings are

concerned. Same were instituted way back on 04.08.2005.

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