Rajasthan High Court - Jodhpur
Shanker Lal Jat vs The Principal Secretary ... on 19 March, 2025
[2025:RJ-JD:14682]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 16518/2021
Shanker Lal Jat S/o Shri Kailash Chandra Jat, Aged About 31
Years, R/o Vpo Bachhkhera, Tehsil Shahpura, District Bhilwara.
----Petitioner
Versus
1. The Principal Secretary, Panchayati Raj Department,
Government Of Rajasthan, Secretariat, Jaipur.
2. Director, Primary Education, Directorate Bikaner, Rajasthan.
3. Chief Executrive Officer, Zila Parishad Barmer.
4. Development Officer, Panchayat Samiti, Dhanau, Barmer.
5. Chief Block Educational Officer, Panchayat Samiti, Dhanau,
Barmer.
6. Headmaster, Govt. Upper Primary School Jain Manmodo Ka
Tala, Goro Ka Tala, Dhanan Barmer Dist Barmer
----Respondents
For Petitioner(s) : Mr. Himanshu Pareek.
For Respondent(s) : Mr. Sandeep Soni for
Mr. B.L. Bhati, AAG
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
19/03/2025
1. Petitioner herein, aspirant to become a Teacher, inter-alia,
seeks issuance of appropriate writ, order and / or direction
commanding the respondents to allow him to join on the post of
Teacher Grade-III with all consequential benefits pursuant to
advertisement dated 11.09.2017.
2. Brief facts first. Respondent No.2 issued an advertisement on
11.09.2017 for the selection of 9,178 posts of Teacher Grade-III
Level-II Science & Math under the Rajasthan Panchayati Raj Rules,
1996 for the Non-TSP area. Petitioner, meeting the qualifications,
[2025:RJ-JD:14682] (2 of 12) [CW-16518/2021]
applied in the OBC Non-creamy category and was successful in the
selection process.
2.1 He was issued an appointment order on 28.10.2021, placing
him at Sr. No. 4 for a posting at the Govt. Upper Primary School in
Barmer. However, the petitioner was not allowed to join on duty.
The reason provided was an ongoing criminal case under Sections
498-A and 406 of the IPC, despite the petitioner's affidavit
confirming that he has not been convicted by any Court. Hence,
the present petition.
3. To oppose the petition, stand taken inter alia in the reply
filed by the respondents is as under:-
"3. That it is humbly submitted that the petitioner stated in his writ
petition that his candidature was wrongly been rejected by the
answering respondent and he is liable to be appointed on the said
post. It is pertinent to submit here that the petitioner in the writ
petition has clearly averred the fact at para no.12 of the present writ
petition about the police verification and pendency of the same
before the learned court. An FIR bearing no.99/2020 was lodged
against the petitioner himself under the Section 406 and 498A Of
Indian Penal Code (IPC), 1860 at the police station Phulia,
Bhilwara, Rajasthan. It is also the admitted position in the
pleadings of the petitioner that the case is still pending
consideration/adjudication/trial before the competent Court
(Anex.10). It is pertinent to submit here that mere inclusion of the
name of petitioner in the appointment list does not create any right
in favour of petitioner. The appointment order itself is provisional
one and will only come into force upon completion of police
verification of the candidates. The candidature of the petitioner has
been assessed & considered till his non-consideration on the said
post strictly in accordance with guidelines/circular governing the
field.
4. That answering respondent has not considered the candidature of
the petitioner on ground of pending criminal case against the
petitioner and the amended advertisement is governed by the
circular dated 15.07.2016. The circular dated 15.07.2016
specifically deals with cases of those candidates against whom
pending trial is there in one or the other registered FIR's. The
petitioner in the present writ petition is having the FIR registered
under Section 406 & 498A of IPC. Hence, his candidature has been
rejected as per the circular and the conditions mentioned in the
appointment order.
5. That the respondents most respectfully submits that the present
writ petition is just an abuse of process of law as no grounds is
available to the petitioner for challenging the recruitment process
[2025:RJ-JD:14682] (3 of 12) [CW-16518/2021]
as conducted by the respondent department. It is pertinent to submit
here that the candidature of the petitioner has been rejected in
lieu/pursuance of circular dated 15.07.2016 wherein the specific
conditions have been mentioned in the said circular wherein if an
aspirant is having criminal antecedents, the appointment could not
be given. It is pertinent to submit here that the circular dated
15.07.2016 is not under challenge in the instant writ petition and
even otherwise as per the Hon'ble Apex Court, it is upto the
discretion of the employer to deny giving employment on the basis
of eventualities of criminal trial / conviction /acquittal of a given
aspirant. Hon'ble Apex Court further mandatorily directed for
consideration of Government order / instructions / rules at the time
of taking such decisions. Thus, in the instant case the petitioner has
committed."
4. In the aforesaid backdrop, I have heard the rival contentions
and gone through the case record.
5. Learned counsel for the petitioner argues that, despite being
selected and having his documents verified, the petitioner was
unjustly denied the opportunity to join due to the ongoing criminal
case. Additionally, he states that in the case arsing out of FIR
bearing No.99/2020 under the Section 406 and 498A of Indian
Penal Code (IPC), 1860, police station Phulia, Bhilwara, the
petitioner was subsequently acquitted vide judgment dated
13.11.2024 passed by the learned trial Court of Judicial
Magistrate, Shahpura. Further the petitioner also appeared before
the competent police authority and his character verification was
done. As per character verification report dated 15.11.2024 issued
by the District Police Superintendent, Shahpur, there are no
adverse remarks and he has rather given the remark 'OK'.
6. Per contra, learned counsel for the respondents argues on
the lines with the position articulated in the reply and vehemently
opposes the petition. The counsel submits that the points raised in
the petition lack merit and should be dismissed.
7. I shall now proceed to render my opinion. First and foremost,
it is not the case of the respondents that the petitioner indulged in
[2025:RJ-JD:14682] (4 of 12) [CW-16518/2021]
any concealment and/or misrepresentation at the time of his
application for the post in question pursuant to the advertisement
dated 11.09.2017. Annex.-2 is his on-line application. Its format
does not have any column or question requiring the applicant to
disclose his involvement in any criminal case. Thus, in fact, there
was absolutely no concealment and/or misrepresentation, overtly
or covertly, at the time of the petitioner's applying for the post.
8. Mainstay of the respondents' case, as pleaded in their reply,
is that the petitioner's candidature has been rejected in
lieu/pursuance of circular dated 15.07.2016 laying down that if an
applicant is having criminal antecedents, the appointment could
not be given. The petitioner had committed an offence falling in
Chapter XVI and XVII of the Code of Criminal Procedure attracting
the applicability of circular dated 15.07.2016 as well as amended
circular dated 04.12.2019 (both circulars being part of
Annex.R/1).
9. Firstly, circular dated 04.12.2019 itself shows that the
previous circular dated 15.07.2016 stood superseded. Therefore,
the respondent's reliance on superseded circular dated 15.07.2016
is wholly misplaced.
9.1. Coming now to circular dated 04.12.2019. It's relevant part
is as under:
CIRCULAR/NOTIFICATION DATED 04.12.2019:
"अत: शासन में सभी स्तरों पर एकरूपता बनाए रखने के हित में इस
विषय में पू र्व में जारी तत्सं बंधी सभी परिपत्रों / निर्देशों के अधिकमण में
निम्नानुसार दिशानिर्देश जारी किये जाते हैं -
चरित्र सत्यापन के संबंध में विभिन्न सेवा नियमों में प्रावधान इस प्रकार
है :-
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
[2025:RJ-JD:14682] (5 of 12) [CW-16518/2021]
such certificates written not more than six months prior to
the date 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 violance or with a movement which has a 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 violance, 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 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."
इस संबंध में प्रकरण मानः सर्वोच्च न्यायालय में पहुं चने पर माननीय
न्यायालय द्वारा दिल्ली प्रशासन बनाम सुशील कुमार (1996 (11) CC
605) में यह सिद्धान्त प्रतिपादित किया हुआ है कि सेवा में नियुक्ति प्रदान
करते समय अभ्यर्थी का चरित्र एवं पूर्व आचरण महत्वपूर्ण है । अपराधिक
प्रकरण में दोषसिद्धि अथवा दोषमुक्ति अर्थात वास्तविक परिणाम इतना
सुसंगत नहीं है जितना की अभ्यर्थी का आचरण व चरित्र।"
सेवा नियमों की अपे क्षा यह है कि 'किसी अभ्यर्थी को नियुक्ति दिए
जाने या न दिए जाने के संबंध में नियुक्ति प्राधिकारी को प्रत्येक प्रकरण के
तथ्यों, परिस्थितियों एवं जिस पद पर नियुक्ति दी जानी है उस पद के कार्य
की प्रकृति एवं गरिमा के अनुसार गुणावगुण पर निर्णय लेना चाहिए। पू र्व
आचरण के आधार पर किसी भी अभ्यर्थी को नियुक्ति के योग्य या अयोग्य
पाने का निर्णय करते समय नियुक्ति प्राधिकारी को प्रत्येक प्रकरण में
अपराध की परिस्थितियों को भी ध्यान में रख कर अभ्यर्थी के आचरण का
आं कलन करना चाहिए
उक्तानुसार यह निर्विवाद है कि किसी अभ्यर्थी को नियुक्ति दिए
जाने/नहीं दिए जाने का निर्णय अंतिम रूप से नियुक्ति प्राधिकारी को ही
सुसंगत से वा नियमों को ध्यान में रखते हुए गुणावगुण के आधार पर लेना
होगा। तथापि कुछ प्रकरण ऐसी प्रकृति के होंगे जिनमें स्पष्टतः यह माना
जा सकता है कि अभ्यर्थी नियुक्ति हे तु पात्र नहीं है जबकि अन्य कुछ ऐसे
प्रकरण भी होंगे जिनमें नियुक्ति से वंचित किया जाना किसी भी दृष्टि से
उचित / न्यायपूर्ण नहीं माना जा सकता। अतः नियुक्ति अधिकारियों के
सामान्य मार्गदर्शनार्थ निदर्शन के रूप में ऐसी प्रकृति के प्रकरणों को यहां
लेखबद्ध किया जा रहा है
"1. ऐसे प्रकरण स्थितियां जिनमें नियुक्ति हे तुअपात्रता मानी जानी चाहिए-
यदि किसी भी अभ्यर्थी के विरूद्ध निम्न में से किसी भी प्रकार के अपराध
के तहत प्रकरण अन्वेक्षणाधीन न्यायालय में विचाराधीन (under trial) है
[2025:RJ-JD:14682] (6 of 12) [CW-16518/2021]
अथवा दोष सिद्धि उपरां त सजा हो चुकी है , तो उसे राज्य के अधीन
सेवाओं / पदों पर नियुक्ति हे तु पात्र नहीं माना जाना चाहिए-
xxx xxx xxx
(V) भारतीय दं ड सं हिता के अध्याय 16 एवं 17 में यथावर्णित अपराधों
में अंतर्वलितता हो"
(vi) भारतीय दं ड सहिता की धारा 147, 148 (बलवा करना) के अपराध
में अंतर्वलितता हो।
xxx xxx xxx
2. ऐसे प्रकरण / स्थितियां जिनमें अभ्यर्थी को नियुक्ति हे तु पात्र माना जाना
चाहिए-
(i) जिन अभ्यर्थियों को आपराधिक प्रकरण में अन्वेषण में दोषी नहीं पाया
गया हो तथा संबंधित भर्ती में परीक्षा परिणाम जारी होने वो एक वर्ष के
भीतर अन्वेषणोपरां त एफ आर. न्यायालय में प्रस्तुत की जा चुकी हो।
(ii) दोषमुक्ति के मामलों में विभाग में इस संबंध में गठित समिति जिसमें
एक पु लिस अधिकारी भी सदस्य होगा, अभ्यर्थी के पूर्ववृत (antecedents),
आरोपों की गहनता एवं दोषमुक्ति का आधार, अर्थात क्या दोषमुक्ति
सम्मानजनक रूप से प्रदान की गई है अथवा संदेह के लाभ /समझौते के
आधार पर प्रदान की गई है , आदि का समु चित परीक्षण कर. अभ्यर्थी को
नियुक्ति दे ने के संबंध में निर्णय लेगी।
(iii) अभ्यर्थियों के ऐसे प्रकरण जिनमें न्यायालय द्वारा परिवीक्षा अधिनियम
की धारा 12 का लाभ दिया जाकर परिवीक्षा पर छोड़ा गया हो। (दोषसिद्धि
किसी निरर्हता से ग्रसत नहीं/ राजकीय से वा/भावी जीवन पर किसी प्रकार
का विपरीत प्रभाव नहीं)।
(iv). अभ्यर्थियों के ऐसे प्रकरण जिनमें दोषी करार दिया जाकर किशोर
न्याय (बालकों की दे खरे ख और संरक्षण) अधिनियम, 2005 की धारा 24(1)
का लाभ प्रदान किया गया हो।
समस्त नियोक्ता अधिकारीगण से अपे क्षा की जाती है कि वे
अभ्यर्थियों के चरित्र/पुलिस सत्यापन के संबंध में नियुक्ति के समय संबंधित
सेवा नियमों के प्रावधानों एवं इन दिशा-निर्देशों के प्रावधानों को दृष्टिगत
रखते हुए समु चित निर्णय लेंगे। तथा उक्त प्रकृति के प्रकरणों को न तो
अनावश्यक रूप से लम्बित रखेंगे और न ही कार्मिक विभाग को सं दर्भित
करें गे ।"
9.2. As would be seen, the circular dated 04.12.2019 relied upon
by the respondents itself lays down that these are only guidelines
expected to be kept in view and that the ultimate decision for or
against appointment shall be taken by the appointing authority
after consideration of each case on it's merits.
10. In the instant case, the only reason given by the
respondents to justify their refusal to allow the petitioner to join
duty is that he had committed an offence falling in Chapter XVI
and XVII of the Code of Criminal Procedure attracting the
applicability of circular dated 15.07.2016 as well as amended
[2025:RJ-JD:14682] (7 of 12) [CW-16518/2021]
circular dated 04.12.2019 (both circulars being part of
Annex.R/1). There is absolutely no plea or material placed on
record to show that the appointing authority after due and
objective consideration of and application of mind to the facts and
circumstances of the case had taken any conscious decision on it's
merits for refusal to allow the petitioner to join duty.
11. Circular dated 04.12.2019 (Annex.R/1) itself states that the
same is in the nature of the Government's administrative
guidelines to its functionaries and that the ultimate decision-
whether or not to appoint a candidate is to be taken by the
appointing authority taking into consideration the facts and
circumstances of each case, the nature of work and status of the
post on merits and that in each case, while deciding on the
suitability or unsuitability of a candidate, the appointing authority
should assess his (candidate's) character by taking into
consideration the circumstances of the offence.
12. As already observed, in present case, there is absolutely no
plea or material placed on record to show that the appointing
authority after due and objective consideration of and application
of mind to the facts and circumstances of the case had taken any
conscious decision on it's merits for refusal to allow the petitioner
to join duty. It cannot said more than just a mechanical approach
of the respondents, totally bereft of application of mind to the
facts and circumstances of case by the concerned appointing
authority.
13. Reference may be had to Apex Court judgment rendered in
Avtar Singh Vs. Union of India & Ors. (2016) 8 SCC 471 decided
on 21.07.2016 wherein it was held, inter alia, that though it is
[2025:RJ-JD:14682] (8 of 12) [CW-16518/2021]
open to the employer to adjudge antecedents of the candidate,
but ultimate action should be based on objective criteria on due
consideration of all relevant aspects and that in case when facts
have been truthfully declared in character verification form
regarding pendency of a criminal case of trivial nature, the
employer in facts and circumstances of the case, in its discretion,
may appoint the candidate subject to the decision of such case.
13.1. Being apposite, relevant part thereof is extracted below:
"30. The employer is given "discretion" to terminate or otherwise
to condone the omission. Even otherwise, once employer has the
power to take a decision when at the time of filling verification form
declarant has already been convicted/acquitted, in such a case, it
becomes obvious that all the facts and attending circumstances,
including impact of suppression or false information are taken into
consideration while adjudging suitability of an incumbent for
services in question. In case the employer comes to the conclusion
that suppression is immaterial and even if facts would have been
disclosed it would not have adversely affected fitness of an
incumbent, for reasons to be recorded, it has power to condone the
lapse. However, while doing so employer has to act prudently on
due consideration of nature of post and duties to be rendered. For
higher officials/higher posts, standard has to be very high and even
slightest false information or suppression may by itself render a
person unsuitable for the post. However, same standard cannot be
applied to each and every post. In concluded criminal cases, it has
to be seen what has been suppressed is material fact and would
have rendered an incumbent unfit for appointment. An employer
would be justified in not appointing or if appointed, to terminate
services of such incumbent on due consideration of various aspects.
Even if disclosure has been made truthfully, the employer has the
right to consider fitness and while doing so effect of conviction and
background facts of case, nature of offence, etc. have to be
considered. Even if acquittal has been made, employer may
consider nature of offence, whether acquittal is honourable or
giving benefit of doubt on technical reasons and decline to appoint
a person who is unfit or of dubious character. In case employer
comes to conclusion that conviction or ground of acquittal in
criminal case would not affect the fitness for employment,
incumbent may be appointed or continued in service.
xxxx xxxx xxxx
34. No doubt about it that verification of character and
antecedents is one of the important criteria to assess suitability and
it is open to employer to adjudge antecedents of the incumbent, but
ultimate action should be based upon objective criteria on due
consideration of all relevant aspects.
[2025:RJ-JD:14682] (9 of 12) [CW-16518/2021]
35. Suppression of "material" information presupposes that what is
suppressed that "matters" not every technical or trivial matter. The
employer has to act on due consideration of rules/instructions, if
any, in exercise of powers in order to cancel candidature or for
terminating the services of employee. Though a person who has
suppressed the material information cannot claim unfettered right
for appointment or continuity in service but he has a right not to be
dealt with arbitrarily and exercise of power has to be in reasonable
manner with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon the nature of
post, higher post would involve more rigorous criteria for all
services, not only to uniformed service. For lower posts which are
not sensitive, nature of duties, impact of suppression on suitability
has to be considered by authorities concerned considering
post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
37. The "McCarthyism" is antithesis to constitutional goal, chance
of reformation has to be afforded to young offenders in suitable
cases, interplay of reformative theory cannot be ruled out in toto
nor can be generally applied but is one of the factors to be taken
into consideration while exercising the power for cancelling
candidature or discharging an employee from service.
38. We have noticed various decisions and tried to explain and
reconcile them as far as possible. In view of the aforesaid
discussion, we summarise our conclusion thus:
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 filling 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.
[2025:RJ-JD:14682] (10 of 12) [CW-16518/2021]
38.4.2. Where conviction has been recorded in case which is not
trivial in nature, employer may 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
cancelling 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 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 supplied)
[2025:RJ-JD:14682] (11 of 12) [CW-16518/2021]
14. The action of the respondents is thus not only in violation of
the aforesaid law laid down in Avtar Singh (supra) by a 3-Judge
Bench of the Hon'ble Supreme Court but also shows utter non-
adherence to their own administrative policy instructions and the
failure to show application of mind to the facts and circumstances
of case by the appointing authority. The same cannot, therefore,
be sustained in law. Moreover, as already noted, in the criminal
case registered against the petitioner, he stands acquitted of the
charges by the Court vide judgment dated 13.11.2024 passed by
the learned trial court of Judicial Magistrate, Shahpura. This fact
lends further strength to the petitioner's claim and weighs against
the stand of the respondents.
15. As a result of above discussion, the writ petition merits being
allowed. However, since the selection process has been completed
during pendency of the writ proceedings, on a Court query,
learned counsel for the respondents is unable to verify whether
any post is now lying vacant or not. In view thereof, the petition is
allowed and it is directed that subject to the availability of the post
qua the advertisement in question the petitioner shall be allowed
to join duty at the place of his posting as per the appointment
letter dated 28.10.2021 (Annex.-9) and, if necessary, by assigning
him another place of posting.
16. Alternatively, in case, the post is not readily available,
necessary steps shall be taken by creating a supernumerary post
for the petitioner and he shall be given notional benefits and
seniority as per merit on parity with his counterparts with effect
from the same date when his batch-mate counterparts were
[2025:RJ-JD:14682] (12 of 12) [CW-16518/2021]
appointed. However, he shall not be entitled to any past financial
benefits on the principle of 'No Work No Pay'.
17. Needful shall be done within 30 days of the petitioner's
approaching the respondents with a web-print of this order.
18. Pending application(s), if any, shall stand disposed of.
(ARUN MONGA),J
41-DhananjayS/Rmathur/-
Whether Fit for Reporting: Yes / No
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