IN THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Extraordinary Jurisdiction)
WP (C) No. 02 of 2019
Mr. Tara Prasad Sharma,
Aged about 33 years,
Son of Shri Bhagirath Sharma,
Resident of Village-Deythang,
P.O. Sribadam, P.S. Soreng,
West Sikkim.
At present residing at Gyalshing,
C/o Mrs. Sabita Sharma,
Advocate, District Court, Gyalshing,
West Sikkim. ... Petitioner
Versus
1. The State of Sikkim,
Through Chief Secretary,
Manan Kendra, Development Area,
East Sikkim at Gangtok.
2. Department of Personnel, Administrative
Reforms, Training and Public Grievances (DoPART),
Government of Sikkim, Gangtok,
Through the Commissioner-cum-Secretary.
3. The Registrar General,
Hon‟ble High Court of Sikkim.
4. Shri Jabyang Dorjee Sherpa,
S/o Nawang Rapgay Sherpa,
Resident of Angel Lodge, Holding No.10 (625),
Chota kak Jhora,
Darjeeling, West Bengal,
Ld. Judicial Magistrate, under
Sikkim Judicial Service. ... Respondents
BEFORE
HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.
For the Petitioner : Petitioner-in-person.
For Respondents No. : Dr. Doma T. Bhutia,
1 and 2 Addl. Advocate General with
Mr. S.K. Chettri, Govt. Advocate.
For Respondent No. 3 : Mr. A. Moulik, Sr. Advocate assisted by
Mr. Ranjit Prasad, Advocate.
For Respondent No.4 : Mr. A.K. Upadhyaya, Sr. Advocate assisted
by Mr. Thupden Bhutia and Mr. Sonam R.
Lepcha, Advocate.
2
WP(C) No.02 of 2019
Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
Date of hearing : 07.04.2021
Date of judgment : 10.05.2021
JUDGMENT
Invoking the jurisdiction under Article 226 of the Constitution of
India, challenging the resolution dated 11.08.2017 of Full Court of the
High Court of Sikkim recommending to withdraw the appointment of the
petitioner made by previous resolution of the Full Court dated 05.07.2017
on the post of Civil Judge-cum-Judicial Magistrate, and to challenge the
appointment of respondent no.4 made in place of the petitioner based on
the same resolution and vide Office Order dated 08.02.2018 on the same
post, this petition has been filed.
2. The facts unfolded of the case are that an advertisement was issued
by the High Court of Sikkim on 24.02.2017 inviting applications from the
eligible and interested candidates to fill up three vacant posts of Civil
Judge-cum-Judicial Magistrate (First Class) in the Cadre of Sikkim Judicial
Service, as per Annexure P-9. The petitioner submitted his application
form and appeared in the written test. He found place in the list of
successful candidates as per notification dated 14.06.2017 and called for
the interview. The petitioner appeared in the Viva Voce Test and found
place in the Merit List at Sl.No.2 of the selected candidates published on
05.07.2017. As per the resolution dated 05.07.2017 of Full Court of the
High Court of Sikkim, the name of the petitioner and others were
recommended for appointment to the State Government for the post of
Civil Judge-cum-Judicial Magistrate. After appointment, the Joint
Secretary, Department of Personnel, Administrative Reforms, Training,
Public Grievances (DoPART), Government of Sikkim, vide letter dated
10.08.2017 informed to the Registrar General, High Court of Sikkim that 3 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
one of the selected candidates, Shri Tara Prasad Sharma (petitioner) was
found involved in Police Case No. 24/2012 registered by P.S. Sadar on
28.02.2012 under Section 420/468/471 of IPC, though acquitted by the
Court of Judicial Magistrate, East Gangtok, vide judgment dated
30.04.2016. The letter of DoPART was placed before the Full Court. The
Full Court in its Meeting held on 11.08.2017, after examining all materials,
unanimously resolved that the conduct of the petitioner is not free from
the element of doubt, thus, he may not be given the assignment of
administration of justice and recommended to withdraw the previous
resolution dated 05.07.2017 with respect to appointment of the petitioner
to the post of Civil Judge-cum-Judicial Magistrate. In furtherance thereto
his services has been dispensed with and vide Office Order dated
08.02.2018 the respondent no.4 was directed to be appointed on the said
post.
3. The petitioner present in-person contended that he was acquitted
from the charge levelled against him under Section 468 of the IPC vide
judgment dated 30.04.2016. On receiving the offer of appointment vide
Memorandum dated 03.08.2017 he submitted his attestation form on
04.08.2017 specifying the details of the criminal case and its result. He
has urged, it is not a case of concealment of material facts, as he has
disclosed the details of criminal case and its result acquitting him in the
attestation form. Being candidate of merit as per the resolution of the Full
Court dated 05.07.2017 he had rightly been appointed by the State
Government. Merely registering a criminal case in which he was acquitted
by the Court, may not debar him from the appointment as Civil Judge. The
referred resolution dated 11.08.2017 recommending to withdraw his
appointment is unjust, arbitrary that too without affording due opportunity
of hearing and also contrary to the law laid down by the Hon‟ble Apex 4 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
Court. Reliance has been placed by him on the judgments of Joginder
Singh vs. Union Territory of Chandigarh and Others reported in
(2015) 2 SCC 377, Avtar Singh vs. Union of India and Others
reported in (2016) 8 SCC 471, Mohammed Imran vs. State of
Maharashtra and Others reported in (2019) 17 SCC 696 to
substantiate the contentions.
4. On the other hand, respondent no.3 has filed the counter-affidavit
inter alia stating that in furtherance to the notice inviting application to fill
up the post of Civil Judge-cum-Judicial Magistrate, First Class in the Cadre
of Sikkim Judicial Service, the petitioner submitted his application. In the
Column 11 of the application form, other relevant information which
applicant deems fit were required to be furnished. In the said column,
petitioner has not furnished the information regarding registration of the
criminal case and his acquittal. In absence of the said information at the
time of scrutiny the Registry permitted the petitioner to appear in the
written examination and called for Viva Voce Test on qualifying written
test. It is said even before the Selection Committee information regarding
criminal case has not been furnished by the petitioner. In case, the said
information would have made available, the application form itself might
be rejected in limine at the time of scrutiny by the High Court. In absence
of having the material information by the previous resolution of the Full
Court dated 05.07.2017, the name of petitioner with others was
recommended for appointment. In furtherance to the said resolution, vide
Office Memorandum dated 03.08.2017 he was appointed subject to the
Police Verification and suitability on the post of Civil Judge. As the
petitioner divulged the fact of registration of FIR and acquittal which came
to the knowledge by the letter of DoPART dated 10.08.2017, however, the
Full Court vide resolution dated 11.08.2017 withdrawn the previous 5 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
recommendation dated 05.07.2017 because the conduct of the petitioner
was not found free from element of doubt. It is opined by the Full Court
that such a person may not be assigned the work of administration of
justice. On submitting the representation by the petitioner, it was rejected
by the Full Court on 20.02.2018. In the above mentioned fact, all the
adverse allegations made in the writ petition are denied for all practical
purposes and submitted no relief as prayed can be granted. Learned Sr.
Counsel placed reliance on the judgments of State of M.P. and Others
vs. Nandlal Jaiswal and Others reported in (1986) 4 SCC 566, C.
Ravichandran Iyer vs. Justice A.M. Bhattacharjee and Others
reported in (1995) 5 SCC 457, Syed T.A. Naqshbandi and Others vs.
State of Jammu & Kashmir and Others reported in (2003) 9 SCC
592, Rajendra Singh Verma(Dead) Through Lrs. and Others vs.
Lieutenant Governor (NCT of Delhi) and Others reported in (2011)
10 SCC 1, R.C. Chandel vs. High Court of Madhya Pradesh and
Another reported in (2012) 8 SCC 58, Deputy Inspector General of
Police and Another vs. S. Samuthiram reported in (2013) 1 SCC 598,
Commissioner of Police, New Delhi and Another vs. Mehar Singh
reported in (2013) 7 SCC 685, Union Territory, Chandigarh
Administration and Others vs. Pradeep Kumar and Another reported
in (2018) 1 SCC 797 and Ram Murti Yadev vs. State of Uttar
Pradesh and Another reported in (2020) 1 SCC 801.
5. Learned Senior Counsel appearing on behalf of respondent no.4 has
inter alia contended that it is a case in which petitioner was not acquitted
honourably but acquitted giving benefit of doubt. After taking note of the
same, the appointing authority has rightly exercised its discretion to
discontinue the petitioner and to appoint Respondent No.4 on the said
vacant post. If the High Court has applied its mind on the materials placed 6 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
and opined that the conduct of the petitioner is not free from doubt and
resolved to discontinue the petitioner from the work of administration of
justice. Such discretion is not assailable until questioned on the ground of
mala-fide, ther.efore, interference in exercise of power under Article 226
of the Constitution of India is not warranted. In reply, respondent no.4
has made similar contentions as raised by respondent no.3 in addition that
he was already appointed in State Judicial Services, West Bengal. But due
to his appointment, he joined his duties in the State of Sikkim leaving his
job in the State of West Bengal. Thus, in alternative, looking to the
hardship, prayer is made that if the petitioner succeeded and allowed to
continue; one post may be created or may be accommodated against the
existing vacant posts. Learned Sr. Counsel placed reliance on the
judgments of P.S. Sadasivaswamy vs. State of Tamil Nadu reported in
(1975) 1 SCC 152, Ramana Dayaram Shetty vs. International
Airport Authority of India and Others reported in (1979) 3 SCC 489,
Ashok Kumar Mishra and Others vs. Collector, Raipur and Others
reported in (1980) 1 SCC 180, Smt. Sudama Devi vs. Commissioner
and Others reported in (1983) 2 SCC 1, R & M Trust vs.
Koramangala Residents Vigilance Group and Others reported in
(2005) 3 SCC 91, Shankara Cooperative Housing Society Ltd. vs. M.
Prabhakar and Others reported in (2011) 5 SCC 607, Vijay Kumar
Kaul and Others vs. Union of India and Others reported in (2012) 7
SCC 610, Commissioner of Police vs. Mehar Singh (supra), State of
Madhya Pradesh and Others vs. Parvez Khan reported in (2015) 2
SCC 591, Avtar Singh (supra), Union Territory, Chandigarh
Administration and others vs. Pradeep Kumar and Another (supra)
and State of Madhya Pradesh and Others vs. Abhijit Singh Pawar
reported in (2018) 18 SCC 733.
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WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
6. Learned Additional Advocate General appearing on behalf of
respondents no. 1 and 2 contended that the petitioner has been acquitted
from the charge, however, at this stage it is the discretion of the
recommending authority to appoint him on the post of Civil Judge-cum-
Judicial Magistrate or not. The State Government has only acted upon the
recommendation of the High Court, therefore, they have not much to say
in the present case except awaiting the verdict of the Court for
compliance.
7. Upon hearing, the petitioner and learned counsels representing the
parties on the basis of the submissions made, in the opinion of this court,
following questions arises for consideration in the present case.
(i) Whether acquittal vide judgment dated 30.04.2016 in a
criminal case bearing G.R. Case No. 644/2013 may lead to the
conclusion that petitioner is entitled to continue on the post of
Civil Judge-cum-Judicial Magistrate?
(ii) Whether in the facts and circumstances of the case, the Full
Court resolution of the High Court of Sikkim dated 11.08.2017
withdrawing the previous recommendations of appointment of
the petitioner from the post of Civil Judge-cum-Judicial
Magistrate is justified or can it be interfered with in the facts
of the case in exercise of power under Article 226 of the
Constitution of India?
Reference Question No. (i):
8. In reference to question no.1, the issue regarding acquittal of
petitioner in criminal case may have bearing to appoint the petitioner on
the post of Civil Judge-cum-Judicial Magistrate. In this respect, in the
context of settled legal position, it is required to be seen what is the effect
of "honourably acquitted" or "acquitted giving benefit of doubt" by the 8 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
Court. The elucidation of the aforesaid issue may have material bearing to
reference Q. No.1 which can be understand by various precedents of
Hon‟ble the Apex Court and High Courts.
9. The issue regarding „honourable acquittal‟, „acquitted of blame‟ and
„fully acquitted‟ are unknown to the Code of Criminal Procedure or the
Indian Penal Code. It has been developed by judicial pronouncements. It
is difficult to define what is mean by the expression „honourably
acquitted‟. The guidance may be taken from the case of State of Assam
vs. Raghava Rajgoplalachari, reported in MANU/SC/0460/1967. In the
said case, the employee was dismissed on account of his conviction under
Sections 161/467/120B of IPC and under Rule 81(4) read with Rule 121 of
the Defence of India Rules. The issue regarding his continuation in service
and payment of subsistence allowance during the period of suspension
brought under consideration in the context of Assam Fundament Rules
(FR) 54. As per FR 54(a), if the employee is honourably acquitted he
would be entitled to full pay and allowances in case he had not been
dismissed, removed or otherwise it may be payable in such proportion as
revising and appellate authority may prescribe. In the said case Hon‟ble
the Apex Court has referred the judgment of Robert Stuart Wauchope
vs. Emperor reported in (1934) 61 ILR Cal. 168, in the context of
expression „honourably acquitted‟, Lord Williams, J. observed as thus:
"The expression "honourably acquitted" is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extra judicial tribunals. We said in our judgment that we accepted the explanation given by the Appellant believed it to be true and considered that it ought to have been accepted by the Government authorities and by the magistrate., Further we decided that the Appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the Appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what Government authorities term "honourably acquitted. "
The reference to the case of R.P. Kapur vs. Union of India reported in
AIR 1964 SC 787 has also made, referring the observations of Hon‟ble
Wanchoo, J. as he then was reproduced, as thus:
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WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
"Even in case of acquittal, proceedings may follow where the acquittal is other than honourable."
Therefore, in conclusions, where the acquittal is not "honourably" ordered
by the Court, such acquittal is other than "honourable", and may follow
the proceedings.
10. In the case of S. Samuthiram (supra), the Hon‟ble Apex Court has
considered the judgment of Reserve Bank of India vs. Bhopal Singh
Panchal (supra) and also the judgment of R.P. Kapur (supra), Raghava
Rajagopalachari (supra) and referred the expression "honourably
acquitted" as used in the case of Robert Stuart Wanchope (supra); it is
observed that the standard of proof required for holding a person guilty by
a criminal court and enquiry conducted by way of disciplinary proceeding
is entirely different. In a criminal case, the onus of establishing guilt to the
accused is on the prosecution, until proved beyond reasonable doubt. The
Court observed that the prosecution did not take steps to examine many
of the crucial witnesses on the ground that the complainant and his wife
turned hostile, thus acquittal of the accused is by giving benefit of doubt.
In that situation, the respondent was not honourably acquitted by the
criminal court. While in a case of departmental proceedings, the guilt may
be proved on the basis of preponderance and probabilities. It is observed
that there may be cases where the service rules provide that in spite of
domestic enquiry, if criminal court acquits an employee honourably, he
could be reinstated. It is said that an employee has to be reinstated in
service or not depends upon the question whether the service rules
contain any such provision for reinstatement as a matter of right
otherwise on acquittal giving benefit of doubt would not automatically lead
to a conclusion for the reinstatement of the candidate. 10
WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
11. Recently, the Apex Court in the case of Union Territory,
Chandigarh Administration and others vs. Pradeep Kumar and
Another relying upon the judgment of S. Samuthiram (supra) held that
acquittal in a criminal case is not conclusive of the suitability of the
candidates on the post concerned, the acquittal or discharge of a person
cannot always be inferred that he was falsely involved or he had no
criminal antecedent. The issue of honourable acquittal was further
considered by the Apex Court in the case of Mehar Singh (supra), relying
upon the judgment of S. Samuthiram (supra), Bhopal Singh Panchal
(supra) observed that the acquittal because of non-examination of key
witnesses is not honourable, in fact, it is by giving benefit of doubt.
12. Hon‟ble the Apex Court in the case of Parvez Khan (supra) has
observed that on the ground of criminal antecedents of candidate who was
acquitted for want of evidence or was discharged, shall not be allowed to
presume that he was completely exonerated. In the case of Mehar Singh
(supra), the Court observed that the nature of acquittal is necessary for
core consideration, whether acquittal is on technical ground or
honourable. It is held that the candidates whose acquittal is not
honourable are not suitable for Government service and are to be avoided.
The relevant factors and the nature of offence, the extent of his
involvement, whether acquittal was a clean acquittal or acquittal by giving
benefit of doubt, propensity of such person to indulge in similar activities
in future, are the aspects relevant to consider by the Screening
Committee who is competent to decide all these issues.
13. In view of the forgoing legal position, the expression „honourably
acquitted‟ may lead to the conclusion when all the material evidence has
been duly considered, even charge as alleged against the accused could
not prove holding him guilty. Otherwise on account of technical flow or 11 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
due to non production of important witnesses or the witnesses turned
hostile or due to settlement between the parties or otherwise prosecution
has failed to prove the charge beyond reasonable doubt may not come
within the purview of „honourably acquitted‟ and such acquittal is
otherwise than "honourable" to which the proceedings may be followed.
The discretion of such proceedings would lay on the appointing authority
to take decision looking to the nature of job and suitability of propriety
and probity of the candidate.
14. In the context of the above legal position, if we see the judgment of
acquittal passed by the Judicial Magistrate, East Sikkim, Gangtok in G.R.
Case No. 644 of 2013 decided on 30.04.2016 then it reveal that petitioner
approached to the office of the Directorate of Fisheries to check the file
pertaining to appointment of the Fisheries Block Officers. As alleged, with
criminal intent to tamper the marks awarded to his sister, Narmada
Sharma, who was one of the participants for the post of Fisheries Block
Officer, he had fraudulently tampered with the public document converting
numerical 1 into numerical 9 by adding an oval part in the original mark.
The sister of the accused demanded document in RTI, however, on coming
to know the fact, the notice was send to the petitioner and the report of
forensic experts were called. The offence was registered against him
under Section 420/468/471/34 of the IPC and filed the Challan. The trial
court had framed the charge only under Section 468 of the IPC but not of
other offences. After trial, the court acquitted the accused because the
plausible explanation of belated FIR is not brought on record. It is not
explained why the document Exhibit-A 19 (Document „Y‟) was alleged to
have been made on 27.01.2011 and signed by PW-3, though he was
promoted on the said post on 11.03.2011. Why the specimen of the
handwritings or signature of the accused was not taken by the I.O. for 12 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
examination though it is required to deal with the accused for the purpose
of cheating. As per the report of CFSL, Kolkata, it is found prove that
interpolation in the marks awarded by PW-3 is there but it is not sufficient
to convict the accused, looking to the above lacunas of the prosecution.
Therefore, said prosecution has failed to prove the case against accused
beyond reasonable doubt however, acquitted the petitioner. Thus, looking
to the reasoning of the trial court, it is clear, the acquittal of accused
(petitioner) is not honourable but giving him benefit of doubt.
15. On analyzing the case of prosecution and the reason of acquittal as
recorded vide judgment dated 30.04.2016, it is luculent like a day light
that petitioner has not been honourably acquitted but his acquittal is
giving benefit of doubt. In the light of the legal and factual position as
discussed hereinabove, as the acquittal of petitioner is other than
honourable, the proceedings of the Department may follow to judge his
suitability looking to the credibility of the post meaning thereby the
petitioner would not ipso facto entitled to continue to hold the post of Civil
Judge-cum-Judicial Magistrate merely because he was acquitted. The
question no.1 is answered accordingly.
Reference Question No. (ii)
16. In the present case, the applications were invited to fill up the post
of Civil Judge-cum-Judicial Magistrate (First Class) in the cadre of Sikkim
Judicial Service vide Employment Notice dated 24.02.2017. The petitioner
applied for the post and appeared in the written examination. On
declaring him successful, he was called for the oral interview. The Final
Merit List was prepared and placed before the Full Court on 05.07.2017.
The Full Court on the same date passed a resolution making
recommendation for appointment, in absence of the details of the criminal 13 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
case of the petitioner. The offer for appointment was issued vide
Memorandum dated 03/08/2017, subject to Police Verification with regard
to suitability, asking Attestation Form in duplicate. In the said Attestation
Form in Column No.12, the details of criminal case and the date of
acquittal was mentioned by the petitioner. On Police Verification vide
letter Ref. No.14900/G/DOP dated 10.08.2017 addressed to the Registrar
General, it was reported that the Sadar Police registered a case against
petitioner at Crime No.24/2012 dated 28.02.2012 U/s 420/468/471/34 of
the IPC and tried for the charge U/s 468 of the IPC, in which he has been
acquitted on 30.04.2016 by the Judicial Magistrate, East, Gangtok. On
receiving the said information, the matter was placed before the Full Court
alongwith relevant material. The Full Court on consideration passed the
resolution dated 11.08.2017 and decided to withdraw the previous
resolution dated 05.07.2017. The decision of the Full Court is relevant
however, reproduced as thus:
"1. To further consider the letter bearing No.14900/G/DOP dated 10.08.2017 received from the Department of Personnel (DOPART), Government of Sikkim, in regard to the matter of appointment of Mr. Tara Prasad Sharma, in the post of Civil Judge-cum-Judicial Magistrate in response to this Registry letter No. V(13)Confdl/3467 dated 05.07.2017.
1. On verification it was found that Mr. Tara Prasad Sharma was charge- sheeted for interpolation with official records. However, he was acquitted on the ground that the prosecution has failed to prove the case beyond reasonable doubt.
We have examined all the materials and are of the considered view that as the conduct of the candidate is not free from an element of doubt, he may not be given the assignment of administration of justice. Thus, it is unanimously resolved to withdraw the recommendation made in favour of the above candidate on 05th July 2017 to the State Government for appointment in the post of Civil Judge-cum-Judicial Magistrate.
Further, the fourth candidate, namely, Mr. Jabyang Dorjee Sherpa in the merit list be recommended for appointment on the post of Civil Judge-cum-Judicial Magistrate."
17. In view of the aforesaid, it is clear that the Full Court unanimously
was of the opinion that the acquittal of the petitioner was giving him
benefit of doubt as the prosecution has failed to prove the case beyond
reasonable doubt. The Full Court has examined all the material and of the
view that the conduct of the petitioner is not free from an element of 14 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
doubt, therefore, he may not be given the assignment relating to
administration of justice. Thus, resolved to withdraw the recommendation
made earlier in favour of the petitioner on 05.07.2017 for his appointment
as Civil Judge-cum-Judicial Magistrate. It was further resolved that the
next candidate in the Merit List, Mr. Jabyang Dorjee Sherpa (Respondent
No.4) be recommended for appointment on the said post. Thus, it is clear
that withdrawal of the previous recommendation is because his acquittal
other than honourable, and his conduct was found under cloud to assign
the work of judicial administration, or as a Judge. From the above and in
conspectus of undisputed fact that High Court of Sikkim is the only
competent to make the recommendation for appointment to the post of
Civil Judge, but the discretion has not exercised in favour of petitioner
looking to the conduct and probity of petitioner for holding the post of
Judicial Officer.
18. In the said sequel of facts, the arguments advanced by the
petitioner-in-person and the counsel for the respondents are required to
be adverted to. The petitioner has placed reliance on the judgments of
Joginder Singh (supra), Avtar Singh (supra) and Mohammed Imran
(supra) while the counsel for the respondent no.3 has relied upon the
judgments of Nandlal Jaiswal (supra), C. Ravichandra Iyer (supra),
Syed T.A. Naqshbandi (supra), Rajendra Singh Verma(Dead)
Through Lrs. (supra), R.C. Chandel (supra), S. Samuthiram (supra),
Mehar Singh (supra), Pradeep Kumar (supra) and Ram Murti Yadev
(supra) and the counsel for respondent no.4 has relied upon the
judgments of P.S. Sadasivaswamy (supra), Ramana Dayaram Shetty
(supra), Ashok Kumar Mishra (supra), Smt. Sudama Devi (supra), R
& M Trust (supra), Shankara Co-op. Housing Society Ltd. (supra),
Vijay Kumar Kaul (supra), Mehar Singh (supra), Parvez Khan (supra), 15 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
Avtar Singh (supra), Pradeep Kumar (supra) and Abhijit Singh Pawar
(supra).
19. The legal position in the matter of appointment of a Judicial Officer
on acquittal from a criminal case may be considered in the said facts and
the law laid down by Hon‟ble the Apex Court. The two-Judge Bench of
Hon‟ble the Apex Court in the case of Joginder Singh (supra), as relied
by the petitioner has considered the issue in the context of the post of a
Constable in the Police Department. In the said case, a criminal case was
registered against the Constable under Sections 148/149/323/325/307 of
the IPC; in which he was honourably acquitted because the prosecution
had miserably failed to prove the charges leveled against the complainant
as the injured eyewitness had failed to identify the assailants. Therefore,
Hon‟ble the Apex Court has upheld the judgment of the Central
Administrative Tribunal, setting aside the order of the High Court directing
to issue the order of appointment. In the facts of the present case, the
judgment of Joginder Singh (supra) having no application because the
petitioner was not honourably acquitted, in fact, he was acquitted giving
benefit of doubt, therefore, the said judgment is of no avail to him.
20. The petitioner and respondent, both have relied upon the judgment
of Avtar Singh (supra). The three-Judge Bench of Hon‟ble the Supreme
Court has an occasion to crystallize the law with respect to concealment of
material facts in the Attestation Form as well having criminal antecedents,
conviction or acquittal of the selected candidate in the context whether
they are entitled for appointment. The conclusion drawn in this regard is
in paragraph 38 of the judgment; the relevant conclusion applicable to the
facts of the present case is in sub paragraphs 38.4.3 and 38.5, for ready
reference, it is reproduced as under:
"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 16 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
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. "
From the above, it is clear that on recording acquittal in a case involving
moral turpitude on technical ground in absence of clean acquittal, the
employer may consider all relevant facts as to antecedents and may take
appropriate decision as to continuance of the employee. It is further clear
that even on giving truthful declaration by the employee regarding a
concluded criminal case, the employer still has the right to consider the
antecedents and cannot be compelled to appoint the candidate.
21. The petitioner has placed heavy reliance on the judgment of
Mohammed Imran (supra). In the said case, Hon‟ble the Apex Court in
paragraph 8 has taken the plea of discrimination because one person
acquitted has been appointed following the same process of examination
while the petitioner in that case was discriminated in the matter of
appointment and also observed that mechanical or rhetorical incantation
of moral turpitude may not be applied to deny appointment in judicial
service, however, the court directed for appointment of the petitioner in
that case.
22. It is not out of place to mention here that the judgment of Avtar
Singh (supra) is the law on the subject and holds the field. The said
judgment has been considered by the Full Bench of the Madhya Pradesh
High Court in the case of Ashutosh Pawar vs. High Court of Madhya
Pradesh and Another reported in 2018 (2) MPLJ 419 (2018 SCC
Online MP 72). The Full Bench observed that the expectations from a
Judicial Officer are of much higher standard. There cannot be any
compromise in respect of rectitude, honesty and integrity of a candidate 17 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
who seeks appointment as Civil Judge. The personal conduct of a
candidate who may be appointed as Judicial Officer has to be free from
any taint. The same must be in tune with highest standard of propriety
and probity. The standard of conduct is higher than that expected of an
ordinary citizen and also higher than that expected of a professional in law
as well. It is stated that mere acquittal in a criminal case would not be
sufficient to infer that candidate possess a good character. The Competent
Authority has to take a decision in respect of the suitability of candidate to
discharge the function to a civil post.
23. Hon‟ble the Apex Court in the case of Anil Bhardwaj vs. High
Court of Madhya Pradesh and Others reported in 2020 SCC Online
SC 832 decided on 13.10.2020, observed that a candidate wishing to join
the police force must be a person having impeccable character and
integrity. The said principle applies with greater force to the judicial
service. Even in case of acquittal, it ought to be examined as to whether
the person was completely exonerated in the case. The acquittal in
criminal case did not furnish sufficient ground to the appellant for
appointment. Hon‟ble the Apex Court in the case of State of Odisha and
Others vs. Gobinda Behera reported in 2020 SCC Online SC 199 also
rely upon the judgment of Avtar Singh (supra), and in paragraph 7
observed that the employer can legitimately conclude that a person who
has suppressed material facts does not deserve to be in its employment.
24. Recently, Hon‟ble the Supreme Court in the case of State of
Rajasthan and Others vs. Love Kush Meena reported in 2021 SCC
Online SC 252 has considered all the aforementioned judgments
including the judgment of Mohammed Imran (supra) relied by the
petitioner, and in paragraph 23, the court observed as thus: 18
WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
"23. Examining the controversy in the present case in the conspectus of the aforesaid legal position, what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt, that parameter having not been met, benefit of doubt has been granted to the accused. No doubt, in that facts of the present case, the person who ran the tractor over the deceased lady was one of the other co-accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co-accused including the respondent."
In view of the above concepteurs, it is important to note that the view of
the Court may be depend on the nature of offence charged and its result.
Mere acquittal would not sufficient but rather it would depend on whether
it is a clean acquittal based on total absence of evidence or in the criminal
jurisprudence requiring the case to be proved beyond reasonable doubt,
that parameter having not been met, and the accused granted benefit of
doubt but the role assigned to the accused may be relevant to consider.
The Apex Court in reference to the relevant parameters extracted in the
judgment of Avtar Singh (supra) observed where in respect of a heinous
or serious nature of crime the acquittal is based on a benefit of doubt
cannot make the candidate eligible for appointment. While dealing the
case of police personnel, it is held that even circular issued by the
Department contrary to the ratio of Avtar Singh (supra) cannot give any
benefit to the respondent and accordingly the judgment of the High Court
directing to appoint the respondent was set aside.
25. In view of the forgoing discussions it is clear that even acquittal of
the petitioner giving benefit of doubt, in a case involving moral turpitude,
is not sufficient to grant employment until he is acquitted clearly. The
employer is having right to consider all relevant facts available and as to
antecedents and may take appropriate decision as to continuation of the
employee in the employment looking to the standard of propriety and
probity. The employer cannot be compelled to appoint the candidate for
holding the civil post, if not acquitted clearly.
19
WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
26. In the present case as noted above and on reading the resolution of
the Full Court it is crystal clear that the Full Court has considered the
interpolation of marks pertaining to appointment of the Fisheries Block
Officer in the official record. As per judgment, petitioner was acquitted
giving benefit of doubt because the prosecution has failed to prove the
case beyond reasonable doubt. On examination of the material, the Full
Court was unanimously of the view that the conduct of the petitioner is
not free from an element of doubt, therefore, he may not be given the
assignment of administration of justice to continue on the post of Judicial
Officer. The said decision was on due considerations of the material placed
with a view that petitioner is not suitable for the post of Civil Judge-cum-
Judicial Magistrate. The conduct of the petitioner was not found of
impeccable character, looking to the standard of the propriety and probity
for the post. In such a decision the scope of interference is limited to the
extent if it is aspired by mala fide, or suffer from bias of arbitrariness, or
established that the decision taken by the appointing authority is based on
perversity or irrationality. It is not a case of the petitioner that the
decision taken by the Full Court is mala fide or on any extraneous
consideration or on irrationality. In absence of the above said grounds,
the scope of interference by the High Court is very limited to which the
guidance may be taken from various pronouncements of Hon‟ble the
Supreme Court, i.e. Raghava Rajgoplalachari (supra), Robert Stuart
Wauchope(supra), R.P. Kapur (supra), Bhopal Singh Panchal (supra),
Joginder Singh (supra), Avtar Singh (supra), Mohammed Imran
(supra), S. Samuthiram (supra), Mehar Singh (supra), Pradeep
Kumar (supra), Parvez Khan (supra), Ashutosh Pawar (supra), Anil
Bhardwaj (supra), Govind Behra (supra) and Love Kush Meena
(supra). As the petitioner has failed to make out a case within the 20 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
parameters set out in the above cases, therefore, interference to the
decision of the Full Court of Sikkim dated 11.08.2017 is not warranted.
27. In view of the forgoing discussions, it is abundantly clear that
against the petitioner an offence was registered in Sadar Police Case No.
24/2012 dated 28.02.2012 for an offence under Sections 420/468/471/
34 of the IPC and the Challan was filed. He was tried for the charge under
Section 468 of the IPC by the Court of Judicial Magistrate, East Sikkim,
Gangtok and vide judgment dated 30.04.2016 acquitted giving him
benefit of doubt. His acquittal was not honorable but other than
honourable. It cannot be doubted that the charged offence involve moral
turpitude. The Full Court while recommending to withdraw the
appointment of the petitioner has considered the conduct which is not free
from an element of doubt, however, decided that he may not be given the
assignment of administration of justice and accordingly, passed the
resolution. The said resolution has not been challenged either on the basis
of mala fide or on extraneous considerations or irrationality of the
findings. In absence thereto, in the opinion of this court, interference to
the resolution of the Full Court dated 11.08.2017 is not warranted. It is to
be noted that upon receiving the representation of the petitioner dated
29.12.2017, it was considered by the Full Court again on 20.02.2018 and
rejected the same. Thus, resolution passed by the Full Court is on
consideration of the character of the petitioner which was not found
impeccable and suited to the post of Civil Judge-cum-Judicial Magistrate.
In such a case, High Court cannnot be compelled to issue the writ in the
nature of mandamus and to grant the relief as prayed by petitioner. The
Question no. (ii) is answered, accordingly.
28. It is to observe that this petition is bereft of any merit, therefore,
alternative argument advanced by the respondent no.4 is not required to 21 WP(C) No.02 of 2019 Mr. Tara Prasad Sharma vs. State of Sikkim & Ors.
be dealt with in detail. Similarly, the judgments, cited by learned counsel
for the parties dealing the issue of compulsory retirement is also not being
referred to burden the judgment as not having much relevance to the
issue discussed hereinabove. Therefore, other judgments cited by the
respondents have not been discussed in detail.
29. In view of the discussions made hereinabove, the inescapable
conclusion is that the petition filed by the petitioner is meritless and not
entitled to the relief as prayed. Accordingly, the Writ Petition is dismissed.
In the facts of the case, parties to bear their own costs.
( J.K. MAHESHWARI ) Chief Justice
Approved for Reporting : Yes
jk/
