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2013 DIGILAW 623 (GUJ)

NATWARBHAI P. PARMAR v. DIVISIONAL CONTROLLER

2013-10-11

JAYANT PATEL, MOHINDER PAL

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JUDGEMNT MOHINDER PAL, J. 1. The appellant has preferred the appeal challenging the order dated 24.9.2012 passed by learned single Judge in SCA No.9901 of 2012, whereby the learned single Judge was pleased to dismiss the petition. 2. Brief facts of the case are that respondent No.2 invited applications for the post of Conductor in the year 2010. Pursuant thereto, the appellant/original petitioner submitted his application and after appearing in the written test, the petitioner was informed by the respondent vide letter dated 08.02.2011 that he was selected for the post of conductor and that appointment order will be issued upon his furnishing medical fitness certificate and NOC from the local police authority. Thereafter, the petitioner was called upon by the respondent vide letter dated 29.4.2011 to produce the NOC, to which the petitioner replied through letter dated 4.5.2011 informing that he was never convicted and sentenced by any criminal Court and that one complaint was filed by his wife section 498-A of the IPC, which was pending. However, on 25/28.6.2012, respondent No.1 passed order cancelling the selection of the petitioner on the ground that a criminal case was registered against the petitioner prior to giving appointment to him. The learned single Judge found the order passed by the respondents to be proper and just and the petition came to be dismissed, against which the appellant has preferred the present appeal. 3. The learned counsel for the appellant submitted that the learned single Judge has erred in coming to the conclusion that prior to issuance of order of appointment, one maintenance application and a complaint under the Domestic Violence Act filed by the wife of the petitioner were pending. The learned counsel for the appellant invited the attention of the Court to the relevant column required to be filled while applying online for the post of conductor, which reads as under: “Whether there is any conviction in the criminal case?” Since the answer to this question was to be given online in “YES” or “NO”, and since no conviction was awarded to the appellant in the criminal case filed by his wife, the appellant filled “NO” in the said column. It is case of the appellant that he was not required to give any further details in the application. It is case of the appellant that he was not required to give any further details in the application. The learned counsel for the appellant further invited the attention of the Court to the fact that the appellant was acquitted of the charges framed against him in the criminal case filed by his wife. Further, so far as the maintenance application and the complaint under Domestic Violence Act are concerned, those cases were also not finalized prior to the appointment. 4. The learned counsel for the appellant submitted that the dispute between the appellant and his wife was purely of personal nature, which has ultimately culminated into his acquittal and, therefore, the respondents were not justified in cancelling the selection of the appellant who has undergone the due process and was otherwise eligible in all respects for the post of conductor. 5. The learned counsel for the appellant relied upon a decision of the Apex Court in Ram Kumar v. State of U.P. reported at AIR 2011 SC 2903 in support of his contention that filing of a criminal complaint, which ultimately culminated into acquittal, cannot be made the basis for rejection of the candidature of the appellant for appointment on the post of conductor. The learned counsel for the appellant also relied upon decision of the Apex Court in the case of Pawan Kumar v. State of Haryana reported at (1996) 4 SCC 17 , wherein the Apex Court observed that punishment of fine upto a certain limit on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. 6. As against the above, the learned counsel for the respondent submitted that the appellant has suppressed material facts while applying for the post, despite a criminal case having been filed by his wife under section 498-A of the IPC. He relied upon a decision of the Apex Court in Jainendra Singh v. State of U.P. reported at (2012) 8 SCC 748 wherein it is observed that the person who suppressed the material information and/or gives false information cannot claim any right for appointment. He relied upon a decision of the Apex Court in Jainendra Singh v. State of U.P. reported at (2012) 8 SCC 748 wherein it is observed that the person who suppressed the material information and/or gives false information cannot claim any right for appointment. He further relied upon another decision of the Apex Court in Delhi Administration v. Sushil Kumar reported at (1996) 11 SCC 605 , wherein on account of the antecedent record of the candidate, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force, and this stand of the respondent authority was upheld by the Apex Court. 7. We have heard learned counsel for the parties and gone through the file. In the facts of the present case, the respondent authorities invited applications online for the post of Conductor wherein the applicants were required to fill the column of the application as to “Whether there is any conviction in the criminal case ?” and the answer was to be given in “Yes” or “No”. Although a criminal case was filed under section 498-A of the IPC by the wife of the appellant, the appellant was never convicted in that case when the application for the post of Conductor was made by him. Therefore, it cannot be said that the appellant has made any suppression of fact. Moreover, it is seen from the record that the appellant had informed the respondent authorities that his wife had filed a complaint against him under section 498-A of the IPC. It is to be noted that he was not convicted or sentenced till the date of his selection on 08.02.2011. It was thereafter on 10.4.2012 that he was acquitted of the charges in the criminal complaint filed by his wife. 8. As held by the Apex Court in Pawan Kumar v. State of Haryana reported at (1996) 4 SCC 17 , punishment of fine upto a certain limit on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in government service. In the present case, the appellant was acquitted of the charges pursuant to the criminal complaint filed by his wife. In the present case, the appellant was acquitted of the charges pursuant to the criminal complaint filed by his wife. Therefore, merely on the ground that a criminal case has been registered against the appellant, he cannot be denied entry into government service, more particularly when the dispute between the appellant and his wife was purely of personal nature, which cannot have any nexus in discharge of his duties as a Conductor. The judgments relied upon for the respondent authorities are in case of uniformed service personnel which presupposes a higher level of integrity where he is expected to uphold the law. Such yardstick cannot be applied in the present case where the appellant was selected for the post of a Conductor. 9. In view of the foregoing discussion, we allow the appeal and set aside the impugned order passed by the learned single Judge. The respondent authorities are directed to treat the appellant as duly selected in service and appoint him in the vacant post of Conductor, if person next to the appellant in select list is already given appointment, within a period of one month from the date of receipt of this order. Appeal allowed.