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2017 DIGILAW 270 (ALL)

Subhash Singh Gautam v. State of U. P.

2017-01-19

SANGEETA CHANDRA, V.K.SHUKLA

body2017
JUDGMENT Subhash Singh Gautam is before this Court with the request that direction be issued to the authorities to give joining to the petitioner for the post of President of Bal Kalyan Samiti at District Banda. Petitioner has come up with the case that an advertisement was published for the selection of Juvenile Justice Board and Children welfare committee in several Districts for the post of President and members. Petitioner submitted his application, a call letter was issued and thereafter, a select list was published containing the name of petitioner as selected candidate for Juvenile Justice Board and Children welfare committee, Banda. Record in question reflects that thereafter, character verification of petitioner and other selected were undertaken and then objections were filed by one Sri Sunil Kumar Awasthi, mentioning that two criminal cases are pending against the petitioner. Petitioner has submitted his reply mentioning therein that whatever criminal cases are there, same are on account of dispute being there in between petitioner and his real brother, and in one of the criminal cases, petitioner has been acquitted and in another criminal case, his brother has filed affidavit regarding the compromise. Petitioner submits that thereafter, another list has been finalized, wherein name of petitioner has been done away with and another incumbent has been shown to have been selected. Petitioner at this juncture, is before this Court assailing the validity of the proceedings in question and requesting that he be offered appointment. Sri Rajesh Kumar Singh, counsel for the petitioner contended with vehemence that a totally arbitrary and unreasonable view has been taken in holding the select list in question and deleting the name of the petitioner and as such, the writ petition in question as it has been framed be allowed. Learned Standing Counsel on the other hand, has contended that in the present case, there has been criminal case and once a conscious decision has been taken not to offer appointment to petitioner, then petitioner cannot claim as a matter of right that he should be offered appointment. Learned Standing Counsel on the other hand, has contended that in the present case, there has been criminal case and once a conscious decision has been taken not to offer appointment to petitioner, then petitioner cannot claim as a matter of right that he should be offered appointment. After respective arguments have been advanced, the factual situation on which there is no dispute that after the name of the petitioner has been finalized, then in consonance with the Government Order dated 19th July, 2016, objections have been invited and pursuant to the same, objection in question has been filed wherein it was reflected that there has been criminal cases against the petitioner and it may be true that in one criminal case, there is an order of acquittal and it may also be equally true that in another case, the brother of petitioner has filed affidavit, but the fact of the matter is that once there has been criminal cases and the said criminal cases, even though it may end with acquittal and even though one of them may have been pending, wherein parties have resolved to undergo a compromise, but once it has a reflection on the character of the incumbent and in this background a conscious decision has been taken to appoint another incumbent, then in the facts of the case, no relief or reprieve can be accorded to the petitioner because law on the subject is clear that mere selection does not confer indefeasible right to be offered appointment and for valid reasons, the appointment in question can be kept on hold and here the proceedings in question are in reference to selection of President of Juvenile Justice Board and Children welfare committee who should have been clean record, looking to the nature of duties enjoined upon him and the fact that he has to interact with juveniles, then we cannot accord any relief to the petitioner. Counsel for the petitioner has placed reliance on the judgement of this Court in the case of Fakhruddin Vs. State of U.P. 2005-LAWS(ALL)-8-230 that based on mere pendency of criminal case appointment cannot be refused. As of now, the law on the subject has been clarified by the Apex Court in the case of Atar Singh Vs. Counsel for the petitioner has placed reliance on the judgement of this Court in the case of Fakhruddin Vs. State of U.P. 2005-LAWS(ALL)-8-230 that based on mere pendency of criminal case appointment cannot be refused. As of now, the law on the subject has been clarified by the Apex Court in the case of Atar Singh Vs. Union of India 2016(8) SCC 471 wherein view has also been taken, that even in cases where employee has made truthful declaration of a concluded criminal case, the employer still has right to consider antecedents and cannot be compelled to appoint a candidate. Employer can in cases where criminal case is of trivial nature, can in its discretion may appoint subject to decision of case. The employer cannot be forced upon to offer employment as employer has to act prudently on due consideration of nature of post and duties to be rendered. In such situation petitioner cannot claim as a matter of right that as he has been shown selected in the select list, so prepared in the past, even though in one criminal case he has earned acquittal and other is pending he be made President of Juvenile Justice Board and Children Welfare Committee. The writ petition is accordingly dismissed for the reasons stated above.