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2018 DIGILAW 654 (MP)

VIJAY KUMAR SONKAR v. UNION OF INDIA

2018-07-26

MOHD.FAHIM ANWAR, R.S.JHA

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JUDGMENT : 1. The petitioner has filed this petition being aggrieved by order dated 20.9.2013 passed by Central Administrative Tribunal, Jabalpur in Original Application No.975/2012, whereby the petitioner’s original application seeking a direction to the respondents/authorities to grant him compassionate appointment in place of his Late father Tara Chand, who died while in harness on 17.8.2009, while working as Examiner in the Gun Carriage Factory, Jabalpur, has been dismissed. The petitioner has also assailed the communication dated 4.7.2012, by which his application for compassionate appointment was rejected by the authorities. 2. The Tribunal, while dismissing the original application by the impugned order, has affirmed the decision of the respondents based on the ground that the petitioner was prosecuted in Crime No.71/2009 for offences punishable under sections 147, 148, 149, 323 and 326 of the Indian Penal Code, registered against him at Police Station Hanumantal, Jabalpur, in which he was subsequently acquitted on 12.9.2011 on the basis of a compromise as well as the fact that the petitioner was prosecuted in Crime No.571/2003, in which the petitioner was convicted for offences punishable under sections 363/366 read with section 34 of the IPC and was sentenced to undergo imprisonment for three years with fine of Rs.2,000/-, which conviction was subsequently set aside by the High Court and on account of this criminal background, was unfit for service and has also applied the law laid down by the Supreme Court in the case of Daya Shankar Yadav Vs. Union of India and others [(2011) 2 SCC (L&S) 439], Commissioner of Police, New Delhi and another Vs. Mehar Singh ( AIR 2013 SC 2861 ) and has also considered the decision of this Court in the case of Rakesh Kumar Patel Vs. Union of India and others W.P.No.8854/2012, on which the petitioner has placed reliance. 3. The learned counsel for the petitioner submits that the conviction of the petitioner by the trial Court for offences punishable under sections 363 and 366 read with section 34 of the IPC, has been set aside by the High Court in appeal and the case registered against the petitioner for offences punishable under sections 147, 148, 149, 323 and 326 of the IPC, has also been dropped and the petitioner has been acquitted on the basis of a compromise arrived at between the parties on 12.9.2012. It is submitted that in such circumstances the petitioner had no criminal antecedents and his case for grant of compassionate appointment could not have been rejected by the authorities, in view of the law laid down by this Court in the case of Rakesh Kumar Patel (supra). 4. The learned counsel for petitioner submits that though he has not taken up this issue before the Tribunal, however he has stated that in the case of two other similarly placed persons against whom criminal cases had been registered which were subsequently dropped on account of a compromise, the authorities have taken a sympathetic view and granted compassionate appointment to them while the claim of petitioner has been rejected thereby subjecting the petitioner to discrimination. 5. The learned Assistant Solicitor General appearing for the respondents/authorities by relying on the Full Bench decision of this Court rendered in the case of Ashutosh Pawar Vs. High Court of M.P. & another [ 2018 (2) MPLJ 419 ], wherein the decision of another Division Bench of this Court granting relief and benefit to a petitioner who had been acquitted on the basis of a compromise has been set aside, as well as the decision of the Supreme Court rendered in the case of Union Territory, Chandigarh Administration and others Vs. Pradeep Kumar and another [ (2018) 1 SCC 797 ], submits that mere acquittal in a criminal case does not confer any right on an individual to claim employment and inspite of such acquittal the employer has a right to take into consideration all aspects and reject the claim of the applicant on this ground. 6. The learned Assistant Solicitor General appearing for the respondents further submits that as far as the ground of discrimination raised by the petitioner is concerned, the same was never raised by the petitioner before the Tribunal and, therefore, the respondents had no opportunity to rebut or refute the same. It is submitted that in such circumstances, the petitioner cannot be permitted to raise the same before this Court for the first time. 7. We have heard the learned counsel for the parties at length. 8. It is submitted that in such circumstances, the petitioner cannot be permitted to raise the same before this Court for the first time. 7. We have heard the learned counsel for the parties at length. 8. In the present case, it is an admitted fact that the petitioner was prosecuted for the offences punishable under sections 147, 148, 149, 323 and 326 of the IPC, in which he has been acquitted subsequently on the basis of a compromise and similarly the conviction of the petitioner for offences punishable under sections 363/366 read with section 34 of the IPC has also been set aside by the High Court on an appeal being filed by the petitioner. It is also an admitted and undisputed fact that the authorities, while considering the application filed by the petitioner for compassionate appointment, has rejected the same in view of the aforesaid criminal antecedents of the petitioner. 9. The Supreme Court in the case of Pradeep Kumar (supra), while taking into consideration and analyzing the law on the subject specifically the previous decisions of the Supreme Court in the case of Joginder Singh Vs. Union Territory of Chandigarh and others [ (2015) 2 SCC 377 ], Deputy Inspector General of Police and another Vs. S.Samuthiram [ (2013) 1 SCC 598 ], Commissioner of Police, New Delhi and another Vs. Mehar Singh [ (2013) 7 SCC 685 ], State of Madhya Pradesh and others Vs. Parvez Khan [ (2015) 2 SCC 591 ] as well as the three Judges Bench decision of the Supreme Court in the case of Avtar Singh Vs. Union of India and others [ (2016) 8 SCC 471 ], has held in paragraphs 13 & 17 as under :- “13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character. 14. to 16. xxx xxx xxx 17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.” 10. The Full Bench of this Court in the case of Ashutosh Pawar (supra), while considering the case of appointment as a Judicial Officer in the State of Madhya Pradesh, has again taken into consideration all the aforesaid decisions of the Supreme Court including the decision in the case of Pradeep Kumar (supra) and has taken a similar view in paragraph 32, which reads as under: “32. Therefore, in respect of the Questions No.1, 4 and 5 we hold that decision of criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. In this view of the matter, we find that the judgment in Arvind Gurjar’s case (supra) holding that it cannot be held that candidate does not have a good character, is not the correct enunciation of law. Consequently, the judgment in Arvind Gurjar’s case (supra) is overruled.” 11. We are also of the considered opinion that in view of the fact that an identical issue raised by the petitioner was specifically referred to and has been answered against the petitioner by the Full Bench of this Court in the case of Ashutosh Pawar (supra), the reliance placed by the petitioner on the decision of this Court rendered in W.P.No.8854/2012 Rakesh Kumar Patel (supra) does not render any assistance to the petitioner, as the said decision loses significance in the light of the Full Bench decision of this Court in the case of Ashutosh Pawar (supra). 12. In the circumstances, we do not find any illegality or perversity in the order passed by the Tribunal warranting interference by this Court. The petition, filed by the petitioner, being meritless is hereby dismissed, while keeping open and affirming the observations made by the Tribunal in paragraph 16 of the order giving an opportunity to the widow of the deceased employee to propose the name of some other member of the family for grant of compassionate appointment. 13. With the aforesaid observation, the petition filed by the petitioner stands dismissed.