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2019 DIGILAW 1413 (RAJ)

Ramesh v. State of Rajasthan

2019-05-09

ARUN BHANSALI

body2019
JUDGMENT Arun Bhansalin, J. - This writ petition has been filed by the petitioner aggrieved against the order dated 13/2/2018 (Annex.P/5), whereby, the petitioner has been found ineligible for appointment on the post of Constable. 2. The petitioner applied for the post of Constable pursuant to the advertisement of 2013. Based on his performance at the written examination and Physical Standard Test/Physical Efficiency Test (PST/PET), the petitioner was selected and was placed in the waiting list in the category of OBC. Thereafter, police verification was conducted in which it was indicated that there was a criminal case against the petitioner in which F.R. was given and on protest petition filed by the complainants, the F.R. was not accepted and cognizance has been taken against the nine accused persons under Section 147, 447, 427 and 323 IPC and by non-bailable warrants they have been summoned by the court of ACJM, Phalodi. 3. Based on the said police verification report, the Superintendent of Police, Jodhpur (Rural), by his order dated 13/2/2018 (Annex.P/5) came to the conclusion that the petitioner in the application as well as in verification form concealed the fact of criminal case, he has not been acquitted by the court honourably, the offence for which the petitioner underwent trial was not trivial in nature and as such he was not eligible for appointment. 4. It is submitted by learned counsel for the petitioner that after the police verification report dated 26/4/2017 was submitted, the petitioner by judgment of the trial court dated 12/9/2017 (Annex.P/8) was acquitted along with other accused. Submissions have been made that while passing the order impugned, qua the judgment only observation made was that the petitioner was not acquitted honorably by the trial court, which cannot be a reason for denying appointment to the petitioner. 5. Submissions have also been made that the judgment in Avtar Singh vs. Union of India & Ors. : (2016) 8 SCC 471 has been mechanically relied on by the respondents and, therefore, the order impugned deserves to be quashed and set aside. 6. Learned counsel appearing for the respondents supported the order impugned. It was submitted that merely because the petitioner has been acquitted is not a reason enough to hold him eligible for appointment to the post of police Constable. 6. Learned counsel appearing for the respondents supported the order impugned. It was submitted that merely because the petitioner has been acquitted is not a reason enough to hold him eligible for appointment to the post of police Constable. It was submitted that the petitioner had suppressed the information pertaining to pendency of criminal case and it is only on police verification that the said case came to light and after that on the complainants becoming hostile during the course of trial, the petitioner and other accused were given the benefit of doubt. 7. Submissions have been made that as the petitioner had suppressed the material facts at the time of filling up the application form and the acquittal is not clean, even as per the judgment of Hon'ble Supreme Court in the case of Avtar Singh (supra), the petitioner is not entitled for any relief and, therefore, the petition deserves to be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 9. The facts are not in dispute, wherein at the time of filling up the application form and the form for police verification, a criminal case against the petitioner was pending before the trial court and the petitioner had suppressed the said information in the application form as well as police verification form. The submission made is that as the police had initially given F.R., the said fact was not disclosed in the application form, however, in the police verification form the suppression of information is writ large inasmuch as the trial court had taken cognisance on 28/4/2015 and despite service of summons when the accused did not appear before the court, non-bailable warrants were issued by the court, where after, the trial court on account of the fact that all the complainants turned hostile during the trial, acquitted the accused including the petitioner on 12/9/2017. 10. The Superintendent of Police in its order impugned while rejecting the candidature of the petitioner inter alia observed as under: 11. This Court in Lokesh Meena vs. State of Rajasthan & Ors. 10. The Superintendent of Police in its order impugned while rejecting the candidature of the petitioner inter alia observed as under: 11. This Court in Lokesh Meena vs. State of Rajasthan & Ors. : S.B.Civil Writ Petition No. 18212/2018 decided on 20/2/2019, while considering the circulars of the State, judgment of Hon'ble Supreme Court in the case of Avtar Singh (supra) and the nature of order passed by the appointing authority, inter alia observed and came to the following conclusion: "I have considered the submissions made by learned counsel for the parties and have perused the material available on record. A perusal of Circular dated 28.02.2017 reveals that the respondents have indicated the categories, in which, the candidates would be eligible for appointment, which includes acquittal by the Court on according benefit of doubt and acquittal based on compromise between the parties. In view thereof, as in both the cases the petitioner has been given benefit of doubt/acquitted based on compromise, the case of the petitioner would be covered by the said Circular. So far as the observations made by Hon'ble Supreme Court in the case of Avtar Singh (supra) are concerned, the relevant portion of the directions, read as under:- "(c) 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." (Emphasis supplied) A perusal of the above direction would reveal that Hon'ble Court directed that if acquittal had already been recorded in a case involving mortal turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal or benefit of 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. A perusal of the order impugned i.e. 29.11.2018, whereby, the candidature of the petitioner has been rejected, the respondents have observed as under:- (emphasis supplied) As noticed hereinbefore, the Hon'ble Supreme Court observed that even in a case where acquittal is not clean or benefit of doubt has been given, the employer is required to consider all relevant facts available as to the antecedents and take an appropriate decision. However, in the order passed by the respondents the same has been passed mechanically by merely indicating that the acquittal is not clean neither the antecedents nor the relevant facts with regard to acquittal of the petitioner have been considered by the respondents and, therefore, the order dated 29.11.2018 (Annexure-10) passed by the respondents cannot be sustained. In view of the above discussion, as the petitioner is entitled as per the Circular dated 28.03.2017 (Annexure-9) of the respondents, based on the acquittals and the order Annexure-10 does not fulfill the requirement of directions given in the case of Avtar Singh (supra), the order dated 29.11.2018 (Annexure-10) and the action of the respondents in denying the appointment to the petitioner cannot be sustained." 12. In the present case also, the appointing authority has merely relied on the observations made by the Hon'ble Supreme Court in the case of Avtar Singh (supra) that the acquittal was not clean and that charges levelled were not trivial in nature, and has cancelled the candidature of the petitioner and has not dealt with the issue as per the requirements laid down in the case of Avtar Singh (supra) of considering all the relevant facts and take appropriate decision in the matter. 13. In view of the above fact situation and the judgment of this Court in the case of Lokesh Meena (supra) which has been followed in the case of Kuldeep Dhakar vs. State of Rajasthan & ors. : S.B. Civil Writ Petition No. 19166/2018 decided on 13/3/2019, the order passed by the respondents cannot be sustained. 14. Consequently, the writ petition filed by the petitioner is allowed, the order impugned dated 13/2/2018 (Annex.P/5), whereby, the candidature of the petitioner has been rejected is quashed and set aside. The respondents are directed to accord appointment to the petitioner pursuant to his selection, if he is otherwise eligible. 14. Consequently, the writ petition filed by the petitioner is allowed, the order impugned dated 13/2/2018 (Annex.P/5), whereby, the candidature of the petitioner has been rejected is quashed and set aside. The respondents are directed to accord appointment to the petitioner pursuant to his selection, if he is otherwise eligible. The petitioner shall be entitled to notional benefits from the date appointment has been accorded to the candidates lower in merit to the petitioner. However, the actual monetary benefits would be payable to the petitioner from the date of appointment. Needful be done within a period of four weeks.