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Madhya Pradesh High Court · body

2020 DIGILAW 1008 (MP)

Narendra Parihar v. State of M. P.

2020-10-05

VIVEK RUSIA

body2020
ORDER 1. The petitioner has filed the present petition being aggrieved by his non-appointment on the post of Assistant District Prosecution Officer (ADPO) in the regular pay-scale of Rs.36200-114800/-. Facts of the case are as under : 2. The M.P. Public Service Commission (MPPSC) issued an advertisement dated 22.12.2015 inviting applications for appointment on the post of ADPO. The petitioner being an aspirant to the said post submitted his candidature under the Scheduled Caste (SC) category. That, an online written examination was held on 12.6.2016 and the petitioner was declared successful and accordingly was called for the interview. After completing the entire selection process, MPPSC published the list of selected candidates on 17.5.2017 and sent it to the state Government. In this list, the name of the petitioner is included at Sr. 145. Thereafter the State Government vide letter 23.6.2017 sent the list of all the selected candidates to the Health Department for health verification of all the selected candidates. According to the petitioner vide letter dated 23.6.2017, he was called for the verification of the documents and submission of affidavit in respect of criminal antecedents. The petitioner appeared in the office of the respondent No.1 and completed all the required formalities as per law. 3. Thereafter respondents issued the first list of selected candidates on 26.10.2017 but the petitioner did not find his name in the appointment order. According to the petitioner, candidates who secured less marks to him and placed below in the list published by the MPPSC have been given the appointment to the post of ADPO.Vide order dated 15.11.2017, the State Government issued the appointment order of another two candidates to the post of ADPO. Thereafter, vide order dated 8.1.2018, another 66 selected candidates were appointed on the post of ADPO. vide order dated 22.3.2018, appointment order of 17 ADPO was issued followed by an order dated 1.5.2018 appointing 8 ADPOs. Vide order dated 1.10.2018 other 18 candidates have also been appointed on the post of ADPO. Since the petitioner did not find his name in all the aforesaid appointment orders, he has filed the present petition before this Court. 4. Respondents No.1 and 2 have filed the reply by submitting that the petitioner has been denied appointment because of his past criminal antecedents. An FIR at Crime No. 110/2005 was registered against him for the offences punishable u/ss. 4. Respondents No.1 and 2 have filed the reply by submitting that the petitioner has been denied appointment because of his past criminal antecedents. An FIR at Crime No. 110/2005 was registered against him for the offences punishable u/ss. 409, 420, 467, 471, and 120B of the IPC. After investigation, challan was filed and the petitioner was tried for the offence u/s. 409 of the IPC. Although he has been acquitted from the aforesaid charge by a competent Session Court, but as per the opinion given by the Home Department in view of the Circular dated 5.6.2003 the petitioner has not been found fit for the post of ADPO. It is further submitted that the examination for the post of ADPO was held in the year 2015 and the validity of the selection list has expired on 28.5.2018. Meanwhile, amendment in the rule 12 of M.P. Public Prosecutor (Gazetted) Service Recruitment Rules, 1991, the petitioner now cannot seek an appointment by way of this petition. An opinion was also sought from the MPPSCE vide letter dated 7.10.2019. In turn, the MPPSC has declined to extend the validity of the list after the expiry of one year from the date of selection, in view of the amendment in the rules. Hence, the petition is liable to be dismissed. 5. The petitioner has filed the rejoinder to the return filed by respondents No.1 and 2 by submitting that based on false charges, the FIR was registered against him. As per the FIR, the charged against the petitioner was that he received more amount of scholarship to the tune of Rs.2,090/- than his entitlement in collusion with the officials of Government Madhav Arts & Commerce College, Ujjain by fabricating the documents and cheques meant for payment of scholarship. Initially, the petitioner's name was not included in the FIR. The learned trial Court has acquitted him honourably from the charge with the finding that the petitioner was not responsible for drawing the scholarship more than the entitlement. He did not commit any forgery of the documents to draw the extra amount of scholarship. The entire scholarship was released by way of the cheques prepared by the College and the concerned Department and in which, there was no such manipulation. He did not commit any forgery of the documents to draw the extra amount of scholarship. The entire scholarship was released by way of the cheques prepared by the College and the concerned Department and in which, there was no such manipulation. It is further submitted that so far as Circular dated 5.6.2003 is concerned, Clause 6(viii) specifically provides that upon acquittal on merit by the competent Court, the candidate shall be eligible for the Government service. It is further submitted that the petitioner's claim has not been rejected on the basis of involvement in a criminal case. His candidature has been rejected because of the expiry of the selection list. It is submitted that Rule 12 has been amended w.e.f. 7.6.2019 whereas the selection list was issued on 29.5.2017. The amended subrules (4) and (5) of rule 12 has a prospective effect. Respondents/State have appointed the candidates from the waiting list even after the expiry of one year. There cannot be two expiry dates, one year for the selection list and another one and half years for the waiting list. Once the date has been extended for the waiting list, the same is liable to be extended for the select list candidates. 6. As an abundant precaution, the petitioner has impleaded respondent No.3 in this petition whose name finds place below in the selection list at Sr. 193. Accordingly, respondent No.3 has filed the return and according, in view of the judgment passed by the Full Bench of this Court in the case of Ashutosh Pawar v. High Court of M.P. (W.P. No.5865/2016 decided on 12.1.2018) [Reported in 2018 (1) JLJ 169 (FB)] even after acquittal from the criminal case the petitioner is not fit for appointment to the post of ADPO. 7. This Court vide order dated 29.2.2020, has directed the State Government to inform about the position of vacant post of ADPO under the SC category on which the petitioner can be adjusted or not. The respondents have filed an affidavit dated 5.9.2020 that two posts under the SC category (male) and one post in the female category are vacant. I have heard Shri L.C. Patne, learned counsel for the petitioner; Shri Shrey Raj Saxena, learned Dy. Advocate General for respondents/State; and Shri Abhishek Soni, learned counsel for respondent No.3 at length and perused the material available on record. 8. I have heard Shri L.C. Patne, learned counsel for the petitioner; Shri Shrey Raj Saxena, learned Dy. Advocate General for respondents/State; and Shri Abhishek Soni, learned counsel for respondent No.3 at length and perused the material available on record. 8. The candidature of the petitioner has been rejected on two grounds firstly, that he was tried u/s. 409 of the IPC and in view of the circular dated 5.6.2003 he is not eligible to hold civil post, secondly, the validity of the selection list has expired after the lapse of one year. 9. It is not in dispute that the petitioner has been selected by the MPPSC for the post of ADPO, but he did not find his name in the appointment orders issued from time to time. The candidates below in the list have been given appointments. From the list of selected candidates, the last appointment order was issued on 1.5.2018 that is within the year from the date of issuance of the selection list on 29.5.2017. Thereafter, vide order dated 1.0.2018, candidates from the waiting list have appointed i.e. after a period of one year. The State Government contended that the life of selection list is one year and the life of the waiting list is one and a half years. Neither the advertisement nor the unamended Rules prescribe any time-limit for the expiry of the selection list or waiting list. Sub-rules (4) and (5) have been inserted in rule 12 of the Rules of 1991 w.e.f. 7.6.2019 whereby after publication of the final selection list of successful candidates the list shall remain in force till the next year provided that the State Government may extend the validity of the selection list for another six months after consultation with the MPPSC. Sub-rules (4) and (5) talk about only the selection list. The selection list and waiting list cannot have two different validity periods. In the present case, the respondent/State has extended the validity period of the waiting list for another six months but the life of the entire selection list and waiting list both are liable to be extended for a period of another six months if so required. Since certain candidates from the waiting list have already been appointed therefore in order to save them it would be proper to extend the life of the select list by one and a half years. 10. Since certain candidates from the waiting list have already been appointed therefore in order to save them it would be proper to extend the life of the select list by one and a half years. 10. The respondent/State Government has denied the appointment to the petitioner based on the opinion given by the MPPSC vide letter dated 7.10.2019. The contention of Shri Patne, learned counsel for the petitioner, is that after completion of the selection, the MPPSC becomes functus officio in respect of particular selection and thereafter it would be within the domain of the State Government to appoint the candidate from the selection list or not. Rule 10 of the Rules of 1991 gives authority to the Commission to decide the eligibility or otherwise of a candidate for selection. Under rule 12, the Commission forwards the selection list arranged in the order of merit of the candidates who have qualified by such standards as the Commission may determine. Sub-rule (3) of rule 12 specifically provides that inclusion of a candidate's name in the list confers no right to appointment unless the Government is satisfied after such inquiry as may be considered necessary that the candidate is suitable in all respects for appointment in the service. Therefore, it is within the domain of the State Government to decide the suitability of the candidate in all respects for appointment in the service despite his being included in the selection list. The MPPSC is competent to prescribe the eligibility of the candidate as per the Rules, then MPPSC can also decide that even after the selection is over the eligibility criteria can be extended for the particular post by extending the validity period of the select list. The Government has not committed wrong in getting the opinion from the MPPSC. Even otherwise, after the amendment, the State Government may extend the validity period of the selection list after consultation with the Commission. But even after consultation with the Commission, the State Government has decided not to appoint the petitioner on the post of ADPO. 11. So far as eligibility to get an appointment in the Government service even after acquittal in a criminal case is concerned, the issue has been considered in detail by the Full Bench in the case of Ashutosh Pawar (supra). 11. So far as eligibility to get an appointment in the Government service even after acquittal in a criminal case is concerned, the issue has been considered in detail by the Full Bench in the case of Ashutosh Pawar (supra). The aforesaid judgment of the Full Bench has been affirmed by the Apex Court after dismissal of the SLP as well as review petition. The Full Bench in its concluding paragraph 32 has held that the decision of a Criminal Court on the basis of a compromise or an acquittal cannot be treated as a candidate possesses a good character which makes him eligible for the civil post. The competent authority has to decide in respect of the suitability of the candidate to discharge the function of a civil post and mere acquittal in a criminal case would not infer that a candidate possesses a good character. Para 32 of the aforesaid judgment is reproduced below : “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 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” While answering Questions No.2 and 3 the Full Bench has held that while exercising the power of judicial review under Article 226 of the Constitution of India the High Court can only examine the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. 12. In the present case, the State Government has rejected the candidature of the petitioner merely on the ground that he had been tried for the offence punishable u/s. 409 of the IPC. Circular dated 5.6.2003 issued by the State Government specifically provides that after acquittal from a criminal Court the candidate becomes eligible for Government service. Therefore, appointment to the selected candidate cannot be denied mechanically on the ground that he was tried in a criminal Court. The competent authority has to examine as to the charges under which he was tried and the grounds on which he was acquitted before deciding as to whether he is eligible for the civil post or not. It is not the case that the petitioner did not disclose his involvement in a criminal case. 13. Therefore, in view of the above, the matter is remitted back to the respondents No.1 and 2 for afresh consideration as to whether after acquittal from the criminal case, the petitioner is still eligible for the appointment on the post of ADPO. The authority may take guidance from the judgment passed by the apex Court in the case of Avtar Singh v. Union of India : (2016) 8 SCC 471 in which the apex Court has summarised the parameters for consideration of a case for appointment after acquittal from a criminal case. It is not in dispute that the posts are still lying vacant and no fresh selection on the post of ADPO has been held after 2017, hence the appointment of the respondent No.3 need not be disturbed. The petitioner has got a protective interim order from this Court, therefore, his right for consideration still survives. 14. With the aforesaid, this petition stands disposed of. No order as to cost.