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Allahabad High Court · body

2020 DIGILAW 126 (ALL)

Brijesh Kumar Paswan v. State Of U. P.

2020-01-10

J.J.MUNIR

body2020
JUDGMENT : 1. This writ petition is directed against an order dated 11.11.2019 passed by the Superintendent of Police, Deoria whereby the petitioner's application for compassionate appointment made under the U.P. Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974, (for short, 'the Rules') has been rejected. 2. When this matter came up first on 6th January, 2020 the following order was made: "The petitioner's application for compassionate appointment under the U.P. Dying in Harness Rules, 1974 have been rejected by the impugned order dated 11.11.2019. The basis for the rejection that is recorded is that the petitioner was nominated in Case Crime No. 3 of 2015, under Sections 147, 452, 323, 504, 427, 354 I.P.C., P.S. Jhagaha, district Gorakhpur. The impugned order records that during investigation, the police have found the petitioner's nomination in the crime to be incorrect and have not charge sheeted him. It is then said in the impugned order that the offence committed by the petitioner is one that involves moral turpitude and there is a possibility that the petitioner may be summoned by the Court. On the aforesaid possibility, the petitioner's claim for compassionate appointment has been rejected. Also, the Superintendent of Police, Deoria while passing the said order has taken into consideration an opinion of the District Counsel (Criminal), Gorakhpur. The submission of the learned counsel for the petitioner is that the impugned order is manifestly illegal and takes into consideration irrelevant and extraneous material besides drawing perverse conclusions. He submits that the impugned order takes into consideration an opinion submitted by the District Government Counsel (Criminal) which is absolutely extraneous material. It is further submitted that the possibility that the petitioner might be summoned in future is nothing but a perverse conclusion. The petitioner's claim cannot be rejected on the conjecture of a mere future happening. As of day, the petitioner has not been charge sheeted and is not an accused before the Court in any criminal case. Sri Indramani Kushwaha, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3 will seek instructions in the matter within three days. Lay this matter as fresh on 10.01.2020." 3. As of day, the petitioner has not been charge sheeted and is not an accused before the Court in any criminal case. Sri Indramani Kushwaha, learned Standing Counsel appearing on behalf of respondent Nos. 1, 2 and 3 will seek instructions in the matter within three days. Lay this matter as fresh on 10.01.2020." 3. Today, on instructions received from the Superintendent of Police, Deoria the same stand has been reiterated, to wit, that the petitioner being nominated in Case Crime No. 3 of 2015 under Sections 147, 452, 323, 504, 427, 354 I.P.C., P.S. Jhagaha, District Gorakhpur, he cannot be offered compassionate appointment for reason that though his complicity has not been found by the police during investigation, there is a possibility that in future he might be summoned by the Court. In the instructions received from the Superintendent of Police, it has also been said that the view of the Superintendent of Police is based on the advice received from the District Magistrate, Gorakhpur through a memo dated 09.10.2019, where it is said that the crime wherein the petitioner has been nominated involves moral turpitude and the possibility of the petitioner being summoned in future by the Court where other co-accused have been charge-sheeted, cannot be ruled out. The District Magistrate, Gorakhpur has opined that it would not be proper to offer compassionate appointment to the petitioner. The Superintendent of Police has further indicated his mind in the written instructions that he has given to the learned Chief Standing Counsel that he is in agreement with the report (legal opinion of the District Magistrate, Gorakhpur) and after a deep and thoughtful consideration of the matter he is of opinion that in view of registration of a crime against the petitioner he ought not to be offered compassionate appointment. 4. The written instructions received by the learned Standing Counsel are being retained on record and made part of it. The learned Standing Counsel does not propose to file a counter affidavit. 5. Admit. 6. The writ petition is being heard forthwith. 7. Heard learned counsel for the petitioner and Sri J.S. Bundela, learned Standing Counsel appearing on behalf of all the respondents. 8. The learned Standing Counsel does not propose to file a counter affidavit. 5. Admit. 6. The writ petition is being heard forthwith. 7. Heard learned counsel for the petitioner and Sri J.S. Bundela, learned Standing Counsel appearing on behalf of all the respondents. 8. It is no doubt true that the petitioner was nominated in Case Crime No. 3 of 2015 under Sections 147, 452, 323, 504, 427, 354 I.P.C. but during investigation the petitioner has not at all been found involved and has not been charge-sheeted. Therefore, on the date when the authority has considered the petitioner's claim for compassionate appointment, the petitioner is not an accused in the case. The possibility that the petitioner may be summoned in future by the Court where other nominated accused would be tried, as they have been charge-sheeted, is a mere conjecture. There is no basis to it. It is not the respondent's case that there is already an application under Section 319 Cr.P.C. made on behalf of the complainant requesting the Court to summon the petitioner who has been exculpated by the police during the investigation. It would be well to remember that there is a presumption of innocence in favour of every citizen and that presumption cannot be displaced on assumptions of the Superintendent of Police for the mere fact that an FIR has been registered nominating the petitioner which the police themselves on investigation have found to be of no worth vis-a-vis the petitioner. 9. In the considered opinion of this Court, therefore, the premise on which the Superintendent of Police, Deoria has proceeded to decline the petitioner's claim for compassionate appointment, is legally not tenable. The petitioner's claim has to be judged at the time when it is made and the circumstances of the petitioner on that day. It cannot be judged with reference to a conjecture about a mere future happening as indicated in the order of this Court dated 06.01.2020. 10. Moreover, the impugned order also shows that the Superintendent of Police has taken into consideration an opinion of the District Government Counsel (Criminal), Gorakhpur dated 06.09.2019. A legal opinion may be sought by any person in matters legal, who is himself not trained in law or still if he desires better opinion. 10. Moreover, the impugned order also shows that the Superintendent of Police has taken into consideration an opinion of the District Government Counsel (Criminal), Gorakhpur dated 06.09.2019. A legal opinion may be sought by any person in matters legal, who is himself not trained in law or still if he desires better opinion. But, an authority charged with jurisdiction to decide upon civil rights of parties has to do so upon an independent application of mind to the facts and evidence on record. He cannot take into consideration, while exercising his jurisdiction to decide valuable rights of parties, such as the right to appointment on compassionate basis under the Rules, a legal opinion; if he does, it would be extraneous and irrelevant material. For this reason also, the impugned order passed by the Superintendent of Police, Deoria, is found to be flawed. 11. In the result, this writ petition succeeds and is allowed. The impugned order dated 11.11.2019 passed by the Superintendent of Police, Deoria, Annexure 1 to the writ petition, is hereby quashed. 12. The Superintendent of Police, Deoria is ordered to decide the petitioner's claim for compassionate appointment under the Rules, strictly in accordance with law bearing in mind what has been said in this judgment, within a period of one month positively from the date of receipt of a certified copy of this order. 13. Let a copy of this order be communicated to the Superintendent of Police, Deoria by the office within a week.