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2022 DIGILAW 614 (MP)

VIRENDRA JATAV v. STATE OF MADHYA PRADESH

2022-04-18

PURUSHAINDRA KUMAR KAURAV, RAVI MALIMATH

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ORDER PURUSHAINDRA KUMAR KAURAV, J. : – This intra Court appeal takes exception to order dated 20-8-2020, passed by the learned Single Judge in Writ Petition No. 27106 of 2018, whereby petition filed by appellant-petitioner has been dismissed. 2. The facts of the case are that in pursuance of an advertisement issued by the respondents, the appellant appeared for recruitment test for the post of Police Constable conducted in the year 2017. The appellant was selected for the post of Constable (G.D.) and was allotted 26th Battalion, Special Armed Forces, Guna Unit. Vide order dated on 10-8-2018, the appellant was directed to appear before the screening committee on 17-8-2018 at 10:00 A.M. with respect to his character verification. The appellant appeared on 10-8-2018 and explained the circumstances. On 26-10-2018 the respondent authorities, while taking into consideration the fact that Crime No. 19 of 2008 for offences punishable under sections 363, 366, 376 and 506/34 of Indian Penal Code was registered against the appellant at Police Station - Doraha, District Sihore, found that the nature of the service to which the appellant was to be inducted requires that an incumbent should not only be eligible but his character should be above-board and a person having criminal antecedents should not be inducted to a force that requires observance to strict discipline and accordingly he was not found “suitable” for appointment on the post in question for Police Department. The appellant challenged the order dated 26-10-2018 before this Court. Learned Single Judge vide impugned order dismissed the petition. Hence, the appellant is in this intra Court appeal. 3. Learned counsel appearing for the appellant submits that the decision taken by the authorities not to appoint the appellant is erroneous. The same has been passed without taking into consideration the fact that crime in question was registered against the appellant in the year 2008. The same was with respect to love affair of the appellant with a girl belonging to other caste and therefore, at the instance of parents of the girl, an F.I.R. was registered. The competent Court has honorably acquitted the appellant and a perusal of the finding recorded by the competent Court would clearly demonstrate that acquittal was honorable. The appellant did not suppress any material fact and had clearly disclosed in his form that he had faced a criminal trial where he was honorably acquitted. The competent Court has honorably acquitted the appellant and a perusal of the finding recorded by the competent Court would clearly demonstrate that acquittal was honorable. The appellant did not suppress any material fact and had clearly disclosed in his form that he had faced a criminal trial where he was honorably acquitted. Under such circumstances, according to him, learned Single Judge has erred in dismissing the writ petition, therefore, an interference is called for. He placed reliance on the decision of the Hon’ble Supreme Court in the matter of R. P. Kapur vs. Union of India and another, AIR 1964 SC 787 , Avtar Singh vs. Union of India and others, (2016) 8 SCC 471 , Swaran Singh Chand vs. Punjab State Electricity Board and others, (2009) 13 SCC 758 , G. Jayalal vs. Union of India and others, (2013) 7 SCC 150 and Mohammed Imran vs. State of Maharashtra and others, C. A. No. 10571 of 2018 and the Full Bench decision of this Court in the matter of Ashutosh Pawar vs. High Court of Madhya Pradesh and another. 4. Learned counsel appearing for the State opposed the submissions made by learned counsel for the appellant and submitted that there is a limited scope of judicial review in examining the decision of the expert. There is a marked distinction between “suitability” and “eligibility” and according to him, the appellant may be “eligible”, but he has not been found “suitable” by the employer and therefore, no fault can be found with. He placed reliance on a decision of the Hon’ble Supreme Court in the case of Union Public Service Commission vs. M. Sathiya Priya and others, (2018) 15 SCC 796 , Union Territory, Chandigarh Administration and others vs. Pradeep Kumar and another, (2018) 1 SCC 797 , Madhya Pradesh Special Police Establishment vs. State of Madhya Pradesh and others, (2004) 8 SCC 788 , Mutha Associates and others vs. State of Maharashtra and others, (2013) 14 SCC 304 , State of Madhya Pradesh and others vs. Parvez Khan, (2015) 2 SCC 591 , Commissioner of Police, New Delhi and another vs. Mehar Singh, (2013) 7 SCC 685 , Gangacharan Baijnath Prasad vs. State of Madhya Pradesh and others, 1994 M.P.L.J. (F.B.) 792. 5. We have heard the learned counsels appearing for the parties and perused the record. 6. 5. We have heard the learned counsels appearing for the parties and perused the record. 6. Before proceeding further, it would be appropriate to examine the impugned order rejecting the “suitability” of the appellant which was communicated to him vide order dated 26-10-2018. Extract of the same reads as under : 7. The Hon’ble Supreme Court in the matter of Avtar Singh has clearly held that even in a case where the employee has made declaration truthfully of the concluded criminal case, the employer still has a right to consider criminal antecedents, and cannot be compelled to appoint the candidate. In the instant case, the employer has not attributed any suppression by the appellant but has taken a decision after due application of mind that services to which the appellant was to be inducted requires utmost sensitivity as being member of a Police Force. An incumbent is required to protect the rights of the citizens. It is thus seen that the employer is entitled to examine the “suitability” on various facets including: (i) the nature of job to be performed by an employee; (ii) The nature of department in which an employee will have to perform his duties; (iii) the status of post and other attendant circumstances and (iv) the nature of allegation and acquittal etc. The aforesaid facets are only illustrative, but not exhaustive. A close analysis of the judgment relied upon by the parties would show that “suitability” is not to be confused with “eligibility”. The scope for interference on the question of “eligibility” is of-course larger than the scope for interference in the matter of “suitability”. In other words the aspect of “suitability” stands in a much narrower compass from purview of judicial review as “suitability” is a matter of opinion. The Full Bench of this Court in the case of Ashutosh Pawar has clearly held that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court only examines the decision making the process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. 8. The Division Bench of this Court recently in its decision dated 17-1-2022 in Writ Petition No. 5530 of 2019 had an occasion to consider a case of non-appointment on the post of Judicial Officer by the High Court almost on the same ground. 8. The Division Bench of this Court recently in its decision dated 17-1-2022 in Writ Petition No. 5530 of 2019 had an occasion to consider a case of non-appointment on the post of Judicial Officer by the High Court almost on the same ground. A criminal case was lodged against such candidate and he was not found “suitable” to be appointed on the post of Civil Judge, Class-II. This Court considered the decisions of the Hon’ble Supreme Court in the matters of Mohammed Ibrahim vs. State of Maharashtra, (2019) 17 SCC 696, Commissioner of Police and others vs. Sandeep Kumar, (2011) 4 SCC 644 , Union Territory, Chandigarh Administration and others, C. Ravichandran Iyer vs. Justice A. M. Bhattacharjee, (1995) 5 SCC 457 , State of Madhya Pradesh vs. Abhijeet Singh Pawar, (2018) 18 SCC 733 , Commissioner of Police, New Delhi and another vs. Mehar Singh, State of Madhya Pradesh and others vs. Parvez Khan and in para 8 of the decision it has been held as under : – “A judicial officer has to discharge the sovereign functions in administration of justice. Thus, the expectations from a judicial officer are of much higher standard. Keeping in mind the said principle, if a decision is taken by the employer, that a person against whom charge-sheet was filed for offences under section 294, 323, 341, 506-B, 427 of the Indian Penal Code and the closure was made only on the basis of a compromise such a decision normally should not be interfered with in exercise of power of judicial review. In absence of any strong reason such as rejection of the candidature being actuated by reasons of mala fide or the decision suffering from non-application of mind, the scope of interference by this Court under judicial review is limited. The High Court under Article 226 of the constitution only examines the decision making process and does not act as a Court of appeal to substitute its own decision. Even if the decision making process is found to be arbitrary or illegal, the High Court normally directs the authority for reconsideration rather than to substitute the decision of the authority with that of its own. However, the said situation has not arisen in the present case.” 9. Taking into consideration the overall facts and circumstance of the case, we do not find that there is any allegation of mala fide. However, the said situation has not arisen in the present case.” 9. Taking into consideration the overall facts and circumstance of the case, we do not find that there is any allegation of mala fide. The decision making process cannot be said to be unfair or arbitrary. The conclusion drawn by the state authorities does not appear to be perverse. Therefore, this Court cannot substitute the decision of the authority with that of its own. We do not find any error in the order passed by the learned Single Judge. Hence, we decline to interfere into the same. 10. The writ appeal is accordingly dismissed.