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2024 DIGILAW 170 (RAJ)

Sunil S/o Mohan Ram v. State Of Rajasthan

2024-01-25

PUSHPENDRA SINGH BHATI

body2024
ORDER : 1. This petition under Article 226 of the Constitution of India has been preferred claiming the following reliefs: “It is, therefore, most humbly and respectfully prayed that their writ petition may kindly be allowed: (i) By an appropriate writ order or direction, the respondents may kindly be directed to offer the appointment to the petitioner on the post of constable pursuant to the notification dated 29.10.2021 (Annexure-2). (ii) By an appropriate writ order or direction, the respondents further be directed to entitle the petitioner with all consequential benefits form the date of persons lower in merit to the petitioner was accorded appointment including monitory benefits; and (iii) By an appropriate writ order or direction, the respondents may kindly be refrained from rejecting the candidature of the petitioner as a result of the criminal case filed against the petitioner when he was a minor, and (iv) Any other subsequent order rejecting the candidature of the petitioner may kindly be declared illegal and be quashed and set aside, and (v) Any other appropriate order or relief which their Hon’ble court may deem just and proper in the facts and circumstances of their case may kindly also be passed in favour of the humble petitioners.” 2. Brief facts of the case, as placed before this Court by learned counsel for the petitioner, are that in the year 2020, when the petitioner was a minor, one FIR was registered against him under Sections 419, 420 and 120-B IPC and Sections 3, 4, 5, 6 of the Rajasthan Public Examinations Act, 1992. Thereafter, the concerned Juvenile Justice Board (JJB) conducted the trial and passed the order dated 14.09.2022, whereby the petitioner was convicted, and in that connection, was directed to remain on probation for a period of six months, subject to furnishing of a bond of Rs.5,000/- to the effect that the petitioner shall maintain his good conduct in the society, and the learned JJB further extend to the petitioner the benefit of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015 to the effect of removal of the said conviction order as disqualification. 2.1. 2.1. The respondents issued an advertisement dated 29.10.2021 for the post of Constable in various districts; the petitioner applied for the post in question and at time of filling the application under the head of character details i.e. Whether any FIR has ever been lodged against you? In answer of that question, the petitioner stated “No”; the respondents conducted the examination as per the schedule. Thereafter, on 17.11.2022, the respondents declared the result for appointment on the post in question and the petitioner was declared successful therein and secured his name in the merit list so prepared. 2.2. Subsequently, the petitioner was called for documents verification, which were duly verified by the respondents. On 02.05.2022, the respondents issued a press note regarding the waiting list for the post in question, but the petitioner’s candidature for the post in question was neither accepted nor rejected by that time. Thereafter, the petitioner was verbally informed that his candidature’s was not considered for the post in question because of the aforementioned criminal case and the petitioner sent a mail as well as submitted a representation before the respondents in this regard, but no response was received by him from the side of the respondents. 2.3. As per the additional affidavit filed on behalf the petitioner in the present petition, the respondents vide order dated 24.04.2023 (Annexure-11) rejected the petitioner’s candidature for appointment on the post in question. 3. Learned counsel for the petitioner submits that at the time of registration of the criminal case, the petitioner was minor and the trial was conducted by the learned JJB, wherein while passing the order, the learned JJB extended to the petitioner the benefit of Section 24 of the Act of 2015 by removing the disqualification of such conviction, for future employment and other purposes, therefore, the impugned rejection of the petitioner’s candidature is not sustainable in the eye of law. 3.1. Learned counsel further submits that the petitioner did not conceal any material information in the application form, because the disqualification was removed by the learned JJB itself, and for that reason, the petitioner stated “NO” in the information column regarding the criminal case. Learned counsel also submits that the petitioner is a meritorious candidate and was declared successful in the examination in question. 3.2. Learned counsel also submits that the petitioner is a meritorious candidate and was declared successful in the examination in question. 3.2. In support of such submissions, learned counsel relied upon the order passed by this Court in the case of Jitendra Meena Vs The State of Rajasthan & Ors (S.B. Civil Writ Petition No.9143/2021, decided on 17.01.2024). 4. On the other hand, learned counsel appearing on behalf of the respondents, while opposing the aforesaid submissions made on behalf of the petitioner, submits that at the time of filling the application form for the post in question, the petitioner mentioned “No” in the column regarding the criminal case, which clearly shows that the petitioner gave false information and made concealment of material facts before the respondents. 4.1. Learned counsel further submits that the petitioner was convicted by the learned JJB and the said information was not provided by him to the respondents, and therefore, the respondents rightly rejected the candidature of the petitioner and have not issued the appointment order to him. 5. Heard learned counsel of the parties as well as perused the record of the case alongwith order cited at the Bar. 6. This Court observes that the petitioner applied for the post of Constable in pursuance of the aforementioned advertisement and after declaration of the result, it transpired that he was falling in merit list, after passing the stages of the examination, and thereafter, the respondents rejected the candidature of the petitioner because of the criminal case as above. The details of the said criminal case are that the aforementioned FIR was registered under Sections 419, 420 and 120-B IPC and Sections 3, 4, 5, 6, of Rajasthan Public Examinations Act, 1992 against the petitioner. The petitioner, at the relevant time, was minor, and therefore, the learned JJB conducted the trial and passed the order dated 14.09.2022, whereby the petitioner was convicted, and in that connection, was directed to remain on probation for a period of six months, subject to furnishing of a bond of Rs.5,000/- to the effect that the petitioner shall maintain his good conduct in the society, and the learned JJB further extend to the petitioner the benefit of Section 24 of the Juvenile Justice (Care and Protection of Children) Act, 2015 to the effect of removal of the said conviction order as disqualification. Relevant portion of the said order dated 14.09.2022 is reproduced as hereunder- ^^fd'kksj U;k; ¼aackydkssa dh ns[kjs[k o laj{k.k½ vf/kfu;e 2015 dh /kkjk 24 ¼1½ ds v/khu fof/k ls la?k"kZjr fd'kksj dh mDr nks"kflf) mls fdlh fugZjrk ls xzflr ugha djsxh ,oa fd'kksj ds laca/k esa bl izdj.k ls lacaf/kr vkijkf/kd vfHksys[k dks ckn xqtjus fe;kn vihy vFkok vihy U;k;ky; ds vkns'k ds v/;k/khu u"V fd;k tk,A^^ 7. This Hon’ble Court had passed the following interim order in this case on 25.05.2023: “Heard learned counsel for the petitioner. Issue notice, returnable in four weeks. Notices be given ‘dasti’ as well. Additionally, learned counsel for the petitioner will be free to serve a copy of writ petition upon learned standing counsel for the respective respondent-Department. In the meanwhile and until further orders, one post of Constable be kept vacant in the category of petitioner in pursuance of the selections held for the post of Constable in furtherance of the advertisement dated 29/10/2021, if the posts are still lying vacant.” 8. This Court, at this juncture, considers it appropriate to reproduce the relevant portion of the ordered passed in the case of Jitendra Meena (Supra) as hereunder: “8. At this juncture, this Court considers it appropriate to reproduce the relevant portions of the judgment rendered by the Hon’ble Apex Court in the case of Union of India Vs. Ramesh Bishnoi, (2019) 19 SCC 710 , as hereunder: “8. From the facts, it is clear that at the time when the charges were framed against the respondent, on 30-6-2009, the respondent was well under the age of 18 years as his date of birth is 5-9-1991. Firstly, it was not disputed that the charges were never proved against the respondent as the girl and her parents did not depose against the respondent, resulting in his acquittal on 24-11-2011. Even if the allegations were found to be true, then too, the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. Even if the allegations were found to be true, then too, the respondent could not have been deprived of getting a job on the basis of such charges as the same had been committed while the respondent was juvenile. The thrust of the legislation i.e. the Juvenile Justice (Care and Protection of Children) Act, 2000 as well as the Juvenile Justice (Care and Protection of Children) Act, 2015 is that even if a juvenile is convicted, the same should be obliterated, so that there is no stigma with regard to any crime committed by such person as a juvenile. This is with the clear object to reintegrate such juvenile back in the society as a normal person, without any stigma.” 8.1. The relevant portions of the judgment rendered by the Division Bench of this Hon’ble Court in the case of State of Rajasthan Vs Bhawani Shankar Moorh 2023 SCC OnLine Raj 381, are also reproduced as hereunder:- “7. Be that as it may. A perusal of the language of Section 24 of the Act of 2015 and the corresponding provision in the Act of 2000, i.e. Section 19, would make it clear that the record of conviction of the child in conflict, cannot be preserved and has to be destroyed. As a direct consequence, any disqualification entailing from the conviction would have to be ignored and cannot act to the detriment of the child in conflict with law in any manner, which would include a selection process for public employment. 8. Consequently, in such a situation, the employer is prohibited by law from referring to or taking in consideration the judgment of conviction so as to deprive a successful candidate, who was a child in conflict with law at some point of time from being employed in Government service. The view taken by the learned Single Bench, whereby rejection of the candidature of the respondent by order dated 18.12.2018 was declared to be invalid does not suffer from any infirmity warranting interference. ” 9. The view taken by the learned Single Bench, whereby rejection of the candidature of the respondent by order dated 18.12.2018 was declared to be invalid does not suffer from any infirmity warranting interference. ” 9. This Court further observes that the aforementioned FIR was registered against the petitioner and the trial of the said case was conducted by the learned Juvenile Justice Board (JJB) because the petitioner was a juvenile, at the relevant time; upon the confession application having been filed by the petitioner, the learned JJB vide order dated 5.08.2019 convicted the petitioner and directed for deposition of Rs.700/- and also made an observation regarding removal of the disqualification, in accordance with Section 24 of the Act of 2015, as regards future prospects of the petitioner. The said Section 24 is reproduced as hereunder : “24. Removal of disqualification on the findings of an offence.— (1) Notwithstanding anything contained in any other law for the time being in force, a child who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attached to a conviction of an offence under such law: Provided that in case of a child who has completed or is above the age of sixteen years and is found to be in conflict with law by the Children’s Court under clause (i) of sub-section (1) of section 19, the provisions of sub-section (1) shall not apply. (2) The Board shall make an order directing the Police, or by the Children’s Court to its own registry that the relevant records of such conviction shall be destroyed after the expiry of the period of appeal or, as the case may be, a reasonable period as may be prescribed: Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19, the relevant records of conviction of such child shall be retained by the Children’s Court.” 9.1. This Court also observes that the learned JJB further held that the conviction order, in light of the observations made therein, would not be considered and treated in any manner as a disqualification so far as the petitioner’s future prospects are concerned. This Court also observes that the learned JJB further held that the conviction order, in light of the observations made therein, would not be considered and treated in any manner as a disqualification so far as the petitioner’s future prospects are concerned. Relevant portion of the order dated 05.08.2019 is reproduced as hereunder:- ^^lkFk gh ;g vkns'k Hkh fn;k tkrk gS fd fd'kksj ftrsUnz ds fo:} dh xbZ mDr nks"kflf) /kkjk&24 fd'kksj U;k; vf/kfu;e ds rgr okn xqtjus fe;kn vihy fd'kksj fdlh Hkh nks"kflf) dh fugZjrk ls xzflr ugha gksxk A vFkkZr fd'kksj bl izdj.k dh otg ls iढkbZ] ukSdjh ;k vU; O;olk; gsrq v;ksX; djkj ugha fn;k tkosa bl nks"kflf) ds vfHkys[k dks Hkh fjdksMZ ls gVk fn;k tkosa bl nks"kflf) dk fd'kksj ds Hkfo"; ij izHkko okn xqtjus fe;kn vihy 'kwU; le>k tkosA^^ 10. This Court further observes that in the aforesaid order of the learned JJB, it was held that the petitioner would not suffer any kind of disqualification on count of conviction in the aforementioned criminal case, and therefore, the petitioner, in that view of the matter, mentioned “No” in the column of the application form regarding the query, whether any criminal case has been registered against the candidate, which disclosure in the application form, in the facts and circumstances of the case, is justified in law. 11. This Court finds that the petitioner was given the benefit of Section 24 of the Act of 2015 by the concerned JJB, while ordering that the conviction shall not be treated as a disqualification in regard to any future prospects, including service prospects etc. and also the record of such conviction was also ordered to be weeded out. This Court further observes that in the present case, the petitioner was convicted in under the aforementioned provision of law, which is not as such heinous in nature, and at the time of commission of the offence, the petitioner was a minor, and therefore, the petitioner cannot be barred and adjudged disqualified for the appointment, examination and any other public employment, including the appointment in question, on count of his conviction, in view light of the order passed by the learned JJB, as mentioned above. 12. 12. This Court observes that in Chapter II containing Section 3 (xiv) of the Act of 2015, it is provided that the general principle for the protection of the children is to the effect that all past records of the juvenile delinquency shall be erased, except in certain special circumstances, and thus, the intention of the legislature, while incorporating such a provision, was quite clear and unambiguous to the effect that the previous conduct of the juvenile may not be considered to be a bar as regards future prospects of a juvenile, and for the same, a provision has been made for giving the benefits of Section 24 of the Act of 2015. Relevant portion of Chapter II is reproduced as hereunder-: “CHAPTER II GENERAL PRINCIPLES OF CARE AND PROTECTION OF CHILDREN Section 3 - (xiv) Principle of fresh start: All past records of any child under the Juvenile Justice system should be erased except in special circumstances.” 12.1. This Court further observes that a similar provision has also been made in Rule 14 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, wherein it is stated that the record pertaining to the conviction of a juvenile shall be destroyed after expiration of the appeal period. The said Rule 14 is reproduced as hereunder:- “14. Destruction of records.- The records of conviction in respect of a child in conflict with law shall be kept in safe custody till the expiry of the period of appeal or for a period of seven years, and no longer, and thereafter be destroyed by the Person-in-charge or Board or Children’s Court, as the case may be: Provided that in case of a heinous offence where the child is found to be in conflict with law under clause (i) of sub-section (1) of section 19 of the Act, the relevant records of conviction of such child shall be retained by the Children’s Court.” 12.2. This Court further observes that the intention of the legislature behind introducing Sections 3 (xiv) & 24 of the Act of 2015 as well as the Rule 14 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016, is to extend the protection to the juvenile against the conviction, and to remove the said conviction as disqualification for future prospects of the juvenile concerned. This Court also observes that the legislative intent behind such enactment is clear that if the juvenile is convicted for the offence and the concerned Court/Board is having an option to extend the benefits of Section 24 of the Act of 2015 by removing the disqualification, coupled with the fact that the language of the said Section also requires destroying of such conviction record. After extending such benefits of Section 24 of the Act of 2015, the then juvenile concerned cannot be declared ineligible for any future employment in any government department etc. and/or any other prospects in public employment. 13. This Court is conscious of the ‘right to be forgotten’ which has been referred and dealt with in the order dated 12.04.2021 passed by the Hon’ble High Court of Delhi in the case of Jorawer Singh Mundy @ Jorawar Singh Mundy Vs. Union of India and Ors. (WP(C) 3981/2021). 13.1. On a conjoint consideration of the ‘right to be forgotten’ as enumerated in the case of Jorawer Singh Mundy @ Jorawar Singh Mundy (supra) as well as the enactment of Sections 3 (xiv) & 24 of the Act of 2015 as well as the Rule 14 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016 therein, this Court observes that in the cases of juvenile delinquency, if any criminal antecedent record of a juvenile is allowed to remain intact, to be accessed, amongst others, by using the technology tools, the same may not only bring humiliation and discredit to the juvenile, but may also adversely impact the future prospects of the juvenile, among other things. 13.2. This Court does not wish to enter into the realm of broader ‘right to be forgotten’, but, at present, is specifically considering the ‘right to be forgotten’ for a juvenile in the perspective of Section 24 of the Act of 2015 to be an absolute right for safeguarding future prospects of such juvenile. 13.3. Such a disclosure would not only affect the ‘right to be forgotten’ of a juvenile, but would also defeat the very purpose and intent of the legislature behind enacting the Act of 2015, and incorporating Section 24 therein. 13.3. Such a disclosure would not only affect the ‘right to be forgotten’ of a juvenile, but would also defeat the very purpose and intent of the legislature behind enacting the Act of 2015, and incorporating Section 24 therein. Arising of such circumstances, would also result into defeating the very legislative intent of the Act of 2015, more particularly, as regards the future employment and the like prospects of a juvenile, as thereby, the rehabilitation of the juvenile and his socio-economic stability would be adversely impacted, which may lead the juvenile to again resort to the criminal delinquency. This is more so when, the present day developing societies are dynamic and self-explanatory in its complexity followed by never-ending changes, and the juvenile is no exception to it, rather much more vulnerable, because the negativity of his (juvenile’s) past life, despite enactment of a much strong law like the Act of 2015, legislative intent of which is to remove his criminal antecedents from the record, rather destroying of the complete record thereof, if allowed to sustain and remain intact, the same would be revisited for oblivious reasons, against the welfare and future well being of the juvenile, thereby bringing future embarrassments to the juvenile. 13.4. Section 12 of the Probation of Offenders Act, 1958, speaks of ‘removal of disqualification attaching to conviction’, but the language employed in Section 24 of the Act of 2015 is not only for excluding or erasing the criminal antecedent record, but goes a step forward, by laying down a provision that the criminal antecedent record of a juvenile be erased/destroyed completely, so that such previous conviction or criminal delinquency of a juvenile would not be carried forward, so as to prevent any adverse impact of his previous delinquency, upon his future prospects. 14. Now adverting to the facts of the present case in the above perspective, non-furnishing of the information by the petitioner regarding his juvenile delinquency and conviction, has to be accepted as a valid excuse under law and such previous negativity of the past / the previous criminal delinquency, cannot be permitted to be used to the detriment of the incumbent like the present petitioner with a view to oust him from the recruitment exercise as involved herein, thereby adversely impacting the career prospects of the petitioner, despite having been extended the benefit of Section 24 of the Act of 2015. 15. 15. This Court further observes that in the present case once in view of the clear legislative intention behind Section 24 of the Act of 2015 as above, the learned JJB though has convicted the petitioner for the offence, but has ordered that the same shall not be treated as a disqualification in regard to any future prospect of the petitioner and also ordered that the complete record of the conviction shall be destroyed, then conviction of the present petitioner, in light of the prescriptions of Section 24 of the Act of 2015, cannot be treated as a bar for entitling the petitioner for any recruitment or other future prospects, including the one involved in this case. 16. This Court also observes that the petitioner is a meritorious candidate and passed the various stages of the recruitment process for the post in question, and once the competent Court, which conducted the trial of the criminal case qua the petitioner, while recording a clear finding invoking Section 24 of the Act of 2015 that the said conviction order does not affect the future prospects of the petitioner in no manner, and therefore, the impugned order declaring the petitioner as disqualified/ineligible for the post in question on count of the conviction in the criminal case in question, cannot be sustained in the eye of law. 17. The judgment cited on behalf of the respondents also does not render any assistance to their case, as they do not deal with the juvenile delinquency. 18. This Court thus holds that once the benefit of Section 24 of the Act of 2015 was extended to the petitioner, who at the relevant time, was a juvenile, then in that case, even if the information of the conviction in question was not furnished by the petitioner during the recruitment process, the same cannot be termed as ‘concealment’ on his part, as the very erasure/destroying of the conviction record, as ordered by the learned JJB, while convicting the petitioner and extending him the aforesaid benefit of the legal provision, was to prevent any adverse impact of such conviction on the future prospects of the petitioner. 19. 19. This Court further holds that the ‘right to be forgotten’, regarding a Juvenile, where Section 24 of the Act of 2015, shall remain a definite right and a juvenile, who has been given the benefit of Section 24 shall be entitled for erasure of his juvenile delinquency by not putting it on record anywhere, because creation or perpetuation of such record, may highlight a kind of embarrassment to the juvenile, which in turn, would certainly have an adverse impact on his future prospects, which includes a selection process for public employment, and goes against the legislative intention of juvenile laws. 20. This Court directs that the ‘right to be forgotten’ for juvenile by removal/destroying of the record of juvenile delinquency is an absolute right, and therefore, to give it a full meaning, the State as well as other Bodies falling under the definition of ‘State’ as envisaged under Article 12 of the Constitution of India, are hereby lawfully restrained from seeking any information, in future, from the then juvenile about the previous record/information of his juvenile delinquency, in cases where the benefit of Section 24 of the Act of 2015 has been extended, so as to prevent any adverse impact of such delinquency on the future prospects of the juvenile. 21. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, the present petition is allowed, and while quashing and setting aside the impugned order dated 09.07.2021 (Ann-5), the respondents are directed not to consider the aforementioned criminal case and not giving information of criminal case as a disqualification/ineligibility against the juvenile (petitioner) for the purpose of recruitment on the post in question. The respondents are also directed to give the appointment to the petitioner on the post in question, if he is otherwise eligible and falling in merit, within a period of three months from the date of receipt of a certified copy of this judgment. All benefits shall accrue to the petitioner prospectively. All pending applications stand disposed of.” 9. This Court is thus of the firm opinion that the controversy involved in the case of Jitender Meena (supra) is identical to the one involved in the present case, and therefore, the present case also deserves to be decided in terms of the afore-quoted order passed in Jitendra Meena (supra). 10. All pending applications stand disposed of.” 9. This Court is thus of the firm opinion that the controversy involved in the case of Jitender Meena (supra) is identical to the one involved in the present case, and therefore, the present case also deserves to be decided in terms of the afore-quoted order passed in Jitendra Meena (supra). 10. Thus, in light of the aforesaid observations and looking into the factual matrix of the present case, as also in view of the afore-quoted order passed in Jitendra Meena (supra), the present petition is allowed, and thus, while quashing and setting aside the impugned order dated 24.04.2023 (Annexure-11), the respondents are directed not to consider the aforementioned criminal case and not giving information of criminal case as a disqualification/ineligibility against the juvenile (petitioner) for the purpose of recruitment on the post in question. The respondents are also directed to give the appointment to the petitioner on the post in question, if he is otherwise eligible and falling in merit, within a period of three months from the date of receipt of a certified copy of this judgment. All benefits shall accrue to the petitioner prospectively All pending applications stand disposed of.