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2024 DIGILAW 1950 (GUJ)

HARSHAD RAMAN PRAJAPATI v. STATE OF GUJARAT

2024-10-18

PRANAV TRIVEDI

body2024
JUDGMENT : PRANAV TRIVEDI, J. 1. The present petition is preferred assailing the decision of the Additional Director, Education Department, Sachivalay, Gandhinagar (hereinafter referred to as the “respondent”) for not giving appointment to the petitioner on the post of Junior Clerk, despite being selected to the said post. 2. The prayers as prayed in the writ petition are as under: “7(A) Your Lordship may be pleased to issue a writ of mandamus and/or any other writ in the nature of the writ to quash and set aside the Order No. MVR/470/JUKA/M.10/2017/5045-48 dated 30.10.2017 passed by respondent no. 4 herein (Annexure-A) and further direct the respondents to give appointment to the petitioner to the said post. (B) Pending admission, hearing and final disposal of the present petition, the Hon’ble Court may be pleased to stay the further operation, implementation and execution of the Order No. MVR/470/JUKA/M.10/2017/5045-48 dated 30.10.2017 passed by respondent no. 4 herein (Annexure-A). (C) To pass such other further order as deemed fit in the facts and circumstances of the case.” 3. The brief facts leading to filing of the present writ petition are that the respondent through Gujarat Subordinate Service Board, Gandhinagar, published an advertisement for filling up the vacancy of various posts. Pursuant to the advertisement, the petitioner applied for the posts of non Sachivalaya Service, Junior Clerk, Office Assistant, Class-III and participated in the selection process. Thereafter the recruitment process started and the petitioner appeared in the written examination. Subsequently, in the written examination, the name of the petitioner was short listed and the petitioner came to be selected for the post of Office Assistant-Junior Clerk and his name was reflected in the select list. Due intimation was given to the petitioner informing him about his selection. Thereafter, Computer Proficiency Test was conducted between 03.01.2017 to 12.01.2017. In the Computer Proficiency Test, the list of selected candidates was displayed and the petitioner found place in the list dated 27.02.2017 of selected candidates. Subsequent thereto, the petitioner was invited for document verification process vide communication dated 02.03.2017. 4. It is the case of the petitioner that subsequent to inviting for document verification process, he was involved in the offence relating to paper leakage case and for which FIR came to be filed and registered as C.R. No. I-36 of 2017 before Lunawada Police Station at Mahisagar. 4. It is the case of the petitioner that subsequent to inviting for document verification process, he was involved in the offence relating to paper leakage case and for which FIR came to be filed and registered as C.R. No. I-36 of 2017 before Lunawada Police Station at Mahisagar. The name of the petitioner initially was not in the FIR, however, the name of the petitioner came to be added and was shown in the charge sheet which was subsequently filed. It is also the case of the petitioner that subsequent to his involvement in the criminal case, he was taken into custody, however, he was granted regular bail in connection with the offence being C.R. No. I-36 of 2017. However, grant of bail was challenged before this Court and thereafter, this Court was pleased to cancel the regular bail granted vide order dated 03.05.2019. Subsequent to the cancellation of the bail, the petitioner was again arrested and thereafter again he was granted bail in connection with the offence and as on today, the petitioner is on bail. In between all the activities which were going on with respect to criminal case, the respondent vide communication dated 13.10.2017 informed the petitioner that as the petitioner was involved in the criminal case, he cannot be given the appointment. It is the case of the petitioner that when such communication was addressed to the petitioner, he was already in police custody. 5. It is the case of the petitioner that subsequent to the release of the petitioner on bail, he made several oral representations to the respondents to given him appointment, however, all the oral representations were not considered by the respondents, therefore petitioner sent a communication by way of representation dated 06.06.2019 requesting the respondent to given him appointment and place him in service. It is the case of the petitioner that he had cleared all the stages of selection process and he was duly selected to the concerned post. However, he had already been granted regular bail in the paper leakage case where he was implicated as accused. The respondent had chosen not to answer the representation made by the petitioner, which has led to filing of the present writ petition. 6. We have heard Mr. Jigar Gadhvi, learned advocate appearing for the petitioner and Mr. Kruitk Parikh, learned Assistant Government Pleader appearing for the State respondents. 7. Mr. The respondent had chosen not to answer the representation made by the petitioner, which has led to filing of the present writ petition. 6. We have heard Mr. Jigar Gadhvi, learned advocate appearing for the petitioner and Mr. Kruitk Parikh, learned Assistant Government Pleader appearing for the State respondents. 7. Mr. Jigar Gadhvi, learned advocate for the petitioner has submitted that the decision of the respondent was absolutely illegal, improper and contrary tot he provisions of the service law. The petitioner was duly selected candidate for the post concerned and thereafter, he ought to have been given the appointment. Learned advocate Mr. Gadhvi has further submitted that the respondent has not given appointment to the petitioner on the ground of registration of the FIR and subsequent to the charge sheet, wherein the petitioner is shown as accused. Non-granting of post wherein the petitioner was selected only on the basis of the FIR can be considered an arbitrary and the said action is also a complete non application of mind on the part of the respondent. 7.1. It is further submitted by the learned advocate for the petitioner that the respondent on his own cancelled the selection of the petitioner, which is absolutely arbitrary. The petitioner is now released on regular bail and only on the basis of the alleged criminal case, the petitioner cannot be held to be incompetent to the post concerned. Therefore, the petitioner cannot be deprived of the appointment to the post concerned merely on the ground of registration of the FIR. 7.2. It is further submitted by the learned advocate for the petitioner that it is the settled law that mere registration of FIR does not prove the guilt of the accused person in a case the person is presumed to be innocent till he has been found guilty. This being cardinal principle of law, the appointment cannot be rejected qua the petitioner. It is further submitted that the name of the petitioner was added during the course of investigation and it cannot be said that the petitioner had played a substantial role in the commission of the alleged offence. Therefore, mere involvement of the petitioner on the basis of the allegations made in the FIR cannot deprive the petitioner of the post on which he has been selected. Therefore, mere involvement of the petitioner on the basis of the allegations made in the FIR cannot deprive the petitioner of the post on which he has been selected. It was further submitted that the impugned decision stigmatizes the petitioner of his service career for all times to come and therefore, the petitioner is being rendered incompetent for other recruitment process in indirect manner on the basis of such submission. The learned advocate for the petitioner has therefore submitted to grant the prayer as prayed in the writ petition. 7.3. Learned advocate Mr. Gadhvi has placed reliance on the decision of the Apex Court in the case of Rajasthan High Court, Jodhpur v. Akashdeep Morya & Anr. 2021 (14) SCC 567 and while relying upon the observations made in paragraphs 27 and 28, it is contended that merely the name of the petitioner being shown as accused would not deprive him of the post on which he has been selected and the case petitioner ought not to have been rejected only on this ground. On the basis of the above submission, learned advocate Mr. Gadhvi has prayed to allow the present petition. 8. Per contra, Mr. Kruitk Parikh, learned Assistant Government Pleader appearing for the State respondents has filed affidavit-in-reply and has contended that the petitioner was arraigned as accused in the case of paper leakage and his appointment was rejected by the respondent on the ground that criminal case is pending against the petitioner. It is further contended that the crime committed by the petitioner is of such a nature which questions of the moral turpitude of the petitioner while performing his duties as Junior Clerk with the respondent. The work of the respondent authority is related to education and therefore, offence committed by the petitioner is very serious and he cannot be granted appointment. Mr. Parikh, learned Assistant Government Pleader has also placed reliance on the Government Resolution dated 20.10.1992 wherein it is specified that if criminal case is pending against any of the candidates then such candidate should not be appointed on any Government post. Mr. Parikh, learned Assistant Government Pleader has also placed reliance on the Government Resolution dated 20.10.1992 wherein it is specified that if criminal case is pending against any of the candidates then such candidate should not be appointed on any Government post. It is further submitted by the learned Assistant Government Pleader that the respondent has also communicated to the Police department, wherein character certificate of the petitioner was sought by way of letter dated 31.05.2017, and it was specifically informed that the photographs of the paper leakage were found on the phone of the petitioner and that was the reason the petitioner arraigned as accused in the FIR. Therefore, as per the submission of the learned Assistant Government Pleader, the petitioner ought not to have been selected on the government post. In wake of such submission, the learned Assistant Government Pleader has requested to reject the prayers as made in the petition. 9. Having heard the learned counsel for the parties and having perused the material on record, certain aspects are uncontroverted. Firstly, there is no controversy with regard to the allegations made against the petitioner with regard to the alleged offence. It is also true that at present, criminal trial is pending. It is also true that the respondent by way of communication dated 30.10.2017 has already informed the petitioner that there are serious allegations against the petitioner with regard to the involvement in the criminal offence and more particularly, offence with regard to paper leakage of question paper of board examination of standard 10th. Therefore, the question for consideration qua termination would be whether the alleged involvement of the petitioner in a serious offence as regards paper leakage of paper of board examination would disentitle him to the post in question in the State employment for which, he was already been shortlisted. In a public service like any other service, the state employer has an element of choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, aspects are basically eligibility criteria. However, there would be autonomy of the public employer with regard to the choice or suitability of the candidate. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, aspects are basically eligibility criteria. However, there would be autonomy of the public employer with regard to the choice or suitability of the candidate. If the public employer decides on suitability on principle of selected candidate and the decision making if, is illegal unfair or mala fide, then it has to be looked to a different angle. In the facts and circumstances of the case, serious aspersions are caste on the integrity of the petitioner. It is true that trial is still pending and there is no conviction qua the petitioner. However, when public employer is concerned, the autonomy of the public employer cannot be taken away. There is a clear cut decision making stating the reason as alleged involvement in a very serious offence, which has led the public employer to not select the petitioner who was otherwise eligible. There is no mala fide or illegal means attributed to the petitioner by the public employer as far as the decision making is concerned. Therefore, if the contention of the petitioner is accepted, autonomy or the choice of the public employer is affected. Therefore, in the considered opinion of this Court, there is nothing wrong with the decision taken by the respondent herein. The judicial review would not be permitted inasmuch as, no illegality is attached to the decision of the public employer. Therefore, the argument canvassed by learned advocate Mr. Gadhvi cannot be accepted. 10. Further, the communication of not selecting the petitioner was communicated to him in the year 2017. It is the case of the petitioner that as the bail granted to him was cancelled, the consequence of remaining behind the bar for two years was the reason for the challenged made by the petitioner in the year 2019 i.e. after a period of two years. Further, it has been clarified by Mr. Gadhvi that during the time when the decision was taken by the respondent on 30.10.2010, the petitioner was behind the bar. After being released in the year 2019, the decision of the respondent is challenged by way of present petition. Such eventuality would not question the decision made by the respondent. Further, it has been clarified by Mr. Gadhvi that during the time when the decision was taken by the respondent on 30.10.2010, the petitioner was behind the bar. After being released in the year 2019, the decision of the respondent is challenged by way of present petition. Such eventuality would not question the decision made by the respondent. The fact that the petitioner was behind the bar for a period of two years after the decision of non selection was communicated to the petitioner would be one of the factor in confirming the decision of the respondent and not granting the prayer as prayed in the writ petition. Further, the decision of the Apex Court, relied upon by learned advocate Mr. Gadhvi in the case of Rajasthan High Court, Jodhpur v. Akashdeep (supra), the same would not be applicable to the facts of the present case. In the said decision in the case of Rajasthan High Court, Jodhpur v. Akashdeep (supra) the offence which was alleged was under Section 325 of the Indian Penal Code and thereafter compromise was arrived between the parties. However, in the instant case, there is a serious allegation as regards paper leakage of paper of board examination with evidence in the mobile phone of the petitioner. Definitely, such evidence would not lead to believe this Court that the petitioner is a convicted accused. Nonetheless, even the decision of the public employer cannot be doubted with this fact. Therefore, the prayers as prayed by learned advocate Mr. Gadhvi, in the present case cannot be granted. 11. In view of the above, the present petition is liable to be dismissed and the same is hereby dismissed. Rule is discharged. No order as to cost.