Rajasthan High Court - JodhpurBhuta Ram vs State & Ors on 8 August, 2016Author:Pankaj BhandariBench:Navin Sinha,Pankaj Bhandari1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  AT JODHPUR

          D.B.CIVIL SPECIAL APPEAL (WRIT) NO.442/2016


Bhuta Ram s/o Shri Poona Ram, aged about 24 years, r/o
Village & Post Joliyali Mandore, District Jodhpur, Rajasthan.


                                        .........APPELLANT.
                    V/s

1.  The State of Rajasthan through the Secretary,
Department      of   Home,  Government       of Rajasthan,
Secretariat, Jaipur.
2.  The Inspector General of Police, Jaipur.
3.  The Superintendent of Police (Rural), Jodhpur.

                                       .....RESPONDENTS.

Date of Judgment :- 8.8.2016


     HON'BLE THE CHIEF JUSTICE MR.NAVIN SINHA
          HON'BLE MR.PANKAJ BHANDARI,J.

Mr.Kuldeep Mathur for the Appellant
Mr.K.L.Thakur, Additional Advocate          General    for     the
Respondents.

                           ORDER
BY THE COURT (PER NAVIN SINHA,CJ)1.        The present     appeal   arises   from   order     dated
12.02.2016 in S.B.Civil Writ Petition No.5453/2014. The
learned Single Judge declined any direction to consider the
Appellant for appointment as Constable under the Rajasthan
Police Constable Recruitment, 2012 because         he had failed
to disclose   pendency of criminal proceedings in which he
had been released on bail.2.        Learned counsel for the Appellant submits that an
FIR was lodged against three to four unknown persons only2seen running away on 07.09.2012 with regard to theft of
batteries at a mobile tower. Charge-sheet was submitted
against five persons including the Appellant on 31.01.2013.
The Appellant secured anticipatory bail on 10.01.2013. He
was therefore unaware of his having been made an accused
when he filled up the online application form on 06.11.2012.
Charges were framed subsequently on 13.06.2013 and on a
revision   application   having    been   preferred,    he    was
discharged on 23.09.2013. Trial against four persons is still
pending.3.         The Appellant figured at serial No.6 of the merit
list in the OBC category. On 02.05.2013 in the personal
information application form he inadvertently left column 20
blank. The fact that it was a bonafide inadvertent error is
apparent from the fact that in the verification roll filled up
on the same date he mentioned that he had been made an
accused    in   Police   Station   Jhanwar.   There     was    no
concealment by him. On 06.05.2014 the police verification
reported the same fact of his having been made an accused
but discharged.4.         The submission therefore was that there was no
concealment. The learned Single Judge erred in holding that
there had been concealment because of non-disclosure of
full particulars of the case. Vacancies still exist on which the
Appellant can be considered.5.         Lastly, reliance was placed on the Note to Rule 13
of the Rajasthan Civil Services (Police Subordinate Service)
Rules, 1989 (hereinafter referred to as 'the Rules').6.         Learned counsel for the State opposing the appeal
submitted that the learned Single Judge has arrived at a
conclusion that full and correct disclosure was not made
with regard to the pending criminal case. The learned Single3Judge has also noticed AIR 2013 SC 3325, Devendra
Kumar Vs. State of Uttaranchal & Ors. that candidates
having criminal antecedents could not be considered for
appointment in the police force.7.          We have considered the submissions on behalf of
the parties and have also had the benefit of perusing a very
recent judgment of a three-Judge Bench of the Supreme
Court dated 21.07.2016 in Special Leave Petition (C)
No.20525/2011 (Avtar Singh Vs. Union of India &
Ors.) placed on behalf of the appellant.8.          The FIR was initially lodged against three to four
unknown persons only with regard to stealing of batteries
from a mobile tower location. The Appellant submitted his
online     application    on   06.11.2012.        Charge-sheet    was
submitted against five persons including the Appellant on
31.01.2013. He was enlarged on anticipatory bail before
that on 10.01.2013. In his personal information application
form, the Appellant in reply to column 20 left it blank. It
sought details if any criminal case was ever registered. If so
the candidate was required to disclose further details of the
same including number and date of the FIR, the Section, the
district and the police station as also if it was pending
consideration what was the status and if decided, the result.
He made further declaration at item 6 that if any charge-
sheet had been submitted against him in a police case, he
would not be eligible for appointment. But in his verification
roll also filled up on the same date in answer to column 8 he
did acknowledge that he had been made accused in a police
case mentioning the name of police station Jhanwar but
without any further details of the case.9.          Charges were framed on 13.06.2013 against all
five     persons.   The    police       verification   on   06.05.20144subsequently revealed that he had been made an accused in
police case No.117/2012 underSections 457&380IPC and
had been discharged on 23.09.2013 for lack of evidence.10.        The finding of the learned Single Judge that in the
application dated 02.05.2013 the Appellant had left column
20 blank when he was already on anticipatory bail and had
not been discharged till then cannot be faulted with.
Similarly, the conclusion of the learned Single Judge that
the Appellant was seeking appointment in police force where
honesty, integrity and character is relevant also cannot be
faulted with so far as judicial review is concerned.11.        Rule 13 alongwith the Note reads as follows:-"13. Character.- The Character of a candidate
      for direct recruitment must be such as to qualify
      him for employment in the Service. He must
      produce a certificate of good character from the
      Principal Academic Officer of the University or
      College or School in which he was last educated
      and two such certificates, written not more than
      six months prior to the date of application, from
      two responsible persons not connected with his
      School or College or University and not related to
      him.Notes.- (1) A conviction by a Court of Law need
      not of itself involve the refusal of a certificate of
      good character. The circumstances of the
      conviction should be taken into account and if
      they involve no moral turpitude or association
      with crimes of violence or with a movement,
      which has its object to overthrow by violent
      means a Government as established by law, the
      mere conviction need not be regarded as a
      disqualification."12.        The Rule elucidates that conviction cannot be an
absolute   bar    to   be     considered     for    appointment.    The
Appellant has not been convicted but was discharged even
before trial for lack of evidence. It may be equated with a
technical acquittal but not honourable acquittal. There is an
element    of    discretion    vested   in    the    authorities.In5Commissioner of Police v. Mehar Singh,(2013) 7 SCC 685
by a two Judge Bench, there was no provision like Rule 13
but    an administrative circular     had been issued by the
appellant.    The respondent claimed that he had been
acquitted on basis of compromise and that he had disclosed
the facts in his application form. There was no suppression
or    concealment   by    him       and   therefore   denial   of
appointment was bad. We deem it appropriate to set out the
the relevant extract     of the circular for better appreciation
which reads as follows :-"Standing Order No. 398/2010"Policy for deciding cases of candidates provisionally
      selected in Delhi Police involved in criminal cases
                    (facing trial or acquitted).During the recruitments made in Delhi Police, several
      cases come to light where candidates conceal the fact
      of their involvement in criminal cases in the
      application form/attestation form in the hope that it
      may not come to light and disclosure by them at the
      beginning of the recruitment process itself may debar
      them from participating in the various recruitment
      tests. Also the appointment if he/she has been
      acquitted but not honourably.In order to formulate a comprehensive policy, the
      following rules shall be applicable for all the
      recruitments conducted by Delhi Police:(1)-(2) *          *        *
      (3) If a candidate had disclosed his/her involvement
      and/or arrest in criminal cases, complaint case,
      preventive proceedings, etc. and the case is pending
      investigation or pending trial, the candidature will be
      kept in abeyance till the final decision of the case.
      After the court's judgment, if the candidate is
      acquitted or discharged, the case will be referred to
      the Screening Committee of the PHQ comprising of
      Special Commissioner of Police/Administration, Joint
      Commissioner of Police/Headquarters and Joint
      Commissioner of Police/Vigilance to assess his/her
      suitability for appointment in Delhi Police.
      (4) If a candidate had disclosed his/her involvement
      in criminal case, complaint case, preventive6proceedings, etc. both in the application form as well
as in the attestation form but was acquitted or
discharged by the court, his/her case will be referred
to the Screening Committee of PHQ to assess his/her
suitability for appointment in Delhi Police.(5) *       *       *
(6) Such candidates against whom charge-sheet in
any criminal case has been filed in the court and the
charges fall in the category of serious offences or
moral turpitude, though later acquitted or acquitted
by extending benefit of doubt or the witnesses have
turned hostile due to fear of reprisal by the accused
person, he/she will generally not be considered
suitable for government service. However, all such
cases will be judged by the Screening Committee of
PHQ to assess their suitability for the government job.
The details of criminal cases which involve moral
turpitude may kindly be perused at Annexure 'A'.
(7) Such cases in which a candidate had faced trial in
any criminal case which does not fall in the category
of moral turpitude and is subsequently acquitted by
the court and he/she discloses about the same in both
application form as well as attestation form will be
judged by the Screening Committee to decide about
his/her suitability for the government job.(8) *       *       *
(9) If any candidate is discharged by extending the
benefit ofProbation of Offenders Act, 1958this will
also not be viewed adversely by the department for
his/her suitability for government service.
(10) If a candidate was involved in a criminal case
which was withdrawn by the State Government,
he/she will generally be considered fit for government
service,     unless   there   are    other   extenuating
circumstances."21. Annexure 'A' as mentioned in clause (6) above
lays down the following offences involving moral
turpitude:"1. Criminal conspiracy (Section 120-BIPC)2. Offences against the State (Sections 121-130IPC)3. Offences relating to Army, Navy and Air Force
(Sections 131-134IPC)4. Offence against public tranquillity (Sections 153-Aand153-BIPC).5. False evidence and offences against public justice
(Sections 193-216-AIPC)76. Offences relating to coin and government stamps
      (Sections 231to263-AIPC).7. Offences relating to religion (Sections 295-297IPC)8. Offences affecting human body (Sections 302-304,
      304-B, 305-308, 311-317, 325-333, 335, 347, 348,
      354, 363-373, 376-376-A, 376-B, 376-C, 376-D, 377IPC)9. Offences against property (Sections 379-462IPC)10. Offences relating to documents and property
      marks (Sections 465-489IPC)11.Offences relating to marriage and theDowry
      Prohibition Act(Section 498-AIPC)"13.        The Division Bench noticed the divergence of
opinion on the issue and reference made to a larger bench
in Jainendra Singh v. State of Uttar Pradesh (2012) 8 SCC748. Declining to interfere with the exercise of discretion
by the screening committee      to deny appointment it was
observed :-"18. The question before this Court is whether the
           candidature of the respondents who had made a
           clean breast of their involvement in a criminal
           case    by    mentioning    this  fact    in  their
           application/attestation form while applying for a
           post of Constable in Delhi Police, who were
           provisionally selected subject to verification of
           their antecedents and who were subsequently
           acquitted/discharged in the criminal case, could be
           cancelled by the Screening Committee of the Delhi
           Police on the ground that they are not found
           suitable for appointment to the post of Constable.23. A careful perusal of the policy leads us to
           conclude that the Screening Committee would be
           entitled to keep persons involved in grave cases of
           moral turpitude out of the police force even if they
           are acquitted or discharged if it feels that the
           acquittal or discharge is on technical grounds or
           not honourable. The Screening Committee will be
           within its rights to cancel the candidature of a
           candidate if it finds that the acquittal is based on
           some serious flaw in the conduct of the8prosecution case or is the result of material
           witnesses turning hostile. It is only experienced
           officers of the Screening Committee who will be
           able to judge whether the acquitted or discharged
           candidate is likely to revert to similar activities in
           future with more strength and vigour, if
           appointed, to the post in a police force. The
           Screening Committee will have to consider the
           nature and extent of such person's involvement in
           the crime and his propensity of becoming a cause
           for worsening the law and order situation rather
           than maintaining it. In our opinion, this policy
           framed by the Delhi Police does not merit any
           interference from this Court as its object appears
           to be to ensure that only persons with impeccable
           character enter the police force."14.        The reference to the larger bench inJainendra

Singh(supra) has been answered by a three Judge Bench

inAvtar Singh Vs. Union of India & Ors.(supra) though

it does not noticeMehar Singh(supra). Summing up the

conclusions after noticing other precedents it has been

observed at paragraph 30 as follows:-"30. We have noticed various decisions and tried
      to explain and reconcile them as far as possible.
      In view of aforesaid discussion, we summarize our
      conclusion thus:(1) Information given to the employer by a
      candidate as to conviction, acquittal or arrest, or
      pendency of a criminal case, whether before or
      after entering into service must be true and there
      should be no suppression or false mention of
      required information.(2) While passing order of termination of
      services or cancellation of candidature for giving
      false information, the employer may take notice
      of special circumstances of the case, if any, while
      giving such information.(3) The employer shall take into consideration
      the      Government       orders/instructions/rules,9applicable to the employee, at the time of taking
the decision.(4) In case there is suppression or false
information of involvement in a criminal case
where conviction or acquittal had already been
recorded         before       filling    of      the
application/verification form and such fact later
comes to knowledge of employer, any of the
following recourse appropriate to the case may be
adopted:-(a) In a case trivial in nature in which conviction
had been recorded, such as shouting slogans at
young age or for a petty offence which if disclosed
would not have rendered an incumbent unfit for
post in question, the employer may, in its
discretion, ignore such suppression of fact or false
information by condoning the lapse.(b) Where conviction has been recorded in case
which is not trivial in nature, employer may cancel
candidature or terminate services of the
employee.(c) If acquittal had already been recorded in a
case involving moral turpitude or offence of
heinous/serious nature, on technical ground and it
is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer
may consider all relevant facts available as to
antecedents, and may take appropriate decision
as to the continuance of the employee.
(5) In a case where the employee has made
declaration truthfully of a concluded criminal case,
the employer still has the right to consider
antecedents, and cannot be compelled to appoint
the candidate.(6) In case when fact has been truthfully
declared in character verification form regarding
pendency of a criminal case of trivial nature,
employer, in facts and circumstances of the case,
in its discretion may appoint the candidate subject
to decision of such case.(7) In a case of deliberate suppression of fact
with respect to multiple pending cases such false
information by itself will assume significance and
an employer may pass appropriate order
cancelling candidature or terminating services as
appointment of a person against whom multiple
criminal cases were pending may not be proper.
(8) If criminal case was pending but not known10to the candidate at the time of filling the form,
        still it may have adverse impact and the
        appointing authority would take decision after
        considering the seriousness of the crime.
        (9) In case the employee is confirmed in service,
        holding Departmental enquiry would be necessary
        before passing order of termination/removal or
        dismissal on the ground of suppression or
        submitting false information in verification form.
        (10) For    determining    suppression     or   false
        information attestation/verification form has to be
        specific, not vague. Only such information which
        was required to be specifically mentioned has to
        be disclosed. If information not asked for but is
        relevant comes to knowledge of the employer the
        same can be considered in an objective manner
        while addressing the question of fitness. However,
        in such case action cannot be taken on basis of
        suppression or submitting false information as to
        a fact which was not even asked for.(11) Before a person is held guilty of suppressio
        veri or suggestio falsi, knowledge of the fact must
        be attributable to him."15.          Since   Rule   13   also   vests   discretion   in   the
authorities and it does not appear to have been placed
before the learned Single Judge as also the judgment inAvtar Singh(supra) has been rendered subsequently, we
set aside the order under appeal and remand the matter to
the Superintendent of Police, Jodhpur (Rural) for passing
fresh appropriate orders with regard to the candidature of
the Appellant in accordance with law with a maximum of
preferably three months from the receipt and/or production
of a certified copy of this order.16.          The appeal is disposed.(PANKAJ BHANDARI),J.                     (NAVIN SINHA),C.J.Skant