Allowed

Shaik Suriya Begam v. the Dist Medical and Health Officer

Andhra Pradesh HC9 Mar 2022WP/16439/2020

Case brief

AI extract

What is this about?

In a writ petition, the court directed the District Medical and Health Officer to consider a selected nurse for a contract appointment. Despite a pending criminal case, the court applied Avtar Singh jurisprudence, holding the department may appoint the candidate subject to the case's decision, especially where a departmental enquiry found no misconduct.

What did the court decide?

Directing the respondent to consider the petitioner's case for appointment as Staff Nurse subject to the result of the pending criminal case within six weeks.

Shaik Suriya Begam Vs the Dist Medical and Health… — Property and Title | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

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WRIT PETITION No.16439 of 2020

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JUDGMENT:-

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Heard Sri M.R.Tagore, learned counsel for the petitioner and Sri Badra Naga Seshayya, learned Assistant Government Pleader for respondent Nos.1 to 4 and perused the material on record.

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This petition has been filed for the following relief:

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“ It is therefore prayed that this Hon’ble Court may be pleased to issue a writ, order or direction more particularly one in the nature of Writ of Mandamus by directing the 1^st respondent herein to consider the petitioner’s case for appointment as Staff Nurse on contract under Visually Handicapped and B.C-E category as per the merit obtained in the selection process, following a notification No.3, dated 26.06.2020 issued by the 1^st respondent, without reference to the pending criminal case FIR NO.4/2018 and may pass such other order or orders as it may deem fit and proper in the circumstances of the case.”

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3 . The respondent No.1, the District Medical and Health Officer, West Godavari district, Eluru issued a paper notification No.3/2020, dated 26.06.2020 for different posts against which the petitioner applied for the post of the Staff Nurse on contract basis, seeking reservation under Visually Handicapped [VH] category in B.C-E Women category.

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The 1^st respondent prepared a provisional merit list of the Staff Nurses on 06.08.2020 and considering the objections received thereagainst a final merit list dated 08.09.2020 was prepared in

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which the petitioner's name was at Sl.No.85, with 55.79 total marks. ‘Note’ in the final merit list mentioned that the selection of the petitioner was subject to the result of the pending Criminal Case against her.

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Learned counsel for the petitioner submits that previously, pursuant to the proceedings No.A1/60/2015 (OH-ODSC)-2, dated 29.03.2016 for the post of MPHA [F], the petitioner was appointed on 16.04.2016 on contract basis under the same category of Visually Handicapped (VH) suffering from 40% disability. On some complaint against the petitioner's appointment, a Criminal Case under FIR No.4 of 2018 u/s 420 IPC was filed which is pending before the IX Additional Sessions Judge, Kovvuru, West Godavari District, of which reference has been made in the final merit list, dated 08.09.2020 against the name of the petitioner. He further submits that in the same matter, the District TB Control Officer, West Godavari district, Eluru, conducted an enquiry under the directions of the District Medical and Health Officer/the 1^st respondent, and in the said enquiry, finding was recorded that the petitioner's Physically Handicapped certificate was issued by the Medical Board, District Hospital, Eluru. The petitioner is suffering from Visual impairment-low vision with 40% disability. The reassessment of the petitioner was recommended after a period of 2 years. Learned counsel submits that the petitioner has been selected subject to the result of the Criminal Case but the Criminal Case which is pending for two (02) years may continue for long. The petitioner may be given appointment based on merit selection subject to the result of pending Criminal Cases, as pendency of Criminal Cases is not a bar in giving appointment. He further

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submits that 88 posts of Staff Nurses were notified and as the petitioner stands at Sl.No.85 she is entitled for appointment.

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Learned counsel for the petitioner submits that pursuant to the interim order dated 15.09.2020, the petitioner was called in counselling but has not been given any appointment in view of pendency of Criminal Case.

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Learned Additional Government Pleader submits that the Enquiry Officer could not arrive at a definite opinion with respect to the certificate as the original was not before the Enquiry Officer. However, he does not dispute that the petitioner’s selection is subject to the result of the criminal proceeding. The finding recorded by the Enquiry Officer has also not been disputed. In the counter affidavit, it has been specifically stated that the departmental enquiry was conducted in which nothing was found against the petitioner.

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I have considered the submissions advanced by the learned counsel for the parties and perused the material on record.

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The petitioner is selected for the post of Staff Nurses and stands at Sl.No.85 of the merit list. Selection is subject to the proceedings of the pending Criminal Case. The Enquiry Officer in his report annexed with the counter affidavit, has returned the finding as under:

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“ Smt. Shaik Suria Begum, ANM, P.H. Centre, Annadevarapeta, West Godavari District: She was appointed as ANM under differently abled personal quota and posted to PHC Annadevarapeta, West Godavari vide Proc. Rc.No.1123/E4/2016, dated 06.04.2016. Now she is working as ANM.

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Findings: On perusal of the documents submitted by the individual, it is observed that the Proceedings of the DM & HO were issued by Dr.S.Vijay Gowri, the then District Medical and Health Officer, West

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Godavari, Eluru. The proceedings were not digitally signed. As seen from the above proceedings, it is noticed that the above orders were issued in pursuance of the note of the District Collector, West Godavari, Eluru vide Rc.No.A1/60/2015 (OH-ODSC-2), dated 29.03.2016 her name is not found in this proceedings. It is also observed the Physically Handicapped Certificate has been issued by the Medical Board, District Hospital, Eluru. She is suffering from Visual impairment-low vision with 40% disability. They have also certified that the Re-assessment of the Case is recommended after a period of 2 years.”

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As the selection itself is subject to the result of the Criminal Case, I do not find any justification for not giving appointment to the petitioner, subject to the result of the Criminal Case, in view of the finding recorded in the departmental enquiry by the Enquiry Officer as mentioned above and as also in view of the stand taken in counter affidavit that in the departmental enquiry nothing was found against the petitioner.

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In Avtar Singh v. Union of India (UIO) and Others¹ , the Hon’ble Supreme Court has held that 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.

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Paragraph-38 of the Avtar Singh (supra) reads as under:

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“ 38. 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:

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38.1. 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.

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38.2. While passing order of termination of services or cancellation of candidature for giving false information, the

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1 (2016) 8 SCC 471

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employer may take notice of special circumstances of the case, if any, while giving such information.

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38.3. The employer shall take into consideration the Government orders/instructions/rules, applicable to the employee, at the time of taking the decision.

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38.4. 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 : -

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38.4.1. 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.

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38.4.2. Where conviction has been recorded in case which is not trivial in nature, employer may cancel candidature or terminate services of the employee.

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38.4.3. 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.

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38.5. 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.

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38.6. 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.

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The Court finds that in the selection list, against the petitioners’ name, pendency of the Criminal Case is mentioned subject to which she has been selected, and as such applying the law as laid down in Avtar Singh (supra), the respondents considering facts and circumstances of the case have discretion to appoint the petitioner subject to the decision of Criminal Cases even during its pendency.

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For all the aforesaid reasons, the respondents are directed to consider the petitioner’s case for appointment on the post of Staff

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Nurse pursuant to her selection vide final merit list, dated 08.09.2020, keeping in view the facts and circumstances of her case, in particular the departmental enquiry report and para 38 of the Avtar Singh (supra) quoted above.

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Let the entire exercise be completed within a period of six (06) weeks from the date of production of the copy of this order before the respondents.

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The writ petition stands allowed in the aforesaid terms.

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No order as to costs.

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As a sequel thereto, miscellaneous petitions, if any pending,

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shall also stand closed.

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RAVI NATH TILHARI,J

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Date: 09.03.2022 SCS

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THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

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WRIT PETITION No.16439 of 2020

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Date: 09.03.2022

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Scs

Shaik Suriya Begam v. the Dist Medical and Health Officer

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Shaik Suriya Begam v. the Dist Medical and Health Officer

Case brief

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