D.B. Bench dismissed special appeal challenging Single Bench order directing government to consider compassionate appointment for petitioner acquitted in criminal case arising from private land dispute where probation was granted.
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
J U D G M E N T
D.B. CIVIL SPECIAL APPEAL (WRIT) NO.1471/2014
The State of Rajasthan & Ors. Versus Ashok Kumar Swami
Date of Judgment :: 03.02.2015
PRESENT
HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MS. JUSTICE JAISHREE THAKUR
Mr. Dinesh Kumar Ojha, assisting counsel to Mr. Prithvi Raj Singh, Additional Advocate General, for the appellants Mr. Shri Kant Verma for the respondent
BY THE COURT :
REPORTABLE
An application is preferred as per Section 5 of the Limitation Act seeking condonation of delay of 130 days in filing the appeal. The application is allowed as the learned counsel for the respondent is having no objection for condonation of delay aforesaid.
With consent of learned counsel for the parties, the appeal is heard on merits.
By the judgment impugned dated 14.03.2014, learned Single Bench directed the appellant-respondents to consider case of the respondent-petitioner for providing appointment to him on compassionate grounds by ignoring the criminal case, in which he was acquitted by entering into a
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compromise. The facts necessary to be noticed for adjudication of this appeal are that the respondent-petitioner claimed appointment as per the provisions of the Rajasthan Compassionate Appointment of Dependents of Deceased Government Servant Rules, 1996 (for short, 'the Rules of 1996') being ward of Mr. Lalchand, who died while in service of the State of Rajasthan. The appointing authority vide a communication dated 20.02.2013 conveyed to the petitioner that no appointment as per the provisions of the Rules of 1996 can be given to him looking to his involvement in a criminal case pending before a competent court. Suffice to mention that the office of the Superintendent of Police, Shriganganagar by a letter dated 17.01.2013 informed to the appointing authority that a criminal case for the offences punishable under Section 451, 323, 147, 148 and 149 of the Indian Penal Code was registered at Police Station Suratgarh against the respondent-petitioner on 26.02.2004, wherein a charge-sheet was filed before the competent court on 21.04.2004 and the trial of the same was in process. Being aggrieved by the decision of the appointing authority, the respondent-petitioner preferred a petition for writ with assertion that as a matter of fact by a judgment dated 17.06.2009 he already stood acquitted from the charges pertaining to the offences punishable under Sections 323 and
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451 IPC and the benefit of probation was extended to him for the offences punishable under Sections 147, 148 and 149 IPC, hence, appointment could have not been denied to him.
The respondents contested the petition for writ with a stand that the acquittal availed on basis of a compromise does not prove innocence of the person concerned and merely on basis of said compromise, it cannot be said that he had no criminal antecedents.
Learned Single Bench after considering facts of the case accepted the writ petition by opining that prior to rejection of the respondent-petitioner's case for appointment, the criminal case was already decided by the competent court on basis of a compromise, therefore, the appointment could not have been denied to him.
In appeal, learned counsel for the appellantrespondents submits that the respondent-petitioner faced a criminal trial and acquittal for the offences punishable under Sections 323 and 451 IPC was recorded on basis of a compromise arrived between the parties, that too at appellate stage and for the offences punishable under Section 147, 148 and 149 IPC his conviction was recorded, therefore, it cannot be inferred that he was not having any criminal antecedents.
It is asserted that that a person who suffered conviction and got acquitted on basis of compromise is not eligible to be
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recruited in service even on compassionate grounds. To substantiate the contention, reliance is placed upon a judgment of Hon'ble Supreme Court in State of M.P. & Ors. Vs. Parvez Khan (Civil Appeal No.10613/2014) decided on 01.12.2014.
While opposing the appeal, it is submitted by learned counsel for the respondent-petitioner that in the case of State of M.P. & Ors. Vs. Parvez Khan (supra), the Hon'ble Supreme Court was examining case for appointment in Police force and further that in the case aforesaid, Hon'ble Apex Court examined nature of the criminal case in which acquittal was recorded as a consequent to compromise arrived between the parties. In the case aforesaid, it was specifically noticed that the person concerned indulged in the activities adversely affecting public order. However, in the instant matter, the factual position is entirely different. The respondent-petitioner and his entire family were booked in a criminal case and the court while recording acquittal noticed that the dispute arose between the parties due to some land dispute. Both the parties during pendency of the trial arrived at a compromise and were maintaining cordial relations.
Heard learned counsel for the parties.
The appointments under the Rules of 1996 are required to be given to the dependents of deceased
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Government servants against the vacancies relating to direct recruitment quota, if the person claiming appointment is having eligibility to hold post applied for. In the instant matter, the respondent-petitioner claimed appointment on the post of Fitter. His case was considered by the appellants as per the provisions of the Rajasthan Engineering Subordinate Service (Public Health Branch) Rules, 1967 (for short, 'the Rules of 1967') read with the Rules of 1996. It is not in dispute that the respondent-petitioner possess eligibility to be considered for appointment as Fitter but appointment has been denied to him only on basis of the report given by the Superintendent of Police relating to his character. Note-1 given below Rule 12 of the Rules of 1967 provides that, “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 the movement which has as its object the overthrow by violent means of Government as by law established, the mere conviction may not be regarded as disqualification”.
In view of the provisions aforesaid, it was obligatory for the appellants to examine facts of the criminal case and the circumstances in which conviction of the respondent-petitioner was recorded. The competent authority
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based on the facts available is supposed to form a reasoned opinion as to how the conviction recorded disqualifies the person concern for appointment to service. The appellantrespondents herein without examining the nature of the criminal case in which the respondent-petitioner was involved and the conviction recorded, ipse dixit refused appointment on compassionate grounds. In our considered opinion, such refusal is made without taking into consideration the requirements of the note appended to Rule 12 ibid.
We have also perused the judgment dated 17.06.2009 passed by the appellate court in Criminal Appeal No.11/2009 recording acquittal of the respondent-petitioner as a consequence to compromise between the parties. The facts stated therein indicate that there was some dispute of a private nature between the parties with regard to possession over a piece of land and the entire family of the respondentpetitioner, including his parents, were booked in the criminal case. However, dispute between the parties came to be resolved and they were since maintaining cordial relations. Conviction was recorded for the offences punishable under Sections 147, 148 and 149 IPC being non-compoundable, but benefit of probation was given instead of awarding sentence.
Looking to these facts, we are of the view that on basis of the criminal case, in which the respondent-petitioner
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was involved and acquitted as a consequence to compromise, denial for appointment was not proper. Learned Single Bench, thus, committed no error in directing the respondents to consider case of the petitioner for appointment under the Rules of 1996, if he is otherwise found fit.
The appeal is dismissed, accordingly.
[JAISHREE THAKUR], J.
[GOV IND MATHUR], J.
Pramod
2 issues framed by the court
Whether a person who was convicted but granted probation due to a compromise in a private land dispute is eligible for compassionate appointment.
Whether the appointment authority was obliged to examine the specific facts and circumstances of the conviction before refusing appointment.
Colour shows how this judgement treated each authority
State of M.P. & Ors. Vs. Parvez KhanDistinguished¶22
State of M.P. & Ors. Vs. Parvez Khan (Civil Appeal No.10613/2014)
judgment dated 17.06.2009Referred¶33
Criminal Appeal No.11/2009
4 provisions across 2 enactments
State of Rajasthan & Ors.
Ashok Kumar Swami
Respondent-Petitioner
GOVIND MATHUR
JAISHREE THAKUR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
