Allowed

Hanuman Gurjar S/O Ramphool Gurjar v. the State of Rajasthan through Its Principal Secretary

Rajasthan HC12 Mar 2019CW/890/2019

Case brief

AI extract

What is this about?

This court allowed writ petitions filed by three selected candidates who were denied appointment as constables due to involvement in petty offences where they were later acquitted on compromise. The court held that denial was arbitrary and illegal as such candidates are entitled to appointment. It directed immediate appointment.

What did the court decide?

Petitioners directed to be appointed as Constables (GD/Band) within two weeks with full notional seniority benefits.

Hanuman Gurjar S/O Ramphool Gurjar Vs the… — Pension and Retirement Benefits | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 890/2019

¶3

Hanuman Gurjar S/o Ramphool Gurjar, Aged About 28 Years, R/o Village Chhan Bas Surya, P.o. Barwas, Tehsil Todaraisingh, District Tonk (Raj.)

¶4

----Petitioner

¶5

Versus

¶6

The State Of Rajasthan Through Its Principal Secretary, Department Of Home, Secretariat, Jaipur.

¶7

The Director General Of Police, Govt. Of Rajasthan, Police Head Quarters, Jaipur.

¶8

The Superintendent Of Police, Kota.

¶9

----Respondents

¶10

S.B. Civil Writ Petition No. 962/2019

¶11

Rajesh Kumar Meena S/o Shri Bhopala Ram Meena, Aged About 25 Years, R/o Village And Post Menpura, Via Paukh, Distt. Jhunjhunu (Raj.)

¶12

----Petitioner

¶13

Versus

¶14

The State Of Rajasthan, Through Its Principal Secretary, Department Of Home, Secretariat, Jaipur.

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The Director General Of Police, Govt. Of Rajasthan, Police Head Quarters, Jaipur.

¶16

The Superintendent Of Police, Alwar.

¶17

----Respondents

¶18

S.B. Civil Writ Petition No. 27941/2018

¶19

Manish Kumar Dube S/o Shri Hari Shankar Dube, Aged About 26 Years, Resident Of Rundhya Mohalla, Helak, Tehsil Kumher, District Bharatpur, Rajasthan.

¶20

----Petitioner

¶21

Versus

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State Of Rajasthan, Through Its Principal Secretary, Home Affairs, Government Of Rajasthan, Government Secretariat, Jaipur.

¶23

(2 of 16)

¶24

[CW-27941/2018]

¶25

Director General Of Police, Police Head Quarter, Lal Kothi, Jaipur.

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Inspector General Police (Headquarter), Rajasthan Police, Police Head Quarter, Lal Kothi, Jaipur.

¶27

Superintendent Of Police, Karauli.

¶28

----Respondents

¶29

For Petitioner(s) : Mr. Vigyan Shah, Mr. Brijesh Bhardwaj For Respondent(s) : Mr. M.S. Singhvi, Advocate General with Mr. Raunak Singhvi Dr. VB Sharma, AAG with Mr. Harshal Tholia

¶30

HON'BLE MR. JUSTICE ALOK SHARMA

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Order

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Date of the order: March 12th 2019

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All the three petitions entail determination of the issue

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as to whether in the facts of the respective cases, despite selection as Constables under the Rajasthan Police Subordinate Service Rules, 1989 (hereafter ‘the Rules of 1989’) pursuant to the advertisement dated 25.5.2018, the petitioners can be denied appointment on the ground of unsuitability despite the fact that even though they were alleged to be involved in offences of petty nature, but acquitted therein prior to or before the completion of the selection process.

¶35

The facts relevant to the three petitions are as under:

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(3 of 16)

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[CW-27941/2018]

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(i) The petitioner Hanuman Gurjar (S.B. Civil Writ Petition

¶39

No. 890/2019) prior to commencement of the selection

¶40

process for the post of Constable under the advertisement dated 25.5.2018 suffered FIR No. 352/2015 registered at Police Station Todaraisingh, District Tonk was charged sheeted thereon before the Court of ACJM, Todaraisingh for the offences under Section 341, 323, 325, 34 IPC. Put to trial, based on a compromise entered into between the complainant and the accused on 11.2.2017, the petitioner Hanuman Gurjar was acquitted on 6.7.2017.

¶41

(ii) The petitioner Rajesh Kumar Meena (S.B. Civil Writ Petition No. 962/2019) prior to completion of the selection process for the post of Constable under the advertisement dated 25.5.2018 was named in FIR No. 149/2016 registered

¶42

at Police Station Bagar, District Jhunjhunu and following investigation was charged sheeted before the Court of CJM, Jhunjhunu for the offences under Section 341, 323, 325, 34 IPC. Based on a compromise entered into between the complainant and the accused on 25.9.2018, the petitioner Rajesh Kumar Meena was acquitted on 25.10.2018 i.e. prior

¶43

(4 of 16)

¶44

[CW-27941/2018]

¶45

to the completion of the selection process pursuant to the

¶46

advertisement dated 25.5.2018.

¶47

(iii) Likewise, the petitioner Manish Kumar Dubey (S.B. Civil Writ Petition No. 27941/2018) prior to commencement of the selection process for the post of Constable under the advertisement dated 25.5.2018 was also named in FIR No. 73/2018 registered at Police Station Kumher, District Bharatpur and was after investigation charged sheeted before the Court of ACJM, Kumher for the offences under Section 323, 341, 324 IPC. Based on a compromise entered into between the complainant and the accused, the petitioner Manish Kumar Dubey was first acquitted of offences under Section 323, 341 IPC and thereafter for the offence under Section 324 IPC on 11.4.2018 i.e. prior to the commencement of the selection process pursuant to the advertisement dated 25.5.2018.

¶48

Admittedly all the three petitioners were selected for the post of Constable (General), Constable (Band) and Constable (General) in Districts Kota, Alwar and Karauli respectively. Despite being in the select list, they were however not appointed. Vide impugned orders dated 19.11.2018,

¶49

(5 of 16)

¶50

[CW-27941/2018]

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21.11.2018 and 27.11.2018 respectively purportedly in view

¶52

of the Circular dated 28.3.2017. They have been informed of

¶53

being denied appointment in view of their alleged unacceptable antecedents entailing from their criminal prosecution – no matter that the offences were petty in nature and their acquittal therein.

¶54

Mr. Vigyan Shah and Mr. Brijesh Bhardwaj, counsel appearing for the petitioners have submitted that the non appointment of the petitioners as Constables despite selection as such after due process for reasons of petty criminal cases thrust upon them and in which they have been acquitted on the basis of compromise is wholly illegal. It has been submitted that the compromise indicates the initial falsity of the petitioners’ prosecution in the first instance itself. Counsel submitted that in-fact the Circular dated 28.3.2017, on which reliance has been placed by the respondents for denial of appointments does not at all support the respondents’

¶55

case. It has been submitted that the Circular dated 28.3.2017 only excludes from appointment those suffering certain types of criminal cases or have been convicted after trial for those alleged offences. The said Circular dated

¶56

(6 of 16)

¶57

[CW-27941/2018]

¶58

28.3.2017 / letter dated 19.11.2018 do not even remotely

¶59

attract to situations such as one wherein acquittal is the result of the trial on the basis of compromise or whatever

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other reason.

¶61

Counsel further submitted that the Circular dated 28.3.2017 on the bare reading indicates that it was inter-alia in furtherance of the Police Department’s Circular dated 29.4.1995 and 6.8.2014. Counsel submitted that in terms of the Circular dated 6.8.2014 issued by the office of the Director General of Police it was specifically provided that those who inter-alia had been acquitted either on the basis of a compromise between the complainant and the accused and even on the basis of benefit of doubt, were entitled to appointment to the post of Constable, if so selected. Counsel submitted that following the Circular dated 6.8.2014, the respondent Police Department in S.B. Civil Writ Petition No. 6799/2006 (Sriram Meena Versus The State of Rajasthan & Ors.) and other connected matters, decided on 13.8.2014, conceded qua the recruitment of constables in 2013 also under the Rules of 1989 – as also are presently relevant – that acquittal on compromise or even benefit of doubt did not render a selected candidate unfit for appointment as

¶62

(7 of 16)

¶63

[CW-27941/2018]

¶64

Constables. The same stand of the Police Department has to

¶65

attract but instead a variation therefrom is arbitrarily being

¶66

applied to the petitioners. Relevant part of the Circulars

¶67

dated 6.8.2014 and 28.3.2017 is reproduced hereunder:

¶68

;fn fdlh Hkh vH;FkhZ ds fo:) fuEu esa ls fdlh Hkh izdkj ds vijk/k ds rgr izdj.k vUoh{kk/khu ¼Under Trial½ gS vFkok nks’kflf) mijkUr ltk gks pqdh gS] rks mls iqfyl foHkkx dh lsokvksa@inksa ij fu;qfDr gsrq ik= ugha ekuk tkuk pkfg, %&

¶69

¼1½ uSfrd v/kerk ;Fkk Ny] dqVjpuk] eRrrk] cykrlax] fdlh efgyk dh yTtk Hkax djus ds vijk/k esa vUroZfyrrk ¼Involvement½ gksA

¶70

¼2½ Lokid vkS’kf/k vkSj eu% izHkkoh inkFkZ voS/k O;kikj fuokj.k vf/kfu;e] 1988 ¼1988 dk vf/kfu;e la- 26½ esa ifjHkkf’kr voS/k O;kikj esa vUroZfyr~rk gksA

¶71

¼3½ vuSfrd O;kikj ¼fuokj.k½ vf/kfu;e] 1956 ¼1956 dk dsfUnz; vf/kfu;e la- 104½ esa ;FkkifjHkkf’kr vuSfrd nqO;kZikj esa vUroZfyr~rk gksA

¶72

¼4½ fu;ksftr fgalk ;k jkT; ds fo:) ,sls fdlh vijk/k esa vUroZfyr~rk gks] tks Hkkjrh; n.M lafgrk] 1860 ¼1860 dk dsfUnz; vf/kfu;e la- 45½ ds v/;k; 6 esa of.kZr gSA

¶73

¼5½ Hkkjrh; n.M lafgrk ds v/;k; 16 ,oa 17 esa ;Fkkof.kZr vijk/kksa esa vUroZfyr~rk gksA

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¼6½ Hkkjrh; n.M lafgrk dh /kkjk 147]148 ¼cyok djuk½ ds vijk/k esa vUroZfyr~rk gksA

¶75

¼7½ Hkkjrh; n.M lafgrk dh /kkjk 498 , ¼fL=;ksa ds izfr vkijkf/kd nqO;Zogkj&ngst½ ds vijk/k esa vUroZfyr~rk gksA

¶76

¼8½ vtk@vttk vf/kfu;e 1989 ds rgr vijk/k esa vUroZfyr~rk gksA

¶77

(8 of 16)

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[CW-27941/2018]

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;gka ;g Hkh Li’V fd;k tkrk gS fd mDr izdkj ds vijk/kksa ls lacf/kr dksbZ Hkh lwpuk tkucw>dj fNikus okys vH;fFkZ;ksa dks Hkh fu;qfDr gsrq vik= ekuk tk,xkA

¶80

fuEukafdr Js.kh ds dsoy mu vH;fFkZ;ksa dks fu;qfDr ;ksX; ik;k x;k gS] ftUgksaus vkosnu i= vFkok pfj= lR;kiu QkeZ ¼nksuksa esa vFkok fdlh ,d esa½ vkijkf/kd izdj.k dk mYys[k fd;k gks %&

¶81

1- vkijkf/kd izdj.k ds vUos’k.k esa nks’kh ugha ik;k x;k] ,Q-vkjLohd`r dh xbZA

¶82

2- U;k;ky; }kjk nks’keqDr ¼lansg dk ykHk] lk{; ds vHkko lfgr½

¶83

3- jkthukek ds vk/kkj ij nks’keqDr@cjhA

¶84

4- dfri; /kkjkvksa esa nks’kflf) ij ifjoh{kk vf/kfu;e dh /kkjk 12 dk ykHk ¼nks’kflf) fdlh fugZjrk ls xzLr ugha@jktdh; lsok@Hkkoh thou ij fdlh izdkj dk foijhr izHkko ugha½A

¶85

5- nks’kh djkj fn;k tkdj fd”kksj vf/kfu;e dh /kkjk 15¼1½¼,½ dk ykHk izkIrA

¶86

Counsel in support of their case relied to the judgment of the Principal Seat of this Court in the case of Rai Sahab Versus State of Rajasthan & Anr. reported in 2013 (3) WLC 485, wherein it was held that an acquittal on compromise was akin to an honourable acquittal. Reliance was also placed on

¶87

the judgment of this Court in the case of Anil Kumar Versus State of Rajasthan – S.B. Civil Writ Petition No. 13527/2017; decided on 11.12.2018, wherein the Court inter-alia following the judgment in the case of Rai Sahab (supra) held

¶88

(9 of 16)

¶89

[CW-27941/2018]

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that an acquittal on compromise is equally an honourable

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acquittal.

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Counsel further placed reliance on the judgment passed by this Court in the case of Kailash Chand Jat Versus State of Rajasthan & Ors. (S.B. Civil Writ Petition No.353/2017; decided on 3.12.2018), where this Court copiously referred to the judgment of the Apex Court in the case of Avtar Singh Versus Union of India & Ors. reported in (2016) 8 SCC 471 to hold that until the offence alleged exhibited depravity vileness or baseness of the character of a candidate showing

¶93

his psyche being rooted in criminality, he could not be held unsuitable post selection for appointment to the post of Constable. The Court further relied on the judgment of the Apex Court in the case of Pawan Kumar Versus State of Haryana (1996) 4 SCC 17 to observe that the said judgment exhibited the crying need for a justice oriented approach and sensitivity to an individual’s life, hope and aspirations such that his hopes were not stymied by a heartless interpretation of law with the potential of disproportionate consequences perpetuating injustice. It was further held that a pragmatic not a pedantic view of law ought to be taken for facilitating

¶94

(10 of 16)

¶95

[CW-27941/2018]

¶96

those from an unprivileged backgrounds resurrecting their

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hopes in life by extricating them from the morass of laws’

¶98

otherwise labyrinthine interpretations.

¶99

Counsel further submitted that the impugned orders denying appointment to the petitioners as Constable despite their selection after due process also do not take into account Rule 13 of the Rules of 1989 dealing with ‘character’. A wholestic interpretation of the said rules leads to the necessary conclusion that involvement in a criminal case not entailing any offence of moral turpitude moreso in the context of an acquittal cannot render a person unfit or unsuitable for appointment to the post of Constable under the Rules of 1989.

¶100

Per contra, Dr. V.B. Sharma, AAG with Mr. Harshal Tholia submitted that the suitability of one being employed in the uniformed services such as a constable with the police has to be strictly assessed. Counsel submitted that those with the history of criminal prosecution even leading to acquittal cannot per-se assert an indefeasible right to appointment. Assessing suitability of a candidate despite selection is a matter wholly in the discretion of the appointing authority as

¶101

(11 of 16)

¶102

[CW-27941/2018]

¶103

it is for the appointing authority to ensure discipline and

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efficacy in the uniformed services and in the event lower

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standards for ascertaining suitability of a candidate were to be adopted, it would have an adverse bearing on the functioning of policing and public interest. It was submitted that no malafides having been alleged against the respondents, there is no warrant to interfere with the discretion exercised in refusing to appoint the petitioners despite their selection, as Constables. The discretionary equitable extraordinary jurisdiction exercised by this Court is

¶106

not appellate in nature and merely because in the facts of the case, another view is possible to the Court, it does not justify interference with the decision of the respondents.

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Heard. Considered.

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The Supreme Court in the case of Jagtar Singh Versus Director, Central Bureau of Investigation - 1993 (3) Suppl. SCC page 49 in a matter relating to appointment to the post of Sr. Public Prosecutor in Central Bureau of Investigation held that there could be no justification for reaching a conclusion adverse to the appointment of appellant on the basis of surmises and conjectures based on a single incident

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(12 of 16)

¶110

[CW-27941/2018]

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and based thereon to hold him unsuitable for appointment.

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The judgment of the Apex Court makes it pellucid that no

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absolute discretion as to assessment of suitability for employment could be vested in the appointing authority and a conclusion on this count relating to the antecedents and character of a candidate for appointment to a public post has to be based on due application of mind to the facts of a given case. This judgment negates the submission of counsel for the respondents that discretion having been exercised and

¶114

no malafides pleaded thereagainst, no interference is warranted.

¶115

In the case of Ram Kumar Versus State of UP - 2011 (14) SCC page 709, the Apex Court held that where the sole witness for the prosecution has failed to support the prosecution case entailing acquittal of an accused for charges under Sections 323, 324,504 IPC, it was not possible for the appointing authority to take a view that such an accused, beneficiary of an acquittal, was not suitable for appointment on the post of police constable.

¶116

I am of the considered view that refusal to appoint the petitioners as Constables under the Rules of 1989 pursuant

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(13 of 16)

¶118

[CW-27941/2018]

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to the advertisement dated 25.5.2018 despite their selection

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is not a matter beyond the remit of this Court. It is well

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settled that discretion of administrative authorities has to be judiciously exercised. That entails taking into consideration the overall facts of a case as also the extant rules, regulations, circulars in which discretion has to be exercised. I am of the considered view that on the plain terms of the Circular dated 28.3.2017 issued by the office of the Director General of Police, the petitioners, following their selection as Constables in various Districts cannot be denied appointment. For one, the said Circular / letter excludes the appointment of those selected on the ground of their involvement in an on-going criminal trial or conviction. It does even remotely not exclude the appointment of those selected who though earlier involved in criminal trial for petty offences were acquitted and had also disclosed when required the factum of their past involvement in a criminal

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case. I am of the further view, as argued by counsel for the petitioners, that the Circular dated 28.3.2017 / letter dated 19.11.2018 is on plain language in furtherance of the Police Department’s earlier Circular dated 6.8.2014 and not in

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(14 of 16) [CW-27941/2018]

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supersession thereof. The language of Circular dated

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6.8.2014 categorically provides that those acquitted, in

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criminal cases founded on petty offences, inter-alia on the ground of benefit of doubt and compromise would be entitled to be appointed as Constables. Besides, in Rai Sahab Versus State of Rajasthan & Anr. (supra) as also in Anil Kumar Versus State of Rajasthan (supra), the Court has held that an acquittal on the basis of compromise is akin to honourable acquittal. In fact as pointed out by counsel for the petitioners in respect of appointments to the post of Constables pursuant to the advertisement of 2013, the respondent Department had conceded to the appointment of such candidates in SBCWP 6799/2006 - Sriram Meena Versus The State of Rajasthan & Ors. (supra).

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The upshot of the aforesaid discussion is that the respondents have not been able to make out any plausible cause for non appointment of the petitioners despite their selection after due process under the Rules of 1989 pursuant to the advertisement dated 25.5.2018. The denial of appointment to the petitioners despite their selection as

¶128

(15 of 16)

¶129

[CW-27941/2018]

¶130

such after due process following the advertisement dated

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25.5.2018 is wholly illegal and arbitrary.

¶132

The impugned orders dated 19.11.2018, 21.11.2018 and 27.11.2018 are therefore, set-aside.

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The ground/s for non appointment of the petitioners as Constables having been negatived hereinabove, no plausible cause can now obtain for relief prayed for in this petition being not granted. To direct mere consideration of the petitioners for appointment would be not adequate justice moreso as the petitioners have suffered the trauma of non appointment for several months despite their selection. In the circumstances, I am of the view that the present cases are fit to exercise the discretionary equitable extraordinary jurisdiction of this Court under Article 226 of the Constitution of India with reference to which these petitions have been filed and direct that the petitioners be appointed on the post of Constable (GD) (Band) as per their merit position in the select list in the respective districts within two weeks from the date of receipt of certified copy of this order. It is further directed that the petitioners would be entitled to all notional

¶134

(16 of 16)

¶135

[CW-27941/2018]

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benefits as to seniority as per their merit position in the

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select list in the respective district.

¶138