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Akash Arya vs The State Of Madhya Pradesh on 24 February, 2020

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The High Court of Madhya Pradesh
WP 2594/2020
[Akash Arya vs. State of MP and Ors.]

Gwalior, dtd. 24/02/2020
Shri Alok Kumar Sharma, counsel for the petitioner.

Shri SN Seth, Government Advocate for the respondents/ State.

This petition under Article 226 of the Constitution of India has

been filed against the order dated 07/02/20219 (Annexure P1) by which

the petitioner has been disqualified for his appointment on the post of

Constable on the ground that he was prosecuted for offence under

Section 419 of IPC and under Section 3-D of the Examination Act.

The necessary facts for disposal of the present petition in short are

that an advertisement was issued in the year 2017 for recruitment on the

post of Constable in the Police Department. A written examination was

conducted by MP Professional Examination Board and the petitioner

was declared qualified for physical test. Thereafter, the petitioner

successfully completed all formalities and he was allotted his posting in

17th Battalion, SAF Bhind. In the character verification form, the

petitioner has disclosed that a criminal case was registered in the year

2013, however, he has been acquitted by the judgment dated 9 th

February, 2017 passed by the JMFC, Gwalior in Criminal Case

No.471057/2013.

It is submitted that the petitioner has never suppressed the

registration of criminal case as well as his trial and in spite of the fact

that he has been acquitted by the Court below, the candidature of the

petitioner has been rejected by order dated 9th February, 2017. It is
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submitted by the counsel for the petitioner that once, the petitioner has

been acquitted, then it would mean that he was not involved in the

criminal case alleged against him and thus, the rejection of his

candidature for his appointment to the post of Constable in the Police

Department is liable to be set aside.

Heard the learned counsel for the petitioner.

The petitioner has filed the copy of the judgment dated 9 th

February, 2017 passed by JMFC, Gwalior in Criminal Case No.471057

of 2013. It is clear from the said judgment, it was alleged that the

petitioner had acted as a solver in the High School Examination

conducted in the year 2013. From the judgment, it appears that the

witnesses had turned hostile on the question of identity.

The Supreme Court in the case of State of Madhya Pradesh and

Others vs. Abhijit Singh Pawar, passed in Civil Appeal No. 11356 of

2018 (Arising out of SLP (c) No.17404 of 2016) by judgment dtd. 26th

November, 2018 has observed as under:-

”14. In Avtar Singh (supra), though this Court was
principally concerned with the question as to non-disclosure
or wrong disclosure of information, it was observed in
paragraph 38.5 that even in cases where a truthful disclosure
about a concluded case was made, the employer would still
have a right to consider antecedents of the candidate and
could not be compelled to appoint such candidate.

15. In the present case, as on the date when the respondent
had applied, a criminal case was pending against him.
Compromise was entered into only after an affidavit
disclosing such pendency was filed. On the issue of
compounding of offences and the effect of acquittal under
Section 320(8) of Cr.P.C., the law declared by this Court in
Mehar Singh (supra), specially in paragraphs 34 and 35
completely concludes the issue. Even after the disclosure is
made by a candidate, the employer would be well within his
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rights to consider the antecedents and the suitability of the
candidate. While so considering, the employer can certainly
take into account the job profile for which the selection is
undertaken, the severity of the charges levelled against the
candidate and whether the acquittal in question was an
honourable acquittal or was merely on the ground of benefit
of doubt or as a result of composition.

16. The reliance placed by Mr. Dave, learned Amicus
Curiae on the decision of this Court in Mohammed Imran
(supra) is not quite correct and said decision cannot be of
any assistance to the respondent. In para 5 of said decision,
this Court had found that the only allegation against the
appellant therein was that he was travelling in an auto-
rickshaw which was following the auto-rickshaw in which
the prime accused, who was charged under Section 376
IPC, was travelling with the prosecutrix in question and that
all the accused were acquitted as the prosecutrix did not
support the allegation. The decision in Mohammed Imran
(supra) thus turned on individual facts and cannot in any
way be said to have departed from the line of decisions
rendered by this Court in Mehar Singh (supra), Parvez
Khan (supra) and Pradeep Kumar (supra).

17. We must observe at this stage that there is nothing on
record to suggest that the decision taken by the concerned
authorities in rejecting the candidature of the respondent
was in any way actuated by mala fides or suffered on any
other count. The decision on the question of suitability of
the respondent, in our considered view, was absolutely
correct and did not call for any interference. We, therefore,
allow this appeal, set aside the decisions rendered by the
Single Judge as well as by the Division Bench and dismiss
Writ Petition No.9412 of 2013 preferred by the respondent.

No costs.”

The Supreme Court in the case of Union of Territory,

Chandigarh Administration and Ors. vs. Pradeep Kumar and

Another, reported in (2018) 1 SCC 797 has held as under:-

”11. Entering into the police service required a candidate to
be of good character, integrity and clean antecedents. In
Commissioner of Police, New Delhi and Another Vs Mehar
Singh (2013) 7 SCC 685, the respondent was acquitted
based on the compromise. This Court held that even though
acquittal was based on compromise, it is still open to the
Screening Committee to examine the suitability of the
candidate and take a decision…….

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12. While considering the question of suppression of
relevant information or false information in regard to
criminal prosecution, arrest or pendency of criminal case(s)
against the candidate, in Avtar Singh v. Union of India and
Others(2016) 8 SCC 471, three-Judges Bench of this Court
summarized the conclusion in para (38). As per the said
decision in para (38.5), (SCC p. 508)
”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.”

13. It is thus well settled that acquittal in a criminal case
does not automatically entitle him for appointment to the
post. Still it is open to the employer to consider the
antecedents and examine whether he is suitable for
appointment to the post. From the observations of this Court
in Mehar Singh and Parvez Khan cases, it is clear that a
candidate to be recruited to the police service must be of
impeccable character and integrity. A person having
criminal antecedents will not fit in this category. Even if he
is acquitted or discharged, it cannot be presumed that he
was honourably acquitted/completely exonerated. The
decision of the Screening Committee must be taken as final
unless it is shown to be mala fide. The Screening
Committee also must be alive to the importance of the trust
repose in it and must examine the candidate with utmost
character.

* * *

17. In a catena of judgments, the importance of integrity
and high standard of conduct in police force has been
emphasized. As held in Mehar Singh case, the decision of
the Screening Committee must be taken as final unless it is
mala fide. In the case in hand, there is nothing to suggest
that the decision of the Screening Committee is mala fide.

The decision of the Screening Committee that the
respondents are not suitable for being appointed to the post
of Constable does not call for interference. The Tribunal and
the High Court, in our view, erred in setting aside the
decision of the Screening Committee and the impugned
judgment is liable to be set aside.”

The Full Bench of this Court in the case of Ashutosh Pawar vs.

State of M.P. reported in 2018 (2) MPJR 178 has held as under:-

” Decision of Criminal Court on the basis of
compromise or an acquittal cannot be treated that the
candidate possesses good character, which may make
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him eligible, as the criminal proceedings are with the
view to find culpability of commission of offence
whereas the appointment to the civil post is in view
of his suitability to the post. The test for each of them
is based upon different parameters and therefore,
acquittal in a criminal case is not a certificate of good
conduct to a candidate. The competent Authority has
to take a decision in respect of the suitability of
candidate to discharge the functions of a civil post
and that mere acquittal in a criminal case would not
be sufficient to infer that the candidate possesses
good character. Division Bench judgment of this
Court in W.P.No.5887/2016 (Arvind Gurjar vs. State
of M.P.) is overruled. Another Division Bench
judgment in W.A. No.367/2015 (Sandeep Pandey vs.
State of M.P. and others) is also overruled.
Jurisdiction of the High Court in a writ petition under
Art. 226 of the Constitution of India is to examine
the decision-making process than to act as Court of
appeal to substitute its own decision. In appropriate
case, if the Court finds decision-making process is
arbitrary or illegal, the Court will direct the Authority
for reconsideration rather than to substitute the
decision of the competent Authority with that of its
own.

The expectations from a Judicial Officer are of
much higher standard. There cannot be any
compromise in respect of rectitude, honesty and
integrity of a candidate who seeks appointment as
Civil Judge. The personal conduct of a candidate to
be appointed as Judicial Officer has to be free from
any taint. The standard of conduct in the case of
Judicial Officer is higher than that expected of an
ordinary citizen and also higher than that expected of
a professional in law as well. The same must be in
tune with the highest standard of propriety and
probity.”

This Court by order dated 20/08/2019 passed in the case of Ex

Sep Gauri Shankar Jatav vs. Union of India and Ors. [Writ Petition

No.4764/2017] has held as under:-

”…………………………………It is further clear that mere
acquittal of an employee in a criminal case would
not be sufficient to make him entitled for his
recruitment and the employer can still consider the
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effect of registration of criminal case and the
criminal antecedent of the candidate.

The above-mentioned order was affirmed by Supreme Court in

SLP (C ) No.27284/2019 by order dated 13th January, 2020.

If the facts of the case are considered in the light of the judgments

passed by the Supreme Court as well as the judgment passed by Full

Bench of this Court in the case Ashutosh Pawar (supra), then it is

clear that the petitioner was prosecuted on the allegation that he had

acted as a solver and appeared in the High School Examination for the

student, Amit Arya. Although the petitioner has been acquitted but as the

witnesses had turned hostile, it cannot be said that the acquittal of the

petitioner was honourable. The police force is a uniform force and the

effect of registration of a criminal case as well as outcome of the trial

can always be considered by the employer before granting an

appointment to the candidate. Under these circumstances, this Court is

of the considered opinion that the respondents did not commit any

mistake by rejecting the candidature of the petitioner.

The petition fails and is hereby dismissed.

(G.S.Ahluwalia)
Judge

MKB

MAHENDRA
KUMAR BARIK
2020.02.27
09:53:42 +05’30’
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07’00’

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