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Ramesh Bishnoi vs Union Of India & Ors on 8 March, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 1310 / 2018
Ramesh Bishnoi S/o. Shri Ganpat Ram, aged about 27 years,
resident of House No.67, Village Gajjewala, PO-Ranjeetpura, PS
Bajju, Tehsil Kolayat, District Bikaner (presently R/o. C/o. Shri
Mool Singh, A-89, K.K. Colony, Bikaner (Raj.)

—-Petitioner
Versus

1. Union of India through the Secretary, Ministry of Home Affairs,
New Delhi-110 0504.

2. The Director General, Central Industrial Security Force, Block
No.12, CGO Complex, Lodi Road, New Delhi-110 003.

3. The Director, CISF, National Industrial Security Academy,
Hyderabad-500 078 (AP)

4. Senior Commandant, CISF, National Industrial Security
Academy, Hyderabad-500 078 (AP)

—-Respondents
__
For Petitioner(s) : Mr. KK Shah
For Respondent(s) : Mr. Deelip Kawadia
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
Reportable
08/03/2018

1. The petitioner by way of filing this writ petition is

claiming for the following reliefs :-

“(i) writ petition may kindly be allowed with costs and the
impugned order dated 16.01.2018 (communicated vide letter
dated 17.01.2018) (Annex.1) may kindly be quashed and set
aside and the petitioner may kindly be directed to be sent for
training, which has started a few days back only.

(ii) Any other appropriate writ, order or direction which this
Hon`ble Court deems just and proper may kindly be passed in
favour of the petitioner.”

(2 of 11)
[CW-1310/2018]

2. The facts as noticed by this Court are that the

petitioner is seeking recruitment on the post of Sub-Inspector in

Central Industrial Security Force (CISF) in pursuance of

advertisement dated 28.3.2015 issued by the Staff Selection

Commission. The petitioner passed written examination and

physical endurance test and thus was selected and was offered

appointment in Central Industrial Security Force vide offer of

appointment dated 15.9.2016. The petitioner submitted the

verification certificate signed by the Superintendent of Police,

Bikaner, in which, it was categorically mentioned that a charge-

sheet has been filed against the petitioner on 30.6.2009 in the

court of MJM, Kolayat in FIR No.70/2009 for the offence under

Sections 354, 447 and 509 IPC pertaining to Police Station, Bajju,

District Bikaner and the petitioner has been acquitted from the

aforesaid offence on 24.11.2011. Such information was there in

the verification certificate dated 30.9.2016. The petitioner was

also required to submit Attestation Form, in which, the petitioner

clearly mentioned “YES” against the column of information

regarding any previous conviction, thus, the petitioner rendered

all necessary information regarding criminal case as and when

sought by the respondents and did not conceal any material fact.

3. Counsel for the petitioner categorically pointed out that

the petitioner’s date of birth is 05.9.1991 and charge-sheet of

criminal case was filed on 30.6.2009 when the petitioner was

minor. Counsel for the petitioner further pointed out that the

allegation against the petitioner was that he teased a girl and was

harassing her for many days and even went to the extent of
(3 of 11)
[CW-1310/2018]

catching hold of her hand. Counsel for the petitioner stated that

the girl and her parents did not depose against the petitioner,

hence, order of acquittal dated 24.11.2011 was passed. Counsel

for the petitioner argued that the respondents without taking into

consideration the facts relating to acquittal and also there being

no concealment on the part of petitioner, cancelled his offer of

appointment of vide order dated 03.6.2017, thus, the petitioner

having left with no option preferred writ petition before this Court

against cancellation of offer of appointment, being S.B. Civil Writ

Petition No.7522/2017, wherein following order was passed by this

Court on 06.12.2017; operative portion reads as follows :-

“3. This Court confines that Avtar Singh (supra) is the latest
precedent law governing the field, hence, it would be
appropriate to dispose of the matter with a direction to the
respondents to consider case of petitioner strictly in light of the
guidelines given in Avtar Singh (supra).

4. The decision shall be taken by the respondents within a period
of 15 days from today. In case the petitioner is found entitled, he
shall be given training alongwith the ongoing training course.”

4. The outcome of disposal of earlier writ petition was that

the respondents were required to consider petitioner’s case within

the parameters of precedent law of Avtar Singh as well as the

policy/guidelines of respondents. Counsel for the petitioner further

pointed out that MHA policy/ guidelines formulated by the

respondents dated 01.2.2012 (Annex.R/2) stipulates that a

candidate shall not be debarred if he/she has been finally

acquitted/discharged by a Court from the offences in-question.

Counsel for the petitioner laid emphasis on Clause 2(VI) of the
(4 of 11)
[CW-1310/2018]

guidelines. The relevant portion of MHA Policy Guidelines dated

01.2.2012 reads as follows :

“2 (VI). Involvement in minor offences, traffic violations,
juvenile in conflict with law (tried in open courts/Juvenile
Justice Boards) and accident cases will not debar any
individual for appointment in CAPFs ARs provided that
appointments for the post of Driver and those related to
driving will not be offered to the individuals, punished for
serious traffic offences.”

Counsel for the petitioner also pointed out from the same

Policy the offences coming under the head of ‘Moral Turpitude’,

as follows :

“MORAL TURPITUDE

Moral Turpitude refers to a conduct that shocks the public
conscience and a crime of moral turpitude is inherently base,
vile or depraved, contrary to social stands of morality and
done with reckless, malicious or evil intent. The following
crimes shall definitely be construed as acts of moral
turpitude :

a) Murder

b) Voluntary man slaughter

c) Rape

d) Domestic violence

e) Prostitution

f) Blackmail

g) Malicious destruction of property

h) Arson

i) Alien smuggling

j) Harbouring a fugitive

k) Bribery
(5 of 11)
[CW-1310/2018]

l) Perjury”

Counsel for the petitioner pointed out that the petitioner’s

alleged act does not fall within the domain of Moral Turpitude

offences mentioned in the Policy. Counsel for the petitioner

thereafter pointed out that the respondents dismissed the

consideration on three counts vide its order dated 16.1.2018

(Annex.1), which reads as follows :

“i) He has merely been acquitted from criminal charges due to
lack of adequate evidence and compromise as all the
complainants and witnesses turned hostile.

ii) The offence in the charge-sheet U/Ss.354 447 IPC, falls in
the category of serious offence. MHA guidelines says that
“though later on acquitted by extending benefit of doubt or
acquitted for reasons that the witnesses have turned hostile due
to fear of reprisal by the accused person(s), he/she will
generally not be considered suitable for appointment in the
CAPF.

iii) As per Para.30(5) of JO dated 21.07.2016 in SLP (C)No.
20525/2011 (Avtar Singh Vs. UoI and Ors.) wherein at
Para.30(5) the Hon`ble Supreme Court has authorized the
Department to consider the antecedents and the department
cannot be compelled to appoint the candidate even when he has
made declaration truthfully of a concluded criminal case.”

As regards the first reason “acquitted from criminal

charges due to lack of adequate evidence and compromise”

counsel for the petitioner argued that this reason could not

have been considered by the Screening Committee because the

Policy of respondents itself makes it clear that a candidate shall

not be debarred if he/she has been finally acquitted/discharged
(6 of 11)
[CW-1310/2018]

by a competent court. As per counsel for the petitioner the

second reason mentioned is “the offence in the charge-sheet

U/Ss.354 447 IPC, falls in the category of serious offence”

which as per the Policy of respondents do not fall within the

domain of offence affecting moral turpitude. Learned counsel for

petitioner has further submitted that Avtar Singh gives leverage

to check antecedents of a candidate, whereas antecedents of the

petitioner has not at all been called for by the respondents to

show that there was any past criminal antecedent besides the

instant case which disqualifies the petitioner from the

appointment. Counsel for the petitioner has further emphasized

on the fact that the application of mind by the Screening

Committee is contrary to the norms, which has to be followed by

the respondents and further stated that MHA Policy/ Guidelines

clearly bifurcate juvenile offenders and gives protection to them

and states that a juvenile who has come in conflict with law and

has been dealt with under the provisions of Juvenile Justice Act,

she/she shall not suffer any disqualification on account of

conviction in an offence under the said law.

5. Counsel for the respondents vehemently opposed the

submissions made by counsel for the petitioner by stating that a

clear application of policy and precedent law of Avtar Singh is

reflected from the decision given by Screening Committee vide

order dated 16.01.2018 (Annex.1) wherein petitioner’s case was

re-examined on 02.1.2018 and a recommendation was made

that the petitioner is unsuitable for appointment in CISF, a

uniform force. To strengthen his argument, learned counsel for
(7 of 11)
[CW-1310/2018]

the respondents relied upon latest decision of Hon`ble Supreme

Court rendered in the case of Union Territory, Chandigarh

Administration Ors. Vs. Pradeep Kumar Anr. (Civil

Appeal No.67 of 2018, decided on 08.1.2018), the relevant

portion of which reads as follows :

“15. From the above details, we find that the Screening
Committee examined each and every case of the Respondents
and reasonings for their acquittal and taken the decision. While
deciding whether a person involved in a criminal case has been
acquitted or discharged should be appointed to a post in a
police force, nature of offence in which he is involved, whether
it was an honourable acquittal or only an extension of benefit
of doubt because of witnesses turned hostile and flaws in the
prosecution are all the aspects to be considered by the
Screening Committee for taking the decision whether the
candidate is suitable for the post. As pointed out earlier, the
Screening Committee examined each and every case and
reasonings for their acquittal and took decision that the
Respondents are not suitable for the post of Constable in
Chandigarh Police. The procedure followed is as per guideline
2(A)(b) and object of such screening is to ensure that only
persons with impeccable character enters police force. While
so, the court cannot substitute its views for the decision of the
Screening Committee.

16. On behalf of the Respondents, much reliance was placed
upon Joginder Singh v. Union Territory of Chandigarh and
Ors. (2015) 2 SCC 377. In the said case, the Appellant thereon
was charged Under Sections 148, 149, 323, 325 and 307 Indian
Penal Code but acquitted by the trial court holding that the
prosecution has failed to prove the charges levelled against him
since complainant as well as injured eye witnesses failed to
identify the assailants and the complainant had stated that his
signature was obtained on a blank sheet by the Investigating
Officer. The case involved was a family dispute. In such facts
(8 of 11)
[CW-1310/2018]

and circumstances, this Court held that acquittal of Appellant
Joginder Singh was an honourable acquittal and hence, he
should not be denied appointment to the post in question. The
decision in Joginder Singh case does not advance the case of
the Respondents herein.

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.

18. In the result, the impugned judgment is set aside and the
appeals are allowed. The cancellation of candidature of the
Respondents is upheld. No costs.”

Counsel for the respondents argued that since no malafide

has been attributed to the Screening Committee, then the

decision of Screening Committee must be taken as final and

ought not to interfered with by the Courts. Central Industrial

Security Force being disciplinary force and the post of

Sub-Inspector demands an impeccable integrity and track record

besides good character and suitability. Once deficiency in

character has been noted by the Screening Committee, then

appointment can’t be given. Counsel for the respondents further

justified that offence under Sections 354 447 IPC are of such

nature that it would amount to have an impact upon the life of
(9 of 11)
[CW-1310/2018]

petitioner. Counsel for the respondents argued that each and

every aspect of the matter was taken into consideration by the

Screening Committee in light of Avtar Singh’s case and

policy/guidelines of MHA and even if disclosure has been made

truthfully, then too, an employer has a right to consider fitness

of a candidate. Under such circumstance even if petitioner’s

acquittal is honourable, then too, the petitioner is not entitled for

any relief from this Court. Counsel for the respondents has

drawn attention of Court to non-obstante clause (iii) and (v).

Clause (iii) shall not apply in the case where acquittal is given by

giving benefit of doubt and offences are serious as per

Schedule-A. Counsel for the respondents has shown Annexure-

A-Sections of Indian Penal Code concerning serious

offences/moral turpitude, which categorically includes Section

354 IPC as serious offence. In rejoinder, learned counsel for

the petitioner stated that Policy itself says that where the

Appointing Authority is of the opinion that it is necessary or

expedient to do so, it may after consultation with the Ministry of

Home Affairs, by order, for reasons to be recorded in writing,

relax any of the provisions of this Policy with respect to any

individual, class or category of individuals. Thus, the

respondents ought to have excluded juvenile offender from

conflict of law.

6. After hearing learned counsel for the parties and

perusing record of case, particularly, Police/Guidelines of MHA,

this Court is of the opinion that the petitioner, who was a minor,
(10 of 11)
[CW-1310/2018]

probably teased a girl and went to the extent of catching hold of

her hand and finally the girl and her parents decided to pardon

the boy by not giving any evidence against him resulting into

acquittal of the petitioner. This Court finds that the respondents

while passing impugned order 16.1.2018 (Annex.1) have not

adhered to the Policy on the face of it and, therefore, in light of

precedent law of Avtar Singh the respondents were required to

make application of mind in accordance with their own Policy.

The judgment cited by counsel for the respondents will not apply

in the present case as here the result of Screening Committee is

directly in conflict with Policy of the respondents to deal with

such situation, which is a standard policy, uniformly applicable

to recruitment of candidates on the post of Sub-Inspector in

CISF. Out of the three reasons summarized by the Screening

Committee it its impugned order, the petitioner has been

disqualified on account of acquittal being not honourable,

whereas already this Court has taken note of the fact that the

Policy itself states that if a person has been finally acquitted,

then his recruitment could be considered. Charge-sheet for the

offence under Sections 354 and 447 of IPC falls in the category

of serious offence as mentioned in Annex.A but ultimately

petitioner cannot be made to suffer disqualification on account of

merely charges being levelled against him for the offence under

Sections 354 447 IPC. This Court also notes that the

precedent law of Avtar Singh requires the respondents to

consider antecedents. In the instant case, the Screening

Committee failed to call for antecedents, except the one, to
(11 of 11)
[CW-1310/2018]

support disqualification of the petitioner. More so, petitioner had

been acquitted long before the recruitment process and he

disclosed each and every fact regarding criminal case to the

respondents as and when required. The policy of the

respondents not to penalize the juveniles also clearly helps the

petitioner. That being so, the impugned order dated 16.1.2018

(communicated vide letter dated 17.01.2018) (Annex.1) is

quashed and set aside; the respondents are directed to activate

offer of appointment of the petitioner earlier made to the

petitioner for the post of Sub-Inspector in Central Industrial

Security Force. The order may be operated upon within a period

of thirty days from today and all notional benefits shall be

prospectively given.

(DR. PUSHPENDRA SINGH BHATI)J.

Sanjay

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