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Smt. Usha Kiran Sen vs State Of Raj. & Ors on 15 May, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12167 / 2016
Smt. Usa Kiran Sen W/o Shri Bhanwar Lal D/o Shri Babu Lal Sen,
Aged About 34 Years, Likhma Ka Bass, Tehsil Dataramgarh,district
Sikar ( Raj.)

—-Petitioner
Versus

1. State of Rajasthan Through Secretary, Department of Medical
and Health Services, Rajasthan Secretariat, Jaipur

2. Additional Director ( Administration), Directorate Medical and
Health Services Swasth Bhawan, Opp.secretariat Jaipur

3. Chief Medical and Health Officer, Jodhpur

4. The Chairman, Nurse Grade-II Appointment Committee-cum-
District Collector, Jodhpur.

—-Respondents
__
For Petitioner(s) : Mr. Vishal Sharma with Mr. Vivek Sharma
For Respondent(s) : Ms. Shweta Bohra
__

HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
15/05/2018

1. This writ petition has been preferred with the following

prayers:

“1. By an appropriate writ order or direction, the
impugned order dated 22.09.2016 may kindly be
quashed and set aside and the petitioner may be
allowed to work on the post of Nurse Grade-II with all
consequential benefits from the date of joining.

2. 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. Brief facts of this case, as noticed by this Court, are

that the petitioner was appointed as Nurse Grade-II under the
(2 of 8)
[CW-12167/2016]

Scheme of NRHM vide order dated 06.10.2008 on contract basis

and was continued in service upto 28.02.2013. The respondent-

Department issued an advertisement for recruitment of Nurse

Grade II in the year 2013, and after culmination of the said

recruitment process, upon due selection, the petitioner was given

appointment on 10.02.2016, which was a regular appointment.

3. Although the petitioner was minor, the petitioner

solemnized marriage with one Shri Raju Ram Sen on 11.12.2005.

However, the marriage could not succeed, and therefore, she had

filed an application for divorce under Section 13 of Hindu Marriage

Act before the competent court and the same was granted in

favour of the petitioner on 05.03.2013. After the divorce decree

was granted on 05.03.2013, the petitioner solemnized marriage

with one Shri Bhanwar Lal Gadhwal and the said marriage was

duly registered with the competent authority. The Ex-husband of

the petitioner concealing the fact of divorce filed a criminal

complaint for offence under Section 494, 109 and 120-B of IPC for

which cognizance was taken against the petitioner and the trial

proceeded. The order of appointment was however, quashed by

the respondents invoking Clause 2(ii) of the circular dated

15.07.2016. The relevant portion of the dismissal order dated

22.09.2016 reads as follows :-

“dkfeZd foHkkx ds uksfVfQds’ku fnukad 15-07-2016 ds fcUnq la[;k 2
¼AA½ ds vuqlkj vkijkf/kd izdj.k esa U;k;ky; }kjk nks”keqDr dj nsus
rFkk jkT; ljdkj }kjk ukSdjh dk fu.kZ; fy;s tkus ds i’pkr gh
fu;qfDr gsrq ik ekuk x;k gSA QyLo:i Jhefr m”kk fdj.k lsu iqh Jh
ckcwyky lsu dk ulZ Js.kh f}rh; ds in ij funs’kky; ds vkns’k la[;k
59 fnukad 09-02-2016 ds }kjk p;u ,oa vkns’k la[;k 60 fnukad 10-02-

(3 of 8)
[CW-12167/2016]

2016 ds }kjk inLFkkiu vkns’k ,rn }kjk fujLr fd;k tkrk gSA ”

3. The relevant part of the circular relied upon by the

respondents dated 15.07.2016 reads as follows :-

“1- ,sls izdj.k@fLFkfr;ka ftuesa fu;qfDr gsrq vikrk ekuh tkuh pkfg,
%
;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) mijkar
ltk gks pqdh gS] rks mls jkT; ds v/khu lsokvksa@inksa ij fu;qfDr gsrq
ik ugha ekuk tkuk pkfg,%
¼i½ ukSfrd v/kerk ;Fkk Ny] dqVjpuk] eRrrk] cykRlax fdlh efgyk dh
yTtk Hkax djus ds vijk/k esa vUroZfyIrrk ¼Involvement½ gksA
¼ii½ 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 ;FkkifjHkkf”kr voS/k O;kikj esa
vUroZfyIrrk gksA
¼iii½ vuSfrd O;kikj ¼fuokj.k½ vf/kfu;e] 1956 ¼1956 dk dsUnzh;
vf/kfu;e la- 104½ esa ;FkkifjHkkf”kr vuSfrd nqO;kZikj esa vUroZfyIrrk gksA
¼iV½ fu;ksftr fgalk ;k jkT; ds fo:) ,sls fdlh vijk/k esa
vUroZfyIRrk gks] tks Hkkjrh; n.M lafgrk] 1860 ¼1860 dk dsfUnzh;
vf/kfu;e la- 45½ ds v/;k; 6 esa of.kZr gSA
¼V½ Hkkjrh; n.M lafgrk ds v/;k; 16 ,oa 17 esa ;Fkkof.fkZr vijk/kksa esa
vUroZfyIrrk gksA
¼Vi½ Hkkjrh; n.M lafgrk dh /kkjk 147] 148 ¼cyok djuk½ ds vijk/k esa
vUroZfyIrrk gksA
¼Vii½ Hkkjrh; n.M lafgrk dh /kkjk 498 A ¼fL;ksa ds izfr vkijkf/kd
nqO;Zogkjngst½ ds vijk/k esa vUroZfyIrrk gksA
¼viii½ vtk@vttk vf/kfu;e 1989 ds rgr vijk/k esa vUroZfyIrrk
gksA
;gka ;g Hkh Li”V fd;k tkrk gS fd mDr izdkj ds vijk/kksa ls lacf/kr
dksbZ Hkh lwpuk tkucwdj fNikus okys vH;fFkZ;ksa dks Hkh fu;qfDr gsrq
vik ekuk tk,xkA

,sls izdj.k@fLFkfr;ka ftuesa vH;FkhZ dks fu;qfDr gsrq ik ekuk tkuk
pkfg,%
(4 of 8)
[CW-12167/2016]

¼ i½ ftu vH;fFkZ;ksa dks vkijkf/kd izdj.k ds vUos”k.k esa nks”kh ugha
ik;k x;k gks rFkk vUos”k.kksijkar ,Q-vkj- Lohd`r dh tk pqdh gksA
¼ii½ ftu vH;fFkZ;ksa dks fdlh vkijkf/kd izdj.k esa U;k;ky; }kjk
nks”keqDr dj fn;k x;k gks] rFkk ml izdj.k esa jkT; ljdkj }kjk vihy
ugha djus dk fu.kZ; fy;k tk pqdk gksA
¼iii½ vH;kfFkZ;ksa dks ,sls izdj.k ftuesa U;k;ky; }kjk ifjoh{kk
vf/kfu;e dh /kkjk 12 dk ykHk fn;k tkdj ifjoh{kk ij NksM+k x;k gksA
¼nks”kflf) fdlh fujgZrk ls xzLr ugha@ jktdh; lsok@Hkkoh thou ij
fdlh izdkj dk foijhr izHkko ugha½A
¼iv½ vH;kfFkZ;ksa ds ,sls izdj.k ftuesa nks”kh djkj fn;k tkdj fd’kksj
vf/kfu;e dh /kkjk 1 ¼1½ ¼,½ dk ykHk iznku fd;k x;k gksA ”

4. Thereafter, the petitioner immediately approached this

Hon’ble Court, whereupon an interim protection was granted on

24.10.2016, while passing the following order :-

“It is submitted by learned counsel for the petitioner
that the services of the petitioner have been terminated
by order dated 22.9.2016 (Annex.8) based on the
notification dated 15.7.2016 (Annex.9), however, the
offence for which the petitioner is under trial, is not
indicated in the circular dated 15.7.2016 and therefore,
the order impugned is bad.

Issue notice. Issue notice of stay application also. Both
are made returnable within a period of four weeks.

Notices, when issued, be given ‘dasti’ to learned counsel
for the petitioner to effect service upon the respondents.

In the meanwhile and until further orders, effect and
operation of the order dated 22.9.2016 (Annex.8) shall
remain stayed.”

5. Learned counsel for the petitioner Mr. Vishal Sharam

has pointed out that the petitioner has already been acquitted in

the criminal trial, in criminal case no.705/2013 under Section 494,

109 and 120 of IPC, which had caused the termination order of
(5 of 8)
[CW-12167/2016]

the petitioner. The certified copy of the acquittal order, on account

of compromise, in the aforementioned case is on record as

Annexure-10 dated 06.01.2017.

6. Learned counsel for the petitioner further points out

that the circular itself was not applicable to the petitioner, as the

circular was dealing with the eligibility (Patrata) to be appointed

whereas the petitioner had already crossed that stage and after

facing regular recruitment in 2013, she was given a confirmed

appointment on a regular post of Nurse Grade II w.e.f.

10.02.2016.

7. Learned counsel for the petitioner has further stated

that even if the circular is read as it is, then also the conditions of

eligibility include the condition that an under trial who is not

suffering charges of serious nature, as described in the circular

reproduced hereinabove, would not entitle the respondent to bring

her service to an end.

8. Learned counsel for the petitioner has further pointed

out that clause 2(ii) which has also been reproduced above, does

not help the respondent, as the person’s eligibility was to be seen

in light of the fact, as to whether the criminal case pending

against him or her has come to an end. Learned counsel for the

petitioner states that such a provision in the circular cannot be

reversely applied in the present case.

9. Learned counsel for the respondent has, however,

pointed out that the petitioner was facing a criminal trial in the

aforementioned case and when the impugned order dated

22.09.2016 was passed, the same was justified, as the petitioner
(6 of 8)
[CW-12167/2016]

has been acquitted only subsequently on 06.01.2017.

10. Learned counsel for the respondent has pointed out

that acquittal cannot have a retrospective effect upon the case.

Learned counsel for the respondent has also pointed out that the

termination order is justified in light of the policy circular of the

respondent which has been invoked in the present case which is

dated 15.07.2016 coupled with condition No.2, quoted above,

which provides that a person shall not be disqualified, if he/she

has been acquitted in the ongoing criminal case and decision of

not preferring an appeal has been taken by the State Government.

11. Learned counsel for the respondent has, however,

relied upon the judgment passed by this Court in Manglesh Soni

Vs. State of Rajasthan Ors. (S.B. Civil Writ Petition

No.1103/2016, decided on 28.11.2017) the relevant portion of

this judgment reads as under :-

“7. After hearing counsel for the parties and
perusing the record of the case, this court is of the
opinion that the universal policy across the board is in
vogue and the same has not been challenged by the
petitioner. The policy is mentioned in the reply, in
which, the respondents have come out with the specific
case that as per the circular / policy dated 15.07.2016,
the petitioner stands disqualified on account of the FIR
pending against him with the offences under Section
304B and 498A. On a bare perusal of condition No.5
itself shows that the candidates uniformly have been
debarred if the case against them was pending at the
time of appointment under Chapter 16 or Chapter 17 of
the IPC. The argument of the learned counsel for the
petitioner that merely the trial is going on and
conviction is yet to happen, does not hold ground as the
(7 of 8)
[CW-12167/2016]

circular has been made applicable on all under trials
across the board and has been uniformly made
applicable on all the candidates.”

12. After hearing counsel for the parties and perusing the

record of the case, this Court finds that the precedent law cited at

Bar by counsel for the respondents does not apply in the present

case, as in that case the FIR was pertaining to offences under

Section 304B and 498A of IPC which are admittedly there in the

condition No.1(vii) and 1(v). The precedent law does not help the

respondents as Section 304B comes within the Chapters 16 and

17 of the IPC and Section 498A IPC falls within the domain of

clause 1(vii), and therefore, it is a case with totally different facts.

In the present case, the offence is under Section 494 read with

Section 109, 120B of IPC which do not fall in the circular dated

15.07.2016 in condition No.1. Apparently, the circular which the

respondent have resorted to against the petitioner itself entitles

the petitioner to be continued in service and regular appointment,

if she is otherwise eligible.

13. This Court reproduced the relevant portion of the

circular in this judgment and this Court finds that the conditions of

disqualification as well as qualification do not apply in the facts of

the present case, so much so that even condition No.2(ii) which is

pertaining to acquittal of a person cannot be reversely applied on

the present petitioner, as she already stood qualified on account of

condition no.1 and as per all its seven parameters stated in the

circular. The petitioner has neither been involved in seven

parameters which are, moral offence, NDPS offences, Immoral
(8 of 8)
[CW-12167/2016]

Trafficking Act, Violence Against the State, offence under chapter

16 and 17, offence punishable under Sections 147, 148, offence

under Section 498A IPC and offence against the Scheduled Castes

and Scheduled Tribes.

14. Thus, the petitioner who was regularly recruited on the

post of Nurse Grade II vide selection exercise of 2013 cannot be

held disentitled for the employment only on the count of such

circular. Moreover, this Court has also taken note of the fact that

the petitioner has been acquitted in the said alleged offence by a

competent Court and by virtue of a compromise in the criminal

case, which is essentially a matrimonial dispute. This Court has

also perused Annexure-10 where the acquittal order has been

recorded by the competent court on 06.01.2017.

15. This Court also finds that the circular in question is

dealing only with the eligibility of the candidates for getting the

appointment whereas it is not disputed by the respondent that

already the regular appointment had been given to the petitioner

on 10.02.2016 whereas the termination order has been passed

after seven months i.e. 22.09.2016.

16. In view of the aforesaid discussion, the present writ

petition is allowed and the impugned order dated 22.09.2016

Annexure-8 is quashed and set aside and the respondents are

directed to continue the petitioner in regular service on the post of

Nurse Grade II with all consequential benefits from the date of

joining i.e. 10.02.2016.

(DR. PUSHPENDRA SINGH BHATI)J.

sudheer

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