1 S.B.CIVIL WRIT PETITION NO.5034/2008 Ashu Kumar v. State of Rajasthan & Ors. Date of Order :: 27th September, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. K.S.Yadav, for the petitioner. Mr. B.L.Bhati, for the respondents. .... As a consequent to regular selection through Rajasthan Public Service Commission, an appointment was given to the petitioner as Lecturer School Education under an order dated 21.7.2007. Before getting employed, the petitioner by submitting an affidavit disclosed the fact relating to pendency of a criminal case against him for the offences under Sections 498-A and 406 IPC. The petitioner, after joining the service, received a notice dated 3.3.2008 from the Commissioner, Department of Education (Secondary), Government of Rajasthan, Bikaner to explain as to why he be not treated disqualified for appointment as Lecturer School Education due to pendency of the criminal case pertaining to the offences punishable under Sections 498-A and 406 IPC. The petitioner submitted a detailed explanation on 25.3.2008 to the Commissioner, however, apprehending 2 his termination from service he preferred the instant petition for writ claiming the reliefs as follows:- (i) the impugned notice dated 3.3.2008 (Annexure P/7) and proceedings pursuant thereto including any other order passed to this affect by the respondents may kindly be quashed and set aside; (ii) the respondents may kindly be restrained to take action on the facts and premises of the lodging the criminal case or on the identical set of facts under the rules of 1958 till the conclusion of trial of the criminal case pending against the petitioner; and (iii) impugned order dated 17.6.2008 (Annexure P/10) may kindly be declared incompetent, without jurisdiction and may be quashed and set aside and it may be given effect as if it was never passed.” In reply to the writ petition it is stated on behalf of the respondents that the Superintendent of Police, District Hanumangarh in its “character verification report” made a mention regarding pendency of the criminal case against the petitioner and, therefore, he is not a person of good character, as such he is not a person fit to be retained in service. It is also stated that the pendency of a criminal case 3 is a valid ground for initiating disciplinary action and to treat the employee disqualified to be employed in government service. Heard counsel for the parties. It is a fact admitted that the petitioner before getting employment submitted an affidavit to the respondents disclosing the fact that he is facing a criminal trial for the offences under Sections 498-A and 406 IPC. Despite knowledge the Rajasthan Public Service Commission as well as the Government of Rajasthan did not consider the petitioner disqualified for employment under Rajasthan Educational Service Rules, 1970 under which the post of Lecturer School Education is created and that was rightly done in view of the provisions of Rule 21 of the Rajasthan Educational Service Rules, 1970 (hereinafter referred to as “the Rules of 1970”), that reads as under:- “21.Disqualification for appointment.--(1) No male candidate who has more than one wife living shall be eligible for appointment to the service unless the appointing authority after being satisfied that there are special grounds for doing so, exempt any such candidate from the operation of this rule. (2)No female candidate who is married to a person having already a wife living shall be eligible for appointment to the service unless the appointing authority after being 4 satisfied that there are special ground for doing so, exempt any such female Candidate from the operation of this rule.” A person can be treated disqualified to be employed in a service created under the Rules of 1970 only for the reasons given under the rule referred above. Merely on the count that the petitioner is facing a trial for the offences under Sections 498-a and 406 IPC, it cannot be said that he was not qualified to be appointed as Lecturer School Education. In view of it, the notice given by the Commissioner, Department of Education (Secondary) to the petitioner to explain as to why he be not treated disqualified for appointment is apparently bad. The petition for writ, hence is allowed. The impugned notice dated 3.3.2008 (Annexure P/7) issued by the Commissioner, Department of Education (Secondary), Government of Rajasthan, Bikaner is quashed. If the respondents have taken any action in pursuant to the notice referred above, then the same also stands quashed. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.