CIVIL WRIT PETITION NO.6996 OF 2008 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: AUGUST 05, 2011 Pushpinder Kumar .....Petitioner VERSUS State of Haryana and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Varinder Singh Rana, Advocate, for the petitioner. Mr. Harish Rathee, Sr.DAG, Haryana, for the State. **** RANJIT SINGH, J. The petitioner is a Balmiki by caste. He got himself registered with the Employment Exchange, Ambala. His name was included in the list of applicants for appointment to the post of Safai Karamchari. He received an intimation to appear for interview for a regular post of Sweeper in District Jail, Ambala. The Selection Committee recommended the name of the petitioner for appointment to the post of Sweeper on 5.10.2007. The petitioner was asked to fill up the form so as to have his character antecedents verified. It then CIVIL WRIT PETITION NO.6996 OF 2008 :{ 2 }: surfaced that an FIR had been registered against the petitioner on 11.9.2006 under Sections 148, 149, 323, 324, 506 IPC at Police Station, Ambala Sadar. Thereafter, Superintendent Jail, Ambala, sought an opinion of District Attorney if the petitioner could be given appointment. The District Attorney had opined that the petitioner had not been convicted by any Court of law and hence, this could not be considered as a disqualification. The copy of the opinion given by District Attorney has been placed on record as Annexure P-5. Still, Superintendent Jail, Ambala, informed the petitioner through letter dated 19.3.2008 that he can not appoint the petitioner as a Sweeper due to the FIR registered against him. Against this action of the respondents, the petitioner has approached this Court, pleading that this order, cancelling his appointment after due selection is illegal, arbitrary, unjust, unfair and unconstitutional. Notice of motion was issued and reply has been filed. It is stated that action to fill up 22 vacant posts in Central Jail, Ambala, through concerned Employment Exchange, was initiated and candidates were interviewed on 24.7.2007 by the Selection Committee constituted by Superintendent Jail. It is admitted that the petitioner was selected by the Selection Committee and intimation in this regard was sent to him on 5.10.2007. An attestation form for character verification had also been enclosed therewith. The petitioner had submitted the character verification form in the office. In Column 12 (1A, 1B and 1C) of attestation form, the petitioner was required to disclose information about his having been arrested, about his prosecution or if he had ever been kept CIVIL WRIT PETITION NO.6996 OF 2008 :{ 3 }: under detention. Column No.12(1)(i), specifically required of the petitioner to mention if any case was pending against him in any Court of law at the time of his filing attestation form. As per the respondents, the petitioner had replied `No' to these questions in the form, thus, stating that he was never arrested, prosecuted or detained and that no case was pending against him. The District Magistrate, Ambala, on the other hand, received a report from the Superintendent of Police, Ambala, that one FIR referred to above, was registered against the petitioner and he was facing trial for the same. Alleging that the petitioner had concealed material information and had furnished false information, it is urged that he has rendered himself disqualified and unfit for employment under the Government. It is stated that a person who is detained, arrested, prosecuted, bound down, convicted etc. would be deemed to have suppressed information if this is not so disclosed in the relevant columns. As per the respondents, services of such persons is liable to be terminated. Accordingly, the prayer made in the petition is opposed. The case came up for hearing on 3.1.2011. After hearing the submissions made by respective counsel and noticing the fact that the petitioner had, by that time, been acquitted of the criminal charges, the Court passed a detailed order requiring the State counsel to have instructions if the petitioner can now be considered for being appointed as Sweeper. It was noticed in the order that offer of appointment to the petitioner, who was duly selected, was required to be considered in the background that even if the petitioner had CIVIL WRIT PETITION NO.6996 OF 2008 :{ 4 }: given this information in the attestation form, it may not have been possible for the respondents to deny him appointment as the offences for which the petitioner was being prosecuted, were not involving moral turpitude. Even as per the Government instructions, appointment could not have been denied to the petitioner on this basis. The order passed on 3.1.2011 is as under:- “The petitioner was selected as Safai Karamchari for appointment in the Jail Department. He, however, was not the appointment on the ground that upon verification it was found that he is involved in a criminal case registered against him in FIR No. 168 dated 11.09.2006 under Sections 148/149/323/324 and 506 at Police Station Sadar Ambala. It was clearly mention(ed) in the order, Annexure P-6, that the petitioner will not be appointed as Safai Karamchari, in view of the pendency of the case. In the reply, however, the stand taken is that the petitioner had mislead by filing the Attestation Form of Character verification by withholding the information about his involvement in a criminal case. It is furnishing of false information or suppression of any factual information in the Attestation Form which is being taken as disqualification to render the petitioner unfit for employment under the Government. The stand taken in the written statement is not consonance with the reason given in the impugned order. Taking into account the stand taken in the reply, the writ petition was ordered to CIVIL WRIT PETITION NO.6996 OF 2008 :{ 5 }: be admitted. Application has now been filed that the petitioner has been acquitted of the criminal offence and, accordingly, he prays that the petitioner can now be offered appointment as the infirmity which led to denial of appointment now stands removed. Mr. Rathee, however, will dispute this fact and would contend that the petitioner was not given appointment primarily because of providing misleading information. Once the petitioner has been acquitted of the criminal charge the infirmity for appointment would stand removed. Mr. Rathee may have instructions in the light of this factual position, whether the petitioner can now be offered appointment since he was duly selected. This aspect is required to be considered in the background that even if the petitioner had given this information in the Attestation Forum, it may not have been possible for the respondents to deny appointment, in view of the fact that the offences for which the petitioner was being prosecuted, were not involving moral turpitude and thus denial of appointment in view of the Government instructions may not have been possible. Adjourned to 16.02.2011.” On 16.2.2011, Mr.Rathee had placed on record an affidavit, which was accepted. Mr.Rathee submits that the respondents are not willing to appoint the petitioner as jail is a CIVIL WRIT PETITION NO.6996 OF 2008 :{ 6 }: sensitive place where person like the petitioner, who is involved in a criminal case, should not be fit for appointment. Let ussee what duty, the petitioner has to perform in jail. He is to clean and sweep the premises. While pursuing the submissions on these lines, the State counsel is completely ignoring the nature of offences for which the petitioner has faced trial and has been acquitted. Main charges were under Sections 323 and 324 IPC. It is not even urged that the offences are such which are involving moral turpitude. This apart, even the acquittal is given complete go-bye while insisting on these submissions. The person may be involved in a criminal case but if he is acquitted by a proper trial, the same is a significant aspect, which can not be ignored. The petitioner was denied appointment merely due to pendency of criminal case for the offences, which were not involving moral turpitude. Counsel for the petitioner is justified in referring to the view expressed by this Court in Dinesh Kumar Vs. State of Haryana and others, 2006(4) S.C.T. 429, which is annexed with the petition. The Division Bench of this Court has clearly held that mere registration of a criminal case is no ground for disqualifying a candidate for appointment. It is also observed that non-mention of such fact does not amount to concealment of any fact. It is further noticed that termination because of non-disclosure of registration of a criminal case can not be taken as a ground to deny appointment. I have also perused the original attestation form, a copy of which is annexed with the petition. The petitioner has answered `No' against Column 12 (1)(a) where he was asked to disclose that if CIVIL WRIT PETITION NO.6996 OF 2008 :{ 7 }: he was ever arrested. So is his answer against the columns where he was asked to respond if he was ever prosecuted or was kept under any detention. As per reply to Column 12(1)(i), the petitioner has answered `No' in response to a question about any case pending against him in the Court of law at the time of filling attestation form. It is not clear if the petitioner was arrested or detained. So his answers can not be termed as wrong. No doubt, the petitioner has provided wrong or misleading information against the columns requiring him to state if he is or had faced prosecution. As was noticed in the order dated 3.1.2011 and in that background, the respondents were asked to consider the same in the light of the Government instructions, which may make the petitioner entitled to an appointment. It was then noticed that even if the petitioner had disclosed this information, it may not have been possible to deny him appointment merely because of pendency of a criminal case. That was even the legal advice given to the Superintendent of Jail by District Attorney. The instructions of the Government can be referred in this regard. The offences alleged against the petitioner are not of any serious nature. Sections 323, 324 IPC are offences in which one can some how get entangled. The acquittal ultimately would show that this case has certainly not been established against the petitioner. Should a person, in such circumstances, be put to prejudice for rest of his life? Ultimate effect is on his livelihood and so on his life and perhaps that of his family. The petitioner is seeking an appointment as a Sweeper. What good would be this acquittal to the petitioner, if the case is to haunt him for the rest of his life. If the CIVIL WRIT PETITION NO.6996 OF 2008 :{ 8 }: Government instructions are minutely analysed, then even conviction of such like offences may not have rendered the petitioner unfit for employment. In fact, similar instructions issued by D.G.P have been considered by this Court in Civil Writ Petition No.2928 of 2011 (Phool Kumar Vs. State of Haryana and others), decided on 6.7.2011. Relevant observations are as under:- “After examining the matter, Director General has clarified that candidates, who were involved in criminal cases and stand acquitted at the time of declaration of selection may be considered for appointment as constable even if they had not disclosed the fact of their facing trial or the acquittal in column No.12. The instructions further provides that those candidates who have faced charges for offences involving moral turpitude but get acquitted on technical ground or on account of giving benefit of doubt may not be considered for appointment as constable. It is further stated that all cases of acquittal of charges involving moral turpitude should be minutely examined after careful appraisal of the judgments and such candidates who have been acquitted honourably may, however, be considered for appointment Constable. This later part of the instructions which is relied upon by Mr. Nehra to state that those candidates who have faced charges of moral turpitude but are acquitted merely on a technical ground or on account of giving benefit of doubt, are to be differently considered for appointment to the CIVIL WRIT PETITION NO.6996 OF 2008 :{ 9 }: post of Constable.” After analysing and examining the affect of these instructions, the Court has held the petitioner entitled and eligible for appointment as Constable. Relevant observations are:- “The instructions issued by the state of Haryana clearly make a provision for appointment of a person as a Constable even in those cases where one is acquitted of offence, involving moral turpitude. The acquittal in such like cases has to be viewed and if it is found to be a honourable acquittal and then appointment of such persons can be made. Though in the present case, the Trial court had acquitted the petitioner by giving him a benefit of doubt, but that doubt was on account of lack of evidence. Once the allegation which was against the petitioner could not be established by evidence, it cannot be said that the acquittal would be on some technical ground.” Reference here can be made to Commissioner of Police and others Versus Sandeep Kumar, 2011 (2) RSJ 502. Here a candidate was also involved in a criminal case under Sections 325/34 IPC. His candidature was cancelled because of the false statement made by him in the application form. The reason for which the candidate did not disclose this fact was that he had been acquitted later on the basis of a compromise. This has happened prior to his applying for the post. The respondents in this case had pleaded that the candidate should have disclosed the fact of his CIVIL WRIT PETITION NO.6996 OF 2008 :{ 10 }: involvement in the criminal case even if he had been acquitted. This contention was repelled. The order of the High Court impugned before the Supreme Court holding the cancellation of candidature to be illegal, was upheld. Some very pertinent observations were made, which are to the effect that the youth often commit indiscretions, which are often condoned. The offence which was committed by the respondent at the age of 20 years was not such an offence like murder, dacoity or rape and hence a more lenient view should be taken in the matter. It is observed that modern approach should be to reform a person instead of branding him as a criminal all his life. Similar consideration would arise in the present case as well. Should the petitioner be punished for all times to come only because he provided some information in one odd columns, which may, to an extent, was not correct or misleading? I think the petitioner is being made to suffer too much as compared to the misconduct, if any, on his part. This aspect is also required to be seen in the light of the fact that as per the Government instructions even a person can not be denied appointment merely on account of pendency of criminal case. A similar issue was considered by this Court in CWP No.15109 of 2008 (Tarun Kumar Versus State of Haryana and others) decided on 2.9.2009. While considering same very instructions this Court observed as under:- “A perusal of instructions dated 2.7.2007 provides that cases of acquittal and charges of moral turpitude are to be minutely examined and after careful appraisal of the CIVIL WRIT PETITION NO.6996 OF 2008 :{ 11 }: judgment those who are acquitted honourably are to be considered for appointment as constables. If the instructions are allowed to operate in this manner, as pleaded by the respondents, the difference between acquittal and conviction will loose significance. What good would be this acquittal to the petitioner if the allegations are still to be held against him. Once a person earned an acquittal after trial, it would not be fair to deny him appointment on the ground that he was accused of having committed an offence involving moral turpitude. He may be alleged to have committed this offence but it is proved that he has not been guilty of commission of any such offence. Upon acquittal, an honour of such a person accused of offence would stand vindicated. Can he still be put to disadvantage and the infirmity. Unfair operation of this approach and that of the instructions can easily be demonstrated by noticing that if such a person had been in the service, his conviction may have led to his dismissal and after acquittal, he was entitled to seek reinstatement, as per the Government instructions.” In fact, this issue had earlier been considered by thi Court in another writ petition No.2124 of 2009 (Parvesh Versus State of Haryana and others) decided on 20.8.2009, where it was observed as under:- “Is this action fair? What is then a difference between conviction and acquittal if the effect is to be the same. As CIVIL WRIT PETITION NO.6996 OF 2008 :{ 12 }: per instructions dated 3.2.2009 (Annexure R-1), the petitioner would appear eligible for appointment but still is struggling to get one. These instructions have been specifically issued for recruitment of 1940 male constables as can be seen from the subject heading of the instructions. As per the said instructions, if a candidate was acquitted before the date of appearance of the advertisement i.e. 23.8.2007, he is to be given an appointment if he fulfills all other mandatory requirements. Since the petitioner in this case was acquitted prior to issuance of this advertisement, he is eligible for appointment as per the instructions, dated 3.2.2009, Annexure R-1. The other part of the instructions in fact may not be attracted to the case of the petitioner. It appears that the petitioner has been denied appointment by invoking instructions issued by the D.G.P., dated 13.11.2007, which provides that such candidates who are acquitted on technical grounds in offences involving moral turpitude are not entitled for allotment of any constabulary number.” Taking totality of the circumstances in view, I find that action of the respondents in not offering appointment to the petitioner after his due selection is not free from arbitrariness and is unfair and unreasonable. The writ petition is allowed. The respondents are directed to offer appointment to the petitioner on the post of Sweeper within a CIVIL WRIT PETITION NO.6996 OF 2008 :{ 13 }: period of two weeks from today. The petitioner is held entitled to claim all consequential benefits from the date he was offered the appointment. His seniority shall accordingly reckon. He shall also be entitled to 50% of back wages on the ground that he has been wrongly denied appointment by the respondents. There shall, however, be no order as to costs. August 05, 2011 (RANJIT SINGH ) khurmi JUDGE