1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2489/1997 Yogendra Kumar Sharma vs. State & Ors. Date of order : 30/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Dharamveer Tholia for the petitioner. Shri B.S. Rajawat, Deputy Government Counsel for the respondent. ****** REPORTABLE This writ petition has been filed by the petitioner with the prayer that the respondents be directed to consider the case of the petitioner for appointment on the post of Constable with all the consequential benefits. Shri Dharamveer Tholia, learned counsel for the petitioner has argued that the respondents advertised 69 posts of Constable in Dholpur District. Petitioner has also applied in response thereto. He appeared in interview test on 8.9.1996 and physical test which was conducted from 23rd to 26th October, 1996. Result of the selection test was declared on 26.10.1996. Petitioner was subjected to medical examination conducted on 7.11.1996 at Police Line, Dholpur and he 2 was declared successful. In the verification that was conducted by the respondents, although the character of the petitioner was recorded as good but it was noted that a challan was filed against him in FIR No.221/1995 at Police Station Sirmathura for the offences under Section 147, 323 and 379 IPC in the Court of Civil Judge (Senior Division) and Additional Chief Judicial Magistrate, Bari, in which case the petitioner was ultimately acquitted by order of that Court dated 15.11.1996. Certified copy of the order has been placed on record. Learned counsel submitted that the petitioner was not charged of any offence involving moral turpitude and in any case he was falsely implicated in the matter and so he was acquitted by the learned trial court, therefore, for this solitary reason, the petitioner could not be deprived of his right to appointment for which he was otherwise qualified. Learned counsel for the petitioner further submitted that the respondents have in identical matters granted appointment on 3 the post of Constable even when the applicants did not declare about their involvement in the criminal cases, but were subsequently acquitted. The petitioner has given the examples of Rameshwar Choudhary posted as Constable in 11th batallion of RAC, Omkar Singh against whom FIR No.453/1993 was registered in Police Station Bari for offence under Section 147, 148, 307 IPC read with Section 149, 325, 325/149 and 323/149 IPC and he did not disclose this fact in the verification roll at the time of applying, yet he was given appointment. This Omkar Singh had one more case registered against him in Police Station Bari for offence under Sections 323, 341, 342 IPC read with Section 3 of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 in which challan was filed against him and the matter was pending trial at the time of submission of form. One Mukesh Kumar Rawat was also given appointment as Constable (Driver) despite pendency of the criminal case against him vide FIR No.59/1997 dated 17.3.1997 with Police Station Saipau for 4 offence under Section 4/5 and 6 of the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992, which criminal case was pending against him at the time of filing of application. Similar was the case of Hakim Singh, Narendra Singh, and Ram Naresh Tyagi all of whom were given appointment when they had criminal cases pending against them at the time of submission of application form. Copies of their appointment orders and the copies of the judgement passed by the criminal court in the case of Omkar Singhi have been placed on record. Learned counsel has submitted that the Commandant, VIth Batallion, Dholpur issued an order on 10.1.2003, specially with respect to 4 such persons referred to above, which is on record. Superintendent of Police again issued an order on 20.2.2003 with respect to Narendra Singh and Ram Naresh Tyagi. Petitioner has placed on record letter dated 18.12.2002 written by Deputy Secretary to the Government in its department of Home to Inspector General of Police, Rajasthan Jaipur giving reference to 5 S.B. Civil Writ Petition No.6076/1994, Sriram vs. State & Ors. decided on 27.5.05, raising the same grievance. In that letter, mention is made of the earlier order of the Government dated 20.11.2002 wherein the Director General of Police was asked to give appointment to the similarly circumstanced persons. Learned counsel submitted that the Inspector General of Police, has cited recently issued Circular on 22.10.2009, copy of which is taken on record. In the said Circular, it has been clarified that action be taken to give appointment to the applicants on the post of Constable / Constable (Driver) / Constable (Band) for selection that was held from 2005-06 to 2008-09 in cases where appointments were withheld on account of the reason that the applicants did not disclose the fact with regard to registration of criminal cases against them, if in such cases they are ultimately acquitted or by reason of compromise or otherwise or where such criminal cases were withdrawn. Learned counsel in support of his argument also 6 cited the division bench judgement of this Court in D.B. Civil Special Appeal No.527/1998, Rakesh Kumar Yadav vs. State & Ors. decided on 31.1.2003 and judgement of coordinate bench of this Court in D.B. Civil Writ Petition No.6076/1994, Sriram Vs. State & Ors. decided on 27.5.2005. Shri B.S. Rajawat, learned Deputy Government Counsel opposed the writ petition and submitted that there was a specific column no.17 in verification form which was filled by the petitioner and thereby he made the false declaration that no criminal offence is registered against him. In that column, the petitioner was required to disclose whether he has any criminal case was registered against him or punished with imprisonment. Since the petitioner did not disclose this information, he has dis- entitled himself of appointment. This fact came into light only when verification was made. Learned counsel submitted that appointments in the case of Rajveer Singh, Narendra Singh and Ram Naresh Tyagi were given pursuant to the order of the 7 Government dated 20.11.2002 vide order dated 20.2.2003 and pursuant to the letter of the PHQ dated 22.11.2002. Copies of those two orders have been placed on record. All these facts have been stated by the respondents in their replica to the rejoinder filed by the petitioner. Learned counsel submitted that there is no case of discrimination. Learned counsel submitted that the above referred to two orders were issued by the Government. Upon hearing the learned counsel for the parties and perusing material on record, I find that the Government has in matters of this nature rather acted in a very strange manner. When it comes to the Court, they would resist the prayer for appointment citing the reason of concealment of information with regard to lodgment of criminal case, even if eventually the incumbent was acquitted in such criminal case either before filling in the application form or thereafter. However, when the Government itself takes the decision, it has been applying double standards to similarly situated persons. One 8 gets the impression that the officials in the government have been issuing such orders to selectively help certain persons and dis- favour the others, who even though may be exactly similarly situated but are not that fortunate once. There is no reason why large number of persons cited by the petitioner who also had criminal cases registered against them and did not disclose this fact in their verification form were given the latitude by reason of the fact that they were acquitted in such criminal cases by reason of compromise or otherwise, how could the respondents not accord similar treatment to the petitioner and surprisingly the respondents have filed replica in response to the rejoinder filed by the petitioner wherein he has given all these examples, yet they have not brought to the notice of the Court, the recent Circular issued by the Police Headquarters on 22.10.2009 on the same subject matter, which the petitioner has produced to show that the respondents have divided such cases into 10 categories 9 and cases falling in categories nos.1, 2, 3, 4 and 10 namely those against whom criminal cases were registered after last date of submission of application form or against whom the final report was given or those who were ultimately acquitted by the criminal court or those against whom criminal case were dropped on account of compromise and finally against whom the criminal cases were withdrawn by the government, would be entitled to appointment, despite non discloser of such a fact by them in their application form. A division bench of this Court in Rakesh Kumar Yadav, supra had taken note of such a discriminatory treatment meted by the respondent-State to the appellant in that case whose services were terminated on account of the fact that he suppressed the information about registration of criminal case against him for offence under Section 420 IPC, in which he was ultimately acquitted by the criminal court. The division bench set aside the order of termination by its judgement dated 10 31.1.2003, but since the termination took place way back in the year 1992, held the appellant entitled to only notional benefits for the intervening period. In the circumstances, the present petitioner has made out a case for issue of writ of mandamus. The present writ petition is therefore allowed with direction to the respondents to consider the case of the petitioner for appointment and grant him appointment within a period of three months from the date copy of this order is produced before them. Although the appointment of the petitioner would relate back to the selection held in the year 1996 and the petitioner would be entitled to the seniority as per his placement of merit in that selection. However, he would be only entitled to notional benefits for the intervening period. Compliance of the judgement be made within three months from the date copy of this judgement is produced before the respondents. (MOHAMMAD RAFIQ), J. 11 RS/