RAJASTHAN HIGH COURT, JODHPUR versus AKASHDEEP MORYA & ANR.
[2021] 10 S.C.R. 723, Supreme Court of India, 2021
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2021] 10 S.C.R. 723
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RAJASTHAN HIGH COURT, JODHPUR
v.
AKASHDEEP MORYA & ANR.
(Civil Appeal No. 5733 of 2021)
SEPTEMBER 16, 2021
[K. M. JOSEPH AND
PAMIDIGHANTAM SRI NARASIMHA, JJ.]
Service Law – Judicial Service – Involvement in criminal case
– Appointment to the post of Civil Judge (Junior Division) –
Respondent was found not deserving to be appointed for the said
post in view of his antecedents – Held: Post of a judicial officer at
any level of the hierarchy involves applying the most exacting
standards – In the absence of an honourable acquittal, the alleged
involvement of an officer in criminal cases may undermine public
faith in the system – In the present case, in two cases, the respondent
was charge-sheeted for offences u/s.324, IPC also – Cases ended
in acquittal based substantially on a compromise, the witnesses had
turned hostile – Respondent’s acquittal was not honourable –
Decision taken by the appellant through its committee should not
have been interfered with by the High Court – Impugned judgment
set aside – Penal Code – ss.34, 148, 149, 323, 324, 341, 504 –
Judicial review.
Service Law – Involvement in criminal case – Principles
enunciated in Avtar Singh v. Union of India and Others reported as
[2016] 7 SCR 445 at paragraphs 38.4, 38.4.1, 38.4.2 and 38.4.3 –
Held: Aforesaid paragraphs would apply to cases involving
suppression/false information of involvement in a criminal case
where conviction or acquittal is already recorded before
the filing
of the application/verification and such fact, later came to the
knowledge of the employer – Paragraph 38.5 will be apposite in a
case where there is no suppression/false information relating to
involvement of a criminal case by a candidate.
Judiciary – Judicial Service – Subordinate Judiciary –
Judicial Officers – Nature of post – Suitability of candidates –
Discussed – Service Law.
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SUPREME COURT REPORTS
[2021] 10 S.C.R.
Allowing the appeal, the Court
HELD : 1. This is not a case which involves any suppression
of material by the first respondent as a candidate. What is held in
paragraph 38.4.3 in Avtar Singh, is actually meant to apply to cases
which involve suppression or false information of involvement in
a criminal case where conviction or acquittal has already been
recorded before the filing of the application/verification and such
fact, later came to the knowledge of the employer. It is in such a
situation that paragraphs 38.4.1, 38.4.2 and 38.4.3 would apply.
In fact, paragraph 38.5 is what would be actually be apposite in a
case where there is no suppression or false information relating
to involvement of a criminal case by a candidate. It would,
therefore, be a case which would involve applying paragraph 38.5
read with paragraph 30. [Paras 18-21][736-A, G-H; 737-A-B,
E-F]
Avtar Singh v. Union of India and Others (2016) 8 SCC
471 : [2016] 7 SCR 445 – relied on.
2. The post of a judicial officer at any level of the hierarchy
involves applying the most exacting standards. The incumbent
of a judicial post discharges one of the most important functions
of the State, that is, the resolution of disputes involving the people
of the country. Even in the advertisement, there is a reference to
the requirement of the candidate being possessed of character.
Character cannot be understood as being limited to a mere
certifying of the
character by the competent authority. The High
Court is involved with the appointment of judicial officers and
rightly so, under the scheme of the Constitution. Though the
order of appointment is issued by the State, the involvement of
the High Court in the appointment of judicial officers essentially
flows from its position in the constitutional scheme. The High
Court is duty bound to recommend the most suitable persons to
occupy the post. The post of a Civil Judge or a Magistrate is of
the highest importance notwithstanding the fact that in the
pyramidical structure of the judiciary, the Civil Judge or the
Magistrate is at the lowest rung. All the litigation which is
instituted in the country, the highest volume of the same takes
place at the lowest level. Not many of the cases finally reach the
highest Court. It is through the Civil Judge (Junior Division)/
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Magistrate that the common man has the greatest interface. Most
importantly, the perception of the common man about the
credentials and background of the judicial officer is vital. In the
absence of a honourable acquittal, the alleged involvement of an
officer in criminal cases may undermine public faith in the system.
[Para 22][737-F-H; 738-A-D]
3.1 In two of the FIRs which were lodged, final reports were
filed. The matter progressed further and the investigating
authorities filed chargesheets. However, it is true that the first
respondent stood acquitted. The acquittal is certainly not on the
basis that there was no evidence whatsoever against the first
respondent. This Court is unable to describe the acquittal as
honourable. The last of the FIRs which was FIR No. 98/2012.
The chargesheet apparently sought to make out a case under
Sections 323, 341, 324 and Section 34 of the IPC. The allegation
against the first respondent was one of the inflicting a gandasa
blow on the head of the victim. The first of the case, that is FIR
No. 81/99, where also chargesheet was filed against the first
respondent related to offences under Sections 341, 323, 148, 149,
504 and 324 IPC. Therein, the allegation was that the first
respondent had inflicted a sword blow on the hand of the victim.
Section 324 IPC is a non-bailable offence. Thus in two cases, he
was chargesheeted for offences under Section 324 IPC also.
[Paras 23-25][738-D-H; 739-A]
3.2 The first respondent was
apparently nearly 30 years of
age when the incident relating to FIR No. 98/12 allegedly took
place. It is not inapposite in this context to notice that the
advertisement for the post was issued in the very next year viz.,
in the year 2013. Bearing in mind the age, the nature of the
offences in which the first respondent was implicated and the two
FIRs, at any rate, in which the matter progressed from the stage
of the FIR to the stage of chargesheeet and the manner in which
the case ended viz., acquittal based substantially on a compromise
and also where the witnesses turned hostile and also the nature
of the post for which the first respondent was a candidate, the
matter should have been approached differently by the High Court.
The decision taken by the appellant through its committee after
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
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bearing in mind the decision in Avatar Singh though it has referred
only to paragraph 38.1.4, but in the body of which decision, it has
borne in mind the principles, which would be apposite, should
not have been interfered with by the High Court. In the facts of
this case, interference with the decision of the appellant was not
warranted. The impugned judgment is set aside. [Paras 27,
30][740-B-C, E-H]
Commissioner of Police v. Raj Kumar (2021) 9 SCALE
713; Commissioner of Police and Others v. Sandeep
Kumar (2011) 4 SCC 644 : [2011] 3 SCR 964 – relied
on.
Mohammed Imran v. State of Maharashtra and Ors.
(2019) 17 696 : 2018 (10) JT 15; State of Madhya
Pradesh vs. Abhijit Singh Pawar (2018) 18 SCC 733 :
[2018] 13 SCR 1133 – referred to.
Case Law Reference
[2016] 7 SCR 445
relied on
Para 11
[2011] 3 SCR 964
relied on
Para 14
[2018] 13 SCR 1133
referred to
Para 16
CIVIL APPELLATE JURISDICTION: Civil Appeal No.5733 of
2021.
From the Judgment and Order dated 21.03.2018 of the High Court
of Judicature for Rajasthan at Jodhpur in D.B. Civil Writ Petition
No.12290 of 2017.
Ms. Meenakshi Arora, Sr. Adv., Mukul Kumar, Advs. for the
Appellant.
Gp. Capt. Karan Singh Bhati, Dashrath Singh, Rajesh Kumar,
Nimesh Suthar, Aditya Chouhan, Ms. Gunjan Negi, Advs. for the
Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Leave granted.
2. By the impugned judgment, the High Court has allowed the
writ petition
filed by the first respondent against the decision of the
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appellant by which it found that the first respondent did not deserve to
be appointed to the Civil Judges’ cadre.
3. The appellant issued a notification dated 25.11.2013 inviting
applications for filling up the post of Civil Judge (Junior Division). The
respondent applied pursuant to the same. It would appear that there was
no requirement in the application for indicating about involvement of the
candidate in any criminal case. However, when the matter was taken
for verification, the respondent volunteered with the information with
regard to his being implicated in certain criminal cases. We may notice
the details of the cases which are as follows:
4. On 06.07.2015, the Committee of the High court tasked by the
Chief Justice to consider the case of 12 candidates including the 1st
respondent resolved to not recommend the case of the 1st respondent.
The Chief Justice referred the matter back to the Committee regarding
the 12 candidates. On 29.07.2015, the Committee again did not
recommend the case of the 1st respondent. The Full Court on 08.08.2015
resolved to request the Committee to reexamine the matter. Again on
26.08.2015, the Committee took note of the antecedents of the 1st
respondent and resolved not to recommend the case of the 1st respondent.
This was accepted by the Full Court.
5. Thereafter, a writ petition came to be filed by the 1strespondent
as Writ Petition No. 13192/2015 which resulted in the following order:
“It is submitted by learned
counsel for the appellant that in
view of the judgment of Hon’ble Supreme Court in case of Avtar
Singh vs Union of India &Ors. reported in (2016) 8 SCC 471, the
petitioner is entitled for the relief claimed in this petition.
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
[K. M. JOSEPH, J.]
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After perusing the aforesaid judgment, the instant writ petition
is hereby disposed of with liberty to the petitioner to file
representation alongwith the copy of the judgment passed in Avtar
Singh’s case (supra) before the Registrar, Rajasthan High Court,
Jodhpur within two weeks from the date of receiving certified
copy of the order. Upon filing such representation, it is expected
that the said representation will be decided in the light of the
adjudication made by the Hon’ble Supreme Court in the case of
Avtar Singh (supra) and the facts narrated in the representation,
on merits within one month from the date of receiving
representation.”
6. This resulted in the meeting of the Lower Judiciary Committee
of the appellant to consider the matter again and the following is the
decision:
“In compliance of order dated 08.03.2017 of Hon’ble Rajasthan
High Court passed in D.B.C.W.P. No. 13192/2015, Akash Deep
Morya Vs. Rajasthan High Court, the representation of Shri Akash
Deep Morya was considered in the light of the adjudication made
by Hon’ble Supreme Court in Avtar Singh’s case.
In Avtar Singh’s case it has been held by the Hon’ble Supreme
Court, inter-alia as under: -
“if acquittal had already been recorded in a case involving moral
turpitude of offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider
all
relevant facts available as to antecedents, and may take
appropriate decision as to the continuance of the employee.”
The committee noted that four different FIRs were registered
against Shri Akash Deep Morya from the year 1999-2012, details
of which are as under:-
1. In FIR No. 81/1999, charge sheet was filed against Shri Akash
Deep Morya and others for the offences u/s 341, 323, 148, 149,
504 and 324 IPC in which the allegation against Shri Morya is to
inflict Sword blow on the hand of victim.
On the basis of compromise, Shri Morya was acquitted from
the charges for the offence u/s 341, 323, 324 and 504 IPC and for
the remaining offences, he was acquitted for want of evidence.
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2. In FIR No. 75/2011 u/s 420, 406 and 120B IPC, police submitted
FR which was accepted on the ground that the parties have
compromised the matter and the complainant does not want to
proceed further.
3. In FIR No. 106/2011 u/s 452, 323, 34 IPC police submitted FR
on the basis of compromise with the finding that offence under
Section 504 IPC only is made out which is non-cognizable. FR
was accepted by the Court on the ground that the parties have
compromised the matter and the complainant does not want to
proceed further.
4. In FIR No. 98/2012, charge sheet was filed against Shri Morya
and others for the offences u/s 323, 341, 324 and 34 IPC in which
allegation against Shri Morya was that he inflicted Gandasi blow
on the head of one victim.
Shri Morya was acquitted for the offence u/s 323, 341 IPC on
the basis of compromise and was acquitted for the offence u/s
324 IPC for want of evidence.
As per the pronouncement of Hon’ble Supreme Court in Avtar
Singh’s case even if acquittal is recorded in a case involving
serious nature, the employer may consider relevant facts as to
antecedent.
In the instant matter, four criminal cases have been registered
against Shri Morya one after the other. Offences in all the above
cases were serious in nature and acquittals were not clean. In
adjudging his candidature, comparison with other candidates is
not relevant. Therefore, taking note of all the relevant aspects the
committee is of the view that Shri Morya does not
deserve
appointment on the post of Civil Judge Cadre and his representation
is liable to be rejected.
RESOLVED to reject the representation of Shri Akash Deep
Morya.
7. Following the same, on 05.05.2017, communication was
addressed by the Registrar General of the appellant to the respondent
indicating that the respondent did not deserve the appointment on the
post of Civil Judge cadre and the representation stood rejected. This
resulted in the filing of the writ petition.
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
[K. M. JOSEPH, J.]
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8. The writ petition filed by the respondent has been allowed by
the High Court. The High Court after wading through the cases, took
the view that:
“Upon appreciation of entire facts and documentary evidence on
record, there is no doubt that out of four cases, in two cases
compromise was arrived at between the parties because offences
were for simple nature, for the dispute of water supply upon
agricultural land, in which ultimately compromise arrived between
the parties and the petitioner alongwith his brother was acquitted
and complainant was also acquitted in one of the case in the cross
FIR registered upon complaint of accused party. Admittedly, no
criminal case pending against the petitioner when online application
form was submitted by him for recruitment upon the post in
question. In case of Avtar Singh (supra), the Hon’ble Supreme
Court held that whole idea of verification of character and
antecedents is that the person suitable for the post should be
appointed and candidate should not have antecedents of such a
serious nature which may adjudge him unsuitable for the post.
The verification of antecedents is necessary to find out fitness of
the candidates. The case in hand there is no allegation of
suppression of information. More so, it is a case in which petitioner
has categorically explain that out of four cases, two cases were
found to be false after investigation, therefore, FR was submitted
and accepted
by the court. In two other cases offences were of
simple injuries in which compromise arrived between the parties
because those offences were compoundable as per Cr.P.C.,
therefore, petitioner and other persons were acquitted by the Court.
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Upon perusal of the aforesaid decision of the committee it emerges
from the consideration that all the four criminal cases registered
against the petitioner were considered and committee opined that
offences in all the cases were serious in nature and acquittals
were not clean, therefore, in adjudging the candidature, comparison
with the other candidates is not relevant as such taking note of all
the relevant aspects, the committee held that Sh. Morya does not
deserve appointment on the post of Civil Judge Cadre and his
representation is liable to be rejected. In our humble opinion the
committee has failed to consider the case of the petitioner in the
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spirit of verdict given by the Hon’ble Supreme Court in the case
of Avtar Singh because as per committee offences in all the cases
were serious in nature and acquittals were not clean, but this
finding is not perverse because it is obvious from the documentary
evidenced that out of four cases in two cases after investigation,
FR was submitted by the police, which is accepted by the
competent court and further it is not in dispute that in FIR no. 81
at Police Station, Kesharisinghpur charge sheet was filed against
the petitioner and other persons for offence under Section 341,
323, 148, 149, 504 and 324 IPC and for the same incident in FIR
no. 80 registered against the complainant upon complaint of
accused party charge-sheet was filed, but in both the cases,
compromise arrived between the parties and the same was
accepted by the court because offences were not of serious in
nature, which is evident from the sections itself.
In fourth case which is registered upon FIR no. 98, the charge-
sheet was filed against the petitioner and his brother for offences
under Sections 323, 341, 324 and 34 IPC. In the said case there
was allegation for simple injuries for the dispute arising out for
water supply turn in the agricultural field. All the offences were
compoundable and trible by the magistrate, therefore, compromise
was arrived between the neighbourers was accepted by the court.
In view of the above position of facts, it cannot be said that
petitioner was
involved in the case of serious nature as observed
by the committee.
As per verdict in the case of Avtar Singh (supra) though a discretion
is given to the employer to assess the suitability of the candidate
while considering the antecedents, but at the same time, a duty is
cast upon the employer not to crush the future of a candidate who
has succeeded in the competitive examination and come in merit
upon his performance. Admittedly, the petitioner belongs to SC
category which is weaker section of the society, against whom
two false cases were registered in which after investigation, police
gave opinion that no such incident took place and in other two
cases registered against him for the offence of simple injuries,
compromise was arrived between the parties and trial court
acquitted him on the basis of compromise, therefore, we are of
the opinion that decision of the committee is not in consonance
with the spirit of the judgment in the case of Avtar Singh (supra).
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
[K. M. JOSEPH, J.]
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9. Thereafter, the Court took the view that it is an important aspect
that the first respondent belonging to the Scheduled Caste category, which
is a weaker section of the society, appeared in the competitive
examination and succeeded in it on the basis of performance and was
recommended for appointment. But due to the registration of some cases
against him prior to the submission of the application, the appointment
has been denied. It is further found that in such type of cases, if
appointments will be denied casually, then nobody will trust upon the
judicial system. Therefore, it is the duty of the employer to apply its mind
to assess the suitability of the candidate objectively. It is further found
that it is beyond imagination that the employer will treat offences under
Section 323 and 324 IPC at par with other heinous offences and denial
of appointment was found unsustainable and also unconstitutional. It
was, accordingly, that the petition was allowed.
10. Heard Ms. Meenakshi Arora, learned senior counsel appearing
for the appellant, and Gp. Capt. Karan Singh Bhati, learned counsel
appearing on behalf of the first respondent.
11. Ms. Meenakshi Arora, learned senior counsel appearing for
the appellant, has pointed out that the order of the High Court is erroneous.
This is for the reason that what is involved is the power of the employer
to take a decision bearing in mind the relevant inputs in this case. She
drew our attention to the cases in question. She reminded us that the
Court is dealing with the case of appointment to a Judicial post. The
offences cannot be trivialized. There were four FIRs which were lodged
involving the first respondent. It is not as if the first respondent stood
acquitted honourably. The acquittal cannot be described as acquittal for
total want of evidence. On the other hand, in the first FIR the matter
came to be settled and witnesses turned hostile. The last of the FIRs
also is a case where a chargesheet was filed. The cases did involve
offences under Sections 323 and 324 IPC as charged by the investigating
agency and again acquittal flowed from a compromise and it was not as
a result of the Court appreciating the evidence and holding that there is
no evidence at all against the first respondent. She drew our attention, in
fact, to the decision of Avtar Singh v. Union of India and Others1:
“30. The employer is given ‘discretion’ to terminate or otherwise
to condone the omission. Even otherwise, once employer has the
1 (2016) 8 SCC 471
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power to take a decision when at the time of filling verification
form declarant has already been convicted/acquitted,in such a
case, it becomes obvious that all the facts and attending
circumstances,including impact of suppression or false information
are taken into consideration while adjudging suitability of an
incumbent for services in question. In case the employer come to
the conclusion that suppression is immaterial and even if facts
would have been disclosed would not have affected adversely
fitness of an incumbent, for reasons to be recorded, it has power
to condone the lapse. However,while doing so employer has to
act prudently on due consideration of nature of post and duties to
be rendered. For higher officials/higher posts, standard has to be
very high and even slightest false information or suppression may
by itself render a person unsuitable for the post. However same
standard cannot be applied to each and every post. In concluded
criminal cases, it has to be seen what has been suppressed is
material fact and would have rendered an incumbent unfit for
appointment. An employer would be justified in not appointing or
if appointed to terminate services of such incumbent on due
consideration of various aspects. Even if disclosure has been made
truthfully the employer has the right to consider fitness and while
doing so effect of conviction and background facts of case, nature
of offence etc. have to be considered. Even if acquittal has been
made, employer may consider nature of offence, whether acquittal
is honourableor giving benefit of doubt on technical reasons and
decline to appoint a person who is unfit ordubious character. In
case employer comes to conclusion that conviction or ground of
acquittal in criminal case would not affect the fitness for
employment incumbent may be appointed or continued in service.
(emphasis supplied)
12. She further pointed out that that this was not certainly a
decision of the appellant which should have been interfered with by the
High Court.
13. Per contra, Gp. Capt. Karan Singh Bhati, learned counsel for
the first respondent, pointed out that the first respondent belongs to the
Scheduled Caste community. He was falsely implicated in all these cases.
He also highlighted the fact that at a young age, persons may be more
prone to commit mistakes. The approach of the Court in such matters
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[K. M. JOSEPH, J.]
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should be a more liberal one. As long as the offences are not serious,
which is the case in the present case, in the facts of the case, the impugned
judgment is only to be supported. In this regard, he drew our attention to
a few decisions.
14. He drew our attention to the judgment in Mohammed Imran
v. State of Maharashtra and Ors.2 He pointed out that the said decision
also involved appointment to a judicial post and yet, he contended, that
this Court after noticing the facts, directed reconsideration of the decision
taken in the said case not to appoint the petitioner in the said case. He
would contend that principle of the said case would apply on all fours in
the facts of this case as well.
 He further drew our attention to the judgment in Commissioner
of Police and Others v. Sandeep Kumar3. Therein, the Court held:
“8. We respectfully agree with the Delhi High Court that the
cancellation of his candidature was illegal, but we wish to give
our own opinion in the matter. When the incident happened the
respondent must have been about 20 years of age. At that age
young people often commit indiscretions, and such indiscretions
can often be condoned. After all, youth will be youth. They are
not expected to behave in as mature a manner as older people.
Hence, our approach should be to condone minor indiscretions
made by young people rather than to brand them as criminals for
the rest of their lives.
12. It is true that
in the application form the respondent did not
mention that he was involved in a criminal case under Sections
325/34 IPC. Probably he did not mention this out of fear that if he
did so he would automatically be disqualified. At any event, it was
not such a serious offence like murder, dacoity or rape, and hence
a more lenient view should be taken in the matter.”
15. He contended that the dispute as far as the first FIR lodged
against the first respondent is concerned, was essentially a property
dispute. Regarding the second FIR which related to the offences under
Sections 420, 406 IPC, he would point out that it was essentially a civil
matter and it is just given a criminal colour. He reminds us that the said
case did not even go to trial. On the other hand, the investigating authority
2 (2019) 17 696
3 (2011) 4 SCC 644
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did not find merit in the contents of the FIR which culminated in lodging
of the final report. The same is the fate of the third FIR which did not
culminate in the lodging of the chargesheet and on the contrary, the case
did not see the light of the day and a final report was filed. The final
report was accepted and there was no protest and the matter ended.
Even in the last case, it is his contention that the case involved offence
under Section 323 IPC which can by no means, be described as a serious
offence justifying eliminating an eligible candidate belonging to a weaker
section of the society. In these matters, he would submit, the liberal spirit
which animated this Court which decided the case in Sandeep Kumar
(supra), should continue to guide this Court as well.
16. Ms. Meenakshi Arora, learned senior counsel, brought to our
notice that the decision of this Court reported in Mohammed Imran
(supra) has come to be noted and appreciated by a later judgment which
is reported in Abhijit Singh Pawar4. Ms. Meenakshi Arora, drew our
attention to paragraph 15:
“15. The reliance placed by Mr. Dave, learned Amicus Curiae on
the decision of this Court in Mohd. Imran v. State of Maharashtra
(Civil Appeal No.10571 of 2018) is not quite correct and said
decision cannot be of any assistance to the respondent. In para 5
of said decision, this Court had found that the only allegation against
the appellant therein was that he was travelling in an auto-rickshaw
which
was following the auto-rickshaw in which the prime accused,
who was charged under Section 376 IPC, was travelling with the
prosecutrix in question and that all the accused were acquitted as
the prosecutrix did not support the allegation. The decision in Mohd.
Imran v. State of Maharashtra (Civil Appeal No.10571 of 2018)thus
turned on individual facts and cannot in any way be said to have
departed from the line of decisions rendered by this Court in
Commr. of Police v. Mehar Singh (2013) 7 SCC 685, State of
M.P. v. Parvez Khan (2015) 2 SCC 591 and UT, Chandigarh
Admn. v. Pradeep Kumar (2018) 1 SCC 797.
17. No doubt, learned counsel for the first respondent did point
out that in the said case, the criminal case was pending against the
respondent therein when he applied. Compromise was entered into after
an affidavit disclosing such pendency was filed.
4 (2018) 18 SCC 733
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18. As we have noticed from our narrative, this is not a case
where the first respondent as a candidate suppressed facts about the
criminal cases against him as there was no requirement in the application
to disclose such details. On the other hand, it is on the showing of the
appellant itself a case where the material was unravelled at the time of
verification. Therefore, we may start by holding that this is not a case
which involves any suppression of material by the first respondent as a
candidate. We notice this aspect to put in perspective the principles which
have been enunciated by this Court in the decision in Avtar Singh (supra)
at paragraphs 38.4, 38.4.1, 38.4.2 and 38.4.3:
“38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or acquittal had
already been recorded before filling of the application/verification
form and such fact later comes to knowledge of employer, any of
the following recourses appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction had been
recorded, such as shouting slogans at young age or for a petty
offence which if disclosed would not have rendered an incumbent
unfit for post in question, the employer may, in its discretion, ignore
such suppression of fact or false information by condoning the
lapse.
38.4.2. Where conviction has been recorded in case which is not
trivial in nature, employer
may cancel candidature or terminate
services of the employee.
38.4.3. If acquittal had already been recorded in a case involving
moral turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take appropriate
decision as to the continuance of the employee.”
19. Therefore, we may proceed on the basis that what is held in
paragraph 38.4.3, is actually meant to apply to cases which involve
suppression or false information of involvement in a criminal case where
conviction or acquittal has already been recorded before the filing of the
application/verification and such fact, later came to the knowledge of
the employer. It is in such a situation that paragraphs 38.4.1, 38.4.2 and
38.4.3 would apply.
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20. We notice that in the decision which has been taken by the
Committee of the appellant after the direction of the High Court in Writ
Petition No. 13192/2015, there is a reference to paragraph 38.4.3. In
fact, paragraph 38.5 is what would be actually be apposite in a case
where there is no suppression or false information relating to involvement
of a criminal case by a candidate.
“38.5 In a case where the employee has made declaration truthfully
of a concluded criminal case, the employer still has the right to
consider antecedents, and cannot be compelled to appoint the
candidate.”
No doubt, in this case there was no occasion to disclose but it is a
case where the 1st respondent disclosed the information during
verification.We may also notice paragraph 38.10:
“38.10 For determining suppression or false information attestation/
verification form has to be specific, not vague. Only such
information which was required to be specifically mentioned has
to be disclosed. If information not asked for but is relevant comes
to knowledge of the employer the same can be considered in an
objective manner while addressing the question of fitness.
However, in such cases action cannot be taken on basis of
suppression or submitting false information as to a fact which
was not even asked for.”
21. We have already set out what has been laid down at paragraph
30. It would, therefore, be, in our view, a case which would involve
applying paragraph 38.5 read with paragraph
30.
22. We cannot be oblivious, in a case of this nature, about the
nature of the post which is at stake. The post of a judicial officer at any
level of the hierarchy involves applying the most exacting standards.
This is for reasons which are obvious. The incumbent of a judicial post
discharges one of the most important functions of the State, that is, the
resolution of disputes involving the people of the country. Judges
occupying the highest moral ground go a long way in building public
confidence in the justice delivery system. In fact, even in the
advertisement,there is a reference to the requirement of the candidate
being possessed of character. Character cannot be understood as being
limited to a mere certifying of the character by the competent authority.
The High Court is involved with the appointment of judicial officers and
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
[K. M. JOSEPH, J.]
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rightly so, under the scheme of the Constitution. Though the order of
appointment is issued by the State, the involvement of the High Court in
the appointment of judicial officers essentially flows from its position in
the constitutional scheme. The High Court is duty bound to recommend
the most suitable persons to occupy the post. The post of a Civil Judge
or a Magistrate is of the highest importance notwithstanding the fact
that in the pyramidical structure of the judiciary, the Civil Judge or the
Magistrate is at the lowest rung. We say this for the reason that of all
the litigation which is instituted in the country, the highest volume of the
same takes place at the lowest level. Not many of the cases finally
reach the highest Court. It is through the Civil Judge (Junior Division)/
Magistrate that the common man has the greatest interface. Most
importantly, the perception of the common man about the credentials
and background of the judicial officer is vital. We have only highlighted
these aspects as a prelude to consider the facts of the case further. In
other words, in the absence of a honourable acquittal, the alleged
involvement of an officer in criminal cases may undermine public faith
in the system.
23. In two of the FIRs which were lodged, final reports were
filed. In two FIRs, we notice that the matter progressed further and the
investigating authorities filed chargesheets. However, it is true that the
first respondent stood acquitted. The acquittal is certainly not on the
basis that there was no evidence whatsoever against the first respondent.
We are unable to describe the acquittals as honourable or acquittals
based on there being a complete absence of evidence.
24. We may notice, the last of the FIRs which is FIR No. 98/
2012. In the earlier decision of the High Court, we notice the error which
it apparently committed where it included Section 324 IPC as being
mentioned in the FIR, which is not so. When it came to the decision
which was finally taken pursuant to the direction of the High Court, it is
noted that the chargesheet was filed against the respondent under Section
324. This appears to be correct. The chargesheet apparently sought to
make out a case under Sections 323, 341, 324 and Section 34 of the
IPC. We further notice the allegation against the first respondent was
one of the inflicting a gandasa blow on the head of the victim. The first
of the case, that is FIR No. 81/99, where also chargesheet was filed
against the first respondent related to offences under Sections 341, 323,
148, 149, 504 and 324 IPC. Therein, the allegation which is noted by the
High Court, was that the first respondent had inflicted a sword blow on
the hand of the victim.
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25. Section 324 IPC is a non-bailable offence. Thus in two cases,
he was chargesheeted for offences under Section 324 IPC also by the
investigating authority. In a recent judgment, this Court had occasion to
deal with the power of the employer to deny appointment. The case, no
doubt, related to the police service. There were certain guidelines which
were issued and the matter had to be considered by a committee. In
Commissioner of Police v. Raj Kumar5, we may notice, in particular,
paragraph 29 and 30:
“29. Public service - like any other, pre-supposes that the state
employer has an element of latitude or choice on who should enter
its service. Norms, based on principles, govern essential aspects
such as qualification, experience, age, number of attempts
permitted to a candidate, etc. These, broadly constitute eligibility
conditions required of each candidate or applicant aspiring to enter
public service. Judicial review, under the Constitution, is permissible
to ensure that those norms are fair and reasonable, and applied
fairly, in a non-discriminatory manner. However, suitability is
entirely different; the autonomy or choice of the public employer,
is greatest, as long as the process of decision making is neither
illegal, unfair, or lacking in bona fides.
30. The High Court’s approach, evident from its observations about
the youth and age of the candidates, appears to hint at the general
acceptability of behaviour which involves petty crime or
misdemeanour. The impugned order indicates a broad view,that
such misdemeanour should not be taken seriously, given the age
of the youth and the rural setting. This court is of opinion that
such generalizations, leading to condonation of the offender’s
conduct, should not enter the judicial verdict and should be avoided.
Certain types of offences, like molestation of women, or trespass
and beating up, assault, causing hurt or grievous hurt, (with or
without use of weapons), of victims, in rural settings, can also be
indicative of caste or hierarchy-based behaviour. Each case is to
be scrutinized by the concerned public employer, through its
designated officials- more so, in the case of recruitment for the
police force, who are under a duty to maintain order, and tackle
lawlessness, since their ability to inspire public confidence is a
bulwark to society’s security.
5 (2021) 9 SCALE 713
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
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26. As far as the judgment which is referred to by the learned
counsel for the first respondent in Sandeep Kumar (supra) is concerned,
we notice that it was a case under Section 325 read with Section 34
IPC. It was a case involving appointment to the post of Head Constable
(Ministerial). The incident, it was noted by this Court, in the said case,
took place at the time when the candidate was 20 years of age.
27. As we have already noticed, the first respondent was
apparently nearly 30 years of age when the incident relating to FIR No.
98/12 allegedly took place. It is not inapposite in this context to notice
that the advertisement for the post was issued in the very next year viz.,
in the year 2013.
28. We notice the nexus between the date of the last incident, his
age and the time of the issuance of the advertisement and the application
made by the first respondent based on the same.
29. We have also noticed that as far as the decision in Mohammed
Imran (supra) is concerned, how the said decision has been appreciated
by a later judgment of this Court reported in Abhijit Singh Pawar
(supra). We have already noted nature of the case in the first and last
FIRs.
30. We would, therefore, think that bearing in mind the age, the
nature of the offences in which the first respondent was implicated and
the two FIRs, at any rate, in which the matter progressed from the stage
of the FIR to the stage of chargesheeet and the
manner in which the
case ended viz., acquittal based substantially on a compromise and also
where the witnesses turned hostile and also the nature of the post for
which the first respondent was a candidate, the matter should have been
approached differently by the High Court. Here again, we must notice
one aspect. The Court in judicial review is not concerned with the decision
per se. It is more anxious that the decision-making process is not flawed.
Circumstances, where the Court would interfere with the merits of the
decision, are far too well settled to require any reiteration. We cannot
possibly hold that the decision taken by the appellant through its committee
after bearing in mind the decision in Avatar Singh though it has referred
only to paragraph 38.1.4, but in the body of which decision, it has borne
in mind the principles, which we think would be apposite, should have
been interfered with by the High Court. In other words, we would think
that in the facts of this case, interference with the decision of the appellant
was not warranted.

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31. The upshot of the above discussion is that the appeal is to be
allowed.
32. We allow the appeal. The impugned judgment will stand set
aside.
33. No orders as to costs.
Divya Pandey
Appeal allowed.
RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA
[K. M. JOSEPH, J.]