VERDICTUM.
IN
[2024:RJ-JD:48477]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 13198/2024
Amrit Pal S/o Shri Harbans Singh, Aged About 37 Years, R/o
Ward No. 4, Village Goluwala Niwadan, Pilibanga, District
Hanumangarh (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through The Secretary,
Department Of Rural Development And Panchayati Raj,
Government Of Rajasthan, Secretariat, Jaipur (Raj.).
2. Principal Secretary, Department Of Personnel, Main
Building, Secretariat, Jaipur (Raj.).
3. The Chief Executive Officer, Zila Parishad Bikaner,
District Bikaner (Raj.).
----Respondents
For Petitioner(s) : Mr. Surendra Thanvi.
For Respondent(s) : Mr. Kuldeep Vaishnav, Govt. Counsel.
HON'BLE MR. JUSTICE ARUN MONGA
Judgment (Oral)
27/11/2024
1. The petitioner herein is before this Court seeking quashing of
an order dated 08.03.2024 (Annex.8) and a report dated
01.03.2024 (Annex.11), and for issuance of directions to the
respondents to grant a suitable appointment forthwith by
declaring the circular dated 04.12.2019 (Annex.9) illegal to the
extent of debarring the petitioner from seeking appointment in
government service.
2. The facts leading to this writ petition are summarized as
follows:-
2.1. The petitioner, being eligible, applied and participated in the
recruitment process for the post of Lower Division Clerk in the
year 2013. However, the selection process was delayed for years
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and finally on 04.10.2022, a provisional list was issued. The
petitioner was shown at serial number 68.
2.2. During the document verification, the petitioner informed
about pending criminal case under Sections 498A, 406, 323, and
494 of the IPC arising out of matrimonial dispute with his wife.
After the verification, petitioner was declared ineligible, citing the
pending criminal case under Sections 498A and 323 based on a
State Government circular dated 04.12.2019. The petitioner
challenged this decision by filing S.B. Civil Writ Petition No.
17771/2022, which was allowed by the Court. The Court directed
the respondent to form a committee and reconsider the
petitioner's case, considering the judgment in Avtar Singh v.
Union of India.
2.3. Following the Court's order, the petitioner’s candidature was
rejected again, citing the same circular without providing a
justified reason.
2.4. Furthermore, upon reviewing the committee’s report, the
petitioner discovered that the committee was not constituted as
per the Court's direction. And, the committee did not even
consider the Avtar Singh’s judgment. After receiving the
committee’s report on 25.07.2024, the petitioner has filed this
writ petition without delay.
3. In the aforesaid backdrop, I have heard learned counsel for
the petitioner as well as learned counsel for the respondents and
have gone through the case file.
4. It transpires that despite so many opportunities given in the
past on 14.08.2024, 11.09.2024, 25.09.2024 and 16.10.2024, no
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reply has been filed. In fact, the respondents were cautioned vide
order dated 06.11.2024 passed by this Court, that in case, reply is
not filed before the next date of hearing, cost of Rs. 25,000/- will
be imposed. The said order dated 06.11.2024 being apposite is
reproduced herein below:-
“Issue notice.
Mr. Kuldeep Vaishnav, appearing on behalf of Ms.
Neelam Sharma, AGC, accepts notice on behalf of the
respondents. Service is thus dispensed with.
Post it on 21.11.2022, to be shown in the
supplementary cause-list.
It transpires that the matter has been taken up as
many as 9 times in past and despite directions issued by
this Court, reply has not been filed.
Last opportunity is granted to file reply. If the same
is not filed before next date, it shall then be entertained on
payment of cost of Rs. 25,000/-.”
Apropos, no reply was filed and further opportunity for same
is being sought yet again. I do not find any justification for
granting further time in view of order dated 06.11.2024, ibid.
Right to file the reply is, therefore, closed.
5. Learned counsel for the petitioner contends that this second
round of litigation before this Court seeking appointment on the
post of Lower Division Clerk, on which he has otherwise been
eligible and meritorious as per the select list. However, the
pendency of a matrimonial dispute between him and his wife has
resulted in a criminal trial under Section 498-A read with Section
323 of the Indian Penal Code, pursuant to an FIR No. 0123 dated
04.06.2020 lodged by her after 9 years of marriage. Petitioner has
been non suited only on that ground, which not tenable in law, he
would urge.
6. It so transpires that vide an earlier order dated 25.04.2023
passed by the co-ordinate Bench of this Court in SBCWP No.
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17771/2022, the respondents were directed to re-consider the
case of the petitioner by passing a speaking order.
7. Prima facie, having seen the impugned order dated
08.03.2024 which is being termed as a speaking order, it is
anything but speaking. It does not clarify as to how the nature of
pending criminal trial in any manner impeached the duties to be
performed by the petitioner and/or how does it amount to a moral
turpitude without there being any finding of facts and or criminal
culpability. At best, the petitioner is merely an under trial and his
fate is yet to be governed depending on the outcome of the trial.
Furthermore, possibility of a compromise between husband and
wife cannot be ruled out at subsequent stage. Be that as it may,
mere break down of a marriage cannot be treated as if the
husband is the sole erring party just because his wife has chosen
to press criminal charges against him, which are yet to be proved.
8. Learned counsel for the petitioner also rightly relies on a co-
ordinate Bench judgment rendered in Mukesh Kumar vs. State of
Rajasthan & Ors1., wherein, it was held that on account of
pendency of criminal case the petitioner cannot be denied
appointment. In the case of Mukesh Kumar (supra), the
coordinate bench of this court after considering various aspects of
the matter laid down as under:-
“15. Viewed in light of the above factual scenario, it
is evident that the Rules not post any hurdle against
the petitioner’s right to be appointed in the police
services. At best, a rider can be imposed in the
petitioner’s appointment order that in the event of
conviction in the above criminal case, he may be
liable to be terminated from service without holding
1
2016 (3) WLC 345
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any enquiry and an undertaking in this regard can be
procured from him in this regard.
16. In view of the aforesaid discussion, the writ
petition deserves to be and is hereby allowed. The
respondents are directed to offer appointment to the
petitioner on the post of Sub Inspector of Police in
the questioned selection process ignoring the
pendency of the above criminal case against the
petitioner. However, the appointment order shall
bear a condition that the petitioner’s services may be
terminated in the event of his conviction and he shall
also submit an undertaking to this effect before
joining to the post. Since the petitioner was gainfully
employed as a Teacher during the intervening
period, he is not entitled to any consequential
benefits. However, the respondents shall grant him
all notional services benefits from the date of the
order Annex.6 dated 22.12.2009.”
9. I am in respectful agreement with the views expressed in the
judgment ibid and see no reason why the benefits thereof be not
given to the petitioner.
10. I am unable to convince myself with the insipidity of the
argument adopted by the learned counsel for respondents that
since the charge-sheet has been filed, therefore, petitioner does
not deserve to be appointed. Despite allegations under IPC
Sections 498A, 406, 323, and 494, the petitioner is presumed
innocent until proven guilty. The circular dated 04.12.2019 and
the impugned order unjustly bar his appointment based solely on
pending criminal charges. The action of respondents infringes
upon the petitioner’s rights under Articles 14 and 21 of the
Constitution, denying equal treatment and personal liberty without
a fair trial. Moreover, failure to apply the Supreme Court's
guidelines in Avtar Singh (Supra) regarding pending criminal cases
indicates nothing else but a flawed decision-making on the part of
the respondents.
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11. The impugned order (08.03.2024) and committee report
(01.03.2024) rejecting the petitioner’s candidature for the Lower
Division Clerk post are thus arbitrary, unreasonable, and lack
proper consideration, necessitating judicial intervention herein to
quash the same. It is accordingly so ordered. Pertinently, at the
time of the job advertisement, no trial proceedings were pending.
The respondent’s delay deprived the petitioner of a rightful
appointment. In any case, pending criminal trial, unless of course
proven guilty by way of conviction, cannot bar appointments.
12. For the reasons recorded in the preceding part of the order,
the petition is allowed. By way of interim order dated 09.10.2015
one post was directed to be kept vacant for the petitioner in the
selection process. The respondents are directed to issue
appointment letter to the petitioner, upon his approaching them
with web print of instant order, within a period of 30 days thereof,
which shall be subject to the final outcome of the pending criminal
trial. The petitioner shall also give an undertaking that in case, he
is convicted in the criminal trial, he shall not claim any equity on
the basis of the instant order.
(ARUN MONGA),J
275-AK Chouhan/Mohan
whether fit for reporting : Yes / No
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