The employer has to take into consideration the Government orders/instructions/rules applicable to the employee at the time of taking a decision: Supreme Court of India
The employer must take into consideration all the Government orders/instructions/rules which are applicable to the employee at the time of making a decision. This remarkable judgement was passed by the Hon’ble Supreme court of India headed by Justice SANJAY KISHAN KAUL in the matter of THE STATE OF RAJASTHAN &amp; ORS. V. LOVE KUSH MEENA [CIVIL APPEAL NO.3894 OF 2020] The moot point which arose for consideration was whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302,323,341/34 of the Indian Penal Code [IPC] can create an opportunity for the respondent to join as a constable in the Rajasthan Police service. The respondent and three others were charged with the aforesaid provisions of the Indian Penal Code and tried before the Additional Sessions Judge (Fast Track), Laxman Garh, District Alwar, Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when, as per the complainant Babulal, one Jagdish and Dayaram came in a tractor for tilling a disputed field in jungle Patan. Tofli, mausi of Babulal forbade them to till the land and apparently stayed back in the field. The court stated that “It is relevant to note that during the trial injured persons, Babulal, Om Prakash and Raju alias Rajesh obtained the permission of the Court and filed a compromise in favour of accused persons under Sections 341,323 of IPC which was approved but naturally, there could not have been any compromise qua the offences under Section 302/34 IPC.” The court contested that “In the instant case the aspect of there being a time-lapse between the alleged offence and the recruitment process was emphasised to contend that the respondent herein was about 19 years of age when the incident occurred and had now carried his life further by being successful in a competitive examination some years down the line.”
 REPORTABLE IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3894 OF 2020 THE STATE OF RAJASTHAN & ORS. Appellant(s LOVE KUSH MEENA Respondent(s JUDGMENT SANJAY KISHAN KAUL J The moot point which arises for consideration is whether a benefit of doubt resulting in acquittal of the respondent in a case charged under Sections 302 323 341 34 of the Indian Penal Code can create an opportunity for the respondent to join as a constable in the Rajasthan The respondent and three others were charged with the aforesaid provisions of the Indian Penal Code and tried before the Additional Sessions Judge Laxman Garh District Alwar Rajasthan. The incident relates to 6.10.2008 at about 6 p.m. when as per the complainant Babulal one Jagdish and Dayaram came in a tractor for tilling a disputed field in jungle Patan. Tofli mausi of Babulal forbade them to till the land and apparently stayed back in the field. At that time the tractor driver Jagdish drove the tractor and ran over Tofli. The complainant Babulal along with one Raju Om Prakash and Dinesh rushed to her side but were beaten up and knife injuries were inflicted upon them by Dayaram Love Kush respondent) Bodan and Jagdish. Tofli was taken in a Buggi to the hospital where the doctor declared her brought dead On the basis of the said report PS Khedli registered Case No.2508 under Sections 302 341 323 34 of the IPC and commenced the investigation. Upon completion of the investigation the charge sheet against all the accused persons vide No.1 2009 was filed in the Court of Judicial Magistrate Kathumar from where it was committed to the Court of the Additional Sessions Judge Laxman Garh. The charges were framed and all the accused denied the charges It is relevant to note that during the trial injured persons Babulal Om Prakash and Raju alias Rajesh obtained permission of the Court and filed a compromise in favour of accused persons under Sections 341 323 of IPC which was approved but naturally there could not have been any compromise qua the offences under Section 302 34 IPC. In those charges the trial continued and it is quite obvious that in view of the compromise all the prosecution witnesses including those injured turned hostile. On the basis of the case of the prosecution the learned Judge opined in terms of the judgment dated 01.05.2009 that “the prosecution had failed to prove the case against the accused persons beyond reasonable doubt”. A notification for recruitment of constable was issued on 14.07.2013 under the provisions contained in part III of the Rajasthan Police Subordinate Service Regulations 1989 for 12178 posts of constables setting out the procedure for making the application. Paraof the advertisement provided for disqualification for appointment. The relevant clausereads as under “(ix) As per judgment of Hon’ble Supreme Court in Civil Appeal No.782 2004 State Government and others v. Mohd. Salim Dated 10.12.2009 Director General Police Rajasthan Circular No.1687 dt.29.4.1995 is held legal. In compliance with the said judgment only those candidates shall be qualified to appear in recruitment for Rajasthan police who have not been convicted for offence of moral turpitude violent activities and not honourably acquitted by Court.” The aforesaid would show that the disqualification would operate qua conviction and “not honourably acquitted by Court” for offences of moral turpitude and violent activities. The respondent herein participated in the same and it appears was successful in the recruitment process However a letter dated 04.08.2015 was issued to him on the basis of character antecedent verifications carried out by the Police Superintendent. District Alwar Dy. Inspector General Police Security Rajasthan Jaipur whereupon the aspect of the aforesaid case was looked into 8 SCC 471 It is pointed out that various nuances arising in this judgment has been considering even in the subsequent judgments. In Union Territory Chandigarh Administration Ors. v. Pradeep Kumar & Anr.2 a two Judge Bench of this Court dealt with the expression “honourable acquittal”. It was opined that acquittal in a criminal case was not conclusive for suitability of the candidate concerned and it could not always be inferred from an acquittal or discharge that the person was falsely involved or has no criminal antecedents. Thus unless it is an honourable acquittal the candidate cannot claim the benefit of the case. No doubt it was mentioned by relying on the earlier judgment of this Court in Inspector General of Police v. S Samuthiram3 that while it was difficult to define precisely what is meant by the expression “honourable acquittal” an accused who is acquitted after full consideration of the prosecution evidence and prosecution has miserably failed to prove the charges levelled against the accused it can possibly be said that the accused was honourably acquitted In this context it has been specifically noticed by this Court that entry into the police service required a candidate to be of good character integrity and clean antecedents. Finally it was opined that the acquittal in a criminal case does not automatically entitle a candidate 2(2018) 1 SCC 797 3(2013) 1 SCC 598 for appointment to the post as a person having criminal antecedents will not fit in this category. In a similar factual scenario to the extent of recruitment to the posts of Subedars Platoon Commandants and Inspectors of Police in pursuance to an advertisement and disqualification of one of the candidates being assailed resulted in a judgment of this Court in State of Madhya Pradesh &Ors. v. Abhijit Singh Pawar4 by a two Judge Bench. Suffice to say in the factual context a case registered in the year 2006 was pending on the date when affidavit was tendered and within four days the compromise was entered into between the original complainant and the respondent. An application for compounding was filed. The compounding was found to be permissible as it dealt with offences under Sections 294 325 34 323 506 Part II of the IPC and on discussion of the legal principle enunciated in the earlier judgments it was opined that the earlier judgment in the case of Commissioner of Police v Mehar Singh5 it was opined that there is no doubt about the proposition that even after the disclosure is made by a candidate the employer would be well within his rights to consider the antecedent and suitability of the candidate In this context it was held the employer is entitled to 4(2018) 18 SCC 733 5(2013) 7 SCC 685 take into account the job profile for which the selection is undertaken the severity of the charge levelled against the candidate and whether acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt as a result of composition. We may also add that one aspect which was noticed which is common with the present case is the absence of any suggestion that the decision was actuated by malafide or suffered on other accounts except the issue raised of the subsequent circular A reference was also made to Anil Bharadwaj v. High Court of Madhya Pradesh & Ors.6 where once again a two Judge Bench of this Court found that a criminal case against the candidate under Sections 498A 406 34 of the IPC was pending consideration on a complaint filed by the wife and thus the rejection of candidature could not be said to be unsustainable. While saying so the Court also opined that the plea that the deletion of the name would result in stigma against the candidate was not sustainable since the candidate already stood acquitted. On the other hand learned counsel for the respondent sought to distinguish some of the judgments on the factual matrix while also referring to certain other 62020 SCC Online SC 832 pronouncements. In this behalf she referred to the judgment in Inspector General of Police v. S. Samuthiram supra) expounding as to what is meant by “honourable acquittal” in para 24 to contend that it is difficult to define precisely what is meant by the expression “honourable acquittal”. Counsel also sought to make a reference to a judgment in Joginder Singh v. State2 SCC 377 8Civil Appeal No.10571 2018 of moral turpitude to deny appointment in judicial service simplicitor but much would depend on the facts of a case. In the instant case the aspect of there being a time lapse between the alleged offence and the recruitment process was emphasised to contend that the respondent herein was about 19 years of age when the incident occurred and had now carried his life further by being successful in a competitive examination some years down the line. A reference was also made in the counter affidavit to certain judgments of the Rajasthan High Court granting relief to the candidates based on acquittal obtained on benefit of doubt Lastly a reference was made of an order passed by this Court in SLP[C]No.15351 2020 dated 21.01.2020 wherein an SLP was dismissed against a direction for appointment of a candidate where the order was giving benefit of doubt to the candidates in a criminal case. We may however note that firstly that this is an order and not a judgment and secondly it has been clearly stated that the dismissal was “in the given facts and circumstances of the case” Examining the controversy in the present case in the conspectus of the aforesaid legal position what is important to note is the fact that the view of this Court has depended on the nature of offence charged and the result of the same. The mere fact of an acquittal would not suffice but rather it would depend on whether it is a clean acquittal based on total absence of evidence or in the criminal jurisprudence requiring the case to be proved beyond reasonable doubt that parameter having not been met benefit of doubt has been granted to the accused. No doubt in that facts of the present case the person who ran the tractor over the deceased lady was one of the other co accused but the role assigned to the others including the respondent herein was not of a mere bystander or being present at site. The attack with knives was alleged against all the other co accused including the respondent We may also notice this is a clear case where the endeavour was to settle the dispute albeit not with the job in mind. This is obvious from the recital in the judgment of the Trial Court that the compoundable offences were first compounded during trial but since the offence under Section 302 34 IPC could not be compounded the Trial Court continued and qua those offences the witnesses turned hostile. We are of the view that this can hardly fall under the category of a clean acquittal and the Judge was thus right in using the terminology of benefit of doubt in respect of such acquittal The judgment in Avtar Singh’s case on the relevant parameter extracted aforesaid clearly stipulates that where in respect of a heinous or serious nature of crime the acquittal is based on a benefit of reasonable doubt that cannot make the candidate eligible. We may also note the submission of learned counsel for the respondent that as per para 38.3 in Avtar Singh’s case the employer has to take into consideration the Government orders instructions rules applicable to the employee at the time of taking a decision. It is her say that the issue whether the circular dated 28.03.2017 would apply or not was res integra in view of the earlier order of the learned Judge dated 14.05.2018. She has further contended that in any case the circular had come into force and as per the judgment in Avtar Singh’s case (supra para 38.4 it is the date of decision which is material and as on the date of decision dated 23.05.2017 the said circular was applicable We may note here that the circular dated 28.03.2017 is undoubtedly very wide in its application. It seeks to give the benefit to candidates including those acquitted by the Court by giving benefit of doubt. However such circular has to be read in the context of the judicial pronouncements and when this Court has repeatedly opined that giving benefit of doubt would not entitle candidate for appointment despite the circular the impugned decision of the competent authority dated 23.05.2017 cannot be said to suffer from infirmity as being in violation of the circular when it is in conformity with the law laid down by this Court We are thus of the view that the impugned orders cannot be sustained and the appellants are well within their rights to have issued the order dated 23.05.2017. The consequence is that the appeal is allowed and the impugned judgment of the Division Bench dated 16.07.2019 and learned Single Judge dated 14.05.2018 are set aside leaving the parties to bear their own costs SANJAY KISHAN KAUL R. SUBHASH REDDY NEW DELHI MARCH 24 2021