Convicted person cannot seek writ of mandamus for consideration of his / her case for appointment: Chhattisgarh High Court
Once the petitioner has been convicted for criminal offences and he has been awarded jail sentence and fine sentence also, a writ of mandamus cannot be issued to the authorities to consider his case for appointment on the post of Constable (GD) has been upheld by the High Court of Chhattisgarh through a single bench led by HON’BLE SHRI JUSTICE SANJAY S. AGARWAL in the case of Subhash Chandra v. State of Chhattisgarh (Writ Petition No.616 of 2022). Brief facts of the case are that petitioner participated in recruitment process initiated for the post of Constable (GD &amp; driver) and he has been selected after passing all tests including medical test, but respondent, Superintendent of Police, Rajnandgaon, has declined to issue order of appointment in favour of the petitioner on the ground that criminal case is pending against him. It is admitted position on record that the petitioner has been convicted for offences under Sections 279 &amp; 304A of the Indian Panel Code and appeal against that order is pending consideration before the jurisdictional appellate Court. The petitioner stated that his substantive jail sentence has been suspended and therefore, he is entitled to be appointed on the post of Constable (GD). The respondents placed reliance on State of West Bengal and others v. SK. Nazrul Islam and Commissioner of Police, New Delhi and another v. Mehar Singh contended that since the petitioner has been convicted for offences and jail sentence has been imposed for one year for offence under Section 304A of the IPC and six months for offence under Section 279 of the IPC and fine has also been imposed and appeal is pending consideration before the appellate Court, therefore, no mandamus can be issued for issuance of appointment order. The Court decided in favour of respondents and dismissed the petition. Judgement reviewed by- Akshat Jaithlia
1AFRHIGH COURT OF CHHATTISGARH BILASPURWrit PetitionNo.6122Subhash Chandra S o Shri Dilbar Aged about 26 years R ovillage Bandha P.S. & Tehsil Takhatpur District Bilaspur(CG) ­­­­ Petitioner Versus 1.State of Chhattisgarh Through the Principal Secretary Home Department Mahanadi Bhawan Naya Raipur Tah. & Dist.Raipur2.Director General of Police Police Head Quarter Sector19 New Raipur Atal Nagar Dist­Raipur3.The Assistant Director General of Police Police HeadQuarter Sector 19 New Raipur Atal nagar DistrictRaipur4.The Superintendent of Police Rajnandgaon DistrictRajnandgaon­­­­ RespondentsFor Petitioner : Mr.Ravindra Sharma Advocate For Respondents: Mr.Amrito Das Addl.A.G.Hon ble Shri Justice Sanjay K. AgrawalOrder on Board(Through Video Conferencing)2 2 20221.Heard Mr.Ravindra Sharma learned counsel for thepetitioner and Mr.Amrito Das learned Additional AdvocateGeneral for the respondents State on the question ofadmission. 2.The petitioner participated in recruitment processinitiated for the post of Constableandaccording to him he has been selected after passing alltests including medical test but respondentNo.4 Superintendent of Police Rajnandgaon has declined toissue order of appointment in favour of the petitioner on 2the ground that criminal case is pending against him. 3.It is admitted position on record that the petitioner hasbeen convicted for offences under Sections 279 & 304A ofthe Indian Panel CodeandSection 3 181 of the Motor Vehicles Act 1988by the Judicial Magistrate FirstClass Takhatpur on 08.10.2021 and appeal against thatorder is pending consideration before the jurisdictionalappellate Court and he has made a representation forissuance of appointment order in his favour. 4.Mr.Ravindra Sharma learned counsel appearing for thepetitioner would submit that though the petitioner hasbeen convicted for the aforesaid offences yet hissubstantive jail sentence has been suspended andtherefore he is entitled to be appointed on the post ofConstable8 SCC 471 3offence under Section 279 of the IPC and fine of ₹ 500 ­has also been imposed under Section 3 181 of the Act of1988 and appeal is pending consideration before theappellate Court. Therefore no mandamus can be issued forissuance of appointment order for consideration of thepetitioner s case for appointment on the post of Constable(GD) and as such the writ petition deserves to bedismissed. 6.Admittedly and undisputedly the petitioner has beenselected on the post of Constablebut he has beenconvicted for the aforesaid offences and jail sentence aswell as fine sentence has been imposed upon him and hisappeal is pending consideration before the appellate Courtagainst the order of conviction and against jail sentenceawarded to him in the meanwhile he has filed this writpetition seeking direction to respondent No.4 to considerhis case for appointment on the post of Constableashe has already been selected for the said post.7.The question that once the petitioner has been convictedfor criminal offences and he has been awarded jailsentence and fine sentence also whether a writ ofmandamus can be issued to the authorities to consider hiscase for appointment on the post of Constable10 SCC 184 4acquitted in the criminal case of the charges. It wasobserved as under:­“5. We have heard learned counsel for the partiesand we fail to appreciate how when a criminal caseunder Sections 148 323 380 448 427 506 IPC against the respondent was pending in the Court ofthe Additional Chief Judicial Magistrate Uluberia Howrah any mandamus could have beenissued by the High Court to the authorities toappoint the respondent as a Constable. Surely theauthorities entrusted with the responsibility ofappointing constables were under duty to verifythe antecedents of a candidate to find out whetherhe is suitable for the post of constable and solong as the candidate has not been acquitted inthe criminal case of the charges under Sections148 323 380 448 427 506 IPC he cannot possibly beheld to be suitable for appointment to the post ofConstable.”9.Similarly the Supreme Court in the matter of Commissionerof Police New Delhi and another v. Mehar Singh3 hasobserved as under:­“35. The police force is a disciplined force. Itshoulders the great responsibility of maintaininglaw and order and public order in the society.People repose great faith and confidence in it. Itmust be worthy of that confidence. A candidatewishing to join the police force must be a personof utmost rectitude. He must have impeccablecharacter and integrity. A person having criminalantecedents will not fit in this category. Even ifhe is acquitted or discharged in the criminalcase that acquittal or discharge order will haveto be examined to see whether he has beencompletely exonerated in the case because even apossibility of his taking to the life of crimesposes a threat to the discipline of the policeforce. The Standing Order therefore hasentrusted the task of taking decisions in thesematters to the Screening Committee. The decisionof the Screening Committee must be taken as finalunless it is mala fide. In recent times the imageof the police force is tarnished. Instances ofpolice personnel behaving in a wayward manner bymisusing power are in public domain and are amatter of concern. The reputation of the policeforce has taken a beating. In such a situation we37 SCC 685 5would not like to dilute the importance andefficacy of a mechanism like the ScreeningCommittee created by the Delhi Police to ensurethat persons who are likely to erode itscredibility do not enter the police force. At thesame time the Screening Committee must be aliveto the importance of trust reposed in it and musttreat all candidates with even hand.”10.Recently the Supreme Court in the matter ofRajasthan Rajya Vidyut Prasaran Nigam Limited and anotherv. Anil Kanwariya4 has held that an employee cannot claimthe appointment and or continue to be in service as amatter of right. It was observed as under:­“14. The issue question may be considered fromanother angle from the employer’s point of view.The question is not about whether an employee wasinvolved in a dispute of trivial nature andwhether he has been subsequently acquitted or not.The question is about the credibility and ortrustworthiness of such an employee who at theinitial stage of the employment i.e. whilesubmitting the declaration verification and orapplying for a post made false declaration and ornot disclosing and or suppressing material fact ofhaving involved in a criminal case. If the correctfacts would have been disclosed the employermight not have appointed him. Then the question isof TRUST. Therefore in such a situation wherethe employer feels that an employee who at theinitial stage itself has made a false statementand or not disclosed the material facts and orsuppressed the material facts and therefore hecannot be continued in service because such anemployee cannot be relied upon even in future theemployer cannot be forced to continue such anemployee. The choice option whether to continue ornot to continue such an employee always must begiven to the employer. At the cost of repetition it is observed and as observed hereinabove incatena of decision such an employee cannot claimthe appointment and or continue to be in serviceas a matter of right.”11.Reverting to the facts of the present case in lightof principle of law laid down by the Supreme Court in the410 SCC 136 6above­stated judgments it is quite vivid that since thepetitioner stands convicted as on date for offencesincluding the offence under Section 304A of the IPC andjail sentence has been awarded to him and that jailsentence has been suspended by the criminal Court in thatcircumstance as held by the Supreme Court in SK. NazrulIslamno mandamus can be issued to consider thepetitioner s case as Constableincluding theconsideration of the petitioner s representation. However reliance placed by the learned counsel for the petitioneron the decision of Avtar Singhwould not apply inthe instant case as the petitioner is seeking mandamus todirect respondent No.4 to consider his case forappointment on the post of Constableeven after hisconviction is subsisting. 12.Accordingly the writ petition deserves to be and ishereby dismissed in limine leaving the parties to beartheir own cost(s). Sd Judge B 7HIGH COURT OF CHHATTISGARH AT BILASPURWrit PetitionNo.6122 PetitionerSubhash Chandra Versus RespondentsState of Chhattisgarh andothersO fDr ijekns k dh fjV dhekax ugh dj ldrkA 