RAJASTHAN HIGH COURT, JODHPUR versus AKASHDEEP MORYA & ANR. on 16 September 2021

RAJASTHAN HIGH COURT, JODHPUR

v.

AKASHDEEP MORYA & ANR.

(Civil Appeal No. 5733 of 2021)

SEPTEMBER 16, 2021

[K. M. JOSEPH ANDPAMIDIGHANTAM 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 saidpost in view of his antecedents – Held: Post of a judicial officer atany level of the hierarchy involves applying the most exactingstandards – In the absence of an honourable acquittal, the allegedinvolvement of an officer in criminal cases may undermine publicfaith in the system – In the present case, in two cases, the respondentwas charge-sheeted for offences u/s.324, IPC also – Cases endedin acquittal based substantially on a compromise, the witnesses hadturned hostile – Respondent’s acquittal was not honourable –Decision taken by the appellant through its committee should nothave been interfered with by the High Court – Impugned judgmentset aside – Penal Code – ss.34, 148, 149, 323, 324, 341, 504 –Judicial review.

Service Law – Involvement in criminal case – Principlesenunciated 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 involvingsuppression/false information of involvement in a criminal casewhere conviction or acquittal is already recorded before the filingof the application/verification and such fact, later came to theknowledge of the employer – Paragraph 38.5 will be apposite in acase where there is no suppression/false information relating toinvolvement 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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724SUPREME COURT REPORTS

AAllowing the appeal, the Court

HELD : 1. This is not a case which involves any suppressionof material by the first respondent as a candidate. What is held inparagraph 38.4.3 in Avtar Singh, is actually meant to apply to caseswhich involve suppression or false information of involvement inBa criminal case where conviction or acquittal has already beenrecorded before the filing of the application/verification and suchfact, later came to the knowledge of the employer. It is in such asituation 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 acase where there is no suppression or false information relatingCto involvement of a criminal case by a candidate. It would,therefore, be a case which would involve applying paragraph 38.5read 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 SCCD471 : [2016] 7 SCR 445 – relied on.2. The post of a judicial officer at any level of the hierarchyinvolves applying the most exacting standards. The incumbentof a judicial post discharges one of the most important functionsof the State, that is, the resolution of disputes involving the peopleEof the country. Even in the advertisement, there is a reference tothe requirement of the candidate being possessed of character.Character cannot be understood as being limited to a merecertifying of the character by the competent authority. The HighCourt is involved with the appointment of judicial officers andFrightly so, under the scheme of the Constitution. Though theorder of appointment is issued by the State, the involvement ofthe High Court in the appointment of judicial officers essentiallyflows from its position in the constitutional scheme. The HighCourt is duty bound to recommend the most suitable persons tooccupy the post. The post of a Civil Judge or a Magistrate is ofGthe highest importance notwithstanding the fact that in thepyramidical structure of the judiciary, the Civil Judge or theMagistrate is at the lowest rung. All the litigation which isinstituted in the country, the highest volume of the same takesplace at the lowest level. Not many of the cases finally reach theHhighest Court. It is through the Civil Judge (Junior Division)/

Magistrate that the common man has the greatest interface. Mostimportantly, the perception of the common man about thecredentials and background of the judicial officer is vital. In theabsence of a honourable acquittal, the alleged involvement of anofficer 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 werefiled. The matter progressed further and the investigatingauthorities filed chargesheets. However, it is true that the firstrespondent stood acquitted. The acquittal is certainly not on thebasis that there was no evidence whatsoever against the firstrespondent. This Court is unable to describe the acquittal ashonourable. The last of the FIRs which was FIR No. 98/2012.The chargesheet apparently sought to make out a case underSections 323, 341, 324 and Section 34 of the IPC. The allegationagainst the first respondent was one of the inflicting a gandasablow on the head of the victim. The first of the case, that is FIRNo. 81/99, where also chargesheet was filed against the firstrespondent related to offences under Sections 341, 323, 148, 149,504 and 324 IPC. Therein, the allegation was that the firstrespondent had inflicted a sword blow on the hand of the victim.Section 324 IPC is a non-bailable offence. Thus in two cases, hewas 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 ofage when the incident relating to FIR No. 98/12 allegedly tookplace. It is not inapposite in this context to notice that theadvertisement for the post was issued in the very next year viz.,in the year 2013. Bearing in mind the age, the nature of theoffences in which the first respondent was implicated and the twoFIRs, at any rate, in which the matter progressed from the stageof the FIR to the stage of chargesheeet and the manner in whichthe case ended viz., acquittal based substantially on a compromiseand also where the witnesses turned hostile and also the natureof the post for which the first respondent was a candidate, thematter should have been approached differently by the High Court.The decision taken by the appellant through its committee after AB

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Abearing in mind the decision in Avatar Singh though it has referredonly to paragraph 38.1.4, but in the body of which decision, it hasborne in mind the principles, which would be apposite, shouldnot have been interfered with by the High Court. In the facts ofthis case, interference with the decision of the appellant was notwarranted. The impugned judgment is set aside. [Paras 27,B30][740-B-C, E-H]

Commissioner of Police v. Raj Kumar (2021) 9 SCALE713; Commissioner of Police and Others v. SandeepKumar (2011) 4 SCC 644 : [2011] 3 SCR 964 – reliedon.CMohammed Imran v. State of Maharashtra and Ors.(2019) 17 696 : 2018 (10) JT 15; State of MadhyaPradesh vs. Abhijit Singh Pawar (2018) 18 SCC 733 :[2018] 13 SCR 1133 – referred to.

Case Law Reference

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ECIVIL APPELLATE JURISDICTION: Civil Appeal No.5733 of2021.

From the Judgment and Order dated 21.03.2018 of the High Courtof Judicature for Rajasthan at Jodhpur in D.B. Civil Writ PetitionNo.12290 of 2017.

FMs. Meenakshi Arora, Sr. Adv., Mukul Kumar, Advs. for theAppellant.

Gp. Capt. Karan Singh Bhati, Dashrath Singh, Rajesh Kumar,Nimesh Suthar, Aditya Chouhan, Ms. Gunjan Negi, Advs. for theRespondents.

GThe Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Leave granted.

2. By the impugned judgment, the High Court has allowed theHwrit petition filed by the first respondent against the decision of the appellant by which it found that the first respondent did not deserve tobe appointed to the Civil Judges’ cadre.

3. The appellant issued a notification dated 25.11.2013 invitingapplications for filling up the post of Civil Judge (Junior Division). Therespondent applied pursuant to the same. It would appear that there wasno requirement in the application for indicating about involvement of thecandidate in any criminal case. However, when the matter was takenfor verification, the respondent volunteered with the information withregard to his being implicated in certain criminal cases. We may noticethe details of the cases which are as follows:

4. On 06.07.2015, the Committee of the High court tasked by theChief Justice to consider the case of 12 candidates including the 1[st]respondent resolved to not recommend the case of the 1[st] respondent.The Chief Justice referred the matter back to the Committee regardingthe 12 candidates. On 29.07.2015, the Committee again did notrecommend the case of the 1[st] respondent. The Full Court on 08.08.2015resolved to request the Committee to reexamine the matter. Again on26.08.2015, the Committee took note of the antecedents of the 1[st]respondent and resolved not to recommend the case of the 1[st] respondent.This was accepted by the Full Court.

5. Thereafter, a writ petition came to be filed by the 1[st]respondentas Writ Petition No. 13192/2015 which resulted in the following order:

“It is submitted by learned counsel for the appellant that inview of the judgment of Hon’ble Supreme Court in case of AvtarSingh vs Union of India &Ors. reported in (2016) 8 SCC 471, thepetitioner is entitled for the relief claimed in this petition.

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AAfter perusing the aforesaid judgment, the instant writ petitionis hereby disposed of with liberty to the petitioner to filerepresentation alongwith the copy of the judgment passed in AvtarSingh’s case (supra) before the Registrar, Rajasthan High Court,Jodhpur within two weeks from the date of receiving certifiedcopy of the order. Upon filing such representation, it is expectedBthat the said representation will be decided in the light of theadjudication made by the Hon’ble Supreme Court in the case ofAvtar Singh (supra) and the facts narrated in the representation,on merits within one month from the date of receivingrepresentation.”C6. This resulted in the meeting of the Lower Judiciary Committeeof the appellant to consider the matter again and the following is thedecision:

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“In compliance of order dated 08.03.2017 of Hon’ble RajasthanHigh Court passed in D.B.C.W.P. No. 13192/2015, Akash DeepDMorya Vs. Rajasthan High Court, the representation of Shri AkashDeep Morya was considered in the light of the adjudication madeby Hon’ble Supreme Court in Avtar Singh’s case.

In Avtar Singh’s case it has been held by the Hon’ble SupremeCourt, inter-alia as under: - E

“if acquittal had already been recorded in a case involving moralturpitude of offence of heinous/serious nature, on technicalground and it is not a case of clean acquittal, or benefit ofreasonable doubt has been given, the employer may considerall relevant facts available as to antecedents, and may takeFappropriate decision as to the continuance of the employee.”The committee noted that four different FIRs were registeredagainst Shri Akash Deep Morya from the year 1999-2012, detailsof which are as under:-

1. In FIR No. 81/1999, charge sheet was filed against Shri AkashGDeep Morya and others for the offences u/s 341, 323, 148, 149,504 and 324 IPC in which the allegation against Shri Morya is toinflict Sword blow on the hand of victim.

On the basis of compromise, Shri Morya was acquitted fromthe charges for the offence u/s 341, 323, 324 and 504 IPC and forHthe remaining offences, he was acquitted for want of evidence.

2. In FIR No. 75/2011 u/s 420, 406 and 120B IPC, police submittedFR which was accepted on the ground that the parties havecompromised the matter and the complainant does not want toproceed further.

3. In FIR No. 106/2011 u/s 452, 323, 34 IPC police submitted FRon the basis of compromise with the finding that offence underSection 504 IPC only is made out which is non-cognizable. FRwas accepted by the Court on the ground that the parties havecompromised the matter and the complainant does not want toproceed further.

4. In FIR No. 98/2012, charge sheet was filed against Shri Moryaand others for the offences u/s 323, 341, 324 and 34 IPC in whichallegation against Shri Morya was that he inflicted Gandasi blowon the head of one victim.

Shri Morya was acquitted for the offence u/s 323, 341 IPC onthe basis of compromise and was acquitted for the offence u/s324 IPC for want of evidence.

As per the pronouncement of Hon’ble Supreme Court in AvtarSingh’s case even if acquittal is recorded in a case involvingserious nature, the employer may consider relevant facts as toantecedent.

In the instant matter, four criminal cases have been registeredagainst Shri Morya one after the other. Offences in all the abovecases were serious in nature and acquittals were not clean. Inadjudging his candidature, comparison with other candidates isnot relevant. Therefore, taking note of all the relevant aspects thecommittee is of the view that Shri Morya does not deserveappointment on the post of Civil Judge Cadre and his representationis liable to be rejected.

RESOLVED to reject the representation of Shri Akash DeepMorya.

7. Following the same, on 05.05.2017, communication wasaddressed by the Registrar General of the appellant to the respondentindicating that the respondent did not deserve the appointment on thepost of Civil Judge cadre and the representation stood rejected. Thisresulted in the filing of the writ petition.

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A8. The writ petition filed by the respondent has been allowed bythe High Court. The High Court after wading through the cases, tookthe view that:

“Upon appreciation of entire facts and documentary evidence onrecord, there is no doubt that out of four cases, in two casescompromise was arrived at between the parties because offenceswere for simple nature, for the dispute of water supply uponagricultural land, in which ultimately compromise arrived betweenthe parties and the petitioner alongwith his brother was acquittedand complainant was also acquitted in one of the case in the crossFIR registered upon complaint of accused party. Admittedly, nocriminal case pending against the petitioner when online applicationform was submitted by him for recruitment upon the post inquestion. In case of Avtar Singh (supra), the Hon’ble SupremeCourt held that whole idea of verification of character andantecedents is that the person suitable for the post should beappointed and candidate should not have antecedents of such aserious nature which may adjudge him unsuitable for the post.The verification of antecedents is necessary to find out fitness ofthe candidates. The case in hand there is no allegation ofsuppression of information. More so, it is a case in which petitionerhas categorically explain that out of four cases, two cases werefound to be false after investigation, therefore, FR was submittedand accepted by the court. In two other cases offences were ofsimple injuries in which compromise arrived between the partiesbecause 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 emergesfrom the consideration that all the four criminal cases registeredagainst the petitioner were considered and committee opined thatoffences in all the cases were serious in nature and acquittalswere not clean, therefore, in adjudging the candidature, comparisonwith the other candidates is not relevant as such taking note of allthe relevant aspects, the committee held that Sh. Morya does notdeserve appointment on the post of Civil Judge Cadre and hisrepresentation is liable to be rejected. In our humble opinion thecommittee has failed to consider the case of the petitioner in the G

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spirit of verdict given by the Hon’ble Supreme Court in the caseof Avtar Singh because as per committee offences in all the caseswere serious in nature and acquittals were not clean, but thisfinding is not perverse because it is obvious from the documentaryevidenced that out of four cases in two cases after investigation,FR was submitted by the police, which is accepted by thecompetent court and further it is not in dispute that in FIR no. 81at Police Station, Kesharisinghpur charge sheet was filed againstthe petitioner and other persons for offence under Section 341,323, 148, 149, 504 and 324 IPC and for the same incident in FIRno. 80 registered against the complainant upon complaint ofaccused party charge-sheet was filed, but in both the cases,compromise arrived between the parties and the same wasaccepted by the court because offences were not of serious innature, 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 offencesunder Sections 323, 341, 324 and 34 IPC. In the said case therewas allegation for simple injuries for the dispute arising out forwater supply turn in the agricultural field. All the offences werecompoundable and trible by the magistrate, therefore, compromisewas arrived between the neighbourers was accepted by the court.In view of the above position of facts, it cannot be said thatpetitioner was involved in the case of serious nature as observedby the committee.

As per verdict in the case of Avtar Singh (supra) though a discretionis given to the employer to assess the suitability of the candidatewhile considering the antecedents, but at the same time, a duty iscast upon the employer not to crush the future of a candidate whohas succeeded in the competitive examination and come in meritupon his performance. Admittedly, the petitioner belongs to SCcategory which is weaker section of the society, against whomtwo false cases were registered in which after investigation, policegave opinion that no such incident took place and in other twocases registered against him for the offence of simple injuries,compromise was arrived between the parties and trial courtacquitted him on the basis of compromise, therefore, we are ofthe opinion that decision of the committee is not in consonancewith the spirit of the judgment in the case of Avtar Singh (supra).

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A9. Thereafter, the Court took the view that it is an important aspectthat the first respondent belonging to the Scheduled Caste category, whichis a weaker section of the society, appeared in the competitiveexamination and succeeded in it on the basis of performance and wasrecommended for appointment. But due to the registration of some casesagainst him prior to the submission of the application, the appointmentBhas been denied. It is further found that in such type of cases, ifappointments will be denied casually, then nobody will trust upon thejudicial system. Therefore, it is the duty of the employer to apply its mindto assess the suitability of the candidate objectively. It is further foundthat it is beyond imagination that the employer will treat offences underCSection 323 and 324 IPC at par with other heinous offences and denialof appointment was found unsustainable and also unconstitutional. Itwas, accordingly, that the petition was allowed.

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10. Heard Ms. Meenakshi Arora, learned senior counsel appearingfor the appellant, and Gp. Capt. Karan Singh Bhati, learned counselDappearing on behalf of the first respondent.

11. Ms. Meenakshi Arora, learned senior counsel appearing forthe 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 employerto take a decision bearing in mind the relevant inputs in this case. SheEdrew our attention to the cases in question. She reminded us that theCourt is dealing with the case of appointment to a Judicial post. Theoffences cannot be trivialized. There were four FIRs which were lodgedinvolving the first respondent. It is not as if the first respondent stoodacquitted honourably. The acquittal cannot be described as acquittal fortotal want of evidence. On the other hand, in the first FIR the matterFcame to be settled and witnesses turned hostile. The last of the FIRsalso is a case where a chargesheet was filed. The cases did involveoffences under Sections 323 and 324 IPC as charged by the investigatingagency and again acquittal flowed from a compromise and it was not asa result of the Court appreciating the evidence and holding that there isGno evidence at all against the first respondent. She drew our attention, infact, to the decision of Avtar Singh v. Union of India and Others[1]:

“30. The employer is given ‘discretion’ to terminate or otherwiseto condone the omission. Even otherwise, once employer has the H1 (2016) 8 SCC 471

power to take a decision when at the time of filling verificationform declarant has already been convicted/acquitted,in such acase, it becomes obvious that all the facts and attendingcircumstances,including impact of suppression or false informationare taken into consideration while adjudging suitability of anincumbent for services in question. In case the employer come tothe conclusion that suppression is immaterial and even if factswould have been disclosed would not have affected adverselyfitness of an incumbent, for reasons to be recorded, it has powerto condone the lapse. However,while doing so employer has toact prudently on due consideration of nature of post and duties tobe rendered. For higher officials/higher posts, standard has to bevery high and even slightest false information or suppression mayby itself render a person unsuitable for the post. However samestandard cannot be applied to each and every post. In concludedcriminal cases, it has to be seen what has been suppressed ismaterial fact and would have rendered an incumbent unfit forappointment. An employer would be justified in not appointing orif appointed to terminate services of such incumbent on dueconsideration of various aspects. Even if disclosure has been madetruthfully the employer has the right to consider fitness and whiledoing so effect of conviction and background facts of case, natureof offence etc. have to be considered. Even if acquittal has beenmade, employer may consider nature of offence, whether acquittalis honourableor giving benefit of doubt on technical reasons anddecline to appoint a person who is unfit ordubious character. Incase employer comes to conclusion that conviction or ground ofacquittal in criminal case would not affect the fitness foremployment incumbent may be appointed or continued in service.

(emphasis supplied)

12. She further pointed out that that this was not certainly adecision of the appellant which should have been interfered with by theHigh Court.

13. Per contra, Gp. Capt. Karan Singh Bhati, learned counsel forthe first respondent, pointed out that the first respondent belongs to theScheduled Caste community. He was falsely implicated in all these cases.He also highlighted the fact that at a young age, persons may be moreprone to commit mistakes. The approach of the Court in such matters AB

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Ashould 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 impugnedjudgment is only to be supported. In this regard, he drew our attention toa few decisions.

14. He drew our attention to the judgment in Mohammed ImranBv. State of Maharashtra and Ors.[2] He pointed out that the said decisionalso involved appointment to a judicial post and yet, he contended, thatthis Court after noticing the facts, directed reconsideration of the decisiontaken in the said case not to appoint the petitioner in the said case. Hewould contend that principle of the said case would apply on all fours inthe facts of this case as well.C He further drew our attention to the judgment in Commissionerof Police and Others v. Sandeep Kumar[3]. Therein, the Court held:

“8. We respectfully agree with the Delhi High Court that thecancellation of his candidature was illegal, but we wish to giveDour own opinion in the matter. When the incident happened therespondent must have been about 20 years of age. At that ageyoung people often commit indiscretions, and such indiscretionscan often be condoned. After all, youth will be youth. They arenot expected to behave in as mature a manner as older people.Hence, our approach should be to condone minor indiscretionsEmade by young people rather than to brand them as criminals forthe rest of their lives.

12. It is true that in the application form the respondent did notmention that he was involved in a criminal case under Sections325/34 IPC. Probably he did not mention this out of fear that if heFdid so he would automatically be disqualified. At any event, it wasnot such a serious offence like murder, dacoity or rape, and hencea more lenient view should be taken in the matter.”

15. He contended that the dispute as far as the first FIR lodgedagainst the first respondent is concerned, was essentially a propertyGdispute. Regarding the second FIR which related to the offences underSections 420, 406 IPC, he would point out that it was essentially a civilmatter and it is just given a criminal colour. He reminds us that the saidcase did not even go to trial. On the other hand, the investigating authority 2 (2019) 17 696H3 (2011) 4 SCC 644

did not find merit in the contents of the FIR which culminated in lodgingof the final report. The same is the fate of the third FIR which did notculminate in the lodging of the chargesheet and on the contrary, the casedid not see the light of the day and a final report was filed. The finalreport was accepted and there was no protest and the matter ended.Even in the last case, it is his contention that the case involved offenceunder Section 323 IPC which can by no means, be described as a seriousoffence justifying eliminating an eligible candidate belonging to a weakersection of the society. In these matters, he would submit, the liberal spiritwhich 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 ournotice that the decision of this Court reported in Mohammed Imran(supra) has come to be noted and appreciated by a later judgment whichis reported in Abhijit Singh Pawar[4]. Ms. Meenakshi Arora, drew ourattention to paragraph 15:

“15. The reliance placed by Mr. Dave, learned Amicus Curiae onthe decision of this Court in Mohd. Imran v. State of Maharashtra(Civil Appeal No.10571 of 2018) is not quite correct and saiddecision cannot be of any assistance to the respondent. In para 5of said decision, this Court had found that the only allegation againstthe appellant therein was that he was travelling in an auto-rickshawwhich was following the auto-rickshaw in which the prime accused,who was charged under Section 376 IPC, was travelling with theprosecutrix in question and that all the accused were acquitted asthe prosecutrix did not support the allegation. The decision in Mohd.Imran v. State of Maharashtra (Civil Appeal No.10571 of 2018)thusturned on individual facts and cannot in any way be said to havedeparted from the line of decisions rendered by this Court inCommr. of Police v. Mehar Singh (2013) 7 SCC 685, State ofM.P. v. Parvez Khan (2015) 2 SCC 591 and UT, ChandigarhAdmn. v. Pradeep Kumar (2018) 1 SCC 797.

17. No doubt, learned counsel for the first respondent did pointout that in the said case, the criminal case was pending against therespondent therein when he applied. Compromise was entered into afteran affidavit disclosing such pendency was filed.

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A18. As we have noticed from our narrative, this is not a casewhere the first respondent as a candidate suppressed facts about thecriminal cases against him as there was no requirement in the applicationto disclose such details. On the other hand, it is on the showing of theappellant itself a case where the material was unravelled at the time ofverification. Therefore, we may start by holding that this is not a caseBwhich involves any suppression of material by the first respondent as acandidate. We notice this aspect to put in perspective the principles whichhave 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 ofCinvolvement in a criminal case where conviction or acquittal hadalready been recorded before filling of the application/verificationform and such fact later comes to knowledge of employer, any ofthe following recourses appropriate to the case may be adopted:

38.4.1. In a case trivial in nature in which conviction had beenDrecorded, such as shouting slogans at young age or for a pettyoffence which if disclosed would not have rendered an incumbentunfit for post in question, the employer may, in its discretion, ignoresuch suppression of fact or false information by condoning thelapse.

E38.4.2. Where conviction has been recorded in case which is nottrivial in nature, employer may cancel candidature or terminateservices of the employee.

38.4.3. If acquittal had already been recorded in a case involvingmoral turpitude or offence of heinous/serious nature, on technicalFground and it is not a case of clean acquittal, or benefit ofreasonable doubt has been given, the employer may consider allrelevant facts available as to antecedents, and may take appropriatedecision as to the continuance of the employee.”

19. Therefore, we may proceed on the basis that what is held inGparagraph 38.4.3, is actually meant to apply to cases which involvesuppression or false information of involvement in a criminal case whereconviction or acquittal has already been recorded before the filing of theapplication/verification and such fact, later came to the knowledge ofthe employer. It is in such a situation that paragraphs 38.4.1, 38.4.2 and38.4.3 would apply.H

20. We notice that in the decision which has been taken by theCommittee of the appellant after the direction of the High Court in WritPetition No. 13192/2015, there is a reference to paragraph 38.4.3. Infact, paragraph 38.5 is what would be actually be apposite in a casewhere there is no suppression or false information relating to involvementof a criminal case by a candidate.

“38.5 In a case where the employee has made declaration truthfullyof a concluded criminal case, the employer still has the right toconsider antecedents, and cannot be compelled to appoint thecandidate.”

No doubt, in this case there was no occasion to disclose but it is acase where the 1[st] respondent disclosed the information duringverification.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 suchinformation which was required to be specifically mentioned hasto be disclosed. If information not asked for but is relevant comesto knowledge of the employer the same can be considered in anobjective manner while addressing the question of fitness.However, in such cases action cannot be taken on basis ofsuppression or submitting false information as to a fact whichwas not even asked for.”

21. We have already set out what has been laid down at paragraph30. It would, therefore, be, in our view, a case which would involveapplying paragraph 38.5 read with paragraph 30.

22. We cannot be oblivious, in a case of this nature, about thenature of the post which is at stake. The post of a judicial officer at anylevel of the hierarchy involves applying the most exacting standards.This is for reasons which are obvious. The incumbent of a judicial postdischarges one of the most important functions of the State, that is, theresolution of disputes involving the people of the country. Judgesoccupying the highest moral ground go a long way in building publicconfidence in the justice delivery system. In fact, even in theadvertisement,there is a reference to the requirement of the candidatebeing possessed of character. Character cannot be understood as beinglimited to a mere certifying of the character by the competent authority.The High Court is involved with the appointment of judicial officers and A

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Arightly so, under the scheme of the Constitution. Though the order ofappointment is issued by the State, the involvement of the High Court inthe appointment of judicial officers essentially flows from its position inthe constitutional scheme. The High Court is duty bound to recommendthe most suitable persons to occupy the post. The post of a Civil Judgeor a Magistrate is of the highest importance notwithstanding the factBthat in the pyramidical structure of the judiciary, the Civil Judge or theMagistrate is at the lowest rung. We say this for the reason that of allthe litigation which is instituted in the country, the highest volume of thesame takes place at the lowest level. Not many of the cases finallyreach the highest Court. It is through the Civil Judge (Junior Division)/CMagistrate that the common man has the greatest interface. Mostimportantly, the perception of the common man about the credentialsand background of the judicial officer is vital. We have only highlightedthese aspects as a prelude to consider the facts of the case further. Inother words, in the absence of a honourable acquittal, the allegedinvolvement of an officer in criminal cases may undermine public faithDin the system.

23. In two of the FIRs which were lodged, final reports werefiled. In two FIRs, we notice that the matter progressed further and theinvestigating authorities filed chargesheets. However, it is true that thefirst respondent stood acquitted. The acquittal is certainly not on theEbasis that there was no evidence whatsoever against the first respondent.We are unable to describe the acquittals as honourable or acquittalsbased 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 whichit apparently committed where it included Section 324 IPC as beingFmentioned in the FIR, which is not so. When it came to the decisionwhich was finally taken pursuant to the direction of the High Court, it isnoted that the chargesheet was filed against the respondent under Section324. This appears to be correct. The chargesheet apparently sought tomake out a case under Sections 323, 341, 324 and Section 34 of theGIPC. We further notice the allegation against the first respondent wasone of the inflicting a gandasa blow on the head of the victim. The firstof the case, that is FIR No. 81/99, where also chargesheet was filedagainst the first respondent related to offences under Sections 341, 323,148, 149, 504 and 324 IPC. Therein, the allegation which is noted by theHigh Court, was that the first respondent had inflicted a sword blow onHthe hand of the victim.

25. Section 324 IPC is a non-bailable offence. Thus in two cases,he was chargesheeted for offences under Section 324 IPC also by theinvestigating authority. In a recent judgment, this Court had occasion todeal with the power of the employer to deny appointment. The case, nodoubt, related to the police service. There were certain guidelines whichwere issued and the matter had to be considered by a committee. InCommissioner of Police v. Raj Kumar[5], we may notice, in particular,paragraph 29 and 30:

“29. Public service - like any other, pre-supposes that the stateemployer has an element of latitude or choice on who should enterits service. Norms, based on principles, govern essential aspectssuch as qualification, experience, age, number of attemptspermitted to a candidate, etc. These, broadly constitute eligibilityconditions required of each candidate or applicant aspiring to enterpublic service. Judicial review, under the Constitution, is permissibleto ensure that those norms are fair and reasonable, and appliedfairly, in a non-discriminatory manner. However, suitability isentirely different; the autonomy or choice of the public employer,is greatest, as long as the process of decision making is neitherillegal, unfair, or lacking in bona fides.

30. The High Court’s approach, evident from its observations aboutthe youth and age of the candidates, appears to hint at the generalacceptability of behaviour which involves petty crime ormisdemeanour. The impugned order indicates a broad view,thatsuch misdemeanour should not be taken seriously, given the ageof the youth and the rural setting. This court is of opinion thatsuch generalizations, leading to condonation of the offender’sconduct, should not enter the judicial verdict and should be avoided.Certain types of offences, like molestation of women, or trespassand beating up, assault, causing hurt or grievous hurt, (with orwithout use of weapons), of victims, in rural settings, can also beindicative of caste or hierarchy-based behaviour. Each case is tobe scrutinized by the concerned public employer, through itsdesignated officials- more so, in the case of recruitment for thepolice force, who are under a duty to maintain order, and tacklelawlessness, since their ability to inspire public confidence is abulwark to society’s security.

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A26. As far as the judgment which is referred to by the learnedcounsel for the first respondent in Sandeep Kumar (supra) is concerned,we notice that it was a case under Section 325 read with Section 34IPC. 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.B

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27. As we have already noticed, the first respondent wasapparently 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 noticethat the advertisement for the post was issued in the very next year viz.,in the year 2013.C

28. We notice the nexus between the date of the last incident, hisage and the time of the issuance of the advertisement and the applicationmade by the first respondent based on the same.

29. We have also noticed that as far as the decision in MohammedDImran (supra) is concerned, how the said decision has been appreciatedby a later judgment of this Court reported in Abhijit Singh Pawar(supra). We have already noted nature of the case in the first and lastFIRs.

30. We would, therefore, think that bearing in mind the age, theEnature of the offences in which the first respondent was implicated andthe two FIRs, at any rate, in which the matter progressed from the stageof the FIR to the stage of chargesheeet and the manner in which thecase ended viz., acquittal based substantially on a compromise and alsowhere the witnesses turned hostile and also the nature of the post forwhich the first respondent was a candidate, the matter should have beenFapproached differently by the High Court. Here again, we must noticeone aspect. The Court in judicial review is not concerned with the decisionper se. It is more anxious that the decision-making process is not flawed.Circumstances, where the Court would interfere with the merits of thedecision, are far too well settled to require any reiteration. We cannotGpossibly hold that the decision taken by the appellant through its committeeafter bearing in mind the decision in Avatar Singh though it has referredonly to paragraph 38.1.4, but in the body of which decision, it has bornein mind the principles, which we think would be apposite, should havebeen interfered with by the High Court. In other words, we would thinkthat in the facts of this case, interference with the decision of the appellantHwas not warranted.

RAJASTHAN HIGH COURT, JODHPUR v. AKASHDEEP MORYA[K. M. JOSEPH, J.]

31. The upshot of the above discussion is that the appeal is to beallowed.

32. We allow the appeal. The impugned judgment will stand setaside.

33. No orders as to costs.

Divya Pandey

Appeal allowed.

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