1. None appears on behalf of the applicant to press the application for impleadment. Accordingly, it is dismissed for non-prosecution.
2. With the consent of learned counsel for both the parties, this writ petition is heard finally.
3. It is a case where the petitioner applied for the post of Constable (Driver) in pursuance to the advertisement dated 14th July, 2013. After selection, the petitioner's name could find place in the merit list. He was, however, denied appointment as a criminal case was registered against him and charge sheet thereupon was filed on 11th December, 2014 for the offence under Sections 147, 148, 149, 341, 323, 354 and 324 IPC. The petitioner disclosed the fact about registration of criminal case and pendency thereupon. A challenge is made to denial of appointment to the petitioner despite his merit position.
4. Learned counsel for the petitioner submits that denial of appointment to the petitioner is in violation of Rajasthan Police Subordinate Servi
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ce Rules, 1989 (for short "the Rules of 1989"). Rule 13 of the Rules of 1989 permits appointment to even a convict and also to ex-prisoner subject to consideration of circumstances of the conviction. The petitioner has not been I convicted but a criminal case is pending and if he is finally acquitted in the I criminal case, denial would affect his career for no reason whereas if the petitioner is convicted, the respondents can take a decision for discontinuance of his services. The denial of appointment is thus at premature stage and is otherwise affecting the right of appointment of the petitioner.
5. A reference of judgment of this Court has been given to show that in the similar circumstances mere pendency was not taken to be an obstruction for appointment.
6. Learned counsel for the respondents has opposed the petition. It is submitted that pendency of criminal case is a ground to deny appointment. It is in light of the Memorandum dated 29th April, 1995 wherein after referring Rule 13 of the Rules of 1989, a direction has been given not to appoint a candidate against whom a criminal case is pending, however, he can be appointed if acquitted. In the ligiht of the Memorandum, denial of appointment cannot be said to be illegal.
7. I have considered rival submissions made by learned counsel for the parties and scanned the matter carefully.
8. It is not in dispute that after selection, name of the petitioner could find place in merit list. The denial of appointment is precisely on the ground of pendency of criminal case.
9. The question for my consideration is as to whether pendency of criminal case can be taken as bar for appointment in the service.
10. A reference of Rule 13 of the Rules of 1989 has been given, which is quoted hereunder for ready reference :
"13. Character—The Character of a candidate for direct recruitment must be such as to qualify him for employment in the Service. He must produce a certificate of good character from the Principal Academic Officer of the University of College or School in which he was last educated and two such certificates, written not more than six months prior to the date of application, from two responsible persons not connected with the School or College or University and not related to him.
Note - (1) A Conviction by a Court of Law need not of itself involve the refusal of a certificate of good character. The circumstances of the conviction should be taken into account and if they involve no moral 2017 (1) WLC (Raj.) UC 339 Ravi Kumar v. The Director General of Police, Raj., Jaipur and Anr. turpitude or association with crimes of violence or with a movement, which has its objects to overthrow by violent means a Government as established by law, the mere conviction need not be regarded as disqualification.
(2) Ex-Prisoners, who by their disciplined life, while in prison and by either subsequent good conduct have proved to be completely reformed, should not be discriminated on grounds of the previous conviction, for purpose of employment in the service. Those who are convicted of offences not involving moral turpitude shall be deemd to have been completely reformed on the production of a report to that effect from the Superintendent, After-care Home or if there are no such homes in a particular district, from the Superintendent of Police of that district. Those convicted of offences involving moral turpitude shall be required to produce a certificate from the Superintendent, After-care Home endorsed by the Inspector General of Prisons to the effect that they proved to completely reformed by their disciplined life while in Prison and by their subsequent good conduct in an After-care Home."
11. The perusal of Rule, quoted above, shows that character of a candidate for direct recruitment must be such as to qualify for appointment. The requirement is to produce certificate of good character from the Principal Academic Officer of the University or College or School apart from two more certificates of the responsible persons. The character certificate does not require as to whether a criminal case is pending against the candidate or not. The note appended to the rule further clarifies that even if the candidate has been convicted then by itself would not be ineligible for appointment, rather circumstances of conviction would be considered by the Government. It is to apply theory of reform for a convict. In the same manner, ex-prisoner would not ineligible if he is completely reformed and his conduct in the jail is found to be good. In view of the above, the convict or an ex-prisoner is not debarred to get appointment, rather the Government can look into the circumstances of conviction.
12. In the instant case, the trial is yet to commence and it can result in acuqittal or conviction. Both the situations need to be visudized in reference to the Rule and the effect on the parties, if the petitioner is convicted or acquitted. In case, the petitioner is acquitted after trial, denial of appointment during pendency of criminal case resulting in acquittal would affect carreer of the petitioner without any reason. Mere filing of charge sheet does not mean that offence of the petitioner has been established beyond doubt, rather it can be revealed only on completion of trial. In view of the above, if the petitioner is acquitted ultimately, denial of appointment to the petitioner would affect him severally. The other situation can be of conviction after trial. In case of conviction, the respondents would be at liberty to terminate service of the petitioner on the ground of conviction itself.
13. The aforesaid situations have been discussed to find out balance of equity of the parties and if, mere pendency of criminal case can be taken as a ground to deny appointment, it would severally affect the petitioner alone and not the respondents because the respondents would be having chance to terminate service of the petitioner on conviction.
14. The respondents have issued a Memorandum on 29th April, 1995 to deny appointment to those, against whom, a criminal case is pending. A referece of Rule 13 of the Rules of 1989 has been given therein.
15. Para 3 of the Memorandum makes a reference of case where a candidate suppresses the fact about criminal case or give vague or wrong answer to the queries in the application form.
16. Para 4 of the Memorandum makes a reference of an applicant involved in any act of moral turpitude or crime of violence, to be not suitable and moral turpitude and violence have been explained in the Circular.
17. Para 5 of the Memorandum, however, refers that if a criminal case is registered against a candidate then he/she should not be given appointment but if after trial, the candidate is acquitted honourably then be considered for recruitment with the approval of the higher officer. Para 5 refers the situation where after trial, one is acquitted honourably.
18. In the instant case, the petitioner has been denied appointment and It is not a case to defer his appointment till conclusion of the criminal case, thus the petitioner would be having no chance of appointment even if acquitted in the criminal case honourabley. The position if facts aforesaid goes contrary to the Memorandum issued by the respondents themselves.
19. Apart from the aforesaid, in my opinion, Memorandum, to issued by the respondents vitiates Rule 13 of the Rules of 1989 itself. The character certificate of the candidate is required from the University and two renowned persons and not from the Police Officer or from the Police Station concerned. The Rule further provides that even in the case of conviction or ex-prisoner, denial would not be without considering the circumstances of the offence.
20. This Court in the case of Mukesh Kr. Arvind v. State and Anr, reported in 2009 WLC (Raj.) UC 121 answered the some question as has been raised herein. Therein also, a criminal case was pending against a candidate, who was denied appointment. The writ petition therein was allowed and ratio propounded therein applies to the present case also.
21. In the case of Pamod Kumar Meena v. State of Rajasthan and Ors. reported in 2012 WLC (Raj.) UC 154 same issue was considered and decided by this Court.
22. in the light of the judgment referred above and discussion made by this Court, I find that denial of appointment to the petitioner due to pendency of criminal case cannot be said to be proper. The respondents need to apply theory of reform as exists under Rule 13 of the Rules of 1989.
23. In the light of the discussion made above, this writ petition Is allowed so as the stay application.
24. The respondents are directed to consider the case of the petitioner for appointment on the post of Constable (Driver). It is however, clarified that in case of conviction of the petitioner in the criminal case, the respondents would be at liberty to take action as per law and this judgment would not come in their way for the aforesaid.
Writ Petition allowed.