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Vinod Ahirwar v/s State of M.P. & Others


Company & Directors' Information:- VINOD PVT LTD [Active] CIN = U51909GJ1947PTC000819

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    WP. No. 14524 of 2014

    Decided On, 20 July 2018

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE SUJOY PAUL

    For the Petitioner: Mahendra Pateriya, Advocate. For the Respondents: Ankit Agarwal, Govt. Advocate.



Judgment Text

(1) This petition takes exception to the order dated 27.06.2014 (AnnexureP/5), whereby petitioner’s candidature for police department was rejected by the respondents on the ground that petitioner is not suitable for police service.

(2) Mr. Pateriya, learned counsel for the petitioner submits that petitioner was subjected to a criminal case arising out of Crime No.90/2009. By Court order dated 10.01.2011 he is already acquitted therefrom on the basis of a compromise. Thus, there is no justification in not treating the petitioner as eligible.

(3) Prayer is opposed by Mr. Ankit Agarwal, learned G.A. for the State. He submits that suitability of petitioner is to be judged by the concerned department. Petitioner is not suitable to be appointed in a police force.

(4) No other point has been pressed by the learned counsel for the parties.

(5) I have heard the parties at length and perused the record.

(6) In the considered opinion of this Court, the point involved in this case is no more res integra. This Court in its recent order passed W.P. No.21231/2017, [Madhur vs. State of M.P.] decided on 17.04.2018 considered the question of 'eligibility' and 'suitability'. This Court opined that judicial review of question relating to 'eligibility' is very wide whereas, judicial review regarding 'suitability' is limited. The relevant portion of the said order reads as under:

'10. xxxx. Thus, spinal issue in the present case is whether the respondents have misused their discretion or such exercise of discretion is capricious or contrary to law. Sub rule 3 of Rule 6 of Rules of 1961 gives ample power to the Appointing/Competent Authority to examine the aspect of suitability of an employee. The said provision, in no uncertain terms makes it clear that if Appointing Authority is satisfied that a candidate is not suitable in any respect for service or post, he can take appropriate decision in this regard. In the impugned order although enabling provision of the Rules of 1961 were not quoted, the power of said authority can be traced from Sub-rule 3 of Rule 6 of Rules of 1961. The question of suitability can be gone into by the Competent Authority in the teeth of Subrule 3 of Rule 6. This is trite law that wrong quoting of provision or not mentioning of provision will not denude the authority from taking a decision or passing an order, if source of power can be traced from an enabling provision/statute. Thus, the argument of Shri Yadav that there is no mention of Rules of 1961 in the impugned order will not improve the case of the petitioner. In the considered opinion of this Court, the employer has acted on due consideration of rules. In Avtar Singh (supra), it was poignantly held that for deciding the suitability what yardstick is to be applied depends upon the nature of post, higher post would involve more rigorous criteria. The suitability of candidate has to be considered by authorities concerned considering post/nature of duties and power has to be exercised on due consideration of various aspects. Every eventuality cannot be reduced in writing in any judgment. Thus, it was left open to the discretion of the Appointing Authority to decide whether a candidate is suitable for appointment. Indisputably, petitioner was selected for a sensitive post and facing criminal cases which are not of trivial nature. In this backdrop, it cannot be said that the respondents have either misused their discretion or acted contrary of the rules. Rule 8(3)(a) deals with crime against women. In such cases only the candidature was decided to be kept alive till conclusion of proceedings. There is no such allegation against the petitioner in aforesaid crime numbers. Thus, said rules of Rules of 2015 have no application in the present case.

The 'suitability' cannot be confused with eligibility'. In the ‘Major Law Laxicon’ by P. Ramanatha Iyer about the word following view is expressed-'the word ‘suitable’ does not require a definition because any man of experience would know who is suitable. However, each case has to be viewed in the context in which the word 'suitability' or 'suitable' is used, the object of the enactment and the purpose sought to be achieved.' A constitution Bench of Supreme Court in State of J & K vs. Trilokinath Khosa (1974) 1 SCC 19 and another Bench in State of Orissa vs. N.N. Swami (1977) 2 SCC 508 opined that eligibility must not be confused with the suitability of the candidate for appointment. These judgments were considered by Calcutta High Court in 2013 SCC Online 22909 (All b. Ed. Degree Holders Welfare Association vs. State of West Bengal ). In (2009) 8 SCC 273 (Mahesh Chandra Gupta vs. Union of India) it was again held that suitability of a recommendee and the consultation are not subject to judicial review but the issue of lack of eligibility or an effective consultation can be scrutinized.. The Supreme Court in (2014) 11 SCC 547 (High Court of Madras vs. R. Gandhi) while dealing with appointment on a constitutional post opined that ‘eligibility’ is an objective factor. When ‘eligibility’ is put in question, it could fall within the scope of judicial review. The aspect of ‘suitability’ stands excluded from the purview of judicial review. At the cost of repetition, the Apex Court opined that ‘eligibility’ is a matter of fact whereas ‘suitability’ is a matter of opinion. In this view of the matter, when Competent Authority has examined the suitability in the teeth of relevant enabling provision i.e. Rule 6 (3) of Rules of 1961, interference is totally unwarranted.

11. The scope of judicial review of a matter of this nature is limited. The decision making process is subject matter of judicial review and not the decision itself. A Full Bench of this Court in a recent judgment passed in WP. No.5865/16 (Ashutosh Pawar vs. High Court of M.P. & Another) considered a catena of judgments of Supreme Court and came to hold that High Court in exercise of power under Article 226 of the Constitution can only examine the decision making process and cannot step into the shoes of the Competent Authority in relation to a final decision.

12. This is trite law that administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasilegislative and quasi-judicial nature. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. The test is to see whether there is any infirmity in the decision making process and not in the decision itself. Mere possibility of another view cannot be ground for interference. To characterize a decision of the administrator as 'irrational' the Court has to hold, on material, that it is a decision 'so outrageous' as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future. [See (2005) 5 SCC 181 (State of NCT vs. Sanjeev)]

13. The same view was taken by the Supreme Court in (2002) 3 SCC 496 (Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr.). In (2008) 7 SCC 580 (State of Meghalaya & Ors. vs. Mecken Singh N. Marak), it was laid down that when a statute gives discretion to the Administrator to take decision, scope of judicial review would remain limited. The scope of judicial review is limited to the deficiency in decision making process and not the decision of Administrator. [See (2006) 2 SCC 1 & 165 (Rameshwar Prasad vs. Union of India), (2004) 4 SCC 714 (State of U.P. vs. Johri Lal), (2004) 11 SCC 213 & 218 (Delhi Development Authority vs. UEE Electricals Engg. (P) Ltd., (2005) 10 SCC 84 & 95 (Damoh Sagar Panna Rural Regional Bank vs. Munna Lal Jain), (2005) 5 SCC 181 (State of NCT of Delhi vs. Sanjeev) and (2006) 8 SCC 200 (Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel)]

14. In (2006) 8 SCC 590 (Muni Suvrat Swami Jain SMP Sangh vs. Arun Nathuram Gaikwad & Ors.), it was poignantly held that the High Court cannot impede the exercise of discretion by the statutory authority by issuance of a mandatory order.

15. In the considered opinion of this Court, the respondents have taken a plausible decision regarding suitability of petitioner by taking into account the relevant factors namely criminal cases, nature of

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duties and power attached to the post. The said discretion exercise is founded upon enabling provision ingrained in Rule 6 of Rules of 1961. I am unable to hold that such exercise of power and impugned order is arbitrary or capricious in nature. This plausible view taken by the respondents does not require any interference by this Court.' [Emphasis Supplied] (7) The employer is the best judge to decide whether in a particular department considering the nature of duties and responsibilities a candidate is suitable for appointment or not. In the present case, department has taken a plausible view regarding 'suitability' of petitioner. The anxiety of department appears to be to maintain purity in the administration. Thus, I am not inclined to hold that department has committed any error in treating the petitioner as unsuitable. Thus, I find no reason to interfere in this matter. Petition is bereft of merits and is hereby dismissed.
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