Bhausaheb v. The State of Maharashtra

Judgment

2. The State of Maharashtra Through the Secretary, Law and Judiciary Department, Mantralaya, Mumbai The Hon'ble Principal District Judge, District Court Beed ..PETITIONER ..RESPONDENTS Mr A.P. Chaware, Advocate holding for Mr P.D. Suryawanshi for the petitioner; Mr R.P. Phatke, Asstt. Govt. Pleader for respondent no.1; Mr C.K. Shinde, Advocate for respondent no.2 CORAM : SMT. NISHITA MHATRE AND S.S. SHINDE, JJ. DATE : 8th April, 2011 ORAL JUDGMENT (PER SMT. MHATRE, J.) Rule. Rule made returnable forthwith by consent. 2 W.P.No.8245 of 2009

2. The present petition has been filed by a person who sought to be appointed as a Clerk in the District Court, Beed. His name has been removed from the select list and hence the present petition challenging the order passed on 18th September, 2008 by the District Judge removing his name from the select list.

3. An advertisement was issued on 20th July, 2006 inviting applications for the post of Junior Clerks in the District Court, Beed. The petitioner applied for the post and appeared for the written examination which was scheduled on 9.9.2007. Having successfully completed the written examination he was invited for an interview. He succeeded in the interview as well and was therefore directed to furnish a bond declaring that there was no criminal case registered or pending against him, nor that he had undergone any sentence or punishment. This bond was submitted by the petitioner on 16th September, 2008 clearly mentioning that no criminal proceedings had been initiated against him.

4. The petitioner has stated in paragraph 8 of his petition that two days later he came across the information regarding the pendency of a

criminal case against him in the Court of the Judicial Magistrate First Class, Patoda. This criminal case was registered as R.C.C. No.107 of

2007. According to the petitioner, this information was available on the internet and, therefore, he submitted an application on 20th September, 3 W.P.No.8245 of 2009 2008 to the District Judge for correction of the declaration submitted by him four days earlier. He disclosed in the application that the information revealed in the bond was incorrect and a criminal case was pending against him. According to the petitioner, he had submitted this application on 18th September, 2008 itself but it was not accepted on that day by the concerned officials of the District Court. He therefore submitted the representation later, on 20th September, 2008.

5. The petitioner has, therefore, challenged the order passed by the Principal District Judge, Beed on 18th September, 2008 excluding his name from the select list on the ground that the petitioner had given a false declaration to the Court regarding the pendency of a criminal case against him. The learned Advocate for the petitioner submits that the selection of the petitioner could not have been cancelled on this ground as he had disclosed that there was a criminal case pending against him, albeit after a delay of two days. He points out that the petitioner had obtained information under the Right to Information Act that no other person but the petitioner himself had supplied any material about the pendency of the criminal proceedings. Reliance is placed on the judgement of the Apex Court in the case of Commissioner of Police, Delhi & anr. vs. Dhaval Singh, reported in AIR 1999 S.C. 2326 and the judgement of the Madhya Pradesh High Court in Pradeep Soni vs. Canara Bank & ors., 2006 Lab. I.C. 2695 and of the Delhi High Court in the case of Sandeep Kumar vs. Commissioner of Police & ors., reported in 2006 Lab. I.C. 4359. 4 W.P.No.8245 of 2009

6. We have considered the affidavit filed on behalf of the respondent no.2. It has been averred therein that the petitioner had deliberately and dishonestly suppressed the fact that a criminal case was pending against him in order to secure an appointment in service. The deponent has also disclosed that a report was lodged against the petitioner and nine other persons on 5th July, 2007, on the basis of which Crime No.54 of 2007 was registered against them for various offences punishable under the Indian Penal Code. The petitioner and other accused had engaged Advocates to apply for bail on 6th July, 2007. Each of the accused were released on bail of Rs.7,500/- with one surety in the like amount. After completion of the investigation, R.C.C. No.107 of 2007 was instituted against the petitioner and the other accused in the Court of the Judicial Magistrate First Class, Patoda on 9th August, 2007. The summons was issued to the petitioner on 6th October, 2007. However, he was absent on 7th December, 2007 though the summons was duly served. A warrant was issued thereafter. Exemption applications were made on behalf of the petitioner and other accused on 7th December, 2007, 18th March, 2008 and 23rd July, 2008.

7. We have considered the submissions of the learned Counsel for the parties before us and we have no manner of doubt that the petitioner had suppressed the information regarding his being involved in a criminal 5 W.P.No.8245 of 2009 case only with a view to secure employment. The contention of the learned Counsel for the petitioner that the petitioner was unaware of the fact that any criminal proceedings had been undertaken against him is without merit. He submits that merely because an F.I.R. was lodged against the petitioner or he had been granted bail would not automatically mean that criminal proceedings were initiated against him as they would commence only with the filing of the charge-sheet. According to the learned Advocate the charge-sheet was filed much later and, therefore, the petitioner did not disclose the fact that criminal proceedings were pending against him when when he furnished the bond. These submissions are also untenable.

8. The bond or declaration required from the petitioner, roughly translated from Marathi, reads as under :- "I have been selected as a Junior Clerk and I am placed at sr.no. 26 in the wait list. I declare that I was never employed in Government service at any point of time. There is no criminal case of any nature whatsoever either registered or pending against me nor have I been punished or fined for any reason whatsoever because of which I would be unsuitable for being employed in Government service. In the event any such information comes to light, I will forego my right to employment in Government service."

9. When this declaration was furnished by the petitioner, it could not be said that he was not involved in a criminal case. The first information 6 W.P.No.8245 of 2009 report was lodged against him in 2007. He obtained bail immediately thereafter in 2007 itself. Process was issued against him on 6.10.2007. In fact, because the petitioner had not been present in Court before the Judicial Magistrate First Class, Patoda after the summons was served on him, a warrant was issued. He made applications for exemption from appearance before the Judicial Magistrate First Class on at least three dates. These applications were granted. The last such application was made on 23rd July, 2008. Therefore, to suggest that the petitioner was not aware or had forgotten that he had been arrested and was facing a criminal trial when he executed the bond on 16th September, 2008 is unbelievable. The respondent no.2 has found that the petitioner was not suitable for Government service and has, therefore, removed his name from the waiting list. In our opinion, this order cannot be termed as erroneous or illegal.

10. In the case of Commissioner of Police, Delhi (supra), the candidate did not mention in the relevant columns of the application form about the pendency of a criminal case against him. He, however, voluntarily conveyed to the authorities that he had made an inadvertent mistake and that his candidature should be continued for the post of a Constable with the police force. The Apex Court held, there was no observation from the competent authority relating to the information conveyed or whether it could be treated as curing the defect in the application form. The cancellation of the candidature of the applicant was found to be 7 W.P.No.8245 of 2009 without application of mind as the relevant material was not considered by the competent authority before passing the order. In our opinion, the facts in the aforesaid case are completely different from the case at hand. The petitioner in the present case had executed a bond or declaration which assumes some solemnity. The fact that the petitioner had suppressed information about the criminal trial pending against him is apparent and, therefore, the judgement of the Supreme Court has no bearing on the facts and circumstances in the present case. In any event while striking off the petitioner's name from the list of selected candidates the learned district judge has considered the suitability of the petitioner's candidature and has found the petitioner unsuitable.

11. In the case of Pradip Soni vs. Canara Bank & ors. (supra), while being appointed, the candidates were required to give details in their bio- data as to whether they were arrested, prosecuted, kept under detention or bound down/fined/convicted by a Court of Law. They were also expected to give details about whether any case was pending against them in any Court. The candidate concerned was acquitted in a criminal case and, therefore, had written "no". However, after receiving the appointment letter he intimated to the authorities in detail about the criminal case initiated against him before joining duty. It is, in these circumstances, that the Madhya Pradesh High Court has found that the cancellation of the appointment was not proper. The facts in the present case are clearly distinguishable and therefore this judgement does not fortify the case of the petitioner. 8 W.P.No.8245 of 2009

12. In the case of Sandeep Kumar (supra), the Court found that though initially the petitioner in that case had failed to disclose in his application form his involvement in a criminal case, he had made a bona fide disclosure about the incident at the first available opportunity, i.e. at the time of filling in the attestation form. The Delhi High Court found that there was no wilful concealment on the part of the candidate as there was a compromise and the candidate had been acquitted as a result thereof, much before filling in the application form. In the present case the petitioner has in fact wilfully concealed information regarding the pending criminal case against him while furnishing the bond. Thus the judgement of the Delhi High Court has no bearing on the present case.

13. In Delhi Administration, through its Chief Secretary & ors. vs. Sushil Kumar, reported in (1996) 11 S.C.C. 605, a Constable who appeared for recruitment with the Delhi Police Service was selected provisionally. His selection was subject to verification of his character and antecedents by the local police. On verification it was found that his antecedents were such that he was not suitable for being appointed as a Constable in the police force. He had been charged with offences punishable under section 304 and section 324 read with sec. 34 of the Indian Penal Code. The Supreme Court found that he had been "discharged and/or acquitted". However, since the appointing authority 9 W.P.No.8245 of 2009 found it was not desirable to appoint such a person as a Constable in a disciplined force, the Supreme Court held, there was no need to set aside that order as the consideration relevant in the case was of the antecedents of the candidate. In the case of of Union of India & ors. vs. Kali Dass Batish & anr., reported in 2006 AIR SCW 227, the Apex Court has held that mere inclusion of a name in a select list does not give any right to the candidate for appointment in judicial service.

15. We see no merit in the case of the petitioner. He has been found unsuitable for being appointed to the post for which he had applied. If at the threshold of his career as Junior Clerk in the judicial service the petitioner has been found to be dishonest we see no reason to interfere with the impugned order. Persons who are recruited to posts in Courts must display the highest level of integrity and honesty. If at the point of entry itself in such service a person is found lacking in these sterling qualities it is appropriate that the problem is nipped in the bud. Courts can ill afford to employ persons of doubtful integrity.

16. Apart from this, this the petitioner has no right of employment merely because his name figures on the wait list. Petition dismissed. Rule discharged. (S.S. SHINDE, J.) ( SMT. NISHITA MHATRE, J.) amj/wp8245.09