High Court
Case Details
Neutral Citation No. - 2025:AHC:57163 Court No. - 4 Case :- WRIT - A No. - 669 of 2025 Petitioner :- Vishwash Yadav Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashok Kumar Yadav Counsel for Respondent :- C.S.C. Hon'ble Ajit Kumar,J. Heard learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State respondents. By means of present petition filed under Article 226 of the Constitution, petitioner has prayed for a direction to the respondents to permit the petitioner for joining pursuant to appointment order dated 10.09.2024 appointing him as forest guard.
Legal Reasoning
Learned counsel for the petitioner submits that when petitioner was not being permitted to give joining as forest guard, he made a representation that only because of one criminal case and that too in a very petty matter was pending against the petitioner, could not be denied his appointment on the principle laid down by the Supreme court in the matter of Avatar Singh v. Union of India, 2016 (8) SCC 471. It is submitted that in identical set of facts, writ petition was filed by one Naveen Rajhansh being writ A No. 6543 of 2023, Naveen Rajhans, State of U.P and 5 Others, decided on 28.4.2023, who was selected in Civil Police, but was not being offered appointment only on account of pending criminal case. This Court considered this aspect of the matter in the light of
Decision
judgment of Avtar Singh (supra) and allowed the writ petition by setting aside the order with further direction to process appointment of that petitioner. Vide paragraph 13 to 21, the Court held thus : "13. Thereafter, again respondent No.5 rejected the candidature of the petitioner. The perusal of impugned order reveals that respondent No.5 has noted that the District Magistrate in his report dated 03.04.2023 considered the judgment of the Apex Court in the case of Avatar Singh (supra) and recommended that the candidate can be considered for being appointed subject to result of trial in Case Crime No.368 of 2017. The said recommendation has been made by District Magistrate under Government Order dated 28.04.1958 meaning thereby that the procedure contemplated under said Government Order has been followed and the District Magistrate exercising the power under the said Government Order has recommended the petitioner to be considered for appointment after analysing the fact of the criminal case in the light of judgment of Apex Court in the case of Avatar Singh (supra). Respondent No.5 while passing the order has ignored the recommendation of the District Magistrate and recorded one line finding that as the charge levelled against the petitioner comes within the definition of 'moral turpitude' and the such activity of petitioner is subversive activity against the State, therefore, the petitioner is not suitable for the post of Constable. The relevant portion of the order is reproduced hereinbelow:- "अततः ररिट ययाचचिकया ससंख्यया- 21793/2022 नववीन रियाजहसंस बनयाम उ०्ቚ० रियाज्य व 04 अन्य ममे मया० न्ययाययालय दयारिया पयाररित चनररय चदिनयासंक-17.02.2023 व 23.02.2023 कमे समयादिरि मम मयाननवीय सवብኘच्चि न्ययाययालय नई चदिलवी दयारिया Avtar Singh Vs Union of India and others, 2016 (8) SCC 471 व Satish Chandra Yadav Vs Union of India and others, 2022 SCC Online SC 1300 मम दिवी गयवी चवधधि व्यवस्थया व ससंयय्ሹ चनदिमेशक अचभिययोजन, आजमगढ़ कमे चवधधिक अचभिमत व अन्य अचभिलमेखोመ कया अवलयोकन चकयया गयया तयो पयायया गयया चक ययाचिवी कमे चवरू्ቍ पसंजवीककत अचभिययोग ननैचतक अधिमतया व शयासन तसं्ቔ कयो चवचन्ቖ करिनमे ककी शमेरवी मम आतया हनै। ऐसवी सस्थचत मम अभ्यथቕኍ अनय्ቅमयासंक - 4352120096 नववीन रियाजहसंस पय्ቔ शवी महयातम रियाम , कयो पवीएसवी जनैसमे अनयशयाधसत बल मम आरिकवी पवीएसवी कमे पदि परि अनयपयय्ሹ पयायमे जयानमे कमे फलस्वरूप ययाचिवी / अभ्यथቕኍ कया अभ्यथरन/चियन चनरिस्त चकयया जयातया हनै तथया मया० उच्चि न्ययाययालय इलयाहयाबयादि दयारिया पयाररित चनररय चदिनयासंक - 17.02.2023 व 23.02.2023 कमे समयादिरि मम ययाचिवी/अभ्यथቕኍ दयारिया ्ቚस्तयत ्ቚत्ययावमेदिन चदिनयासंचकत-06.03.2023 एततत् दयारिया चनस्तयाररित चकयया जयातया हनै। प्ቔयासंकतः य-86/2022 चदिनयासंक- 03/04/2023" 14. The relevant extract of the order, quoted above, do not disclose that respondent no.5 has given any consideration to the recommendation given by the District Magistrate under the Government Order dated 28.04.1958. The order impugned does not reflect any application of mind by the respondent No.5 in rejecting the claim of the petitioner. 15. This Court may note that the perusal of F.I.R. indicates that the allegation against the petitioner in F.I.R is that he was also present in protest of about 200-250 at the time of panchayatnama of one Anil Kumar and raised slogans against the administration. Perusal of F.I.R. indicates that no specific role has been assigned to the petitioner, and allegation against the petitioner is general in nature. Respondent No.5, while rejecting the claim of the petitioner, did not consider this aspect of the matter. 16. This Court is conscious of the fact that it is exclusive domain of the appointing authority to assess the suitability of a candidate and once the suitability of the candidate is assessed on the settled principles of law, this Court should not interfere with the discretion of the appointing authority unless the said discretion has been exercised arbitrarily or mala fidely 17. This Court for the reasons given hereunder is of the opinion that the respondent No.5 has exercised the discretion arbitrarily and on extraneous consideration while rejecting the claim of the petitioner. The District Magistrate in the light of judgment of Avatar Singh (supra) has recommended the case of the petitioner for being considered for appointment under the Government Order dated 28.04.1958. The respondent No.5 has not given any reason for not agreeing with the report of the District Magistrate 24.12.2021. The impugned order reveals that it has not given consideration to the nature of the charge levelled against the petitioner in the F.I.R. Further, the F.I.R. has been lodged on 18.08.2017 and more than 5 years have passed, yet the trial has not been concluded. 18. In such view of the fact, this Court finds that the petitioner cannot be denied appointment on the basis of criminal case more so when order impugned has been passed without application of mind. 19. Normally this Court would have remanded the matter back to the authority concerned to decide afresh but in the instant case this is the third round of litigation for the same cause of action as on earlier two occasions the petitioner approached this Court by filing Writ-A No.11788 of 2022 & Writ-A No.21793 of 2022. Further reason for not remanding the matter back is that there was a report of District Magistrate under the Government Order 28.04.1958 whereby he recommended to consider the appointment of the petitioner subject to the decision in the trial of criminal case. The respondent No.5 while passing the order has not given any reason in ignoring the report of the District Magistrate and further has not deliberated as to how charges against the petitioner fall under the definition of 'moral turpitude' and how the act of the petitioner is subversive against the interest of the State. 20. Thus, for the reasons made above, the order impugned is set aside and respondent No.5 is directed to process the appointment of the petitioner within a period of two months from the date of production of certified copy of this order, if there is no other legal impediment. 21. Writ petition is accordingly allowed with no order as to costs. " Learned counsel for the petitioner has drawn the attention towards consequential order passed by Commandant 20th Batallion PAC Azamgarh dated 27.7.2023 whereby said Naveen Rajhansh was offered appointment. The operative portion of the consequential order passed by Commandant is reproduced hereunder: "अततः ररिट ययाचचिकया ससंख्यया 6543/2023 नववीन रियाजहसंस बनयाम उ०्ቚ० रियाज्य व अन्य मम पयाररित चनररय चदिनयााሩचकत 28.04.2023 कमे समयादिरि मम मयख्य स्थयायवी अधधिव्ሹया मयाननवीय उच्चि न्ययाययालय इलयाहयाबयादि दयारिया चदियमे गयमे अचभिमत चदिनयााሩचकत 14.06.2023 व अवतयारि धससंह बनयाम ययचनयन ऑफ इसणቄኌयया मम मयाननवीय सवብኘच्चि न्ययाययालय , नई चदिलवी दयारिया दिवी गयवी चवधधि व्यवस्थया कमे आलयोक मम अभ्यथቕኍ कमे चवरू्ቍ पसंजवीकक त अचभिययोग ननैचतक अ्ቕमतया , शयासन तन््ቔ कयो चवन्ቖ करिनमे व अनवरित बनमे रिहनमे लयायक न हयोनमे कमे फलस्वरूप मयाननवीय जनपदिवीय न्ययाययालय मम लसमबत अचभिययोग मय०अ०ससं० 368/2017 धियारिया-147/332/341/506/336/427 भिया०दिसं०व० व 7 सवीएलए एक्ट मम पयाररित हयोनमे वयालमे असन्तम चनररय कमे अधिवीन अभ्यथቕኍ नववीन रियाजहसंस पय्ቔ शवी महयातम रियाम कयो आरिकवी पवीएसवी पदि परि चनययच्ሹ ्ቚदियान चकयमे जयानमे कया आदिमेश पयाररित चकयया जयातया हनै। " Learned Standing Counsel does not dispute the legal proposition as discussed in the case of Naveen Rajhansh and also another judgment of the High Court in the case of Sonu Yadav v. State of U.P. and 5 Others, Writ A No. 4577 of 2019, decided on 8th January, 2021. In view of above, this petition stands disposed of with direction to respondent to offer joining to the petitioner pursuant to order of appointment within a period of four weeks from the date of presentation of certified copy of this order. Order Date :- 17.4.2025 Sanjeev Digitally signed by :- SANJEEV RANJAN High Court of Judicature at Allahabad