A conviction for a trivial offense and subsequent grant of probation under the Probation of Offenders Act, 1958, does not disqualify an individual from being appointed to a position, as per the Supreme Court's decision in Avtar Singh vs. UOI & Ors.

JUDGMENT :

Mohammad Rafiq, J.

1. This appeal is directed against the judgment of the learned Single Judge dated 23.01.2019, by which the writ petition filed by the respondent was allowed.

2. The respondent-writ petitioner challenged the order dated 6.5.2016, by which his services on the post of Technical Helper was terminated. The appellant issued an advertisement for appointment on the post of Technical Helper. The respondent-writ petitioner applied for appointment on that post. He appeared in the written examination held on 2.9.2014 and qualified the same. He was appointed on the post of Technical Helper by order of the appellant dated 6.5.2015. He submitted his joining on 22.5.2015. Suddenly, on 31.8.2015, a show cause notice was issued to him stating therein that he submitted false declaration on 14.4.2015 to the effect that neither any criminal case is pending against him, nor was he convicted in any criminal case. According to the appellant, a criminal case was in fact, registered against the respondent-writ petitioner, which fact has been concealed by him. Reply to the show cause notice was sought within seven days. The respondent in the reply submitted copy of the order passed by the learned Additional Chief Judicial Magistrate, Sawai Madhopur in Criminal Case No. 79/2011 and the order dated 9.9.2015 passed by the learned Sessions Judge, Sawai Madhopur in criminal appeal No. 87/2015 mentioning therein that he has been given benefit of probation by the Judicial Magistrate and he was directed to pay only a sum of Rs. 200 as prosecution expenses as per the provisions of Section 5 of the Probation of Offenders Act, 1958 (for short-'the Act of 1958'). He filed an appeal against the aforesaid order of the Judicial Magistrate. Learned Sessions Judge, Sawaimadhopur by judgment dated 9.9.2015 allowed the appeal and granted him benefit of probation under Section 12 of the Act of 1958, according to which no disqualification was attached to him in the matter of appointment and therefore he prayed that the show cause notice be dropped.

3. The case of the respondent-writ petitioner before the learned Single Judge was that the appellant issued a notice on 4.3.2016 calling upon the respondent to appear in person before the Chairman cum Managing Director, Rajasthan Rajya Vidyut Prasaran Nigam Ltd. on 15.3.2016 for personal hearing. Even though in compliance of that, the respondent appeared before him, but without providing opportunity of hearing, the Chairman cum Managing Director, issued an order dated 6.5.2016 terminating his services. The learned Single Judge allowed the writ petition relying on the judgment of the Supreme Court in Avtar Singh vs. UOI & Ors. (2016) 8 SCC 471, especially on paras 38.4 and 38.4.1 of the report. The learned Single Judge observed that the respondent was guilty of offence under Sections 341 & 323 IPC and was served with the punishment of a reprimand under Section 3 of the Act of 1958 and also a fine of Rs. 200 under Section 5 thereof by the trial court. However, in appeal, he was extended the benefit of Section 12 of the Act of 1958 with direction that this would not be treated as a disqualification in service.

4. Shri Niraj Kumar Bhatt, learned counsel for the appellant has argued that the learned Single Judge has erred in law in not appreciating that the challan against the respondent was filed by the police for offence under Sections 147, 341, 323 and 149 of IPC, but he was convicted for offence under Section 341 and 323 of IPC and also punished for the same. The learned Single Judge has seriously erred in ignoring the fact that these offences are not trivial in nature. The case of the respondent does not fall within the criteria of para 38.4.1 of the judgment of Avtar Singh, supra and these offences cannot be considered as offence of petty/trivial nature.

5. Alternatively, learned counsel submitted that a declaration was submitted by the respondent before the appellants on 14.4.2015, whereas the decision o