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IN THE HIGH COURT OF MADHYA PRADESH
(LARGER BENCH)
Hemant Gupta, C.J., Ravi Shankar Jha and Smt. Nandita Dubey, JJ.
Ashutosh Pawar v. High Court of M.P. and another
Writ Petition No. 5865 of 2016 (Jabalpur); Decided on 12.1.2018
Held: Therefore, in respect of the Questions No. 1, 4 and 5 we hold that decision of criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. (2016)8 SCC 471, 2015(1) JLJ 79, (2013)7 SCC 685, 2018(I) MPWN 37 (SC), (1993)4 SCC 288, (1987)3 SCC 1 and (1995)5 SCC 457 discussed and followed. (1998)1 SCC 550, (2013)9 SCC 363 and (2010)14 SCC 103 distinguished. Writ Petition No. 5887 of 2016 decided on 27.10.2016 and Writ Appeal No. 367 of 2015 decided on 17.12.2015 overruled.
(2) Constitution of India -- Art. 226 -- power of judicial review -- is to find out whether decision-making process is in accordance with law and is not arbitrary or irrational -- Court does not substitute itself as a Court of appeal over reasons recorded by State Government -- jurisdiction is to remit matter to the authority for reconsideration. AIR 1954 SC 440, AIR 1965 SC 532, 1969 JLJ SN 139, (1994)6 SCC 651, (2008)1 SCC 683, (1994)4 SCC 448, (2008)8 SCC 475 and (2014)3 SCC 767 followed. Writ Appeal No. 581 of 2017 relied on. Writ Petition No. 5887 of 2016 decided on 27.10.2016 overruled. [Paras 34, 40 & 41
(3) Precedent -- conflict between two judgments of Supreme Court by equal strength -- earlier view would be binding precedent if earlier judgment was not brought to notice of Court in later judgment. 2003(1) JLJ 105 (SB) relied on. (2015)2 SCC 377 and (2011)4 SCC 644 referred to. [Para 23
(4) Judge -- there cannot be any compromise in respect of rectitude, honesty and integrity of candidate who seeks appointment as Civil Judge -- personal conduct has to be free from any taint -- must be in tune with highest standard of propriety and probity. (1993)4 SCC 288, (1987)3 SCC 1, (1995)5 SCC 457 and Writ Petition No. 2848 of 2013 referred to. Writ Appeal No. 367 of 2015 not correct law. [Para 28
(5) Lower Judicial Service (Recruitment and Conditions of Service) Rules, 1994 (M.P.) -- Rr.9 and 10 -- M.P. Civil Services (General Conditions of Service) Rules, 1961 -- R.6 -- while recommending name of petitioner, High Court left question of eligibility to be determined by State Government -- decision of State Government cannot be said to be illegal or without jurisdiction -- however, clarified that decision in respect of eligibility on account of involvement in criminal case has to be taken by High Court -- if State has any information of antecedents or any other material relevant in respect of suitability, State must share information with High Court -- ultimate decision on suitability of candidate for appointment is to rest with High Court. [Para 47
¼1½ voj U;kf;d lsok ¼HkrhZ ,oa lsok 'krsZ½ fu;e 1994 ¼eŒÁŒ½ & fuŒ 7¼?k½ rFkk 10¼2½ & eŒÁŒ flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e] 1961 & fuŒ 6 & le>kSrs vFkok nks"keqfDr ds vk/kkj ij naM U;k;ky; dk fofu'p; & vFkZ ;g ugha ekuk tk ldrk fd vH;FkhZ vPNs pfj= dk gS] ftlls og ik= gks tk,A
vfHkfu/kkZfjr % vr% Á'u ØŒ 1] 4 ,oa 5 ds laca/k esa ge vfHkfu/kkZfjr djrs gSa fd le>kSrs vFkok nks"keqfDr ds vk/kkj ij naM U;k;ky; ds fofu'p; dk vFkZ ;g ugha ekuk tk ldrk fd vH;FkhZ vPNs pfj= dk gS] ftlls og ik= gks tk,] D;ksafd nkafMd dk;Zokgh vijk/k dh nksf"krk irk yxkus dh n`f"V ls gksrh gS tcfd flfoy in ij fu;qfDr ml in ij mldh mi;qDrrk dh n`f"V ls gksrh gSA muesa ls ÁR;sd dh dlkSVh fHkUu ekunaMksa ij vk/kkfjr gksrh gS vkSj blfy,] vkijkf/kd ekeys esa nks"keqfDr vH;FkhZ ds fy, vPNs pfj= dk Áek.ki= ugha gSA l{ke Ákf/kdkjh dks flfoy in ds d`R;ksa ds fuoZgu ds fy, vH;FkhZ dh mi;qDrrk ds laca/k esa fofu'p; ysuk gksrk gS rFkk vkijkf/kd ekeys esa nks"keqfDr&ek= bl fu"d"kZ ds fy, i;kZIr ugha gS fd vH;FkhZ dk pfj= vPNk gSA ¼2016½ 8 ,l lh lh 471] 2015 ¼1½ ts ,y ts 79] ¼2013½ 7 ,l lh lh 685] 2018 ¼1½ eŒÁŒ ohDyh uksV~l 37 ¼,l lh½] ¼1993½ 4 ,l lh lh 288] ¼1987½ 3 ,l lh lh 1 rFkk ¼1995½ 5 ,l lh lh 457 foosfpr ,oa vuqlfjrA ¼1998½ 1 ,l lh lh 550] ¼2013½ 9 ,l lh lh 363 rFkk ¼2010½ 14 ,l lh lh ÁHksfnrA fjV ;kfpdk ØŒ 5887 lu~ 2016 fu.khZr fnukad 27-10-2016 rFkk fjV vihy ØŒ 367 lu~ 2015 fu.khZr fnukad 17-12-2015 myVk x;kA
¼2½ Hkkjr dk lafo/kku & vuqPNsn 226 & U;kf;d iqufoZyksdu dh 'kfDr & ;g irk yxkus ds fy, gS fd D;k fofu'p;u ÁfØ;k fof/k vuqlkj gS] euekuh ;k foosdghu rks ugha & U;k;ky;] jkT; ljdkj }kjk vfHkfyf[kr dkj.kksa ,oa Lo;a dks vihy U;k;ky; ds :i esa ÁfrLFkkfir ugha djrk & ekeys dks iqufoZpkj ds fy, Ákf/kdkjh dks Ásf"kr djus dh vf/kdkfjrk gSA , vkb vkj 1954 ,l lh 440] , vkb vkj 1965 ,l lh 532] 1969 ts ,y ts ¼,l ,u½ 139] ¼1994½ 6 ,l lh lh 651] ¼2008½ 1 ,l lh lh 683] ¼1994½ 4 ,l lh lh 448] ¼2008½ 8 ,l lh lh 475 rFkk ¼2014½ 3 ,l lh lh 767 vuqlfjrA fjV vihy ØŒ 581 lu~ 2017 voyafcrA fjV ;kfpdk ØŒ 5887 lu~ 2016 fu.khZr fnukad 27-10-2016 myVk x;kA ¼iSjk 34] 40 ,oa 41½
¼3½ iwoZ fu.kZ; & mPpre U;k;ky; dh leku 'kfDr dh U;k;ihBksa ds nks fu.k;ksZ esa fojks/k & i'pkr~orhZ fu.kZ; esa U;k;ky; dk /;ku iwoZrj fu.kZ; ij vkd`"V ugha fd;k x;k gks rks iwoZrj n`f"Vdks.k vkc}dj iwoZ fu.kZ; gksxkA 2003 ¼1½ ts ,y ts 105 voyafcr ¼fo'ks"k U;k;ihB½ voyafcrA ¼2015½ 2 ,l lh lh 377 rFkk ¼2011½ 4 ,l lh lh 644 fufnZ"VA ¼iSjk 23½
¼4½ U;k;k/kh'k & flfoy U;k;k/kh'k ds :i esa fu;qfDr pkgus okys vH;FkhZ dh bZekunkjh] lR;okfnrk vkSj lR;fu"Bk ds laca/k esa dksbZ le>kSrk ugha gks ldrk & O;fDrxr vkpj.k fdlh Hkh nks"k ls eqDr gksuk pkfg, & e;kZnk vkSj lR;fu"Bk ds mPpre ekunaM ds vuq:i gksuk vko';d gSA ¼1993½ 4 ,l lh lh 288] ¼1987½ 3 ,l lh lh 1] ¼1995½ 5 ,l lh lh 457 rFkk fjV ;kfpdk ØŒ 2848 lu~ 2013 fufnZ"VA fjV vihy ØŒ 367 lu~ 2015 lgh fof/k ughaA ¼iSjk 28½
¼5½ voj U;kf;d lsok ¼HkrhZ ,oa lsok 'krsZ½ fu;e] 1994 ¼eŒÁŒ½ & fuŒ 9 rFkk 10 & eŒÁŒ flfoy lsok ¼lsok dh lkekU; 'krsZ½ fu;e] 1961 & fuŒ 6 & ;kph ds uke dh flQkfj'k djrs le; mPp U;k;ky; us ik=rk dk Á'u jkT; ljdkj }kjk vo/kkfjr fd,s tkus ds fy, NksM+k & jkT; ljdkj dk fofu'p; voS/k vFkok vf/kdkfjrkjfgr ugha dgk lk ldrk & rFkkfi] Li"V fd;k x;k fd vkijkf/kd ekeys esa varoZfyr gksus ds dkj.k ik=rk ds laca/k esa fofu'p; mPp U;k;ky; }kjk fd;k tkuk gksxk & jkT; dks iwoZo`r vFkok mi;qDrrk ds laca/k esa lqlaxr fdlh vU; lkexzh dh tkudkjh gks rks jkT; ljdkj dks mPp U;k;ky; ls tkudkjh vo'; lk>k djuk gksxh & fu;qfDr ds fy, vH;FkhZ dh mi;qDrrk ij vafre fofu'p; mPp U;k;ky; ds gkFk esa gksxkA ¼iSjk 47½
Gupta, C.J. --- 1. A Division Bench of this Court while hearing the present writ petition on 23.10.2017 found conflict between the two Division Bench decisions of this Court in Writ Petition No. 5887/2016 (Arvind Gurjar v. State of M.P. and another) decided on 27.10.2016 and Writ Appeal No. 163/2009 (Roop Narayan Sahu v. State of M.P. and others) decided on 11.8.2017. Therefore, the following questions were framed for the decision of the Larger Bench :
1. Whether in all cases, where an FIR lodged against a person for minor offences has been quashed on the basis of a compromise arrived at between the parties or a person has been acquitted on account of a compromise between the parties, the character of the person applying for appointment thereafter, has to be treated as Good and such a person cannot be held ineligible for appointment under the Rules of 1994?
2. Whether the High Court in exercise of its powers under Article 226 of the Constitution of India, can step into the shoes of the appointing authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person ?
3. Whether the High Court while allowing such a petition in exercise of its powers under Article 226 of the Constitution of India can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates were appointed and to grant him back dated seniority and all other benefits or whether the High Court should simply remit the matter back to the authority for taking a decision in this regard ?
4. Whether the high standards of adjudging the good character of a candidate for appointment as a Judicial Officer, which has been adopted and followed by the State under the Rules of 1994 till the decision in the case of Arvind Gurjar (supra), were and are right and proper or whether in view of the decision in the case of Arvind Gurjar (supra), the same should be considered to be relaxed to the extent that in all cases the character of a person should be treated to be good where he has been acquitted for minor offences on the basis of a compromise ?
5. Whether the decision in the case of Arvind Gurjar (supra), lays down the correct law ?
6. Any other question that may arise for adjudication or decision in the dispute involved in the present petition and which the Larger Bench thinks appropriate to decide?
2. The brief facts leading to the present writ petition are that the petitioner applied for appointment as Civil Judge, Class-II (Entry Level). The selection process of the said recruitment commenced vide advertisement dated 13.10.2014 (Annexure P-1). The petitioner successfully completed all the three stages of the examination i.e. preliminary examination, main examination and interview and his name was recommended for appointment as Civil Judge, Class-II. However, while recommending the name of the petitioner on 3rd September 2015, the following was communicated to the State Government by this Court :
“(2) Shri Ashutosh Pawar (Roll No.1621), s/o Shri Gaurav Pawar, R/o 9, Adarsh Indira Nagar, Main Road, Indore (M.P.) 452002, Selected at Sr. No. 1 in ST category, has informed that on the basis of crimes registered against him at Police Station Malhargunj, Indore (i) Cr. Case 1742/08 under sections 452, 294, 324/34, 323/34 and 506-B IPC was commenced, which was disposed on the basis of compromise and he was acquitted vide order dated 13.4.2012 (copy of Order enclosed with Attestation Form), Passed by Shri Ashutosh Shukla, JMFC, Indore; (ii) Cr. Case 135/05 under sections 294, 323/34 and 506B IPC was commenced before juvenile justice Board and on admission on 12.1.2007, order of admonition was passe
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