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HIGH COURT OF HIMACHAL PRADESH
TARLOK SINGH CHAUHAN, VIRENDER SINGH, JJ
SANJAY KUMAR – Appellant
Versus
STATE OF HIMACHAL PRADESH – Respondent
CIVIL WRIT PETITION NO.6851 OF 2022
For the Appellants/Petitioners:SH. SANJEEV BHUSHAN, SR. ADVOCATE, SH. RAJESH KUMAR
For the Respondents:SH. ASHOK SHARMA, A.G., SH. J. S. GULERIA, DY. ADVOCATE GENERAL, SH. RAJAT CHAUHAN, LAW OFFICER
A candidate's appointment cannot be withheld solely due to a pending FIR; discretion must consider the nature of the charges and prior disclosures.
Headnote:(A) Recruitment Rules - Clause 19 - The appointment of a candidate should not be kept in abeyance merely due to the pendency of a criminal case if he disclosed such information while applying - The use of the word 'may' indicates discretion, not a command. (Paras 8, 12, 20)
Facts of the case:
The petitioner, having qualified for the post of Constable, had his appointment kept in abeyance due to an FIR against him under trivial IPC sections without consideration of the facts or discretion.
Findings of Court:
The appointment process was improperly halted, and should be reconsidered based on the nature and gravity of the accusations.
Issues: The primary issue was whether the respondents could withhold the appointment based on the FIR without considering its content and relevance.
Ratio Decidendi: The court emphasized that while criminal cases should be reviewed, the mere existence of an FIR does not equate to disqualification, particularly for non-serious charges.
Result: The court allowed the petition, directing a fresh application of the discretion in reviewing the appointment.
| Table of Content |
|---|
| 1. petitioner qualified for a constable position but faced withholding due to fir. (Para 2 , 3 , 4) |
| 2. discretion in recruitment rules should consider the nature of allegations. (Para 7) |
| 3. the discretionary nature of withholding employment based on criminal cases. (Para 8 , 12 , 18) |
| 4. clarification on 'may' versus 'shall' in legal interpretation regarding candidate selection. (Para 10 , 11 , 13) |
| 5. importance of evaluating the gravity of charges before denying employment. (Para 14 , 19 , 20) |
| 6. court's direction to reassess the appointment based on a clear evaluation rather than mechanical application. (Para 21) |
ORDER
The instant petition after amendment has been filed by the petitioner for the grant of following substantive reliefs:
i. That appropriate writ, order or direction may very kindly be issued and the impugned communication (Annexure P-3) dated 09.09.2022 may very kindly be quashed and set aside by further directing the respondents to appoint the petitioner for the post of General Duty Constable (Male) with all consequential benefits of pay, arrear, seniority from the same date when his juniors in the selection process get the same in the interest of law and justice.
ii. That appropriate writ, order or direction may very kindly be issued and the appointment offered to respondent No.4 may very kindly be quashed and set aside in the interest of law and justice and in the alternative if the respondents want to accommodate him also then petitioner be given all financial benefits from the date he alongwith the other junior persons of the petitioner have been sent for training, alongwith interest @ 9% per annum.
iia. That appropriate writ, order, direction may very kindly be issued and clause 19.2 of Recruitment & Promotion Rules dated 05.08.2021 may very kindly be quashed and set aside being violative of various judgments pronounced by this Hon'ble Court, as also the Hon'ble Apex Court, in the interest of law and justice.
2. The respondents on 10.9.2021 issued recruitment notice for filling up the posts of 1334 Constables, out of which, 103 posts of Constables, were allocated to District Sirmour. The petitioner being eligible applied for the same and after qualifying the written as well as physical test was directed to undergo medical examination, wherein he was declared fully fit.
3. Thereafter, after verifying the antecedents, the respondents on the basis of a case, which was registered against the petitioner, vide FIR No.113/2019 dated 20.11.2019, under Sections 297, 34 and 323 IPC, have kept appointment of the petitioner in abeyance.
4. The respondents have filed reply where they have sought to justify their action of not appointing the petitioner on the ground of his being involved in a criminal case, by placing reliance on Clause-19 of H.P. Govt. Notification dated 5.8.2021 (Recruitment Rules) and Stage-08 of Recruitment Notice dated 10.9.2021.
5. We have heard the learned counsel for the parties and have gone through the material placed on record.
6. It is not in dispute that the petitioner has duly disclosed the pendency of criminal case while filling up the attestation form for his verification of character and antecedents. Thus, there is no concealment on the part of the petitioner.
7. Now, the moot question is that whether the respondents could have kept the appointment of the petitioner in abeyance on the basis of Clause 19 or not.
The Clause uses word “may” as against “shall”.
8. It is well settled proposition of law that the observance of the word 'may' used in the statute is only directory, in the sense, non-compliance with those provisions will not render the proceedings invalid. The word 'may' is not a word of compulsion. Going by the plain language, the use of the expression 'may' denotes that an enabling power is conferred on the authority concerned. It implies a discretion. it is also settled proposition that the enabling words like 'may' or 'shall' are construed as compulsive depending upon the contex
