Mere Registration of FIR Cannot Render A Candidate Ineligible For Public Appointment: Punjab and Haryana High Court

by Nov 14, 2022Blogs0 comments

There is not even a fraction of a second of my life when I just don’t feel the maximum heart burn just like any other ordinary citizen not connected with politics in any manner that in India for an ordinary person if somebody lodges even a false FIR, the concerned ordinary person is most promptly barred from getting any government job. But that same ordinary person if willingly becomes a most notorious dacoit like Phoolan Devi or Malkhan Singh or anyone else or murderer or rapist or any other criminal and is named in 100 cases or 200 cases or 500 cases accused of most serious charges of murders, rapes, dacoities, kidnappings etc then still he/she is most eligible to not just contest elections from jails but also become an MP or MLA who makes all laws for us! That same person who is denied the government job is allowed to then most conveniently turn the tables and term it as “politically motivated cases” and become not just job seeker but also job giver and our law maker in our country who decides what our law will be in our penal laws that will govern all of us!

No wonder, the percentage of such dreaded criminals and persons with criminal background is rising higher and higher over the years not just in State Assemblies but even in the Parliament itself! Yet, we hardly see any such judgment which actually provides relief to a common man. This is the real tragedy of our nation which always talks about “right to equality” being the fundamental right of every individual but makes an “open mockery and tramples” Article 14 of our Constitution right under its feet with Supreme Court, Parliament and law makers watching everything like a hapless, helpless and hopeless spectator!

To be brutally honest, I feel most elated when I read such courageous and path breaking judgments like this one but such heart thrilling moments really come only once in a blue moon! While directing the Canara Bank to issue appointment letter to a woman, whose offer letter was cancelled in 2018 on the ground of a pending FIR, the Punjab and Haryana High Court in a most brilliant, bold, courageous and worth emulating judgment by even the Supreme Court titled Mandeep Kaur v. Canara Bank and Another in CWP-1827-2019 that was pronounced just recently on October 31, 2022 minced just no words to make it abundantly clear that mere registration of a criminal case against a candidate can never be a ground for denying the right to participate in a recruitment process and to secure a public appointment. Hon’ble Mr Justice Rajbir Sehrawat who authored this most laudable judgment made it absolutely clear that FIR is merely a report regarding an alleged incident which may or may not involve commission of some offence. Paradoxically, we rarely see such courageous judgments due to which most brilliant and competent candidates are barred from becoming soldiers, police officers, army officers, judges, etc as the breed of such bold Judges like Hon’ble Mr Justice Rajbir Sehrawat is a most rare breed which we must candidly concede!

At the very outset, this most learned, most laudable, most landmark and most logical oral judgment authored by the Single Judge Bench of Hon’ble Mr Justice Rajbir Sehrawat sets the ball rolling by first and foremost putting forth in the opening para that, “This is a petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorari quashing the impugned order dated 10.04.2018 (Annexure P-8) and order / communication dated 17.10.2018 (Annexure P-10), whereby offer of appointment issued to the petitioner for the post of Probationary Officer has been cancelled; along with certain other prayers.”

To put things in perspective, the Bench then envisages in the next para of this robust judgment that, “The facts, as pleaded in the petition, are that the petitioner had applied for the post of Probationary Officer in the respondent-Bank. The petitioner participated in the process of selection and was ultimately selected as per her merit. Thereafter, the petitioner was issued the appointment letter by the respondent-Bank. Accordingly, the petitioner was deputed to the induction training at Gurugram. When the petitioner joined the training, she informed the respondent-Bank that during the period of the process of selection, a criminal case, i.e. FIR No.83 dated 20.02.2017, under Sections 147, 149, 323, 452 and 506 of the Indian Panel Code at Police Station Thanesar Sadar, District Kurukshetra, was registered; involving the name of the petitioner as well, along with other family members. Then the respondent-Bank had informed the petitioner that the petitioner should get clearance in the said criminal case. Later on, the petitioner was asked to report for training at Lucknow. However, the petitioner could not join because earlier the respondent-Bank had told her to get clearance in the criminal case, but the criminal case was still pending at that time. However, the same has now been quashed by this Court, vide order dated 20.07.2022 passed in CRM-M-27571-2022 (Bali Ram Hari and others Vs. State of Haryana and others). In the meantime, the petitioner had filed CWP28038-2017 which was disposed of by directing the respondents to take a decision on the representation of the petitioner. Vide the impugned order dated 17.10.2018 (Annexure P-10), the respondents have denied the appointment to the petitioner on the ground that the criminal case against the petitioner has not attained finality and also relying upon Clause 9 of the appointment letter issued to the petitioner; which stipulated that the appointment was subject to satisfactory report regarding her character and antecedents from the Police Authorities and non-pendency of any criminal case/prosecution against her. The said clause also provided that her conviction, though released on probation and the compounding of offence shall also be treated as report adverse to her. Therefore, in essence, the petitioner has been denied to joining on the post; on the ground of pendency of the criminal case without recognizing the fact that the case against the petitioner already stands quashed.”

On the one hand, the Bench points out then in next para that, “Arguing the case, the learned Senior counsel for the petitioner has submitted that the action of the respondent-Bank is totally baseless. When the petitioner applied for the job, there was no criminal case registered or pending against her. It was during the period of the process that a false case had come into being involving the name of the petitioner as well, along with her entire family. Even that case stands quashed by this Court. Therefore, there was no basis left for the respondents to deny the appointment to the petitioner. Learned Senior counsel for the petitioner has relied upon a judgment rendered by Hon’ble the Supreme Court in the case of Avtar Singh Vs. Union of India and others, 2016(3) S.C.T. 672. Hence, it is submitted that the petitioner is entitled to the appointment to the post of Probationary Officer along with all consequential benefits. The writ petition deserves to be allowed.”

While continuing in the same vein, the Bench then points out in the next para that, “On the other hand, learned counsel for the respondents has submitted that the petitioner, undisputedly, was involved in a criminal case. The appointment letter issued to the petitioner specifically contained a stipulation that any pendency of the criminal case or conviction or compounding of the offence would be taken as adverse to the petitioner; and she will not be entitled to be appointed to the post of Probationary Officer. Therefore, the respondents have rightly denied appointment to the petitioner in view of the above-said clause in the appointment letter. Learned counsel has further submitted that mere selection does not confer any right upon a candidate to be appointed. In any case, the selection was subject to the satisfactory report regarding character and antecedents on the part of the petitioner. Hence, the respondents have rightly declined the appointment to the petitioner. The petition deserves to be dismissed.”

Quite significantly, the Bench after hearing both sides then observes in the next para that, “Having heard the learned counsel for the parties, this Court finds substance in the arguments raised by the learned Senior counsel for the petitioner. Undisputedly, there was no FIR or criminal case registered or pending against the petitioner when she applied for the post of Probationary Officer and when she participated in the process. It is only during the process of the selection that an FIR came into being. The registration of the FIR was also disclosed by the petitioner to the respondents on the first available opportunity. Therefore, it is not even the case of the respondents that the petitioner had concealed the registration of pendency of a criminal case against her. Moreover, the case already stands quashed by the order of this Court. Hence, there is absolutely no criminal case pending against the petitioner as on the date when the appointment is declined to the petitioner.”

Most significantly, most remarkably, most commendably and so also most forthrightly, the Bench of Hon’ble Mr Justice Rajbir Sehrawat then while rising to the occasion minces just no words to hold in the next para of this extraordinary courageous judgment that, “So far as the mere registration or pendency of a criminal case against the petitioner, is concerned, needless to say that FIR is merely a report regarding an alleged incident which may or may not involve commission of some offence. Therefore, mere factum of the receipt of first information by the police cannot be raised to the level of a fact rendering a candidate ineligible for the public appointment. A person is to be presumed to be innocent till proved otherwise upon a trial conducted as per the law. This presumption of innocence cannot be eclipsed in any other collateral process or for any other purpose. Reading anything adverse to a person only for registration of an FIR is nothing but a systemic bias based upon a negativism arising from the frustration due to the facts that the criminal cases remain pending for years together and the courts are not in a position to take the trial to a logical end within reasonable time. Hence, a convenient method has been devised to deny benefits to citizen by putting factum of registration of FIR against him in the forefront. In this way, an irrelevant fact is made a ground to deny to the citizen right to equality guaranteed by Article 14 and Article 16 of the Constitution of India. This approach is sworn enemy of the rule of law, and thus has to be disapproved. Therefore, mere registration of a criminal case against the candidate can never be a ground for denying the rights of such a candidate to participate in the process and to secure a public appointment in his/her favour. Moreover, even the said FIR now stands quashed. Therefore, the very basis on which the action of the respondents was based, has been extinguished by the due process of law. Therefore, the eclipse cast upon the rights of the petitioner, even if so perceived by the respondents, though without any basis, already stands removed. The reliance of the learned counsel for the respondents upon the terms of appointment letter is totally irrelevant and non-sustainable. It is not even in dispute that there is no rule/regulation applicable to the respondents which prohibits the appointment of a candidate merely on registration of the criminal case. Therefore, induction of a term in the appointment letter; to the effect that if a criminal case is registered then the appointment would be denied, would be totally without any legal sanction. The respondents cannot introduce a condition in terms of the appointment which is not supported by any statutory provision; and it also goes against the right to equality of the candidate to participate in the process of selection and to secure a public appointment as per his/her merit. Such a condition is an artificial device created by the respondents; which militates against the fundamental rights of the petitioner and against more than one jurisprudential principles. Therefore, the same deserves to be deprecated with the contempt it deserves.”

Finally, the Bench then concludes by holding in the final para of this notable judgment that, “In view of the above, the impugned order/action of the respondents is quashed and the writ petition is allowed. The respondents are directed to issue appointment letter to the petitioner, effective from the date the candidate immediately lower to her in the merit of selection was appointed. The petitioner shall also be, accordingly, entitled to all service benefits including seniority and pay fixation on notional basis. However, she will not be entitled to arrears of salary upto the date she actually joins. However, this denial of arrears shall not be taken as adverse to the petitioner for any other purpose whatsoever; or for the purpose of grant of any other benefits, including the pensionary benefits at the end of her tenure. The respondents are directed to issue the necessary appointment letter to the petitioner within a period of two months from the date of receipt of the certified copy of this order.”

In sum, the long and short of this most path breaking judgment by Hon’ble Mr Justice Rajbir Sehrawat of the Punjab and Haryana High Court is that mere registration of FIR cannot render a candidate ineligible for public appointment! How can police be given so much of discretionary powers that they can destroy any person’s life by just ensuring that a mala fide FIR is lodged against any particular person if the person opposed to him/her bribes the palm of the concerned police official? Of course, we all fully know how rampant corruption prevails in the police department and the landmark reforms suggested by the Supreme Court in Prakash Singh case in 2006 are still gathering dust in most of the States in India sixteen years later in 2022!

So it would definitely not amount to an exaggeration from any angle if I say most forthrightly that this most extraordinary bold judgment is definitely the crying need of the hour! To say the least, even the Supreme Court must also always definitely pay heed to what has been laid down in this most commendable judgment and politicians and ordinary persons must be treated on same footing! It certainly thus merits no reiteration of any kind that this most dangerous, despicable, disastrous, destructive and derisive trend of always and always giving long rope to politicians alone who are allowed to contest even from jails making a complete mockery of our Vidhan Sabha and Parliament and depriving an ordinary person from a government job just because some one maliciously lodges FIR with the active connivance of some police officials must end now once and for all and this most courageous judgment is definitely a ray of hope for all ordinary citizens that we all must gain inspiration from in our own respective lives and act accordingly! No denying it!

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