The Allahabad High Court has said that it is the right of the employer to appoint or reject a candidate due to a pending criminal case against the candidate.
The court has upheld the state government’s order refusing to give appointment on the ground of a pending criminal case.
A Single Bench of Justice Salil Kumar Rai passed this order while hearing a petition filed by Vishal Saraswat.
At the behest of the sister-in-law of the petitioner, Case under Sections 498-A / 323 / 324 / 504 / 506 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act, 1961 was registered against the petitioner as well as against his elder brother, father, mother and sister on 26.07.2017 and a charge-sheet has been submitted by the Investigating Officer.
Charges have been framed in the said criminal case against all the accused, including the petitioner, and the trial of the case is still pending. It has been stated in the petition that the allegations made in the first information report are false and the attention of the Court has been drawn to the fact that the entire family of the petitioner has been implicated in the said criminal case.
By order dated 21.12.2020 passed by the Director, Rajya Sabha Secretariat, the petitioner was granted provisional appointment as Assistant Legislative Committee – Protocol / Executive Officer in the Rajya Sabha Secretariat. The appointment was subject to the final decision in the criminal case.
The petitioner was subsequently selected in the Indian Defence Estates Service (Group ‘A’ Gazetted Post) under Directorate General of Defence Estates, Ministry of Defence and is presently posted as Chief Executive Officer, Roorkee Cantonment Board, Uttarakhand.
Meanwhile, the petitioner also applied in the Combined State & Upper Subordinate Service Examination, 2019 and was declared successful in the selection list published on 17.02.2021.
The petitioner secured merit position no 1 in the selections and was recommended by the Commission for appointment as Deputy Collector in the Provincial Civil Services (Executive). In his verification / declaration form, the petitioner disclosed the details of the criminal case pending against him.
It has been stated in the petition that during the character verification of the petitioner, a report was sought by the Special Secretary, Government of Uttar Pradesh from the Rajya Sabha Secretariat and the Under Secretary, Rajya Sabha forwarded an office memorandum dated 22.06.2021 reporting that the petitioner was clear from vigilance angle and that no disciplinary case was pending against him. Still the petitioner was not issued an appointment letter by the State Government, therefore, he made several representations seeking appointment in Provincial Civil Services (Executive).
By order dated 13.03.2023 passed by the Additional Chief Secretary, Appointment Section – III, Government of Uttar Pradesh, Lucknow, the representations of the petitioner were dismissed on the ground that a criminal case of a serious nature was pending against the petitioner.
The order dated 13.03.2023 was challenged by the petitioner through Writ and the Court by its order dated 11.04.2023 quashed the order dated 13.3.2023 and remitted back the matter to the State Government for a fresh decision. The Additional Chief Secretary, Appointment Section – III, Government of Uttar Pradesh, Lucknow vide his order dated 28.02.2024 has again rejected the claim of the petitioner again on the ground of the pendency of criminal case reasoning that the post of Deputy District Magistrate is more sensitive than the post at present held by the petitioner.
The order dated 28.02.2024 has been challenged in the petition.
The Court observed that,
The facts of the case are not in dispute. The petitioner has been charged and put on trial in Case registered under Sections 498-A / 323 / 324 / 504 / 506 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act, 1961. The said case is still pending. The petitioner is already a member of the Indian Defence Estates Service (Group ‘A’ Gazetted Post) which is a Central Government Service. The petitioner has been selected for appointment in Provincial Civil Services (Executive) in the State of Uttar Pradesh in the examinations held in Combined State & Upper Subordinate Service Examination – 2019. In his verification form, the petitioner truthfully disclosed the details of the criminal case pending against him. It is noted that the criminal case was pending against the petitioner on the date the vacancies were notified by the Uttar Pradesh Public Service Commission.
The petitioner is on trial in a case which involves moral turpitude. The Additional Chief Secretary, while passing the impugned order dated 28.02.2024, has considered the fact regarding the pendency of the criminal case against the petitioner and also the claim of the petitioner that the pendency of the aforesaid criminal case could not be a legal impediment in appointing the petitioner subject to the final decision of the trial court as was done by the Rajya Sabha Secretariat where the petitioner was appointed as Protocol / Executive Officer in the Rajya Sabha Secretariat. The petitioner also relies on the fact that he is already a member of the Group – A service under the Central Government.
However, the aforesaid facts are not sufficient for the Court to hold that the appointing authority, in the case, has wrongly exercised its discretion rejecting the claim of the petitioner. Two different public employers may have different views regarding the suitability of a candidate for appointment and one employer is not bound by the decision and discretion of the other employer. The State Government cannot be saddled with the liability to mechanically and slavishly follow the decision taken by the Central Government or the Rajya Sabha Secretariat.
While rejecting the claim of the petitioner, the State Government has taken note of the fact that the petitioner is a claimant for appointment on the post of Deputy Collector in the Provincial Civil Services (Executive). The appointment sought by the petitioner is on a high post, therefore, in accordance with the judgment of the Supreme Court in Avtar Singh (supra), a rigorous scrutiny regarding the suitability of the petitioner for appointment cannot be considered as an improper exercise of discretion. Further, in light of the judgment of the Supreme Court in Nazrul Islam (supra), the petitioner cannot be considered as suitable for appointment in Provincial Civil Services (Executive) till the pendency of the criminal case against him.
“So far as the opinion of the appointing authority that the post of the Deputy Collector is more sensitive post than the post currently held by the petitioner under the Central Government is concerned, the comparative assessment of the sensitivities of different posts lies within the exclusive domain of the Executive and the correctness of the decision regarding the sensitivity and importance of different posts cannot be made on the basis of any judicially manageable and recognized standards. The said fact is a non-justiciable fact preventing this Court from exercising its power of judicial review.
The records available with the Court do not show any improper motive or mala fide or bias in the competent authority and any such ground has also not been pleaded by the petitioner while challenging the impugned order.
There is no error in the opinion of the appointing authority so as to persuade this Court to interfere under Article 226 of the Constitution of India.
For all the aforesaid reasons, there is no error in the impugned order dated 28.02.2024 passed by the Additional Chief Secretary, Appointment Section – III, Government of Uttar Pradesh, Lucknow,” the Court further observed while dismissing the petition.