Rajasthan High Court – Jodhpur
Neeraj Kanwar vs State Of Rajasthan on 27 March, 2025
[2025:RJ-JD:13298]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 9517/2024
Neeraj Kanwar D/o Shri Balveer Singh, Aged About 36 Years,
Resident Of Chak Ganeshgarh (Dungarsinghpura), District
Ganganagar (Raj.).
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary, Principal
Secretary, Department Of Personnel, Government Of
Rajasthan, Secretariat, Jaipur (Raj.).
2. The Joint Secretary, Department Of Personnel (K.4/2),
Government Of Rajasthan, Secretariat, Jaipur (Raj.).
3. The Rajasthan Public Service Commission, Through
Secretary, Ajmer.
----Respondents
For Petitioner(s) : Mr. Anand Purohit, Sr. Adv. assisted
by Mr. Mayank Roy, Mr. Sameer
Pareek and Mr. Vishal Singhal.
For Respondent(s) : Mr. Rajesh Panwar, Sr. Adv-cum-AAG
assisted by Ms. Meenal Singhvi.
HON'BLE MR. JUSTICE ARUN MONGA
Judgment
Reserved on : 06/03/2025
Pronounced on : 27/03/2025
1. Petitioner herein, a widow, whose marriage to her now
deceased husband irretrievably broke down, resulting in
matrimonial acrimony and collateral criminal proceedings, aspirant
to be an officer in Rajasthan Administrative Service (RAS), inter
alia, seeks issuance of an appropriate writ, order and/or direction
commanding the respondents to accord her appointment as per
her merit, which is being declined due to pending criminal
proceedings against her, instituted by her estranged husband.
1.1. Owing to marital discord, petitioner-wife also got an FIR
No.0164/2021, dated 19.08.2021 (a copy thereof tendered in
course of prior hearing and taken on record) under Sections 354,
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355, 323, 329, 404, 406, 406, 420 and 498-A read with 120-B of
IPC. Whereas, her deceased husband lodged an FIR No.0530/2020
dated 04.09.2020 under Sections 452, 341, 323 & 143 of IPC read
with section 27 of the Arms Act which, after investigation, led to
filing of challan (final report) dated 12.02.2021 under sections
323, 341, 451 read with 34 of the IPC (allegations/charges qua
Arms Act were dropped). It is the latter which has turned nemesis
to her career goal and is genesis of the instant service writ
petition.
Facts
2. Relevant facts as pleaded in the petition are that the
Rajasthan Public Service Commission (RPSC) issued advertisement
on 20.07.2021 for recruitment to the Rajasthan State
Administrative and Subordinate Services. The petitioner, being
eligible, applied and first took preliminary examination wherein
she qualified for the combined written examination conducted on
27.10.2021. Being successful in the same, she appeared for an
interview on 09.10.2023.
2.1. The petitioner was declared successful as per the select list
published by the RPSC and she was asked to appear before the
Medical Board 0n 25.01.2024. However, appointment letters were
subsequently issued to other selected candidates, including those
with lower merit than the petitioner, but the petitioner was denied
an appointment as per her merit.
2.2. Upon inquiry, she was orally informed that her appointment
had been withheld due to an FIR lodged by her husband. Despite
multiple requests, no written reason was provided for withholding
the petitioner’s appointment.
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2.3 Asserting that the petitioner’s husband had filed a false FIR
against her and her family, making omnibus allegations of
atrocities against them, the petitioner has filed this petition for the
relief as mentioned in the opening part of this judgment.
STAND TAKEN IN REPLY
3. Stand taken in the reply filed by the respondents, inter alia,
is as below :-
3.1. It is submitted that a criminal case was registered against
the petitioner vide an FIR on 04.09.2020, ibis, which subsequently
led to final report dated 12.02.2021 under section 173 of the
Cr.P.C. and trial qua same is presently pending before the
competent Court.
3.2. Furthermore, with respect to the character verification of
candidates selected for government service, in view of the pending
criminal trial against the petitioner, she is deemed ineligible for
appointment as per the Circular dated 04.12.2019, issued by the
Department of Personnel.
4. In the aforesaid backdrop, I have heard the rival contentions
of both the learned Senior counsels representing their respective
parties as well as perused the pleadings along with the record
appended therewith.
5. During pendency of the writ petition, vide an order dated
23.07.2024 passed by a Coordinate Bench of this Court, then
seized of the matter, an interim protection was granted to the
petitioner, in following terms :-
“Heard learned counsel for the parties.
The present writ petition has been filed with the prayer that
the petitioner may be issued appointment order in pursuance of her
selection in RAS/RTS Examination held in furtherance of the
notification dated 20.07.2021.
Learned counsel for the petitioner submits that despite the
petitioner has cleared the selection process for appointment on the
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[2025:RJ-JD:13298] (4of 27) [CW-9517/2024]post of RAS/RTS, she is not being offered appointment on the
ground that an FIR has been lodged against her by her husband for
the offences under sections 452, 341, 323, 143 of IPC and section
27 of Arms Act, 1959.
Learned counsel for the petitioner submits that the FIR was
lodged by her husband on account of some matrimonial dispute. He
submits that even the alleged offences do not involve moral
turpitude. He, therefore, prays that the writ petition filed by the
petitioner may be allowed and the respondents may be directed to
issue appointment order to the petitioner.
Per contra, learned counsel for the respondents submits that
charge-sheet in the case has been filed against the petitioner. It is
also contended that since the petitioner is involved in a criminal
case, she has not been issued appointment order.
I have considered the submissions made at the bar and also
gone through the relevant record of the case.
The petitioner has cleared the selection process in pursuance
of the notification dated 20.07.2021, however, she is being denied
appointment on the ground of pendency of a criminal case. Prima
facie, this court is of the view that in the present circumstances, the
FIR lodged against the petitioner by her husband on account of
some marital discord cannot be a ground to deny appointment.
The matter requires consideration.
Issue notice. Issue notice of the stay application also. The
rule issued is made returnable on 03.09.2024.
In the meanwhile, the respondents are directed to issue
appointment order to the petitioner in the appropriate category
according to her merit. The petitioner will be sent to undertake
training etc. in accordance with the rules.
It is made clear that appointment of the petitioner will be
provisional and the same shall be subject to the final outcome of the
writ petition.
The respondents shall be free to move an appropriate
application for vacation/modification of the interim order granted
by this court.”
6. Before proceeding further, it is pertinent to note that the
petitioner’s husband, who had lodged the FIR against her and her
family members, died before submission of petitioner’s application
form Annexure-2 on or about 16.08.2021, which shows her
marital status as ‘widow’.
Contentions on behalf of Petitioner
7. Mr. Anand Purohit, learned Senior Counsel appearing for the
petitioner, would argue as below :-
7.1. That the petitioner did not withhold any information
regarding the FIR against her. She voluntarily disclosed the
existence of FIR No.530/2020 dated 04.09.2020, registered at
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[2025:RJ-JD:13298] (5of 27) [CW-9517/2024]Police Station Hanumangarh Town, District Hanumangarh, lodged
by her estranged husband due to marital discord which resulted in
a charge-sheet being filed against her and her family members
and the trial id still pending.
7.2. There is thus no allegation of suppression or concealment on
the part of petitioner. Even the offences, will not, in any manner,
impinge on the nature of duties which are to be performed by the
petitioner.
7.3 Reliance is also placed on the Apex Court judgment rendered
by a 3-Judge Bench in Avtar Singh Vs. Union of India1, holding,
inter alia, that in case when fact has been truthfully declared in
character verification form regarding pendency of a criminal case
of trivial nature, employer, in facts and circumstances of the case,
in its discretion, may appoint the candidate subject to decision of
such case.
7.4. That there is absolutely nothing in the advertisement
Annexure -1 to the effect that a candidate would be considered
ineligible for appointment if a case involving any offences falling in
Chapter IV was under investigation, under trial or had concluded
in his conviction and sentence. To be on her own feet, she aspired
for selection and appointment, completed all formalities, deposited
fee and applied for the post. She struggled and worked very hard
preparing for the competitive written examination followed by
interview, achieved position of merit and also stood selected.
Persons with lower merit than her have been appointed. She was
eagerly looking for appointment when, on approaching the
respondents, she was orally informed, as a bolt from the blue,
1 2016 (8) SCC 471
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that due to an FIR lodged against her by her husband she cannot
be appointed.
7.5. It is contended that the FIR itself, stems from a matrimonial
dispute, is based on false allegations, the offences are trivial in
nature and, in any case, do not involve moral turpitude.
Furthermore, the petitioner has made a truthful disclosure of the
case against her.
7.6. In such circumstances, the refusal to appoint the petitioner,
due to the pending trial emanating from the matrimonial dispute is
unjustified and illegal.
7.7. Learned Senior also pointed out that in para-9 of the
petition, where it was specifically asserted that the petitioner
approached the respondents with a request to give reasons why
they were not issuing appointment order in her favour. In support,
she also produced copies of written application sent by registered
post and through e-mail Annexure-7 (including postal registration
receipt). In corresponding para 5 of their reply, the respondents
did not specifically deny these averments and only stated in
general terms that the same are not admitted as stated, which
amounts to an implied admission of the said averments in the
petition qua not providing reasons to her.
7.8. It was also contended that the rules of natural justice and
fair play required that the respondents at least to convey to the
petitioner in writing why despite her selection on merit, she was
not being appointed. That too was not done thus depriving the
petitioner even of an opportunity to question/challenge the
reasons, if given.
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7.9. It is also contended that Circular dated 04.12.2019
(Annex.R/1) issued by the Chief Secretary, Government of
Rajasthan, in which the character verification has been dealt with,
also deals with the proposition that the conviction or acquittal
would have limited relevance, but the character of the candidate
should have more relevance. It shall be open for the Appointing
Authority to assess the character of the candidate as to whether it
would be commensurate with the requirement of the post in
question. The formulations made in the Circular, which would
ordinarily pave way for consideration by the Appointing Authorities
are also laid down. The petitioner does not fall in the category of
disqualifications, which have been laid down in the Circular dated
04.12.2019.
7.10. Mr. Anand Purohit, to support his argument, also relied on
the judgment rendered by the Apex Court in case titled Pawan
Kumar vs. Union of India (UOI) 2, and judgment rendered by a
Division Bench of this Court in case titled Jubair Bhati v.
Rajasthan High Court3.
Contentions on behalf of Respondents
8. Apropos, Mr. Rajesh Panwar, learned Senior Advocate/AAG
appearing for the respondents vehemently opposed the petition.
He argued that once the review committee had applied its mind on
the culpability and the role attributed to the petitioner, coupled
with the fact that the offences alleged against her are part of
Chapter XVI and XVII of Indian Penal Code(IPC), this Court ought
2 (2023) 12 SCC 317
3 Rajasthan High Court,D.B. Civil Writ Petition No. 17047/2022, decided on
11.07.2024
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[2025:RJ-JD:13298] (8of 27) [CW-9517/2024]
not to exercise its discretionary jurisdiction by invoking
extraordinary powers under Article 226 of Constitution of India.
8.1. In support thereof, he would rely on Supreme Court
judgment in Anil Bhardwaj vs State of Madhya Pradesh 4,
wherein the Apex Court observed as under:
“12. The recruitment to the Judicial Service is governed by the
provisions of Madhya Pradesh Uchchatar Nyayik Seva (Bharti
Tatha Seva Sharten) Niyam, 1994. This Court issued direction to all
States to fill up the vacancies in subordinate Courts in a time
schedule. The direction was issued by this Court in Malik Mazhar
Sultan (3) and another vs. Uttar Pradesh Public Service
Commission and others, 2008(17) SCC 703. The selection process
for filling up the post of District Judge has to be completed by all
the High Courts as per the time schedule fixed by this Court. After
declaration of the merit list the candidates have to be given
appointments in time bound manner so that they may join the
respective posts. There is no dispute that on the date when the
Committee declared the appellant unsuitable, criminal case against
him under Section 498A and 406 IPC was pending which was
registered on a complaint filed by the appellant’s wife, Smt. Pooja.
The mere inclusion in the select list does not give an indefeasible
right to a candidate. The employer has right to refuse appointment
to the candidate included in the select list on any valid ground. The
persons who occupy Judicial Service of the State are persons who
are expected to have impeccable character and conduct. It is not
disputed that the criminal case under Section 498A and 406 IPC
was pending at the time when the appellant applied for the
recruitment, when he appeared for the interview and when the
result was declared. The character verification report was received
from the State where pendency of the criminal case was mentioned
which was the reason for the Committee to declare the appellant
unsuitable. The submission which needs to be considered is that
whether in view of the subsequent acquittal of the appellant, his
case was required to be reconsidered and he was entitled to be
appointed.
23. Reverting to the facts of the present case, the decision of
Examination-cum-Section and Appointment Committee for holding
the appellant unsuitable was based on the relevant consideration,
i.e., a criminal case against the appellant under Section
498A/406/34 IPC was pending consideration which was registered
on a complaint filed by the wife of the appellant. Such decision of
the Committee was well within the jurisdiction and power of the
Committee and cannot be said to be unsustainable. The mere fact
that subsequently after more than a year when the person whose
candidature has been cancelled has been acquitted cannot be a
ground to turn the clock backward.
4 (2021) 13 SCC 323
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[2025:RJ-JD:13298] (9of 27) [CW-9517/2024]8.2. Learned AAG also relied on condition No.15 of the
advertisement dated 20.07.2021 as well as Circular/Notification
dated 04.12.2019. According to condition no.15 of the
advertisement dated 20.07.2021, it is mandated that, at the time
of document verification, candidates must submit a character
certificate indicating that no offence is charged against them,
which defeats the very purpose of their appointment in the
services. Furthermore, the condition specifically states that if any
case is under trial, such a candidate would be ineligible for
appointment. It is also submitted by the respondents that the
petitioner has neither challenged this condition during the
recruitment process nor raised any objections. Hence, the
petitioner has accepted the terms and conditions of the
advertisement and is therefore precluded from raising any
objections at this later stage. The petitioner must adhere to the
conditions outlined in the aforementioned advertisement. In light
of the aforementioned condition of the advertisement, which has
not been challenged by the petitioner, it is clear that the petitioner
is ineligible for appointment in the State services due to an
ongoing trial against him.
8.3. In support of his arguments, he would also cite Apex Court in
the case of Bedanga Talukdar v. Saifudaullah Khan5.
8.4. He would canvass that the circular dated 04.12.2019 has
been dealt by this Court in the case of Ramesh Kumar Meena
Vs. State of Rajasthan6 and duly upheld.
5 (2011) 12 SCC 85
6 Rajasthan High Court, S.B. Civil Writ Petition No. 17972/2022
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[2025:RJ-JD:13298] (10of 27) [CW-9517/2024]8.5. That the employer has a right to consider the suitability of
the candidate in accordance with the government
orders/instructions/rules at the time of making a decision for
induction of the candidate in the employment which cannot be
taken away. This view has been taken by the coordinate Bench of
this Court in the case of Bhinya Ram Jajra Vs. State of
Rajasthan7, which has been upheld by Division Bench while
deciding D.B. Special Appeal (Writ)No.602/2022 (Bhinya
Ram Jajra Vs. State of Rajasthan) vide order dated 2.11.2022.
Further, the learned AAG would also relied on the Apex Court’s
judgment rendered in the case of Union of India v. Methu
Meda8.
8.6. That there is no necessity for the screening committee to
disclose the reasons for not granting the appointment to the
petitioner. In this regard, the Apex Court in the case of
Baidyanath Yadav v. Aditya Narayan Roy 9, was relied upon in
course of arguments.
Discussions and Analysis
9. Adverting now to the merits and demerits of the rival
contentions, as above. Having heard both sides, I shall now
proceed to record my reasoning and discussion in the succeeding
part of the order and render my opinion after analyzing the
position of applicable law.
10. It is undisputed that the petitioner was declared successful in
the Rajasthan Administrative Services combined Examination,
2021-22, and was called for an interview, followed by a medical
7 Rajasthan High Court, S.B. Civil Writ Petition No.16998/2021
8 (2022) 1 SCC 1
9 (2020) 16 SCC 799
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[2025:RJ-JD:13298] (11of 27) [CW-9517/2024]examination. However, her appointment was withheld due to the
pendency of the criminal case wherein she is an under-trial.
11. The issue before this Court is whether the pendency of the
said criminal case, which does not involve moral turpitude, can be
a ground to deny appointment to the petitioner, especially when
she has not suppressed any material facts regarding the said case.
12. A 3-Judge Bench of the Supreme Court, in Avtar Singh v.
Union of India & Ors., (2016) 8 SCC 471, has laid down
principles for considering the appointment of candidates with
criminal antecedents. Relevant part of the judgment ibid is as
under:
“30. The employer is given “discretion” to terminate or otherwise
to condone the omission. Even otherwise, once employer has the
power to take a decision when at the time of filling verification form
declarant has already been convicted/acquitted, in such a case, it
becomes obvious that all the facts and attending circumstances,
including impact of suppression or false information are taken into
consideration while adjudging suitability of an incumbent for
services in question. In case the employer comes to the conclusion
that suppression is immaterial and even if facts would have been
disclosed it would not have adversely affected fitness of an
incumbent, for reasons to be recorded, it has power to condone the
lapse. However, while doing so employer has to act prudently on
due consideration of nature of post and duties to be rendered. For
higher officials/higher posts, standard has to be very high and even
slightest false information or suppression may by itself render a
person unsuitable for the post. However, same standard cannot be
applied to each and every post. In concluded criminal cases, it has
to be seen what has been suppressed is material fact and would
have rendered an incumbent unfit for appointment. An employer
would be justified in not appointing or if appointed, to terminate
services of such incumbent on due consideration of various aspects.
Even if disclosure has been made truthfully, the employer has the
right to consider fitness and while doing so effect of conviction and
background facts of case, nature of offence, etc. have to be
considered. Even if acquittal has been made, employer may
consider nature of offence, whether acquittal is honourable or
giving benefit of doubt on technical reasons and decline to appoint
a person who is unfit or of dubious character. In case employer
comes to conclusion that conviction or ground of acquittal in
criminal case would not affect the fitness for employment,
incumbent may be appointed or continued in service.
34. No doubt about it that verification of character and
antecedents is one of the important criteria to assess suitability and
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[2025:RJ-JD:13298] (12of 27) [CW-9517/2024]it is open to employer to adjudge antecedents of the incumbent, but
ultimate action should be based upon objective criteria on due
consideration of all relevant aspects.
35. Suppression of “material” information presupposes that what
is suppressed that “matters” not every technical or trivial matter.
The employer has to act on due consideration of rules/instructions,
if any, in exercise of powers in order to cancel candidature or for
terminating the services of employee. Though a person who has
suppressed the material information cannot claim unfettered right
for appointment or continuity in service but he has a right not to be
dealt with arbitrarily and exercise of power has to be in reasonable
manner with objectivity having due regard to facts of cases.
36. What yardstick is to be applied has to depend upon the nature
of post, higher post would involve more rigorous criteria for all
services, not only to uniformed service. For lower posts which are
not sensitive, nature of duties, impact of suppression on suitability
has to be considered by authorities concerned considering
post/nature of duties/services and power has to be exercised on due
consideration of various aspects.
37. The “McCarthyism” is antithesis to constitutional goal,
chance of reformation has to be afforded to young offenders in
suitable cases, interplay of reformative theory cannot be ruled out
in toto nor can be generally applied but is one of the factors to be
taken into consideration while exercising the power for cancelling
candidature or discharging an employee from service.
38. We have noticed various decisions and tried to explain and
reconcile them as far as possible. In view of the aforesaid
discussion, we summarise our conclusion thus:
38.1. Information given to the employer by a candidate as to
conviction, acquittal or arrest, or pendency of a criminal case,
whether before or after entering into service must be true and there
should be no suppression or false mention of required information.
38.2. While passing order of termination of services or
cancellation of candidature for giving false information, the
employer may take notice of special circumstances of the case, if
any, while giving such information.
38.3. The employer shall take into consideration the government
orders/instructions/rules, applicable to the employee, at the time of
taking the decision.
38.4. In case there is suppression or false information of
involvement in a criminal case where conviction or acquittal had
already been recorded before filling of the application/verification
form and such fact later comes to knowledge of employer, any of the
following recourses appropriate to the case may be adopted:
38.4.1.In a case trivial in nature in which conviction had been
recorded, such as shouting slogans at young age or for a petty
offence which if disclosed would not have rendered an incumbent
unfit for post in question, the employer may, in its discretion, ignore
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[2025:RJ-JD:13298] (13of 27) [CW-9517/2024]such suppression of fact or false information by condoning the
lapse.
38.4.2.Where conviction has been recorded in case which is not
trivial in nature, employer may cancel candidature or terminate
services of the employee.
38.4.3.If acquittal had already been recorded in a case involving
moral turpitude or offence of heinous/serious nature, on technical
ground and it is not a case of clean acquittal, or benefit of
reasonable doubt has been given, the employer may consider all
relevant facts available as to antecedents, and may take appropriate
decision as to the continuance of the employee.
38.5. In a case where the employee has made declaration truthfully
of a concluded criminal case, the employer still has the right to
consider antecedents, and cannot be compelled to appoint the
candidate.
38.6. In case when fact has been truthfully declared in character
verification form regarding pendency of a criminal case of trivial
nature, employer, in facts and circumstances of the case, in its
discretion, may appoint the candidate subject to decision of such
case.
38.7. In a case of deliberate suppression of fact with respect to
multiple pending cases such false information by itself will assume
significance and an employer may pass appropriate order
cancelling candidature or terminating services as appointment of a
person against whom multiple criminal cases were pending may not
be proper.
38.8. If criminal case was pending but not known to the candidate
at the time of filling the form, still it may have adverse impact and
the appointing authority would take decision after considering the
seriousness of the crime.
38.9. In case the employee is confirmed in service, holding
departmental enquiry would be necessary before passing order of
termination/removal or dismissal on the ground of suppression or
submitting false information in verification form.
38.10. For determining suppression or false information attestation/
verification form has to be specific, not vague. Only such
information which was required to be specifically mentioned has to
be disclosed. If information not asked for but is relevant comes to
knowledge of the employer the same can be considered in an
objective manner while addressing the question of fitness. However,
in such cases action cannot be taken on basis of suppression or
submitting false information as to a fact which was not even asked
for.
38.11. Before a person is held guilty of suppressio veri or suggestio
falsi, knowledge of the fact must be attributable to him.”
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13. In the present case, the FIR itself stems from a matrimonial
dispute. Furthermore, the petitioner has made a truthful
disclosure of the case against her.
14. In this case, pursuant to the advertisement, admittedly, the
petitioner had truthfully disclosed in her application form for the
post, the facts regarding pendency of the criminal case against
her. The same was duly entertained by the competent authorities.
The petitioner was issued the admit card, she struggled and
worked very hard preparing for the competitive written
examination followed by interview, achieved position of merit and
also stood selected and the respondents also got her medically
examined.
15. All along, the respondents did not raise any objection
whatsoever to the petitioner’s eligibility and suitability for
appointment. Persons with lower merit than her’s had been
appointed. Yet the petitioner was denied the appointment and
orally informed that her appointment had been withheld due to a
complaint made by her husband regarding a pending criminal case
against her.
16. Relevant part of condition no.15 of the advertisement dated
20.07.2021 relied upon by the learned senior counsel for
respondents is that if any criminal case against the candidate was
under trial in the court, he/she would be ineligible for
appointment. The respondents have not shown any prescription
under the relevant statutory recruitment rules for automatic
ineligibility of a candidate if any criminal case against her was
under trial in the court. Settled law of the land is that when facts
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have been truthfully declared in character verification form
regarding pendency of a criminal case of trivial nature, the
employer in facts and circumstances of the case, in its discretion,
may appoint the candidate and that though it is open to the
employer to adjudge antecedents of the candidate, but ultimate
action should be based on objective criteria on due consideration
of all relevant aspects.
17. This being the position, I am of the opinion that the part of
condition no. 15 of the advertisement dated 20.07.2021 i.e. that if
in any pending criminal case, the candidate was under trial in
Court, he/she would be ineligible for appointment, is untenable in
law. It was wrongly inserted in the advertisement by the
respondents and ought to be ignored. It thus follows that the
respondents’ reliance thereon cannot be accepted.
18. I have already opined above that part of condition No.15 of
the advertisement dated 20.07.2021 is untenable in law and the
respondents had wrongly inserted it in the advertisement. I am of
the mind that, they cannot take undue and unfair advantage of
their self-made wrong to deny to the petitioner the hard earned
fruit of her success and merit in the competitive process of
selection. In view of this and the aforesaid facts and
circumstances, I am unable to accept the contention based on
condition no.15 of the advertisement dated 20.07.2021 that the
petition be dismissed as petitioner is wholly ineligible for
appointment to the post.
19. As would be seen in Avtar Singh (supra), (3-Judge Bench of
the Supreme Court), it was held, inter alia, that though it is open
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to the employer to adjudge antecedents of the candidate, but
ultimate action should be based on objective criteria on due
consideration of all relevant aspects and that in case when facts
have been truthfully declared in character verification form
regarding pendency of a criminal case of trivial nature, the
employer in facts and circumstances of the case, in its discretion,
may appoint the candidate subject to the decision of such case.
20. Perusal of circular dated 04.12.2019 (Annexure R-1) shows
that the same is in the nature of the Government’s administrative
guidelines to its functionaries and the ultimate decision-whether or
not to appoint a candidate is to be taken by the appointing
authority taking into consideration the facts and circumstances of
each case, the nature of work and status of the post on merits and
that in each case, while deciding on the suitability or unsuitability
of a candidate, the appointing authority should assess his
(candidate’s) character by taking into consideration the
circumstances of the offence.
20.1. Same circular dated 04.12.2019, as aforesaid, was also
subject matter of interpretation by this very Bench in a recent
judgment rendered in Kuljeet Singh Vs. State of Rajasthan &
Ors.: S.B. Civil Writ Petition No.11588/2023, on 21.03.2025.
Relevant extract thereof is as under:-
“13. Adverting now the main plank of defense taken by the
respondents i.e. circular dated 04.12.2019 (it is part in Hindi part
English), relevant part thereof is as under :-
“vr% ‘kklu esa lHkh Lrjksa ij ,d:irk cuk, j[kus ds
fgr esa] bl fo”k; esa iwoZ esa tkjh rRlac/kh lHkh
ifji=ksa@funsZ”kksa ds vf/kØe.k esa fuEukuqlkj fn’kkfunsZ”k tkjh
fd;s tkrs gSa %&
pfj= lR;kiu ds laca/k esa fofHkUu lsok fu;eksa esa izko/kku
bl izdkj gSa %&
(Downloaded on 11/04/2025 at 10:33:54 PM)
[2025:RJ-JD:13298] (17of 27) [CW-9517/2024]Character. The character of a candidate for direct
recruitment to the service must be such as to qualify him for
employment in the service. He must produce a certificate of
good character from the principal/Academic Officer of the
University or College in which he was last educated and two
such certificates written not more than six months prior to the
date of application from two responsible persons not
connected with the College or University and not related to
him.
(1) A conviction by a court of law need not of itself involve
the refusal of a certificate of good character. The
circumstances of the conviction should be taken into
account and if they involve no moral turpitude or
association with crimes of violance or with a movement
which has a its object the overthrow by violent means of
the government as established by law, the mere
conviction need not be regarded as a dis-qualification.
(2) Ex-prisoners, who by their disciplined life while in
prison and by their subsequent good conduct have prove
to be completely reformed, should not be discriminated
against on grounds of their previous conviction for the
purpose of employment in the service. Those, who are
convicted of offences not involving moral turpitude or
violance, shall be deemed to have been completely
reformed on the production of a report to that effect from
the Superintendent, After Care Home or if there are no
such Homes in a particular district, from the
superintendent of police of that district.
(3) Those convicted of offences involving moral turpitude or
violence shall be required to produce a certificate from
the superintendent, After Care Home, or if there is no
such home in particular district, from the superintendent
of police of that district, endorsed by the Inspector
General of prisons to the effect that they are suitable for
employment as they have proved to be completely
reformed by their disciplined life while in prison and by
their subsequent good conduct in an After Care Home.
bl laca/k esa izdj.k eku- loksZPp U;k;ky; esa igqapus ij
ekuuh; U;k;ky; }kjk fnYyh iz”kklu cuke lq”khy dqekj
¼1996 ¼11½ CC 605½ esa ;g fl)kUr izfrikfnr fd;k gqvk gS
fd Þlsok esa fu;qfDr iznku djrs le; vH;FkhZ dk pfj= ,oa
iwoZ vkpj.k egRoiw.kZ gSA vijkf/kd izdj.k esa nks”kflf) vFkok
nks”keqfDr vFkkZr okLrfod ifj.kke bruk lqlaxr ugha gS ftruk
dh vH;FkhZ dk vkpj.k o pfj=Aß
lsok fu;eksa dh vis{kk ;g gS fd ^fdlh vH;FkhZ dks
fu;qfDr fn, tkus ;k u fn, tkus ds laca/k esa fu;qfDr
izkf/kdkjh dks izR;sd izdj.k ds rF;ksa] ifjfLFkfr;ksa ,oa ftl in
ij fu;qfDr nh tkuh gS ml in ds dk;Z dh izd`fr ,oa xfjek
ds vuqlkj xq.kkoxq.k ij fu.kZ; ysuk pkfg,A iwoZ vkpj.k ds
vk/kkj ij fdlh Hkh vH;FkhZ dks fu;qfDr ds ;ksX; ;k v;ksX;
ikus dk fu.kZ; djrs le; fu;qfDr izkf/kdkjh dks izR;sd izdj.k
esa vijk/k dh ifjfLFkfr;ksa dks Hkh /;ku esa j[k dj vH;FkhZ ds
vkpj.k dk vkadyu djuk pkfg,A*
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[2025:RJ-JD:13298] (18of 27) [CW-9517/2024]
mDrkuqlkj ;g fufoZokn gS fd fdlh vH;FkhZ dks fu;qfDr
fn, tkus@ugha fn, tkus dk fu.kZ; vafre :i ls fu;qfDr
izkf/kdkjh dks gh] lqlaxr lsok fu;eksa dks /;ku esa j[krs gq,]
xq.kkoxq.k ds vk/kkj ij ysuk gksxkA rFkkfi dqN izdj.k ,slh
izd`fr ds gksaxs ftuesa Li”Vr% ;g ekuk tk ldrk gS fd
vH;FkhZ fu;qfDr gsrq ik= ugha gS tcfd vU; dqN ,sls izdj.k
Hkh gksaxs ftuesa fu;qfDr ls oafpr fd;k tkuk fdlh Hkh n`f”V ls
mfpr@U;k;iw.kZ ugha ekuk tk ldrkA vr% fu;qfDr
vf/kdkfj;ksa ds lkekU; ekxZn”kZukFkZ fun”kZu ds :i esa ,slh
izd`fr ds izdj.kksa dks ;gka ys[kc) fd;k tk jgk gS %&
1- ,sls izdj.k@fLFkfr;ka ftuesa fu;qfDr gsrq vik=rk ekuh tkuh
pkfg,%&
;fn fdlh Hkh vH;FkhZ ds fo:) fuEu esa ls fdlh Hkh
izdkj ds vijk/k ds rgr izdj.k vUos{k.kk/khu@U;k;ky; esa
fopkjk/khu ¼under trial½ gS vFkok nks”kflf) mijkar ltk gks
pqdh gS] rks mls jkT; ds v/khu lsokvksa@inksa ij fu;qfDr gsrq
ik= ugha ekuk tkuk pkfg, %&
¼i½ uSfrd v/kerk ;Fkk Ny] dwVjpuk] eRrrk] cykRlax]
fdlh efgyk dh yTtk Hkax djus ds vijk/k esa vUroZfyrrk
¼involvement½ gksA
¼ii½ Lokid vkS”kf/k vkSj eu% izHkkoh inkFkZ voS/k O;kikj
fuokj.k vf/kfu;e] 1988 ¼1988 dk vf/kfu;e la- 26½
esa ;FkkifjHkkf”kr voS/k O;kikj esa vUroZfyrrk gksA
¼iii½ vuSfrd O;kikj ¼fuokj.k½ vf/kfu;e] 1956 ¼1956 dk
dsUnzh; vf/kfu;e la- 104½ esa ;FkkifjHkkf”kr vuSfrd nqO;kZikj
esa vUroZfyrrk gksA
¼iv½ fu;ksftr fgalk ;k jkT; ds fo#) ,sls fdlh vijk/k esa
vUroZfyrrk gks] tks Hkkjrh; n.M lafgrk] 1860 ¼1860 dk
dsUnzh; vf/kfu;e la- 45½ ds v/;k; 6 esa of.kZr gSA
¼v½ Hkkjrh; n.M lafgrk ds v/;k; 16 ,oa 17 esa ;Fkkof.kZr
vijk/kksa esa vUroZfyrrk gksA
¼vi½ Hkkjrh; n.M lafgrk dh /kkjk 147] 148 ¼cyok djuk½ ds
vijk/k esa vUroZfyrrk gksA
¼vii½ Hkkjrh; n.M lafgrk dh /kkjk 498 A ¼fL=;ksa ds izfr
vkijkf/kd nqO;Zogkj&ngst½ ds vijk/k esa vUroZfyrrk gksA
¼viii½ vtk@vttk vf/kfu;e 1989 ds rgr vijk/k esa
vUroZfyrrk gksA
¼ix½ ySafxx vijk/kksa ls ckydksa dk laj{k.k vf/kfu;e ¼iksDlks½]
2012 ds rgr vijk/k esa vUroZfyrrk gksA
;gka ;g Hkh Li”V fd;k tkrk gS fd mDr izdkj ds
vijk/kksa ls lacaf/kr dksbZ Hkh lwpuk tkucw>dj fNikus okys
vH;fFkZ;ksa dks Hkh fu;qfDr gsrq vik= ekuk tk,xkA
2- ,sls izdj.k@fLFkfr;ka ftuesa vH;FkhZ dks fu;qfDr gsrq ik=
ekuk tkuk pkfg,%&
¼i½ ftu vH;fFkZ;ksa dks vkijkf/kd izdj.k esa vUos’k.k esa nks’kh
ugha ik;k x;k gks rFkk lacaf/kr HkrhZ esa ijh{kk ifj.kke tkjh
gksus ds ,d o’kZ ds Hkhrj vUos’k.kksijkar ,Q-vkj- U;k;ky; esa
izLrqr dh tk pqdh gksA
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[2025:RJ-JD:13298] (19of 27) [CW-9517/2024]
¼ii½nks’keqfDr ds ekeyksa esa] foHkkx esa bl laca/k esa xfBr lfefr
ftlesa ,d iqfyl vf/kdkjh Hkh lnL; gksxk] vH;FkhZ ds iwoZo`r
(antecedents), vkjksikas dh xgurk ,oa nks’keqfDr dk vk/kkj]
vFkkZr D;k nks’keqfDr lEekutud :i ls iznku dh xbZ gS
vFkok lansg ds ykHk@le>kSrs ds vk/kkj ij iznku dh xbZ gS]
vkfn dk leqfpr ijh{k.k
dj] vH;FkhZ dks fu;qfDr nsus ds laca/k esa fu.kZ; ysxhA
¼iii½ vH;fFkZ;ksa ds ,sls izdj.k ftuesa U;k;ky; }kjk ifjoh{kk
vf/kfu;e dh /kkjk 12 dk ykHk fn;k tkdj ifjoh{kk ij NksMk
x;k gksA ¼nks’kflf) fdlh fujgZrk ls xzLr ugha@jktdh;
lsok@Hkkoh thou ij fdlh izdkj dk foijhr izHkko ugha½A
¼iv½ vH;fFkZ;ksa ds ,sls izdj.k ftuesa nks’kh djkj fn;k tkdj
fd”kksj U;k; ¼ckydksa dh ns[kjs[k vkSj laj{k.k½ vf/kfu;e] 2005
dh /kkjk 24¼i½ dk ykHk iznku fd;k x;k gksA
leLr fu;ksDrk vf/kdkjhx.k ls vis{kk dh tkrh gS fd os
vH;fFkZ;ksa ds pfj=@iqfyl lR;kiu ds laca/k esa fu;qfDr ds
le; lacaf/kr lsok fu;eksa ds izko/kkuksa ,oa bu fn’kk&funsZ”kksa ds
izko/kkuksa dks n`f”Vxr j[krs gq, leqfpr fu.kZ; ysaxsA rFkk mDr
izd`fr ds izdj.kksa dks u rks vuko”;d :i&ls yfEcr j[ksaxs
vkSj u gh dkfeZd foHkkx dks lanfHkZr djsaxsA”
14. It would be seen from the text of circular dated 04.12.2019 that
the same is in the nature of general guidelines to be observed by the
concerned authorities and that the ultimate decision to adjudge the
suitability or unsuitability of a candidate has to be taken by the
appointing authority by taking into consideration the facts and
circumstances of each case. Further, it has been laid down in the
circular ibid that while appointing a candidate, his character; and
previous conduct are important. The result of criminal case –
whether conviction or acquittal – are not as much relevant as are
his conduct and character. These guidelines also show that as per
the Service Rules, there is no absolute or automatic disqualification
for employment of a candidate even after his conviction and
sentencing for criminal offences (obviously any offence, including
those falling in Chapter XVI and XVII of the Indian Penal Code
now Bharatiya Nyaya Sanhita or an offence involving moral
turpitude) and that on satisfying certain conditions, such candidate
can also be considered for appointment.
14.1. Circular’s emphasis on individual assessment conveys,
and rightly so, that it is not meant to serve as an inflexible rulebook
but, rather general guidelines envisaged therein are to be borne in
mind. The context Matters. Thus, the ultimate decision about a
candidate’s suitability must be made on a case-by-case basis. This
allows the appointing authority to look at the totality of a
candidate’s character and past conduct, rather than relying solely
on the outcome of a criminal proceeding.
14.2. It becomes far more relevant in cases where a candidate
might have a minor or isolated offence, and may even be a case of
strong reformation and good conduct over time, but yet he is
rejected by sheer routine mechanics. The guidelines contained in
the circular are not to be treated so rigidly as to not even allow for
the possibility that a candidate’s past, even if marred by being a
suspect or under trial, may be outweighed by subsequent
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[2025:RJ-JD:13298] (20of 27) [CW-9517/2024]reformation and exemplary behavior. In the present case there is no
other recorded criminal history other than the FIR in question,
which too, seems to have arisen due to some personal dispute. More
of it later. ”
20.2. In light of above, the pertinent question which thus arises
is, whether the allegations levelled by the deceased husband
against his wife (petitioner herein), qua which at this stage she is
an undertrial and a suspect, can be substantiated to the point of
resulting in her civil jeopardy during the pendency of criminal
trial?
20.3. The answer is in the negative and lies within the circular
dated 04.12.2019 itself read with the ratio enunciated by Supreme
Court in Avtar Singh (supra).
20.4. The Circular ibid, relied upon by the respondents, no doubt
stipulates that candidates against whom cases under Chapters XVI
and XVII of the IPC are pending investigation or trial, or who have
been convicted, should be deemed ineligible for appointment.
However, this blanket disqualification must be read in harmony
with the nuanced principles laid down by the three-judge bench of
the Supreme Court in Avtar Singh v. Union of India, which
emphasize that the appointing authority must assess the
suitability of a candidate based on the nature of the offence, its
relevance to the post, and whether it involves moral turpitude,
rather than mechanically denying appointment due to the mere
pendency of a case. The judgments cited by the respondents, such
as Union of India v. Methu Meda and Bhinya Ram Jajra v.
State of Rajasthan, no doubt, underscore the employer’s
discretion to evaluate antecedents, but they do not override the
Avtar Singh’s framework, which permits flexibility in cases of
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[2025:RJ-JD:13298] (21of 27) [CW-9517/2024]
trivial offences or those not involving moral turpitude. In the
petitioner’s case, the offences under Sections 452, 341, 323, and
143 IPC, arising from a matrimonial dispute, do not prima facie
reflect a character flaw that would render her unfit for the RAS
post, warranting such a contextual evaluation as to attract a rigid
application of the Circular.
20.5. The judgment in Avtar Singh‘s case explicitly cautions
against arbitrary denials of appointment, and requires a
proportionate response after considering the factual matrix,
including the absence of any suppression by the petitioner and if
offences are not multiple or heinous. This approach is also
reflected in and the intent of the Circular ibid. As already
observed, the appointing authority should weigh merits and
demerits specific to each case, rather than applying a blanket bar.
Consequently, the High Court and Supreme Court judgments cited
by the respondents, while affirming employer discretion, must
yield to the broader, reformative perspective of Avtar Singh,
ensuring that the petitioner’s appointment is not unjustly withheld
based solely on the pendency of a criminal case like the one in
hand arising out of matrimonial discord and not involving any
heinous offence or moral turpitude.
21. In view of law laid down by the Apex Court and the policy
guidelines in the respondents own circular dated 04.12.2019, I am
of the opinion that it was incumbent upon the appointing
authority/respondents to take into consideration, on objective
criteria, the relevant facts and circumstances of the case,
including the nature of duties and status of the post in question,
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[2025:RJ-JD:13298] (22of 27) [CW-9517/2024]
as also the circumstances of the offence, and then decide on the
petitioner’s suitability or unsuitability on merits and demerits.
22. On this aspect, the respondents’ have simply pleaded in
reply to the petition that due the to challan being presented
against the petitioner, as per point No.1 of the circular dated
04.12.2019 issued by the Department of Personnel, the petitioner
is considered ineligible for appointment. It is neither pleaded nor
shown on record that the competent authority had, on objective
criteria duly considered the relevant facts and circumstances of
case, including the nature of duties and status of the post in
question, as also the circumstances of the offence and then
decided on merits that the petitioner was unsuitable for
appointment.
23. The contention of the learned Senior Counsel for the
respondents that a review committee had considered the question
of petitioner’s suitability and found her unsuitable for
appointment, is wholly beyond their pleadings and even otherwise
without any supporting material brought on record. There is
nothing brought on record to show that any review committee had
even considered the question of petitioner’s suitability, let alone
applied its mind on the culpability and the role attributed to the
petitioner and found her unsuitable for appointment. It is not even
claimed that the petitioner’s appointing authority was a part of the
deliberations of the Screening Committee.
23.1. In course of hearing, on a Court query, learned Senior
Counsel apprised that though screening committee was
constituted, but the view taken has not been placed on record, if
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[2025:RJ-JD:13298] (23of 27) [CW-9517/2024]
the time is permitted, it can be placed on record. Be that as it
may, it transpires that screening committee has not taken any
independent view by applying objective thinking other than a
mechanical outcome of declaring the petitioner not eligible on the
technical ground of circular dated 04.12.2019, which states that
offences following under Chapter XVI & XVII of the IPC dis-entitle
a candidate to seek Government Employment.
24. Consequently, this contention of the learned Senior Counsel
for the respondents that merely because alleged offences are
categorized under Chapter XVI & XVII of IPC, therefore, petitioner
is ineligible per se, cannot be accepted.
25. In my opinion, the rules of natural justice and fair play
required that the respondents at least to convey to the petitioner
in writing why despite her selection on merit, she was not being
appointed. That too was not done thus depriving the petitioner
even of an opportunity to question/challenge the reasons, if given.
26. Even if, as contended, there was no necessity for the
screening committee to disclose the reasons for not granting the
appointment to the petitioner, that would not relieve the
respondents of their obligation to plead and produce on record
requisite material to show to the satisfaction of the Court’s
conscience that the appointing authority had in it’s discretion
decided to deny the appointment to the petitioner after
consideration of all relevant aspects, with due application of mind
on an objective criteria. Needless to say, that the discretion so
vested in the appointing authority was required to be exercised in
a just, fair and reasonable manner and not arbitrarily or
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[2025:RJ-JD:13298] (24of 27) [CW-9517/2024]
capriciously. Further, the same was also required to be
demonstrated on record. The respondents have utterly failed to do
discharge that obligation.
27. Qua the FIR No.530 dated 04.09.2020 lodged by the
petitioner’s husband-Yashvardhan Singh (since deceased), a few of
the circumstances of the offences also need to be noticed here.
28. From the wed-lock of the couple, daughter Bhumi was born
on 16.01.2018. As already noted, petitioner’s husband had died
prior to 16.08.2021. FIR shows that at the time of alleged
occurrence on 04.09.2020, the petitioner with the infant daughter
(then aged about 18 months), her brother Bhoj Raj Singh, their
mother Om Kanwar, father Balbir Singh and another person, who
was being addressed as Ugrasen, armed with a pistol had gone to
the house of petitioner’s husband (the complainant). FIR does not
show if anyone of them except Ugrasen was carrying any weapon.
The role ascribed to the petitioner is that she had joined the other
assailants in beating the complainant and when his brother
Praduman Singh tried to save her, the accused tried to beat him
also and that the petitioner had given a kick-blow with her leg to
the complainant’s mother-Meenakshi Kanwar. Pertinently, FIR does
not speak of any motive of the accused for commission of
offences.
29. The offences alleged in the FIR are under Section 452 (House
trespass after preparation for hurt, assault or wrongful restraint);
Section 341 (definition of wrongful restraint, punishable under
section 342, Section 323 (voluntarily causing hurt); Section 143
IPC (for being a member of unlawful assembly) and Section 27 of
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[2025:RJ-JD:13298] (25of 27) [CW-9517/2024]
the Arms Act. Vide section 320 of the Code of Criminal Procedure,
the offences under Sections 323/341/342 IPC are compoundable.
Qua the offence under Section 27 of the Arms Act, FIR does not
show if any one of the assailants except Ugrasen was carrying any
weapon. He (Ugrasen) is stated to have been armed with a pistol
but there is no allegation of its having been brandished or used. In
any case, in final report filed under Section 173 of Cr.P.C, the
alleged offence under Section 27 of Arms Act was dropped.
29.1. As stated above, the FIR had emanated from the
matrimonial discord between the petitioner and her husband
(since deceased). The offences in the FIR do not involve moral
turpitude. The role attributed to the petitioner is not of such a
nature so as to impinge on the nature of duties to be performed
by her upon appointment.
30. To sum up, the reliance placed by the respondents on the
judgment in Anil Bhardwaj v. State of Madhya Pradesh, is
distinguishable, as in that case, the pending criminal case involved
allegations under Sections 498A and 406 IPC, which, in light of
allegations levelled therein, has a direct bearing on moral and
financial integrity. In contrast, the present case involves minor
offences arising out of a dispute between the petitioner and her
husband. The contention that Condition No. 15 of the
advertisement disqualifies the petitioner from appointment is also
not sustainable, as the condition does not have an overriding
effect on the settled principles laid down by the Apex Court in
Avtar Singh (supra). The appointing authority must assess
whether the nature of the alleged offence disqualifies the
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[2025:RJ-JD:13298] (26of 27) [CW-9517/2024]
candidate from public service, which, in this case, does not appear
to be the situation.
31. Even otherwise, one ought to be mindful that the youth need
a reformative approach to the indiscretions committed in heat of
the moment, which may or may not be intentional. Societal and so
should the legal perspective be, of course depending upon the
nature of delinquency, that youthful indiscretions should not
permanently tarnish an individual’s future. A compassionate and
reformative approach ought to be adopted when dealing with
young individuals who may have committed minor transgressions.
Young people are still in the process of emotional and intellectual
development. They often act impulsively, sometimes making
decisions that are not well thought out. A punitive approach that
permanently brands young individuals as criminals for relatively
minor mistakes contradicts the principles of justice/fairness,
recidivism and reformation and reintegration into society.
32. There is no gainsaying to observe that mere registration of
an FIR does not reduce a citizen to the status of either a convict or
not having a good character. Every citizen is presumed innocent
unless proved guilty. In the case in hand it so transpires that the
alleged role attributable to the petitioner is not of such a nature so
as to either impinge on the nature of duties to be performed by
him or otherwise, even bordering moral turpitude.
33. Furthermore, the principle of proportionality must be kept in
mind by the administrative authority. Not all offences are of the
same gravity, and minor indiscretions should not be equated with
serious crimes. In the present case, the petitioner’s candidature
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[2025:RJ-JD:13298] (27of 27) [CW-9517/2024]
has simply been rejected on the ground that criminal cases are
pending against her.
34. In view of the foregoing discussion, this Court holds that the
denial of appointment to the petitioner solely on the ground of a
pending criminal case, which does not involve moral turpitude, is
arbitrary and unsustainable.
35. As an upshot, the present writ petition is allowed. The
respondents are directed to make the appointment of the
petitioner pursuant to interim order dated 23.07.2024 as absolute
in accordance with her merit and category, subject, of course, to
the outcome of the pending criminal case, and also furnishing an
undertaking on an affidavit by the petitioner that she shall not
claim any special equity by virtue of her having joined on the post
in question in case of her conviction in the pending criminal trial.
36. Needless to say, if the petitioner is acquitted or discharged in
the said case, there shall be no impediment in granting her all
consequential benefits.
37. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
124-/Jitender
Whether fit for reporting : Yes / No.
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