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Judgment
Petitioner is seeking appointment as Constable. He stands selected. However, Certificate which is required to be given in terms of Rule (d) of the
Jammu and Kashmir Civil Service Regulation has not been granted. This is not so granted as petitioner was said to have been detained under
Public Safety Act.
It be seen that no specific order has been passed. Learned counsel appearing for the petitioner submits that until and unless activity of a person is
found to be such which can disable himself to join the Government Service, letter of appointment cannot be denied.
It be seen that each and every criminal offence cannot have the affect of disqualifying the candidate. The question of moral delinquency and the
question as to whether the offence was such which involved moral turpitude or not may also have to be taken into consideration. Some judicial
precedents do exist that merely because a person stands convicted under the Penal Provisions, it would not give rise to a conclusion that the
offender is guilty of moral delinquency. The circumstances under which the offence was committed have to be taken into consideration. Reference
in this regard be made to Corpus Juris Secundum. The relevant extract is as under:
While frequently general statements have been made to the effect that mere assault does not or may not involve moral turpitude or the assault and
battery rarely involve moral turpitude, the rule would seem to be that assault and battery may involve more turpitude and it may not, the difference
depending on the circumstances, and whether an assault does or does not involve moral turpitude generally will be determined by the particular
facts of the individual case. The statutes of various jurisdiction divide assaults in the different degrees and many of the crimes which are included
within such definitions are crimes that involve moral turpitude. Homicide may or may not involve moral turpitude depending on the degree of the
crime.
This aspect of the matter was considered in case reported as Brij Kishore Shukla V. M. P. S. R. T. Corporation and others, 1996 (1) SCT
254 (MP). In para 8 of the order following observations were made :
When can it be said that an offence involves moral turpitude. The term moral turpitude has not been defined either in the Act or in the Indian Penal
Code. According to the New lexicon Webster's Dictionary of the English Language 'turpitude' means inherent wickedness. The concept of moral
turpitude as stated in Black's Law Dictionary is that it involves baseness, vileness or the depravity in private and social duties which a man owes to
his fellowman or to society, in general, contrary to accepted and customary rule of right and duty between man and man. Thus it is an act or
behaviour that gravely violates moral sentiments or accepted moral standards of the community and is a morally culpable quality held to be present
in some criminal offences as distinquished from others. In other word it is the quality of a crime involving grave infringement of the moral sentiment
of the community as distinguished from statutory prohibitions. If one were to look at the matter in a very narrow sense or in general term, of
righteousness, society does not permit or approve of any offence being committed. It has to be borne in mind that every act punishable in law is not
offence involving 'moral turpitude. It appears to me that a circumstance in which a crime is committed and how the society views the commission of
that offence in those circumstances is relevant. The question whether offence involves moral turpitude. It would depend upon a number of
circumstances. Drinking orgambiling in a school may not involve. If however, a school teacher does these acts, the position would be different. An
offence committed under one set of circumstances may involve moral turpitude and the some offence committed under a different set of
circumstances may not. For instances, a person who goes to commit theft or rape may not be able to achieve his object and on being caught may
kill the person apprehending him. Such an offence of murder committed under these circumstances would certainly involve moral turpitude as it
involves depravity or wickedness of character and crime involves grave infrigement of the community as distinguished from statutory prohibitions.
Offence of murder committed due to enmity may not perse involve baseness of character. It is a matter of common knowledge that in many
societies people do sometimes commit murder with a view to avenge their enmity and such murders are not looked down upon as involving that
baseness or depravity of character as to amount to moral turpitude. In other words this conduct by itself cannot be said to possess morally
culpable quality which is present in those criminal offences which involve moral turpitude. The offence of murder was held to be an offence
involving no moral turpitude by a Division Bench of Punjab and Haryana High Court in 'Kuldeep Singh Vs. State of Punjab11994 (3) SCT15
(PandH) (DB): AIR 1994 Punjab and Haryana 242 and it was observed that an 'Act of Killing1 a person is normally attributed to a feeling of hurt
or revenge; act of murder will not come within the board concept of moral turpitude as interpreted by Courts.
Reliance is also being placed on a decision given by this court in S. W. P. No. 1071 of 1996 decided on 27th of February 1997. In the above
case decisions reported as 'Subrate Kumar Chatterjee Vs. Deputy Chief Accounts Officer, Eastern Railway and others', AIR 1958 Calcutta 654,
'K. George Vs. The State of Kerala AIR 1964 Kerala 238, 'Padmanabha Pillai Krishna Pillai Vs. Damodaran Vasudevan and others', AIR 1965
Kerala 18 and 'State of Kerala V. K. A. Balan and Another' 1976 (1) SLR 94 were distinguished.
It be seen that in another decision in S. W. P. No. 1223 of 1996 decided on 12th or May, 1997 the petition was allowed and direction was given
to the official respondents to pass appointment order and to take him in service. It was further observed:
However, it shall be open to the competent authority to deal with the matter in accordance with the rules, in case he is convicted by any criminal
court. His seniority shall reckon from the date his coselectees were appointed in order of merit but this shall not entitled him to any pecuniary
benefit."" Earlier it was said :""The respondents submit that formal order of appointment would be issued after verification of the certificates and on
the satisfaction of the appointing authority regarding the petitioner's character and antecedents in terms of Rule 17(d) of the J and K Civil Services
(Classification, Control and Appeal) Rules 1956 (1956 Rules) and the J and K Civil Services (Verification of Character and antecedants)
Instructions of 1969 sanctioned vide Govt. Order No. Home 559IS of 1969 dated 18.9.1969 which empower the Appointing Authority to satisfy
himself about the character and antecendants of a candidate before making his appointment.
In this scenario all that remains to be seen is: whether the respondents were justified in withholding the appointment order of the petitioner in the
facts and circumstances of the case in light of rule 17(d) of the 1956 Rules and the Govt. instructions contained in Govt. order No. Home559/IS of
1969.
The appointing authority cannot kept the matter in cold storage and hold the available 'adverse material' close to his chest without formation of any
opinion on such material and taking appropriate action supported by reasons to disentitle a selected candidate from appointment. Such a course of
action would be wholly and grossly arbitrary infringing the right of equality of employment of a candidate at his back.
The requirement of passing of the order by the appointing authority on the basis of available material becomes necessary to ensure that the
selected candidate is not deprived of his employment on an extraneous consideration or relevant material. The verification of antecedents and
character of a candidate through the police agency may through up material which may not be relevant his suitability for the job or which may be
extraneous to the nature of his duties attached to the post. The selected candidate in such a situation, cannot be shown the door merely because
the verification had disclosed some secret information about him."" It was further observed :
Such pendency which could also result in acquittal of an accused, could not constitute a factor for depriving a selected candidate from
employment unless he was convicted and sentenced which would earn him a disqualification for holding the post"".
In view of the above situation of law, the respondent State is directed to examine the case of the petitioner in the light of judgements referred to
above and pass appropriate order. Let this be done within period of three months. The period of three months would begin from the date the copy
of order passed by this court is made available to the respondents by the petitioner. If for any practical reasons it is not possible to take a decision
respondentState would be at liberty to seek extension of time. But in that eventuality they would have to explain each and every days' delay.
Disposed of accordingly.