Dr. Aashish Anand Gupta vs State Of Madhya Pradesh & Others

Heard on admission.

Petitioner, a prospective candidate for appointment on tenure (3 years) post of Senior Resident in Gajaraja Medical College, Gwalior, being aggrieved

by the condition No.8 in the advertisement dated 22/04/2019 inviting application for said appointment has filed this petition seeking the quashment of

said condition and for direction to consider the petitioner.

Vide advertisement in question, application has been notified for appointment to the post of Senior Resident for a tenure of 3 years through Walk-in-

Interview in various disciplines on a fixed pay of Rs.65,000/- per month. Besides other eligibility, condition No.8 stipulates:-

“8.

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As the petitioner has been subjected to criminal prosecution for the offences punishable under Section 409, 420, 120-B IPC and Section 3 (g-1), 2/4 of

Madhya Pradesh Recognized Examination Act, 1937 in respect of Pre P.G. Examination 2012, wherein he was arrested and after completion of the

investigation, the police has filed chargesheet on 21/02/2014, the petitioner stood disqualified for appointment to the post of Senior Resident.

Aggrieved, the petitioner has filed this petition challenging the condition on the contention that the same is arbitrary as it curbs his right of consideration

for appointment on public post.

It is urged that earlier on the basis of the said criminal case registered against him, the petitioner while he was undergoing his Post Graduate studies,

his admission to said course was cancelled by order dated 29/03/2014 which was subjected to challenge in Writ Petition No. 6397/2014, wherein by

order dated 16/12/2014 the order passed by the VYAPAM was set aside.

Evident it is from the order that liberty was granted to the VYAPAM and the Dean of Medical College to conclude the enquiry within stipulated time.

It is pertinent to note that on conclusion of enquiry, fresh order came to be passed on 20/02/2015 cancelling the petitioner's candidature for admission

to Post Graduate courses. The said order was challenged in Writ Petition No. 5737/2016. The Writ Petition was decided on 30/01/2018, whereby the

order dated 20/02/2015 was set Dr. Aashish Anand Gupta Vs. State of M.P. & others aside. It was found:-

“14. However, we find that both the judgments are not applicable to the facts of the present case. It is not a case where the show cause notice

was served in haste but was served after there was a direction of this Court setting aside the cancellation of the candidature of eight candidates. The

Board has relied upon specific model answers along with the show cause notice. Such model answers, as per the arguments of Mr. Diwakar, were

not the answers leaked but the answer key prepared by the Paper Setter or by the moderator. Such was not the allegation levelled in the show cause

notice. Therefore, there is complete change in stand from what is given in the show cause notice and what is sought to be relied upon during the

course of arguments. Therefore, the judgment in All India Railway Recruitment Board (supra) is of no help when the present is not a case of mass

copying but use of unfair means by 22 candidates out of over 3000 candidates. The finding of use of unfair means is arrived at on the basis of

inferences rather than any direct evidence. It is not a case of direct evidence of copying but on the basis of Three Sigma rule which prompted the

Board to cancel the candidature of petitioners. The judgment of this Court is again not applicable where the constitution and functioning of the Board

itself was subject matter of examination. Therefore, we find that the judgments referred to by the learned counsel for the respondents are not

applicable in the facts of the present case.â€​

On the bedrock of these two decisions, the petitioner question legal tenability of impugned Clause 8.

Evidently, in Writ Petition No. 6397/2014 and Writ Petition No. 5737/2016, the Division Bench was concerned with the petitioner's admission to the

Post Graduate course which came under cloud because of the criminal case registered against him. Whereas, presently, we are concerned with the

terms regarding appointment. The appointment apparently cannot be claimed as a matter of right. The employer, more particularly, the State enjoys

absolute discretion to lay down the condition for appointment. If the employer thinks that the person tainted with the criminal prosecution cannot be

taken on job, the exercise of said discretion cannot be termed as arbitrary.

In Banarsidas and others Vs. State of Uttar Pradesh and others [AIR 1956 SC 520, ]dwelling on the right of an employer to give or not to give an

appointment to a person having criminal case registered against him, it is held:-

“4. …In our opinion, it is open to the appointing authority to lay down the requisite qualifications for recruitment to Government service and it is

open to the authority to lay down such prerequisite conditions of appointment as would be conducive to the maintenance of proper discipline amongst

Government servants. ....â€​

In view whereof, the condition stipulated at No.8 in the advertisement dated 22/04/2019 cannot be said to be arbitrary as would warrant an indulgence.

Consequently, petition fails and is dismissed. No costs.