Shiv Puri vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 19.02.2018 (Annex.-8), whereby the candidature of the petitioner for the post of Assistant Prosecution Officer Grade - II pursuant to the advertisement dated 15.05.2018, has been cancelled.

The petitioner was selected pursuant to the advertisement and secured 68th position in merit. On account of petitioner's conviction in a criminal case, the petitioner was denied appointment. Feeling aggrieved, the petitioner filed SBCW No. 7167/2017, which writ petition was decided by order dated 28.11.2017, whereby the writ petition was disposed of with the direction to the respondents to consider the representation of the petitioner in light of law laid down in the case of Avtar Singh v. Union of India & Ors.: (2016) 8 SCC 471 and pass appropriate orders strictly in accordance with law.

Pursuant thereto, the petitioner made representation to the respondents, inter alia, indicating the fact that the conviction of the petitioner was suspended by this Court and, therefore, the petitioner was entitled to be accorded appointment. However, the respondents by their order dated 19.02.2018 (Annex.-8), came to the conclusion that as the conviction was recorded in a case, which was not trivial in nature, the petitioner was not entitled for being accorded appointment and rejected the representation.

Learned counsel for the petitioner made submissions that the Bench in S.B. Criminal Misc. Stay Application No.3718/2016 in the appeal filed by the petitioner against the order of conviction, noticing the fact that the petitioner had cleared Public Service Commission Examination and if the conviction was not suspended, he would not be appointed, suspended the conviction and, therefore, the respondents were not justified in not taking into consideration the said suspension of conviction and continue to treat the petitioner as having being convicted and, therefore, the order impugned deserves to be quashed and set aside.

Learned counsel for the respondents supported the order impugned. It was submitted that the petitioner has been convicted of offenses under Sections 307, 326, 324, 148, 149 and 323 IPC and, therefore, he is not entitled to be accorded appointment looking to the nature of offenses and, therefore, the order impugned does not call for any interference.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

A perusal of the order dated 19.02.2018 (Annex.-8) would reveal that the respondents have passed the order in a mechanical manner by referring to the conviction of the petitioner and coming to the conclusion that the case, in which the conviction was recorded was not trivial in nature, however, the respondents have failed to consider the observations made by this Court while suspending the conviction of the petitioner.

The relevant portion of the order dated 14.12.2016 (Annex.-1) passed by a coordinate Bench of this Court reads as under:-

"5. I have considered the arguments advanced and have also perused the judgment cited by counsel for the appellant.

In the judgment cited before this Court, the appellant therein were convicted under Section 307 of IPC and were sentenced to undergo imprisonment of seven years, A contention was raised that the department has initiated the disciplinary proceedings which may result in termination of his service, the court suspending the order of conviction.

In the present case in hand, the appellant has cleared the Public Service Commission examination and has secured 68th rank, if the conviction order is not suspended, the appellant would not be appointed even though he has secured 68th position.

Considering the entire facts and circumstances of the case, I deem it just and proper to suspend the conviction awarded to the accused appellant.

Consequently, this present application for suspension of conviction is allowed."

Once this Court after taking into consideration the fact that the petitioner was convicted of offense under Section 307 has suspended the conviction of the petitioner noticing that the petitioner has obtained a good position in examination conducted by Public Service Commission, the respondents could not have negated the said order by simply ignoring it.

Once the conviction has been suspended noticing the facts and circumstances of the case including the petitioner having cleared the exam, it was incumbent on the respondents to pass order after considering the said aspect and, therefore, the order impugned cannot be sustained.

Consequently, the writ petition filed by the petitioner is allowed. The order dated 19.02.2018 (Annex.-8) is quashed and set aside. The respondents are directed to accord appointment to the petitioner pursuant to his selection, if he is otherwise eligible. However, the said appointment shall remain subject to final outcome of S.B. Criminal Appeal No. 894/2005 pending before this Court and in case, the conviction of the petitioner is upheld, the order of appointment shall stand cancelled automatically and it shall not be required of the respondents to thereafter issue any show cause notice to the petitioner in this regard.

The petitioner would be entitled to consequential benefits other than monetary benefits from the date persons lower in merit were accorded appointment by the respondents.

The needful may be done by the respondents within a period of six weeks from today.