Smt. Usa Kiran Sen @APPELLANT@Hash State of Rajasthan & Ors.

This writ petition has been preferred with the following prayers:

“1. By an appropriate writ order or direction, the impugned order dated 22.09.2016 may kindly be quashed and set aside and the petitioner may be

allowed to work on the post of Nurse Grade-II with all consequential benefits from the date of joining.

Any other appropriate writ, order or direction whichthis Hon’ble Court deems just and proper may kindly be passed in favour of the

petitioner.â€​

Brief facts of this case, as noticed by this Court, are that the petitioner was appointed as Nurse Grade-II under the Scheme of NRHM vide order

dated 06.10.2008 on contract basis and was continued in service upto 28.02.2013. The respondentDepartment issued an advertisement for recruitment

of Nurse Grade II in the year 2013, and after culmination of the said recruitment process, upon due selection, the petitioner was given appointment on

10.02.2016, which was a regular appointment.

Although the petitioner was minor, the petitioner solemnized marriage with one Shri Raju Ram Sen on 11.12.2005. However, the marriage could not

succeed, and therefore, she had filed an application for divorce under Section 13 of Hindu Marriage Act before the competent court and the same

was granted in favour of the petitioner on 05.03.2013. After the divorce decree was granted on 05.03.2013, the petitioner solemnized marriage with

one Shri Bhanwar Lal Gadhwal and the said marriage was duly registered with the competent authority. The Ex-husband of the petitioner concealing

the fact of divorce filed a criminal complaint for offence under Section 494, 109 and 120-B of IPC for which cognizance was taken against the

petitioner and the trial proceeded. The order of appointment was however, quashed by the respondents invoking Clause 2(ii) of the circular dated

15.07.2016. The relevant portion of the dismissal order dated 22.09.2016 reads as follows :-

“dkfeZd foHkkx ds uksfVfQds'ku fnukad 15-07-2016 ds fcUnq la[;k 2 ¼AA½ ds vuqlkj vkijkf/kd izdj.k esa U;k;ky; }kjk nks""keqDr dj nsus

rFkk jkT; ljdkj }kjk ukSdjh dk fu.kZ; fy;s tkus ds i'pkr gh fu;qfDr gsrq ik= ekuk x;k gSA QyLo:i Jhefr m""kk fdj.k lsu iq=h Jh ckcwyky lsu dk ulZ Js.kh

f}rh; ds in ij funs'kky; ds vkns'k la[;k 59 fnukad 09-02-2016 ds }kjk p;u ,oa vkns'k la[;k 60 fnukad 10-022016 ds }kjk inLFkkiu vkns'k ,rn }kjk fujLr fd;k

tkrk gSAâ€​

The relevant part of the circular relied upon by the respondents dated 15.07.2016 reads as follows :-

â œœ

1- ,sls izdj.k@fLFkfr;ka ftuesa fu;qfDr grsq 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 vUoh{kk/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 ukSfrd v/kerk ;Fkk Ny] dqVjpuk] eRrrk] cykRlax fdlh efgyk dh yTtk Hkax djus ds vijk/k esa vUroZfyIrrk 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 vUroZfyIrrk 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 vUroZfyIrrk

gksA

¼iV½ fu;ksftr fgalk ;k jkT; ds fo:) ,sls fdlh vijk/k esa vUroZfyIRrk gks] tks Hkkjrh; n.M lafgrk] 1860 ¼1860 dk dsfUnzh; 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.fkZr vijk/kksa esa vUroZfyIrrk gksA

¼Vi½ Hkkjrh; n.M lafgrk dh /kkjk 147] 148 ¼cyok djuk½ ds vijk/k esa vUroZfyIrrk gksA

¼Vii½ Hkkjrh; n.M lafgrk dh /kkjk 498 A ¼fL=;ksa ds izfr vkijkf/kd nqO;Zogkj&ngst½ ds vijk/k esa vUroZfyIrrk gksA

¼viii½ vtk@vttk vf/kfu;e 1989 ds rgr vijk/k esa vUroZfyIrrk gksA ;gka ;g Hkh Li""V fd;k tkrk gS fd mDr izdkj ds vijk/kksa ls lacf/kr dksbZ Hkh

lwpuk tkucw>dj fNikus okys vH;fFkZ;ksa dks Hkh fu;qfDr gsrq vik= ekuk tk,xkA ,lss izdj.k@fLFkfr;ka ftuesa vH;FkhZ dks fu;qfDr grsq ik= ekuk

tkuk pkfg,%&

¼i½ ftu vH;fFkZ;ksa dks vkijkf/kd izdj.k ds vUos""k.k esa nks""kh ugha ik;k x;k gks rFkk vUos""k.kksijkar ,Q-vkj- Lohd`r dh tk pqdh gksA

¼ii½ ftu vH;fFkZ;ksa dks fdlh vkijkf/kd izdj.k esa U;k;ky; }kjk nks""keqDr dj fn;k x;k gks] rFkk ml izdj.k esa jkT; ljdkj }kjk vihy ugha djus dk fu.kZ;

fy;k tk pqdk gksA

¼iii½ vH;kfFkZ;ksa dks ,sls izdj.k ftuesa U;k;ky; }kjk ifjoh{kk vf/kfu;e dh /kkjk 12 dk ykHk fn;k tkdj ifjoh{kk ij NksM+k x;k gksA ¼nks""kflf)

fdlh fujgZrk ls xzLr ugha@ jktdh; lsok@Hkkoh thou ij fdlh izdkj dk foijhr izHkko ugha½A

¼iv½ vH;kfFkZ;ksa ds ,sls izdj.k ftuesa nks""kh djkj fn;k tkdj fd'kksj vf/kfu;e dh /kkjk 1 ¼1½ ¼,½ dk ykHk iznku fd;k x;k gksAâ€​

Thereafter, the petitioner immediately approached this Hon’ble Court, whereupon an interim protection was granted on 24.10.2016, while

passing the following order :-

“It is submitted by learned counsel for the petitioner that the services of the petitioner have been terminated by order dated 22.9.2016 (Annex.8)

based on the notification dated 15.7.2016 (Annex.9), however, the offence for which the petitioner is under trial, is not indicated in the circular dated

15.7.2016 and therefore, the order impugned is bad.

Issue notice. Issue notice of stay application also. Both are made returnable within a period of four weeks.

Notices, when issued, be given 'dasti' to learned counsel for the petitioner to effect service upon the respondents.

In the meanwhile and until further orders, effect and operation of the order dated 22.9.2016 (Annex.8) shall remain stayed.â€​

Learned counsel for the petitioner Mr. Vishal Sharam has pointed out that the petitioner has already been acquitted in the criminal trial, in criminal

case no.705/2013 under Section 494, 109 and 120 of IPC, which had caused the termination order of the petitioner. The certified copy of the acquittal

order, on account of compromise, in the aforementioned case is on record as Annexure-10 dated 06.01.2017.

Learned counsel for the petitioner further points out that the circular itself was not applicable to the petitioner, as the circular was dealing with the

eligibility (Patrata) to be appointed whereas the petitioner had already crossed that stage and after facing regular recruitment in 2013, she was given a

confirmed appointment on a regular post of Nurse Grade II w.e.f. 10.02.2016.

Learned counsel for the petitioner has further stated that even if the circular is read as it is, then also the conditions of eligibility include the condition

that an under trial who is not suffering charges of serious nature, as described in the circular reproduced hereinabove, would not entitle the respondent

to bring her service to an end.

Learned counsel for the petitioner has further pointed out that clause 2(ii) which has also been reproduced above, does not help the respondent, as

the person’s eligibility was to be seen in light of the fact, as to whether the criminal case pending against him or her has come to an end. Learned

counsel for the petitioner states that such a provision in the circular cannot be reversely applied in the present case.

Learned counsel for the respondent has, however, pointed out that the petitioner was facing a criminal trial in the aforementioned case and when

the impugned order dated 22.09.2016 was passed, the same was justified, as the petitioner has been acquitted only subsequently on 06.01.2017.

Learned counsel for the respondent has pointed out that acquittal cannot have a retrospective effect upon the case. Learned counsel for the

respondent has also pointed out that the termination order is justified in light of the policy circular of the respondent which has been invoked in the

present case which is dated 15.07.2016 coupled with condition No.2, quoted above, which provides that a person shall not be disqualified, if he/she has

been acquitted in the ongoing criminal case and decision of not preferring an appeal has been taken by the State Government.

Learned counsel for the respondent has, however, relied upon the judgment passed by this Court in Manglesh Soni Vs. State of Rajasthan & Ors.

(S.B. Civil Writ Petition No.1103/2016, decided on 28.11.2017) the relevant portion of this judgment reads as under :-

“7. After hearing counsel for the parties and perusing the record of the case, this court is of the opinion that the universal policy across the board is

in vogue and the same has not been challenged by the petitioner. The policy is mentioned in the reply, in which, the respondents have come out with

the specific case that as per the circular / policy dated 15.07.2016, the petitioner stands disqualified on account of the FIR pending against him with the

offences under Section 304B and 498A. On a bare perusal of condition No.5 itself shows that the candidates uniformly have been debarred if the case

against them was pending at the time of appointment under Chapter 16 or Chapter 17 of the IPC. The argument of the learned counsel for the

petitioner that merely the trial is going on and conviction is yet to happen, does not hold ground as the circular has been made applicable on all under

trials across the board and has been uniformly made applicable on all the candidates.â€​

After hearing counsel for the parties and perusing the record of the case, this Court finds that the precedent law cited at Bar by counsel for the

respondents does not apply in the present case, as in that case the FIR was pertaining to offences under Section 304B and 498A of IPC which are

admittedly there in the condition No.1(vii) and 1(v). The precedent law does not help the respondents as Section 304B comes within the Chapters 16

and 17 of the IPC and Section 498A IPC falls within the domain of clause 1(vii), and therefore, it is a case with totally different facts. In the present

case, the offence is under Section 494 read with Section 109, 120B of IPC which do not fall in the circular dated 15.07.2016 in condition No.1.

Apparently, the circular which the respondent have resorted to against the petitioner itself entitles the petitioner to be continued in service and regular

appointment, if she is otherwise eligible.

This Court reproduced the relevant portion of the circular in this judgment and this Court finds that the conditions of disqualification as well as

qualification do not apply in the facts of the present case, so much so that even condition No.2(ii) which is pertaining to acquittal of a person cannot be

reversely applied on the present petitioner, as she already stood qualified on account of condition no.1 and as per all its seven parameters stated in the

circular. The petitioner has neither been involved in seven parameters which are, moral offence, NDPS offences, Immoral Trafficking Act,

Violence Against the State, offence under chapter 16 and 17, offence punishable under Sections 147, 148, offence under Section 498A IPC and

offence against the Scheduled Castes and Scheduled Tribes.

Thus, the petitioner who was regularly recruited on the post of Nurse Grade II vide selection exercise of 2013 cannot be held disentitled for the

employment only on the count of such circular. Moreover, this Court has also taken note of the fact that the petitioner has been acquitted in the said

alleged offence by a competent Court and by virtue of a compromise in the criminal case, which is essentially a matrimonial dispute. This Court has

also perused Annexure-10 where the acquittal order has been recorded by the competent court on 06.01.2017.

This Court also finds that the circular in question is dealing only with the eligibility of the candidates for getting the appointment whereas it is not

disputed by the respondent that already the regular appointment had been given to the petitioner on 10.02.2016 whereas the termination order has been

passed after seven months i.e. 22.09.2016.

In view of the aforesaid discussion, the present writ petition is allowed and the impugned order dated 22.09.2016 Annexure-8 is quashed and set

aside and the respondents are directed to continue the petitioner in regular service on the post of Nurse Grade II with all consequential benefits from

the date of joining i.e. 10.02.2016.