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Judgment
Per: Justice Gurpal Singh Ahluwalia
This writ appeal, under section 2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed against the order dated 15/12/2025 passed by learned Single Judge in W.P. No.27813/2021, by which the satisfaction recorded by competent Authority for rejecting the candidature of respondent was set aside and the competent Authority was directed to give appointment to the respondent on the post of Sub Inspector (District Force).
Facts necessary for disposal of present appeal, in short, are that respondent had filed W.P.No.27813/2021 seeking the following reliefs:-
"i.That the respondents be directed to issue an appointment order of petitioner-on the post of Sub-Inspector (District Force)
ii.That the cost be awarded to the petitioner.
Any other relief which ‘this Hon’ble Court deems fit in the facts and circumstances of the case may also kindly be granted."
Appellants filed their reply submitting that by order dated 15/8/2018, candidature of respondent for the post of Sub Inspector (District Force) was rejected on the ground that he was tried for offence under sections 327, 294, 323, 506B read with 34 of IPC on the basis of charge-sheet issued in Crime No.434/2010. Although respondent was acquitted by judgment dated 20/8/2013, but as the offence under section 327 of IPC involves moral turpitude, therefore, his candidature was rejected. It appears that respondent, vide order dated 31/1/2018, was appointed on the post of Platoon Commander. The action of appellants in rejecting the candidature of respondent for the post of Sub Inspector (District Force) was challenged by counsel for respondent contending that once the respondent was found fit with similar criminal antecedents for the post of Platoon Commander, then appellants have committed material illegality by adopting a different yardstick. The aforesaid submission made by counsel for respondent found favour with the learned Single Judge and by the impugned order, it was held that when appellants had found that respondent is fit for recruitment to the post of Platoon Commander, then on the basis of same criminal antecedents they should not have rejected his candidature for the post of Sub Inspector (District Force). Thus, by the impugned order, learned Single Judge directed the appellants to give appointment to respondent on the post of Sub Inspector (District Force).
Challenging the order passed by learned Single Judge, it is submitted by counsel for appellants that if learned Single Judge was of the view that subjective satisfaction recorded by the competent Authority is not in accordance with law, then instead of directing the appellants to issue order of appointment, should have remanded the matter back to the competent Authority for reconsideration of the case. However, it is submitted that learned Single Judge could have directed the appellants to give appointment to respondent only when it was found that satisfaction recorded by competent Authority is illegal based on whims and wishes of the Authority. However, in the present case, learned Single Judge has allowed the writ petition merely on the ground that once respondent was found fit for appointment on the post of Platoon Commander, then based on same criminal antecedents different yardstick should not have been adopted for appointment on the post of Sub Inspector (District Force). It is submitted by counsel for appellants that analogy adopted by learned Single Judge is misconceived because it has failed to take note of the fact that duties assigned to Platoon Commander (Home Guards) are completely different from the duties which are discharged by Sub Inspector (District Force).
Per contra it is submitted by counsel for respondent that in spite of clear direction given by High Court by impugned order, appellants once again rejected the candidature of respondent. Being aggrieved by the said order, respondent filed W.P. No. 7153/2026 and the learned Single Judge, by order dated 25/2/2026 suo motu issued notice to Shri Gopal Singh Dhakad, Assistant Director General of Police, Police Headquarters, Bhopal to show cause as to why proceedings for contempt of order dated 15/12/2025 passed in W.P. No.27813/2021 be not initiated against him. Accordingly, appellants, now by order dated 17/3/2026 have issued the appointment order to the respondent on the post of Sub Inspector (District Force) and, under these circumstances, it is prayed that the writ appeal filed by State has rendered infructuous.
In reply, it is submitted by counsel for appellants/State that so far as order dated 17/3/2026 is concerned, it was issued under compulsion because High Court had already suo motu initiated proceedings for contempt and in case if the impugned order was not complied with, then the Officer was likely to be held guilty. Since the order dated 17/3/2026 was not passed voluntarily but it was passed under compulsion, therefore, it cannot be said that present appeal has rendered infructuous.
Heard, learned counsel for the parties.
Before considering the effect of order dated 17/3/2026 issued by appellants by which respondent has been granted appointment on the post of Sub Inspector (District Force), this Court would like to consider the challenge made to the order passed by learned Single Judge.
From the impugned order, it is clear that learned Single Judge was impressed by the fact that once respondent was found fit for appointment on the post of Platoon Commander (Home Guards), then on the basis of same criminal antecedents, appellants should not have rejected his candidature for the post of Sub Inspector (District Force).
Now two questions arise in the present appeal for its adjudication i.e.
Whether the learned Single Judge was right in holding that once respondent was found fit for the post of Platoon Commander, then his candidature for the post of Sub Inspector (District Force) should not have been rejected on the basis of same criminal antecedents, or not?
Whether the learned Single Judge could have directed the Authorities to issue order of appointment or should have remanded the matter back to the competent Authority to reconsider the case ?
( i ) Whether the learned Single Judge was right in holding that once respondent was found fit for the post of Platoon Commander, then his candidature for the post of Sub Inspector (District Force) should not have been rejected on the basis of same criminal antecedents, or not?
In order to hold that once the respondent was found fit for appointment to the post of Platoon Commander, learned Single Judge should have compared the duties which are attached to the post of Platoon Commander and the duties which are attached to the post of Sub Inspector (District Force). This aspect is completely missing.
The Madhya Pradesh Home Guards Act, 1947 ( for short "the Act") was enacted to create a body of volunteers to supplement the police force and to assist in any general measure of public welfare in the State. Thus, it is clear that the post of Home Guards or its officers is only to act as a body of volunteers to supplement the police force and to assist in general measure of public welfare. Sections 7, 10 and 11 of the Act read as under:-
"7.Duties and training of Home Guards. —(1) Every Home Guard shall, during the period of his training and service in the reserve be bound to perform such duties as may be prescribed for the time being in relation to the protection of the person, the security of the property and the public safety and the assistance in any general measure of public welfare.
(1-a) Subject to any rules made in this behalf it shall be the duty of every Home Guard promptly to obey and execute all orders issued to him by any competent authority, to collect and communicate to his immediate superior intelligence affecting the public safety and to prevent the commission of offences against person or property,
(2)Subject to any rules made in this behalf a Home Guard may be required to undergo training for such period and in such manner as may be prescribed after which he shall serve as a Home Guard for a period of six months which period may be extended by the State Government to a total period of not more than twelve months if the State Government considers such extension necessary and shall thereafter serve in the reserve for a period of three years and while in the reserve shall be liable to be called out for duty at any time.
(2-A) The Commandant-General may with the written consent of a Home Guard, extend from time to time the period of service of such Home Guard in the reserve and thereupon such Home Guard shall serve in the reserve for a further period of three years and while in the reserve shall be liable to be called out for duty at any time.
10.Calling out Home Guards .—(1) The District Magistrate having jurisdiction over any revenue district or part thereof in which Home Guards are raised may by an order made in such manner as may be prescribed call out any Home Guard for the discharge of any duty assigned to the Home Guards in accordance with the provisions of this Act and the rules made thereunder.
(2)The District Magistrate may, in cases of emergency, by order in writing, direct that the power of calling out any Home Guard under sub-section (1) for the purpose of securing the public safety or preventing the commission of offences against person or property shall, in such circumstances and under such conditions, if any, as may be specified in that direction be exercised by any Magistrate not being a Magistrate of the third class or a police officer not below the rank of a Sub -Inspector of Police.
(3)The Commandant-General or such officer of the Home guards as may be authorised by him in this behalf may call out the Home guards in any area for the performance of any duty relating to any general measure of public welfare and prescribed under sub-section (1) of Section 7.
11.Control over Home Guards. —The Home Guards shall at all times when undergoing training or when called out be under the control and subject to the order of their officers, and shall when called out be further subject to the general control of the District Magistrate and where the Home Guard has been called out by an authority other than District Magistrate, also such authority, in such manner and to such extent as may be prescribed."
From plain reading of section 7, it is clear that every Home Guard is bound to perform such duties as may be prescribed for the time being in relation to protection of person, security of property and public safety and assistance in any general measure of public welfare. Subject to any rules made in this behalf, it is also the duty of Home Guards to collect and communicate to his immediate superior intelligence affecting public safety and to prevent commission of offences against person or property. Section 10 provides that the District Magistrate having jurisdiction over any revenue district or part thereof in which Home Guards are raised may by an order made in such manner as may be prescribed, call out any Home Guard for discharge of any duty assigned to Home Guards in accordance with the provisions of the Act and the rules made thereunder and in case of emergency, the District Magistrate, by order in writing, may direct that the power of calling out any Home Guard under sub-section (1) for the purpose of securing public safety or preventing the commission of offences against person or property shall be exercised by any Magistrate not being a Magistrate of the third class or a Police Officer not below the rank of a Sub Inspector of Police. In view of S.12 it is clear that when a Home Guard is called out under section 10, he shall have the same powers, privileges and protection as an officer of police appointed under any enactment for the time being in force.
From plain reading of provisions of the Act, it is clear that Home Guard is not a regular police force and it is only a body of volunteers to supplement the police force, whereas the District Force/Police Force has to perform multiple duties as assigned to him under the provisions of Cr.P.C/BNSS or any other statute. An Officer of Police Force has to investigate a matter. Not only he is required to prevent the commission of offences, but he is also required to prosecute the offender after following the procedure laid down in Cr.P.C/BNSS. Thus, it is clear that duties attached to the post of Platoon Commander (Home Guards) are much different from the duties which are attached to the post of Sub Inspector (District Force). The aforesaid aspect has not been taken note of by learned Single Judge. The suitability of a candidate has to be adjudged in the light of duties attached to the post on which he has applied.
The Supreme Court in the case of Avtar Singh vs. Union of India and Others, reported in (2016) 8 SCC 471 has held as under:-
''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 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.''
Thus, it has been held that in case where the employee has made declaration truthfully of a concluded criminal case, the employer still has right to consider antecedents, and cannot be compelled to appoint the candidate.
The Supreme Court in the case of Mohammed Imran vs. State of Maharashtra and Ors. [Civil Appeal No.10571 of 2018 arising out SLP(C) 6599 of 2018] decided on 12th October, 2018 has held as under:-
''6. Employment opportunities is a scarce commodity in our country. Every advertisement invites a large number of aspirants for limited number of vacancies.But that may not suffice to invoke sympathy for grant of relief where the credentials of the candidate may raise serious questions regarding suitability, irrespective of eligibility. Undoubtedly, judicial service is very different from other services and the yardstick of suitability that may apply to other services, may not be the same for a judicial service. But there cannot be any mechanical or rhetorical incantation of moral turpitude, to deny appointment in judicial service simplicitor. Much will depend on the facts of a case. Every individual deserves an opportunity to improve, learn from the past and move ahead in life by self-employment. To make past conduct, irrespective of all considerations, an albatross around the neck of the candidate, may not always constitute justice. Much will, however depend on the fact situation of a case.
7.That, the expression ''moral turpitude'' is not capable of precise definition was considered in Pawan Kumar vs. State of Haryana and another, (1996) 4 SCC 17, opining:
''12. ''Moral turpitude'' is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity....''
8.The appellant by dint of hard academic labour was successful at the competitive examination held on 16.08.2009 and after viva voce was selected and recommended for appointment by the Maharashtra Public Service Commission on 14.10.2009. In his attestation form, he had duly disclosed his prosecution and acquittal. Mere disclosure in an appropriate case may not be sufficient to hold for suitability in employment. Nonetheless the nature of allegations and the conduct in the facts of a case would certainly be a relevant factor. While others so recommended came to be appointed, the selection of the appellant was annulled on 04.06.2010 in view of the character certification report of the police.
9.It is an undisputed fact that one Shri Sudhir Gulabrao Barde, who had been acquitted on 24.11.2009 in Case No.3022 of 2007 under Sections 294, 504, 34, IPC, has been appointed. We are not convinced, that in the facts and circumstances of the present case, the appellant could be discriminated and denied appointment arbitrarily when both the appointments were in judicial service, by the same selection procedure, of persons who faced criminal prosecutions and were acquitted. The distinction sought to be drawn by the respondents, that the former was not involved in a case of moral turpitude does not leave us convinced. In Joginder Singh (supra), it was observed as follows:-
''25. Further, apart from a small dent in the name of this criminal case in which he has been honourably acquitted, there is no other material on record to indicate that the antecedents or the conduct of the Appellant was not up to the mark to appoint him to the post...''
10.In the present proceedings, on 23.03.2018, this Court had called for a confidential report of the character verification as also the antecedents of the appellant as on this date. The report received reveals that except for the criminal case under reference in which he has been acquitted, the appellant has a clean record and there is no adverse material against him to deny him the fruits of his academic labour in a competitive selection for the post of judicial officer. In our opinion, no reasonable person on the basis of the materials placed before us can come to the conclusion that the antecedents and character of the appellant are such that he is unfit to be appointed as a judicial officer. An alleged single misadventure or misdemeanour of the present nature, if it can be considered to be so, cannot be sufficient to deny appointment to the appellant when he has on all other aspects and parameters been found to be fit for appointment. The Law is well-settled in this regard in Avtar Singh vs. Union of India and Others, (2016) 8 SCC 471. If empanelment creates no right to appointment, equally there can be no arbitrary denial of appointment after empanelment.
11.In the entirety of the facts and circumstances of the case, we are of the considered opinion that the consideration of the candidature of the appellant and its rejection are afflicted by a myopic vision, blurred by the spectacle of what has been described as moral turpitude, reflecting inadequate appreciation and application of facts also, as justice may demand.''
This Court in the case of Jitendra Kumar Gupta Vs. State of M.P. decided on 28/02/2020 i n W.P. No.25262/2018 has held that Authority should consider suitability of candidate in accordance with the post on which he is seeking appointment and candidature cannot be rejected merely on the ground that he was prosecuted.
Under these circumstances, when the duties assigned to the post of Platoon Commander (Home Guards) are much lesser than the duties which are assigned to the post of Sub Inspector (District Force) and being the Platoon Commander (Home Guards), the Officer has to act as a volunteer to supplement the police force and not to act as police force until and unless an order under section 10 of the Act is passed by the District Magistrate, this Court is of considered opinion that the observation made by learned Single Judge that since respondent was found fit for recruitment to the post of Platoon Commander therefore on the basis of same criminal antecedents appellants should not have rejected his candidature for the post of Sub Inspector (District Force), is erroneous and is hereby set aside.
Whether the learned Single Judge could have directed the Authorities to issue order of appointment or should have remanded the matter back to the competent Authority to reconsider the case ?
The department is the best judge to assess the nature of duties and suitability of a candidate. Unless and until it is found that rejection of candidature was an outcome of whims and wishes of the competent Authority, the Court should not have directed the Authorities to issue an order of appointment. At the most, the Court should remand the matter back to the Authorities to reconsider the case in the light of observations made in the order. However, in the present case, learned Single Judge had directly issued a direction to the appellants to issue order of appointment to respondent on the post of Sub Inspector (District Force) after holding that once respondent was found fit for the post of Platoon Commander then his candidature on the basis of same criminal antecedents should not have been rejected. Once this Court has found that the comparison done by learned Single Judge is not in accordance with law and the learned Single Judge has not taken note of the duties which are assigned to the post of Platoon Commander and the duties which are assigned to the post of Sub Inspector (District Force), therefore, this Court is of considered opinion that learned Single should not have directed the appellants to issue order of appointment. At the most, learned Single Judge could have remanded the matter back to the Authorities for reconsideration of suitability of respondent for the post of Sub Inspector (District Force). Under these circumstances, this Court is of considered opinion that the impugned order cannot be given the stamp of judicial approval.
Now, then next question or consideration is as to whether this writ appeal has rendered infructuous in the light of appointment order dated 17/3/2026 or not ?
It is the case of respondent himself that after the impugned order was passed, his candidature was once again rejected by order dated 19/2/2026 in spite of specific direction to give appointment to the respondent on the post of Sub Inspector (Revenue). The order dated 19/2/2026 was assailed by respondent by filing W.P. No.7153/2026 and on 25/2/2026, learned Single Judge, without issuing notice in W.P. No.7153/2026, directly came to the conclusion that order dated 19/2/2026 is contemptutous in nature and notice was issued to Shri Gopal Singh Dhakad, Assistant Director General of Police, Police Headquarters, Bhopal to show-cause as to why proceedings for contempt of order dated 15/12/2025 passed in W.P. No.27813/2021 (impugned order in the present appeal) should not be initiated. It appears that only after contempt notice was issued, the competent Authority issued order dated 17/3/2026 along with a short reply, which was accepted by learned Single Judge by order dated 17/3/2026 passed in W.P. No.7153/2026 and the said petition was disposed of. From the order-sheets in W.P. No.7153/2026, it is clear that notices in said writ petition were never issued and learned Single Judge suo motu initiated contempt proceedings by order dated 25/2/2026 which reads as under:-
"Dated : 25-02-2026
Mr. Abhinav Bhargav - Advocate for the petitioner.
Mr. Kaushlendra Singh Tomar - GA for the State.
Earlier, the petition filed by the petitioner, being W.P.No.27813/2021, was allowed with the following directions :
"11.Considering the aforesaid, the stand taken by the respondents in their return to deny the appointment to the petitioner on the post of Sub-Inspector is found be arbitrary and unsustainable in law. The justification given by the respondents is not acceptable. Accordingly, the petition is allowed. As no other reason is assigned by the respondents to deny appointment to petitioner, they are directed to issue appointment order to the petitioner on the post of Sub-Inspector pursuant to his selection on the post of Sub-Inspector (District Force)."
Apparently, this Court allowed the petition and issued directions to the respondent authorities to issue an appointment order in favour of the petitioner on the post of Sub-Inspector. Surprisingly, the impugned order has been passed by Mr. Gopal Singh Dhakad, Assistant Director General of Police, Police Headquarters, Bhopal, on 19.02.2026, again declaring the petitioner unsuitable for the said post.
In view of the specific direction issued by this Court, there was no option available to the said authority, who has dealt with the matter again on merits, except to issue the appointment order. The aforesaid order passed in the writ petition has not been challenged so far.
This Court is of the prima facie opinion that the impugned order dated 19.02.2026 is contemptuous in view of the specific direction issued in paragraph - 11 of the order passed in the writ petition.
Accordingly, office is directed to issue notice to Mr. Gopal Singh Dhakad, Assistant Director General of Police, Police Headquarters, Bhopal, to show cause as to why proceedings for contempt of the order dated 15.12.2025 passed in W.P.No.27813/2021, should not be initiated against him.
List this case on 17.03.2026."
The order dated 17/3/2026 reads as under:-
"Appearance:
Shri Praditya Pal - Advocate for the petitioner.
Shri Vivek Khedkar- Additional Advocate General with Shri S.S. Kushwah- GA for the respondents/State.
ORDER
Respondents have filed reply / clarification on behalf of Assistant Inspector General of Police, Police Headquarters, Bhopal and a short reply on behalf of respondents.
2.He submits that the order which is impugned in this petition has been withdrawn by the said authority vide order dated 14/3/2026. Said authority has also tendered unconditional apology with regard to issuance of impugned order, which is found to be in conflict with the order passed by this Court in the earlier writ petition.
3.Learned Additional Advocate General further submits that the appointment order in favour of petitioner has been issued today and a copy of the same is also placed before this Court.
4.The apology tendered by the authority is accepted.
5.Accordingly, noting survives for adjudication in this petition, same is accordingly disposed of in view of submissions made by the Additional Advocate General."
Thus, it is clear that W.P. NO.7153/2026 was suo motu converted into contempt proceedings and even no notice of the writ petition was issued.
Be that whatever it may be.
Once this Court has already held that impugned order dated 15/12/2025 passed by learned Single Judge in W.P. No.27813/2021 cannot be given stamp of judicial approval, then order passed in W.P. No.7153/2026 which was in fact treated as contempt proceeding, cannot be approved. As order dated 17/3/2026 was passed by appellants under compulsion, therefore, it cannot be said to be a voluntary act on the part of appellants. Furthermore, as direction to issue order of appointment to respondent on the post of Sub Inspector (District Force) has also not received the stamp of judicial approval, then any action taken subsequent thereto will lose its efficacy. Therefore, order dated 17/3/2026 passed by competent Authority thereby giving appointment to respondent on the post of Sub Inspector (District Force) is hereby declared as nonest and it is held that merely because order dated 17/3/2026 was passed by appellants under compulsion, it will not make the present appeal as infructuous.
Accordingly, order dated 15/12/2025 passed by learned Single Judge in W.P. No.27813/2021 is hereby set aside. As a consequence thereof, orders dated 25/2/2026 and 17/3/2026 passed in W.P. No.7153/2026 which was tried by learned Single Judge as contempt proceedings, are also hereby set aside in exercise of suo motu powers under S.2(1) of the M.P. Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam.
Since the order dated 17/3/2026 passed by competent Authority has already been declared as nonest, therefore, it is directed that respondent shall immediately stop functioning on the post of Sub Inspector (District Force).
Before joining on the post of Sub Inspector (District Force), respondent must have resigned from the post of Platoon Commander. Since his resignation from the post of Platoon Commander was in the light of his appointment on the post of Sub Inspector (District Force) and as the order of appointment dated 17/3/2026 has been declared nonest, therefore, the resignation submitted by respondent from the post of Platoon Commander is also declared as nonest. Respondent shall continue to work on the post of Platoon Commander. Appellants are directed to permit the respondent to immediately join on the post of Platoon Commander and he be posted at the same place from where he had tendered his resignation.
The Director General of Police is directed to ensure compliance of this order immediately.
With aforesaid observations, writ appeal is allowed.