IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2019 :PRESENT:
THE HON’BLE MR. JUSTICE L.NARAYANA SWAMY AND THE HON’BLE MR. JUSTICE R.DEVDAS WRIT PETITION NO.58149 OF 2017 (S-KAT) BETWEEN SRI MOHAMMED ZUBAIR S/O MOSIN PASHA AGED ABOUT 28 YEARS, R/O.710, BEHIND MOMIN MASJID KONANOOR VILLAGE ARAKALAGUD TALUK HASSAN DISTRICT-573130 (BY SRI S H RAGHAVENDRA, ADVOCATE) AND ... PETITIONER 1. COMMISSIONER FOR EXCISE DEPARTMENT GOVERNMENT OF KARNATAKA TTMC BUILDING SHANTHINAGAR BANGALORE-560027 2. DEPUTY COMMISSIONER FOR EXCISE DEPARTMENT AND MEMBER SECRETARY FOR RECRUITMENT COMMITTEE ABHAKARI BHAVANA BEHIND OFFICE OF DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA-571426 3. DEPUTY COMMISSIONER AND PRESIDENT DRIVERS RECRUITMENT COMMITTEE MANDYA DISTRICT MANDYA-571426 4. DEPUTY COMMISSIONER MANDYA DISTRICT MANDYA-571426 5. SRI SAYED ZAMEER @ REHAMAN S/O SAYED RAFIQ AHEMAD AGED MAJOR R/O UMER BEGH COLONY OLD KIKERI ROAD MANDYA DISTRICT-571426 (BY SMT N ANITHA, HCGP FOR R1 TO R4 SRI B ROOPESHA, ADVOCATE FOR R5) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH ORDER DTD:22.11.2017 PASSED BY THE HON'BLE TRIBUNAL IN APPLICATION NO.6429/2017 [UNDER ANNEXURE-A] TO THE W.P. AND ETC.
THIS WRIT PETITION COMING ON FOR FINAL HEARING THIS DAY, NARAYANA SWAMY J, MADE THE FOLLOWING:
ORDER The petitioner is before this Court assailing the order dated 22.11.2017 passed by the Karnataka State Administrative Tribunal (hereinafter referred to as ‘the Tribunal’) in Application No.6429/2017 and also seeking a direction to quash and set aside the selection of the fifth respondent.
2. The facts of the case are as under:
The second respondent issued a notification dated 09.03.2015 calling for applications to the post of Driver for which the petitioner and the fifth respondent submitted applications to claim their consideration under the respective groups. The requisite qualification for the said post was 7th Standard and also to possess licence to drive light motor vehicle. The case of the petitioner is that though he has secured more marks than the fifth respondent, his selection has not been considered but on the other hand, fifth respondent has been selected. On verification, it was found that the petitioner has been deprived of appointment for having suppressed the fact of registration of a criminal case against him.
3. It is the case of respondent No.5 that the petitioner has been charge sheeted as accused No.15 in Crime No.5/2012 on the file of Judicial Magistrate First Class, Arakalagudu, Hassan District, for the offences punishable under Sections 143, 147, 148, 323, 427, 504, 506 read with Section 149 IPC and he has been acquitted from the criminal case on 02.08.2014. But the case of the petitioner is that he has been denied appointment as he has suppressed the fact of pendency of the criminal case against him.
4. The learned HCGP, submits that as per Rule 10 of the Karnataka Civil Services (General Recruitment) Rules. 1977, non-disclosure of relevant material by the petitioner amounts to suppression of material information and his application has been rightly rejected by the Tribunal.
5. Learned Counsel for the petitioner, on the other hand, submits that the case of the prosecution was that the petitioner was involved in a group clash and obstructed the Government servant from discharging duties and the said case ended in acquittal. But, the other case registered against the petitioner has been withdrawn by the State.
6. Learned Counsel for respondent No.5 submits that the petitioner has suppressed the material fact and he has not disclosed the pendency of the criminal case registered against him and therefore, his candidature has been rightly rejected.
7. Learned HCGP for the Government relying on the judgment of the Hon’ble Supreme Court in the case of Avtar Singh Vs. Union of India and Others reported in (2016) 8 SCC 471 submits that even acquittal is not a ground to claim appointment and suppression itself is to be considered and the application has been rightly rejected by the Tribunal.
8. Heard learned Counsel for the parties.
9. In the case of Avatar Singh (supra) relied upon by the learned HCGP, the Hon’ble Supreme Court has held that even if there is suppression of fact regarding pendency or involvement in criminal case by a candidate while making application, the employer has to act prudently on due consideration of nature of post and duties to be rendered. In the instant case, the post and duties are very relevant for the purpose of rejecting the case. The Hon’ble Supreme Court has held that though mere suppression of facts is not a ground for rejection, it is a ground to be examined by the employer depending upon the post and duties to be rendered. The post for which the petitioner and respondent No.5 applied is Driver. Hence, in respect of a post and duty with involvement in a criminal case and suppression of the very material, the same will not come in the way for considering the case for appointment. Thus, the employer and State have to take care while considering for appointment.
10. Consideration of case for the purpose of appointment to a Central or State is a valuable fundamental right. Though selection and appointment is not a fundamental right, while considering the very right, all sorts of care should be taken. Suppression of fact cannot be a sole ground to deny consideration but the post and nature of duties have to be kept in mind while making appointment by the employer.
11. In the instant case, the petitioner submits that the criminal case has been registered against him for the offence punishable under Section 149 of IPC for involvement in a group clash but there was no common intention or mens rea to commit the crime and secondly, the petitioner was acquitted and yet in another case, Government itself has withdrawn the case.
12. When these are all the facts, the respondent- authorities should not have rejected the claim of the petitioner. While depriving the valuable fundamental right of a person, lot of care and caution ought to have been taken by the Government in rejecting the claim of the petitioner. Though the petitioner has secured more marks than respondent No.5, he has not been selected. It is not appropriate to disturb respondent No.5 at this juncture, since he has been working as such from 01.01.2008.
13. Accordingly, we direct the respondent authorities to create a supernumerary post for the petitioner and issue appointment order within a period of eight weeks from the date of receipt of a certified copy of this order. However, it is made clear that the petitioner shall not be entitled for any monetary benefit. The entry into service by the petitioner shall be reckoned with effect from the date on which the appointment order was issued to respondent No.5 for the purpose of seniority.
14. The writ petition is partly allowed. The order dated 22.11.2017 passed by the Tribunal in Application No.6429/2017 stands set aside.
In view of the disposal of the petition, I.A. for amendment does not survive for consideration and is accordingly dismissed.
SD/- JUDGE SD/- JUDGE JT/-