1. Whereas, the applicant and the respondent No. 6, both, alongwith three others, were candidates sponsored by the concerned Employment Exchange to the selection for appointment on the post of EDDA-cum-EDMC, Ranna EDBO in Darbhanga Postal Division, it was the respondent No. 6 who was appointed by the postal Authority i.e, the respondent No. 5, as per letter dated, 11th November, 1993, and the candidature of the applicant was turned down on the ground that there was a criminal case then pending against him. The applicant has, therefore, impugned the letter of appointment dated, 11th November, 1993, on the ground of its being illegal and arbitrary and has, simultaneously, prayed for a direction upon the official respondents to consider his case for appointment to the post.
2. On factual score, there was no controversy at all that, left to the educational qualification, it was the applicant, who had secured better marks as compared to the respondent No. 6 in Matriculation standard or equivalent thereto. Whereas, the applicant had secured 539 marks in Matriculation examination, the respondent No. 6 had secured 476 marks in Madhyama Standard (equivalent to Matriculation). That being as such, the applicant had supermacy over the candidature of the respondent No.6. All other conditions with regard to the eligibility were fulfilled by both the candidates excepting, however, the involvement of the applicant in a criminal case bearing Complaint Case No. 425/93 under Sections 323, 341 & 379 of the Indian Penal Code, then pending in the Court of Chief Judicial Magistrate, Rosera, district-Samastipur.
3. We would, therefore, proceed to examine if the candidature of the applicant has been rightly ignored on account of the pendency of the criminal case, referred to above. True it was, that only two days prior to the date of verification during the selection process i.e., on 6th October, 1993, a complaint was filed in the Court of Chief Judicial Magistrate, Rosera, against the present applicant and two others with reference to an occurrence dated, 4th October, 1993. This complaint was registered as Complaint case No. 425/93 for the offences under Sections 323, 341 & 379 of the IPC. First, it was significant to point out that this complaint was filed against two of the candidates, including the applicant, whose names had been sponsored by the Employment Exchange and both had secured better marks in Matriculation as compared to the Respondent No. 6. Beside these two candidates, there was yet another person, namely, Umesh Kumar, appearing as co-accused, and he was holding the post in question provisionally. In this context, it was urged on behalf of the applicant that the complaint case was purposely filed just to defeat the candidature of the applicant and two others with reference to a non-existing allegation. It may not be necessary for this Tribunal to accept or refuse conclusively this sort of plea raised on behalf of the applicant, but we can not rule out the probability as such.
4. Further, on looking into the nature of the allegation in the complaint, we find that it relates to non-payment of the price of certain grains by the accused persons, named therein, to the complainant thereof who had entered into a transaction of sale.
Obviously, the allegation was more in the nature of a civil dispute than being a criminal one. This can never be treated as an offence of moral turpitude. And to crown all, the said criminal case ultimately miserably failed at the trial and the accused persons were acquitted by an order dated, 17th October, 1998, of the Court of Magistrate, First Class, Rosera, vide Annexurc-A/16 and subsequently, the appeal, preferred against the said order, also failed before the Hon'ble High Court, Patna, by an order dated 16th July, 1999, vide Annexure-A/17.
5. For the reasons, aforesaid, we are sure with conviction in our mind that the criminal case, which was made the solitary ground for ignoring the case of the applicant, during (he selection process was not warranted by law. We may further observe that mere pendency of a criminal case should not be a ground for an employer lo defeat the claim of selection of any candidate for appointment on a post unless there was something more to his antecedent. In order to strengthen our this view, we have also placed reliance on a decision of the Principal Bench of Central Administrative Tribunal in the case of Joginder Singh v. Union of India and Ors., 1996 (3) SLJ 226. Beside this, we have also seen above the way the criminal case was instituted, and the nature thereof did not call for any attention of the employer to turn down their candidature.
6. If at all the institution of the aforesaid case against the applicant was to matter before the official respondents, it was open for them to have called for an antecedent report from the concerned Police Station. We have been convinced in this regard that there was nothing before the official respondents to raise suspicion in their mind with regard to the criminal antecedent in the case of the applicant.
7. On the contrary, very surprisingly, it has been brought on record that a criminal case for the offences under Sections 323 & 405 of the Indian Penal Code had been lodged against the respondent No. 6 on 2nd May, 1992, in the Court of Sub-Divisional Judicial Magistrate, Rosera, vide Complaint Case No. 143 of 1992, and the same was pending for more than a year prior to the initiation of selection process to the post.
It is true that this case also ended in acquittal subsequent to the appointment of the respondent No. 6, but a valid question arises why a discriminate view should be taken in this regard. If pendency of a criminal case could be made out a ground for ignoring the case of the applicant, why it should not have been done in the case of the respondent No. 6 also who was facing an involvement in the criminal case even much prior to the initiation of the selection process. It would be gathered from a Police report dated 19th June, 1994 (Annexurc-A/5), sent by the Officer-in-charge of concerned Police Station to the postal authorities wherein it was reported about the pendency of the aforesaid case and this appears to have been done in response to the character verification. In any view of the matter, we find an arbitrary view given to the applicant vis-a-vis, respondent No.6 with regard to the pendency of the criminal case.
8. Therefore, the solitary ground, as raised in the letter dated 17th May, 1994, of the Assistant Director, Ministry of Communication, Postal Department, Government of India, vide Annexure-A/12, as also in the written statement of the official respondents for ignoring the case of the applicant due to pendency of criminal case was not sustainable in law. That being as such, the preference given to the candidature of the respondent No. 6, as against that of the applicant, can not be upheld.The appointment of respondent No. 6, while ignoring the candidature of the applicant on the ground of pendency of criminal case, was, therefore, bad in law and it was liable to be quashed.
9. This O.A., therefore, must succeed and, accordingly, it is allowed.
The appointment of the respondent No. 6 on the post of EDDA-cum-EDMC is, therefore, quashed. The official respondents are directed to consider the case of the applicant for appointment to the said post in the light of the observation made above subject, however, to his medical fitness, and to pass an appropriate order of appointment within six weeks from the date of communication of this order. There shall be, however, no order as to costs.