Wednesday, 1 February 2017

Whether person who is acquitted in criminal case can be appointed as Judge?

In the facts of the
present case, it is not in dispute that the Petitioner had applied to
join judicial service to the post of Civil Judge, Junior Division and
Judicial Magistrate, First Class. It can hardly be disputed that a
member of the judicial service is a very important person who
dispenses justice to the citizens even in the most remote areas in
the State. The ordinary citizen is not always in a position to
approach the superior Courts for justice and very often his fate is
decided by the Judges of the lower judiciary. This, therefore,
clearly indicates that a Judge of the lower judiciary clearly plays a
very important and pivotal role in the administration of justice and
which is one of the great pillars of our vibrant democracy.
 Coming to the facts of the present case, it is admitted
that a criminal case was filed against the Petitioner. The charges
leveled against him were under sections 324, 504 r/w section 34 of
the IPC. Once can hardly dispute that the charges leveled against
the Petitioner were extremely serious and not of a petty nature
such as shouting slogans, stealing bread or such which did not
involve moral turpitude, such as cheating, misappropriation etc.
In fact, one of the serious charges leveled against the Petitioner was
for voluntarily causing hurt by dangerous weapons or means
(section 324 of the IPC). True it is, that he was finally acquitted of
all the aforesaid charges but on perusing the judgment of acquittal,
it can be seen that it was not a clean acquittal but on the ground of
reasonable doubt. On perusing the judgment of acquittal what we
find is that there was only one independent witness examined by

the prosecution who turned hostile during the trial and did not
support the case of the prosecution. Other than this witness, no
other independent witness was examined to prove the guilt of the
accused. In fact, the prosecution did not even examine the
Investigating Officer. It is in these circumstances that the Trial
Court came to the conclusion that all this creates a doubt about the
guilt of the Petitioner. It therefore held that the prosecution had
failed to prove its case beyond reasonable doubt which itself created
a doubt about the guilt of the Petitioner. Hence the benefit of doubt
was given to the Petitioner.
13. Looking at all this, can it be said that the opinion / order
of the Hon'ble Administrative Judges' Committee dated 25th June,
2012 was perverse and/or so unreasonable that it would shock the
conscience of the Court? Our answer would be an emphatic NO. In
fact, far from this, we are of the opinion that the decision of the
Hon'ble Administrative Judges' Committee was fully justified.
Looking to all these factors, the said Committee felt that the
Petitioner would not be a suitable candidate to be appointed in
judicial service. His character was certainly not one that could be
characterized as unblemished. To an average citizen in a remote
area, a Court of Law is a temple of justice and the persons

dispensing it are looked upon with the highest regard and respect.
Therefore, when being selected for judicial service, a candidate like
the Petitioner, would have to live up to and meet even higher
standards than any other candidate applying for a job with the
Government or other civil services. We, therefore, are unable to
agree with the submissions of Mr Salunke that there is any
infirmity in the order / opinion dated 25th June, 2012 that would
require our interference under Article 226 of the Constitution of
India.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1277 OF 2015
Shri Vithal Waman Shelke
v/s
The High Court of Bombay,

CORAM: S.C. DHARMADHIKARI &
 B.P. COLABAWALLA JJ.
DATE : 14TH OCTOBER 2016.
Citation: 2016(6) ALLMR 895

1. The present Petition is filed under Article 226 of the
Constitution of India seeking a suitable writ, order or direction to
quash and set aside the order / opinion dated 25th June, 2012
recorded by Respondent No.1 and thereafter for a direction that the
Petitioner be appointed to the post of Civil Judge, Junior Division
and Judicial Magistrate, First Class. It is the Petitioner's case that
despite the Petitioner being a recommended candidate at Sr.No.41

in the merit list, Respondent No.1 has recorded that having regard
to the nature of allegations leveled against the Petitioner, the
reasons stated in the judgment and the nature of duties to be
entrusted to him, the Hon'ble Administrative Judges' Committee
has decided not to recommend the name of the Petitioner for
judicial service.
2. The facts on the basis of which the challenge is made by
the Petitioner, are as follows:-
(a) The Petitioner is an individual who has passed his LL.B.
Degree in the year 2004 and thereafter was enrolled as
an Advocate with the Bar Council of Maharashtra and
Goa. He is a practicing Advocate in the District Court at
Nanded. Respondent No.1 is the High Court of Bombay
through the Registrar General and Respondent No.2 is
the State of Maharashtra through the Department of
Law and Judiciary.
(b) It is the case of the Petitioner that the Maharashtra
Public Service Commission (for short, the “MPSC”) had

issued an advertisement dated 11th April, 2011 for
recruitment to the post of Civil Judge, Junior Division
and Judicial Magistrate, First Class. As the Petitioner
was eligible, the Petitioner applied for the said post
pursuant to the aforesaid advertisement. Thereafter,
the Petitioner appeared in the preliminary examination
and after having qualified in the same, the Petitioner
appeared in the written examination held on 21st
August 2011.
(c) It is the case of the Petitioner that he successfully
passed the said written examination. In view of his
passing the written examination, the MPSC called the
Petitioner for viva voce. Thereafter, the MPSC, on the
basis of the marks secured by the candidates, prepared
an order of merit of the candidates eligible for
appointment. The name of the Petitioner was at
Sr.No.41 in this order of merit.
(d) The MPSC thereafter also addressed a letter dated 31st
January, 2012 to the Petitioner intimating him that his
name is recommended to Respondent No.2 for the

aforesaid post. By the said letter, the Petitioner was
further called upon to fill in the attestation form with
the requisite information. This was duly done by the
Petitioner on 8th February 2012. Clause 11 of the
attestation form required the Petitioner to furnish
information as to whether he has been arrested /
prosecuted / kept under detention or bound down / fined
/ convicted by a Court of Law. Accordingly, the
Petitioner supplied the particulars of the criminal case
lodged against him which had resulted finally in an
acquittal vide its judgment dated 29th May, 2002.
(e) Thereafter, the Petitioner received a letter from
Respondent No.2 specifically intimating him that the
MPSC has recommended the Petitioner's name for the
said post and accordingly called upon the Petitioner to
submit his medical certificate. Accordingly, the medical
examination of the Petitioner was fixed on 12th March,
2012 and the Petitioner underwent the necessary
medical examination. Thereafter, the list of appointed
candidates was declared vide a Notification dated 7th
December, 2012 wherein the name of the Petitioner was

not mentioned / included. It is in these circumstances
that the Petitioner applied under the Right to
Information Act, 2005 when he was furnished a copy of
the order/opinion rendered by the Hon'ble
Administrative Judges' Committee of this Court on 25th
June, 2012 (the impugned opinion). It is in these
peculiar facts and circumstances that the opinion of the
Hon'ble Administrative Judges' Committee dated 25th
June, 2012 has been assailed in the present Writ
Petition.
3. In this factual background, Mr Vivek Salunke, learned
counsel appearing on behalf of the Petitioner, submitted that on a
perusal of the said opinion, it was clear that the Petitioner's
appointment has been rejected only in view of the criminal case
filed against the Petitioner. He submitted that this criminal case
against him was a completely frivolous one and was instituted due
to a previous enmity between the Petitioner and the complainant in
the said case. He submitted that the Petitioner was finally
acquitted of all charges in the said case and no appeal was filed
therefrom and has therefore attained finality. This being the case,
it was totally incorrect on the part of the Hon'ble Administrative

Judges' Committee to reject the appointment of the Petitioner
solely on the ground that a criminal case was filed against him and
which had subsequently resulted in his acquittal.
4. According to Mr Salunke, the Maharashtra Judicial
Service Rules, 2008 and more particularly Rule 7 thereof, provide
for disqualification for appointment. This rule inter alia stipulates
that no person shall be eligible for appointment to judicial service if
he has been convicted of an offence involving moral turpitude or he
is or has been permanently debarred or disqualified by the High
Court or the Union Public Service Commission or any State Public
Service Commission from appearing for examinations or selections
conducted by it. He submitted that in the facts of the present case,
the Petitioner had not been convicted as contemplated under the
said Rules and was acquitted of all charges and therefore did not
invite any disqualification as contemplated under Rule 7. This
being the case, his appointment could not have been denied, was the
submission. For all the aforesaid reasons, Mr Salunke submitted
that we should exercise our equitable, extraordinary and
discretionary jurisdiction under Article 226 of the Constitution of
India and quash and set aside the order / opinion dated 25th June,
2012. In support of his arguments, Mr. Salunke relied upon the

following decisions:-
(1) Avtar Singh v. Union of India.1
(2) Manoj Vs. Union of India & Ors.2
5. On the other hand, Mr Amit Borkar, learned counsel
appearing on behalf of Respondent No.1, submitted that on a
perusal of the judgment delivered in the criminal case filed against
the Petitioner, it was clear that the Magistrate had not held that the
accusations against the Petitioner were entirely baseless or
malafide. The learned Magistrate acquitted the Petitioner by
granting him the benefit of doubt. This was therefore not a case of a
clean acquittal, was the submission. In this regard, he brought to
our attention the findings of the learned Magistrate and which have
been more particularly set out in paragraph 3 of the affidavit in
reply filed on behalf of Respondent No.1. He submitted that the
offences alleged against the Petitioner were under sections 324 and
504 r/w 34 of Indian Penal Code, 1860 (for short “the IPC”). He
submitted that section 324 of the IPC deals with voluntarily causing
hurt by dangerous weapons or means. Similarly, section 504 deals
with intentional insult with intent to provoke breach of the peace.

1 (2016) 8 SCC 471 : AIR 2016 SC 3598
2 2016 (4) SLR 731 : 2016 (158) DRJ 442

He submitted that looking to these sections, it can hardly be
disputed that the charges leveled against the Petitioner were of a
very serious nature and which have to be taken into consideration
whilst considering him for appointment as a judicial officer.
6. Placing reliance on Rule 8 of the Maharashtra Judicial
Service Rules, 2008, Mr Borkar submitted that the same mandates
that no person selected for nomination shall be appointed unless
the Appointing Authority is satisfied that he is of good character
and is in all respects suitable for appointment to the service. It is in
these circumstances that a request was made by the Government to
the Hon'ble High Court of Bombay on its administrative side for
offering its views in respect of suitability or otherwise of the
Petitioner who was on the merit/select list for appointment to the
post of Civil Judge, Junior Division and Judicial Magistrate, First
Class. After considering the criminal case filed against the
Petitioner and the serious charges leveled against him, as well as
the antecedents of the Petitioner, the Committee came to the
conclusion that the Petitioner was not suitable for being appointed
to the aforesaid post.
7. Mr. Borkar submitted that when a person is being

recruited in judicial service, the recruiting authority, as the
custodian of public interest in the fair dispensation of justice, was
entitled to scrutinize the reasons which weighed in the judgment of
acquittal. They have an important bearing on the conduct and
antecedents of the Applicant. In the present case, this is exactly
what has been done and the Hon'ble Administrative Judges'
Committee, after considering all the relevant material, including
the reasons for acquittal, has taken the decision of not appointing
the Petitioner. He submitted that it is not even the case of the
Petitioner that the decision is actuated for any extraneous reasons
or is tainted with bias or malafides. The Petitioner, having no
fundamental right for being appointed but merely being considered
in a fair manner, the decision of the Hon'ble Administrative Judges'
Committee could not faulted. He therefore submitted that no
interference was required by us in our equitable, extraordinary and
discretionary jurisdiction under Article 226 of the Constitution of
India and the Writ Petition be dismissed with costs.
8. We have heard the learned counsel for the respective
parties at length and have also perused the papers and proceedings
in the Writ Petition along with the annexures thereto. Before we
deal with the rival contentions, we would like to state that it is now

well settled that in service jurisprudence a candidate in the select
list / merit list has no fundamental right to be appointed. His only
right is to considered for appointment and in a fair manner. If any
authority is required for this proposition the Supreme Court in the
case of Union Territory of Chandigarh v. Dilbagh Singh3 has
succinctly set it out at paragraphs 11 and 12, which read thus:-
“11. In Shankarasan Dash v. Union of India [(1991) 3 SCC 47 :
1991 SCC (L&S) 800 : (1991) 17 ATC 95 : JT (1991) 2 SC 380] a
Constitution Bench of this Court which had occasion to examine
the question whether a candidate seeking appointment to a civil
post can be regarded to have acquired an indefeasible right to
appointment in such post merely because of the appearance of his
name in the merit list (select list) of candidates for such post has
answered the question in the negative by enunciating the correct
legal position thus: (SCC pp. 50-51, para 7)
“It is not correct to say that if a number of vacancies are notified for
appointment and adequate number of candidates are found fit, the
successful candidates acquire an indefeasible right to be appointed
which cannot be legitimately denied. Ordinarily the notification
merely amounts to an invitation to qualified candidates to apply for
recruitment and on their selection they do not acquire any right to
the post. Unless the relevant recruitment rules so indicate, the State
is under no legal duty to fill up all or any of the vacancies. However,
it does not mean that the State has the licence of acting in an
arbitrary manner. The decision not to fill up the vacancies has to be
taken bona fide for appropriate reasons. And if the vacancies or any
of them are filled up, the State is bound to respect the comparative
merit of the candidates, as reflected at the recruitment test, and no
discrimination can be permitted. This correct position has been
consistently followed by this Court, and we do not find any
discordant note in the decisions in the State of Haryana v. Subhash
Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 :
(1974) 1 SCR 165] ; Neelima Shangla (Miss) v. State of
Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender
Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174
: (1985) 1 SCR 899] .”
12. If we have regard to the above enunciation that a candidate

3 (1993) 1 SCC 154

who finds a place in the select list as a candidate selected for
appointment to a civil post, does not acquire an indefeasible right
to be appointed in such post in the absence of any specific rule
entitling him for such appointment and he could be aggrieved by
his non-appointment only when the Administration does so either
arbitrarily or for no bona fide reasons, it follows as a necessary
concomitant that such candidate even if has a legitimate
expectation of being appointed in such posts due to his name
finding a place in the select list of candidates, cannot claim to have
a right to be heard before such select list is cancelled for bona fide
and valid reasons and not arbitrarily. In the instant case, when the
Chandigarh Administration which received the complaints about
the unfair and injudicious manner in which select list of candidates
for appointment as conductors in CTU was prepared by the
Selection Board constituted for the purpose, found those
complaints to be well founded on an enquiry got made in that
regard, we are unable to find that the Chandigarh Administration
had acted either arbitrarily or without bona fide and valid reasons
in cancelling such dubious select list. Hence, the contentions of the
learned counsel for the respondents as to the sustainability of the
judgment of CAT under appeal on the ground of non-affording of
an opportunity of hearing to the respondents (candidates in the
select list) is a misconceived one and is consequently rejected.”
(emphasis supplied)
9. This proposition has also been made expressly clear by
Rule 6(7) of the Maharashtra Judicial Service Rules, 2008 which
reads thus:-
“(7) Candidates whose names are included in the list prepared
under clause (a) of sub-rule (6) above shall be considered for
appointment in the order in which their names appear in the list
and subject to rule 8, they may be appointed by the appointing
authority in the vacancies notified under clause (a) of sub-rule 1
above. Candidates whose names are included in the wait list shall
be considered for appointment after the candidates whose names
are included in the list published under sub-clause (a) of sub-rule (3)
above have been appointed and have not joined or have not been

appointed for any reason. Inclusion of the name of a candidate in
any list prepared under clause (3) shall not confer any right of
appointment on such candidate.”
(emphasis supplied)
10. At this very moment, we must note that the reference
“clause (a) of sub-rule (6)” as well as to “clause (3)” in the aforesaid
provision is a typographical mistake and should be read as “clause
(a) of sub-rule (3)” and “sub-rule (3)” respectively.
11. Be that as it may, this being the position in law, we shall
now examine the contentions of both the parties. In the facts of the
present case, it is not in dispute that the Petitioner had applied to
join judicial service to the post of Civil Judge, Junior Division and
Judicial Magistrate, First Class. It can hardly be disputed that a
member of the judicial service is a very important person who
dispenses justice to the citizens even in the most remote areas in
the State. The ordinary citizen is not always in a position to
approach the superior Courts for justice and very often his fate is
decided by the Judges of the lower judiciary. This, therefore,
clearly indicates that a Judge of the lower judiciary clearly plays a
very important and pivotal role in the administration of justice and
which is one of the great pillars of our vibrant democracy.

Considering the functions that a member of the judicial service is
require to carry out, he has to be one who is balanced, has a sense of
fairness, has a decent knowledge of the law and his character is
unblemished. These characteristics, in our view, are extremely
vital when choosing a candidate for judicial service. It is only in
such circumstances that a perception would be created in the mind
of the litigant that not only is justice done but also seen to be done.
12. Coming to the facts of the present case, it is admitted
that a criminal case was filed against the Petitioner. The charges
leveled against him were under sections 324, 504 r/w section 34 of
the IPC. Once can hardly dispute that the charges leveled against
the Petitioner were extremely serious and not of a petty nature
such as shouting slogans, stealing bread or such which did not
involve moral turpitude, such as cheating, misappropriation etc.
In fact, one of the serious charges leveled against the Petitioner was
for voluntarily causing hurt by dangerous weapons or means
(section 324 of the IPC). True it is, that he was finally acquitted of
all the aforesaid charges but on perusing the judgment of acquittal,
it can be seen that it was not a clean acquittal but on the ground of
reasonable doubt. On perusing the judgment of acquittal what we
find is that there was only one independent witness examined by

the prosecution who turned hostile during the trial and did not
support the case of the prosecution. Other than this witness, no
other independent witness was examined to prove the guilt of the
accused. In fact, the prosecution did not even examine the
Investigating Officer. It is in these circumstances that the Trial
Court came to the conclusion that all this creates a doubt about the
guilt of the Petitioner. It therefore held that the prosecution had
failed to prove its case beyond reasonable doubt which itself created
a doubt about the guilt of the Petitioner. Hence the benefit of doubt
was given to the Petitioner.
13. Looking at all this, can it be said that the opinion / order
of the Hon'ble Administrative Judges' Committee dated 25th June,
2012 was perverse and/or so unreasonable that it would shock the
conscience of the Court? Our answer would be an emphatic NO. In
fact, far from this, we are of the opinion that the decision of the
Hon'ble Administrative Judges' Committee was fully justified.
Looking to all these factors, the said Committee felt that the
Petitioner would not be a suitable candidate to be appointed in
judicial service. His character was certainly not one that could be
characterized as unblemished. To an average citizen in a remote
area, a Court of Law is a temple of justice and the persons

dispensing it are looked upon with the highest regard and respect.
Therefore, when being selected for judicial service, a candidate like
the Petitioner, would have to live up to and meet even higher
standards than any other candidate applying for a job with the
Government or other civil services. We, therefore, are unable to
agree with the submissions of Mr Salunke that there is any
infirmity in the order / opinion dated 25th June, 2012 that would
require our interference under Article 226 of the Constitution of
India.
14. Even the decisions relied upon by Mr Salunke do not
carry the case of the Petitioner any further. The first decision
relied upon by Mr Salunke was a decision of the Supreme Court in
the case of Avtar Singh v. Union of India.1 Mr Salunke laid great
stress on paragraph 31 of the aforesaid decision (SCC Report),
which reads thus:-
“31. Coming to the question whether an employee on probation
can be discharged/refused appointment though he has been
acquitted of the charge(s), if his case was not pending when form
was filled, in such matters, employer is bound to consider grounds
of acquittal and various other aspects, overall conduct of employee
including the accusations which have been levelled. If on
verification, the antecedents are otherwise also not found good,
and in number of cases incumbent is involved then notwithstanding
acquittals in a case/cases, it would be open to the employer to form

1 (2016) 8 SCC 471 : AIR 2016 SC 3598

opinion as to fitness on the basis of material on record. In case
offence is petty in nature and committed at young age, such as
stealing a bread, shouting of slogans or is such which does not
involve moral turpitude, cheating, misappropriation, etc. or
otherwise not a serious or heinous offence and accused has been
acquitted in such a case when verification form is filled, employer
may ignore lapse of suppression or submitting false information in
appropriate cases on due consideration of various aspects.”
(emphasis supplied)
15. What we must at once note is that this was not a case of
a candidate applying for a post in judicial service. Be that as it may,
we fail to see how this decision supports the case of the Petitioner.
In fact, far from supporting the Petitioner, the ratio laid down in the
aforesaid case, clearly supports the view we have taken earlier.
The Supreme Court has clearly stated that though the candidate
may have been acquitted of the charges, the employer is bound to
consider the grounds of acquittal and various other aspects such as
overall conduct of the employee including the accusations which
have been leveled. The employer has to verify the antecedents of
the Applicant and after considering all the aspects, notwithstanding
the acquittal in a case / cases, it would be open to the employer to
form an opinion as to the fitness on the basis of the material on
record. We therefore find that the reliance placed on this decision,
far from supporting the Petitioner, in fact takes the same view that

we have taken earlier. Similar is the situation with the decision of
the Delhi High Court in the case of Manoj Vs. Union of India &
Ors.2 The Delhi High Court has pointed that a brush with the law
should not disqualify a recruit of police or civil services unless
accusation relates to higher degree of crime. It may be a serious
violation of the constitutional right of a citizen to be fairly treated in
matters of public employment if trivial offences committed by a
citizen would justify the State denying employment. Even if we
were to apply the ratio laid down by Delhi High Court to the facts of
the present case, we do not think that the same would support the
arguments canvassed on behalf of the Petitioner. As noted earlier,
the charges leveled against the Petitioner were of a serious nature
and not that could be classified as being petty. In these
circumstances, even the reliance placed on the decision of the Delhi
High Court does not carry the case of the Petitioner any further.
16. In views of the foregoing discussion, we have no
hesitation in holding that the order / opinion of the Hon'ble
Administrative Judges' Committee dated 25th June, 2012 does not
suffer from any infirmity and can neither be termed as perverse or
suffering from any error apparent on the face of the record

2 2016 (4) SLR 731 : 2016 (158) DRJ 442

requiring our interference under Article 226 of the Constitution of
India. Consequently, the Writ Petition is dismissed. However, in the
facts and circumstances of the case, there shall be no order as to
costs.
(B.P. COLABAWALLA, J.) (S.C.DHARMADHIKARI J.)


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