petitioner was called before the Juvenile Justice Board in connection
with some accusation made against the petitioner when, admittedly,
he was a minor of 14 years would itself justify or create any
impediment in his appointment in Government service. In this
connection, we will take note of the provisions of Section 19 of the
Juvenile Justice (Care and Protection of Children) Act, 2000. Section
19 reads thus :
“19. Removal of disqualification attaching to
conviction.—
(1) Notwithstanding anything contained in any other
law, a juvenile who has committed an offence and has
been dealt with under the provisions of this Act shall
not suffer disqualification, if any, attaching to a
conviction of an offence under such law.
(2) The Board shall make an order directing that the
relevant records of such conviction shall be removed
after the expiry of the period of appeal or a reasonable
period as prescribed under the rules, as the case may
be.”
7. Taking note of the said provision and the admitted facts in
the present case, we find that mere non-disclosure of the alleged
accusation during the period when the petitioner was a minor would
not, be a disqualification of being appointed to Government service.
8. In this regard, the Apex Court in the case of
Commissioner of Police and others (supra), has observed at paras 8,
10, 11 and 12, thus :
“ 8. We respectfully agree with the Delhi High Court
that the cancellation of his candidature was illegal, but
we wish to give our own opinion in the matter. When
the incident happened the respondent must have been
about 20 years of age. At that age young people often
commit indiscretions, and such indiscretions can often
be condoned. After all, youth will be youth. They are
not expected to behave in as mature a manner as older
people. Hence, our approach should be to condone
minor indiscretions made by young people rather than
to brand them as criminals for the rest of their lives.
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 171/2014
Pravin Arjun Shetkar
V
State of Goa,
CORAM :- F.M. REIS &
K.L. WADANE, JJ.
Date : - 16 OCTOBER 2015.
Citation: 2016 (5)ALLMR356
2. Briefly, the facts of the case are as follows :
Pursuant to a duly conducted selection process, the
petitioner was selected to the post of Lower Division Clerk (LDC) in
the Office of the Collectorate of North Goa District, Panaji on 3rd
June, 2010. The petitioner, accordingly, accepted the said post on 8th
June, 2010, and joined the services on 29th June, 2010. In the
meanwhile, the petitioner had also filled up an attestation form on 9th
June, 2010, wherein in one of the clauses in such form, the petitioner
did not disclose that when he was 14 years old, he was produced before
the Juvenile Justice Board on account of a petty offence. Thereafter,
on 26th November, 2010, the Additional Collector issued a Memo to the
petitioner stating that the petitioner should submit an explanation in
connection with the said case which the petitioner had suppressed
whilst filling up the attestation form. An explanation with that regard
was submitted by the petitioner, inter alia, contending that the
petitioner was discharged by the Juvenile Justice Board and that he did
not understand the exigencies of making such disclosure in such an
attestation form. Ultimately, the Additional Collector wrote to the
Mamlatdar of Bicholim stating that the petitioner is convicted in
Crime No. 146/99. It is further his contention that the Mamlatdar had
wrongly informed the Collector that the petitioner was convicted in
Crime No.146/99 when, on the contrary, he was duly discharged.
Subsequently, on 7th March, 2012, the services of the petitioner were
terminated on the ground that the petitioner had suppressed such
information in his attestation form. A representation was made by the
petitioner, but, however, the petitioner was informed by the Under
Secretary that the petitioner's request is not accepted. As a subsequent
representation was made by the petitioner, which did not find favour
with the respondent, the petitioner filed the above writ petition,
challenging the action of the respondents, terminating the services of
the petitioner. The petitioner subsequently came to know from the
information collected under the RTI that the Collector had
recommended reinstatement of the petitioner in view of the fact that the
case of the petitioner before the Juvenile Justice Board resulted in an
acquittal. But, however, as there was no reconsideration of the
decision of terminating the services of the petitioner and having no
other alternative, the petitioner filed the above writ petition, inter alia,
challenging the impugned order dated 7th March, 2012 terminating the
services of the petitioner and seeking his reinstatement in the services
of the respondents, together with back-wages.
3. The respondents filed their reply, inter alia, contending
that suppression of the material aspect about the involvement of the
petitioner in the criminal case itself justified the impugned order of
termination of the services of the petitioner. Thereafter, the petitioner
also filed a rejoinder disputing such contentions and other factual
aspects as alleged by the respondents in their reply.
4. Shri D. Pangam, learned Counsel appearing for the
petitioner has pointed out that the petitioner was allegedly implicated
in the criminal case when he was merely 14 years and a juvenile and, as
such, non-disclosure of such fact, by itself cannot result in suppression
of material information in the attestation form. The learned Counsel
has further pointed out that the petitioner was discharged by the
Juvenile Justice Board as the petitioner was not involved in the alleged
accusation made against the petitioner. The learned Counsel further
submits that it is well settled that a juvenile cannot be arrested and, as
such, the contention of the respondents that the petitioner was
prosecuted for an offence is without any substance. The learned
Counsel further points out that the respondents have relied upon
erroneous information received from the leaned Mamlatdar that the
petitioner was convicted for a crime when, on the contrary, material on
record suggests that there no such conviction. The learned Counsel
further points out that in any event, non-disclosure of some alleged
acts during the period when the petitioner was a minor, would not, by
itself, affect the right of the petitioner in securing employment in
Government service. The learned Counsel further points out that
admittedly, the petitioner had gone through the selection process and
was duly selected for the post in which he had been duly appointed.
The learned Counsel further points out that even assuming that there is
non-disclosure of the fact with regard to the proceedings before the
Juvenile Justice Board, that by itself would not materially affect the
rights of the petitioner to be employed in Government service. The
learned Counsel further points out that the petitioner was appointed as
a LDC and for such services, the alleged accusation against the
petitioner would not at all materially affect the duties which the
petitioner would render in such post. In support of his submissions,
the learned Counsel has relied upon a Judgment of the Apex Court
reported in (2011) 4 SCC 644 in the case of Commissioner of Police
and others vs. Sandeep Kumar, as well as an unreported Judgment of a
Division Bench of this Court in Writ Petition No.415/2015 dated 12th
August, 2015 in the case of Ashish Anil Gaonkar vs. Sr. 6 wp171-14
Superintendent Officer, Department of Post, Goa Division. In
support his contention that there is no arrest of a juvenile, the learned
Counsel has also relied upon the observations of the Apex Court in
(2012) 9 SCC 750 in the case of Ashwani Kumar Saxena vs. State of
Madhya Pradesh. The learned Counsel has, thereafter, taken us
through the reply filed by the respondents to point out that merely
because there was alleged suppression in the attestation form the
respondents have terminated the services of the petitioner on
unjusticiable grounds.
5. On the other hand, Shri V. Rodrigues, learned Government
Advocate appearing for the respondents has submitted that nondisclosure
of material aspect about the criminal record of a candidate,
would entitle the respondents to terminate the services of the
incumbent. The learned Government Advocate has thereafter taken us
through the attestation form signed by the Petitioner to point out that
the column where the petitioner was supposed to disclose whether he
was arrested or prosecuted in a criminal case, was left blank. The
learned Counsel further points out that this, itself, would show that
the petitioner has deliberately suppressed the material fact which
compelled the respondents to terminate the services of the Petitioner.
The learned Government Advocate further submits that it is well settled
that non-disclosure of a material aspect would disentitle a candidate
from being appointed to Government service and, as such, entitle the
respondents to terminate services of the petitioner. The learned
Government Advocate further points out that merely because the
petitioner was a minor when he was prosecuted for a criminal offence
would, itself, not be a reason to hold that there is no suppression of a
material fact by the petitioner. The learned Government Advocate as
such, points out that the petition be rejected.
6. We have given our thoughtful consideration to the rival
contentions and with the assistance of the learned Counsel, we have
also gone through the relevant records and the concerned Rules. It
cannot be disputed that non-disclosure of a material circumstance
which would influence a selection process would, itself, be a ground
for recalling of a letter of appointment to a candidate. But, however,
in the present case, we have to examine whether merely because the
petitioner was called before the Juvenile Justice Board in connection
with some accusation made against the petitioner when, admittedly,
he was a minor of 14 years would itself justify or create any
impediment in his appointment in Government service. In this
connection, we will take note of the provisions of Section 19 of the
Juvenile Justice (Care and Protection of Children) Act, 2000. Section
19 reads thus :
“19. Removal of disqualification attaching to
conviction.—
(1) Notwithstanding anything contained in any other
law, a juvenile who has committed an offence and has
been dealt with under the provisions of this Act shall
not suffer disqualification, if any, attaching to a
conviction of an offence under such law.
(2) The Board shall make an order directing that the
relevant records of such conviction shall be removed
after the expiry of the period of appeal or a reasonable
period as prescribed under the rules, as the case may
be.”
7. Taking note of the said provision and the admitted facts in
the present case, we find that mere non-disclosure of the alleged
accusation during the period when the petitioner was a minor would
not, be a disqualification of being appointed to Government service.
8. In this regard, the Apex Court in the case of
Commissioner of Police and others (supra), has observed at paras 8,
10, 11 and 12, thus :
“ 8. We respectfully agree with the Delhi High Court
that the cancellation of his candidature was illegal, but
we wish to give our own opinion in the matter. When
the incident happened the respondent must have been
about 20 years of age. At that age young people often
commit indiscretions, and such indiscretions can often
be condoned. After all, youth will be youth. They are
not expected to behave in as mature a manner as older
people. Hence, our approach should be to condone
minor indiscretions made by young people rather than
to brand them as criminals for the rest of their lives.
10. We may also here refer to the case of Welsh
students mentioned by Lord Denning in his book Due
Process of Law. It appears that some students of Wales
were very enthusiastic about the Welsh language and
they were upset because the radio programmes were
being broadcast in the English language and not in
Welsh. They came up to London and invaded the High
Court. They were found guilty of contempt of court and
sentenced to prison for three months by the High Court
Judge. They filed an appeal before the Court of
Appeals. Allowing the appeal, Lord Denning observed:
“ I come now to Mr Watkin Powell’s third point.
He says that the sentences were excessive. I do not
think they were excessive, at the time they were
given and in the circumstances then existing. Here
was a deliberate interference with the course of
justice in a case which was no concern of theirs. It
was necessary for the Judge to show—and to show
to all students everywhere—that this kind of thing
cannot be tolerated. Let students demonstrate, if
they please, for the causes in which they believe.
Let them make their protests as they will. But they
must do it by lawful means and not by unlawful. If
they strike at the course of justice in this land—and
I speak both for England and Wales—they strike at
the roots of society itself, and they bring down that
which protects them. It is only by the maintenance
of law and order that they are privileged to be
students and to study and live in peace. So let them
support the law and not strike it down.
But now what is to be done? The law has been
vindicated by the sentences which the Judge passed
on Wednesday of last week. He has shown that law
and order must be maintained, and will be
maintained. But on this appeal, things are changed.
These students here no longer defy the law. They
have appealed to this Court and shown respect for
it. They have already served a week in prison. I do
not think it necessary to keep them inside it any
longer. These young people are no ordinary
criminals. There is no violence, dishonesty or vice
in them. On the contrary, there was much that we
should applaud. They wish to do all they can to
preserve the Welsh language. Well may they be
proud of it. It is the language of the bards—of the
poets and the singers—more melodious by far than
our rough English tongue. On high authority, it
should be equal in Wales with English. They have
done wrong—very wrong—in going to the extreme
they did. But, that having been shown, I think we
can, and should, show mercy on them. We should
permit them to go back to their studies, to their
parents and continue the good course which they
have so wrongly disturbed.” (Vide Morris v. Crown
Office 1(1970) 2 AB 114, QB at p. 125C-H.)
In our opinion, we should display the same wisdom as
displayed by Lord Denning.
11. As already observed above, youth often
commits indiscretions, which are often condoned.
12. It is true that in the application form the
respondent did not mention that he was involved in a
criminal case under Sections 325/34 IPC. Probably he
did not mention this out of fear that if he did so he
would automatically be disqualified. At any event, it
was not such a serious offence like murder, dacoity or
rape, and hence a more lenient view should be taken in
the matter”
9. Taking note of the well settled principles referred therein
by the Apex Court and applying them to the facts of the present case,
we find that merely non-disclosure of the alleged accusation, when the
petitioner was a juvenile, would not by itself result in suppression of a
relevant information in the attestation form.
10. Apart from that, the petitioner had left the answer in the
said column blank and, as such, it prima facie cannot be said that
there was suppression of fact. The respondents could have called upon
the petitioner, if they so desire, to fill up such a column. It is also not
in dispute that the petitioner had been selected in a regular selection
process. The eligibility of the petitioner is also not in dispute. The fact
that he had been duly appointed in a regular selection process has also
not been disputed. As such, non-disclosure of the alleged accusation
during the period when he was a minor of 14 years age, cannot be treated to
be a disqualification which would affect his appointment to Government
service. The punishment of termination imposed by the respondents on the
petitioner, in such circumstances, is shockingly disproportionate to the
alleged lapse on the part of the petitioner in not disclosing the subject
accusation in the attestation form. For such a lapse, the petitioner would
have to forgo any claim for back-wages. In such circumstances, we find that
the respondents were not justified to pass the impugner order, terminating the
services of the petitioner. As such, the impugner Order dated 7th March,
2012 deserves to be quashed and set aside.
11. With regard to the relief which can be granted to the
petitioner in the facts and circumstances of the case, we find that the
impugned Order dated 7th March, 2012 needs to be quashed and set
aside and the petitioner be reinstated notionally as on the date of
termination. The petitioner would thus be entitled for continuity of
services, without any back wages. The petitioner shall also be entitled
for all other benefits, in accordance with law.
12. In view of the above, we pass the following Order :
(I) The impugned Order dated 7th March, 2012 is quashed and
set aside.
(II) The petitioner shall be reinstated as on the date of such
impugned order notionally, with continuity of service and other
benefits in accordance with the Rules, without any back-wages, within
two months from today.
(III) Rule is made absolute in the above terms. No costs.
K.L. WADANE, J. F.M. REIS, J.
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