Mere Pendency Of FIR For Minor Offences Cannot Deny Compassionate Appointment | Himachal Pradesh High Court Affirms Presumption Of Innocence | Directs Appointment Within Four Weeks
Sanchayita Lahkar
The High Court of Himachal Pradesh, Single Bench of Justice Sandeep Sharma, held that denial of appointment on the ground of mere pendency of an FIR is not sustainable in law. The Court directed the respondent authorities to issue an appointment letter to the petitioner on compassionate grounds within a stipulated period. The Court further recorded that although pendency of a criminal case is to be considered, the gravity and nature of the offence must be weighed, and in this case, the alleged offences under Sections 323 and 325 of the Indian Penal Code did not justify withholding the petitioner’s appointment. The Court ordered issuance of the appointment letter expeditiously, clarifying that continuance in service would ultimately depend upon the outcome of the criminal trial.
The matter arose out of a petition filed challenging the denial of appointment on compassionate grounds. The petitioner’s father, who had been serving in the Department of Elementary Education as a Junior Basic Teacher from 01.08.1998 until his death in harness on 21.10.2009, left behind eight dependents. Following his father’s death, the petitioner applied in 2010 for compassionate appointment with the Block Elementary Education Officer, Salooni, District Chamba. However, by order dated 04.06.2011, his claim was returned with the observation that it did not fall within the ambit of government policy.
Subsequently, upon legal notice, the case was reviewed, and vide communication dated 18.12.2019, the Deputy Director of Elementary Education, Chamba, referred the petitioner’s case for further action. On 26.02.2021, the competent government authority approved the petitioner’s appointment to the post of Junior Office Assistant (IT) on compassionate grounds, directing submission of fresh documents by communication dated 16.03.2021. The petitioner complied on 13.04.2021, yet no appointment letter was issued for over four years.
In the writ petition, the petitioner prayed for directions to the respondents to offer him appointment to the post of Junior Office Assistant (IT) in terms of the government approval dated 26.02.2021. He further sought a declaration that he be deemed to have been in service since April 2021 with consequential benefits, as he had submitted requisite documents within the prescribed time frame.
The respondents, in their short reply, admitted that the petitioner’s name had been duly approved by the competent authority for compassionate appointment but contended that the issuance of an appointment letter was withheld due to pendency of FIR No. 5 of 2019, registered under Sections 323 and 325 IPC at Police Station Kihar.
The petitioner, through counsel, contended that mere pendency of an FIR, particularly under non-grave sections such as 323 and 325 IPC, could not be a valid ground to deny appointment. Counsel argued that guilt was yet to be proved and cited the Division Bench judgment in Sanjay Kumar v. State of Himachal Pradesh & Ors. (CWP No. 9026 of 2022, decided on 10.01.2023), where the Court had deprecated denial of appointment on similar grounds. The petitioner’s side stated that there had been no concealment of facts by the petitioner and that he had complied with all required formalities.
The respondents, represented by Additional Advocate General B.C. Verma, argued that the fact of FIR registration had been concealed by the petitioner and justified the decision to withhold appointment, relying upon Clause-19 of the Himachal Pradesh Government Notification dated 05.08.2021 (Recruitment Rules) and Stage-08 of Recruitment Notice dated 10.09.2021.
The Court noted that the issue required determination of whether compassionate appointment duly approved by the competent authority could be denied on the sole ground of pendency of an FIR.
The Court recorded that there was no dispute about the petitioner’s father’s service and death in harness. It noted that after rejection in 2011, the petitioner’s case was reconsidered, and approval was granted on 16.03.2021 by the competent authority. The Court observed: “For the first time, respondents, by way of filing reply to the petition, have put-forth their defence that since FIR bearing No. 5 of 2019 stands registered against the petitioner under Sections 323 and 325 IPC, he could not be issued appointment letter, but such plea taken at the behest of the respondent/State is not sustainable for the reason that guilt, if any, of the petitioner in afore case is yet to be established by the prosecution by leading cogent and convincing evidence.”
The Court further noted: “Neither there is anything on record to suggest that petitioner ever concealed factum with regard to lodging of FIR against him nor there is any document, if any with the respondents, suggestive of the fact that petitioner was to send information with regard to pendency of criminal case, if any, against him to the respondents.”
The Court stated the trivial nature of the alleged offences, stating: “Moreover, allegations/charges, if any, in the FIR are not so serious, where petitioner can be denied appointment, rather same appears to be on the ground of some altercation or scuffle that took place inter se petitioner and complainant in the FIR.”
Relying upon the earlier decision in Sanjay Kumar v. State of Himachal Pradesh (supra), the Court reiterated: “No doubt, pendency of criminal case and registration of FIR is to be taken into account, while considering a candidate for appointment and even at the time of training, as per the Rules, but then the gravity and nature of the offence has also to be considered and, therefore, mere registration of criminal case by itself cannot be a ground for the appointing authority to deny appointment or for that matter withhold regularization.”
The Court also referred to Rajinder Kumar v. Himachal Road Transport Corporation & Anr. (CWP No. 2110 of 2019, decided on 22.10.2019), where it was held that pendency of a criminal case cannot be the sole reason for denial of regularization, particularly in cases involving minor offences.
The Court quoted the Supreme Court judgment in State Bank of India v. P. Soupramaniane on the meaning of moral turpitude, noting that only serious and depraved offences fall within its ambit. It further cited Avtar Singh v. Union of India (2019) 8 SCC 71, wherein the Apex Court held that suppression of trivial offences may be condoned in employment matters.
Summarizing its stance, the Court recorded: “Till the time charge is not framed against the accused and he is not convicted by competent Court of law, he is deemed to be innocent. If it is so, denial of appointment on the ground of mere pendency of FIR, that too for the petty offences, may not be sustainable, rather at this stage, respondents can offer appointment to the petitioner, but certainly petitioner’s continuance in service would ultimately depend upon outcome of the criminal trial, if any, initiated, pursuant to FIR lodged against him.”
Allowing the petition, the Court ordered: “In view of the above, this Court finds merit in the present petition and accordingly, the same is allowed. Respondents are directed to issue appointment letter to the petitioner on compassionate ground on the basis of approval given by the competent authority, expeditiously, preferably within four weeks as per seniority. Pending applications, if any, stand disposed of.”
The directive clarified that the petitioner’s continuance in service shall be subject to the outcome of the criminal proceedings.
Advocates Representing the Parties
For the Petitioner: Mr. Angrez Kapoor, Advocate.
For the Respondents: Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Mr. Vishal Panwar, and Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General.
Case Title: Yog Raj v. State of Himachal Pradesh & Ors.
Case Number: CWP No. 6233 of 2022
Bench: Justice Sandeep Sharma
