Allowed

R. Ramar, S/O.Rajendran, v. the Chairman

Madras HC20 Aug 2013WP(MD)/12121/2011

Case brief

AI extract

What is this about?

The Madurai Bench allowed a writ petition quashing a rejection order against a police recruit. The court held that despite non-disclosure of minor criminal cases which ended in honorable acquittal, the petitioner should be appointed based on the modern approach of reform rather than stigma.

What did the court decide?

The impugned order is quashed; the petitioner is directed to be appointed as a Grade II Police Constable in the 2009-2010 batch as the last person, with seniority except monetary benefits.

R. Ramar, S/O.Rajendran, Vs the Chairman — Service and Employment | Madras HC (2013)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED : 20.08.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S.TAMILVANAN

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W.P.(MD)No.12121 of 2011

R.Ramar

... Petitioner

vs.

The Chairman

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Tamil Nadu Uniform Services Recruitment Board, Chennai.

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The Director General of Police Office of the Director General of Police Tamil Nadu, Chennai - 600 004.

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The Superintendent of Police Ramanathapuram District, Ramanathapuram.

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The Inspector of Police Devakottai Town Police Station, Sivagangai District. ... Respondents

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Writ petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records relating to the impugned order passed by the 2nd Respondent in Na.Ka.No.692/173493/Niyamanam 1(2)/2011, dated 07-07-2011 and quash the same and consequently direct the 2nd Respondent to issue the Petitioner s training order on the basis of the provisionally selected candidates for Medical Examination and Police Verification for the recruitment of Grade II Police Constables (Men and Women) 2010.

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For Petitioner ... Mr.M.Kannan For Respondents ... Mr.B.Pugalendhi, Spl.G.P.

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ORDER

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This writ petition has been filed under Article 226 of the Constitution of India, seeking an order in the nature of writ of certiorarified mandamus, calling for the records pertaining to the impugned order, passed by the second respondent in Na.Ka.No. 692 / 173493 / epakdk; 1(2)/2011, dated 07.07.2011 and quash the same and consequently, direct the second respondent to issue training order to the petitioner on the basis of a provisionally selected candidate for https://hcservices.ecourts.gov.in/hcservices/ medical examination and police verification for the recruitment of Grade II Police Constables (Men and Women) 2010.

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The petitioner has sated that he belongs to denotified community of Most Backward class in the Ramanathapuram District and from the British Rule, the community had been oppressed and with great difficulty and struggle, they got their rights. The petitioner had applied for the post of Police Constable Gr.II and participated for the recruitment to be made in the year 2009-2010. He has further stated that his Registration No. was 2901259 and for which, tests were conducted on 08.10.2010 at Seethakathi Sethupathy Staduim, Collectorate Complex, Ramanathapuram. According to the petitioner, he came up successfully in the written test, as well as in the physical education test and was selected as a successful candidate. When he was eagerly waiting for appointment order, the first respondent passed the impugned order, dated 07.07.2011, whereby rejected the selection of the petitioner on the ground that the petitioner's previous antecedents are not satisfactory.

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The petitioner has further stated that in the selection test conducted in the year 2007, he came out successfully in all the tests, however, the respondents rejected his selection on the ground that he was facing criminal case in Cr.No.55 of 2007, dated 25.10.2007. Hence, he filed writ petition in W.P.(MD).No.6830 of 2009 before this Court and that was dismissed on the ground that the petitioner was involved in a criminal case. According to the petitioner, the first respondent informed that he had involved in three criminal cases of minor offences and in all cases, the petitioner was found guilty. The petitioner has stated that the cases were registered on the basis of complaints given by neighbouring villagers due to some enmity. When the cases were registered, according to the petitioner, he was young age, unnecessarily his name has been grouped along with the villagers. It is further submitted that Ramanathapuram is a prone area for a casteclashes and it is the usual practice to include all the young persons, whenever criminal cases were filed against a group or family, even if they undergo their studies. Such procedure adopted by the defactocomplainants is with ulterior motive to spoil the future of the educated youth.

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According to the petitioner, the impugned order is also against the decision rendered by the Hon'ble Apex Court in Commissioner. of Police v. Sandeep Kumar reported in (2011) 4 SCC 644 . According to the petitioner, there was no criminal case pending against the petitioner and he was acquitted in all the cases and the criminal cases in which the petitioner got acquittal were of minor offences. On the aforesaid grounds, the petitioner has sought an order in the nature of certiorarified mandamus, as prayed for in the writ petition.

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Though the writ petition was posted on various dates for filing counter, the respondents have not filed any counter. However, based on the arguments advanced by both sides, the order is being passed by this Court, in this writ petition.

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A certified copy of the impugned order, dated 07.07.2011 passed https://hcservices.ecourts.gov.in/hcservices/ by the second respondent has been filed in the typed set of papers. As per the impugned order, it is stated that a case in Cr.No.55 of 2007 was registered under Sections 147, 148, 341, 294 (b), 355 and 506 (ii)

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IPC on the file of the Elanchempur police station, Sivagangai District, wherein the defacto-complainant turned hostile and hence, the Judicial Magistrate Court, Muthukulathur recorded acquittal by its Judgment, dated 26.05.2009 under Section 248 (1) Cr.P.C, holding that the alleged guilt has not been proved against the petitioner. Similarly, another case in Cr.No.12/2010, registered under Sections 147, 148, 324 and 506 (ii) IPC by the same police station against the petitioner and others was also ended in acquittal, as the defacto-complainant therein turned hostile and the case was not established by the prosecution. Hence, in the said case also the Judicial Magistrate, Muthukulathur recorded acquittal by his Judgment, dated 30.11.2010, under Section 248 (1) Cr.P.C

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In Cr.No.57/2007, a miscellaneous case No.71/07 was registered by Sub-Divisional Magistrate, Paramakudi, wherein 30 persons, including the petitioner were asked to furnish bond for a sum of Rs.25,000/- each not to commit breach of public peace in Elanchempur and Veerambal villages, within the jurisdiction of Paramakudi Sub-divisional Magistrate. On the bonds, being executed, the petitioner and others were released under Section 118 Cr.P.C by the Sub-Divisional Magistrate, Paramakudi.

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The impugned order reads that in view of the amended rule 14 (b) of Special Rules for Tamil Nadu Subordinate Service Rules, which was held not ultra vires or unconstitutional, the petitioner was not selected and that the non-selection of the petitioner or the rejection of his candidature, either on the basis of his involvement in criminal case or on the basis of the suppression of their involvement is perfectly valid and justified. Learned Special Government Pleader argued based on the reasons given by the respondents in the impugned order, dated 07.07.2011 for the dismissal of the writ petition.

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Learned counsel appearing for the writ petitioner, relying on the decision in D.Mahadevan v. Director General of Police , reported in (2008) 4 MLJ 88 , submitted that rule 13 (b) of Tamil Nadu Police Subordinate Service Rules, shall not be a stumbling block, in view of explanation 2 to Sections 8 and 10 of Tamil Nadu District Police Act, and accordingly, held that the petitioner's involvement therein in a criminal case shall not be a bar for selection as Sub-Inspector, if otherwise qualified and eligible. By virtue of rule 13 (b) of the Tamil Nadu Police Subordinate Service Rules, a candidate, who was arrayed as an accused in a criminal case, shall not be treated as a person, involved in a criminal case, if he had honourable acquittal.

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In T.S.Vasudevan Nair v. Director of Vikram Sarabhai Space Centre , reported in 1988 (Supp) SCC 795 , the Hon'ble Apex Court held as follows :

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"Service Law – Appointment – Disqualification – Conviction under Defence of India Rules for shouting slogans on one occasion during emergency – Denial of appointment on sole ground of non-disclosure of such https://hcservices.ecourts.gov.in/hcservices/ conviction not justified."

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Similarly in Pawan Kumar v. State of Haryana , reported in AIR

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1996 SC 3300 , the Hon'ble Apex Court held thus : "9. In order to secure a conviction, the provision of Section 294 IPC requires to particulars to be proved by the prosecution, i.e. (i) the offender has done any obscene act in any place or has sung, recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung, recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed. The Courts should be sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today's society and its standards and its changing views of obscenity." 12. In Radhakrishnan v. Director of General of Police , reported in 2007 (7) Supreme 331 , a case related to a candidate, who applied for the post in the uniformed services, the Supreme Court held thus : "Indisputably, Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons, who had not made such disclosures and were, thus, similarly situated had not been appointed." 13. In Delhi Administration v. Sushil Kumar , reported in 1996 (8) Supreme 47 , it was held as follows : "It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though, he was physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it is not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, https://hcservices.ecourts.gov.in/hcservices/ therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences,

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the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing Authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service."

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In Manikandan v Chairman, T.N.Uniformed Services, Recruitment Board , reported in 2008 (2) CTC 97 , a Full Bench of this Court held held that failure by applicant to disclose his involvement in a criminal case at earliest point of time, when application is filled up is incurable and fatal, in view of rule 14 (b), Explanation 1 and 2 of Tamil Nadu Special Police Subordinate Service Rules, 1978. It was further held that the applicant cannot cure it, by way of his subsequent disclosure, as it will bring case within the ambit of Explanation 2 and he would ineligible for current selection, however, for all future selections, it would be depending on whether acquittal is honourable or otherwise.

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It is not in dispute that the Full Bench of this Court in Manikandan v. Chairman, T.N.Uniformed Services Recruitment Board , reported in 2008 (2) CTC 97 has upheld that rule 14 (b) of the Tamil Nadu Special Police Subordinate Service Rules, as follows :

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"40. Therefore, in conclusion, we hold that the amended Rule 14(b) of the Special Rules for Tamil Nadu Police Subordinate Services is not ultra vires or unconstitutional. We also hold that the non selection of the writ petitioners or the rejection of their candidatures, by the respondents, either on the basis of their involvement in criminal case or on the basis of the suppression of their involvement, is perfectly valid and justified.

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In answer to the reference made to the Full Bench, we hold -

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(a) that by virtue of Explanation to Clause (iv) of Rule 14 (b) of the Tamil Nadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified; and

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(b) That the failure of a person to disclose in the Application form, either his involvement in a criminal case or the pendency of a criminal case against him, would entitle the Appointing Authority to reject his application on the ground https://hcservices.ecourts.gov.in/hcservices/ of concealment of a material fact, irrespective

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of the ultimate outcome of the criminal case."

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In Commissioner of Police v. Sandeep Kumar, reported in (2011) 4 SCC 644 , it was held that the respondent's candidature for the post of Headconstable cancelled, on the ground that he had concealed his involvement in criminal case under Sections 325 r/w 34 IPC, when he was aged about 20 years was not proper. In this regard, the Hon'ble Supreme Court has found as follows:

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"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."

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In the printed application form, in Sl.No.12-a, it was stated as follows : Have you ever been arrested, prosecuted kept under detention or bound down / fined, convicted by a court of law for any offence, debarred / disqualified by any Public Service Commission from appearing at its examination / selection or debarred from any examination, rusticated by any university or any other education authority / institution. Against that column, the respondent, Sandeep Kumar therein, had written "No".

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It was alleged that the said statement "No" made by the respondent therein was false, because he and some of his family members were involved in a criminal case being FIR No.362 under Sections 325/34 IPC. The said case was admittedly compromised on 18.01.1998 and the respondent and his family members were acquitted on 18.01.1998. The allegation was that suppressing the fact, the respondent therein answered "No" in his application. Hence, the Commissioner of Police, decided that the respondent therein was not eligible for consideration. However, the Hon'ble Apex Court has held that modern approach should be to reform a person, instead of branding him as a criminal throughout in his life and rendered its decision against the view of the Commissioner of Police and others, appellants therein and dismissed the appeal, confirming the order passed by the High Court in favour of the candidate.

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It is not in dispute that the petitioner got honourable acquittal, since the case against the petitioner was not relating to any major offence and was also not supported by the defacto-complainant and other prosecution witnesses and therefore, there is no stigma attached to the petitioner. As per Explanation 2 of rule 13 (b) of the Tamil Nadu Police Subordinate Service Rules, the petitioner shall be treated as a person not involved in a criminal case, however, the explanation reads that such a person can claim for appointment only by participating in the next recruitment. It is not in dispute that the petitioner had been acquitted honorably prior to the date of selection.

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In view of the Full Bench decision of this Court referred to above, the petitioner herein is not entitled to raise a plea that rule https://hcservices.ecourts.gov.in/hcservices/ 14 (b) of the Rules is ultra vires and unconstitutional, since the said provision of law was upheld by the Full Bench of this Court.

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The decision rendered by the Hon'ble Supreme Court in Commissioner of Police v. Sandeep Kumar reported in (2011) 4 SCC 644 , in a similar case, it has been crystal clear that modern approach should be to reform a person instead of branding him as a criminal for all his life, when there is honourable acquittal or no stigma is attached on the petitioner, prior to the date of verification of the certificates.

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It has been categorically ruled by the Hon'ble Apex Court that when the offence is not serious like murder, dacoity or rape and there is honourable acquittal, prior to the date of verification of certificates, the non-disclosure of the antecedent cannot be a bar for getting a job.

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In the instant case, the petitioner has stated that he belongs to denotified community of Most Backward community, with great struggle, got rights, considering the economic and educational backwardness of the denotified community in Ramanathapuram District.

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Learned counsel appearing for the petitioner contended that due to such family background, at the young age, the petitioner herein was implicated in cases relating to petty offence, though he was honorably acquitted in all the cases by the Court, his selection was not considered for appointment. The Honourable acquittal recorded in favour of the petitioner is not in dispute, in this writ petition.

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The order of the Director General of Police, dated 07.07.2011, discloses that there were three cases pending against the petitioner and in all the three cases, the petitioner was honorably acquitted and that was prior to the verification of his certificate.

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On the aforesaid circumstances, in the light of various decisions rendered by the Hon'ble Apex Court and this Court referred to above, I am of the view that there shall be sympathetic consideration in favour of the petitioner, considering his future, holding the view that modern approach should be to reform a person instead of branding him as a criminal for all his life, so as to deny his legitimate right of getting appointment.

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Having considered the decision rendered by the Full Bench of this Court and the subsequent decision rendered by the Hon'ble Supreme Court reported in (2011) 4 SCC 644 , it is crystal clear that the petitioner is entitled to be appointed and his right cannot be denied on the ground that he has not disclosed the pendency of the case, that was ended in acquittal, prior to the verification of the certificates and accordingly, this writ petition has to be allowed.

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In the result, this writ petition is allowed and the impugned order passed by the second respondent, dated 07.07.2011 made in Na.Ka.No.692/173493/epakdk;1(2)/2011 is quashed and the respondents are https://hcservices.ecourts.gov.in/hcservices/ directed to appoint the petitioner as police constable Gr.II in 20092010 batch. He is ordered to be included in the said batch as the last person and he is also entitled to claim seniority, except the monetary

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benefits. The order shall be complied with by the respondents, within six weeks from the date of receipt of a copy of this order. No order as to costs. Consequently, connected M.P is closed.

Sd/-

Assistant Registrar

/True Copy/

Sub Assistant Registrar

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