Punjab-Haryana High Court
Yogesh Kumar vs Central Industrial Security Force ... on 18 December, 2014
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
MUKESH KUMAR SALUJA
CWP No.939 of 2014 1
2014.12.23 09:58
I attest to the accuracy and
authenticity of this document
HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT
CHANDIGARH
CWP No.939 of 2014
Date of decision:18.12.2014
Yogesh Kumar
...Petitioner
Versus
Central Industrial Security Force and another
...Respondents
CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK
1. To be referred to the Reporters or not ?
2. Whether the judgment should be reported in the Digest ?
Present: Mr.R.K.Malik, Sr. Advocate with
Mr.Ramandeep Singh, Advocate for the petitioner.
Mr.Naveen Chopra, Advocate for the respondents.
RAMESHWAR SINGH MALIK, J. (Oral)
Feeling aggrieved against the impugned order dated 20.11.2013 (Annexure P-3) passed by respondent No.2, denying the appointment to the petitioner, he has approached this Court by way of instant writ petition under Articles 226/227 of the Constitution of India, seeking a writ in the nature of certiorari. Petitioner also seeks a writ in the nature of mandamus, directing the respondents to consider the claim of the petitioner, for appointment as Driver/Constable/Pump-Operator from the date candidates lower in merit than the petitioner have been appointed, with all consequential service benefits.
Notice of motion was issued and pursuant thereto, written statement has been filed on behalf of the respondents.
Learned senior counsel for the petitioner submits that the impugned order was patently illegal being a non-speaking and cryptic order. MUKESH KUMAR SALUJA CWP No.939 of 2014 2 2014.12.23 09:58 I attest to the accuracy and authenticity of this document He further submits that so far as the alleged involvement of the petitioner in FIR No. 166 dated 27.8.2009 under Sections 147, 323, 452, 506 and 149 IPC, registered at Police Station Ateli was concerned, he had already been acquitted vide judgment of acquittal dated 8.9.2010 (Annexure P-4) passed by the learned court of competent jurisdiction. He further submits that in spite of his acquittal, petitioner has specifically pointed out this fact and did not conceal anything at the time of applying for the post in question. He would next contend that this is not even the allegation against the petitioner that he has concealed any material fact from the respondents at any point of time. He submits that once all the relevant facts were put before the respondents and in spite of that he was duly selected at Sr. No.113 of the select list (Annexure P-1), denial of appointment by way of impugned order (Annexure P-3), simply saying that petitioner was not suitable for appointment, was arbitrary on the face of it. In support of his contentions, learned senior counsel for the petitioner places reliance on the judgments of the Hon'ble Supreme Court in Joginder Singh v. Union Territory of Chandigarh and others (Civil Appeal No. 2325 of 2009), decided on 11.11.2014 and State of M.P. and others v. Hazarilal, 2008(2) SCT 148 and also judgments of this Court in Shish Pal Singh v. The State of Haryana and others, 1991 (2) SCT 372, Kulwant Singh v. The Deputy District Primary Education Officer, Gurdaspur, 1997(1) SCT 282 and Labh Singh v. Union of India and others (CWP No.19877 of 2011) decided on 18.11.2014. Finally, he prays for setting aside the impugned order, by allowing the present writ petition.
Per contra, learned counsel for the respondents submits that acquittal of the petitioner would be of no consequence, because he was MUKESH KUMAR SALUJA CWP No.939 of 2014 3 2014.12.23 09:58 I attest to the accuracy and authenticity of this document involved in a criminal case under Section 452 IPC along with other offences. He places reliance on two judgments of the Hon'ble Supreme Court in Commissioner of Police, New Delhi and another v. Mehar Singh, 2013(7) SCC 685 and Delhi Administration through its Chief Secretary and others v. Sushil Kumar, (1996) 11 SCC 605. He prays for dismissal of the writ petition.
Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the case in hand, instant writ petition deserves to be allowed for the following reasons.
There is no allegation against the petitioner that he has concealed any material fact from the notice of respondent authorities, at the time of applying for the post in question. Despite his acquittal from the charges framed against him, vide judgment of acquittal dated 8.9.2010 (Annexure P-4) passed by the court of competent jurisdiction, petitioner specifically pointed out about his involvement in the said criminal case and also about his acquittal therefrom. It was so said by the petitioner in his application form itself at the very inception.
All these facts were readily available with the respondent authorities at the time of selection. It seems that it was thought appropriate by the selection making authority to ignore the above-said involvement of the petitioner in the criminal case because he had already been acquitted long back. Consequently, petitioner was duly selected and put at serial no. 113 of the select list (Annexure P-1). It goes without saying that the selection making authority would not only examine the physical fitness of MUKESH KUMAR SALUJA CWP No.939 of 2014 4 2014.12.23 09:58 I attest to the accuracy and authenticity of this document the candidates but also their overall suitability, failing which the entire selection process would amount to futile exercise.
In spite of the above-said fact situation on record, respondent No.2 passed a cryptic and non-speaking order dated 20.11.2013 (Annexure P-3), which reads as under:-
"Sub: Recruitment of Constable/DCPO-2013 CISF: Reg. Reference your appellation dated 13.8.2012 for recruitment in CISF as Constable/DCPO-2012 in CISF and application date nil regarding court case.
2. It is to inform you that your case for appointment in CISF as Constable/DCPO has been considered by the 7th Standing Screening Committee and found "not suitable for appointment in CISF."
Sd/- Asstt.Inspector General/N.R. For Deputy Inspector General/N.R."
However, by filing the written statement, respondents have tried to improve their case by pointing out that since the petitioner was involved in a criminal case, referred to hereinabove, he was not found suitable. There is not even a passing reference of the fact in the impugned order, which is patently illegal order, being cryptic and non-speaking.
In view of the above-said peculiar fact situation of the present case, the important question that falls for consideration of this Court is whether a truthful candidate, who has disclosed everything about his involvement and acquittal in a criminal case, should be made to suffer for disclosing the truth and such a candidate should be treated at par with one who has concealed the material fact from the authorities, at the time of submitting his application form.
After due consideration of the matter, the answer to the above- said question is and has to be in the negative. It is so said because a MUKESH KUMAR SALUJA CWP No.939 of 2014 5 2014.12.23 09:58 I attest to the accuracy and authenticity of this document candidate who has disclosed the truth and the one who has concealed the material fact, cannot be treated at par. Truth is the foundation head of our judicial system. In the present case, this is not the allegation against the petitioner that he has made any concealment at the time of submitting his application form for the post in question. On the other hand, positive case set up by the petitioner is that he has specifically disclosed about his involvement and acquittal in the criminal case, which took place long back, i.e. on 8.9.2010, whereas the application form was submitted by the petitioner after about two years.
Similar view was taken by a Division Bench this Court in Arvind Kumar v. Kendriya Vidyalaya Sangthan and others, 2010 (4) SCT 718. The relevant observations made by the Division Bench in para 15 of the judgment, which can be gainfully followed in the present case, read as under:-
"Even otherwise, in cases where a person has been acquitted and the information has not been disclosed, the Division Bench of this Court has taken the view that non-
disclosure of such an information would not amount to concealment of facts. In a case where a Constable was acquitted of criminal charge and the information was not revealed in the Attestation Form, this Court regarded it a hyper technical requirement and set aside the order, which was based on the allegation of concealment of fact. In the case of Subhash v. State of Haryana, 1994(4) SLR 525, this Court has observed as under :-
"Having heard the learned counsel for the parties and MUKESH KUMAR SALUJA CWP No.939 of 2014 6 2014.12.23 09:58 I attest to the accuracy and authenticity of this document after going through the necessary record I find that the plea taken by the respondents is highly hyper-technical and the writ petition deserves to be allowed. It is not a concealment of fact regarding his earlier conviction which can be taken into consideration against an employee and on the basis whereof his appointment can be set aside later on. In the present case, petitioner had only been prosecuted and was acquitted by a competent Criminal Court. It was not necessary for the petitioner to disclose this fact to the respondents at the time of his submitting application for recruitment to the police service. In any case, the fact stands that there is nothing against the petitioner on the basis whereof his appointment could be set aside having already been made by order dated 4.9.1989 Annexure P-1. Therefore, the non-disclosure of the information relating to his acquittal in the criminal case is no ground for withholding the appointment of the petitioner."
Similar controversy fell for consideration before the Hon'ble Supreme Court in Commissioner of Police and others v. Sandeep Kumar (Civil Appeal No.1430 of 2007). The law laid down by the Hon'ble Supreme Court in Sandeep Kumar's case (supra), which aptly applies to the facts of the present case, read as under:-
"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.MUKESH KUMAR SALUJA CWP No.939 of 2014 7 2014.12.23 09:58 I attest to the accuracy and authenticity of this document
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 been 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 this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life.
The modern approach should be to reform a person instead of branding him as a criminal all his life.
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 MUKESH KUMAR SALUJA CWP No.939 of 2014 8 2014.12.23 09:58 I attest to the accuracy and authenticity of this document 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, (1970) 2 Q.B. 114] In our opinion, we should display the same wisdom as displayed by Lord Denning.
MUKESH KUMAR SALUJACWP No.939 of 2014 9 2014.12.23 09:58 I attest to the accuracy and authenticity of this document As already observed above, youth often commit indiscretions, which are often condoned.
It is true that in the application form the respondent did not mention that he was involved in a criminal case under Section 325/34 Indian Penal Code. 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."
The above-said view taken by the Hon'ble Supreme Court in Sandeep Kumar's case (supra) came to be reiterated by the Hon'ble Supreme Court in a recent judgment dated 11.11.2014 in Joginder Singh's case (supra). Similar view was also taken by the Hon'ble Supreme Court in Hazari Lal's case (supra) and by this Court in Kulwant Singh's case (supra), Shish Pal Singh's case (supra) and Labh Singh's case (supra).
So far as the judgments relied upon by the learned counsel for the respondents are concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgments, the same have been found distinguishable on facts and are of no help to the respondents. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533.
Reverting back to the facts of the present case and respectfully following the law laid down by the Hon'ble Supreme Court in Sandeep MUKESH KUMAR SALUJA CWP No.939 of 2014 10 2014.12.23 09:58 I attest to the accuracy and authenticity of this document Kumar's case (supra), Hazarilal's case (supra) as well as in Joginder Singh's case (supra), this Court feels no hesitation to conclude that the respondent authorities have proceeded on a misconceived approach, while passing the impugned order (Annexure P-3) and the same cannot be sustained.
Had the petitioner concealed the material fact regarding his involvement in a criminal case, despite his acquittal, matter would have been different. In that situation, respondents would have levelled allegation of concealment against the petitioner, which is not the fact situation in the present case. Petitioner had courage to speak the truth which ought to have been appreciated by the respondent authorities. Under these circumstances, it can be safely concluded that a truthful candidate like the petitioner cannot be made to suffer only for the reason that he has disclosed the actual truth at the time of submitting his application form for seeking appointment. Truth is the constant source of strength. Truth must get due appreciation at every level in the justice delivery system as well as with the administrative authorities. Truthful act is not to be punished but rewarded.
Further, the selection making authority also must own its responsibility to examine, consider and adjudge the suitability of the candidates, at the time of making the selection, on the basis of facts as given in application form and other supporting documents. If the selection making authority would not own its responsibility, then the public time and money would be wasted in the process. Since respondent No.2 has not at all adverted to all the above-said material aspects of the matter, while passing a non-speaking and cryptic order, the same cannot be sustained, for this reason also.
MUKESH KUMAR SALUJACWP No.939 of 2014 11 2014.12.23 09:58 I attest to the accuracy and authenticity of this document
No other argument was raised.
Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that since the impugned order has been found to be patently illegal, being contrary to the record noticed hereinabove, the same is hereby set aside.
Consequently, respondent No.2 is directed to consider the claim of the petitioner for appointment for the post in question as per his merit. It is further directed that petitioner shall also be entitled for consequential service benefits and he would be granted the benefit of length of service, though on notional basis, with effect from the date candidates lower in merit than the petitioner were appointed. Let respondent No.2 do the needful within a period of one month from the date of receipt of a certified copy of this order.
Resultantly, with the abovesaid observations made and directions issued, present writ petition stands allowed, however, with no order as to costs.
18.12.2014 (RAMESHWAR SINGH MALIK) mks JUDGE