Central Administrative Tribunal - Delhi
Vikram Ruhal vs Comm. Of Police on 21 February, 2023
1 OA No. 45/2021
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 45/2021
MA No.1580/2022
Reserved on: 01.02.2023
Pronounced on: 20.02.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Vikram Ruhal
S/o Sh.Karamvir Ruhal
R/o H.No.997, Sector-19
Part-II, HUDA,
Kaithal-136027
Haryana.
....Applicant
(By Advocate: Mr. Aadil Singh Boparai and
Ms. Srishthi Khanna)
Versus
1. Delhi Police
Through its Commissioner of Police,
Police Headquarters, M.S.O.Building,
I.P.Estate,
New Delhi-110002.
2. The Deputy Commissioner of Police,
Recruitment Cell, Delhi Police,
New Police Lines, Kingsway Camp,
Delhi-110009.
3. Government of NCT of Delhi,
Through its Chief Secretary,
Players Building, I.P.Estate,
New Delhi-110002.
... Respondents
(By Advocate: Mr. Amit Anand)
2 OA No. 45/2021
ORDER
By Hon'ble Manish Garg, Member (J) In the present OA, the applicant is seeking following reliefs:
"a. Call for records of the case; and/or b. Set aside the Impugned Order No.4706/Rectt. Cell/SI (DAI)/NPL dated 02.12.2020 placed at Annexure A1; and/or c. Award costs of proceedings; and/or, d. Pass any order/relief/direction(s) as this Hon‟ble Tribunal may deem fit and proper in the interest of justice in favour of the applicant."
2. Brief Facts:
Learned counsel for the applicant stated as under:
2.1 Staff Selection Commission (SSC) issued notice dated 22.04.2017 for recruitment of Sub Inspectors (SIs) in Delhi Police, Central Armed Police Forces etc. Applicant applied for the post of SI (Executive) in Delhi Police. He successfully cleared the Tier-1 and Tier-2 examination and the medical examination.
2.2 However, before the announcement of the final result, on 11.10.2018 he was falsely arrayed as an accused by his sister-in-law (elder brother‟s wife) in FIR No.234/2018 under Sections 498A/406/506/313/323/34 of IPC at Women Police Station, Jind, Haryana. It is pertinent to mention here that the applicant is not the main accused in the FIR. On 18.10.2018 respondents issued a Standing Order No.398 providing for a policy for deciding the cases of provisionally 3 OA No. 45/2021 selected candidates in Delhi Police, who have disclosed their involvement in criminal cases/acquittal/discharge etc. It is categorically mentioned that "in cases relating to marriage i.e. Section 498A/406 IPC and Dowry Prohibition Act, the candidature may be debarred if he/she is main accused and not the collateral accused such as Devar/Jeth, Nand/Bhabhi etc."
2.3 On 31.10.2018 applicant‟s name appeared in the final merit list of selected candidates and he was assigned the post of SI in Delhi Police.
2.4 It is submitted that at the time of police verification, applicant himself disclosed the details of the pending FIR against him.
2.5 On 31.05.2019 he received a Show Cause Notice no.6852 calling upon him to justify as to why his candidature for the post of SI (Executive) (Male) in Delhi Police-2017 should not be cancelled. On 18.06.2019 he submitted a detailed reply to the show cause notice citing various judgments and the aforesaid Standing Order No.398 of Delhi Police in his defence.
2.6 In the meanwhile, on 01.11.2019, the charge sheet was filed in the said FIR in which the applicant‟s name was put in Column 12 and he was technically exonerated due to absence of any concrete evidence against him.4 OA No. 45/2021
2.6 Being aggrieved, he filed a representation to respondent No.2 on 22.09.2020 informing that no criminal case is pending against him and he should be immediately recruited at the post of SI (Executive) in Delhi Police annexing therewith a copy of charge sheet and cognizance order. However, till date no response has been received by the applicant.
Thereafter, he sent the same representation to respondent No.1 on 26.09.2020 but to no avail.
2.7 Left with no alternative, applicant approached this Tribunal by filing OA No.1605/2020 seeking to quash the order dated 11.09.2020 or alternatively directions for the respondents to decide the said representation of the applicant in a time bound manner. This Tribunal vide order dated 22.10.2020 disposed of the OA directing the respondents to consider applicant‟s representation dated 26.09.2020 and to dispose of the same by passing a reasoned and speaking order within eight weeks of a copy of that order. 2.8 In compliance of the aforesaid direction of the Tribunal, respondents passed the Impugned Order dated 02.12.2020 thereby keeping the case of the applicant pending till the final outcome of the aforesaid FIR. It was further stipulated in the order that after the decision of the criminal court, his case will be once again examined by the Screening Committee to assess his suitability for appointment in Delhi Police. Hence the instant OA.
5 OA No. 45/2021
3. Per contra, respondents filed their counter reply contending that the case of applicant was examined by the Screening Committee keeping in view the Standing Order No.398/2018 of Delhi Police wherein it is categorically stipulated that "in cases relating to marriage i.e. Section 498A/406 IPC and Dowry Prohibition Act, the candidature may be debarred if he/she is main accused and not the collateral accused such as Devar/Jeth, Nand/Bhabhi etc." whereas the aforesaid criminal case FIR No.234/2018 was registered with other serious sections viz. 506/313/323/34 of IPC also. Hence, the action taken by respondent No.2 vide Impugned Order dated 02.12.2020 is legal and justified. A show cause notice was issued to the applicant vide Memo No.6352/Rectt. Cell/NPL dated 31.05.2019 calling for his reply as to why his candidature for the post of SI (Executive) Male in Delhi Police-2017 should not be cancelled due to his alleged involvement in the above said criminal case which raises question on his fitness for joining a disciplinary force like Delhi Police in view of common judgment dated 21.05.2015 passed by this Tribunal in OA No.546/2014 - Rakesh Kumar Meena vs. GNCTD & ors. and other connected OAs and Standing Order No.398/2018 of Delhi Police. In this regard, learned counsel for respondents has also relied on the decision of Principal Bench of this Tribunal 6 OA No. 45/2021 in the case titled Manish Saini vs. Commissioner of Police, OA No.3065/2019 decided on 10.06.2022.
4. Analysis :
4.1 Column 12 Serial No.12- in Charge sheet is very important and cannot be brushed aside. The names of such persons are recorded/mentioned who though named in FIR or not even named in FIR are kept as suspect.
FORMAT OF COLUMN NO.12 IN FIR
12. Particulars of accused persons - not charge sheeted (suspect) : (Use separate sheet for each suspect) Sl. No. ......
(i) Name ......................................................................
Whether verified.........................................
(ii) Father's/Husband's Name ..........................................
(iii) Date/Year of birth ................................
(iv) Sex ..............
(v) Nationality ............................
(vi) Passport No. ........................................ Date of Issue.................................................. Place of Issue ...............................................
(vii) Religion ........................
(viii) Whether SC/ST/OBC .......................
(ix) Occupation ................
(x) Address............................................................................. ............................................................... 7 OA No. 45/2021 ................................................................. Whether verified ..................................
(xi) Provisional criminal No. ........................................
(xii) Suspicion approved : Yes/No
(xiii) Status of the accused (suspect):
Bailed by police/Bailed by court/ Judicial custody/Not arrested (tick '' applicable portion).
(xiv) Under Acts & Sections .................................................................................
..............................
(xv) Any Special remarks including reasons for not charge sheeting ........................................................ ........................ ............................................................................................... ....................................... ....................................................... ............................................................................................... ........
....................................................................................... ....................................................................... The purpose behind such inclusion to put, illustratively, is inter alia to the effect that
a) there is no proper evidence has come on record or sufficient evidence at the stage of investigation for purpose of trial.
b) The accused has not be identified c) identified but suspected as there is not specific or
definite role has come on record during the course of investigation
d) monitoring of investigation and /or required for further investigation by Courts or Superior Authority or Officers
e) some fresh information or fresh evidence brought to knowledge at latter stage 8 OA No. 45/2021
f) whether such person can temper or influence the investigation or trial Thus, keeping the applicant at Serial No. 12 does not per se mean to include that he has been discharged or a case of honourable acquittal has been made out. 4.3 FROM THE PROSPECTIVE OF PROVISIONS SECTIONS CR.PC AND ITS APPLICATION There is no bar under law that the Courts cannot summon the accused even if the suspect is kept in Column No.12 and/ or at also frame charges. Even at the stage of 319 Cr PC the suspect/accused can be summoned in accordance with law.
4.3.1 In SWIL Ltd. Vs. State of Delhi and Anr., (2001) 6 SCC 670 the Supreme Court has held as under:-
"7. .........There is no bar under Section 190 Cr.PC that once the process is issued against some accused, on the next date, the Magistrate cannot issue process to some other person against whom there is some material on record, but his name is not included as accused in the charge-sheet."
4.3.2 The Hon‟ble Supreme Court in Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217 has laid down as under:
"13. ... At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the 9 OA No. 45/2021 materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.
"15. Considering the scope of Sections 227 and 228 CrPC, in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , the Supreme Court held as under : (SCC pp. 477-79, paras 17 & 19) "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction.....
19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."
4.3.3 In the case of Nahar Singh vs. State of Uttar Pradesh in Criminal Appeal No. 443/2022 (Arising out of Petition for Special Leave to Appeal (Crl.) No.8447 of 2015) decided on 16.3.2022, the Hon‟ble Supreme Court recently held that a Magistrate has power under Section 190 of the Code of Criminal Procedure, 1973 (Cr PC) to issue summons against persons who have not been mentioned as accused in 10 OA No. 45/2021 the chargesheet or arraigned in the First Information Report (FIR).
Section 190 Cr. PC empowers magistrates to take cognizance of criminal cases. Taking cognizance implies the application of judicial mind to the facts and circumstances of a particular case. A Magistrate can take cognizance of a case on the receipt of a complaint, or a report by the police, or information received from a person other than the police officer, or upon his own knowledge. The relevant portion reads:
"19. The other difference so far as this case is concerned in relation to the factual basis on which the decision of the Constitution Bench in Dharam Pal (supra) as also the judgment in the case of Raghubans Dubey (supra) were delivered is that in both these cases, the names of the persons arraigned as accused had figured in column (2) of the charge sheet. This column, as it appears from the judgment in the case of Page | 20 Raghubans Dubey (supra), records the name of a person under the heading "not sent up". In that case, the person concerned was named in the F.I.R. But that factor, by itself, in our opinion ought not to be considered as a reason for the Court in not summoning an accused not named in the F.I.R. and whose name also does not feature in chargesheet at all. These judgments were delivered in cases where the names of the persons sought to be arraigned as accused appeared in column (2) of the police report. In our opinion the legal proposition laid down while dealing with this point was not confined to the power to summon those persons only, whose names featured in column (2) of the chargesheet. In the case of Dharam Pal (supra), the second point formulated (para 7.2) related to persons named in column (2), but the issue before the Constitution Bench related to that category of persons only. This is the position of law enunciated in the cases of Hardeep Singh (supra) and Raghubans Dubey (supra). In the latter authority, the duty of the Court taking cognizance of an offence has been held "to find out who the offenders really are and once he comes to the conclusion that apart from the persons Page | 21 sent up by the police some other persons are involved, it is his duty to proceed against those persons". Such duty to proceed against other persons cannot be held to be confined to only those whose names figure in column (2) of the 11 OA No. 45/2021 chargesheet. As we have already observed that in the aforesaid authorities, the question of summoning the persons named in column (2) of the chargesheet was involved, in our opinion inclusion in column (2) was not held to be the determinant factor for summoning persons other than those named as accused in the police report or chargesheet. The principle of law enunciated in Raghubans Dubey (supra), Dharam Pal (supra) and Hardeep Singh (supra) does not constrict exercise of such power of the Court taking cognizance in respect of this category of persons (i.e., whose names feature in column (2) of the chargesheet).
20. In the cases of Raghubans Dubey (supra), SWIL Ltd. (supra) and Dharam Pal (supra), the power or jurisdiction of the Court or Magistrate taking cognizance of an offence on the basis of a police report to summon an accused not named in the police report, before commitment has been analysed. The uniform view on this point, irrespective of the fact as to whether cognizance is taken by the Magistrate under Section 190 of the Code or jurisdiction exercised by the Court of Session under Section 193 thereof is that the aforesaid judicial authorities would not have to wait till the case reaches the stage when jurisdiction under Section 319 of the Code is capable of being exercised for summoning a person as accused but not named as such in police report. We have already expressed our opinion that such jurisdiction to issue summons can be exercised even in respect of a person whose name may not feature at all in the police report, whether as accused or in column (2) thereof if the Magistrate is satisfied that there are materials on record which would reveal prima facie his involvement in the offence. None of the authorities limit or restrict the power or jurisdiction of the Magistrate or Court of Session in summoning an accused upon taking cognizance, whose name may not feature in the F.I.R. or police report."
The question before the Supreme Court was "Whether a Magistrate has the power to take cognizance of an offence on the basis of a police report, with respect to Section 190(1)(b) CrPC, and subsequently issue summons to a person who is not mentioned as an accused in the FIR or police report?
While deciding the question of law and the appeal, the Hon‟ble Supreme Court Bench analyzed and relied on essential case laws, including Dharam Pal and others vs. 12 OA No. 45/2021 State of Haryana and another. In this case, summons was issued by the Magistrate against accused persons whose names were mentioned in column 2 of the chargesheet but not named in the police report or the FIR. The Court was of the opinion that the Magistrate has the power to take cognizance and issue summons even if the name of the person is not mentioned in the FIR. In that judgment, it was held that:
"In our view, the Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance of the police report submitted before him under Section 173(2) CrPC. In the event the Magistrate disagrees with the police report, he has two choices. He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused. Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column 2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter."
4.3.4 The aforesaid judgment was then followed and relied on in the case of Hardeep Singh vs. State of Punjab and others, wherein it was held that:
"111.Even the Constitution Bench in Dharam Pal (CB) [(2014) 3 SCC 306: AIR 2013 SC 3018] has held that the Sessions Court can also exercise its original jurisdiction and summon a person as an accused in case his name appears in Column 2 of the charge-sheet, once the case had been committed to it. It means that a person whose name does not appear even in the FIR or in the charge-sheet or whose name appears in the FIR and not in the main part of the charge-sheet but in Column 2 and has not been summoned as an accused in exercise of the powers under Section 193 CrPC can still be summoned by the court, provided the court is satisfied that 13 OA No. 45/2021 the conditions provided in the said statutory provisions stand fulfilled."
In that case, the Court further noted that the case of Dharam Pal (supra) had affirmed the view of the Hon‟ble Supreme Court in an earlier judgment of Kishun Singh & Others vs. State of Bihar, which dealt with the same issue. The Court had in that case opined that it is the duty of the Magistrate to investigate the matter while taking cognizance of an offence, and go to the root of the offence by identifying the offender.
5. FROM THE PROSPECTIVE OF SANCITITY OF COLUMN 12 TO THE FACTS OF THE PRESENT CASE 5.1 In terms of Standing Order No.398, the applicant‟s candidature has not been debarred. He has not been considered to be ineligible. The Impugned Order has been passed in consonance with Clause 3 (d) of the Standing Order inter-alia to the effect that:
"Clause 3
(d) Such comment of the Screening Committee would not amount to its sitting on the judgment like a trial court, but would only amount to assessment of the suitability of a candidate involved in a criminal case for appointment in Delhi Police."
5.2 Furthermore , Clause D also contemplates that:
"(D) In case when facts have, been truthfully declared in Character in Verification/Attestation Form regarding pendency/involvement in criminal case(s), complaint case(s), preventive proceedings etc. of trivial nature or otherwise, the, matter will be referred to Screening Committee after 14 OA No. 45/2021 obtaining the reply of the individual to the show cause notice.
If the case is not of trivial nature, then in view of the judgment in Avtar Singh versus Union of India, Supreme Court, 2016, the Screening Committee, keeping in view the facts and circumstances of the case, in its discretion, after ascertaining the suitability of the candidate, may recommend appointment of the candidate, subject to decision of such case. If the case is not of trivial nature then the suitability of the candidate/candidature would be decided by the Screening Committee, keeping in view the facts and circumstances of the case."
5.3 Further Clause E, F, G, H, I of Annexure A of Standing Order reads as under:
"(E) In cases where the candidate‟s name has been mentioned in the Column No.12 i.e. accused person not charge sheeted, then also the matter will be submitted before the Screening Committee for its recommendations.
(F) The details of criminal cases which involve moral turpitude, serious/heinous and gender crime are annexed as Annexure „A‟.
(G) Minor offences, minor traffic rule violations and accident cases [no applicable for candidates provisionally selected as Constable (Driver)], shall not be considered as a bar for recruitment in Delhi Police in view of various CAT/court judgments.
(H) If any candidate is released on probation by extending the benefit of Probation of Offenders Act, 1958 after holding him guilty, his/her case will be examined by the Screening Committee to assess his/her suitability for appointment in Delhi Police taking into consideration his/her role, gravity of offence and trial court order etc. as per procedure given above.
(I) If a candidate was involved in a criminal case, which was withdrawn by the State Government, he/she will generally be considered fit for government service, unless there are other extenuating circumstances which shall be considered by the Screening Committee."
5.3.1 Annexure „A‟ above as mentioned in Clause (F) reads as under:
15 OA No. 45/2021
"DELHI POLICE Annexure-"A-SO No. 398/2018 SECTIONS OF THE INDIAN PENAL CODE & OFFENCES UNIDER STATE ENACTED ACTS/SPECIAL ACTS CONCERNING SERIOUS OFFENCES INVOLVING MORAL TURPITUDE.
1. Indian Penal Code chapter-5(A) Criminal Conspiracy- To commit heinous offences Section-120B.
2. Indian penal code chapter-6 Offences against the State-
Section-121 to 130.
3. Indian penal code chapter-7 Offences relating to the Army, Navy and Air force- Section-131 to. 134.
4. Indian penal code chapter-8 Offence against the Public Tranquility- Section-143-149, 153-A & B.
5. Indian penal code chapter-11 False Evidence arnd Offences against Public Justice Sections- 193 to 216-A.
6. Indian penal codc chapter-12 Offences relating to Coin and Government Stamps- Sections-231 to 263-A.,
7. Indian penal code chapter-14 Offences relating to Decency & Moral Sections-292 to 294-A.
8. Indian penal code chapter-15 Offences relating to Religion-
Sections-295 to 297.
9. Indian penal code chapter-16 Offences Affecting the Human Body.
Sections-302 to 304, 304-B, 305, 306, 307, 308, 311, 312, 313, 314, 315, 316, 317, 325, 326, 327, 328, 329, 330, 331, 332, 333, 335, 347, 348, 354, 354-A, 354-B, 354-C, 354-D, 363 to 373, I76 to 376-A, 376-B, 376-C, 376-D, 376-E, 377.
10. Indian penal code chapter-17 Offences against Property-
5. The Screening Committee consisting of Special Commissioner of Police/Headquarters (Chairman), Joint Commissioner of Police/ Headquarters (Member) and Joint Commissioner of Police/ Vigilance (Member) will examine the cases under the above guidelines and also assess suitability of provisionally selected candidates 16 OA No. 45/2021 keeping-in-view the observations of the Hon'ble Apex Court passed in SLPs(C)No.20525/2011-Avtar Singh Vs UOI & Ors, Civil Appeal No.4842/2013-Commissioner of Police, Delhi & Ors Vs Mehar Singh with Civil Appeal No.4965/2013-Commissioner of Police, Delhi & ors. Vs. Shani Kumar, Civil Appeal No.5671/2012-Jainendra Singh Vs State of UP & Ors, Civil Appeal No.10613/2014- State of M.P. & Ors Vs Parvez Khan and Civil Appeal No.67/2018-Union Territory Chandigarh Administration & Ors Vs Pradeep Kumar & Ors for appointment in Delhi Police.
SUPERSESSION CLAUSE This Standing Order supersedes previous Standing Order issued vide No. 6531-6659/HAR/PHQ dated, Delhi the 08.12.2016."
5.4 The Hon‟ble Supreme Court in Commissioner of Police Vs. Raj Kumar Civil Appeal No.4960/2021 on 25.08.2021 once again dealt at length the provisions of Standing Order No. 398/2010 specifically in relation to the role of the Screening Committee. It is held in paras-12, 13 & 14 as under:-
"12. Mehar Singh noted that Clause 3 of the Standing Order, which refers to the Screening Committee, comprises of senior police officers. This committee assesses candidates‟ (previously implicated for an offence, but against whom charges are terminated, for any reason), suitability for appointment. Clause 6 prescribes that candidates who faced charges involving serious offences or offences involving moral turpitude and who are later acquitted giving benefit of doubt or because the witnesses turned hostile due to fear of reprisal by the accused person shall not generally be considered suitable for government service. Each of such cases is to be considered by the Screening Committee manned by senior officers.
13. It is evident from a reading of the applicable Standing Order along with Annexure-A that in relation to certain offences, acquittal or exoneration of an accused candidate, per se would not entitle her or him to consideration. In this regard, in relation to offences listed in Annexure A inter alia, those who are accused of having committed offences under Sections 325-333; 363-373 and 379-462; would fall within the mischief of Clause 6. Upon an overall analysis of the Standing Order, this Court is of the opinion that an 17 OA No. 45/2021 acquittal or discharge in a criminal proceeding would not per se enable the candidate to argue that the authorities can be compelled to select and appoint her or him. This Court, in this regard, held inter alia as follows:
"The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the con- duct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force."
14. This Court has, in the past, on several occasions, dealt with questions which are similar, if not entirely identical to what is involved in the present case, to wit, whether in the event of exoneration or acquittal of an applicant/candidate arrayed as accused of various offences is a decisive factor for consideration of his or her suitability. Several judgments in the past had appeared to draw a distinction between "clean" acquittal of accused individuals on the one hand and those acquitted or exonerated on account of benefit of doubt. Similarly, where candidates were charged with grave offences involving moral turpitude as well as larger outcomes were examined. Another area which engaged this Court‟s attention was the effect of non-disclosure of pending criminal cases. Matters came to a head when all these issues were referred to authoritative decision by a larger three judge Bench. In Avtar Singh (supra), the three-judge bench, after detailed discussion of the various circumstances that arose when public authorities are called upon to deal with such cases, recorded its conclusions in the following manner:
"38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.1 Information given to the employer by a candidate as to conviction, acquit- tal or arrest, or pendency of a criminal case, whether before or after entering into service must be true and there should be no suppression or false mention of re- quired information.
38.2 While passing order of termination of services or cancellation of candida- ture for giving false information, the employer may take notice of special circum- stances of the case, if any, while giving such information."
5.5 The Hon‟ble Supreme Court also held that the Courts while exercising power of judicial review cannot second/guess 18 OA No. 45/2021 the suitability of a candidate for any public office or post. In Paras 26, 28, 29 & 30, the following has been held:-
"26. Courts exercising judicial review cannot second guess the suitability of a candidate for any public office or post. Absent evidence of malice or mindlessness (to the materials), or illegality by the public employer, an intense scrutiny on why a candidate is excluded as unsuitable renders the courts' decision suspect to the charge of trespass into executive power of determining suitability of an individual for appointment. This was emphasized by this court, in M.V. Thimmaiah v. Union Public Service Commission held as follows:
"21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion...
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30. We fail to understand how the Tribunal can sit as an Appellate Authority to call for the personal records and constitute Selection Committee to undertake this exercise. This power is not given to the Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts have started sitting as Selection Committee or act as an Appellate Authority over the selection."
28. Again, in Union Public Service Commission v. M. Sathiya Priya it was iterated that "The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in 19 OA No. 45/2021 cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee."
29. Public service - like any other, pre-supposes that the state employer has an element of latitude or choice on who should enter its service. Norms, based on principles, govern essential aspects such as qualification, experience, age, number of attempts permitted to a candidate, etc. These, broadly constitute eligibility conditions required of each candidate or applicant aspiring to enter public service. Judicial review, under the Constitution, is permissible to ensure that those norms are fair and reasonable, and applied fairly, in a non-discriminatory manner. However, suitability is entirely different; the autonomy or choice of the public employer, is greatest, as long as the process of decision making is neither illegal, unfair, or lacking in bona fides.
30. The High Court's approach, evident from its observations about the youth and age of the candidates, appears to hint at the general acceptability of behaviour which involves petty crime or misdemeanour. The impugned order indicates a broad view, that such misdemeanour should not be taken seriously, given the age of the youth and the rural setting. This court is of opinion that such generalizations, leading to condonation of the offender's conduct, should not enter the judicial verdict and should be avoided. Certain types of offences, like molestation of women, or trespass and beating up, assault, causing hurt or grievous hurt, (with or without use of weapons), of victims, in rural settings, can also be indicative of caste or hierarchy-based behaviour. Each case is to be scrutinized by the concerned public employer, through its designated officials- more so, in the case of recruitment for the police force, who are under a duty to maintain order, and tackle lawlessness, since their ability to inspire public confidence is a bulwark to society's security."
5.6 The facts cannot be ignored that applicant has been named in FIR. He has been put in Column No.12. Even though the Charge Sheet has been filed and not summoned by the Court of Competent Jurisdiction does not automatically construe to be a case of his discharge or 20 OA No. 45/2021 honourable acquittal. The case law relied by the Learned Counsel does not come to the rescue of the applicant in facts of the present case since his candidature has not been rejected or cancelled. He has not been found to be ineligible. The case laws cited more or less lay down the law that the candidature cannot be rejected for petty or small offences. The offences which were committed at young age and do not materially affect the society or that are of moral turpitude are to be dealt with in lenient view.
6. FROM THE PROSPECTIVE OFFENCES UNDER SECTION 498-A/406 IPC 6.1 The Hon‟ble Apex Court in Criminal Appeal No. 195 of 2022 (arising out of S.L.P (Crl.) No. 6545 of 2020) Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors., while quashing the FIR, under Sections 341, 323, 379, 354, 498A read with Section 34 IPC, observed as under:-
"12. Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. Further discussing the various case laws in relation to Section 498-A IPC i.e. Rajesh Sharma and Ors. Vs. State of U.P. & Anr. , Arnesh Kumar Vs. State of Bihar and Anr , Preeti Gupta & Anr. Vs. State of Jharkhand & Anr., Geeta Mehrotra & Anr. Vs. State of UP & Anr., K. Subba Rao v. The State of 21 OA No. 45/2021 Telangana, the Hon'ble Apex Court further observed as under :-
"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."
Based upon above observations and ratio laid down by the Hon‟ble Apex Court and the fact the respondents keeping in view their Standing Order have not rejected /cancelled the candidature of the applicant but has only kept his candidature at abeyance and thus there is no infirmity in the same. Since the offences involved under Section 498A/406 IPC , there is every likelihood that the said offences being prima facie a matrimonial discord settled out of Court or in mediation process and /or quashed qua the applicant. The applicant has liberty to approach the Competent Authority or Screening Committee who shall re-examine and re-look his case in terms of standing order and issue appropriate appointment / joining letter subject to fulfilment of other terms and conditions. The speaking order so passed is a well reasoned order and need not be interfered at this stage."
7. CONCLUSION:
The OA is disposed off with following directions:-
i. The Impugned Order dated 02.12.2020 (Annexure A-1) does not call for interference at this stage. ii. The candidature of the applicant shall not be cancelled till the disposal of the case in FIR No.234/2018 and/or FIR is quashed/settlement is arrived at in said case (whichever is earlier).
iii. The applicant shall be at liberty to approach the Competent Authority and/or Screening Committee 22 OA No. 45/2021 undoubtedly on disposal of the case in FIR No. 234/2018 by the Trial Court or settlement is arrived at in said FIR and/or said FIR is quashed qua the applicant (whichever is earlier), who shall re-examine his case in terms of Standing Order and issue appropriate appointment/joining letter subject to fulfillment of other terms and conditions within two months of the receipt of such information/representation. The Applicant shall be entitled to all consequential relief(s) i.e. seniority on notional basis. The applicant shall be entitled to salary from date of his joining.
8. In view of the above, pending MA No.1580/2022 seeking early hearing of the OA stands disposed of. All pending MAs are disposed off.
9. OA is disposed of in aforesaid terms. No order as to costs.
(Manish Garg) (Anand Mathur) Member (J) Member (A) /sd/