Madras High Court
The Principal Secretary To Government vs V.N.Varusai Mohamad on 1 August, 2016
Bench: S.Manikumar, C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.08.2016
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
AND
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Writ Appeal(MD)No.276 of 2016
M.P.(MD)No.1 of 2014
1. The Principal Secretary to Government,
State of Tamil Nadu,
Home (Police) Department,
Secretariat, Chennai 600 009.
2. The Chairman,
Tamil Nadu Uniformed Recruitment Services,
Recruitment Board,
807, 2nd Floor, Anna Salai,
Chennai 600 002.
3. The Director General of Police,
Mylapore, Chennai 600 004.
4. The Superintendent of Police,
Madurai District.
5. The Inspector of Police,
Sholavandan Police Station,
Madurai District. .... Appellants
vs.
V.N.Varusai Mohamad .... Respondent
Appeal filed under Clause 15 of Letters Patent, against the order made
in W.P(MD)No.3168 of 2010, dated 25.11.2014.
!For Appellants : Special Government Pleader
^For Respondent : Mr.D.Sivaraman
:JUDGMENT
Challenge in this appeal is to an order made in W.P(MD)No.3168 of 2010, dated 25.11.2014, by which, the Writ Court has set aside the communication, dated 18.09.2009 and consequently, directed the appellants to select the writ petitioner to the post of Grade II Police Constable in service.
2. Short facts leading to the appeal are that the respondent/writ petitioner applied for the post of Grade-II Police Constable. He came out successful in all the tests and obtained 54 marks, as against the cut off mark fixed for Backward Class. He was not selected to the post. Under the Right to Information Act, he came to know that he was not selected for the following two reasons:-
(i) He suppressed his involvement in the criminal case in the application.
(ii) He was acquitted on benefit of doubt and not honourably, as such the petitioner is considered to be disqualified and not suitable for selection to the post in the police service.
3. Being aggrieved against the same, the petitioner filed W.P.(MD)No.3168 of 2010, contending inter alia that failure to mention about the criminal case in the verification report was neither intentional nor willful and since the prosecution has failed to prove the case, he was acquitted in the criminal case.
4. Opposing the prayer sought for and placing reliance on Rule 14(b) of the Special Rules for Tamil Nadu Special Police Subordinate Service, before the Writ Court, the appellants have contended that there was a failure to mention the criminal case. According to the appellants, a person who is acquitted or discharged on benefit of doubt or due to the fact that complainant had 'turned hostile' shall be treated, as a person involved in a criminal case.
5. Before the Writ Court, learned counsel for the appellants has relied on the decisions in Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, Ramkumar vs. State of U.P. And others reported in 2011 (6) CTC 440, D.Mahadevan vs. Director General of Police, Mylapore, Chennai reported in 2008 (4) MLJ 88 and T.S.Vasudevan Nair vs. Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) SCC 795. On the contra, learned counsel for the respondent/writ petitioner has relied on the decisions in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB) and J.Alex Poneelan vs. Director General of Police, Tamil Nadu, Chennai and others reported in 2014 (3) MLJ 777 (FB).
6. Writ Court, vide order, dated 25.11.2014 in W.P(MD)No.3168 of 2010, while setting aside the communication, dated 18.09.2009, directed the Chairman, Tamil Nadu Uniformed Recruitment Services, Recruitment Board, Chennai, the second respondent, to consider appointment of the respondent/writ petitioner to the post of Grade ? II Police Constable of service of Tamil Nadu Police in the selection made during 2007 to 2008, if he was otherwise, eligible and qualified with continuity of service, but without back-wages.
7. Learned Special Government Pleader appearing for the appellants submitted that the impugned order is against the decision of the Hon'ble Full Bench of this Court in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB) and J.Arunkumar v. The DGP, Tamil Nadu Uniformed Services Recruitment Board. He further submitted that the Hon'ble Apex Court in SLP (Civil) Appeal No.38886 of 2013 and SLP (Civil) Appeal No.4057 of 2013 in Civil Appeal Nos.4892 and 4965 of 2013 held that a person with criminal antecedents cannot be considered for police force.
8. To sustain the order of the Writ Court, Mr.D.Sivaraman, learned counsel for the respondent/writ petitioner relied on the decisions of this Court in T.S.Vasudevan Nair v. Director of Vikram Sarabhai Space Centre reported in 1988 (1) SCC 795 (SUPP), State of Haryana v. Dinesh Kumar reported in 2008 (3) SCC 222, Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, Ramkumar vs. State of U.P. And others reported in 2011 (6) CTC 440, K.Sathiyaseelan v. Tamil Nadu Uniform Service Recruitment Board reported in 2013 WLR 360 and Sivanesan v. Superintendent of Police, Thiruvannamalai District reported in 2013 (3) MLJ 142 and contended that when there was no evidence against the respondent/writ petitioner, he has been acquitted and that the same should be treated as honourable acquittal.
9. Placing reliance on the provision under Rule 14(b) of Special Rules for Tamil Nadu Special Police Subordinate Service, as amended in G.O.Ms.No.101 Home (Pol.IX) Department, dated 30.01.2003, learned Special Government Pleader appearing for the appellants submitted that even taking it for granted that the respondent/writ petitioner has been acquitted in the criminal case, suppression of the fact of involvement in the criminal case, is per se apparent.
10. It is also the submission of the learned counsel for the respondent/writ petitioner that in a recent decision in Joginder Singh v. Union Territory of Chandigarh reported in 2015 (2) SCC 377, the Hon'ble Supreme Court considered the aspect, as to whether, acquittal in a criminal case, should be put against a candidate for selection to the post of Police Constable, and the Apex Court directed appointment of the said candidate. He further submitted that the Hon'ble Apex Court in Joginder Singh's case, has also observed that the non-disclosure of his involvement in criminal case, was not intentional.
Heard the learned counsel appearing for the parties and perused the materials available on record.
11. Material on record discloses that the writ petitioner was born on 11.11.1983. He has completed his graduation in B.Sc., Zoology in April' 2007. Based on a complaint, dated 14.11.2002, a case in Crime No.195 of 2002, has been registered against him, for the offences under Sections 147, 148, 324, 341 and 506(ii) IPC., and that on 24.06.2008, the same was taken on file in C.C.No.321 of 2008, by the learned District Munsif cum Judicial Magistrate, Vadipatti.
12. During trial, PW.1 has denied the complaint against the accused. He has stated that his signature alone was obtained in the Police Station and he did not know anything about the contents. The other injured, PW.2 and PW.6 had not implicated the accused, writ petitioner herein. All the Prosecution Witnesses have stated that they could not identify the assailants and that they did not see the accused, at the occurrence place. Thus, in the criminal case, the witnesses, viz., PW.1, PW.2 and PW.6 have turned hostile. In the abovesaid circumstances, the learned Judicial Magistrate, vide order, dated 03.07.2008, held that the charge against the accused was not proved by the prosecution beyond all reasonable doubt and thus, acquitted the accused.
13. Reason for non-selection of the respondent/writ petitioner, as per the communication, dated 18.09.2009, is as follows:
?tpdh vz/11: vd;d fhuzj;jpw;fhf vd;id gapw;rpf;F miHf;ftpy;iy gjpy;: fhty; tprhuizapy; ePtph; nrhHte;jhd; fhty; epiya Fw;w vz;/195- 2002 gphpt[ 147. 148. 341. 324. 506(ii) ,jr Fw;wthspahf rk;ke;jg;gl;Ls;sPh;/ nkYk; Fw;wk; muR jug;gpy; Iaj;jpw;fplkpd;wp bka;gpf;fg;gltpy;iy vd;gjhYk; rhl;rpfs; gpwH; rhl;rpfshf khwpajhYk;. nkw;go Fw;w tHf;fpypUe;J 3/8/2008Mk; njjp thogl;o ePjpj;Jiu eLth; ePjpkd;wk; eilKiw rl;lgphpt[ 248(1)d; fPH; tpLtpf;fg;gl;Ls;sPh;/ nkYk; kDjhuuhy; g{h;j;jp bra;ag;gl;l rhpghh;j;jy; gotj;jpy; thpif vz;/15. 16 kw;Wk; 18y; kDjhuh; Fw;w tHf;fpy; rk;ke;jg;gl;l tptu';fs; kw;Wk; cz;ikfs; midj;Jk; ck;khy; kiwf;fg;gl;Ls;sJ/ jkpH;ehL rpwg;g[f; fhty; rhh;epiy gzpj; bjhFjp tpjp vz;/14(b)d;go ,uz;lhk; epiy fhtyh; gzp epakdj;jpw;F xUth; vt;tpj Fw;w tHf;fpYk; fk;ke;jg;glhjtuhft[k;. mtuJ Ke;ija elj;ij kw;Wk; Fzeyd; jpUg;jpfukhft[k; ,Uf;f ntz;Lk;/ vdnt nkw;Fwpg;gpl;l fhuz';fshy; ePtph; ,uz;lhk; epiy fhtyuhf gzp epakdk; bra;ag;gltpy;iy vd;w tptuk; bjhptpf;fg;gLfpwJ/?
14. Rule 14(b) of Tamil Nadu Special Police Subordinate Service, dealing with the selection to the post of Police Constable, is as follows:
?a) Rule 14(b) of Special Rules for Tamil Nadu Special Police Subordinate Service as amended in G.O.Ms.No.101 Home (Pol.IX) Department, dated 30.01.2003 is furnished below:-
?No persons shall be eligible for appointment to the service by direct recruitment unless he satisfied the appointing authority.
ii) that his character and antecedents are such as to qualify him for such service
iv) that he has not involved in any criminal case before police verification.
Explanation:-(1) A person who is acquitted or discharged on benefit of doubt or due to the fact that complainant ?turned hostile? shall be treated as person involved in a criminal case.
Explanation:- (2) A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of any subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment.?
15. While adverting to the rival contentions, as to the manner of acquittal, after going through the judgment in C.C.No.321 of 2008, dated 03.07.2008, passed by the learned District Munsif cum Judicial Magistrate, Vadipatti, the Writ Court has observed that though the learned Judicial Magistrate has used the words that the witnesses have been treated as hostile and that the prosecution witnesses have not proved the case beyond all reasonable doubt, the case is really one of honourable acquittal, as held in D.Mahadevan vs. Director General of Police, Mylapore, Chennai reported in 2008 (4) MLJ 88.
16. On the facts and circumstances of the case, the Writ Court held that Explanation (2), stating that ?a person involved in a criminal case at the time of Police Verification, and whose case subsequently ended in honourable acquittal or treated as 'mistake of fact' shall be treated, as not involved in a criminal case but, can claim right of appointment only by participating in the next recruitment.?, as not applicable to the case on hand.
17. In T.S.Vasudevan Nair vs. Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) SCC 795, on the facts and circumstances of the case, the Hon'ble Supreme Court, by observing that the appellant therein should not have been denied employment on the sole ground that he had not disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion, set aside the judgment of the High Court and also the impugned order therein, which was a cancellation of the offer of the appointment. In the light of Rule 14(b) of Tamil Nadu Special Police Subordinate Service, facts involved in the above case, we are of the considered view that the said judgment is not apposite to the case on hand.
18. Decision in State of Haryana v. Dinesh Kumar reported in 2008 (3) SCC 222, deals with arrest and custody and therefore, it is not applicable, in strict senso to the facts on hand.
19. In Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, respondent therein, suppressed the information regarding the involvement in a criminal case, registered under Section 325/34 IPC. To the Query No.12(a), ?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.", the respondent therein has written as 'No'. In the abovesaid circumstances, a show cause notice was issued, asking him to explain, as to why, his candidature for the post should not be cancelled, because he had concealed the fact of his involvement in a criminal case. The respondent submitted his reply. However, his candidature was cancelled. He filed a petition before the Central Administrative Tribunal, which was dismissed on 13.02.2004. The writ petition filed against the said order was allowed. The Commissioner of Police went on appeal before the Hon'ble Apex Court. By observing that when the incident happened, the respondent therein must have been about 20 years of age and at that age, young people often commit indiscretions and such indiscretions can often been condoned and after all, youth are not expected to behave in as mature, a manner as older people do and therefore, the approach of the Hon'ble Apex Court should be to condone minor indiscretions made by young people, rather than to brand them as criminals, for the rest of their lives, and further observing that probably, he did not mention this, out of fear that if he did so, he would automatically be disqualified, the Hon'ble Supreme Court, upheld the order of the High Court.
20. In Ram Kumar v. State of U.P., reported in 2011 (6) CTC 440, appointment of the appellant therein as Police Constable was cancelled, on the ground that he had suppressed and concealed the fact about his involvement in a criminal case in the Proforma Verification Roll. However, the respondent therein had not gone into question, as to whether, the appellant was suitable for appointment to the service or to the post of Constable, in which, he was appointed and the respondent only held that the selection of the appellant therein, was illegal and irregular. On the abovesaid facts, the Hon'ble Supreme Court, by observing that the appointing authority has to satisfy himself on the point as to whether, the appellant therein was suitable for appointment to the post of Constable, with reference to nature of suppression and nature of criminal case, set aside the order, canceling the appointment and directed reinstatement.
21. Reverting to the case on hand and with reference to Rule 14(1)(b) of the Special Rules for Tamil Nadu Special Police Subordinate Service, while declining selection of the respondent herein, the appellants have categorically stated that, as against Column Nos.15 to 17 in the Proforma, he has suppressed to mention the fact of involvement in the criminal case and thus, his conduct and character would not be satisfactory for selection and appointment. Suitability is one aspect. But is there any suppression is another aspect, which we are concerned. Decision in Ram Kumar's case (cited supra), is thus distinguishable.
22. In K.Sathyaseelan v. Tamil Nadu Uniformed Services Recruitment Board reported in 2013 Writ.L.R. 360, petitioner therein was involved in a criminal case, in Crime No.12 of 2010, registered by the All Women Police Station, Harur, for the offences, under Section 498-A IPC., and Section 4 of Dowry Prohibition Act. After trial, he was acquitted. However, the petitioner therein was not selected, on the ground that he had suppressed the said information. Subsequent to the complaint and even before trial, he had started living with his wife and gave birth two children. Since there was no evidence, he was acquitted. By observing that the petitioner therein was under the bona fide impression that he need not have to mention about his involvement in the criminal case and since the complainant herself was his wife and that she had started living with him and though he had suppressed of his involvement of the criminal case, on the facts and circumstances of the case, a learned single Judge of this Court was pleased to direct the respondents therein to issue the appointment order to the petitioner therein, to the post of Grade II Police Constable.
23. In Sivanesan v. Superintendent of Police reported in 2013 (3) MLJ 142, though initially the petitioner therein did not furnish the information about the registration of the criminal case, subsequently, at the time of filling up of the verification roll, he had mentioned about his involvement in the criminal case, which was quashed. In the above reported case, a complaint was lodged against him, as he had kidnapped one Arachelvi, who subsequently appeared before the Court and submitted that they were in love and married. Paternal Grandfather of Arachelvi had given a complaint. Thus, in the abovesaid case, in the police verification roll, the petitioner therein had given the details of involvement of the criminal case, which has been subsequently quashed. Case before this Court is suppression and not disclosure.
24. In Joginder Singh v. Union Territory of Chandigarh reported in 2015 (2) SCC 377, appellant therein, charged under Sections 148, 149, 323, 325 and 307 IPC., was acquitted by the trial Court, holding that prosecution had miserably failed to prove charges levelled against him, since complainant, as well as the injured eyewitness failed to identify the assailants, complainant had further admitted that the contents of Section 161 Cr.P.C., statements were not disclosed to him, and that his signature was obtained on a blank sheet of paper by the Investigation Officer. In the abovesaid circumstances, the Hon'ble Supreme Court held that acquittal of the appellant therein was one of honourable acquittal and hence, he should not be denied appointment to the post in question. With due respect, we are not posed with a question, as to whether, acquittal is honourable or not? But the question that we are posed is whether, there was suppression of material fact, which the authority, would consider at the time of verification.
25. Though the above reported judgment may lend support to the case of the respondent that acquittal in C.C.No.321 of 2008, dated 03.07.2008, passed by the learned District Munsif cum Judicial Magistrate, Vadipatti, should be construed as honourable acquittal, in the said reported case, there was no allegation of concealment of an information, in the application. In the instant case, one of the reasons for not selecting the respondent/writ petitioner is suppression of involvement, in a criminal case.
26. On the aspect of non-disclosure of information, as to the involvement in the criminal case and after considering the decision of the Apex Corut in R.Radhakrishnan v. The Director General of Police and others reported in 2007 (12) SCALE 539, a Hon'ble Full Bench of this Court in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB), at Paragraphs 35 and 36, held as follows:
?35. ........Thus the above latest decision of the Apex Court has cleared the cloud of suspicion on the issue. Therefore we hold that the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. His subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. In any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the 2 Explanations under clause (iv) of Rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honorable or otherwise.
36. Coming to the individual cases, it is seen that all these cases fall either under the category covered by Explanation-1 to Rule 14(b) of the aforesaid Rules or under the category of suppression of the factum of involvement in the criminal case. Therefore, none of the writ petitioners are entitled to any relief.?
27. In J.Alex Ponseelan v. Director General of Police reported in 2014 (3) MLJ 777 (FB), a Hon'ble Constitutional Bench of this Court, revisited the validity of Rule 14(b)(iv) of the Special Rules for Tamil Nadu Special Police Subordinate Service and affirmed the views taken in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB), both on the aspect of acquittal and non-disclosure.
28. On the aspect of non-disclosure, Writ Court has considered two decisions, viz., T.S.Vasudevan Nair vs. Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) SCC 795 and Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644. T.S.Vasudevan Nair's case (cited supra) and the same have been considered and distinguished in Manikandan's case (cited supra), by placing reliance, on the decision of the Hon'ble Apex Court in R.Radhakrishnan v. The Director General of Police and others reported in 2007 (12) SCALE 539, wherein, the Hon'ble Apex Court, at Paragraphs 10 to 13, held as follows:
?10. Indisputably, the 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 has not made such disclosures and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Administration through its Chief Secretary and others v. Sushil Kumar {(1996) 11 SCC 65}, wherein it was categorically held:
"3.... The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? 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 found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it 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....."
12. Mr.Prabhakar has relied upon a decision of this Court in T.S.Vasudevan Nair v. Director of Vikram Sarabhai Space Centre and Others (1998 Supp. SCC 795). The said decision has been rendered, as would be evident from the judgment itself, on special facts and circumstances of the said case and cannot be treated to be a binding precedent.
13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise."
29. In Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, the respondent therein, was aged 20 years, against whom, a criminal case, under Section 325/34 IPC, was registered, which ended in a compromise and that he was also acquitted. In J.Alex Ponseelan's case (cited supra), a Hon'ble Constitutional Bench of this Court has affirmed the legal position that as regards, non-disclosure or suppression of involvement or pendency of the criminal case in the application form, the same would be a ground for the appointing authority to reject the application, on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case. Sandeepkumar's case (cited supra) has been considered and discussed, at Paragraph 17 of the judgment, in J.Alex Ponseelan's case (cited supra), as hereunder:
"17. The Referring Judge has stated that Single Judges have taken a different view with regard to the issue on involvement in a criminal case, and this, according to the Referring Judge, is causing some confusion. We do not think so. The Single Judge is bound by the decision of the Full Bench and there is no reason to doubt when the Rule is held intra vires and it holds the field and the learned Single Judge cannot overlook the said rule and the Full Bench decision of this Court in Manikandan's Case (supra) and such a view is legally untenable. The two Supreme Court decisions relied upon by the Referring Judge do not, in anyway, support the issue raised in the reference, as in Sandeep Kumar's case, the issue arose in respect of appointment to the post of Head Constable in NCT of Delhi. The relevant rules were not subjected to judicial test and it was an issue not in dispute. Further in Pawan Kumar's case, the Supreme Court did not have an occasion to test the validity of any particular rule. It only gave suggestions to the Government to amend certain provisions to iron out creases.?
30. Even in Joginder Singh v. Union Territory of Chandigarh reported in 2015 (2) SCC 377, relied on by the learned counsel for the respondent/writ petitioner, after going through the material on record and finding that there was no allegation of concealment of material fact, the Hon'ble Supreme Court upheld the order of selection. Whereas, on the facts and circumstances of the present case and considering the Hon'ble Full Bench decision of this Court in Manikandan's case (cited supra), affirmed by a Hon'ble Constitutional Bench of this Court in J.Alex Ponseelan's case (cited supra), with reference to Rule 14(b)(iv) of the Special Rules for Tamil Nadu Special Police Subordinate Service, we are of the considered view that there is a clear case of suppression of the material fact of involvement in the criminal case by the respondent herein. Though the Hon'ble Supreme Court in Sandeep Kumar's case (cited supra), has observed that, ?indiscretions can often been condoned?, but the said judgment has also been considered in the Hon'ble Constitutional Bench judgment, J.Alex Ponseelan's case (cited supra). Having regard to the principles of law of precedents, we are of the view that the latter judgment is binding on this Bench.
31. In the light of the decisions and discussion, we are inclined to interfere with the order made in W.P(MD)No.3168 of 2010, dated 25.11.2014. Hence, Writ Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed. .