Central Administrative Tribunal - Delhi
Coram vs Union Of India on 18 September, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A.NO.544 OF 2013 New Delhi, this the 18th day of September, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER & HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER . Sh.Devi Dayal, S/o Sh.Vishamber Dayal, R/o House No.537, Daryapur Kalan, Delhi 110039 . Applicant (By Advocate: Shri S.C.Saxena) Vs. 1. Union of India, through Secretary, Ministry of Defence, South Block, New Delhi 2. The Commandant, 505, Army Base Workshop, Pin 900106 C/o 56APO Respondents (By Advocate: Shri R.N.Singh) ORDER Raj Vir Sharma, Member(J):
In this Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following relief:
(i) quash and set aside the impugned order dt.31.1.2013 issued by respondent No.2.
issue direction to the respondent no.2 to give appointment to the applicant on the post of vehicle mechanic for which he has been finally selected.
Award the cost of the litigation.
Pass any order or direction as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
2. Brief facts of the applicants case are as follows:
2.1 In response to advertisement dated 18.2.2012, the applicant applied for the post of Vehicle Mechanic (AFV) in 505, Army Base Workshop. Respondent no.2,vide letter dated 9.8.2012 (Annexure B), intimated the applicant that he was provisionally selected against the post of Vehicle Mechanic (AFV), and called upon the applicant to report to his office, along with the requisite documents. Accordingly, the applicant reported and submitted the required documents. He also submitted the duly filled in Attestation Form. In the Attestation Form the applicant mentioned that a criminal case had been registered against him under Sections 323, 341 and 506 read with Section 34 IPC, vide FIR 10/09 at PS Bawana, which was pending before the court for trial.
2.2 Respondent no.2, vide letter dated 31.1.2013 (Annexure A), intimated the applicant that during verification of his character and antecedent by the Deputy Commissioner of Police (Special Branch), it was found that a case under Sections 323, 341 and 506 read with Section 34 IPC had been registered against him, vide FIR 10/09 at PS Bawana and he was under trial in court, and that in accordance with the Government of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms O.M. No.15014/1(S)/83-ESTT.B, dated 7th June 1983, it would not be possible to entertain his candidature for the said post in the said circumstances. Respondent no.2 also enclosed a copy of the O.M. dated 7.6.1983 (ibid) with the letter dated 31.1.2013 (Annexure A).
2.3 In the O.A. it is contended by the applicant that the instructions contained in the O.M. dated 7.6.1983 (ibid) have already been superseded; that the offences under Sections 323,341 and 506 read with Section 34 IPC alleged to have been committed by him are not of so serious nature as to reject his candidature; and that rejection of his candidature on the basis of the O.M. dated 7.6.1983(ibid) is bad and unsustainable.
2.4 In support of his contentions, the applicant has relied upon the decisions in Commissioner of Police vs. Sandeep Kumar, (2011) 4 SCC 644; Ram Het Meena vs. Union of Inida and others, W.P. ( C ) No.9314 of 2009, decided on 15.3.2011; Rajesh Kumar vs. Commissioner of Police & another, W.P. (C ) No.8223 of 2011, decided on 22.11.2011; Commissioner of Police vs. Naveen Kumar Nandiwal, W.P.( C ) No.7808 of 2011, decided on 2.11.2011; and Anoop Kumar vs. Government of NCT of Delhi & another, O.A.No.178 of 2008, decided on 22.7.2008. The applicant has filed copies of the said decisions along with the O.A.
3. In the counter reply, the respondents have not denied the averments made by the applicant that he was provisionally selected for the post of Vehicle Mechanic (AFV) in 505, Army Base Workshop and that in the Attestation Form he had disclosed about his involvement in the aforesaid criminal case pending for trial in the court. It is stated by the respondents that the Attestation Form filled in by the applicant was referred to the Deputy Commissioner of Police (Special Branch), New Delhi, for verification and that the office of the Deputy Commissioner of Police (Special Branch), New Delhi, vide letter dated 6.9.2012, informed that a case vide FIR 10/09 under Sections 323, 341 and 506 read with Section 34 IPC had been registered against the applicant at PS Bawana, and that the applicant was under trial in the court. It is also stated that the offer of appointment was rejected as the applicant was involved in criminal activity and was, therefore, unfit to be appointed to Government service. In support of their decision, the respondents have referred to the Ministry of Home Affairs, Department of Personnel & Administrative Reforms O.M. dated 7.6.1983(ibid), which stipulates that substantial evidence of criminal activity of any individual may render his/her candidature unsuitable for public employment. The applicant was accordingly informed of the same, vide letter dated 31.1.2013. As regards the decisions cited by the applicant in support of his claim, the respondents have submitted that those decisions are out of context and inapplicable to the facts and circumstances of the applicants case.
4. By filing a rejoinder reply, the applicant has controverted the stand taken by the respondents.
5. We have perused the pleadings and heard Shri S.C.Saxena, learned counsel appearing for the applicant, and Shri R.N.Singh, learned counsel appearing for the respondents. Shri Saxena filed a copy of the order No.F.No.I-45020/6/2010-Pers.II, dated , issued by the Government of India, Ministry of Home Affairs (Police-II Division).
6. Before proceeding further, we would like to refer to and quote the Government of India, Ministry of Home Affairs (Police-II Division)s order No. F.No.I-45020/6/2010-Pers.II, dated , as under:
F.No.I-45020/6/2010-Pers.II CONFIDENTIAL Government of India/Bharat Sarkar Ministry of Home Affairs, Grih Mantralaya (Police-II Division) North Block, New Delhi February 1st, 2012
Subject: Policy Guidelines for Considering cases of candidates for appointment in CAPFs-pendency of criminal cases against candidates the effect of.
Honble High Court of Delhi in W.P. No.2930/2011 titled Het Ram Meena Vs Union of India and Others directed the Union of India to formulate guidelines for considering the cases of the candidates against whom the criminal cases were registered before applying for the various posts in CAPFs.
2. Accordingly, the matter has been considered in this Ministry in consultation with CAPFs, and it has been decided as follows:
I. A candidate is required to declare in the application form, whether he has been arrested, prosecuted or convicted by a court for any criminal offence. If a candidate does not disclose the fact of his/her involvement and/or arrest in criminal case(s), complaint case(s), preventive proceedings etc. Under IPC or any other Act of the Central or State Government in the application form, during medical examination as well as in the attestation/verification form and the fact subsequently comes to the notice of recruiting authorities/is found out from the verification report received from the District authorities or otherwise, his candidature/appointment will be cancelled. However, in case the candidate has already been appointed, while canceling/terminating the appointment, the principle of natural justice shall be followed and opportunity of being heard would be accorded to the candidate.
If a candidate does not disclose his/her involvement and/or arrest in criminal case(s), complaint case(s), preventive proceedings etc. under IPC or any other Act of the Central or State Government in the application form but discloses the same during medical examination/PET and/or in the attestation/verification form, in writing, the candidature will not be cancelled on this ground alone.
The candidate will not be considered for recruitment if:
a) Such involvement/case/arrest is concerned with an offence mentioned in Annexure A;
b) Such arrest/detention is made under any of the Acts which are concerned with security and integrity of the country, terrorist and disruptive activities, acts against the State, insurgency, etc.;
c) The candidate has been detained under the National Security Act/Crime Control Act/any similar legislation, and the same is confirmed by the Reviewing Authority;
d) Such involvement/case/arrest is concerned with an offence involving moral turpitude;
e) He/she has been convicted by a Court in any case whether or not an appeal is pending against such conviction.
Provided that the candidate shall not be barred in the above cases, if only an FIR has been registered/case is under investigation and no charges have been framed either on FIR or on the complaint in any Court of Law.
Provided further that the candidate shall not be debarred if he/she has been finally acquitted/discharged by a Court, whether an appeal is pending or not against such acquittal.
Provided further that the candidate shall not be debarred if the proceedings are withdrawn by the Central/State Government.
Provided further that the candidate shall not be debarred if he/she has been involved/convicted/ concerned with minor offences mentioned in Annexure B or those mentioned in Chapter VIII & X of Code of Criminal Procedure, 1973.
Where a candidate has been convicted and awarded a jail-term of more than six months, he/she will generally not be considered suitable for appointment in the CAPF.
Notwithstanding the provisions of 3 (III) above, such candidates against whom chargesheet in a criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later on acquitted by extending benefit of doubt or acquitted for the reasons that the witnesses have turned hostile due to fear or reprisal by the accused person(s), he/she will generally not be considered suitable for appointment in the CAPF. The details of crimes which are serious offences or involve moral turpitude are at Annexure A. However, cases in which the criminal court, while acquitting, has categorically mentioned that the criminal case would not be a bar on appointment in Government Services, the candidate shall be considered for appointment in the concerned CAPF.
Involvement in minor offences, traffic violations, juvenile in conflict with law (tried in open courts/Juvenile Justice Boards) and accident cases will not debar an individual for appointment in CAPFs & ARs provided that appointments for the post of Driver and those related to driving will not be offered to the individuals, punished for serious traffic offences.
If a candidate is discharged by extending the benefit under the Probation of Offender Act, 1958, the suitability of such candidates shall be put up for consideration of the selection committee as constituted by the DGs of CAPFs & ARs from time to time for assessing his/her suitability for appointment in the concerned CAPF.
3. Furthermore, the following may be considered undesirable for employment under CAPFs:
a) Those who are, or have been, members of or associated with anybody or association declared unlawful after it was so declared, provided the body or association continues to be declared unlawful at the time of the verification.
b) Those who have been charged with, or against whom there is substantial evidence of, participation in or association with any activity or programme which is aimed at:
i. Subversion of the Constitution;
ii. Overawing or overthrowing by force or by unconstitutional means the Government established by law in India;
Causing organized breach or defiance of law involving violence;
Bringing about, on any ground whatsoever, the cession of a part of the territory of India or the secession of a part of the territory of India from the Union, or which supports any claim for cession or which supports any claim for cession or secession, or which incites any individual or group of individuals to bring about such cession or secession;
Disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or being prejudicial to the security of the State;
Promoting, or propagating or attempting to create, on grounds of religion, race, language, caste, language, caste or community feelings of enmity or hatred or disharmony between different sections of the people.
Those against whom there is substantial evidence of, participation in or association with, any subversive or criminal activity or such activities as may render them unsuitable for public employment, or are considered likely to affect their integrity and efficiency in service.
Those who have been associated with foreign powers or their agents in a manner which may give rise to a reasonable presumption of activities prejudicial to the national interest.
4. Where the Appointing Authority is of opinion that it is necessary or expedient to do so, it may after consultation with the Ministry of Home Affairs, by order, for reasons to be recorded in writing, relax any of the provisions of this Policy with respect to any individual, class or category of individuals.
ANNEXURE A SECTIONS OF THE INDIAN PENAL CODE CONCERNING SERIOUS OFFENCES/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 Sections 121 to 130
3. Indian Penal Code Chapter-7 Offences relating to the Army, Navy & Air Force Sections 131 to 136.
4. Indian Penal Code Chapter-B Offences against the Public Tranquility Sections 153-A & B.
5. Indian Penal Code Chapter 11 False Evidence and Offences against Public Justice Sections 193 to 216-A.
6. Indian Penal Code Chapter-12, Offences relating to Coin and Government Stamps Sections 231 to 263-A.
7. Indian Penal Code Chapter 15 Offences relating to Religion Sections 295 to 297
8. 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, 363 to 373, 376 to 376-A, 376-B, 376-C, 376-D, 377.
9. Indian Penal Code Chapter-17 Offences against property Sections 379 to 462
10. Indian Penal Code Chapter-18 Offences relating to Documents and to Property Marks Sections 465 to 489
11. Indian Penal Code Chapter - 20 Offences relating to Marriage and Dowry Prohibition Act.
Section 498-A In cases relating to marriage i.e. Section 498-A/406 IPC and Dowry Prohibition Act. The candidate may be debarred if he is main accused and not collateral accused such as Devar, Jeth etc. if the offence of 304B etc. is committed with 498-A he may be debarred.
OFFENCES UNDER SPECIAL ACTS
1. N.D.P.S.Act
2. Sections 25, 27 of Arms Act, 1959
3. Section 13, 14-A of Gambling Act.
4. Section 39, 39-A of Indian Electricity Act
5. Offences under Essential Commodities Act.
6. Offences under Food Adulteration Act
7. Offences under Official Secret Act, 1923
8. Offences under the Explosive Substances Act, 1908
9. Unlawful Activities (Prevention) Act, 1967
10. P.O.T.A., 2002
11. Explosives Act, 1884
12. Offences regarding terrorist activities.
13. Offences under ITP Act and MCOCA
14. All offences prescribing conviction of minimum 3 years and above.
15. Such cases which are registered for abetment and conspiracy to commit above mentioned offences.
MORAL TURPITUDE Moral turpitude refers to conduct that shocks the public conscience and a crime of moral turpitude is inherently base, vile or depraved, contrary to social standards of morality and done with reckless, malicious or evil intent. The following crimes shall definitely be construed as acts of moral turpitude:
a) Murder
b) Voluntary man slaughter
c) Rape
d) Domestic violence
e) Prostitution
f) Blackmail
g) Malicious destruction of property
h) Arson
i) Alien smuggling
j) Harbouring a fugitive
k) Bribery
l) Perjury.
Annexure B MINOR OFFENCES
1. The offences as defined under IPC or any other act of Central Government or State Government and are defined as non-cognizable and compoundable.
2. Any offence as defined under the IPC or any other act of Central Government or State Government which is punishable only with fine without any imprisonment.
3. Any offences as defined under the IPC or any other act of Central Government or State Government which is punishable only with simple imprisonment for a period up to six months.
4. Traffic violation offences or any offence as defined under Motor Vehicles Act, 1988.
5. Offences which are covered under Probation of Offender Act, 1958.
6. Offences which are covered under Juvenile Justice Act 2000 As per Section 1(1) of the Juvenile Justice (Care and Protection of Children) Act, 2000, a juvenile who has come in conflict with law and has been dealt with under the provisions of the Juvenile Justice Act, he/she shall not suffer any disqualification on account of conviction in an offence under the said law.
7. Referring to the above quoted Government of India, Ministry of Home Affairs (Police-II Division), order No.F.No.1-45020/6/2010-Pers.II, dated , the learned counsel appearing for the applicant contended that the Government of India, Ministry of Home Affairs, Department of Personnel & Administrative Reforms O.M. No.15014/1(S)/83-Estt.B., dated 7.6.1983 (Annexure R-I) has already been superseded by the order dated (ibid) and therefore, the respondents should not have rejected the applicants candidature in accordance with the O.M. dated 7.6.1983 (ibid) inasmuch as the applicant being allegedly involved in commission of offences of minor nature cannot be debarred from being appointed to Government service.
7.1 On perusal of the aforesaid Ministry of Home Affairs order dated (ibid), we do not find any mention of the O.M. dated 7.6.1983 (ibid) therein. It has also not been stated in the order dated (ibid) that the O.M. dated 7.6.1983 (ibid) has been superseded thereby. It is found that the Government of India, Ministry of Home Affairs, have formulated guidelines for considering the cases of candidates against whom the criminal cases were registered before applying for various posts in Central Armed Police Forces, vide the order dated 1.2.2012 (ibid), in compliance with the direction issued by the Honble High Court of Delhi in W.P. No.2930 of 2011, Het Ram Meena vs. Union of India and others. Though the policy guidelines have been framed by the Government of India, Ministry of Home Affairs, vide order dated (ibid) for considering the candidates against whom criminal cases were registered before applying for various posts in CAPFs, yet, in our considered view, the guidelines contained therein cannot be completely lost sight of by the Tribunal while considering the rival contentions of the parties inasmuch as both appointment to posts in Central Armed Police Forces (CAPFs) and appointment to posts in other Departments of the Government, including the one involved in the present case, are appointments to Government service.
7.3 Paragraph III (a) stipulates that a candidate will not be considered for recruitment if such involvement/case/arrest is concerned with an offence mentioned in Annexure A to the order dated (ibid). The said Annexure A describes different Sections of the Indian Penal Code concerning serious offences and moral turpitude. The offences under Sections 323, 341 and 506 IPC are not included in Annexure A. The fourth proviso to paragraph III of the order dated (ibid) states that a candidate shall not be debarred if he/she has been involved/convicted/concerned with minor offences mentioned in Annexure-B or those mentioned in Chapter VIII and X of Code of Criminal Procedure, 1973. Annexure B describes minor offences. As per serial no.1 of Annexure B, a candidate shall not be debarred if he/she has been involved/convicted/concerned with offences as defined under IPC or any other Act of Central Government or State Government and are defined as non-cognizable and compoundable. Assuming for a moment that the Ministry of Home Affairs order dated (ibid) is applicable to the case of the applicant, it is found that the offences under Sections 341, 323 and 506 IPC, which are alleged to have been committed by the applicant, being not mentioned in Annexure A to the said order dated (ibid), the applicant cannot be said to have been debarred from being appointed to Government service. The said offences alleged against the applicant being non-cognizable and compoundable, there is also no bar for his appointment to Government service in terms of the fourth proviso to Paragraph III of the order dated (ibid) read with Annexure B thereto.
7.4 At this stage, it is also necessary to refer to and quote the O.M. dated 7.6.1983 (ibid)(Annexure R-I):
COPY OF GOVERNMENT OF INDIA MINISTRY OF HOME AFFAIRS DEPARTMENT OF PERSONNEL AND ADMINISTRATIVE REFORMS OFFICE MEMORANDUM NO.15014/1(S)/83-ESTT. B., THE 7TH JUNE, 1983.
SUBJECT:-Verification of character and antecedents of candidate selected for appointment to civil posts under the Government of India-Review of the procedure and revision of instructions regarding.
Attention of the various Ministries is invited to this Departments O.M. No.18011/9(S)/78-Estt.(B), dated the 2nd July, 1982, laying down the revised criteria for determination of suitability of a person for appointment to Government service and to say that it has been decided to incorporate the following changes in the said O.M:-
1. The following sub-clause may be added as sub-clause (c) in paragraph 3.1(A) after sub-clause (b) thereof:
(c) Those against whom there is substantial evidence of, participation in or association with, any subversive or criminal activity or such activities as may render them unsuitable for public employment, or are considered likely to affect their integrity and efficiency in service.
2. The present sub-clause (c ) in this para may be re-numbered as sub-clause (d).
3. Note (i) under para 3.1 (C ) may be deleted.
4. Note (ii) may be renumbered as (i) and the expression or other body or association may be inserted between the expression at some stage of a political party and which is not banned.
2. The various Ministries/Departments are advised to take action accordingly.
3. While circulating these instructions to the various Heads of Departments etc., the Ministries/Departments are requested to maintain confidentiality of the same by keeping a proper account of the copies distributed and ensuring their safe custody at appropriate levels.
4. Receipt of this communication may please be acknowledged in the enclosed format. 7.5 The O.M. No.18011/9(S)/78-Estt. (B), dated the 2nd July, 1982, which has been referred to in the O.M. dated 7.6.1983 (ibid), reads thus:
Copy of Ministry of Home Affairs (Department of Personnel and Admn. Reform)s O.M No.18011/9(S)/78-Estt.(B) dated 2.07.82, addressed to the Secretaries of the various Ministries/Departments.
Sub: Verification of character and antecedents of candidates selected for appointment to civil posts under the Government of India Review of the procedure and revision of instructions regarding.
***
1. Attention is invited to the instructions contained in Home Departments O.M.No.20/58/45-Estt.(S), dated the 7th February, 1947, and Ministry of Home Affairs O.M.No.3/8(S)/67-Estt.(B), dated the 27th September, 1967 which lay down the broad principles behind the practice of verification of character and antecedents of candidates selected for appointment under the Government of India.
2. The Government have reviewed the orders issued from time to time on the above subject and it has been decided that in respect of the verification of the character and antecedents of candidates for appointment to civil posts, the procedure explained below should be adopted in future.
3. Determination of suitability of a person for appointment to Government service:
Pre-enrolment verification, whether simple or detailed, is a pre-requisite for appointment. It will be the responsibility of the appointing authority to satisfy itself about the identity and suitability of the candidate according to the prescribed criteria before making any appointment.
3.1 Criteria:
(A) While there is no change in the guiding principles laid down in the circular dated 7.02.1947, referred to above, specifically the following may be considered undesirable for employment under Government:
(a) those who are, or have been, members of or associated with any body or association declared unlawful after it was so declared, provided the body or association continues to be declared unlawful at the time of the verification;
(b) those who have been charged with, or against whom there is substantial evidence of, participation in or association with any activity or programme which is aimed at:
(i) subversion of the Constitution;
(ii) overawing or overthrowing by force or by unconstitutional means the Government established by law in India;
(iii) causing organized breach or defiance of law involving violence;
(iv) bringing about, on any ground whatsoever, the cession of a part of the territory of Indian or the secession of a part of the territory of India from the Union, or which supports any claim for cession or which supports any claim for cession or secession, or which incites any individual or group of individuals to bring about such cession or secession
(v) disclaiming, questioning or disrupting the sovereignty and territorial integrity of India or being prejudicial to the security of state;
(vi) Promoting or propagating or attempting to create on grounds of religion, race, language, caste or community, feelings of enmity or hatred or disharmony between different sections of the people.
(c) Those who have been associated with foreign powers or their agents in a manner which may give rise to a reasonable presumption of activities prejudicial to the national interest.
(B) Participation in any such activities, particularly within 3 years of the date of enquiry, should be considered as evidence that the person is unsuitable for Government employment unless there is, in the interval, positive evidence of a change of attitude.
(C) Normally a person convicted of an offence involving moral turpitude should be regarded as ineligible for Government service:
Provided in cases where the appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, specific approval of Government may be obtained for his employment.
NOTE: (i) Participation in the activities of communal organizations (including their front organizations) will also be covered by A(b)(vi).
(ii) Mere membership at some stage of a political party which is not banned by the Government during the period of such membership cannot be deemed to ipso facto disqualify a person from Government service except where such membership has resulted in his taking part in anti-national or communal or similar activities.
(iii) Participation in student politics or students organizations in the University will not be a bar unless it involves participation in extremist activities involving violence, subversion, etc. In such cases, the verification report will be considered on the basis of the facts revealed therein.
4. Existing procedure for verification of character and antecedents:
At present, Government are following 2 procedures for verification of character and antecedents, viz.
1) Detailed verification in respect of :- (a) Group A posts; (b) Group B posts;
(c) Ministerial posts in Government of India Secretariat and attached offices;
(d) Group C and D posts of all other offices in which detailed verification is considered particularly necessary in the interest of security by the administrative Ministry or office;
(e) Cases in which simple verification cannot be done because of the candidates inability to produce a certificate of character.
2) Simple verification in respect of all Group C and D posts, not included in (c), (d) & (e) above, i.e. in subordinate and other offices.
4.1 Detailed verification consists of getting an attestation form filled by the candidate and getting the entries verified by the district authorities.
4.2. (1) In simple verification, the candidate is required to furnish (i) An attestation form duly filled in without the identity certificate. (ii) (a) In respect of Group C posts, a certificate of character in the form prescribed duly attested by a District Magistrate or a sub-Divisional Magistrate or their superior officers.
(b)In regard to Group D posts, a certificate of character from a gazetted officer or a Magistrate in the prescribed form without attestation by District Magistrate or Sub-Divisional Magistrate.
5. Revised procedure for verification of character and antecedents.
The following changes have been made in the above procedure with immediate effect:
a. In respect of candidates for the post of Lower Division Clerk or posts of equivalent grade in the Secretariat and attached offices, simple verification would be adopted instead of detailed verification as at present.
b. In respect of other Group C employees in the Secretariat and attached offices, the attestation forms may be sent directly to the Superintendent of Police of the district, who may be requested to make a record check of the entries in the form and then send it back to the appointing authority through the District Magistrate with his attestation. In such cases, field enquiries may not be necessary.
c. As an exception to the general procedure, in case of persons appointed to certain posts or services or departments, detailed verification may be necessary for all levels. Such posts/services/departments may be identified by the respective Ministries and persons to be appointed at all levels to these posts/services/departments may be subjected to detailed verification. The responsibility for identification of the posts, the appointments to which are to be subjected to detailed verification will be that of the Head of the Organization/Department/Ministry.
d. The detailed verification in respect of Group B and Group A posts would continue to be carried out as at present.
e. Simple verification for other categories as mentioned in para 4 (2) will continue as before.
6. With the coming into force of the modifications outlined in para 5 above, the types of verification now proposed for the various categories would be as under.
6.1 Detailed verification.
Detailed verification would be applicable to appointment to:
a. Group A Posts;
b. Group B posts;
c. Group C and D posts of all those offices in which detailed verification is considered particularly necessary in the interest of security by the Administrative Ministry of office.
d. Cases in which simple verification cannot be done because of the candidates inability to produce a certificate of character.
6.2 Record Check 6.2.1 Record Check What it is?
Record Check involves looking into adverse reports in respect of any matter including criminal cases, arrests, debarment by Union Public Service Commission, etc. as may be revealed by the Police records.
6.2.2 Record Check Persons to whom applicable.
Record check would be applicable to Group C posts above the level of Lower Division Clerk in the Government of India Secretariat and its attached offices.
6.3 Simple Verification.
Simple verification would be applicable to appointments to all other posts viz:
(a) Posts of LDC and posts of equivalent grade and all Group D posts in the Government of India Secretariat and its attached offices; and
(b) Group C & D posts under the Government of India in subordinate offices.
6.4 As mentioned in para 6.1(c) above, as an exception to the general procedure in case of persons in categories mentioned in paras 6.2 and 6.3 above, and appointed to certain posts or services or departments, detailed verification may be necessary for all levels. Such posts/services/departments may be identified and persons appointed at all levels to these posts/services/departments may be subjected to detailed verification.
6.4.1. To cite an example, persons appointed at all levels who may have to handle Top Secret/Secret/Sensitive matters should be subjected to detailed verification. This category would necessarily include LDCs, Gestetner Operators, Messengers/Peons attached to: Secret Sections, Secret R&I, Offices of Joint Secretaries, Secretaries and Ministers, and those employed in the budget Sections of the Ministry of Finance/Railways/Defence.
7. A specimen of the attestation form to be used for the purpose of verification of character and antecedents is at Annexure-I. 7.1. All appointing authorities should clearly indicate at the top of the attestation forms the type of verification required to be done, i.e., Detailed Verification, Record Check or Simple Verification.
8. INITIATION OF VERIFICATION ROLLS:
8.1 A list of authorities to whom the attestation forms are to be forwarded by the various appointing authorities has already been forwarded to the various Ministries/Departments vide O.M.No.3/20(S)/72-Estt.(B), dated the 5th August, 1974, and O.M.No.18011/3(S)/80-Estt.(B), dated the 20th June, 1980. The Ministries, etc. would hereafter refer the attestation form in respect of the various categories of posts as under:
1) Cases covered by para 6.1 District Magistrate or the Commissioner of Police as the case may be.
2) Cases covered by para 6.2 Superintendent of Police of the district. Return to appointing authority through the District Magistrate with his attestation.
3) Cases of additional verification through I.B., wherever prescribed I.B. through the Ministry concerned.
9. It is specifically clarified for the information of the various Ministries etc. that apart from the above, there is no change in the various other instructions that have been issued by this Department from time to time on the subject of verification of character and antecedents of candidates for appointment to civil posts under the Government of India.
10. Instructions dealing with re-verification would be issued separately.
11. It is expected that the various appointing authorities, unless otherwise specified in any other circular should be able to determine, on their own, the suitability of the candidates on the basis of the revised criteria mentioned in paragraph 3.1. above. However, those cases in which it is felt that clarifications should be sought from this Department, may continue to be sent to us; while referring such cases, a self-contained note bringing out the facts of the case together with the comments of the administrative Department may be sent to us with the approval of the Joint Secretary concerned.
12. While on the subject, the policy that would govern appointments in public sector undertakings is also explained below.
12.1 The criteria regarding suitability for appointment in public sector undertakings would be the same as in Government.
12.2. For all Group C and D posts in public sector enterprises, the procedure of simple verification would be adopted. However, in the case of such Group C and D posts which are identified to be of sensitive nature by the Head of the Department, detailed verification procedure would be adopted.
In the case of Group A and Group B posts, the normal procedure for getting verification as applicable to Government servants would continue as at present.
13. The various Ministries are requested to bring these instructions to the notice of all Heads of the Departments under their control, including Heads of quasi-Government organizations, public sector undertakings, autonomous bodies etc. where the scheme of verification has been extended and instruct all appointing authorities to scrupulously observe the laid down principles in making appointments in their respective offices. In the instant case, admittedly, the applicant is not involved in any of the activities mentioned in clause (A) of Paragraph 3.1 of the O.M. dated 2.7.1982(ibid). There is also no allegation of his involvement in any of the said activities made against him within three years of the date of enquiry as mentioned in clause (B). He is also not involved in commission of offences of moral turpitude as mentioned in clause (C) of Paragraph 3.1 of the O.M. dated 2.7.1982. Thus, in terms of the above O.M. dated 2.7.1982(ibid) and O.M. dated 7.6.1983 (ibid), quoted above, the applicant cannot also be said to be debarred from being appointed to Government service.
8. In Sandeep Kumars case(supra), the respondent and some of his family members were involved in a criminal case, being FIR No. 362 under Section 325 read with Section 34 IPC, which was admittedly compromised on 18.1.1998, and the respondent and his family members were acquitted on 18.1.1998. In response to the advertisement issued in January 1999, the respondent applied for the post of Head Constable (Ministerial) on 24.2.1999 but did not mention in his application form that he was involved in the aforesaid criminal case. He qualified in all the tests for selection to the post of Head Constable (Ministerial). On 3.4.2001 he filled in the attestation form wherein he, for the first time, disclosed that he had been involved in a criminal case with his tenant, which, later on, had been compromised in 1998 and he had been acquitted. On 2.8.2001 a show-cause notice was issued asking him to show cause why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application form. The respondent submitted his reply on 17.8.2001 and an additional reply, but the authorities were not satisfied with the same, and on 29.5.2003 they cancelled his candidature. The O.A. filed by the respondent was dismissed by the Tribunal, and the writ petition filed against the Tribunals order was allowed by the Honble High Court of Delhi. Hence, the Civil Appeal was filed before the Honble Supreme Court. Dismissing the Civil Appeal, the Honble Supreme Court passed the following judgment:
Heard learned counsel for the parties.This Appeal has been filed against the impugned judgment of the High Court of Delhi dated 31.07.2006.The facts have been given in the impugned judgment and hence we are not repeating the same here, except wherever necessary.
2. The respondent herein-Sandeep Kumar applied for the post of Head Constable (Ministerial) in 1999. In the application form it was printed :
"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."
Against that column the respondent wrote : 'No'.
3. It is alleged that this is a false statement made by the respondent because he and some of his family members were involved in a criminal case being FIR 362 under Section 325/34 IPC. This case was admittedly compromised on 18.01.1998 and the respondent and his family members were acquitted on 18.01.1998.
4. In response to the advertisement issued in January 1999 for filing up of certain posts of Head Constables (Ministerial), the respondent applied on 24.02.1999 but did not mention in his application form that he was involved in the aforesaid criminal case. The respondent qualified in all the tests for selection to the post of temporary Head Constable (Ministerial). On 03.04.2001 he filled the attestation form wherein for the first time he disclosed that he had been involved in a criminal case with his tenant which, later on, had been compromised in 1998 and he had been acquitted.
5. On 02.08.2001 a show cause notice was issued to him asking the respondent to show cause why his candidature for the post should not be cancelled because he had concealed the fact of his involvement in the aforesaid criminal case and had made a wrong statement in his application form. The respondent submitted his reply on 17.08.2001 and an additional reply but the authorities were not satisfied with the same and on 29.05.2003 cancelled his candidature.
6. The respondent filed a petition before the Central Administrative Tribunal which was dismissed on 13.02.2004. Against that order the respondent filed a writ petition which has been allowed by the Delhi High Court and hence this appeal.
7. The learned counsel for the appellants has submitted that the respondent should have disclosed the fact of his involvement in the criminal case even if he had later been acquitted. Hence, it was submitted that his candidature was rightly cancelled.
8. 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.
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.
9. 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.
10. 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. Then 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 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 Vs. Crown Office, (1970) 2 Q.B. 114 ] In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. 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 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.
13, For the reasons above given, this Appeal has no force and it is dismissed. No costs.
9. In Ram Het Meenas case(supra), the petitioner successfully cleared the selection process for appointment as a Constable Driver under CISF. On account of his conviction for an offence punishable under Section 326 IPC and release on probation, the petitioner was intimated that the appointing authority found him unsuitable for service in CISF, vide order dated 13.1.2009. In the said case, relying on the decision in Government of NCT of Delhi & Anr vs. Robin Singh, 171 (2010) DLT 705 (DB), in which the petitioner was convicted of offences punishable under Sections 323, 504 and 506 IPC, the Honble High Court of Delhi directed the respondents to reconsider the candidature of the petitioner in the light of the law laid down in Robin Singhs case (supra).
10. In Rajesh Kumars case (supra),the petitioner was an accused for commission of offences under Sections 323 and 324 read with Section 34 IPC and the criminal case ended in his acquittal on compromise. The Honble High Court of Delhi set aside the Tribunals order as well as the order issued by the respondents canceling the candidature of the petitioner for the post of Constable (Executive)Male and directed the respondents to consider the case of the petitioner for appointment, subject to his complying with the other requirements/formalities and otherwise being suitable.
11. In Naveen Kumar Mandiwals case (supra), the respondent had applied for the post of Constable (Executive)Male in Delhi Police. He appeared in the selection process and was duly selected for the aforesaid post. On the basis of the said selection, the respondent was allowed to join the duties with effect from 2.1.2010.While the respondent was working in the aforesaid position, it came to the notice of the Commissioner of Police that at the time of making application for the post of Constable (Executive) Male, the respondent was facing trial in FIR No.54/2007 dated 13.4.2007 under Sections 143, 341 and 323 IPC. The respondent had not given this information at the time of making the application. A show-cause notice was issued to the respondent as to why his services be not terminated under Rule 5(1) of the Central Civil Services (Temporary Service) Rules,1965. The respondent gave his reply to the said show cause notice. However, it was not treated as satisfactory and the services of the respondent were terminated invoking the aforesaid provision. Challenging the order of the petitioner, the respondent approached the Tribunal seeking quashing of the termination order. The Tribunal allowed his O.A. and directed his reinstatement in service. The writ petition filed against the Tribunals order was dismissed by the Honble High Court.
12. In Anoop Kumars case (supra), the applicant in his application form for the post of Constable in Delhi Police disclosed that a criminal case under Sections 308 and 325 read with Section 34 IPC was registered against him and pending trial. He was provisionally selected for the said post. Subsequently, a show-cause notice was issued to him for cancellation of his candidature on the ground that he was acquitted of the charge since witnesses turned hostile and that it was not an honourable acquittal. The applicants reply was not found convincing and his candidature was cancelled. The Tribunal allowed the O.A. and directed the respondents to offer appointment to the applicant for the post of Constable, if he might otherwise be entitled to.
13. In the instant case, the applicant is facing trial in the criminal case for offences under Sections 323, 341 and 506 read with Section 34 IPC, which arose out of a scuffle among the young boys. The offences alleged against the applicant are not serious ones and are non-cognizable and compoundable. He duly disclosed the same in the attestation form. Considering the facts and circumstances of the case in the light of the decisions of the Honble Supreme Court and the Honble High Court of Delhi, as well as the O.Ms. dated 2.7.1982 & 7.6.1983 (ibid) and the order dated 1.2.2012 (ibid), issued by the Government of India, Ministry of Home Affairs, we have no hesitation to hold that the impugned order/letter dated 31.1.2013 (Annexure A) issued by respondent no.2 rejecting the candidature of the applicant for the post of Vehicle Mechanic (AFV) in 505 Army Base Workshop, is unsustainable and liable to be quashed.
14. In the result, the Original Application is allowed. The impugned order/letter dated 31.1.2013 (Annexure A) issued by respondent no.2 is quashed. Direction is issued to the respondents to offer appointment to the applicant in the post of Vehicle Mechanic (AFV), 505 Army Base Workshop, within a period of three months from today. No order as to costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN