Central Administrative Tribunal - Delhi
Pradeep Kumar vs Govt. Of Nct Of Delhi on 5 February, 2010
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.2473/2009 This the 5th day of February 2010 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Pradeep Kumar (Roll No.504442) Recruit Const. (Ex.) in Delhi Police s/o Shri Vedpal Singh Nagar R/o Vill Sadat Nagar Ikla Post Dasna, Distt. Ghaziabad, UP ..Applicant (By Advocate: Shri Anil Singal) Versus 1. Govt. of NCT of Delhi Through Commissioner of Police Police Head Quarters IP Estate, New Delhi 2. Dy. Commissioner of Police Recruitment, New Police Lines Kingsway Camp, Delhi Delhi Transport Corporation ..Respondents (By Advocate: Shri Nitesh Kumar for Ms. Avnish Ahlawat) O R D E R
Shri Shanker Raju:
Cancellation of candidature as Constable (Executive) in Delhi Police by an order dated 4.8.2009 is the grievance of the applicant.
2. Applicant while below the age of 18 years and above 16 years was allegedly involved in a criminal case FIR 55/02 dated 12.2.2002 under Section 147/323/504/307 IPC. He was acquitted on 10.11.2006. Applicant, who had applied for the post of Constable (Executive) pursuant to notification, disclosed the factum of criminal case and his acquittal in the application and attestation form.
3. A show cause notice issued to the applicant on 20.7.2009 proposing cancellation of candidature when responded to, resulted in the impugned order, which gives rise to the present OA.
4. At the outset, learned counsel for applicant states that his claim, in all fours, is well covered by a decision of coordinate Bench of this Tribunal in Satya Narayan Meena v. Union of India through Secretary & others (OA-1007/2007) decided on 23.10.2007 whereby disqualification for appointment has been found to be obliterated and directions were issued to appoint the applicant therein in service.
5. On the other hand, this fact of applicant being juvenile has not been controverted and rather admitted in paragraph 4.2. It is stated by learned counsel for respondents that every case is decided by considering the facts and circumstances of each case. It is stated that the character of the applicant and his involvement in criminal case made him unsuitable for disciplined force, like Delhi Police, and his attitude as a person towards the life of others is reflected.
6. We have carefully considered the rival contentions of the parties and perused the records.
7. In fact, in the Juvenile Justice Act, 1986 the juvenile was considered upto 16 years of age but in subsequent amendment as Juvenile Justice (Care and Protection of Children) Act, 2000 age upto 18 years was raised, which is effected from 1.4.2001. In the above view of the matter, the Apex Court in Jameel v. State of Maharashtra, (2007) 11 SCC 420 discussed the impact of Juvenile Justice Act with the following observations:-
14. The applicability of the provisions of Section 20 of the 2000 Act was considered by a Constitution Bench of this Court in Pratap Singh v. State of Jharkhand and Another [(2005) 3 SCC 551], wherein, inter alia, it was held :
"31. Section 20 of the Act as quoted above deals with the special provision in respect of pending cases and begins with non-obstante clause. The sentence "notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on date of which this Act came into force" has great significance. The proceedings in respect of a juvenile pending in any court referred to in Section 20 of the Act are relatable to proceedings initiated before the 2000 Act came into force and which are pending when the 2000 Act came into force. The term "any court" would include even ordinary criminal courts. If the person was a "juvenile" under the 1986 Act the proceedings would not be pending in criminal courts. They would be pending in criminal courts only if the boy had crossed 16 years or girl had crossed 18 years. This shows that Section 20 refers to cases where a person had ceased to be a juvenile under the 1986 Act but had not yet crossed the age of 18 years then the pending case shall continue in that Court as if the 2000 Act has not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, shall forward the juvenile to the Board which shall pass orders in respect of that juvenile.
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34. This Rule also indicates that the intention of the Legislature was that the provisions of the 2000 Act were to apply to pending cases provided, on 1.4.2001 i.e. the date on which the 2000 Act came into force, the person was a "juvenile" within the meaning of the term as defined in the 2000 Act i.e. he/she had not crossed 18 years of age.
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(b) The 2000 Act would be applicable in a pending proceeding in any court/authority initiated under the 1986 Act and is pending when the 2000 Act came into force and the person had not completed 18 years of age as on 1.4.2001."
15. The appellant was above eighteen years of age on 01.04.2001. The 2000, therefore, cannot have any application whatsoever in the instant case.
8. Further, in Ranjit Singh v. State of Haryana, (2008) 9 SCC 453, the above proposition has been relied upon. Also in Amit Singh alias Chintu & another v. State of U.P., (2006) 9 SCC 522, the Juvenile Justice (Care and Protection of Children) Act, 2000 has been relied upon.
9. With the aforesaid backdrop, applicant on 12.2.2002, who at the time when the FIR was registered against him keeping in light his date of birth, i.e., 18.2.1985, was below 18 years of age but more than 16 years of age. As such, he was juvenile as per Juvenile Act 2000. In this view of the matter, the following observations in Satya Narayan Meenas case (supra) would apply to the applicant herein:-
18. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties as noted above. We are of the firm view that once the very Object of the Act of 2000 is to, inter-alia, rehabilitate the child in conflict with law and to minimise the stigma, and when a provision has been made by Legislature to achieve this object and further when there is a conscious distinction made between a juvenile and adult in conflict with law, the provisions of Section 12 of the Act of 1958 even though para material to sub section 1 of Section 19 of Act, of 2000, and the judicial precedents that have been cited by Mr.Luthra, would not be of much relevance. Once, a juvenile in conflict with law has necessarily to be dealt with under the provisions of Act of 2000, it is obvious that Act of 1958 would apply to adults.
19. We have gone through the statement of Objects and Reasons of 1958 and the same are only to release the Offenders on Probation for good conduct, instead of sentencing them to imprisonment. In several states, there were no separate probation laws and even in the States where there were number of laws they were not adequate to meet the present requirements. Meanwhile, there was increasing emphasis on the reformation and rehabilitation of the offender as useful and self reliant member of society without subjecting him to the deleterious effects of jail life. It is in this background that Central law on the subject came into being which may be uniformly applicable to all the states. The object of the Act was further to admonish in respect of certain specific acts and to empower Courts to release them on probation if they are found to be less than 21 years of age. The sole object of the Act of 1958, appears to be an endeavour to reform a person who is not a juvenile but below age of 21 years, with regard to some offence so as not to send him to jail where he may mix with hardened criminals and become menace to the society. The object of the Act, does not reflect rehabilitation of an offender.
19. Having seen different objects of the two Acts i.e. 1958 and 2000, it is now time to see if there is any material difference between Section 12 of the Act of 1958 and Act of 19 of 2000. Same read thus:
Section 12 of the Act of 1958 reads thus, 12. Removal of disqualification attaching to conviction.Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:
Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.
Section 19 of the Act of 2000, reads thus :
(1) Notwithstanding anything contained in any other law, a juvenile who has committed an offence and has been dealt with under the provisions of this Act shall not suffer disqualification, if any, attaching to a conviction of an offence under such law.
(2) The Board shall make an order directing that the relevant records of such conviction shall be removed after the expiry of the period of appeal or a reasonable period as prescribed under the rules, as the case may be.
Section 12 of the Act of 1958 and Section 19 (1) of the Act of 2000 do appear to be pari materia. There is, however, substantial difference between the two. There is no sub-section (2) in the Act of 1958, like sub-section (2) of section 19 of Act of 2000. Sub-section (2) of Section 19 of the Act of 2000 provides that record of conviction of a delinquent has to be removed after expiry of period of appeal or reasonable period as prescribed in the rules, as the case may be. Certainly, if the record of conviction has to be removed within the period of appeal or reasonable time, it would certainly mean that the conviction of a juvenile would not come in his way in securing a government job, as otherwise there was no question of removing the record as such.
20. In the context of the distinction between two Acts, the judicial precedents relied upon by Mr. Luthra, have to be analyzed. In so far as judgment of the Honble Supreme Court in Delhi Administration Vs. Sushil Kumar (supra) is concerned, it was not a case where Sushil Kumar may have been dealt with under the provisions of either of the two Acts mentioned above. It was a simple case where having successfully competed for the post of constable, the department on verification had found that he was involved in a case under sections 304, 324/34 read with section 324 of IPC, wherein even though he was acquitted, but the concerned authorities had found him not a fit person to be appointed on the post of Constable. Honble Supreme Court observed that it is the conduct and character of a person seeking appointment to service, which is relevant and not the result of a criminal case.
As mentioned above, there was no discussion in this case with regard to the effect of provisions as contained in Section 12 of the Act of 1958 or Section 19 of the Act of 2000. In Harichand vs. Director of School Education (supra), it was indeed a case where, Harichand was removed from service on account of involvement in a case under section 408 of IPC, and even though sentenced, in first instance, he was given benefit of section 4 of the Act of 1958. In this case, however, Honble Supreme Court observed that Section 12 would apply only in respect of disqualification that goes with the conviction in the law which provides for the offence and its punishment. The plain meaning of word disqualification if any, would be attaching to conviction of an offence, under such law. Under the provisions of the Act of 1958, disqualification as interpreted by the Honble Supreme Court is attaching a conviction for an offence under law as made under the Act of 1958. The position is not so insofar as the Act of 2000 is concerned. There is no provision in the Act of 1958 which may suggest that conviction will not be a disqualification for securing a Government job, whereas under the Act of 2000, keeping in view the Objects and Reasons of the Act and sub-section (2) of Section 19 thereof, it has to be held that conviction would not debar a juvenile from securing a Government job. As mentioned above, one of the main objects of the Act of 2000 is to rehabilitate a juvenile in conflict with law and reduce the stigma of conviction. Further, sub-section (2) of Section 19 of the said Act would clinch the issue beyond any pale of controversy. We are of the considered opinion that if the record of conviction of juvenile has to be removed, and that too within the period of limitation or within a reasonable time which shall not be more than six months to a year, after his conviction the same could be only with the object that the conviction of a delinquent would not come in his way in securing a government job. Any other interpretation of sub section 2 of Section 19 of the Act of 2000 would not only run counter to the Object and Reasons of Act of 2000 but also plain and simple interpretation of sub section 2 of Section 19 of Act of 2000. The judicial precedents relied upon by Mr. Luthra, referred to above, are distinguishable and would not apply to a case of the juvenile, who has been dealt with under the provisions of the Act of 2000. Insofar as the judgment of this Tribunal in Naresh Kumar Meena (supra) is concerned, it adopts similar reasons as given by the two decisions of the Honble Supreme Court as mentioned above.
21. Before we may part with this order, we would like to mention that the nation and the society owe a duty to rehabilitate those who might have fallen on bad ways at some weak moment of their lives. If reformed, the stigma of conviction, particularly when it may be for an offence which is petty, should not continue unabated for the rest of the life of a person. It is not unknown that when reformed, either because of reformatory measures that may be taken or when ones own conscious may guide one to completely change his ways, some people not only follow the ordinary guidelines or principles as settled by the society, but become totally pious and excel in all walks of life. It would be a travesty of justice if the law and the society may not give any chance to such people to come into main stream and contribute in advancement of the nation. We are, in the present case, however, concerned only with those to whom the law consciously would like to rehabilitate. We are of the considered view that the Objects and Reasons of the Act of 2000 read with Section 19 thereof would clearly suggest the intention of the Legislature in not debarring a juvenile for securing a Government job for the rest of his life. We may only further mention that in the present case, the applicant was involved in three petty cases of theft twelve years prior when he was selected on the post of constable and was given in supervision to his father. It would be too iniquitous and unjust not to rehabilitate a juvenile who was of tender years at the time of the crime and may not be himself knowing what he was doing was wrong.
22. For the reasons as mentioned above, we quash the order, Annexure A-1 dated 6.12.2006 cancelling the candidature of the applicant and in consequence thereof direct the respondents to consider appointing him on the post of Constable, which has been kept vacant on the dint of the orders passed by the Honble High Court, as continued by this Tribunal till date. In the facts and circumstances of the case, costs of the litigation are made easy.
9. As such, in all fours, the claim of the applicant herein is covered by the above ratio. Resultantly, the OA is allowed. Impugned orders are set aside. Respondents are directed to consider appointing the applicant on the post of Constable (Executive) with all consequences in law, within a period of three months from the date of receipt of a copy of this order. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/