Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 15 November, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
i)O.A. NO. 551-PB of 2009 &
ii) O. A. No.635 - PB of 2010
Chandigarh, this the 15th day of November, 2010
CORAM:HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J)
HONBLE MR.KHUSHI RAM, MEMBER(A)
i)O.A. NO. 551-PB of 2009:
Karamjeet Singh, aged 29 years, son of Shri Baldev Singh, Resident of Village & Post office Tepla, Tehsil Rajpura, District Patiala.
APPLICANT
BY ADVOCATE: SHRI R.K.SHARMA
VERSUS
1. Union of India, through the Secretary to Government of India, Ministry of Home Affairs, New Delhi.
2. Chandigarh Administration through its Home Secretary, U.T. Secretariat, Deluxe Building, Sector 9, Chandigarh.
3. Deputy Inspector General of Police, Chandigarh, Police Head Quarters, Sector 9, U.T., Chandigarh.
4. Senior Superintendent of Police, Chandigarh, Police Headquarters, Sector 9, U.T., Chandigarh.
RESPONDENTS
BY ADVOCATE: SHRI ASEEM RAI
.
ii) O.A.No.635 - PB of 2010:
Dilraj Singh Bajwa S/o S. Narinder Singh Bajwa, R/o H.No.7, 4/4, Gali No.8, Kot Baba Deep Singh, O/S Chatiwind Gate, Amritsar.
APPLICANT
BY ADVOCATE: SHRI VISHAL GUPTA
VERSUS
1. Union of India through its Secretary to Government of India, Ministry of Home Affairs, North Block, New Delhi.
2. Assistant Director, Intelligence Bureau, Post Box No.41, HPO Amritsar.
RESPONDENTS
BY ADVOCATE: SHRI DEEPAK AGNIHOTRI
ORDER
HONBLE MR. JUSTICE S.D.ANAND, MEMBER(J):-
Apart from the similarity of facts, the absolute commonness of the law point involved in these two cases persuades us to record a common judgment. For enabling appropriate appreciation of the controversy, it would be useful to indicate the facts of both the cases in the first instance.
Facts in O.A. NO. 551-PB of 2009:
2. In the month of August 2007, Chandigarh Administration (hereinafter referred to as Respondent No.2) invited applications for recruitment to 270 posts of Constables. In response thereto, the applicant submitted an on-line application (Annexure A-4).
3. As a first step of the selection process, the Physical Measurements Test and Physical Efficiency Test were conducted by the respondents on 22.11.2007. The applicant cleared that hurdle. Thereafter, the applicant also cleared the written test conducted on 20.7.2008. He qualified the interview (held on 28.7.2008) as well.
4. As per Para (XI) of the provisions of the Standing Order No.36/2007, issued by the Inspector General of Police, a Selection List (out of the Final Merit List) is issued according to the vacancies advertised. A Waiting List, upto 10% of the vacancies, is also issued. The period of validity of that Waiting List is six months with effect from the date of issuance of appointment letters to the selected candidates. In this case, the Merit/ Waiting List of the successful candidates was declared on 31.7.2008, vide Annexure A-5. The name of the applicant appeared therein at Sr.No.24 in the main list of the Scheduled Caste Male category.
5. Thereafter, the applicant was called upon to fill up an Attestation Form to enable the respondents to obtain Police Verification. Column No.11 thereof required the appointee to indicate whether he had ever been involved in a criminal case anywhere in India. In terms of the phraseology used in that column, the appointee has to give the details of the case if the response to the first set of the poser is in the affirmative. Against that column, the applicant indicated that he had been prosecuted in case FIR No.169 dated 16.12.1998. He also indicated in the column thereunder that he had been acquitted of the charge, vide judgment dated 17.5.2001 (Annexure A-6) of the Court of Learned Additional Chief Judicial Magistrate, Chandigarh.
6. It transpired subsequently that the contemporary selectees had been sent to the RTC for training but the applicant did not get any intimation to report for duty. For ascertainment of the cause for which the applicant had been denied the offer of appointment, a representation dated 17.12.2008 (Annexure A-7) was given by him. Thereupon, Respondent No.4 granted an order dated 15.1.2009 (Annexure A-1) that the appointment order had not been issued to the applicant on account of the fact that he had been prosecuted in the case aforementioned. The order noticed that though the applicant had been acquitted in that case, the offer of appointment could not be made to him as the post of Constable in the police is a sensitive post. The order further announced that the police being a disciplined force, would require persons of good character and suitable for such service and as such applicant cannot be appointed as Constable in Chandigarh Police.
7. The office of Respondent No.2, vide Annexure A-2, also informed the applicant that the offer of appointment had not been made to him on account of his involvement in the case aforementioned.
8. One Shri Anil Yadav, who had been selected for appointment in Delhi Police and who was not dispatched for training on account of the pendency of a case against him, took up the matter with the higher authorities which (authorities), on reconsideration, allowed him to join training. Based upon drawl of parallel, the plea raised by the applicant herein, thus, is that the denial of appointment to him on account of his involvement in the case FIR No.169 dated 16.12.1998 is legally unsustainable, particularly in view of the fact that he had been acquitted of the charge in that case.
9. In the course of the O.A. itself, the applicant placed reliance upon the decision of the Punjab & Haryana High Court in CWP No.18 of 2006 in the case titled DINESH KUMAR VS. STATE OF HARYANA & OTHERS. In that case, the appointee had been denied appointment on account of his involvement in a criminal case. The appointee had not made a mention of the pendency of that criminal case against him. The Punjab & Haryana High Court quashed the denial (of appointment) order and directed the DGP, Haryana to issue appointment letter to him. That decision was challenged in an SLP (Civil Appeal No.84 of 2008, arising out of SLP ( C ) No.1840 of 2007). The Apex Court did not interfere with the order passed by the High Court.
10. The respondents No.1 to 4, in the course of joint short reply, reiterated the correctness of the stance in denying appointment to the applicant. It was averred that the respondent/ administration has now taken a conscious decision that persons with doubtful credentials/ history will not be offered appointment in a disciplined force such as Chandigarh Police. In the context of the averment aforementioned, it was pointed out that the applicant and his two co-accused in that case, were all residents of police lines sector 26, Chandigarh. and were wards/ relatives of police personnel. The plea raised thereby is that the ultimate finding of acquittal notwithstanding, the mere involvement of the applicant in a case of that category is a reason valid enough for the respondents/ Police Department to refuse him appointment as a constable. Facts in O.A. NO. 635-PB of 2010:
11. The Intelligence Bureau, Ministry of Home Affairs, Government of India invited applications from eligible Indian citizens for appointment to the post of Junior Intelligence Officer, Grade-II/ Motor Transport, Group-C, Non-Gazetted, Non-Ministerial. The relevant appointment notice appeared in the Employment News in its issue dated 23.5.2009 to 29.5.2009 (Annexure A-4 therein).
12. The applicant herein submitted an application for appointment to the post aforementioned.
13. The respondents invited the applicant, vide Annexure A-5 dated 18.8.2009, to participate in the Driving Test-cum-Interview which was held on 8.9.2009. Further thereafter, the respondents called upon the applicant (vide letter, Annexure A-7 dated 14.1.2010) to fill up three sets of Attestation/ SSQ Forms. The needful was done by the applicant. In the course thereof, the applicant indicated that he had been prosecuted in case FIR No.1 dated 1.1.2007, registered at Police Station, Civil Lines, Amritsar which had ended in an acquittal.
14. The Amritsar Police forwarded a satisfactory verification report dated 21.4.2010 to Respondent No.2. However, no appointment letter came to be issued to the applicant. It transpired that the offer of appointment had been denied to the applicant on account of his having been prosecuted in the case FIR No. 1 dated 1.1.2007 under Sections 336, 506 and 34 IPC and 27, 54 and 59 of the Arms Act.
15. The applicant therein has a grievance that appointment to the post aforementioned could not have been validly denied to him in view of the fact that the police had submitted a satisfactory verification report in his favour and further because he had been acquitted of the charge in the case aforementioned.
16. Respondents 1 & 2 therein resisted the plea raised on behalf of the applicant and averred as under:-
The appointment to the post depends on various factors, inter alia, on successful completion of Character & Antecedents verification to ensure that the candidate to be appointed meets the ethos of IB being a premier Intelligence organization dealing in sensitive national security matters. During the course of inquiry from the field unit at Amritsar, it was revealed that the applicant was facing Criminal Case u/s 336/506/34 IPC & 29/54/59 Arms Act in the court of JCM Amritsar. Applicant was however, subsequently acquitted by the court on technical grounds as the prosecution witness turned hostile. In view of the adverse traits reported against the applicant, he was not found suitable for appointment to the post of JIO-II/MT, as he did not meet the ethos of the organization.
17. We have heard the learned counsel for the parties and have examined the pleadings as well as the documentation available on record.
18. TO BE OR NOT TO BE has always been a perennial dilemma for the human kind ever since the expressional nomenclature came into being. The scenario faced by the competent authorities in these two cases, was exactly like that.
19. Faced with an identical factual and legal scenario, a Division Bench of the Punjab and Haryana High Court in CWP No.5908-CAT of 2003, titled UNION TERRITORY, CHANDIGARH ADMINISTRATION & OTHERS VS. CENTRAL ADMINISTRATIVE TRIBUNAL, CHANDIGARH BENCH & ANOTHER and connected CWP Nos.5909-CAT of 2003 and 7754-CAT of 2004 summed up the poser as under:-
Whether a candidate who has a history of a criminal case against him, which might have resulted in his acquittal is entitled to wield a State batten is the question involved in the present set of writ petitions.
20. The Division Bench also indicated the ambit of the judicial review in a matter wherein the Court is called upon to analyze the view obtained by the competent authority in determining the suitability of a candidate for being appointed as a member of the disciplined force (Chandigarh Police in O.A. NO. 551-PB of 2009 and an officer of the Intelligence Bureau in O.A.No.635 - PB of 2010).
21. While distinguishing the authorities relied upon by the respondents to the CWPs aforementioned, the Division Bench placed implicit reliance upon the judgment rendered by the Apex Court in DELHI ADMINISTRATION VS. SUSHIL KUMAR : (1996) 11 SCC 605 which was quoted, with approval, in a later three-judges Bench judgment in UNION OF INDIA VS. KALI DASS BATISH & ANOTHER : (2006) 1 SCC 799 and also in a subsequent judgment reported as R.RADHAKRISHNAN VS. DIRECTOR GENERAL OF POLICE AND OTHERS : (2008) 1 SCC 660 to uphold the view denying appointment.
22. Before proceeding further, we would like to extract hereunder the observations made by the Apex court in Sushil Kumars case (supra):-
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 physically found 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. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing Authority, therefore, has rightly focused this aspect and found him not desirable to appoint him to the service.
23. The facts available in Sushil Kumars case were noticed by the Apex Court as under:-
10. Indisputably, the appellant intended to obtain appointment in a unformed 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 in other services. Application for appointment and the verification roll were both in Hindi and 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 had not made such disclosure and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Admn. V. Sushil Kumar, (1991) 11 SCC 605, 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 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.
24. While quoting, with approval, the judgment in Sushil Kumars case, the three-judges Bench(of the Apex Court) in UNION OF INDIA VS. KALIDAS BATISH (supra) observed as under:-
It has been found that the view taken by the Appointing Authority in the case of constable not to appoint a person as a constable cannot be said to be unwarranted nor could be interdicted in the judicial review.
25. Having noticed the law laid down by the Apex Court in the above-mentioned three cases, we would proceed to recall the facts in the present two cases.
26. Applicant (in O.A.No.551-PB/2009) Karamjit Singh had cleared the entire selection process (the first step thereof being the Physical Measurements Test and Physical Efficiency Test and the other being the written test, followed by the interview). He was denied appointment only because he had mentioned in Column No.11 of the Attestation form that he had been involved in case FIR No.169 dated 16.12.1998 which, ultimately, ended in acquittal vide judgment dated 17.5.2001 of the Court of Learned ACJM, Chandigarh.
27. In the case of Dilraj Singh Bajwa, the applicant (in O.A. No.635-Pb of 2010), was denied appointment because of an averment made by him in the course of the SSQ (Special Security Questions) Form to the effect that he was involved in case FIR No.1 dated 1.1.2007 u/s 336, 506, 34 IPC and 27, 54, 59 of Arms Act, but had been acquitted of the charge. The applicant was a candidate for appointment to the post of Junior Intelligence Officer Gr.II/ MT.
28. It was vehemently argued on behalf of the applicant in both the cases that the verdict of acquittal completely obliterated the stigma attached to the applicants because of their involvement in the indicated FIRs. The plea raised thereby was that upholding the view obtained by the competent authority would amount to allowing to them a placement of supremacy over the judicial verdict. Reliance, in support of the advocated view, was placed upon a judgment rendered by a Division Bench of the Principal bench of the Central Administrative Tribunal in SHYORAM YADAV VS. GOVT. OF NCT OF DELHI & ANOTHER, O.A. No.1450 of 2005 decided on 20.1.2006.
29. We have given our careful thought and consideration to the point of view canvassed and the judicial pronouncements relied upon on behalf of the applicants. We find the plea raised to be completely denuded of merit and the judgments relied upon to be thoroughly distinguishable on facts.
30. In Shyoram Yadavs case (supra) the facts were as under:-
(i) The applicant therein had been recruited as a Constable in the year 1988. He was prosecuted in case FIR dated 13.7.1994. He faced corruption charges therein. He was a candidate for appointment, by promotion, to the post of Sub Inspector (Executive) which (appointment) is governed by Rule 7 of the Delhi Police (Appointment & Recruitment) Rules, 1980. 50% of the posts therein are to be filled up under the promotion quota; while 10% posts are to be filled up on the basis of the Limited Departmental Examination to be held by the SSC from amongst the Constables, Head Constables and Assistant Sub Inspectors with minimum five years of service. The applicant therein was a candidate for the promotion quota. Vide order dated 26.11.1996, the Commissioner of Police informed the applicant that his case for issuance of an appointment letter had been retained in abeyance till the finalization of the criminal case pending before the competent court of criminal jurisdiction. The applicant therein came to be acquitted by the Learned Sessions Judge vide judgment dated 14.5.2002 by giving him (and another prosecuted with him) the benefit of doubt. In the meantime, the applicant had been reinstated in service, vide order dated 26.2.2004, without prejudice to the departmental action. Further, vide order dated 1.6.2004, it was decided that no further departmental action would be taken against him in the absence of any material on record. The period of suspension was ordered to be treated as spent on duty for all purposes.
(ii) The applicant filed an O.A. (No.2433/04). The order passed by the Commissioner of Police was set aside by the Tribunal vide order dated 2.3.2005 by holding that no reason or material had been indicated in the order which could render the applicant therein unfit for appointment. The respondents therein were directed to reconsider the case of the applicant and pass a reasoned order.
(iii) Vide order dated 6.6.2005, the competent authority held the applicant therein unfit for appointment to the post of Sub Inspector (Executive) by holding that his unethical and immoral conduct was reprehensible and not expected of an officer of Sub Inspector Level and he was, thus, not fit to be entrusted with higher responsibility in a disciplined force.
31. That judicial pronouncement cannot be applied to the two cases before us because Shyoram Yadav (applicant in the case aforementioned) was already a member of the police force and he was seeking promotion to the post of Sub Inspector (Executive) in the departmental promotion quota. Though he had been prosecuted on a charge of having been caught red-handed while accepting illegal gratification. it was not the acquittal which weighed with the competent authority in denying appointment to him. It was the conduct or the character of a candidate which would be taken to be relevant in the context. The actual result (of the prosecution)would not buttress the plea raised for appointment. In that context, we may extract hereunder the observations made by the Principal Bench in Shyorams case with advantage:-
44. In the above conspectus, the reasons recorded by the Competent Authority are found to be its personal reasons; on private information and on its ipsi dixit whereby it has been concluded that the applicant was present in the house of complainant at the time of raid, the aforesaid finding does not draw support from any material adduced or established by the Special Judge who even went on saying that the presence cannot be established and was not established. This is the only ground to deny the applicant his appointment to the post of Sub Inspector (Executive) and to establish his unfitness. Unethical and immoral conduct is reprehensible and is an unbecoming for an appointment of a person in disciplined force like Delhi Police yet before accusation, there has to be a definite finding based on credible material. Mere suspicion and surmises would not be sufficient compliance and rather talks of arbitrariness in the action of the quasi-judicial authority. The Commissioner of Police has not at all applied his mind to the fact that once the applicant on acquittal as a Constable has not been proceeded against departmentally and when on examination of judgment of the Special Court no incriminating material has been found against him then assignment of more responsibility of higher rank would not transform this finding of no material into the suspicion of involvement of the applicant and towards his immoral conduct which would be prejudicial to his performance of duties on appointment as Sub-Inspector (Executive) in Delhi Police. If this reasoning is examined in a judicial review by applying the test of a common reasonable prudent man then if as a Constable the applicant has been found fit without any immoral conduct to be continued as a Constable then the same conduct forming impediment to his appointment to a higher rank merely because he has to supervise other officials and to undertake investigation cannot be a logical and rational conclusion as the Constable in the hierarchy of service even rises to the rank of Sub-Inspector where he has to undertake investigations and supervise the lower staff. If the stand of the respondents is taken as a gospel truth then would they dismiss the applicant or find him unfit when he reaches the rank of Sub-Inspector in Delhi Police. This clearly shows that as a quasi-judicial authority, the discretion to appoint the applicant has not been exercised in a judicious manner but on suspicious and surmises without any reasonableness. (underlining for emphasizing the reasoning which weighed with the Tribunal while allowing the Original Application aforementioned)
32. Further, in that case it was found as a fact that there was no material on record to justify the departmental action against the applicant. That finding of act had been recorded by one DCP. It was another DCP who opted to take a contrary view. The view taken by the latter DCP was quashed by holding that he was estopped from taking a contrary view. That authority does not, thus, cement the advocated plea.
33. In view of the law laid down by the Apex Court in the above-referred cases viz:
i)DELHI ADMINISTRATION VS. SUSHIL KUMAR : (1996) 11 SCC 605;
ii)UNION OF INDIA VS. KALI DASS BATISH & ANOTHER : (2006) 1 SCC 799; and
iii)R.RADHAKRISHNAN VS. DIRECTOR GENERAL OF POLICE AND OTHERS : (2008) 1 SCC 660 and also the view taken by two Divisions Benches of the Punjab & Haryana High Court, one in Krishan Kumar vs. State of Haryana (supra) case and the other in CWP No.5908-CAT of 2003 and the connected Writ Petitions decided by a common order dated 14.3.2008, we have no reservations in holding that we must refrain from invalidating the view obtained by the competent authority in declining to appoint the applicants to the respective posts/ forces.
34. On the basis of the discussion in the preceding paras, we feel justified in culling out a well-considered opinion that, in the absence of there being any averment qua want of bonafides or the decision making process being based upon irrelevant and inadmissible consideration (expressional extraction from the Division Bench judgment dated 29.3.2008), we have to give it to the competent authority to decide upon the suitability or otherwise of an aspiring candidate for appointment to a disciplined segment of the public service. We, in respectful accord with the view obtained by the Division Bench, hold that mere acquittal in a criminal case would not entitle a candidate to press a claim for appointment. Any view to the contrary would facilitate subversion of the competence and moral conscientiousness required for an appointment of that category. It would be particularly so if the candidate is aspiring to be a part of a Force charged with the responsibility of maintenance of law and order in a Society which, by virtue of it being a part of democratic and secular polity, consists of people of all hues, economic and otherwise. These observations shall apply with equal vigour to an appointment to the Intelligence Agencies as well.
35. The presumption, thus, would be that the Competent Authority has exercised the discretion (in denying appointment) in a fair manner. If, however, there is proof of either malafides or the Competent Authority having been actuated by irrelevant or inadmissible considerations in deciding upon the matter, the Court shall step into and invalidate the impugned order. At the same time, the mere acquittal of the applicant in a criminal prosecution shall not entitle him to ask for a compulsive direction to the Competent Authority to appoint him. The nature of allegations and other attendant circumstances of the prosecution and the finding of exoneration could be competently taken by the Competent Authorities into consideration to decide upon the suitability of the desirous candidate for appointment to a disciplined force like the Police and the Intelligence Bureau.
36. The formulation of law by the Apex Court in State of Haryana vs. Dinesh Kumar (supra) turned upon the interpretation of that constitutes arrest and custody in relation to a criminal proceeding. Apart therefrom, the applicant in this case had applied for appointment as a driver in the Police force. As against it, applicant in O.A.No.551-PB of 2009 had sought an appointment to the police as a Constable (in the law enforcement segment thereof) and the applicant in O.A. No.635-PB of 2010 had applied for an appointment to the Intelligence Bureau.
37. It will be pertinent to mention here that the applicants before this Tribunal faced altogether different allegations. Applicant Karamjeet Singh who was apparently a ward of a serving member of the police, going by the contact address given by him in the application, faced an allegation of having committed an offence under Section 392 IPC, besides certain other offences under the Indian Penal Code. In the other O.A., the applicant was alleged to have fired from a double barrel gun, after having held out a threat to the complainant therein.
38. It is, thus, apparent that the two judicial pronouncements, relied upon by the applicants, are not applicable to the facts and circumstances of these two cases.
39. These OAs being completely denuded of merit shall stand dismissed..
40. There shall be no order as to the costs of the cause in the facts and circumstances of these cases.
41. A copy of this order be placed on connected file.
(KHUSHI RAM) (JUSTICE S.D.ANAND)
MEMBER(A) MEMBER(J)
Dated: November 15 , 2010
`bss
25
(OA No. 551-PB/09 & 635-PB/10)