Madras High Court
H.Senthil Kumar vs State Rep.By Its on 15 February, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.02.2012 CORAM: THE HONBLE MR. JUSTICE K.CHANDRU W.P.No.3635 of 2012 & M.P.No.1 of 2012 H.Senthil KUmar .. Petitioner Vs. 1. State rep.by its Director General of Police Head Office Chennai 600 004 2. Tamilandu Uniformed Recruitment Board Rep.by its Inspector General of Police/ Member Secretary Chennai 2 .. Respondents Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus calling for the records relating to the order of the 1st respondent in Rc.No.399/54445/ Rect.I(2)/2011 dated 19.05.2011 and quash the same and consequently direct the 1st respondent to accept, scrutinize and process the application submitted by the petitioner and appoint the petitioner to the post of II Grade Police Constable. For Petitioner :: Mr.P.Hari Krishnan O R D E R
The petitioner is an aspirant for the post of Grade II Police Constable and he went for the selection for the year 2008-2009. Subsequently when his application was rejected by an order dated 23.4.2010, he filed a Writ Petition before this Court being W.P.No.11912 of 2010. The said Writ Petition came to be dismissed by this Court vide order dated 21.6.2010. In that Writ Petition, a reference was made to the Full Bench judgment of this Court in Manikandan vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board reported in 2008 (2) CTC 97. This Court referred to the amendment made under Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules and held that involvement in criminal case, even if it ends in acquittal by grant of benefit of doubt, would amount to having a criminal background.
2. It transpires that the petitioner, who was acquitted by giving benefit of doubt in C.C.No.1002 of 2008 by the learned Magistrate, Gingee vide judgment dated 20.1.2009, filed a Revision before this Court in Criminal Revision Case No.60 of 2011 under Section 397 of Cr.P.C. This Court by judgment dated 25.2.2011 after going through the trial court order found that it is a case of honourable acquittal and in paragraph 10, it was observed as follows:
"Therefore, this Court has no hesitation to make it very clear that the observation of the learned Judicial Magistrate, Gingee, in the order dated 20.1.2009 in C.C.No.207 of 2008 to the effect that in the interest of justice, the accused cannot be found guilty on the basis of the evidence of P.W.4 alone has construed to be an order of honourable acquittal as the learned Magistrate rejected the evidence of the other witnesses, P.Ws.1 to 3 in view of the infirmities and inconsistencies found in their evidence."
3. It is not clear as to why in the Criminal Revision , a reference was made to Explanation 2 to Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules in paragraph 6. Perhaps the purpose of the petitioner in moving the Revision was only to remove the observation made by the trial Judge and to make it to appear as if it is the case of honourable acquittal. Having obtained such an order, the petitioner is once again before this Court to contend that since he has been already honourably acquitted, there is no impediment for considering his case. It is with that view the petitioner approached the Department.
4. Subsequent to the representation made by the petitioner dated 28.3.2009, the 1st respondent has passed the present impugned order stating that apart from his getting honourably acquitted by this Court, it was stated that the trial court acquitted him only on the ground of benefit of doubt by an order dated 20.7.2009. Subsequent to the recruitment, police verification was made on 26.2.2010, which was countersigned by the Superintendent of Police. At the time when the verification was made on 26.2.2010, the judgment which is relied upon by the petitioner is not available with the respondent. Honourable acquittal came to be ordered on 25.2.2011. Therefore, the subsequent decision obtained by the petitioner would have no impact on the rejection made earlier. Apart from this, in paragraph 8 of the impugned order, it was stated as follows:
"But due to suppression of fact regarding his involvement in criminal case, he is not eligible for appointment to the post of Gr.II PC s per court orders mentioned in para 3 & 4."
5. Though the learned counsel for the petitioner contends that his client was not aware of criminal case, that was not believed because at the time when the verification was made pursuant to the attestation form sent by the petitioner, the judgment of the trial court was very much available and therefore the petitioner in his application has not disclosed such facts before the authorities.
6. The Full Bench judgment in Manikandan vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board reported in 2008 (2) CTC 97 which upholds the vires of explanation 2 to Rule 14(b) of the TNPSS Rules, also referred to another judgment of the Supreme Court in R.Radhakrishnan vs. Director General of Police and others reported in (2008) 1 SCC 660. In that case, in identical circumstances, where in the attestation form, the candidate does not disclose either the pendency of the criminal case or the past involvement in the criminal case. The Full Bench held that the suppression itself is the sufficient ground to deny the employment. It may be usefully referred to the paragraph No.35 of the Full Bench judgment and it reads as follows:
"35. The issue is now set at rest by the Apex Court in R. Radhakrishnan v. Director General of Police (2007(12) SCALE 539), which is the latest in this series of decisions. The Supreme Court has clarified the law on the point as follows:
10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosures and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Admn. v. Sushil Kumar1 wherein it was categorically held: (SCC p.606, para 3) 3. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted.
7. In the present case, it must also be noted that the petitioner's attempt to seek for revision only for the purpose of gaining entry into service, cannot be accepted.
8. The Supreme Court vide its judgment in State represented by CBI, Hyderabad vs. G.Prem Raj reported in 2010 (1) SCC 398 has held that the court, while acquitting an employee, cannot give any direction regarding his service matter. The petitioner attempted to move this Court with the Criminal Revision without any cause of action for moving such a revision. Therefore, the petitioner cannot make use of the subsequent observation made by this Court in the Criminal Revision. Certainly it will not bind on the authorities, who are employer to recruit candidates for the police force. The petitioner has also lost in the earlier round of litigation and that order has become final.
9. Under the circumstances, there is no case made out. Hence, the writ petition stands dismissed. No costs. The connected Miscellaneous Petition is closed.
ajr To
1. Director General of Police Head Office Chennai 600 004
2. Inspector General of Police/ Member Secretary Tamilandu Uniformed Recruitment Board Chennai 2