Punjab-Haryana High Court
Ranbir Singh vs State Of Haryana & Ors on 24 December, 2014
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
RA No.608 of 2014 in CWP No.4490 of 2013
:1:
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Review Application No.608 of 2014 in
Civil Writ Petition No.4490 of 2013
Date of decision: 24.12.2014
Ranbir Singh
..... Petitioner
Versus
State of Haryana and others
..... Respondents
CORAM: HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Dr.Suresh Kumar Redhu, Advocate,
for the applicant.
*****
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This Court was confronted with a term in an advertisement inviting applications for filling up the posts of Constable Drivers (Male) in Haryana Police which barred a candidate from consideration against whom a criminal case stands registered and is under investigation or pending trial and who has been convicted by a court of law. There was nothing against the petitioner when he applied. During the process of selection, an FIR was lodged against him for his alleged involvement in a case of dacoity. This was in August, 2009. However, during the selection process, the petitioner was acquitted by the Judicial Magistrate, 1st Class, Rohtak. On acquittal, he made an appeal to the police administration to issue him a belt number and induct him into the constabulary. The petitioner made 9 representations from June, 2010 to December, 2012 claiming appointment and finally a legal PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :2: notice dated 23rd December, 2012 was served on the respondent State to vindicate his grievance failing which he would take recourse to law. The Director General of Police, Haryana rejected these requests on 28th January, 2013.
2. The issue before the Court which I was called upon to decide was framed in the 4th para. of the order under review which was phrased as follows : -
"The question is whether the condition would apply in the future as well and what would acquittal mean or entail in the circumstances when both the FIR and the acquittal took place after start but before closing of the recruitment process."
3. The actual date of closing of the recruitment process and appointments of the selected candidates was not mentioned in the petition nor is the appeal against my order and in the review application. For the purposes of the review, I would assume that it was continuing and had not ended. When I passed the order I found the impugned order non-speaking and cryptic, as it more certainly is, but chose to go by the defence of the State in the written statement. Though the petitioner was recommended in December, 2010 and selected at serial No.39 it was subject to verification of his character and antecedents. In the process of verification, it was discovered that a criminal case was registered in August, 2008 but the petitioner was acquitted in January, 2011. The offence alleged was under
Section 394 IPC which involved moral turpitude being a case of dacoity.
The acquittal by the trial court was based on the complainant and the eye witnesses turning hostile. He was not offered appointment due to this reason.
In this background, I formed opinion that the condition precedent in the PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :3: advertisement was so incipient in its exclusion that its design will run through till the end of the recruitment process sufficient to deny appointment even though there was no disability to start with but developed on the way.
In the judgment and order the facts of the case I thought were of little importance in decision-making. In reaching this conclusion, the dicta laid down in Delhi Administration through its Chief Secretary and others v.
Sushil Kumar, (1996) 11 SCC 605 and my own opinion expressed in CWP No.12693 of 2012, Pritam Singh v. State of Haryana and others decided on 1st August, 2013 was applied. It has been observed in Pritam Singh's case as under : -
"It is well settled that mere selection does not give an indefeasible right to appointment. The Government is well within its right to withhold appointment on a lingering doubt as to the moral standards of a candidate who aspires appointment in the uniformed police force. In taking such a decision, no stigma is cast; no moral judgment is involved; suspicion alone is sufficient to deny appointment to a job which requires the protection of life and liberty of citizens by the police. The defence of the State in response to this petition based on instructions of the Director General of Police, Haryana issued vide memo dated 2.7.2007 (R-3) and 13.11.2007 (R-4) which are salutary inasmuch they restrict entry of candidates charged during a trial with offences involving moral turpitude but acquitted merely on technical grounds or on account of giving benefit of doubt may not be considered for employment as constables. The purpose and object behind the aforesaid Notifications and directions was to restrict the entry of persons of criminal background involving heinous crime and offence bearing on moral turpitude. There is no place for such people in the disciplined force."
4. In the appeal against my order in the present case, the following order was passed by the Division Bench : -
PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document
RA No.608 of 2014 in CWP No.4490 of 2013 :4: " To address arguments, some facts, which were not before the learned Single Judge, were sought to be relied upon.
After arguing for some time, counsel for the appellant wishes to withdraw this appeal with liberty to file a review application.
Liberty is granted. Dismissed as withdrawn.
Sd/-
(Jasbir Singh) Judge Sd/-
(Harinder Singh Sidhu)
April 25, 2014 Judge"
5. When this review application came up for hearing, I asked the learned counsel who had appeared before me and in appeal to point out to the facts which were not before the learned Single Judge which was sought to be relied upon in appeal. The appeal was withdrawn with liberty to file a review application. That is how the matter has come up before this Court.
6. In the absence of the grounds of appeal, I asked Dr.Redhu that I would like to see them to know of the facts which were not pleaded in the petition and upon which a review application should be entertained.
Dr.Redhu produced the appeal papers in Court from where I found the following : -
"a) That the petitioner has been selected in the list issued vide order No.849/DIG-CR HSR dated 30.12.2010 at Serial No.39 by getting order of merit 43.
b) That at the time of submitting the application by the petitioner there was no case against the petitioner and he was falsely implicated in case FIR No.188 dated 20.08.2009 under section 394 IPC, PS Shivaji Colony, Rohtak in which he was acquitted vide judgment dated 21.01.2011.
c) That the petitioner has been acquitted and in the verification report it was reported by the Police Station, Shivaji Colony, Rohtak that a PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :5: case FIR No.188 dated 20.08.2009 under section 394 IPC, PS Shivaji Colony, Rohtak was registered against the petitioner in which he has been acquitted on 21.01.2011. Hence there is no misrepresentation on the part of the petitioner at any stage.
d) That the petitioner has been acquitted by judgment dated 21.01.2011 observing therein that the prosecution has miserably failed to prove its case against the accused. Consequently, the accused Karambir and Ranbir are hereby acquitted. Hence, once the petitioner has been acquitted by learned court then he cannot be deprived from right to be appointed as a Constable. Moreover, this Hon'ble Court in Jagmohan Lal vs. State of Pujab, 1967 AIR (Punjab) 422 that under criminal procedure code, there is no honourable acquittal.
e) That the representations submitted by the Director General of Police, Haryana, Panchkula vide his letter No.1293/E (II)-I dated 28.02.2013 by totally non speaking and cryptic orders which are not sustainable in the eyes of law."
7. The following were the grounds of appeal : -
i) That vide advertisement dated 24.07.2008 applications were invited from male candidates for filling up of 500 posts of temporary Constables (Drivers) in Haryana Police and in response to it petitioner applied before Additional Selection Board-4, SC Candidates (For Recruitment of Male Constable Drivers), Kurukshetra in the year 2008 itself.
ii) That the Chairman, Additional Selection Board-4, SC Candidate (For Recruitment of Male Constable Drivers), Kurukshetra sent information letter vide No.ARB-SC-4239 dated 11.02.2010 and the petitioner was allotted registration No.SC-0961. Copy of letter dated 11.02.2010 is attached as Annexure P-1.
iii) That the petitioner was called for measurement on 19.02.2010 in District Police Lines, Kurukshetra at 9-00 AM by the Chairman, Additional Selection Board-4, SC Candidates (For Recruitment of Male Constable Drivers), Kurukshetra and original educational certificates as well as other original certificates were also checked on that day. The petitioner got order of merit 36 in the selection list declared vide Order No.849/DIG Cr. HSR dated 30.12.2010 and selected at serial No.39.
iv) That after submitting application form in response to advertisement dated 24.07.2008, the petitioner was falsely implicated in a criminal case FIR No.188 dated 20.08.2009 under section 394 IPC PARITOSH KUMAR Police Station Shivaji Colony, Rohtak in which the petitioner was 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :6: acquitted by the learned Court of Sh.Ashu Kumar Jain, Judicial Magistrate, 1st Class, Rohtak vide judgment dated 21.01.2011. Copy of judgment dated 21.01.2011 is attached as Annexure P-2.
v) The petitioner reported before the then Commandant, 3rd Bn. HAP, Hisar for getting regimental number whereas he was asked to submit verification form which was filled up by the petitioner mentioning that a case FIR No.188 dated 20.08.2009 under section 394 IPC was registered against him and the petitioner has been acquitted and in the verification report it was reported by the Police Station Shivaji Colony, Rohtak that a case FIR No.188 dated 20.08.2009 under section 394 IPC PS Shivaji Colony was registered against the petitioner in which he has been acquitted on 21.01.2011.
vi) That meanwhile the petitioner was medically examined by the Commandant, 3rd Battaion Haryana Armed Police, Hisar from Civil Hospital, Hisar in which the petitioner was found fit for government service but he was denied regimental number by the Commandant, 3rd Bn. HAP, Hisar merely on the ground that a criminal case was registered against him.
vii) That thereafter petitioner submitted a representation to the Inspector General, Haryana Armed Police, Madhuban as well as Director General of Police, Haryana, Panchkula requesting therein that the Commandant, 3rd Bn. HAP, Hisar be directed to issue him regimental number. It is also pertinent to mention here that the petitioner during the pendency of his appeal submitted an application before the Commandant, 3rd Bn. HAP, Hisar vide diary No.8268 dated 23.05.2011 requesting therein that one post may kindly be vacant till the decision of his appeal submitted to the IG/HAP, Madhuban and Director General of Police, Haryana, Panchkula. Copy of application dated 23.05.2011 is attached as Annexure P-3.
viii) That when no action was taken on the appeal of petitioner then he submitted representations dated 13.06.2011, 07.11.2011, 20.05.2011, 03.10.2012, 04.10.2012, 05.10.2012, 06.10.2012, 18.10.2012, 22.10.2012, 16.11.2012, 13.12.2012 and last representation dated 18.12.2012 to the Director General of Police, Haryana, Panchkula requesting therein to decide his representations and to take appropriate action. Copy of representation dated 18.12.2012 is attached as Annexure P-4.
ix) That as the petitioner did not have the selection list dated 30.12.2010 hence he applied to the Commandant-cum-State Pubic PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :7: Information Officer, 3rd Bn. HAP, Hisar under Right to Information Act, 2005 for getting the same which supplied vide No.778/RTI dated nil by the Commandant-cum-State Public Information Officer, 3rd Bn. HAP, Hisar. Copy of said letter is attached as Annexure P-5 and copy of selection list 30.12.2010 is attached as Annexure P-6.
x) That when no action was taken by the respondents then the petitioner served a legal notice dated 23.12.2012 through his counsel to the respondents for redressal of his grievances. Copy of notice dated 23.12.2012 is attached as Annexure P-7.
xi) That the Director General of Police, Haryana, Panchkula rejected the various representations submitted by the petitioner vide his office letter No.1293/E (II)-1 dated 28.01.2013 simply saying that the representations were considered and rejected without passing any speaking orders. Copy of letter dated 28.01.2013 is attached as Annexure P-8.
8. I do not find anywhere in the appeal papers mention of any new facts upon which a review could turn.
9. The opinion expressed by the learned Single Judge in a writ petition is subject to plenary appeal where all facts and law are to be thrashed out within the scope of Clause 10 of the Letters Patent, 1919. It is, therefore, apparent that an incorrect statement was made before the Division Bench in appeal to persuade to approach the learned Single Judge again in a review application by withdrawing the appeal.
10. Neither Section 114 CPC nor Order 47 Rule 1 CPC justify change of opinion once expressed which is capable of being varied, modified or set aside in appeal alone.
11. Before parting, I would add; conscious that it is beyond the scope of review jurisdiction, that when I passed the order on 14th August, 2013, I obviously had not the benefit of the judgment of the Supreme Court passed in Commissioner of Police, New Delhi and another v. Mehar Singh; 2013 (7) SCC 685 which was pronounced on 2nd July, 2013 and the PARITOSH KUMAR 2014.12.26 12:01 I attest to the accuracy and authenticity of this document RA No.608 of 2014 in CWP No.4490 of 2013 :8: decision was not known to me at that time. I would re-enforce my opinion in the main case with a dicta laid down in this case that the public interest demands police authorities to ensure that only persons with impeccable character enter the police force. The Supreme Court refused to interfere in the matter of appointment upon acquittal by the trial court in a criminal case involving allegations of commission of offence under Sections 143, 341, 323 and 427 of the IPC. The acquittal was based on a compromise between the parties and such an acquittal cannot be described as an acquittal on merits after a full-fledged trial. The distinction between this case and the present one is that the acquittal was based on the complainant and witnesses turning hostile and in not supporting the case of the prosecution.
12. I had occasion to deal with such a situation in greater detail in Harish Chander v. State of Haryana and others and connected cases decided on 11th December, 2013 though the judgment was passed after the order in review, and make the reasons in that order as a part of the rationale in upholding the denial by the State of an appointment.
13. The present is eminently not a fit case for review and I would dismiss the same with costs of ` 20,000/- payable to the Mediation and Conciliation Centre of this Court by the applicant within one month of service of certified copy of this order. Thereafter the order will remain executable in accordance with law.
(RAJIV NARAIN RAINA)
JUDGE
December 24, 2014
Paritosh Kumar
PARITOSH KUMAR
2014.12.26 12:01
I attest to the accuracy and
authenticity of this document