Madras High Court
Devendran vs The Director General Of Police on 26 March, 2018
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.03.2018
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P(MD)No. 2483 of 2012
Devendran ... Petitioner
Vs.
1.The Director General of Police,
Beach Road,
Chennai ? 600 004.
2.The Superintendent of Police,
Pudukkottai District.
3.The Inspector of Police,
Ahanakkottai Police Station,
Pudukkottai District. ... Respondents
PRAYER:Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records in Na.Ka.No.489/108271/appointment 1(2) / 2011 dated 26.04.2011 of
1st respondent and to quash the same and consequently direct the respondents
to appoint the petitioner as Grade II Police Constable for the year 2009-
2010.
!For Petitioner : Mr.N.Balakrishnan
For Respondents : Mr. R.Sethuraman,
Special Government Pleader
:ORDER
The order of non selection of the writ petitioner for recruitment to the post of Grade II Police Constable is under challenge in this writ petition.
2.The writ petitioner pursuant to the notification issued for recruitment to the post of Grade II Police Constable participated in the process of selection. The writ petitioner had successfully passed in the written examination and thereafter participated in the physical eligibility test, endurance test and medical examination. During the verification of the character and antecedents of the writ petitioner, the respondents found that the writ petitioner was an accused in a criminal case in Crime No.57 of 2009, for the offences under Sections 147, 148, 294(b), 324, 506(ii) IPC. Even during the process of selection, the criminal case against the writ petitioner was pending. Accordingly, the selection of the writ petitioner was deferred and an order was passed in proceedings dated 26.01.2011.
3.The only contention raised by the writ petitioner is that his name was removed from the selection list of accused in the final charge sheet filed before the competent Court in C.C.No.128 of 2010. Since the name of the writ petitioner was removed from the list of the accused, his case should be considered for appointment to the post of the Grade II Police Constable.
4.The learned Special Government Pleader, appearing on behalf of the respondents states that the writ petitioner, no doubt was provisionally selected for appointment to the post of Grade II Police Constable for the year 2009 ? 2010, after passing the written examination, physical measurement and physical efficiency test and also medical test. However, the respondents, on verifying the character and the antecedents of the writ petitioner, found that the writ petitioner had involved in criminal case registered by the Athanakkottai Police Station in Crime No.57 of 2009 and charge sheet was also filed on 31.05.2009. Therefore, the candidature of the writ petitioner had been rejected.
5.The counter affidavit has been filed by the second respondent and the relevant paragraphs are extracted as hereunder :-
The order of rejection was issued based on the rule 14 (b) of the Special Rules for Tamil Nadu Special Police Subordinate Services as amended in G.O.Ms.No.101 Home(Pol-IX) Department, dated 30.01.2003, no person shall be eligible for appointment to the service unless he satisfies the appointing authority as follows:
i) that his character and antecedents are such as to qualify him for such service
iii) explanation : A person involved in a criminal case at the time of police verification and the case yet to be disposed off and subsequently ended in hounourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment.
8.It is further submitted that the Full Bench of High Court of Madras in the judgment dated 28.02.2008 in WP.No.38298 of 2005 etc, has held that:-
i) by virtue of explanation 1 to clause (iv) of Rules 14 (b) of TNSPSS Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified.
ii) the failure of a person to disclose in the application form, either his involvement in a criminal case or the pendency of a criminal case against him, would entitle the appointing authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case.
6.The Courts have repeatedly held that the decision in respect of the selection committee, more specifically, in Uniformed Services, on verification of the character and antecedents of the candidates, cannot be interfered with. Even if there is acquittal from the criminal case, there cannot be any automatic recruitment or appointment and the selecting authorities are at liberty to cancel the selection on the ground that the character and antecedents are not satisfied.
7.In this regard, the thee Judges of the Hon'ble Supreme Court of India, elaborately laid down principles:
9.Thus, the matter came to be considered by a Bench of Three Judges in Avatar singh Vs. Union of India [reported in 2016 (8) SCC 471]. After reviewing all the earlier cases including the one in Daya Shankar Yadav Vs. Union of India [reported in 2010 (14) SCC 103] and State of West Bengal Vs. S.K.Nazrul Islam [reported in 2011 (10) SCC 184], the following principles have been settled by the Larger Bench in Paragraph 34 of the Judgment in Avatar Singh:
"No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects."
8.The Full Bench of Madya Predesh High Court, in the case of, Ashutosh Pawar vs High Court of Madhya Pradesh, reported in 2018 1 CTC 353, answered the issues, which are raised in the present writ petition and the Full Bench held as follows:-
33. So far as respondent Mehar Singh is concerned, his case appears to have been compromised. It was urged that acquittal recorded pursuant to a compromise should not be treated as a disqualification because that will frustrate the purpose of Legal Services Authorities Act, 1987. We see no merit in this submission. Compromises or settlements have to be encouraged to bring about peaceful and amiable atmosphere in the society by according a quietus to disputes. They have to be encouraged also to reduce arrears of cases and save the litigants from the agony of pending litigation. But these considerations cannot be brought in here. In order to maintain integrity and high standard of police force, the Screening Committee may decline to take cognizance of a compromise, if it appears to it to be dubious. The Screening Committee cannot be faulted for that.
34. The respondents are trying to draw mileage from the fact that in their application and/or attestation form they have disclosed their involvement in a criminal case. We do not see how this fact improves their case. Disclosure of these facts in the application/attestation form is an essential requirement. An aspirant is expected to state these facts honestly. Honesty and integrity are inbuilt requirements of the police force. The respondents should not, therefore, expect to score any brownie points because of this disclosure. Besides, this has no relevance to the point in issue. It bears repetition to state that while deciding whether a person against whom a criminal case was registered and who was later acquitted or discharged should be appointed to a post in the police force, what is relevant is the nature of the offence, the extent of his involvement, whether the acquittal was a clean acquittal or an acquittal by giving benefit of doubt because the witnesses turned hostile or because of some serious flaw in the prosecution, and the propensity of such person to indulge in similar activities in future. This decision, in our opinion, can only be taken by the Screening Committee created for that purpose by the Delhi Police. If the Screening W.P. No.5865/2016 Committee's decision is not mala fide or actuated by extraneous considerations, then, it cannot be questioned.
35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society.
People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand."
[emphasis supplied]
17. In Parvez Khan's case (supra), the candidate wanted appointment on compassionate ground. The candidature was rejected though he was acquitted in a criminal trial. The Supreme Court quoted from Mehar Singh's case and observed as under:-
"13. From the above observations of this Court, it is clear that a candidate to be recruited to the police service must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was completely exonerated.
W.P. No.5865/2016 Persons who are likely to erode the credibility of the police ought not to enter the police force. No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by learned counsel for the Respondent, in the present case, the Superintendent of Police has gone into the matter. The Superintendent of Police is the appointing authority. There is no allegation of mala fides against the person taking the said decision nor the decision is shown to be perverse or irrational. There is no material to show that the appellant was falsely implicated. Basis of impugned judgment is acquittal for want of evidence or discharge based on compounding."
18. It may be noticed that the two judgments of the Supreme Court reported as (2013) 9 SCC 363 (Devendra Kumar vs. State of Uttaranchal and others) and (2010) 14 SCC 103 (Daya Shankar Yadav vs. Union of India and others) which were referred to by the learned counsel for the petitioner during the course of hearing dealt with a situation where the candidate had concealed the material information of lodging of the criminal cases. In Daya Shankar Yadav's case (supra) though the Court found that the verification form was not clear but still it was held that when the candidate has suppressed the material fact that he was prosecuted, the candidature was rightly rejected. In Devendra Kumar's case (supra) again the candidate had suppressed the fact of his involvement in a criminal trial but the concealment of such fact by itself was found to be an act of moral turpitude. The Supreme Court in Devendra Kumar (supra) held as under:-
"25. More so, if the initial action is not in consonance with law, the subsequent conduct of a party cannot sanctify the same. Sublato fundamento cedit opus - a foundation being removed, the superstructure falls. A person having done wrong cannot take advantage of his own wrong and plead bar of any law to frustrate the lawful trial by a competent Court. In such a case the legal maxim nullus commodum capere potest de injuria sua propria applies. The W.P. No.5865/2016 persons violating the law cannot be permitted to urge that their offence cannot be subjected to inquiry, trial or investigation. (Vide:
Union of India v. Maj. Gen. Madan Lal Yadav, (1996) 4 SCC 127; and Lily Thomas v. Union of India and others, (2000) 6 SCC 224). Nor can a person claim any right arising out of his own wrongdoing. (jus ex injuria non oritur)."
19. In a Larger Bench decision in Avtar Singh's case (supra), the Supreme Court was primarily considering the question of suppression of fact and appointment of a candidate to the civil post. The Court held that even if a candidate has made disclosure of the concluded trial but still the employer has a right to consider the antecedents and cannot be compelled to appoint a candidate. The Court held as under:-
"30. The employer is given 'discretion' to terminate or otherwise to condone the omission. Even otherwise, once employer has the power to take a decision when at the time of filling verification form declarant has already been convicted/acquitted, in such a case, it becomes obvious that all the facts and attending circumstances, including impact of suppression or false information are taken into consideration while adjudging suitability of an incumbent for services in question. In case the employer come to the conclusion that suppression is immaterial and even if facts would have been disclosed it would not have adversely affected fitness of an incumbent, for reasons to be recorded, it has power to condone the lapse. However, while doing so employer has to act prudently on due consideration of nature of post and duties to be rendered. For higher officials/higher posts, standard has to be very high and even slightest false information or suppression may by itself render a person unsuitable for the post. However same standard cannot be applied to each and every post. In concluded criminal cases, it has to be seen what has been suppressed is material fact and would have rendered an incumbent unfit for appointment. An employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. Even if disclosure has been made truthfully the employer has the right to consider fitness and while doing so effect of conviction and background facts of case, W.P. No.5865/2016 nature of offence etc. have to be considered. Even if acquittal has been made, employer may consider nature of offence, whether acquittal is honourable or giving benefit of doubt on technical reasons and decline to appoint a person who is unfit or dubious character. In case employer comes to conclusion that conviction or ground of acquittal in criminal case would not affect the fitness for employment incumbent may be appointed or continued in service.
34. No doubt about it that verification of character and antecedents is one of the important criteria to assess suitability and it is open to employer to adjudge antecedents of the incumbent, but ultimate action should be based upon objective criteria on due consideration of all relevant aspects.
36. What yardstick is to be applied has to depend upon the nature of post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/ services and power has to be exercised on due consideration of various aspects.
38. We have noticed various decisions and tried to explain and reconcile them as far as possible. In view of aforesaid discussion, we summarize our conclusion thus:
38.5 In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate."
20. The judgment in Avtar Singh's case (supra) (paras 34, 36 and 38.5 as extracted above) takes same view as has been taken in Mehar Singh (supra) and Parvez Khan (supra) though there is no specific reference made to such judgments.
W.P. No.5865/201621. Recently, the Supreme Court in yet another judgment rendered on 08.01.2018 in Civil Appeal No.67/2018 (Union Territory, Chandigarh Administration and others vs. Pradeep Kumar and another) has allowed the State's appeal relying upon its earlier decisions in Mehar Singh (supra); Parvez Khan (supra); as well as in the case of Avtar Singh (supra). Again, this was a case for appointment on the posts of Constable in Chandigarh Police and the issue for consideration was: whether the candidature of the respondents who had disclosed their involvement in criminal cases and also their acquittal could be cancelled by the Screening Committee on the ground of their unsuitability and as to when the Court can interfere with the opinion of the Screening Committee. The Court held as under:-
"10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the concerned post. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. What is honourable acquittal, was considered by this Court in Deputy Inspector General of Police and Another v. S. Samuthiram (2013) 1 SCC 598, in which this Court held as under:-
"24. The meaning of the expression "honourable acquittal"
came up for consideration before this Court in RBI v. Bhopal Singh Panchal (1994) 1 SCC 541. In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions "honourable acquittal", "acquitted of blame", "fully exonerated" are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression "honourably acquitted". When the W.P. No.5865/2016 accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted."
11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commissioner of Police, New Delhi and Another v. Mehar Singh (2013) 7 SCC 685, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision. Emphasizing upon the importance of character and integrity required for joining police force/discipline force, in Mehar Singh case, this Court held as under:-
The same principle was reiterated in State of Madhya Pradesh and Others v. Parvez Khan (2015) 2 SCC 591.
12. While considering the question of suppression of relevant information or false information in regard to criminal prosecution, arrest or pendency of criminal case(s) against the candidate, in Avtar Singh v. Union of India and Others (2016) 8 SCC 471, three-Judges Bench of this Court summarized the conclusion in para (38). As per the said decision in para (38.5), "In a case where the employee has made declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate."
13. It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. From the observations of this Court in Mehar Singh and Parvez Khan cases, it is clear that a candidate to be recruited to the police service must be of impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was honourably acquitted/completely exonerated. The decision of the Screening Committee must be taken as final unless it is shown to be mala fide. The Screening Committee also must be alive to the importance of the trust repose in it and must examine the candidate with utmost character."
W.P. No.5865/201622. The reliance of the learned counsel for the petitioner on the judgment of the Supreme Court reported as (2015) 2 SCC 377 (Joginder Singh vs. Union Territory of Chandigarh and others) is of no help to the arguments raised as the attention of the Court was not drawn to earlier judgment in Mehar Singh's case (supra). After the judgment in Joginder Singh (supra), Parvez Khan's case (supra) was decided on 1.12.2014 and Pradeep Kumar's case (supra) has been decided recently on 08.01.2018 quoting extensively from the judgment in Mehar Singh's case (supra). The view taken in Mehar Singh; Parvez Khan and Pradeep Kumar's cases (supra) is no different than the view taken by the larger Bench of the Supreme Court in Avtar Singh's case (supra), which unequivocally held that the decision in respect of suitability of a candidate has to be taken by the employer.
23. But even if there is conflict between the two judgments of the Supreme Court by the equal strength, even then the earlier view would be binding precedent if the earlier judgment was not brought to the notice of the Court in a later judgment. A Full Bench of this Court in 2003 (1) MPHT 226 (FB) (Jabalpur Bus Operators Association and others vs. State of M.P. and another) has held that in case of conflict between the two judgments of the coordinate Bench of the Supreme Court, the earlier judgment will prevail. The relevant extract is reproduced as under:-
"9. Having considered the matter with broader dimensions, we find that various High Courts have given different opinion on the question involved. Some hold that in case of conflict between two judgments on a point of law, later decision should be followed; while others say that the Court should follow the decision which is correct and accurate whether it is earlier or later. There are High Courts which hold that decision of earlier Bench is binding because of the theory of binding W.P. No.5865/2016 precedent and Article 141 of the Constitution of India. There are also decisions which hold that Single Judge differing from another Single Judge decision should refer the case to Larger Bench, otherwise he is bound by it. Decisions which are rendered without considering the decisions expressing contrary view have no value as a precedent. But in our considered opinion, the position may be stated thus-
With regard to the High Court, a Single Bench is bound by the decision of another Single Bench. In case, he does not agree with the view of the other Single Bench, he should refer the matter to the Larger Bench. Similarly, Division Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by the latter Division Bench in which case the decision of later Division Bench shall be binding. The decision of Larger Bench is binding on Smaller Benches. In case of conflict between two decisions of the Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a Larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the Subordinate Courts. Similarly, in presence of Division Bench decisions and Larger Bench decisions, the decisions of Larger Bench are binding on the High Courts and the Subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and Subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and Subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of rule being followed by it for the purpose of consistency and W.P. No.5865/2016 exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balbir Singh's case (supra) which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point."
24. In view of the judgment in Avtar Singh's case (supra), the reliance of the learned counsel for the petitioner on the judgment of the Supreme Court reported as (2011) 4 SCC 644 (Commissioner of Police and others vs. Sandeep Kumar) and on Joginder Singh (supra) is not tenable.
25. The present is not a case of concealment of facts but in view of the judgment of the Supreme Court in Mehar Singh and Parvez Khan (supra) wherein appointment to the post of Constable has been held to be a post requiring utmost rectitude and only a person of impeccable character and integrity is required to be appointed, such test will increase manifold in respect of a Judicial Officer, who is called upon to discharge the sovereign functions in the administration of justice. The Supreme Court in a judgment reported as (1993) 4 SCC 288 (All India Judges' Association and others vs. Union of India and others) observed as under:-
"7. It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in W.P. No.5865/2016 the sense of 'employment'. The judges are not: employees. As members of the judiciary, they exercise the sovereign judicial power of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally.
8. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it. To keep the judges in want of the essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself. "
26. In a judgment reported as (1987) 3 SCC 1 (Daya Shankar v. High Court of Allahabad and others) while examining the conduct of use of unfair means by a Judicial Officer in the LL.M. examination, it was held that Judicial Officers have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy. The Court held as under:-
"11. In our opinion the conclusion reached by the Inquiry Officer that the petitioner used unfair means is fully justified. No amount of denial could take him away from the hard facts revealed. The conduct of the petitioner is undoubtedly unworthy of a judicial officer. Judicial officer cannot have two standards, one in the court and another outside the court. They must have only one standard of rectitude, honesty and integrity. They cannot act even remotely unworthy of the office they occupy."
27. In a judgment reported as (1995) 5 SCC 457 (C. Ravichandran Iyer vs. Justice A.M. Bhattacharjee and others) it has been held by the Supreme W.P. No.5865/2016 Court that judicial offices are essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. It was held as under:-
"21. Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards of conduct and rectitude from a Judge. ... It is, therefore, a basic requirement that a Judge's official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society."
28. Thus, the expectations from a Judicial Officer are of much higher standard. There cannot be any compromise in respect of rectitude, honesty and integrity of a candidate who seeks appointment as Civil Judge. The personal conduct of a candidate to be appointed as Judicial Officer has to be free from any taint. The same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of an ordinary citizen and also higher than that expected of a professional in law as well.
29. Recently, a Division Bench of Bombay High Court in W.P. No.2848/2013 (Mohammed Imran s/o Shabbir Daryawardi vs. State of W.P. No.5865/2016 Maharashtra and others) decided on 14.12.2017 was considering the cancellation of candidature of a candidate for the post of Civil Judge (Junior Division). The Court held as under:-
"On hearing the learned Counsel for the parties, we find that the petitioner would not be entitled to the relief claimed. The petitioner had applied for the post of CJJD and JMFC. As rightly submitted on behalf of the respondent no.3, for appointment to the said post, the applicant should have had unblemished character and conduct and his antecedents need to be looked into before making the appointment......."
30. At this stage, we may point out that a Division Bench of Indore Bench of this Court in Writ Appeal No.367/2015 (Sandeep Pandey vs. State of M.P. and others) decided on 17.12.2015 distinguished Mehar Singh's case (supra) on the ground that - that was a case dealing with Standing Orders issued by Delhi Administration whereas in Madhya Pradesh, the Regulation 54 of the M.P. Police Regulations contemplates that a person seeking appointment to the post of Constable should bear good moral character. Whether a person bears good moral character has to be adjudged by the Inspector General of Police. The Court found that since there is no Standing Order, therefore, judgment in Mehar Singh's case (supra) is not applicable.
31. We find that the Standing Order is nothing but a procedure to determine suitability of a candidate for appointment to a post in a transparent and in a non-arbitrary manner by the high ranking officials whereas Regulation-54 of the M.P. Police Regulations empowers the Inspector General of Police to take a call as to whether a candidate possesses good moral character. Instead of a Committee in Delhi, the suitability is required to be judged in the case of appointment in the Police by the Inspector General of W.P. No.5865/2016 Police. Therefore, the Court was bound by the judgment in Mehar Singh's case (supra) and thus, such judgment of this Court in Sandeep Pandey'case (supra) does not lay down correct law. We may notice that a special leave petition bearing Special Leave to Appeal (C) No.20522/2016 (State of M.P. and others vs. Sandeep Pandey) against the said judgment has been granted by the Supreme Court on 07.11.2016 and operation of the impugned judgment has been stayed and that the Civil Appeal No.010749/2016 is pending consideration.
32. Therefore, in respect of the Questions No.1, 4 and 5 we hold that decision of criminal Court on the basis of compromise or an acquittal cannot be treated that the candidate possesses good character, which may make him eligible, as the criminal proceedings are with the view to find culpability of commission of offence whereas the appointment to the civil post is in view of his suitability to the post. The test for each of them is based upon different parameters and therefore, acquittal in a criminal case is not a certificate of good conduct to a candidate. The competent Authority has to take a decision in respect of the suitability of candidate to discharge the functions of a civil post and that mere acquittal in a criminal case would not be sufficient to infer that the candidate possesses good character. In this view of the matter, we find that the judgment in Arvind Gurjar's case (supra) holding that it cannot be held that candidate does not have a good character, is not the correct enunciation of law. Consequently, the judgment in Arvind Gurjar's case (supra) is overruled.
W.P. No.5865/201633. This brings us to consider the Question Nos. 2 and 3 referred to for the opinion, which read as under:-
QUESTION Nos.2 & 3:
"2. Whether the High Court in exercise of its powers under Article 226 of the Constitution of India, can step into the shoes of the Appointing Authority and determine as to whether the person concerned is fit for appointment or whether the High Court on finding that the Authority concerned has wrongly exercised its discretion in holding the candidate to be ineligible should, after quashing the order, remit the matter back to the authority concerned for reconsideration or for fresh consideration as to the eligibility of the person?
3. Whether the High Court while allowing such a petition in exercise of its powers under Article 226 of the Constitution of India can issue a further direction to the authority to appoint the person concerned on the post from the date his batchmates were appointed and to grant him back dated seniority and all other benefits or whether the High Court should simply remit the matter back to the authority for taking a decision in this regard?"
34. The power of judicial review under Article 226 of the Constitution of India is not that as of Court of appeal but to find out whether the decision- making process is in accordance with law and is not arbitrary or irrational. In a Constitution Bench judgment reported as AIR 1954 SC 440 (T.C. Basappa vs. T. Nagappa and another) it was held that the High Court has power to issue writs in a case where subordinate tribunals or bodies or officers act wholly without jurisdiction or in excess of it or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them or there is an error apparent on the face of record but such jurisdiction is not wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned. Relevant extract of the said decision is reproduced as under:-
W.P. No.5865/2016 "(11) In dealing with the powers of the High Court under article 226 of the Constitution this Court has expressed itself in almost similar terms vide - 'Veerappa Pillai vs. Raman and Raman Ltd., AIR 1952 SC 192 at pp. 195-196 (I) and said:
"Such writs as are referred to in article 226 are obviously intended to enable the High Court to issue them in grave cases where the subordinate Tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction, vested in them, or there is an error apparent on the face of the record, and such act, omission, error or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a Court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made."
These passages indicate with sufficient fullness the general principles that govern the exercise of jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution.
(24). As regards the omission to include hiring charges the High Court has observed that the Tribunal did not record any finding that such hiring was proved. The Tribunal has in fact found that as regards some cars they were hired, while others had been taken on loan, the money value for their use having been paid by the first respondent which is tantamount to saying that he had to pay the hiring charges. The matter has been dealt with in paragraph 29(d) of the Tribunal's order and the entire evidence has been gone through. We are unable to say that the finding of the Tribunal that the respondent No.1 had omitted to include in his return of election expenses the dinner and hotel charges is a finding unsupported by any evidence. Reference may be made in this connection to paragraph 29(f) of the Tribunal's order which deals with the matter in detail. On the whole our opinion is that the so-called apparent errors pointed out by the High Court are neither errors of law nor do they appear on the face of the record. An appellate Court might have on a review of this evidence come to a different conclusion but these are not matters which would justify the issue of a writ of certiorari. In our W.P. No.5865/2016 opinion the judgment of the High Court cannot be supported and this appeal must be allowed. The writ issued by the High Court will therefore be vacated. We make no order as to costs of this appeal."
35. In another Constitution Bench judgment reported as AIR 1965 SC 532 (State of Mysore and another vs. K.N. Chandrasekhara), the question examined was in relation to the appointment to the post of Munsif by the Karnataka Public Service Commission. The Court held that if the High Court was satisfied that the persons, who were occupying the post were appointed contrary to the Rules, the High Court could set aside the proceedings of the Commission and direct preparation of fresh list according to law but could not direct to include the name of the six petitioners only because they applied to the Court. The relevant extract read as under:-
"10. It may at once be observed that the order passed by the High Court cannot in any view of the case be sustained. The High Court could, if it held that the notification issued by the Commission and the appointments made by the State pursuant thereto were made in violation of the statutory rules, quash the list but the High Court could not direct that the names of six persons merely because they had applied for setting aside the list of candidates selected for promotion be incorporated in that list. The direction made by the High Court was in the nature of mandamus. Such a direction could be issued against a person or body to compel the performance of a public duty imposed upon it by law - statutory or common. The commission is undoubtedly a body constituted pursuant to the provisions of the Constitution and has to exercise powers and perform functions entrusted to it by the Rules framed under Art. 309. But the order which the High Court made was not for compelling performance of its duty imposed upon the Commission by statute or common law. If the High Court came to the conclusion that the proceeding of the Commission was vitiated on account of some irregularity or illegality, it could declare the proceeding void. The High Court however held that the orders including respondents 4 to 13 to the petitions in the list of persons W.P. No.5865/2016 eligible for appointment should be allowed to stand, because the petitioners in the petitions before it did not insist on the issue of a writ of quo warranto. If the High Court was satisfied on an application specifically made in that behalf that the persons who were occupying posts to which they were appointed contrary to the rules governing the appointment and consequently were not competent to occupy the posts, it is difficult to appreciate the ground on which the High Court would be justified in declining to pass appropriate orders. Either the High Court could set aside the proceeding of the Commission and direct preparation of a fresh list according to law, or the High Court could dismiss the petitions because in its view the list was regularly prepared. But the order passed by the High Court maintaining the inclusion of respondents 4 to 13 in the list and then directing the Commission to include the names of the six petitioners in the list merely because they had applied to the High Court is without authority."
36. In another judgment reported as 1969 (3) SCC 489 (Thakur Birendra Singh vs. The State of M.P. and others), the Court held that the High Court could have quashed the orders but the High Court was not sitting in appeal over the decision of the Board of Revenue. Once the orders complained of are quashed, the matter should have been left at large without any further direction leaving the Revenue Authorities free to take any steps.
37. The scope of power of judicial review has also been examined in a judgment reported as (1994) 6 SCC 651 (Tata Cellular vs. Union of India), the Supreme Court held as under:-
"74. Judicial review is concerned with reviewing not the merits of the decision in support of which the application for judicial review is made, but the decision-making process itself.
75. In Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, 154, Lord Brightman said :
"Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.W.P. No.5865/2016
Judicial review is concerned, not with the decision, but with the decision- making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms :
"This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner (p. 1160)."
In R. v. Panel on Takeovers and Mergers, ex p Datafin plc (1987) 1 All ER 564, Sir John Donaldson, M.R. commented:
"An application for judicial review is not an appeal." In Lonrho plc v. Secretary of State for Trade and Industry (1989) 2 All ER 609, Lord Keith said: "Judicial review is a protection and not a weapon."
It is thus different from an appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. In Amin v. Entry Clearance Officer, (1983) 2 All ER 864, Re, Lord Fraser observed that :
"Judicial review is concerned not with the merits of a decision but with the manner in which the decision was made.... Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing the administrative decision without substituting its own decision, and is to be contrasted W.P. No.5865/2016 with an appeal where the appellate tribunal substitutes its own decision on the merits for that of the administrative officer."
76. In R. v. Panel on Take-overs and Mergers, ex p in Guinness plc (1989) 1 All ER 509, Lord Donaldson, M.R. referred to the judicial review jurisdiction as being supervisory or 'longstop' jurisdiction. Unless that restriction on the power of the court is observed, the court will, under the guise of preventing the abuse of power, be itself guilty of usurping power.
77. The duty of the court is to confine itself to the question of legality. Its concern should be :
1. Whether a decision-making authority exceeded its powers?
2. Committed an error of law,
3. committed a breach of the rules of natural justice,
4. reached a decision which no reasonable tribunal would have reached or,
5. abused its powers.
Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:
(i) Illegality : This means the decision- maker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii) Procedural impropriety.
The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind (1991) 1 ACR 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".
38. The Supreme Court in a judgment reported as (2008) 1 SCC 683 (Aravali Golf Club vs. Chander Hass) has held that in the name of judicial W.P. No.5865/2016 activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. The Court held as under:-
"17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State.
18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen (2007) 1 SCC 408; and S.C. Chandra v. State of Jharkhand (2007) 8 SCC 279 (see concurring judgment of M. Katju, J.).
19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.
20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State
-- the legislature, the executive and the judiciary -- must have respect for the other and must not encroach into each other's domains.
21. The theory of separation of powers first propounded by the French thinker Montesquieu (in his book The Spirit of Laws) broadly holds the field in India too. In Chapter XI of his book The Spirit of Laws Montesquieu writes:
"When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined W.P. No.5865/2016 with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."
(Emphasis supplied) We fully agree with the view expressed above. Montesquieu's warning in the passage above quoted is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for "overreach" and encroachment into the domain of the other two organs."
39. A Full Bench of this Court in Writ Appeal No.581/2017 (Nitin Pathak vs. State of M.P. and others) examined the question as to whether in exercise of power of judicial review the Court can refer the matter to a Court chosen expert or whether the Court itself can act as Court of appeal and make a different view than what has been finalised as the model answer key by the Examining Body. The Bench held as under:-
"32.In respect of the second question, this Court does not and should not act as Court of Appeal in the matter of opinion of experts in academic matters as the power of judicial review is concerned, not with the decision, but with the decision-making process. The Court should not under the guise of preventing the abuse of power be itself guilty of usurping power."
40. In view of the law laid down in above said judgments, there is no doubt that in exercise of power of judicial review under Article 226 of the Constitution of India, this Court only examines the decision-making process and does not substitute itself as a Court of appeal over the reasons recorded by the State Government. We find that the decision of the State Government W.P. No.5865/2016 holding that the petitioner is not suitable, is just, fair and reasonable keeping in view the nature of the post and the duties to be discharged.
41. Even if the High Court finds that the decision of the State Government is suffering from some illegality, the jurisdiction of the High Court in a writ petition under Article 226 of the Constitution of India is to remit the matter to the Authority for reconsideration rather than to substitute the decision of the competent Authority with that of its own. The Supreme Court in a judgment reported as (1994) 4 SCC 448 (State of Haryana vs. Naresh Kumar Bali) was examining a question: as to whether there could be a direction to appoint a candidate, who sought appointment on compassionate ground. The Supreme Court held as under:-
"16. With regard to appointment on compassionate ground we have set out the law in Life Insurance Corpn. of India v. Asha Ramchhandra Ambekar (1994) 2 SCC 718. The same principle will clearly apply here. What the High Court failed to note is the post of an Inspector is a promotional post. The issuing a direction to appoint the respondent within three months when direct recruitment is not available, is unsupportable. The High Court could have merely directed consideration of the claim of the respondent in accordance with the rules. It cannot direct appointment. Such a direction does not fall within the scope of mandamus. Judicial review, it has been repeatedly emphasised, is directed against the decision-making process and not against the decision itself; and it is no part of the court's duty to exercise the power of the authorities itself. There is widespread misconception on the scope of interference in judicial review. The exercise of the extraordinary jurisdiction constitutionally conferred on the Apex Court under Article 142(1) of the Constitution can be of no guidance on the scope of Article
226."
42. Again while considering the question of compassionate appointment in a judgment reported as (2008) 8 SCC 475 (General Manager, State Bank W.P. No.5865/2016 of India and others vs. Anju Jain), the Supreme Court held that there could not be any direction for appointment or promotion. The relevant para of the said decision is extracted as under:-
"37. Even on second ground, the submission of the Bank is well- founded. As noted earlier, the learned Single Judge issued direction to the Bank to appoint the writ petitioner, widow of the deceased employee within one month. As per settled law, a writ of mandamus can be issued directing the authority to consider the case of the petitioner for an appointment or promotion as the case may be but no direction can be given to appoint or promote a person."
43. Similar view has been expressed in a judgment reported as (2014) 3 SCC 767 (Ganapath Singh Gangaram Singh Rajput vs. Gulbarga University represented by its Registrar and others) wherein while dealing with the scope of Writ of Mandamus in the matter of appointment/recruitment, the Supreme Court held, thus:-
"25. Ordinarily, in a case where the person appointed is found ineligible, this Court after setting aside such appointment, directs for consideration of cases of such of the candidates, who have been found eligible. It is only in exceptional cases that this Court issues mandamus for appointment. The case in hand is not one of those cases where the High Court ought to have issued mandamus for appointment of Shivanand as Lecturer in MCA. Hence, we are of the opinion that the High Court rightly held Ganpat ineligible and quashed his appointment. However, it erred in issuing mandamus for appointment of Shivanand. Accordingly, we uphold the impugned order (Shivanand v. Gulbarga University, Writ Appeal No.3216 of 2004, order dated 19-11-2009/24- 11-2009 (KAR) of the High Court whereby it had set aside the appointment of the appellant herein and direct that the case of the writ petitioner Shivanand and all other candidates be considered in accordance with law. However, we make it clear that the selection already made shall be taken to its logical conclusion."W.P. No.5865/2016
44. Therefore, the High Court could not issue any direction for appointment of a candidate from the date the other candidates were appointed as such is not the jurisdiction vested in the High Court under Article 226 of the Constitution of India.
45. In view of the above, we find that the judgment of this Court in Arvind Gurjar's case (supra) does not lay down the correct law as the High Court has substituted its decision regarding suitability of a candidate and also issued a direction to appoint the petitioner, therefore, the entire judgment does not lay down correct law and is thus, overruled. The question Nos. 2 and 3 are answered accordingly.
9.Very recently, the Hon'ble Apex Court of India, in the case of UNION TERRITORY, CHANDIGARH ADMINISTRATION AND ORS. Vs. PRADEEP KUMAR AND ANOTHER, in C.A.No.67 of 2018, reiterated the legal principles earlier laid down by the Hon'ble Supreme Court of India as well as by various High Courts. Her Lordship Justice R.Banumathi.J, while speaking for the Bench made the following observations:-
16. on behalf of the respondents, much reliance was placed upon Joginder Singh v. Union Territory of Chandigarh and Others (2015) 2 SCC 377 .
In the said case, the appellant thereon was charged under Sections 148, 149, 323, 325 and 307 IPC but acquitted by the trial court holding that the prosecution has failed to prove the charges levelled against him since complainant as well as injured eye witnesses failed to identify the assailants and the complainant had stated that his signature was obtained on a blank sheet by the Investigating Officer. The case involved was a family dispute. In such facts and circumstances, this Court held that acquittal of appellant Joginder Singh was an honourable acquittal and hence, he should not be denied appointment to the post in question. The decision in Joginder Singh case does not advance the case of the respondents herein.
17.In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.
10.In view of all these, this Court is of an opinion that the High Courts also cannot consider the case of this nature, in view of the fact that the competent authority is at discretion to verify the character and antecedent of the candidature concerned and if the same is not satisfied then the Court cannot interfere with the decision in this regard and therefore, the writ petitioner has not made out any ground for the grant of relief as such sought for in this writ petition.
11. Accordingly, the writ petition stands dismissed. However, there shall be no order as to costs.
To
1.The Director General of Police, Beach Road, Chennai ? 600 004.
2.The Superintendent of Police, Pudukkottai District.
3.The Inspector of Police, Ahanakkottai Police Station, Pudukkottai District.
.