Madhya Pradesh High Court
Bhoni Singh vs Home Department (Police) on 24 April, 2017
WP-3032-2016
(BHONI SINGH Vs HOME DEPARTMENT (POLICE))
24-04-2017
Shri Manoj Manav, learned counsel for the petitioner.
Shri Prasanna Bhatnagar, learned Deputy
Government Advocate for the respondents-State.
Heard.
ORDER
The petitioner before this Court has filed the present petition for issuance of an appropriate writ, order or direction directing the respondents to appoint the petitioner on the post of âConstableâ (General Duty). The petitionerâs contention is that he has applied for the post of Constable (General Duty) in respect of District-Ujjain, which was initially turned down on the ground that the petitionerâs height is less than the minimum prescribed height i.e. 1.68 metres. The petitionerâs height was more than that and, therefore, the petitioner submitted an application before the District Medical Board and his height was measured as 1.69 metres. The petitioner, thereafter, was not permitted to participate in the process of Interview. Being aggrieved, the petitioner thereafter preferred a writ petition bearing no.3795/2006. This Court by an order dated 07.03.2013 has allowed the writ petition and has directed the respondents to review the process of selection and to issue a consequential appointment order after completion of the Interview. Thereafter, the petitioner, appeared before the Interview Board, later on for his character verification. Thereafter, the respondents have rejected the candidature of the petitioner solely on the ground that a criminal case was registered against the petitioner in the year 2011. Even though the petitioner was acquitted in the criminal case, he has not been found fit to be appointed as a Constable in the Police Department. The petitionerâs contention is that in the year 2011, a criminal case was registered against him much prior to the process of selection and therefore, keeping in view of his acquittal from the criminal case, he is entitled for appointment order along with arrears and all consequential benefits. The respondents have filed the reply and the contention of the respondents is that the petitioner was involved in a criminal case for the offences under-Section 294, 323, 506-B. 324, 325, 34 of Indian Penal Code, 1860 registered at Crime No.148/2011. The respondents have also stated that the petitioner was acquitted by a judgment of acquittal dated 23.12.2015 and they have taken into account the judgment of acquittal and after placing the matter before the Screening Committee they have rejected the candidature of the petitioner in light of the judgment delivered by the Honâble Apex Court in the case of Commissioner of Police, New Delhi Vs. Meher Singh reported in 2013 VOL-VII SCC-685. It has been further stated that even though the petitioner has been acquitted it does mean that he is entitled for appointment on the said post on account of his past involvement in a criminal case, which disqualifies him for appointment in light of the judgment passed by the Honâble Apex Court in the aforesaid case (supra).
The respondents have also placed reliance upon regulation 54 of Police Regulation and their contention is that the recruitment on the post of a Constable is not being done because he was earlier involved in a criminal case and is not entitled for the said appointment.
Heard learned counsel for the parties at length and perused the record.
In the present case, the process of recruitment was initiated in the year 2005 for the post of Constable and the petitionerâs height was measured by the police personals as 1.67 metres, whereas the District Medical Board has measured the height of the petitioner as 1.69 metres on 05.08.2005. The petitioner was not considered for the Interview inspite of the aforesaid fact. The judgment dated 07.03.2013 passed in Writ Petition No.3795 of 2006, delivered in the first round of litigation reads as under:-
âParties through their counsel.
The petitioner before this Court has filed this present petition for issuance of an appropriate writ order or direction directing the respondents to appoint the petitioner on the post of Constable (GD) under the Home Department of State of MP.
Petitionerâs contention is that he belongs to backward class caste and an advertisement was issued inviting applications for the post of Constable (GD) and the petitioner appeared in written test as well as in the physical test. The petitioner was declared successful in the physical test as well as in written test and thereafter he was medically examined. Petitionerâs contention is that his height is 1.69 cm, however, his height at the time of medical examination was measured as 1.67 cm.
Petitioner has further stated that he did appear before the district medical board also on 05.08.2005 and the district medical board, District-Rajgarh gave a finding in respect of the height of petitioner and his height was measured as 1.69 cm on 05.08.2005. Petitioner immediately protested in the matter, however, he was not permitted to participate in the process of interview. The petitioner has prayed for issuance of an appropriate writ, order or direction directing the respondents to recheck the height of the petitioner and permit him to appear in the process of interview.
A reply has been filed in the matter and the respondents have submitted that the petitioner was declared successful in the written examination as well as in the physical test, however, as in the medical examination his height was measured as 1.67 cm and the minimum height required for the selection was 1.68 cm, therefore, the petitioner was not interviewed.
The respondents have placed heavy reliance upon G.O.P. No.78/97 dated 02.04.1997 and their contention is that the report submitted in respect of the height issued by the district medical board, Rajgarh, is not binding upon them, as the selection has taken place in respect of district-Ujjain. The respondents have prayed for dismissal of the writ petition.
Heard the learned counsel for the parties at length and perused the record.
In the present case, the petitioner a member of the backward class caste was selected in the written examination as well as in the physical test conducted for the post of constable (GD) under the Home Department of the State of Madhya Pradesh in respect of Ujjain district. The petitioner after he was declared successful in written examination as well as in physical test was subjected to medical examination and the minimum height required as per the G.O.P. No.78/97 dated 02.04.1997 was 1.68 cm and the height of the petitioner as measured by the police authorities was 1.67 cm. The petitioner, as he was resident of district-Rajgarh also got himself examined by the district medical board, Rajgarh on 04.08.2005 and the district medical board arrived at a conclusion that the height of the petitioner is 1.69 cm.
This Court has carefully gone through the finding arrived at by the district medical board and the medical board was comprising of five doctors and the civil surgeon was the head of the medical board, meaning thereby, the petitioner was examined by five doctors, who are government doctors and they arrived at a conclusion that his height is 1.69 cm. The relevant para 6.2 of the G.O.P. No.78/97 dated 02.04.1997 provides that in case, there is any dispute in respect of medical examination, the matter shall be referred to the district medical officer and after obtaining the report from the district medical officer, the selection committee shall taken an appropriate decision in the matter. In the present case, the petitioner has seriously disputed his medical examination in respect of his height and nothing prevented the authorities for referring the matter to the district medical board meaning thereby, the respondents have not followed the prescribed procedure as mentioned in para 6.2 of the G.O.P. It was the petitioner, who himself got himself examined from the district medical board, Ratlam and at the relevant point of time his height was 1.69 cm.
Resultantly, as the certificate dated 04.08.2005, certifying the height of the petitioner to be 1.69 cm is in existence, the writ petition is disposed of with the following directions:-
(a) the petitioner is directed to appear before the district medical board along with the certified copy of this order and the district medical board, Ujjain shall examine the petitioner in respect of his height and shall submit the report to the Superintendent of Police, Ujjain, within 15 days from today.
(b) In case, the petitionerâs height is found to be 1.68 cm or more than 1.68 cm, the respondent no.4 shall review the process of selection and shall conduct an interview for the petitioner. The exercise of reviewing the process of selection and interview shall be concluded within a period of 30 days from the date of receipt of the report from the medical board.
(c) In case, the petitioner is found fit on the basis of his performance, the respondents shall issue an appropriate order appointing the petitioner on the post of Constable with all consequential benefits without back-wages within a period of 30 days from the date of interview.
(d) It is needless to mention that the selection done in the year 2006 will not be disturbed by the respondents and the petitioner, if he is found fit will be adjusted against the future vacancies. With the aforesaid, the writ petition stands allowed. No order as to costsâ.
The judgment was delivered on 07.03.2013 and the respondents finally took the petitionerâs Interview on 06.08.2013. From 06.08.2013 to 23.02.2016, nothing was done by the respondents and the petitioner was called for character verification and finally by an order dated 24.03.2016, the petitionerâs candidature has been rejected on the ground of registration of a criminal case bearing crime no.148/2011.
The respondents are heavily place reliance upon the judgment delivered by the Honâble Apex Court in the case of Mehar Singh (supra). This Court in almost all similar circumstances has considered the judgment delivered in the case of Mehar Singh, by deciding the petition filed by one Dinesh Singh Parihar. This Court in the case of Dinesh Singh Parihar Vs. State of MP and Others passed in Writ Petition No.896/2014 dated 18.06.2014 has held as under:-
âThe petitioner before this Court has filed this present petition being aggrieved by an order dated 11.11.13 by which the petitioner has been declined an appointment to the post of Constable, General Duty in the services of Home Department (Police).
In the present case, the petitioner was subjected to prosecution in respect of offences under Section 324/34 IPC read with section 3(1)(10) of The Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, 1989 registered at Crime No.44/2012 and he has been acquitted vide acquittal order dated 3.8.10. He was selected for the post of Constable, General Duty in the year 2013, however an order has been passed declaring him to be unfit for appointment solely on the ground that a criminal case was registered against him, in which he has been acquitted by giving the benefit of doubt. The contention of the petitioner is that he is entitled for appointment as he has been acquitted by the trial Court, irrespective of the fact whether it is on technical ground or whether it is on account of giving the benefit of doubt. On the other hand a detailed and exhaustive reply has been filed in the matter and it has been stated that the petitioner has not been honourably acquitted by the Trial Court and as the acquittal is not an honourable acquittal and as he has to be appointed as a member of police force, the question of appointing the petitioner does not arise. The respondents have also stated that they have rightly passed the impugned order dated 11.11.13 and the writ petition deserves to be dismissed.
Heard the learned counsel for the parties at length and perused the record.
In the present case, the petitioner has never at any point of time suppressed the factum of criminal case, which was registered at Crime No.44/2012 and he has been honourably acquitted. A similar controversy came up before this Court and this Court in the case of Rakesh Sharma Vs. State of Madhya Pradesh & 5 Ors. (WP No.9913/2012) and in the aforesaid case this Court has held as under :-
âThe petitioner before this Court has filed this present writ petition for issuance of an appropriate writ, order or direction directing the respondents to appoint the petitioner on the post of Constable General Duty. Petitioner is also aggrieved by order dated 13/7/12 by which the Inspector General of Police has rejected the claim of the petitioner.
In the present case, the petitioner has participated in the process of selection for the post of Constable in the year 2012 and has also submitted a police verification form stating categorically therein that he has been acquitted in S.T. No. 196/2007 on 14/2/2008. The petitioner by virtue of his merit was selected for the post of Constable, however, the appointing Authority as well as the Inspector General of Police have rejected the petitioner's claim for appointment even though he is more meritorious and persons who are less meritorious have been appointed to the post of Constable General Duty. The only reason assigned in the return is that the petitioner as he has been acquitted by giving benefit of doubt in respect of Crime No. 126/2006, cannot be appointed to the post of Constable General Duty. Learned counsel for the respondents - State has drawn attention of this Court towards paragraphs 53 of the M.P. Police Regulations and his contention is that a person who is seeking appointment on the post of a Constable should bear a good moral character and therefore, as the petitioner was prosecuted for an offence u/S. 302, 147, 148 and 149 of the Indian Penal Code, he does not bear good moral character, hence the order passed by the Inspector General of Police does not warrant any interference. This Court is of the considered opinion that once the petitioner has been acquitted, the entire crime registered against him stands wiped out. An acquittal is an acquittal whether it is a "clean acquittal", whether it is "honourable acquittal" or "acquittal based on giving benefit of doubt". The "clean acquittal", the "honourable acquittal" or "acquittal based on giving benefit of doubt" has not been distinguished in the Code of Criminal Procedure. This court in the case of Smt Panna Mehta Vs. State of M.P. reported in 2002(4) M.P.H.T. 226 in paragraph 11 and 12 held as under :-
"11. In the Code of Criminal Procedure, Indian Penal Code, Evidence Act or any other enactment, the word, "acquittal" has not been defined. As per the Law Lexicon, the Encyclopaedic Law Dictionary (Edn. 1992) "Acquittal" defined, Act X of 1882, Section 403, "the word acquittal is verbum equivocum , and may in ordinary language be used to express either the verdict of a jury, or the formal judgment of the Court, that the prisoner is not guilty". (Per Tindal, C.J., Burgess Vs. Boetefeur, 13 LJMC 126 : 135 ER 193). It is generally said that a party is acquitted by the jury, but in fact, the acquittal is by the judgment of the court (ibid).
According to the Oxford Dictionary, "acquittal" means that a person is not guilty of a crime, with which he has been charged. So in a criminal jurisprudence there is no difference between "clean acquittal", "honourable acquittal" or "acquittal based on giving benefit of doubt". When the accused is acquitted by giving benefit of doubt means the prosecution was not able to prove its case beyond doubt.
12. As ruled by the SUPREME court in case of Manni Lal Vs. Parmai Lal (AIR 1971 SC 330) and Dilip KUmar Sharma and others Vs. State of Madhya Pradesh (AIR 1976 SC 133), order of acquittal means a person concerned, has not committed the offence for which he was charged and tried. Criminal Courts are recording acquittal when the prosecution fails to prove its case beyond all reasonable doubt and benefit of doubt given to the accused does not mean that the accused was involved in the case but the same could not be proved by the prosecution. In Criminal Law, words "beyond reasonable doubt"
cannot be termed as stigma or proof of any criminal charge against acquitted accused. Therefore, petition for expunging the same is not maintainable under Section 482, Cr.PC and the same is misconceived."
Keeping in view the aforesaid judgment, as the prosecution was not able to prove its case beyond reasonable doubt, it cannot be termed as stigma or proof of any criminal charge against the acquitted person.
Resultantly, there is no other material available against the petitioner and as there was no suppression on the part of the petitioner, the criminal case which is no longer in existence and in which the petitioner has been acquitted will not come in way of the petitioner in the matter of appointment. Resultantly, in the light of the judgment delivered in the case of Smt. Panna Mehta (supra) as the petitioner has been acquitted, he is certainly entitled for appointment for the post of Constable General Duty. The Writ Petition is allowed with the following directions:
(1) Respondent Superintendent of Police, Dewas is directed to issue an appointment order in respect of the petitioner forthwith on the post of Constable General Duty by virtue of his placement in the merit list and the criminal case in which the petitioner has been acquitted will not come in way of the petitioner. (2) The petitioner shall be entitled for the seniority from the date other persons have been appointed on the basis of same examination and shall be entitled for all consequential benefits except back-wages. (3) The exercise of appointing the petitioner and granting all consequential benefits be concluded within a period of 30 days from the date of receipt of certified copy of this order.â It is pertinent to note that the judgment of Hon'ble Supreme Court delivered in the case of Commissioner of Police, New Delhi Vs. Mehar Singh in Civil Appeal No.4842/2013 decided on 2.7.2013 relied upon by the learned counsel for the respondents was relating to appointment under the Delhi Police Establishment and there was a Standing Order i.e. Standing Order 398, which was applicable in the aforesaid case, whereas in the present case there is no such Standing Order in existence, on the contrary the Madhya Pradesh Manual and Regulations under the regulation-54, even provides for appointment of a person, who has been convicted with the approval of Inspector General of Police on the post of Constable and therefore, in light of the aforesaid Regulations and also in light of the fact that there is no such Standing Order in existence in the present case, which has been considered by the Apex Court in the aforesaid case, the writ petition deserves to be allowed and is accordingly allowed.
Resultantly, the impugned order dated 11.11.13 is hereby quashed. The respondents are directed to take appropriate steps for issuance of appropriate orders for appointment of the petitioner within a period of 30 days from the date of receipt of a certified copy of this order keeping in view his placement in the merit list. The petitioner shall not be entitled for back wages, however he shall be entitled for seniority and all other consequential benefits. With the aforesaid, the writ petition is allowedâ. No order as to costs.
The aforesaid judgment has dealt with the regulation 54 of the Police Regulation in the State of Madhya Pradesh Police Manual, which provides for appointment of a person who has been convicted with the approval of Inspector General of Police on the post of Constable, whereas in the present case the petitioner was acquitted from all the charges, therefore, the judgment delivered by the Apex Court in the case of Mehar Singh cannot be applied in the petitionerâs case. The further important aspect of this case is that the process of selection has been made in the year 2005. The respondents have committed a mistake in not considering the case of the petitioner for appointment to the post of Constable, even though the height of the petitioner was 1.69 metres, the respondents have forced the petitioner to file the writ petition earlier in the year 2006 i.e. the Writ Petition No.3795/2006 which was ultimately decided on 07.03.2013. The mistake was committed by the State Government in not granting appointment to the petitioner inspite of his having the requisite height and the petitioner was compelled to file the writ petition. The petitioner would have been appointed prior to year 2006 itself and now because of a criminal case registered against him, the respondents have denied the appointment to him.
This Court has carefully gone through the judgment of acquittal and allegations made against the petitioner is that he has used the abusive language though the judgment has resulted in clear acquittal of the petitioner.
In the considered opinion of this Court, there was no criminal case registered against the petitioner at the time petitioner appeared before in the Selection. The petitioner has been successfully acquitted from all the charges, the impugned order dated 24.03.2016 deserves to be quashed and is accordingly quashed. In the earlier round of litigation, this Court while delivering the judgment in Writ Petition No.3795/2006 has not granted the back-wages to the petitioner, however, now things are altogether different and the judgment was delivered on 07.03.2013, peculiar facts and circumstances of the case reveal that the respondents are not considering the case of the petitioner on some pretext or the other and are denying the appointment to the petitioner, even though the petitioner is having the requisite height, on frivolous grounds that his case is covered by the Mehar Singh judgment and is not entitled for consideration on the post of Constable. In the considered opinion of this Court, the impugned order dated 24.04.2016 deserves to be quashed and is hereby quashed with the following directions:-
(a) The respondents shall issue appointment order in favour of the petitioner within a period of ten days from today.
(b) the petitioner shall be entitled for notional pay fixation and all other service benefits.
(c) So far as the notional pay fixation is concerned, the petitioner shall get the benefit of notional pay right from the year 2005-2006 i.e. the date when other persons along with the petitioners who have been participated in the selection process have been appointed and shall be entitled to get all consequential benefits including back-
wages i.e. with effect from 07.03.2013. It is further directed that the respondents shall pay arrears of salary and shall grant all consequential benefits to the petitioner within a period of three months from the date of production of certified copy of this order. In case if the arrears of salary are not paid to the petitioner, as directed by this Court, then the petitioner shall get interest @ 5.5% per annum from the date of his entitlement till the amount is actually released to the petitioner.
With the aforesaid directions, the present petition stands allowed. No order as to costs.
(S.C.SHARMA) JUDGE