Punjab-Haryana High Court
Harish Chander vs State Of Haryana And Others on 11 December, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.18391 of 2012 & connected petitions
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
DATE OF DECISION: 11.12.2013
1. CWP No.18391 of 2012
Harish Chander ...Petitioner
Versus
State of Haryana and others ...Respondents
2. CWP No.18392 of 2012
Ravinder Kumar
... Petitioner
Versus
State of Haryana and others ...Respondents
3. CWP No.18656 of 2012
Anil Kumar ...Petitioner
Versus
State of Haryana and others ...Respondents
4. CWP No.20753 of 2012
Ravinder Kumar ...Petitioner
Versus
State of Haryana and others ...Respondents
CORAM: - HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Ram Niwas Sharma, Advocate, (in CWP Nos.18391,
18392 and 18656 of 2012)
Mr. Sat Narain Yadav, Advocate (in CWP No.20753 of 2012)
for the petitioner/s.
Ms. Kirti Singh, DAG Haryana, for the respondents.
1. To be referred to the Reporters or not? Yes.
2. Whether the judgment should be reported in the Digest? Yes.
Kumar Paritosh
2013.12.20 10:13
I attest to the accuracy and
integrity of this document
CWP No.18391 of 2012 & connected petitions
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RAJIV NARAIN RAINA, J.
This order will dispose of the above captioned four writ petitions arising out of similar facts and involving identical questions of law. However, for facility of reference, the facts are taken from CWP No. 18391 of 2012.
Feeling aggrieved by the action of the respondents in denying appointment to the post of Constable in Haryana Police for which he was duly selected, the petitioner has approached this Court through the present writ petition claiming appointment through wrongful denial. The petitioner would pray for issuing a writ in the nature of certiorari quashing the action of the respondents in declining him appointment after he was provisionally selected. And a mandamus to secure appointment.
The State of Haryana advertised 5456 posts through public notices for recruitment of Constable (Male) (General Duty) in Haryana Police in 2008. The petitioner being eligible had applied for appointment to the said post. The petitioner was called for the physical measurement test. The petitioner qualified in the physical efficiency test that followed. He was called for interview. Result of the interview was declared and his name was reflected in the provisional select list of successful candidates in the general category. The petitioner was also medically examined and declared fit. The stage of appointment was reached. However, the petitioner was denied appointment after selection on the revelation during process of verification of character antecedents that he was involved in criminal cases in the past.
The grievance of the petitioner is that there was no criminal case Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -3- pending against the petitioner at the time of advertisement since he had been acquitted of the criminal charges framed by the trial court/s against him therefore he cannot be denied appointment after due selection.
Whether a candidate who has a history of criminal case/s against him, which might have resulted in his acquittal before being offered appointment is entitled to wield the State batten is the question that crops up in the present set of writ petitions. The nature and gravity of the offence/s attributed to them when the criminal law was set in motion would also need to be examined to attempt to arrive at a just conclusion with respect to their rights, if any, or deprivation of their fundamental right of consideration for appointment to public posts in the police service.
Learned counsel for the petitioner has raised two fold arguments. Firstly, there was no case pending against the petitioner at the time of submission of the application form and he was already acquitted in all the cases before the stage of deputing the selected candidates for the training course had arrived. Secondly, it is argued that the charging sections of the Indian Penal Code, 1860 under which the petitioner was tried do not fall within the meaning of the expression 'moral turpitude'. Learned counsel submits that the grounds assigned in the impugned order and for which reason the petitioner was denied appointment to police service are bad as he was acquitted of the charges but due to witnesses being declared hostile to the prosecution case by the Court, whereas the petitioner was falsely implicated in the criminal cases and he stands acquitted by the trial Courts after consideration of all facts and circumstances. He is therefore innocent for the world at large. In support of his case, learned counsel has relied on Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -4- the following cases:-
i) CWP No.4452 of 2008 " Amit Kumar vs. State of Haryana and others (DB)" decided on 15.05.2008;
ii) CWP No.2124 of 2009 "Parvesh vs. State of Haryana and others (SB)" reported as 2009(7) SLR 295;
iii) CWP No.15109 of 2008 " Tarun Kumar vs. State of Haryana and others(SB)" decided on 02.09.2009;
iv) CWP No.15965 of 2005 "Manjit Singh vs. State of Haryana and others (SB)" decided on 20.01.2011;
v) CWP No.16827 of 2004 "Ashok Kumar vs. State of Haryana and others (SB)"decided on 08.02.2012.
It is not in dispute that the petitioners in all the cases in this bunch were involved in criminal case(s) and have been acquitted by the trial Court. The detail of criminal case(s) registered against the petitioners in all the 4 cases is tabulated as under:-
CWP No. & Details of FIR registered against the Section which name of petitioner(s) and date of acquittal comes under the petitioner definition of 'moral turpitude' CWP No.18391 1) FIR No.170 dated 13.07.2004 S.307 IPC of 2012- Harish under Ss.506/34 IPC (acquitted on (attempt to Chander 29.08.2007) murder)
2) FIR No.38 dated 19.01.2011 under Ss.323, 506,307/34 IPC (acquitted on 07.06.2012)
3) FIR No.290/11 under Ss.148, 506, 149, 448/34 IPC (acquitted on 06.07.2012) CWP No.18392 FIR No.41 dated 31.01.2009 under S.376 IPC (rape) of 2012-Ravinder Ss.376, 451, 506 IPC (acquitted on Kumar 21.05.2009) CWP No.18656 FIR No.299 dated 30.05.2011 under S.379 IPC (theft) of 2012-Anil Ss.332, 353, 186, 506, 379/34 IPC Kumar (acquitted on 06.07.2012) Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -5- CWP No.20753 FIR No.170 dated 03.09.2009 under S.380 IPC (theft of 2012-Ravinder Ss.148/149/436/380/427 IPC and S.3 in dwelling Kumar of SC/ST Act & S.3 of Prevention of houses etc. Violence and Damage of Property Act, 2009 (acquitted on 03.09.2011) From the above, it is clear that all the petitioners have been charged with sections of the Indian Penal Code which come within the teeth of offences involving 'moral turpitude'. Thus, the contention of the learned counsel for the petitioners that element of moral turpitude in not present in such cases is factually incorrect and not sustainable.
The facts: the petitioner had applied under advertisement dated 20.07.2008 in which there was an exclusionary clause which term and condition reads:-
"A candidate against whom a criminal case stands registered and is under investigation or pending trial or who has been convicted by a Court of Law need not apply."
The case of the petitioner after provisional selection but before appointment was examined by the respondents in the light of the judgment of the Supreme Court in Delhi Administration v. Sushil Kumar, (1996)11 SCC 605. In the said case, the Supreme Court observed:-
"It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was physically found fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -6- Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing Authority, therefore, has rightly focused this aspect and found him not desirable to appoint him to the service."(emphasis added) I have heard learned counsel for the parties at considerable length and have also gone through the peadings and judgments referred to by the learned counsel representing the parties. However, before examining the judgments, it would be necessary to reproduce the relevant rules of recruitment as contained in Vol. II of Punjab Police Rules, 1934, as applicable to the State of Haryana, which read as under:-
"12.12. Supervision of recruitment.- The standard of performance and the reputation of the whole police force depend above all upon the quality of its constables. Standards for recruits are laid down in the rules which follow, but, over and above, the constant attention and effort to raise the general standard of recruitment are essential. Gazetted officers shall at all times devote special attention to discovering and encouraging men of a thoroughly good stamp to enroll themselves.
xx xx xx Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -7- 12.14. Recruits -Status of.--(1) Recruits shall be of good character and great care shall be taken in selecting men of a type suitable for police service from candidates presenting themselves for enrolment.
xx xx xx Rule 12.18 as amended vide notification dated 18.06.2002: Recruits verification of character:
Verification rolls of selected candidates for the post of Constable shall be sent to the local police and criminal investigating department with a copy to the concerned District Magistrate and character verification shall be done as per the extant Government instructions on the subject. Candidate who has been convicted for any offence under any law, under moral turpitude, as specified in the Govt. instructions from time to time, shall not be considered for appointment as Constable under these rules."
A perusal of the rules extracted above would show that the expected standard of performance and reputation desired of the entire police force depends upon the quality of its constables. The emphasis is on good character and suitability and of a "thoroughly good stamp".
The Director General of Police, Haryana has issued instructions dated 02.07.2007 on the subject matter in issue which read as under:-
"Subject : Allotment of Constabulary numbers to the selected candidates for the post of constables.
Memorandum/
Some Chairmen of Selection Boards have sought
clarification regarding appointment of candidates who have been acquitted before and after submission of application forms for recruitment as Constables.
Kumar Paritosh 2. The matter has been examined and it is clarified that:2013.12.20 10:13 I attest to the accuracy and integrity of this document
CWP No.18391 of 2012 & connected petitions -8-
(a) Candidates who were involved in criminal cases and stand acquitted at the time of declaration of selection list may be considered for appointment as constable even if they had not disclosed the facts of their facing trial or acquittal in column No.12 of the application form. But those candidates who have faced charges of moral turpitude during their trial but got acquitted merely on technical grounds or on account of giving of benefit of doubt may not be considered for appointment as Constable. In this regard it is stated that all cases of moral turpitude should be minutely examined after careful appraisal of the judgments and such candidates who have been acquitted honorably may, however, be considered for appointment as constable.
(b) All those candidates who are facing trial for any criminal offence will not be considered for appointment as constable.
(c) Candidates who have been convicted for any criminal offence shall not be given appointment.
Sd/- R.S. Dalal, Director General of Police, Haryana."
Thereafter a clarification of the said instructions was issued vide instructions dated 13.11.2007 which read as under:
"Memorandum In continuation this office endst. No.7463-68/E(II) 1 dated 02.07.2007, on the above subject.
2. This matter has been further examined and Clarification conveyed vide this office letter referred to above is modified as under:
(a) Candidates against whom cases are pending should be considered for allotment of Constabulary number except those who are facing investigation/trial or have been Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -9- convicted in offences, involving moral turpitude.
(b) The candidates acquitted on technical grounds in offences involving moral turpitude, shall also not be considered for allotment of Constabulary number.
(c) Candidates who on appeal have been declared medically fit by the PGIMS Rohtak may be considered for allotment of Constabulary numbers. While allotting constabulary numbers in view of above clarification it may be ensured that appointments should be made against the notified vacancies only.
(R.S. Dalal), Director General of Police, Haryana"
There can be no gainsaying that the exclusionary clause of the advertisement issued in 2008 is binding and alone sufficient to exclude the petitioner from consideration altogether, which prescribes that those who have criminal cases registered against them or are under investigation or pending trial or who have been convicted need not apply. This condition precedent is in two parts separated by the word 'or' and is so incipient in its exclusion and in its design that it runs through from the beginning 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. The paralyzing term in the advertisement laid down in 2008 goes further afield than the instructions dated 02.07.2007 and clarificatory instructions dated 13.11.2007 and the entire matter then has to be seen in the looming presence of the ratio of law laid down in Sushil Kumar case by the Supreme Court.
However, para. 2 (a) of the 02.07.2007 circular which gives right of consideration to those who have "even if they had not disclosed the facts of their facing trial or acquittal in column No.12 of the application form." is Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -10- ill thought out and runs counter to probity expected in public service and purity of administration. Such instructions to the extent indicated if accepted or judicially approved would tend to put premium on falsehood, untruth, lies, lies and lies. I cannot judicially give effect to it in its offensive parts or pat the shoulder of the Director General of Police, Haryana in trying to help out those who do not deserve such latitude. More on this later as we proceed with the case.
Learned counsel for the petitioners has then laid stress on the argument that when his clients have been acquitted honourably by the trial Court before the selection process is over or where criminal cases were registered after filing of applications but were acquitted before completion of the selection process then they cannot be denied appointment to service. I am not impressed with this argument and would reject it for a variety of reasons. Acquittal of a criminal charge may result in proof of innocence which can have different results in varied situations. But here we are dealing with right to public appointment vested in the prospective employer to impose reasonable restrictions on exercise of such right under Articles 14 and 16 of the Constitution on the prospective candidate. Rights pre and post appointment involve disparate ways of treatment and different parimeters of consideration for entry, for retention on discovery of disqualification or removal. The safest stage is at screening point with no hard feelings except disappointment. When government have consciously chosen to impose exclusionary clause in the advertisement that a candidate against whom a criminal case stands registered and is under investigation or pending trial or who has been convicted by a court of law need not apply, it applies equally Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -11- to all. The right to apply stands extinguished. The right of consideration hits a road block on discovery of debilitating fact. Para. 2 (b) of the earlier instructions dated 2.7.2007 deny appointment to all those candidates who are facing trial for any criminal offence and to that extent they are lawful.
The clarificatory DGP, Haryana instructions dated 13.11.2007 exclude aspiring constable candidates under para. 2 (a) from consideration who are facing investigation/trial involving moral turpitude so also those who are acquitted on technical grounds in offences involving moral turpitude. But conferring a right to appointment on those who have criminal cases pending against them through the selection process and not concluded but not involving moral turpitude is quite another matter to which judicial approval would be undeserving without going deeper into the character of the candidate and nature of the charge as dibilitating offer of appointment. I habour serious doubt as to validity of paragraphs 2 (a) of both the said circulars which go to the extent of protecting false declarations in applications/attestation forms. That part is a little hard to swallow.
It is now turn to examine the instructions dated 02.07.2007 and clarificatory instructions dated 13.11.2007. Since this Court was not in full grip as to the nature of these two instructions issued at the level of the Head of the Department, the Director General of police, Haryana this matter was put up for re-hearing in order to understand the scope of these instructions to know whether there were recruitment specific as a one time measure or of durable and general application for all recruitment processes. There was no clarity on the subject when the matter was argued before me. I had therefore passed the following order on 20.09.2013 on rehearing on the limited issue:-Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document
CWP No.18391 of 2012 & connected petitions -12- "This matter was put up for re-hearing after I had dismissed the petitions. The re-hearing was necessitated for this Court to understand the scope of instructions dated 2.7.2007 and 13.11.2007 issued by the Director General of Police, Haryana to know whether there were recruitment specific or a general application for all recruitment. Since there is no clarity on the subject, the view of the DGP, Haryana, has become necessary.
The Court should also be apprised when the DGP, Haryana exercises powers to issue instructions touching upon character and antecedents of candidates offering themselves for recruitment to the police service whether such instructions are required to be approved by the Department of Personnel and Administrative Reforms of the Government of Haryana or any other Agency which is empowered under the rule of business to deal with such matters.
Mr. Nehra, prays for three weeks time to submit the response of the Director General of Police, Haryana, or any person authorized by him to act on his behalf. However, the view would be taken after consulting the DGP, Haryana. In case, Mr. Nehra feels the necessity, he may consider filing of the view of the State Government through the Home Secretary.
While I was in the process of dictating judgment, I found a decision rendered by the Supreme Court in Commissioner of Police, New Delhi and another v. Mehar Singh; (2013) 7 SCC 685 and I thought it would only be fair to rehear the matter on this aspect as well for Mr. Sharma to address arguments after going through the judgment. List on 23.10.2013.
A copy of this order be given dasti to Mr. Nehra, learned State counsel under the signatures of the Bench Secretary of this Court."
In response to the re-opening of the case save and limited to the binding effect of the aforesaid two policy instructions, Mr. Nehra has filed an affidavit of Mr. K.K. Sharma, IPS, Additional Director General of Police, Administration, Haryana, Panchkula dated 22.11.2013. It has been stated in the affidavit in paras.3 and 4 as follows:-
Kumar Paritosh2013.12.20 10:13 I attest to the accuracy and integrity of this document
CWP No.18391 of 2012 & connected petitions -13- "3. That in regard to the Hon'ble High Court observations it is submitted that the instructions dated 02.07.2007 and 13.11.2007 were issued by the then Director General of Police, Haryana to clarify the issue regarding allotment of constabulary number to selected candidates, who are involved in criminal cases and where applicable to all recruitments.
However, there is no express power vested in Director General of Police, Haryana to issue such instructions.
4. That now a committee has been constituted by the Director General of Police, Haryana vide order dated 20.11.2013 to review the instructions dated 02.07.2007 and 13.11.2007 and align them with latest judicial pronouncements. A copy of order dated 20.11.2013 is annexed as annexure R/1. The committee has been requested to submit its report within 15 days. Accordingly, fresh draft instructions will be prepared and got approved from the State Government and these duly approved instructions will supersede the earlier instructions dated 02.07.2007 & 13.11.2007 issued on the subject.
That in view of above, it is respectfully prayed that atleast three months time may be granted to examine the issue legally."(emphasis added) This rests the mind of the Court with respect to the instructions dated 02.07.2007 and 13.11.2007. The view of the State Government taken in the affidavit is emphatic that the Director General of Police, Haryana has no express powers to issue such policy instructions. The petitioners can therefore have no advantage of those instructions. These local departmental instructions cannot be elevated to the status of executive instructions issued under Article 162 of the Constitution of India and therefore having the force of subordinate legislation. They are at best mere opinions of the Director General of Police, Haryana holding reigns of the department for the time being and not such as are put through the grinding mill of the desks of the State Government routed through the Department of Personnel and Administrative Reforms speaking formally and consciously with due authority and application of mind to be viewed binding by this Court though Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -14- broadly amenable to judicial review on permissible grounds.
In CWP No.12693 of 2012 titled Pritam Singh vs. State of Haryana and others decided on 01.08.2013 I had spoken thus on the aforesaid two instructions:-
"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. I do not find any merit in this case and have no hesitation in dismissing this petition after hearing Mr. R.K. Gupta learned counsel appearing for the petitioner and Mr. Harish Rathee, Sr. DAG, for the State."
I again considered the issue in CWP No.4490 of 2013 titled Ranbir Singh vs. State of Haryana and others decided on 14.08.2013 in the context of retention or appointment of a Constable involved in a criminal case as sufficient reason to deny appointment. With respect to the aforesaid instructions, I took the view as follows:-
"The can be no gainsaying that the terms of the advertisement alone are sufficient to exclude the petitioner from consideration altogether, which lay down that those who have criminal cases registered or are under investigation or pending trial or who have been convicted need not apply. This condition precedent is so incipient in its exclusion 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. The paralyzing term in the advertisement laid down in 2008 goes further afield than the instructions dated 02.07.2007 and clarificatory instructions Kumar Paritosh dated 13.11.2007 and the entire matter in the looming presence of the ratio 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -15- of Delhi Administration through its Chief Secretary and others vs. Sushil Kumar, (1996) 11 SCC 605.
For the foregoing reasons, I find no merit in this petition sufficient for admission of the matter and would dismiss the same in motion hearing."
Heard the learned counsel again on the above limited issue. The petitioners submit that the view expressed in the affidavit is not final and the Committee is yet to take a final decision as time has been sought to conclude the dileberations and obtain approval from State Government. I am not persuaded to hold up the judgment since even if the instructions in its offensive parts are repeated which is not likely since there is a caveat that the new instructions will be issued in line with judicial prononcements and that is sufficient reason to proceed with decision making in these petitions.
Be that as it may, in the larger canvas, in direct recruitment government cannot be forced by mandamus to await result of criminal proceedings postponed to a future date which might ultimately entail possible dismissal, removal or cancellation of appointment depending largely on the result of the trial. Or to compel government to proceed to offer appointment presently without any timeline since conclusion of trial is beyond control of anyone much less the employer. If the petitioners claims are to be satisfied at this stage then yet another piquant situation may arise as there may be others left out of the fray who did not apply on reading the exclusionary clause in the advertised terms and conditions or their past and present conduct. This may logically lead to nullification of the entire recruitment process itself and of starting it all over again for equal protection contrary to public interest after valuable rights of selected candidates awaiting appointment stand settled. Besides, the exclusionary Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -16- clause is not under challenge. In some of the present cases it may not also arise. It is in any case too late in the day to revisit the selection process and scoop out vacancies from its interstices and hand them over to be filled by the petitioners or to be forced upon the State by judicial fiat.
The next question which arises is whether determination of the suitability of a candidate in the face of background check showing disability or disqualification for being appointed as a constable in a disciplined force can itself and per se be subject matter of judicial review, when the decision making process is not said to be lacking in bona fides or is not based on irrelevant, inadmissible and unreasonable considerations, is the larger public issue arising. A police constable is a representative of the might of the State. It may be that mere suspicion cannot take the place of proof but that principle does not to my mind apply with full vigour to public appointments because no one has an indefeasible right to appointment even after selection. Filteration of the wheat from the chaff is a legitimate endevour and a wholesome by-product of discharge of public trust and public duty reposed in the those entrusted with the sacred duty to select only such policemen against whom no finger can be lifted or pointed. The principle of standard of proof or degree of suspicion are cognative processes used to look through the entire man who is up for selection and appointment and I am inclined to think that higher standards of proof/suspicion and levels of toleration do not hold much water in the present scenario when appointments are viewed to the uniformed force. The burden may be light. Here a distinction may have to be kept in mind of demands and expectations from civil service under the State and service in the police force calling for Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -17- far greater and stringent standards capable of meeting social approval on the touchstone of which society has a right to insist on being governed by the best possible talent paid out of public funds and monitoring their conduct in the business of life and social intercourse. Policemen affect our daily lives. Why start such service with a question mark, with a question a neighbour might ask another neighbour in the village seeking answers but finding none and eventually reconsiling themselves on a systems' failure, or that the ruler or misruler has won the day. If such appointments are made there could be scope left of endless discontent and veiled unrest in the community when that man happens to be your neighbour and can lord over your life for three decades.
Notwithstanding, the State has an absolute right to choose its constabulary on its own terms and according to the rules of recruitment. It is a policy matter not to be casually interfered with through court process in writ proceedings under Article 226 of the Constitution in absence of any visible signs of wide arbitrariness, unreasonableness, discrimination or oppressive restriction on employment even in recognition, as it were, of the right to employment within the content of "right to life" guaranteed as fundamental under Article 21 of the Constitution.
In Sushil Kumar case (supra), it has been held that the discharge and acquittal on a criminal charge/offence has nothing to do with the determination of the suitability of a candidate for appointment as a constable. The relevant factor is the conduct and character of the candidate to be appointed to a service and not the actual result thereof. The said judgment has been quoted with approval in a later three Judge Bench Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -18- decision in Union of India v. Kali Dass Batish and another, (2006)1 SCC
799. It has been found that the view taken by the appointing authority in a case not to appoint a person as a constable cannot be said to be unwarranted nor could be interdicted in judicial review.
In R. Radhakrishnan v. Director General of Police and others, (2008)1 SCC 660, the candidate stood acquitted before filling up the verification roll and therefore, an argument was raised that the candidate has not suppressed any material fact warranting denial of appointment to service. The judgment in Sushil Kumar case (supra) was quoted with approval and it was held to the following effect:-
"10. Indisputably, the appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve in other services. Application for appointment and the verification roll were both in Hindi and also in English. He, therefore, knew and understood the implication of his statement or omission to disclose vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who had not made such disclosure and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Admn. v. Sushil Kumar, (1996) 11 SCC 605, wherein it was categorically held:-
"3. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -19- whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted."
A Division Bench of this Court in Krishan Kumar v. State of Haryana, 2005(2) PLR 820, has held that appointment in the Police Department demands a high degree of discipline and only those candidates can be appointed who have clean antecedents. It was observed as follows:-
"The appointment in the Police department demands a high degree of discipline. In fact in the impugned order, it is mentioned that discipline is of paramount importance. It is also mentioned that only those candidates can be appointed, who have clean antecedents. Taking into consideration all the facts and circumstances of this case, we are of the considered opinion that no injustice has been done to the petitioner."
Keeping in view the principles of judicial review of administrative action and the judgments referred to above, I am of opinion that the authorities relied upon by the learned counsel for the petitioner cannot be made applicable to the facts of the present case/s and are distinguishable. No generalized direction can be issued by this Court to the respondents to appoint the petitioners as constables. In each of the cases, the competent authority has formed an opinion with respect to the unsuitability of the candidates to be members of the disciplined force. Such Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document CWP No.18391 of 2012 & connected petitions -20- a decision is in sync with the underlying spirit of Punjab Police Rules, 1934 as applicable to the State of Haryana to employ only unblemished, straightforward and aboveboard candidates in line with judicial thought that has considerably gone into the making of judgments and the hours spent in writing them to declare the law on the touchy subject matter in question, which are referred to above which I respectfully follow.
Consequently, all the writ petitions fail and are dismissed but without any order as to costs.
(RAJIV NARAIN RAINA) JUDGE December 11, 2013 Paritosh Kumar Kumar Paritosh 2013.12.20 10:13 I attest to the accuracy and integrity of this document