Central Administrative Tribunal - Delhi
Shri Surender Chahar vs The Govt. Of Nct Of Delhi on 24 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.4301/2010 New Delhi, this the 24th day of May, 2011 CORAM: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Surender Chahar, S/o Shri K.S. Chahar, R/o Vill. Chaharu Ki Dhani, Post: Nimeda, via Jajon (Kheri) Tehsil Shrimadhupur, Distt: Sikar, Rajasthan Presently at: Shri Surender Chahar, C/o Shri Satish Chandra, RZF-763/27-A, Gali No.5, Raj Nagar II, Palam Colony, New Delhi Applicant (By Advocate: Shri Nasir Ahmed) Versus 1. The Govt. of NCT of Delhi, Through its Principal Secretary (Home), Delhi Secretariat, I.P. Estate, I.T.O., New Delhi 2 2. The Commissioner of Delhi Police PHQs, MSO Building, IP Estate, I.T.O., New Delhi 3. Deputy Commissioner of Delhi Police, Establishment, 2nd Floor, Police Headquarters, I.P. Estate, I.T.O., New Delhi 2 4. The Govt. of Rajasthan, Through Supdt. of Police, Distt: Sikar, Rajasthan Respondents (By Advocate: Ms Harvinder Oberoi) O R D E R
By Dr. Veena Chhotray:
The applicant, a provisionally selected candidate for the post of Constable (Driver) in Delhi Police on the basis of a selection process initiated in 2009, is aggrieved at denial of appointment to him. This is on account of the Respondents having adjudged him as unsuitable on the basis of certain facts revealed during his character verification.
By way of relief, the OA seeks : i) quashing the impugned order dated 11.10.2010 cancelling the candidature of the applicant; ii) a direction for keeping one post vacant till final disposal of the case; iii) calling all the records/files relating to applicants appointment; iv) pass any further order or direction as deemed fit. Despite the prayer, no interim directions had been issued.
For the applicant, the learned counsel Shri Nasir Ahmed and for the Respondents the learned counsel, Ms Harvinder Oberoi would argue the matter before us.
2. The brief factual matrix of the case is summed up as follows:-
2.1 The claims being agitated are against an advertisement issued by the Respondents for appointment to the post of Constables (Driver) in Delhi Police on 21.7.2009. This was against 676 vacancies. On participation, the applicant had cleared the physical endurance test, qualified the written test as well as the trade test to be further followed by the medical examination. The applicant had been declared as provisionally selected as per the result declared on 5.1.2010. He had also submitted the requisite documents like the agreement, Police verification, attestation and character certificate forms on being attested by the concerned authorities. The respondents had undertaken the process of Police verification on 4.2.2010 by sending the documents to the concerned Police Station of the Applicants native place.
2.2 The hurdle in this case had come on account of an FIR No.16/2010 registered against the applicant along with some co-accused in his native Police Station in the State of Rajasthan, on 9.2.2010. As per the Police Investigation Report, part of the allegations levelled in the FIR were found to be true only against one of the accused and the name of the applicant as also several others as mentioned in the FIR had not been found to be true. The FIR itself had finally ended in a compromise before the Police and had been accepted as such by the trial Court.
2.3 Taking into account the entire case, the Screening Committee constituted by the Commissioner of Police held the view of the applicant not being found suitable for appointment in the Delhi Police. On the basis of the Committees recommendation, the candidature of the applicant had been cancelled. However, prior to arriving at such a conclusion, the applicant had been issued a show cause notice and his written reply considered. Besides, the applicant had also been given a personal hearing. The order dated 10.11.2010 cancelling the candidature of the applicant has been challenged in the present OA.
3. The FIR in question numbering 16/2010 under Section 143/452 and 323 IPC read with Section 3 (10) of Prevention of Atrocities on SC/ST Act, P.S. Khandela, Sikkar, Rajasthan dated 9.2.2010 had been registered on a complaint of one Shri Shanker Lal (a Scheduled Caste person). It had been alleged that on 8.2.2010 while he had been doing sewing work in his shop, 7 8 persons, including the applicant, had come in a Jeep and dragged him out of his shop. Further, it had been alleged that the said persons had started beating and abusing him using pejorative caste abuses and threatening to teach him a lesson and even kill him since because of his caste/community they had lost the Sarpanch elections. The FIR had specially mentioned the names of such 7 persons besides the names of the neighbours, who along with his family members had come to the complainants help. As per the FIR, the complainant had personally come to the Police Station to get the FIR registered (a copy of the FIR has been enclosed with the OA as Annex A/12).
4. As per the Police Investigation Report (Annex A/17), the allegations had been found to be partly true only in respect of one person, Mahesh Meena. On the basis of the local inquiry at the spot of alleged occurrence, the following was reported. Though the report is in Hindi, rendered into English translation, this would run as follows:-
The complainant has a tailoring shop. On 8.2.10, he was doing the sewing work in his shop when at about 3.30 PM Mahesh Meena, Surender, Subash and other co-accused, who in a Qualis vehicle, were going to Bojpur; as they passed in front of the complainants shop, the vehicle was stopped at quite some distance from the Shop and only Mahesh Meena got down from it. From that place only he called the complainant. On the latter coming out of a shop, Mahesh told him that why have all of you have not give votes in the Sarpanch Election to our party. This led to an argument and thereafter Mahesh went back to his car and left that place.
As per this report, this was only a case of minor argument between the complainant and the said Mahesh Meena. The allegations of any one entering the complainants shop, beating him or using derogatory caste abuses had not been found to be true. Further, no charges had been found against the applicant or the co-accused other than Mahesh Meena. On this basis the FIR was reported to be a false one.
The local Police after investigation filed the final report in the Court of Civil Judge & Upper Chief Judicial Magistrate, Sikkar. A compromise, having been arrived at between the parties, was reported, which was accepted by the Court (Annex. A/18).
4.1 A Police report on the above lines had been forwarded by the concerned District Police Authorities as well as the District Magistrate. However, before taking a final view in the matter, the Commissioner of Police, Delhi had found the report as inadequate. Vide their confidential communication dated 7.5.2010 (Annex A/16) documentary proof of quashing / cancellation of the FIR along with the copies of the FIR and the final report had been called.
4.2 The matter had been examined by the Screening Committee constituted for the purpose by the Commissioner of Police. The Committee had not found the applicant as suitable for appointment in Delhi Police. On the basis of the Committees recommendations it was proposed to cancel the candidature of the applicant and a show cause notice to that effect issued. The written reply of the applicant dated 23.8.2010 was submitted on 27.8.2010 (Annex A/20). Besides, claiming to be utterly innocent, in his reply the applicant had also adverted to certain judicial rulings in his favour. On consideration of the written reply and after giving a personal hearing, the candidature got cancelled vide the order dated 10.11.2010.
5. As per the order dated 10.11.2010, the case of the applicant had been examined in detail to assess his suitability for the post. After briefly summing up the particulars of the FIR and the gist of the complaint therein, the circumstances and the grounds for not finding the applicant as suitable for appointment had been stated as under:
In this case, though there was no evidence against you and other co-accused and the complainant entered into a compromise with the accused persons may be under fear of reprisal from the accused persons. From the contents of the FIR, it is also evident that you along with other co-accused were a part of an unlawful assembly and had beaten the complainant and also hurled abuses and extended threats to the life of the complainant. The committee found that you are not fit for appointment in Delhi Police for the post of Constable (Driver). Further it had continued :
Though you have disclosed the involvement in criminal case FIR No.16/2010 u/s 143/452/323 IPC and 3 (10) of Prevention of Atrocities on SC/ST Act, P.S. Khandela, Sikar, Rajasthan dated 09.02.2010 in the relevant columns of Application and Attestation Forms, your involvement in the crime shows your violent nature to indulge in crime without fear of law. Such type of attitude renders you unsuitable for appointment in a disciplined force like Delhi Police While arriving at the above view, the respondents had also cited the decision of the Honble Supreme Court in Delhi Administration Through its Chief Secretary & Ors vs Sushil Kumar {as reported in (1996) 11 SCC 605}.
6. The main plea by the learned counsel for the applicant would be that this was an utterly false case where the name of the applicant had been deliberately dragged. Stating that the FIR in question was a mere after-thought, the learned counsel would contend that this had been done only to spoil his career prospects considering his provisional selection in Delhi Police. By way of background, it would be submitted that his elder brother was a political person and a candidate for election as Sarpanch. The aforesaid FIR would be stated to be a mere ploy to harm his brother as well as to spoil the applicants career. The averment of the Police report proving the FIR to be false and the case being compromised by the Judicial Court would also be made. As per the learned counsel, denial of appointment to the applicant on such a flimsy ground would be a miscarriage of justice. In support, certain case laws would also be relied upon by Shri Ahmed.
7. The claims in the OA have been contested by the respondents. The learned counsel, Ms. Harvinder Oberoi would emphasize that the applicant in this case had only been provisionally selected and this was subject to verification of his character and other antecedents. Hence as per the learned counsel the applicant had no legal right of any kind to claim the appointment. The learned counsel would also submit that while taking the decision the Screening committee had considered the entire gamut of facts and its recommendations were based essentially keeping in view the requisites in the personnel in the Delhi Police, as a disciplined Police Force. Ms Oberoi would also draw our attention to the fact that the compromise in this case was at the level of the Police and the Court had only accepted it. It would further be averred that before taking the impugned decision, the respondents had duly observed the principles of natural justice by not only issuing a show cause notice and considering the written reply but also giving a personal hearing to the candidate before cancellation of his candidature. Hence as per the learned counsel, there could be no justification at all for any judicial interference in the decision of the respondents.
8.1 The issue involved in this case has come in for consideration of this Tribunal as also the Honble High Court and the Honble Supreme Court in a number of cases. We find it apt to refer to the following decisions constituting as the milestones in development of law on the subject:-
In Civil Appeal No.1231/1996, DAD vs Sushil Kumar, dealing with the case of non-disclosure and upholding the right of the respondents with regard to verification of character and antecedents of a provisionally selected candidate, the Apex Court had taken the view that the fact of the applicant having been discharged or acquitted of the criminal offence had nothing to do with the question of his appointment. Instead what was said to be relevant was the conduct or character of the candidate to be appointed to service and not the actual result thereof.
In the WPC No.6042-43/2005 and other connected writ petitions in the matter of Govt. of NCT of Delhi & Ors vs Deepak Kumar & Ors decided on 28.11.2005, the Honble High Court had not agreed with the view taken by the Tribunal in several preceding OAs allowing the prayers by the applicants against cancellation of their candidature simply on the ground of acquittal in the previous criminal cases. Instead it had been held that the mere fact of the acquittal would not be enough for securing appointment in Delhi Police. It was further stated that before denying the appointment, the nature of offence in which the applicant might have been involved and the manner of acquittal needed to be properly examined.
The decision of the Coordinate Bench headed by the Honble Chairman in the OA No.178/2008, Anoop Kumar vs Govt. of NCT of Delhi & Anr. vide its order dated 23.7.2008 is particularly significant. In this order, it was emphatically held that denial of appointment to a citizen for all time to come is indeed a serious matter more so when there was no finding of a conviction by a criminal court; in which case it became incumbent upon the higher ranking police officials to consider all the relevant aspects before coming to such a decision. While reiterating the decision of the Honble Delhi High Court in Deepak Kumar & Ors (supra), the Tribunal had further delineated that taking a view merely on labels/sections of the FIR or the fact of the witnesses turning hostile would not be sufficient grounds by themselves to deny appointment to a citizen. What was required was that all the attendant circumstances leading to commission of crime, nature of offence that may appear from the contents of the FIR, statements of defence witnesses, medical evidence and all attendant circumstances needed consideration.
8.2 As per the applicants learned counsel, the decision of the Honble Apex Court in Sushil Kumar (supra), being a case of non-disclosure, would not be applicable in the present case. However, considering different points of emphasis as to the right of the appointing authority to verify the character and antecedents and the determining factor not being the outcome of a criminal case, but the conduct or character of the candidate, this contention of the learned counsel is not found acceptable.
8.3 The other cases relied upon is the decision of a Coordinate Bench of this Tribunal in the OA 2436/2009 Pramod Kumar vs GNCTD & Ors decided on 8.3.2010. In this case taking a holistic view of the entire issue, it was held that in criminal jurisprudence, there was no such concept like honourable or disgraceful acquittal. Further, in the Delhi Police, the authorities have been mandated to make their appointment in terms of Rule 25 of Delhi Police (P&A) Rules, 1980 considering the verification of character and antecedents. It was held that though the Delhi Police is within its domain to appoint or not a selectee who does not hold indefeasible right to be appointed; however, the same has to be as per the statutory provisions and without overreaching its jurisdiction.
It may be noted at this point that the present case does not involve the issue of acquittal or its various nuances.
8.4 The learned counsel Shri Ahmed has also relied upon the decision of the Delhi High Court in WP(C) No.3566/2010 (Govt. of NCT of Delhi & Anr vs Jai Prakash) decided on 24.5.2010. This was a case in which the applicant was challenging denial of appointment on the ground of a criminal case having been filed under Section 32/33 of the Forest Act, 1927 read with Section 379 IPC. Subsequently the applicant had been acquitted on the ground that the prosecution had failed to establish its case. The Honble High Court had not found it fit to interfere with the decision of the Tribunal allowing the OA, taking note of the fact that the applicant had been involved in a criminal case and had been acquitted in the same much before the date of appointment. Further, he had also given all the information to the authorities as required under law.
The facts of Jai Prakashs case are also distinguishable from those in the present one.
8.5 The other case that the learned counsel for the applicant would cite would be the common order dated 11.11.2010 of the Delhi High Court in the WP (C) 5510/2010 (GNCTD & Anr vs Dinesh Kumar) and the WP(C) No.5527/2010 (GNCTD vs Subhash Chand).
The factual matrix of both these cases are also important. In Dinesh Kumars case, the respondent was challenging denial of appointment to the post of Constable (Executive). The FIR in question had pertained to a dispute between friends who had attended a marriage function, which subsequently had taken an ugly turn leading to the two groups fighting. The Honble High Court had been seized with the fact of there being no personal motive or planning or revenge behind the incident but every thing happening at the spur of the moment. Ultimately the applicant had been acquitted on the ground of the witnesses turning hostile.
In Subash Chands case also there had been two FIRs relating to two petty brawls. In this case the matter had been compromised. Besides, Subash Chand had been offered by the respondents a letter of appointment during the pendency of the Writ Petition, though subject to its outcome. He had also been working against the said post.
The Honble Court had also noted that the denial of appointment in both these cases had been premised on wrong assumptions. In Dinesh Kumars case, the show cause notice had stated about the acquittal being on account of a compromise. This however, was incorrect since the decision of acquittal was on the witnesses turning hostile. In Subhash Chands case also the show cause notice had mentioned the Sections of IPC for the offences punishable as per the FIR wrongly. On these bases it had been reasonably presumed by the Honble Court that denial of appointment had been premised on wrong assumptions.
Thus, the factual matrix of this order also is distinguishable from the present one. However, what we find relevant is that while dealing with the issue the Honble High Court in para 17 had raised the issue whether public interest/public good would be jeopardized if a person with a criminal background is inducted in public service.
8.6 We would like to reiterate the view taken by a Coordinate Bench of this Tribunal in Sudeep Kumar vs Commissioner of Police & Ors, OA No.2853/2009 summing up the law as follows:-
On the aforesaid basis, we may conclude the law on the subject by stating that whereas the respondents do indeed have a right to verify the character and antecedents of the applicant before issuing the final appointment order and also that mere acquittal in the criminal case would not entail a claim for suo motto appointment in this case under the Delhi Police; at the same time, the matter needs a careful consideration by the respondents before denying a person the right for appointment for all times to come. Such a view cannot be taken lightly or perfunctorily and would only be justified after a very thorough consideration of all the attendant circumstances of the case and the order of acquittal. Besides, there is also the need for extreme caution in this respect so that the quasi judicial authorities do not over step their legitimate domain and give a finding over and above the findings recorded by a Trial Court. While dealing with such cases, discrimination also has been held to be an important ground.
To the above, we would like to add that the proposition about acquittal in a previous criminal case suo motto entailing the right for appointment of a provisionally selected candidate has not been laid down in any of the decisions on the subject. Similarly, right of the respondents to consider the matter of suitability of such a candidate in a sensitive force like the Delhi Police has also not been questioned. In fact, the host of cases cited before us in the OA deal with only specific aspects that need to be cautioned against while undertaking such an exercise of appraisal. On the other hand, what is required is a very thorough consideration of all the attending circumstances of the case, while carefully guarding the thin line of remaining within the legitimate domain and not overreaching the judicial findings. Arriving at hasty conclusions on isolated facts is also to be cautioned against.
To this we would further like to add now the concept as emphasized by the Honble Delhi High Court in its order dated 11.11.2010 in the aforesaid writ petitions about the aspect regarding the impact, of induction of a person with criminal background in public service, on wider public interest.
9.1 The present case is admittedly not one of trial by a criminal court. On the other hand, the offences complained in the FIR have been found to be diluted to the point of being baseless, as per the Police Investigation Report. Even a cursory perusal of the said report, as quoted at length above, shows that this was a sketchy report. As against the specific persons named as accused, or the persons who had helped the complainant, no such specifics are found in this report, which is general in tenor. The compromise in question had been arrived before the Police on the basis of this very report and reported before the judicial court. For want of a proper consideration by the trial court, there are no detailed judicial findings also on various aspects of the offences alleged.
9.2 We further note that besides the offences being registered under the provisions of the Indian Penal Code, there was also the registration under Section 3 (10) of the Prevention of Atrocities on SC/ST Act. This is a special enactment to provide legal deterrents in cases involving such historical caste and community based atrocities against the down trodden segments of our society. The complainant in this case was an SC (a Chamar). As per the FIR, he had not only been hurled abuses targeting his caste, but also beaten. The induction of the applicant in public service, with this background, would justifiably be need to be viewed in the wider public interest.
9.3 The respondents while assessing the entire case have viewed the reported lack of evidence in this case and subsequent compromise as possibly under fear of reprisal from the accused persons. They have also taken the definite view that the entire incident showed the propensity of the applicant to indulge in crime without fear of law. Such a type of attitude as per the respondents, renders the applicant unsuitable for appointment in a disciplined force like Delhi Police.
It cannot be a case that in judicial review Courts and Tribunals are expected to substitute their judgment for that of the competent administrative authorities unless the same is found to be arbitrary, patently malafide or in violation of the principles of natural justice. The present case undisputably does not fall in any of these categories. For this very reason, we would also not be inclined to accept the explanations submitted on behalf of the applicant, contending the registration of the FIR in this case being a motivated and cooked up one.
9.4 As per the settled law on the subject, while the appointing authorities are within their legitimate domain to undertake the exercise of character verification and antecedents of a candidate before ascertaining his/her suitability for a post; what is required is a careful exercise on their part. As upheld by the Honble Apex Court in Sushil Kumars case, what is important for this purpose is not the outcome of a criminal case but the conduct or character of a candidate. This again is to be determined considering the entire gamut of attendant circumstances.
The judicial rulings relied upon on behalf of the applicant are not found to be applicable considering the facts being distinguishable. In any case, it is the settled law on the subject that each such case needs to be considered as per its particular facts and circumstances.
10. To conclude, having considered the various aspects carefully and the law on the subject, we do not find the claims in the OA as justified. The OA is accordingly dismissed with no order as to costs.
(DR. VEENA CHHOTRAY) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/PKR/