Madras High Court
A.Karthikeyan vs State Of Tamilnadu on 21 March, 2013
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
In the High Court of Judicature at Madras Dated : 21.3.2013 Coram : The Honourable Mr.Justice V.RAMASUBRAMANIAN Writ Petition No.6864 of 2013 and MP.NO.1 of 2013 A.Karthikeyan .. Petitioner -Vs.- 1.State of Tamilnadu, rep.by its Secretary, Home Department Secretariat, Chennai. 2.Tamilnadu Uniformed Services Recruitment Board, rep.by its Member Secretary, NO.807, P.T. Lee Chengavaraya Naickker Maligai Anna Salai Chennai-2. 3.The Superintendent of Police Cuddalore District. .. Respondents PETITION under Article 226 of The Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus to call for the records of the third respondent in his impugned proceedings in Na.Ka.No.A4/35540/ 2012 dated 24.12.2012, quash the same and consequently direct the respondents herein to appoint the petitioner herein for the post of Police Constable Grade II. For Petitioner : Mr.D.Ravichander For Respondents : Mr.V.Subbiah Spl. Govt. Pleader ------ ORDER
The petitioner applied for appointment to the post of Police Constable Grade II. His application was rejected by the order impugned in the writ petition on two grounds viz., (i) that he was implicated in a criminal case and (ii) that he had suppressed the said fact in his application form. Therefore he has come up with the above writ petition, challenging the order.
2. Heard Mr.D. Ravichander, learned counsel for the petitioner. Mr.V.Subbiah, learned Special Government Pleader takes notice for the respondents.
3. The Special Rules for Tamil Nadu Police Subordinate Services were amended and an explanation was inserted under Rule 14(b)(iv). The validity of the said amendment came up for consideration before a Full Bench of this Court in Manikandan and others Vs. The Chairman, Tamilnadu Uniformed Services Recruitment Board, Chennai {2008 (2) CTC 97}. The amendment was upheld by the Full Bench, to which I was a party.
4. In the case on hand, the petitioner does not dispute the fact that he was implicated as an accused in a complaint in Crime No.606 of 2009 for the alleged offences under Sections 147, 148, 294(b), 324, 323, 336 and 307 I.P.C. It appears that he was subsequently acquitted by judgment dated 23.6.2010 by the II Additional Sessions Judge, Cuddalore, in S.C.No.41 of 2010.
5. But unfortunately, the petitioner had admittedly suppressed the factum of facing criminal prosecution in his application submitted to the Uniformed Services Recruitment Board. Therefore, the rejection of the candidature on the ground of suppression of material facts, cannot be said to be illegal. The explanation inserted under Rule 14(b) having been upheld by the Full Bench of this Court, it is no more open to the petitioner to contend that he has been acquitted.
6. The learned counsel for the petitioner relied upon a recent decision of the Supreme Court in Jainendra Singh v. State of U.P., (2012) 8 SCC 748. Before considering the purport of the same, it should be pointed out that the same is not a final adjudication or a final opinion. It is actually a reference made by a Two Member Bench of the Supreme Court to a Larger Bench for considering certain questions.
7. The cardinal principles which the Supreme Court had summarised in paragraph 29 of the said decision are as follows:
"29. As noted by us, all the above decisions were rendered by a Division Bench of this Court consisting of two Judges and having bestowed our serious consideration to the issue, we consider that while dealing with such an issue, the Court will have to bear in mind the various cardinal principles before granting any relief to the aggrieved party, namely:
29.1. Fraudulently obtained orders of appointment could be legitimately treated as voidable at the option of the employer or could be recalled by the employer and in such cases merely because the respondent employee has continued in service for a number of years, on the basis of such fraudulently obtained employment, cannot get any equity in his favour or any estoppel against the employer.
29.2. Verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to the post under the State and on account of his antecedents the appointing authority if finds it not desirable to appoint a person to a disciplined force can it be said to be unwarranted.
29.3. When appointment was procured by a person on the basis of forged documents, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in his favour or any estoppel against the employer while resorting to termination without holding any inquiry.
29.4. A candidate having suppressed material information and/or giving false information cannot claim right to continue in service and the employer, having regard to the nature of employment as well as other aspects, has the discretion to terminate his services.
29.5. The purpose of calling for information regarding involvement in any criminal case or detention or conviction is for the purpose of verification of the character/ antecedents at the time of recruitment and suppression of such material information will have a clear bearing on the character and antecedents of the candidate in relation to his continuity in service.
29.6. The person who suppressed the material information and/or gives false information cannot claim any right for appointment or continuity in service.
29.7. The standard expected of a person intended to serve in uniformed service is quite distinct from other services and, therefore, any deliberate statement or omission regarding a vital information can be seriously viewed and the ultimate decision of the appointing authority cannot be faulted.
29.8. An employee on probation can be discharged from service or may be refused employment on the ground of suppression of material information or making false statement relating to his involvement in the criminal case, conviction or detention, even if ultimately he was acquitted of the said case, inasmuch as such a situation would make a person undesirable or unsuitable for the post.
29.9. An employee in the uniformed service presupposes a higher level of integrity as such a person is expected to uphold the law and on the contrary such a service born in deceit and subterfuge cannot be tolerated.
29.10. The authorities entrusted with the responsibility of appointing constables, are under duty to verify the antecedents of a candidate to find out whether he is suitable for the post of a constable and so long as the candidate has not been acquitted in the criminal case, he cannot be held to be suitable for appointment to the post of constable."
8. A careful reading of the above reference made by the Supreme Court to a Large Bench, would show that the said case arose out of the attempted cancellation of an appointment already made. In the case before the Supreme Court, the petitioner was selected and was actually sent for training. Subsequently, upon coming to know of his involvement in a criminal case, the Senior Superintendent of Police passed orders terminating the appointment. Therefore, there is a fine spun distinction between the reference pending before the Larger Bench of the Supreme Court and cases of this nature.
9. In cases of the present nature, no orders of appointment have so far been issued. The candidature of the petitioner has been rejected at the threshold. The petitioner was not even appointed nor sent for training. It should be pointed out that as per paragraph 29 of the reference of the Supreme Court extracted above, even in cases where orders of appointment had been issued, they become voidable for suppression of material particulars. Therefore, when there was not even an order of appointment, the decision taken by the employer not to appoint such persons at all, cannot be questioned on the basis of the reference pending before the Larger Bench of the Supreme Court. It is needless to point out that efficiency and integrity of the police force comes under scanner as well as under attack many a times both socially and in Courts of law. Therefore, if the Government thinks fit to keep the process of selection completely sterilised so as to keep away persons who were involved in criminal cases, it is not for this Court to say that the same is wrong. Persons who are already issued with orders of appointment, stand on a different footing than those who have not been appointed. The former acquire a vested right while the latter would not. Therefore, the reference pending before the larger Bench of the Supreme Court would not help the petitioner. Hence, this writ petition is dismissed. Consequently, the connected MP is closed. No costs.
Tr To
1.State of Tamilnadu, rep.by its Secretary, Home Department Secretariat, Chennai.
2.Tamilnadu Uniformed Services Recruitment Board, rep.by its Member Secretary, NO.807, P.T. Lee Chengavaraya Naickker Maligai Anna Salai Chennai-2.
3.The Superintendent of Police Cuddalore District