Jammu & Kashmir High Court - Srinagar Bench
Mohd. Yonus Mir vs Sushil Kumar(Supra) on 22 August, 2013
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR SWP No.1346 of 2011 IA No. 639 of 2013 Mohd. Yonus Mir Petitioners State of J&K and others Respondents !Mr. Ahmad Javaid, Advocate ^Mr. R. A. Khan, Additional Advocate General Honble Mr. Justice TashiRabstan, Judge Date: 22/08/2013 : J U D G M E N T :
1. Provisional Select List of Constables in J&K Executive Police for Districts of Anantnag, Kulgam, Pulwama and Shopian vide Order No.51 of 2011 dated 10th February 2011, consequent upon conduct of Test/Examination etc., was issued by Additional Director General of Police Armed/L&O J&K. The selected candidates were asked to report to Inspector General of Police, Zone Srinagar,alongwith their original testimonials/additional qualification/professional certificates and other relevant material within 15 days from the date of publication of the Select List. ShriMohdYounis Mir son of GhMohd Mir resident of KashowaShopian petitioner in the petition, figuring at Serial No.13 amongst Open Merit candidates of District Shopian in the Provisional Select List, as well approached respondents for joining his services but he was not permitted to join and was intimated that only after receipt of Verification Report qua his antecedents, he would be allowed to join his duties. The Verification Report of petitioners antecedents was found adverse inasmuch as it was mentioned therein that a criminal case FIR No.84/2010 under Section 341, 354, 447, 427, 380, 201 & 323 RPC registered at Police Station Zainapora was subjudice before the Learned Judicial Magistrate, 1st Class Shopian. In view of adverse report, appointment order in favour of petitioner was not issued.
2. Petitioner, aggrieved that there is nothing adverse against him as FIR No.84/2010 is outcome of a dispute between two families, has come up with writ petition on hand. The petitioner insists that there is a family dispute between two families, which resulted in lodgment of FIR and that petitioner is not involved in any subversive, militancy or anti-national activity that provide justification to respondents to denyhim appointment on the post of Constable. It is insisted that petitioner was arrested on 22.10.2010 and was released on bail after two days. The charge sheet, it is pleaded, was presented before Judicial Magistrate, Shopian and that it was on the statement of prosecutrix that Superintendent of Police Shopian, after having intimation as regards pendency of criminal case, did not permit petitioner to join his duties. The petitioner, on the edifice of case set up, seeks following relief:
Mandamus commanding respondents to give same treatment in the matter of appointment and other service benefit which has been given to the counter parts of petitioner selected vide Order No.51 of 2011 dated 10.02.2011 against the post of Constable in the J&K Executive Police and accordingly reckon his seniority etc and the Honble court be pleased to direct respondents especially Superintendent of Police District Shopian to permit the petitioner to join against the post of Constable in J&K Executive Police irrespective of the pendency of charge sheet No.71 on the basis of FIR No.84 of 2010 of Police ChowkiZainapora, pending in the Court of Judicial Magistrate Shopian which does not involve any offence concerning militancy or subversive activities
3. The respondents, in their Reply, have insisted that though petitioner finds place in provisional select list, his verification report is adverse as FIR is subjudice against him. It is insisted that since petitioner is involved in commission of offence(s) involving moral turpitude, he does not deserve to be appointed to the Government service as his recruitment/appointment to Government service may prove counterproductive and bring bad name to the police department,as such, seek dismissal of writ petition.
4. I have heard learned counsel for parties and have gone through the record of the case.
5. Learned counsel for the petitioner states that petitioner has been acquitted by Judicial Magistrate, 1st Class, Shopian, vide judgment dated 27th August 2012, of the charges levelled against him in terms of FIR No.84/2010, therefore, there is no case against him and he should not be deprived of his right of getting an appointment in respondent department on the post of Constable. Learned counsel, to lend support to his submissions, relied on judgments in Bilal Ahmad Parra v. State & others [2011(4) JKJ 601 (HC)], Jahangir Ahmad Khandayv. State and others [2012(4) JKJ 596 (HC)], and Zulfakar Ahmed v. State and others [2012 (4) JKJ 1104 (HC)].
6. Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules, 1956, apply to all services and to all persons appointed to any service. Rule 17 lays down qualifications for appointment to any service by direct recruitment. It provides that no person shall be eligible for appointment to any service by direct recruitment unless he is hereditary State Subject/permanent resident; he fulfils prescribed maximum and minimum age limit; he satisfies appointing authority that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and he satisfies the appointing authority that his character and antecedents are such as to qualify for such service. Clause (d) of Rule 17 reads as under:
(d) he satisfies the appointing authority that his character and antecedents are such as to qualify for such service.
7. A perusal of Rule 17 (d) makes it unequivocally clear that appointing authority must be satisfied as regards character and antecedents of a person who is to be appointed.
8. Again, Rule 179 of Jammu and Kashmir Police Rules casts duty upon the authority concerned to be more careful at the time of recruitment and to see that a person, who is appearing as a candidate and who is selected, is not an element that can be said to be undesirable for the police force. Not only that, they have to make enquiries in this behalf.
Rule 181 provides that recruits should be of good character and great care should be taken in selecting man of a type suitable for police service from candidates presenting themselves for enrolment. Rule 185 a mandatory provision, casts duty upon appointing authority to verify character and suitability of enrolment of every recruit and that must be ascertained. Therefore, it is bounden duty of the authority to be more careful while appointing persons in the Police Department.
9. A similar controversy, as that of present one, arose in case Delhi Administration through its Chief Secretary and others v. Sushil Kumar[1996 (11) SC 605], in which petitioner/candidate was found physically fit, passed written test and after interview he was selected provisionally. However, selection was subject to verification of character and antecedents by the local police. On verification it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Therefore, he was not appointed. The Central Administrative Tribunal allowed the application, filed by the petitioner, on the ground that since the candidate had been discharged and/or acquitted of the offences/charges levelled against him, he cannot be denied the right of appointment to the post under the State. The judgment delivered by the Central Administrative Tribunal was challenged before the Apex Court and the Apex Court has pointed out as under:
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. 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 it not desirable to appoint him to the service.
10. While having glance of present case in light of law laid down in case Delhi Administration through its Chief Secretary and others versus Sushil Kumar(supra),petitioner was found fit for provisional selection, but on account of his antecedent record, respondents found it not desirable to appoint petitioner, possessing such antecedent record, as a constable in the disciplined force. The view taken by respondents, in the background of the case, cannot be said to be unwarranted. Though petitioner is stated to have been 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 petitioner to be appointed to a service of disciplined force and not the actual result thereof. Thus the decision taken by respondents not to make appointment order in favour of petitioner, cannot be said to be arbitrary or perverse, more particularly in view of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules and the Rules framed under the Jammu and Kashmir Police Act.
11. Learned Additional Advocate General, appearing for the respondents, states that so far as appointment is concerned, the person whose name is merely born in the select list has no absolute and final right of appointment but subject to fulfillment of stipulations prescribed by Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules and the Rules framed under the Jammu and Kashmir Police Act. Select list indicates that the petitioner was considered by the selection committee for selecting him provisionally, but so far as the verification as regards the character and antecedents is concerned, as per the rule, it was required to be verified from the authorities concerned and it was only after receipt of the verificationreport qua character and antecedents of petitioner that respondents could have proceeded ahead in the matter and make appointment order. Since adverse report was received from the concerned authorities qua the character and antecedents of petitioner, the appointment in favour of petitioner was not issued by respondents.
12. The Supreme Court in case of TaginLitinv. State of Arunachal Pradesh and others [AIR 1996 SC 2121] in so far as it relates to an appointment, has pointed out as under:-
Here we are concerned with appointment to a post. An appointment to a post or office postulates:-
(a) a decision by the competent authority to appoint a particular person;
(b) incorporation of the said decision in an order of appointment; and
(c) communication of the order of appointment to the person who is being appointed.
All the three requirements must be fulfilled for an appointment to be effective.
13. Thus, mere inclusion of the name in the select list is not sufficient. There must be communication of the order of appointment to the person who is being appointed. The gap between the selection and the communication is required to be bridged by the satisfaction of the appointing authority on the aspect of character and antecedents and if that gap is not bridged, it is not possible to say that on mere inclusion of the name in the select list, the candidate has a right to get an appointment.
14. There are decisions of the Apex Court pointing out that mere inclusion of name in the list of selected candidates would not confer any right on the candidates to be appointed. The Apex Court in case of Union Territory of Chandigarh v. Dilbagh Singh [1993(1) SCC 154] has held that a candidate whose name finds place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed on such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bonafide or valid reason. In case of State of Bihar versus Secretariat Assistant Successful Examinees Union 19986 (1994(1) SCC 126), the Supreme Court has held that a person having been selected does not, on account of being empanelled alone, acquire any indefeasible right to appointment. The Supreme Court, considering these two judgments and various other judgments in case of N. Mohananv. State of Kerala [AIR 1997 SC 1896], has pointed out that mere inclusion of name in the list of selected candidates does not confer any right on the candidate for being appointed.
15. Once the rule making authority has prescribed procedure to be followed for verification, then that procedure is to be strictly followed. If someone is appointed while bypassing the procedure, then the State would be required to face litigation, stating that State is acting arbitrarily, beyond the scope of the Rules. In this regard, in case of BharathariSinghania and other v. Commissioner of Wealth Tax (Central) and others [1993 Suppl. (3) SCC 46], the Supreme Court has pointed out as under:
The rule-making authority has prescribed under Rule 1-D only one method for valuing the unquoted equity shares. If this method were not to be followed, there is no other method prescribed by the rules. As the rule is good and valid, it has to be followed in each and every case. It is not a matter of choice or option.
16. In Union of India &Ors. v. M. Bhaskaran[1995 Supp (4) SCC 100] the Supreme Court held:
6Consequently, it has to be held that the respondents were guilty of misrepresentation and fraud perpetrated on the appellant- employer while getting employed in railway service and had snatched such employment which would not have been made available to them if they were not armed with such bogus and forged labourer service cards.It was clearly a case of fraud on the appellant- employer. If once such fraud is detected, the appointment orders themselves which were found to be tainted and vitiated by fraud and acts of cheating on the part of employees, were liable to be recalled and were at least voidable at the option of the employer concerned. This is precisely what has happened in the present case. Once the fraud of the respondents in getting such employment was detected, the respondents were proceeded against in departmental enquiries and were called upon to have their say and thereafter have been removed from service. Such orders of removal would amount to recalling of fraudulently obtained erroneous appointment orders which were avoided by the employer-appellant after following the due procedure of law and complying with the principles of natural justice. .The aggrieved are all those who had similar or even better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement. It amounts to a fraud on public to appoint persons with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable. No court should be a party to the perpetuation of the fraudulent practice. It is of course true as noted by the Tribunal that the facts of the case in the aforesaid decision were different from the facts of the present case. And it is also true that in that case pending the service which was continued pursuant to the order of the Tribunal the candidate concerned acquired the requisite qualification and hence his appointment was not disturbed by this Court. But that is neither here not there. As laid down in the aforesaid decision, if by committing fraud any employment is obtained, such a fraudulent practice cannot be permitted to be countenanced by a court of law. Consequently, it must be held that the Tribunal had committed a patent error of law in directing reinstatement of the respondent- workmen with all consequential benefits.
17. In Bank of Baroda v. Central Govt. Industrial Tribunal [1999 (2) SCC 247],the Supreme Court pointed out:
6.Learned counsel for the appellant submitted that once the Labour Court has found that the respondent was guilty of suppression of relevant facts and had also snatched an order of appointment which would not have been given to him had he not deliberately concealed the fact about the aforesaid prosecution against him for an offence under Section 307 of the Indian Penal Code, there was no question of awarding him any lesser punishment save and except confirming the order of termination. In this connection, he invited our attention to a decision of this Court in the case of Union of India v. M. Bhaskaran [1995 Supp (4) SCC 100] wherein it has been clearly held that when appointment is procured by a workman on the basis of bogus and forged casual labourers service card, it would amount to misrepresentation and fraud on the employer and, therefore, it would create no equity in favour of the workman or any estoppel against the employer and for such misconduct, termination would be justified and there was no question of holding any domestic enquiry.
7. There could be no dispute on this settled legal position
18. In KendriyaVidyalayaSangathanv. Ram RatanYadav [2003 (3) SCC 437], the Supreme Court has laid down the following law in no uncertain terms:
12. The object of requiring information in columns 12 and 13 of the attestation form and certification thereafter by the candidate was to ascertain and verify the character and antecedents to judge his suitability to continue in service. A candidate having suppressed material information and/ or giving false information cannot claim right to continue in service. The employer having regard to the nature of the employment and all other aspects had discretion to terminate his services, which is made expressly clear in para 9 of the offer of appointment. The purpose of seeking information as per columns 12 and 13 was not to find out either the nature or gravity of the offence or the result of a criminal case ultimately. The information in the said columns was sought with a view to judge the character and antecedents of the respondent to continue in service or not.
The High Court, in our view, has failed to see this aspect of the matter. It went wrong in saying that the criminal case had been subsequently withdrawn and that the offences, in which the respondent was alleged to have been involved, were also not of serious nature. In the present case the respondent was to serve as a Physical Education Teacher in KendriyaVidyalaya. The character, conduct and antecedent of a teacher will have some impact on the minds of the students of impressionable age. The appellants having considered all the aspects passed the order of dismissal of the respondent from service. The Tribunal after due consideration rightly recorded a finding of fact in upholding the order of dismissal passed by the appellants. The High Court was clearly in error in upsetting the order of the Tribunal. The High Court was again not right in taking note of the withdrawal of the case by the State Government and that the case was not of a serious nature to set aside the order of the Tribunal on that ground as well. The respondent accepted the offer of appointment subject to the terms and conditions mentioned therein with his eyes wide open. Para 9 of the said memorandum extracted above in clear terms kept the respondent informed that the suppression of any information may lead to dismissal from service. In the attestation form, the respondent has certified that the information given by him is correct and complete to the best of his knowledge and belief; if he could not understand the contents of column nos. 12 and 13, he could not certify so. Having certified that the information given by him is correct and complete, his version cannot be accepted. The order of termination of services clearly shows that there has been due consideration of various aspects. In this view, the argument of the learned counsel for the respondent that as per para 9 of the memorandum, the termination of service was not automatic, cannot be accepted.
19. In Union of India and Ors. Vs. BipadBhanjanGayen [2008 (11) SCC 314], the Supreme Court has pointed out as under:
10. It bears repetition that what has led to the termination of service of the respondent is not his involvement in the two cases which were then pending, and in which he had been discharged subsequently, but the fact that he had withheld relevant information while filling in the attestation form. We are further of the opinion that an employment as a police officer pre-
supposes a high 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.
20. In Daya Shankar Yadav Vs. Union of India &Ors [(2010) 14 SCC 103], all the earlier decisions right from Delhi Administration v. Sushil Kumar (supra) ending with Union of India &Orsv.
BipadBhanjanGayen(supra) including KendriyaVidyalayaSangathanv. Ram RatanYadav(supra) were considered in detail and the preposition of law was laid down as under:
16. Thus an employee on probation can be discharged from service or a prospective employee may be refused employment: i) on the ground of unsatisfactory antecedents and character, disclosed from his conviction in a criminal case, or his involvement in a criminal offence (even if he was acquitted on technical grounds or by giving benefit of doubt) or other conduct (like copying in examination) or rustication or suspension or debarment from college, etc.; and (ii) on the ground of suppression of material information or making false statement in reply to queries relating to prosecution or conviction for a criminal offence (even if he was ultimately acquitted in the criminal case).
21. It is pertinent to point out here that perusal of judgment dated 27.08.2012 of Judicial Magistrate 1st Class Shopian, whereby petitioner has been acquitted, reveals that FIR No.84/2010, in which petitioners name, amongst other accused persons, also figure, was registered in August 2010 and Charge Sheet was presented on 20th November 2010. Now so far as writ petition on hand is concerned, it has been filed on 27th June 2011, meaning thereby much after registration of FIR as also presentation of Charge Sheet and it is during pendency of writ petition that petitioner has been acquitted. The petitioner, during pendency of criminal case, came to be selected provisionally vide Order No.51 of 2011 dated 10th February 2011. His character and antecedents were got verified a fundamental condition to be followed and complied with by appointing authority while appointing any person, who is State Subject/Permanent Resident of J&K State, on any public post by direct recruitment as stipulated and envisaged by J&K Civil Services (Classification, Control and Appeal) Rules, 1956. The verification report received by the appointing authority respondents, disclosed unsatisfactory antecedents and character, and involvement of petitioner in case FIR No.84/2010. The verification of character and antecedents is one of important condition stipulated by J&K Civil Services (Classification Control and Appeal) Rules, and Rules framed under Jammu and Kashmir Police Act, to test whether selected candidate (petitioner) is suitable to the post under the State, though he was found physically fit, passed the written test and interview etc. and was provisionally selected, but on account of antecedent record, the respondentsfound it not desirable to appoint him as a Constable to the disciplined force. The view taken by respondents in the background of the case cannot be said to be unwarranted. The respondents, for that reason, have rightly focused this aspect and found it not desirable to appoint petitioner to the service.
22. In view of the provisions indicated in the Police Act, the rules framed thereunder, the provisions of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, as also the law discussed herein above, the appointing authority has followed the set procedure and as already pointed out that a candidate whose name merely finds place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in absence of any specific rule entitling him for such appointment. So is the case here. The petitioner was provisionally selected. His appointment could have been issued only after following and complying with the provisions of the Police Act, the rules framed thereunder and Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules. Therefore, the writ petition is devoid of any merit.
23. Keeping in view the above discussion, the judgments, relied upon by learned counsel for petitioner, are not applicable to the instant case for the simple reason that facts and circumstances in those cases are completely different with instant case.
24. In light of foregoing reasons, the writ petition is held to be without any merit, and is, accordingly, dismissed. Interim direction(s) shall stand vacated.
(TashiRabstan) Judge Srinagar 22/08/2013 Ajaz Ahmad