@JUDGMENTTAG-ORDER
P. Jyothimani, J.@mdashIn all these cases the petitioners, who have either applied for Grade II Police Constable for the year 2001-2003, 2003-2004 and post of Sub-Inspector for 1997-1998, have challenged the orders passed by the respondents rejecting their applications on the ground that they have failed to disclose some of the criminal cases, in which, they were involved and their conduct and character are not satisfactory based on Rule 14(B) of the Tamil Nadu Special Police Subordinate Service Rule, 1978.
2. The petitioners, pursuant to the advertisement issued by the Tamil Nadu Uniformed Services Recruitment Board, have applied for the recruitment to the post of Grade II Tamil Nadu Police Subordinate Service in the years stated above and for Sub-Inspector of Police and they were fully qualified for the post of Grade II Police Constable and Sub-Inspector of Police respectively.
3. The petitioners have undergone the verification of certificates and thereafter were permitted to undergo physical efficiency test in which, they have appeared in all the events conducted, namely, rope claim, 100 mts., running and long jump and after succeeding in the physical efficiency certificate test, they were directed to appear for written test and after they have successfully come out of the said written test, in which, the result was published, they were directed to appear for medical board constituted by the Government, in which also the petitioners have appeared. When subsequently, there was a verification of antecedents, the respondents found that the petitioners were involved in some of the criminal cases, however, later either discharge or acquitted. But the fact of the same was not disclosed and therefore, based on the above said rule their claim for the post was rejected and that is challenged in all these writ petitions.
4. The writ petitioner in W.P. No. 1635 of 2005, who has also applied for the Grade II Police Constable for the year 2001-2002 and was selected in all these process as stated above. The petitioner was involved in Crime No. 312 of 2003 on the file of the Vadaponparappi Police Station, Villupuram for an offense u/s 341, 294, 324, 323 and 506 part II of IPC and subsequently, after investigation having found that the petitioner was not involved and hence his name was deleted from the charge sheet as early as 15.11.2002 and the same was certified by the Sub-Inspector of Police, Vadaponparappi Police Station, Villupuram on 25.02.2003 that no criminal case is pending against the petitioner. The petitioner was not a member of any banned organization but was a member of All India Youth Federation from 15.11.2000 to 25.01.2001. A case in Crime No. 256 of 2004 u/s 151 Cr.Pc. was registered against the petitioner wrongly under the impression that he may participate in a meeting of the Association and later he was let off after it was known that it was nothing to do any agitation. It was on the basis that the petitioner has not disclosed the above said fact at the time of application the impugned order came to be passed as suppression.
5. In W.P. No. 34563 of 2005, the petitioner has applied for Grade II Police Constable (Men) called in 2002-2003. In the application asked to be filled up at the time of police verification, in the column calling the particulars as to whether he was involved in any criminal case pending or whether any other criminal case in which the petitioner was earlier involved, the petitioner has stated that Crime No. 43 in the Poonamallee Police Station u/s 147, 148, 341, 323 r/w Section 34 of IPC, was pending against him. The said criminal case has ended in acquittal by the order of the Judicial Magistrate, Poonamallee dated 15.03.2005 and in fact the petitioner has informed about the fact of acquittal to the respondents by enclosing the copy of the order passed in C.C. No. 595 of 2005 along with his letter dated 13.04.2005 addressed to the third respondent Superintendent of Police, Tiruvallur. In spite of the same the impugned order came to be passed.
6. In respect of W.P. No. 4909 of 2006, wherein also the petitioner was an applicant for Grade II Police Constable for the year 2003-2004, he was involved in two criminal cases in Crime No. 371 of 2003 in Thirubuvanam Police Station u/s 147, 353 and 506(1) IPC and Crime No. 170 of 2004 u/s 147, 323 and 427 IPC. In both the cases the petitioner was acquitted on 02.03.2005 and 13.01.2005 respectively. It is also the case of the petitioner that in the application he has disclosed about his involvement in the criminal case and subsequent acquittal also. In spite of the same the impugned order came to be passed against him.
7. In W.P. No. 25260 of 2006 wherein also the petitioner was an applicant for Grade II Police Constable for year 2001-2003. The petitioner was involved in a criminal case in Vasudevanallur Police Station in Crime No. 282 of 1999 u/s 341, 323 and 307 IPC and was acquitted by the Judicial Magistrate cum District Munsiff, Sivagiri u/s 320 Cr.P.C. on 09.07.1999, which was much before the application was filed for the present recruitment and therefore he has not disclosed the same. He has also informed about the acquittal in the criminal case by his representation dated 12.12.2003. In spite of the same the impugned order came to be passed against him.
8. In W.P. No. 25339 of 2006 wherein also the petitioner has applied for Grade II Police Constable for the year 2001-2003. He was involved in a criminal case in Crime No. 689 of 2002 of Jayamkondam Police Station for an offence u/s 341, 307 and 323 of IPC, which has ended in acquittal on 11.09.2003. However, he has not informed the same while filling up the application. In spite of the same, the impugned order came to be passed however, stating the fact that the petitioner was acquitted in the criminal case.
9. W.P. No. 25808 of 2006 wherein also the petitioner has applied for Grade II Police Constable for the year 2001-2003, the petitioner was found that he had been employed in CRPF and that fact has not been informed, while filling up the application, based on which the impugned order came to be passed.
10. In W.P. No. 37208 of 2006, the petitioner has applied for the post of Sub-Inspector of Police for the year 1997-1998, based on the advertisement issued by the respondents and having undergone all the test necessary and there has been proceeding before the Tamil Nadu Administrative Tribunal and also subsequently, before this Court in respect of zonal wise selection holding the same invalid and being one of the beneficiary of the Division Bench order of this Court, the petitioner was directed to appear for medical examination and ultimately under the impugned order dated 06.01.2006, in which it is stated that he was involved in Crime No. 1486 of 2003 u/s 341 and 332 IPC in the Ashok Nagar Police Station, Chennai. That was relating to owning of a shop in front of the Police Training College, the dispute between himself and his brother and the pendency of the criminal came to be known to the petitioner only in the year 2005 and after contest the petitioner was acquitted by the VII Metropolitan Magistrate Court, Chennai-15 on 13.06.2006 in C.C. No. 2932 of 2004. It is also the case of the petitioner that he has informed the respondents about the acquittal in the criminal case, in spite of the same, the impugned order came to be passed.
11. In W.P. No. 46330 of 2006 wherein also the petitioner has applied for Grade II Police Constable for the year 2001-2002, 2002-2003 wherein also the petitioner was involved in Crime Nos.99 of 1997, 342 of 1997, 938 of 1998 and 435 of 2002 in Kaliakaavilai Police Station u/s 320(8) and 248(1) of the IPC and ultimately, the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District has acquitted the petitioner, which was informed by the petitioner to the respondents in September 2003 and in spite of the same, the impugned order came to be passed.
12. The above said writ petitions are filed challenging the impugned orders mainly on the ground that while it is true that the petitioners were involved in those criminal cases, ultimately, even before the consideration by the respondents for the post concerned they were either acquitted or discharged from the said criminal cases and that therefore, the said facts cannot have any bearing upon the consideration for the post. On the other hand, it is the case of the respondents as it is seen in the counter affidavit filed in all these writ petitions that the selection process starts from physical measurement test, enduring test, physical efficiency test and written test which are various stages of selection and the list of provisionally selected candidates was drawn by the Tamil Nadu Uniformed Services Recruitment Board, Chennai and sent to the Director General of Police Tamil Nadu for passing medical examination to find out their physical fitness and police verification about their character and antecedents and then for issuance of the appointment order. While it is true that the writ petitioners were one among the candidates provisionally selected, during police verification it was found that the petitioners were involved in the said criminal cases and therefore, according to the respondents their character and antecedents, were considered, not satisfactory and they were not appointed to the post and the said fact was intimated to the concerned petitioners under the impugned orders.
13. The respondents would also submit that no person is eligible for appointment by direct recruitment unless certain conditions are satisfied under Rule 14(B) of the Special Rules for Tamil Nadu Special Police Subordinate Service Rules, 1978. The said rule is extracted below:
b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority.
(i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service and
(ii) that his character and antecedents are such as to qualify him for such service
(iii) that such a person does not have more than one wife living.
(iv) that he has not involved in any criminal case before Police Verification.
14. It is also stated that the Government in exercise of the powers conferred u/s 8 and 10 of the Tamil Nadu District Police Act, 1859 and Section 9 and 11 of the Chennai City Police Act, 1888 read with proviso to Article 309 of the Constitution of India, has issued an amendment to the above said Rule 14 in G.O. Ms. No. 101 Home (Pol.IX) Department dated 30.01.2003 and after the said amendment, Rule 14(2)(b)(iv) included two explanations, namely,
Explanation: (1) A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a criminal case.
Explanation 2: A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment.
15. Therefore, according to the respondents in cases where there is a discharge or acquittal due to benefit of doubt or complainants or witnesses "turned hostile", it is treated as involvement in criminal case and in respect of cases where there is honourable acquittal such candidates shall be treated as not involved in a criminal case but can claim right of appointment only by participating in the next recruitment.
16. According to the respondents, the date of acquittal is not material. When once a person is found to have involved in a criminal case, ended in acquittal on benefit of doubt etc., the same should be treated as tainted not with good character, since such persons appointed to the police department will only cast a shadow on the character and antecedents in the disciplined force. The acquittal given u/s 248(1) of Cr.P.C, is only on the benefit of doubt.
17. The respondents also would rely upon the judgment of the Hon''ble Apex Court reported in 1997 SCC (L&S) 492 in Delhi Administration and Ors. v. Sushil Kumar saying that the verification of person''s character and antecedents before the appointment, is a correct procedure.
18. In respect of the non disclosure of the criminal case which has ended in acquittal either by benefit of doubt or otherwise as to whether such non disclosure will vitally affect and on that basis a selected persons can be rejected appointment, came to be considered in hierarchy of judgments of the Hon''ble Apex Court and also the Division Bench as well as the single judges of this Court on many occasion. While considering the relevancy of a person involvement in a political activity at the past, the Hon''ble Apex court has held in State of Madhyapradesh v. Ramashankar Raghuvanshi and Anr. reported in 1983(1) LLJ 299 that such investigation is repugnant to the public right guaranteed by the constitution in the following words:
We do not have the slightest doubt that the whole business of seeking police reports, about the political faith belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the constitution and entirely misplaced in a democratic republic dedicated to the ideal set forth in the preamble of the constitution. We think it offends the fundamental rights guaranteed by Article 14 and 16 of the Constitution to deny employment to his individual because of his past political affinities unless such affinities have considered likely to affect the integrity and efficiency of the individuals service.
19. In yet another judgment of the Hon''ble Apex Court rendered in Pawan Kumar v. State of Haryana and Anr. reported in AIR 1996(4) SCC 17, wherein, while considering a person appointed in class IV post on adhoc basis and for regularization his character and antecedents were called for from the Superintendent of Police, who found that the petitioner therein was involved in an offence u/s 294 IPC causing annoyance in doing obscene act in public or singing an obscene song in public and ordered to pay a fine of Rs. 20 and on that basis the service of the petitioner therein was terminated. While setting aside the said termination, the Hon''ble Supreme Court has held that the conviction u/s 294 would not involve moral turpitude depriving him of his opportunity to serve the state. While applying the said ruling of the Hon''ble Apex Court in dealing with a case of a person who has applied for the post of ground-man in Jawaharlal Institute of Post Graduate Medical Examination and Research (JIPMER), Pondicherry the claim of the petitioner therein was rejected on the information of the Inspector General of Police, Pondicherry that the petitioner was involved in Crime No. 23 of 1994 u/s 160 IPC and has paid a fine of Rs. 50/-, the Hon''ble Division Bench of this Court in the judgment in
20. In yet another Division Bench judgment of this Court dated 22.06.2005 rendered in State of Tamil Nadu, rep. by its Secretary to Government, Home Department, Chennai-9 and Ors. v. G. Sathish Kumar and G. Spencer, having found that the non disclosure is a defect which can be curable and in such circumstances when subsequently, a person has given information, the appointing authority ought to have considered the same by following the judgment of the Hon''ble Apex Court in
5. Taking note of the fact that both the applicants were otherwise qualified and in fact considered for the Post of Grade-II Police Constable, because of the fact that they did not inform about their antecedents, particularly involvement in criminal case, in their respective applications, they were not given appointment orders. We also verified from the respective applications. Though both the applicants have not mentioned their involvement in criminal case prior to selection, the fact remains, both of them, immediately after submitting their application, volenteered and furnished necessary information regarding their acquittal in the criminal case filed against them. This aspect is also not in dispute. The Tribunal, on consideration of the fact that both the applicants were otherwise fully qualified for being considered for appointment as Grade-I Police Constable and taking note of their conduct in submitting the details regarding their involvement in criminal case voluntarily before taking decision, issued positive direction to the Director General of Police for appointing them as Grade-II Police Constable within a period of eight weeks from the date of receipt of copy of the said order.
6. Learned Counsel appearing for the contesting first respondent in both the Writ petitions, apart from contending that both of them satisfied and fulfilled the criteria for selection to the post of Grade-II Police Constable, also argued that though they failed to refer the criminal case prior to the selection process, inasmuch as they volunteered and communicated the required details regarding acquittal in the criminal case, the appointing authority ought to have issued orders and as the same was rightly considered and accepted by the Tribunal, there is no ground for interference. In support of their contention, they also relied on a decision of the Apex Court reported in
... The cancellation of the candidature under the circumstances was without any proper application of mind and without taking into consideration all relevant material. The Tribunal, therefore, rightly set it aside. We uphold the order of the Tribunal, though for slightly different reasons, as mentioned above.
7. It is not in dispute that by applying the conclusion arrived at in the above referred case, the impugned orders of the Tribunal cannot be faulted with. We have already referred to the fact that both the applicants/first respondent in the above writ petitions satisfied and fulfilled all the required conditions/qualifications, but there was one defect, viz., omission to fill in clause No. 15 of the application. As observed by the Supreme Court, the said defect is curable and in view of the fact that information was furnished by the applicants voluntarily, the appointing authority ought to have considered the same and appointed them as claimed.
21. In the said judgment of the Hon''ble Apex Court rendered in
22. As rightly pointed out by Mr. M. Sundar learned Counsel appearing for the petitioner in W.P. No. 46330 of 2006, in a subsequent judgment of the Hon''ble First Bench of this Court rendered in W.P. No. 21671 of 2005 dated 06.12.2005, the Hon''ble First Bench by narrating all the judgments on the topic from the Supreme as also the other Division Bench judgments as stated above especially by placing reliance on the judgment of the Hon''ble Apex Court reported in
23. Even though it is true that in all the cases mentioned above wherein either there has been acquittal or imposition of fine which are of petty nature, it remains the fact that in these writ petitions, the petitioners were either legally discharged or honourably acquitted and in any event it is not even the case of the respondents that any criminal proceedings are pending against these petitioners. It is relevant to point out that in respect of petitioner in W.P. No. 25808 of 2006, the charge itself is not that he was involved in any criminal case but he was employed in CRPF and that has not been mentioned. Applying the principles lay down in the hierarchy of judgments stated above there is absolutely no reason as far as that case is concerned to say that there is a suppression of fact and it is likely to affect the selection process, especially in the circumstances that it is not in the condition that for any person who applies for the post he should be unemployed and in few of the cases as stated above, the petitioners have disclosed either at the time of application made before the authorities or by subsequent communications.
24. In view of the hierarchy of judgments as I have enumerated above, the contentions raised on behalf of the respondents that the non mentioning of the criminal case or subsequent acquittal alone cannot be take as a ground for the purpose of denying the opportunity to the petitioners for being considered.
25. On the other hand, a reference to the impugned order in all these cases and also a reading of the counter affidavit shows that the previous conduct of the petitioners were found to be not satisfactory only on the ground of non mentioning of the criminal cases filed against the petitioners. Apart from stating that due to the non mentioning of the criminal cases and employment in CRPF in W.P. No. 25808 of 2006, there is no other reason given in the impugned orders.
26. As far as the case in W.P. No. 1635 of 2005 is concerned, it is very strange that a person stated to have involved in an organization which fact is denied by the petitioner of course, and on the basis of a case filed u/s 151 Criminal Procedure Code, which relates to prevention arrest of a person regarding the Commission of a cognizable offence and even that cases ended in acquittal.
27. As far as the contention raised on behalf of the respondents that after the statutory amendment effected to the Tamil Nadu Special Police Subordinate Services Rules, effected by G.O.Ms. No. 101 dated 30.01.2003, especially with reference to explanation contained therein as enumerated above, it says even a person acquitted or discharged on benefit of doubt or in cases where a complainant turned hostile should be treated as involvement in a criminal case, the reference to the impugned order show that that it is not the reason given any where.
28. It is also relevant to point out that apart from the fact that no such reasons are elaborated in the impugned order, the petitioners have not been given any opportunity to at all, to explain their case, especially in respect of many of the cases wherein information have been subsequently furnished.
29. In view of the above said facts and circumstances and relying upon the judgments as stated above, the writ petitions stand allowed and the respective impugned orders are set aside with a direction to the respondents to consider the cases of the petitioners for selection, if they are otherwise qualified.
30. With the above direction the writ petitions are allowed. No Costs. Consequently, connected W.P.M. Ps. are closed.
