K.Satyanarayanan v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.09.2009CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESANand THE HONOURABLE MR. JUSTICE M.JAICHANDRENW.A.No.1231 of 2009K.Satyanarayanan.. AppellantVs1. The State of Tamil Nadu, rep. By Secretary to Government Home (Police II) Department, Fort St. George, Chennai.2. The Director General of Police, Chennai... RespondentsAppeal against the order of this Court in W.P.No.16013 of 2008dated 10.12.2008. Petition filed under sec.226 of the constitution ofIndia for the issuance of Writ of certiorarified mandamus to call forthe records on the file of the 2nd respondent in ProceedingsNa.ka.No. 016253/Niyamanam (1)/2008-31 dated 23.05.08 and quash thesame and consequently direct the respondents to appoint thepetitioner to the post of Grade-II Police Constable with effect fromthe date of appointment of the order selected candidates at the nameselection within the time that may be stipulated by this HonourableCourt.For Appellant: Mr.K.Venkataramani, S.C. For Mr.R.DhineshkumarFor Respondents: Ms.Sneha, G.A.J U D G M E N T(Delivered by D.MURUGESAN, J.)The appellant applied for selection and appointment to the postof Grade II police constable pursuant to the notification made in theyear 2006. He participated in the selection process, such asphysical test, written test and medical test and was successful.While he was waiting for the final order of selection andappointment, he was issued with the order dated 23.5.2008 denying theappointment. That order reads as under:- https://hcservices.ecourts.gov.in/hcservices/ "Tr.K.Sathyanarayanan (Register No.0802688, 2006), afterhis having passed the written examination for the post ofGrade-2 Constable; enquiry was made as regards his pastconduct and character. In the aforesaid inquiry, thefollowing deficiencies have been reported."He has been involved in Criminal Cases".2)The details about the Criminal Case:He was connected as the Accused-1 in the DharmapuriPolice Station Criminal Case No.1256/2005 U/s.341, 323 IPC.The aforesaid case was decided as ('Mistake of Fact') on 7-11-2005.3) As per rule 14(b) of Tamil Nadu Special Police Sub-ordinate Service; for the appointment of the post of Grade-2 Constable; one should not be connected with any Criminalcase whatsoever and his conduct and character should besatisfactory.4) He is hereby informed that, because of the deficienciesmentioned in para-1; on the basis of his conduct andcharacter not being satisfactory; he is not appointed tothe post of Grade-2 Constable."The appellant questioned the above order by filing a writ petitionand the same was dismissed placing reliance on Rule 14(b) of theTamil Nadu Special Police Subordinate Service Rules. The said rulereads as hereunder:-"14(b). No person shall be eligible for appointment to theservice by direct recruitment unless he satisfies theappointing authority.i) that he is of sound health, active habits and free fromany bodily defect or infirmity unfitting him for suchservice; andii) that his character and antecedents are such as toqualify him for such service; andiii) that such a person does not have more than one wifeliving.Explanation: (1) A person who is acquitted or dischargedon benefit of doubt or due to the fact that the complainant"turned hostile" shall be treated as person involved in acriminal case. https://hcservices.ecourts.gov.in/hcservices/ Explanation: (2) A person involved in a criminal case atthe time of police verification and the case yet to bedisposed of and subsequently ended in honourable acquittalor treated as mistake of fact shall be treated as notinvolved in a criminal case and he can claim right forappointment only by participating in the next recruitment."The writ appeal is directed against the said order in the writpetition.2.Mr.K.Venkataramani, learned senior counsel appearing for theappellant, would submit that on the facts of this case, Rule 14(b) ofthe Rules is not applicable. Though the said rule contemplates thatthe character and antecedents are relevant for the purpose ofselection and explanation (1) to the said rule relates to theacquittal on benefit of doubt and when the complainant turnedhostile, it should be treated as disqualification, by virtue ofexplanation (2) to the said Rule, in the event a complaint is closedas mistake of fact, it should not be treated as a disqualification.3.We have also heard the learned Government Advocate on theabove said submission.4.It is true that for the recruitment to the post of policeconstable, character and antecedents of the candidates are very muchrelevant and the Board, which is competent to make selection, isentitled to verify such character and antecedents before issue ofappointment order. It is also made clear that whenever candidatesappear for selection, in the event it is brought to the notice of theBoard that the candidates, who appear for selection, had involved ina criminal case and faced a trial and ultimately, acquitted on theground of benefit of doubt or the complainant having turned hostile,still such benefit of doubt and the acquittal on the ground that thewitness turned hostile could be a disqualification in terms ofexplanation (1). However, that is not the case in the event acomplaint is registered against such a candidate and in the course ofinvestigation, the investigating officer found that no case is madeout and consequently, files a final report for closure of the case onthe ground of mistake of fact, as in terms of explanation (2), itwould not amount to any disqualification. Nevertheless, as per thesaid explanation, such candidates would be entitled to be consideredfor next selection.5.Having regard to the above rule read with explanations, thefacts in the case must be considered. There is no dispute that acase was registered against the appellant in Crime No.1256 of 2005 on24.7.2005 on the file of Dharmapuri police station. Afterinvestigation, by a referred charge sheet dated 7.11.2005, thecomplaint against the appellant was closed as "mistake of fact". Aperusal of the order dated 23.5.2008 questioned in the writ petition https://hcservices.ecourts.gov.in/hcservices/ shows that the appellant was denied the selection and appointmentsolely on the ground that he is involved in a criminal case. Hence,the case on hand would squarely fall under explanation (2) of Rule 14(b) of the Rules and in such event, the registration of a criminalcase against the appellant cannot be considered to be adisqualification for selection to the post of police constable. Inview of the same, we find merit in the submission of the learnedsenior counsel for the appellant and the findings of the learnedsingle Judge that mistake of fact would amount to disqualificationcannot be sustained.6.This takes us to the next question as to whether therespondents should be directed to appoint the petitioner at the timeof next selection. In order to find out as to whether any vacanciesare available for the present in view of the fact that the appellanthad participated in the selection for the year 2006 and alreadynearly three years have elapsed, we directed the learned GovernmentAdvocate to find out as to the vacancies available. On instructions,the learned Government Advocate has submitted that there arevacancies available to the said post.7.In that view of the matter, instead of directing therespondents to permit the appellant for his appointment at the timeof next selection, we direct the respondents to appoint thepetitioner in any one of the vacancies, which are available atpresent and consequently, provide him posting after training. Withthe above directions, the writ appeal is allowed and the order in thewrit petition as well as the original order impugned in the writpetition are set aside. No costs. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsraTo1. The Secretary to Government State of Tamil Nadu, Home (Police II) Department, Fort St. George, Chennai.2. The Director General of Police, Chennai.1 cc To M/s.R.Dhineshkumar, Advocate, SR.477501 cc To The Government Pleader, SR.48007 W.A.No.1231 of 2009AKR(CO)SRA(7/10/2009)