P.Virabhagu v. The Union of Indiarep. By the Secretary to Govt. of IndiaMinistry

appointment to the post of Groundman in the Jawaharlal Instituteof Post Graduate Medical Examination and Research, Pondicherryagainst the vacancy for which the petitioner was selectedin the interview held on 18.2.1999. 2. The petitioner was sponsored by the employmentexchange, Pondicherry to the post of Ground man in theJawaharlal Institute of Post Graduate Medical Examination andResearch (hereinafter referred to as JIPMER) and thereupon theAdministrative officer under the second respondent sent a callletter to the petitioner in Memorandum No.Estt.2(42)/97 dated1.2.1999 asking the petitioner to appear for an interview tothe said post on 18.2.1999. The petitioner was selected forthe above said post and the same was displayed in the noticeboard. Thereafter, the first respondent issued a memorandumNo.Estt.2(42)/97 dated 15.5.1999 asking the petitioner to fillup the attestation form enclosed therewith and the same wassubmitted by the petitioner after duly filled-in. However, thethird respondent informed the petitioner by the impugnedMemorandum No.Estt.2(42)/97 dated 20/22.9.1999 that thepetitioner could not be considered for appointment to the postof Ground man. Thereafter, the petitioner sent arepresentation to the second respondent. Having not receivedany reply, the petitioner filed an application in O.A.No.376of 2000 before the Central Administrative Tribunal, whichdismissed the same by its order dated 12.4.2000. Hence, thepresent Writ Petition. 3. In the counter filed by the respondents, it isstated that the attestation form submitted by the petitioner wasforwarded to the Chief Secretary of Pondicherry forfurnishing a report on the character and antecedent of thepetitioner. Based on the report of the Inspector General ofPolice, Pondicherry, the fourth respondent in his letterNo.A.16012/9/99/DPAR/CC dated 3.9.1999 informed that since theindividual involved in a case in Cr.No.23/94 under Section 160I.P.C. , dated 24.2.1994 on the file of Lawspet Police Stationand paid a fine of Rs.50/- before JFCM Court, Pondicherry inS.T.R.No.3278 of 1994 on 24.6.1994 and the individual hadfurnished false information in Col.No.12 of the attestationform, he is not suitable for Government Service. On the basisof the letter of the fourth respondent, who is the competentauthority, the third respondent informed the petitioner by aMemo. No.Estt.2(42)/97 dated 20/22.9.1999 that the petitionercannot be considered for the post of Ground man. It is statedthat based on the report from the Character and AntecedentsAuthority and suppression of the fact in the Attestation Formby the petitioner despite warning Clause, the action of thethird respondent is well within the ambit of Government Rulesand Regulations and it is not violative of the principles ofnatural justice. 4. Heard both sides. 5. It is an admitted fact that the employmentexchange, Pondicherry sponsored the petitioner to the second https://hcservices.ecourts.gov.in/hcservices/ respondent for selection to the post of Ground man inJIPMER. No doubt, in the interview conducted by theSelection Committee under the Second Respondent on 18.2.1999,the petitioner was provisionally selected. 6. Subsequently, the petitioner was asked by thefirst respondent to submit the attestation form after dulyfilled-in and the same was submitted by the petitioner, afterduly filled in, to the authority concerned. Thereafter, thethird respondent sent the attestation form to the ChiefSecretary, Government of Pondicherry for verification of thepetitioner's character and antecedent. 7. After verification, the fourth respondent sent areport to the Second respondent informing that the petitionerwas not a suitable person for Government Service. On thatbasis, the third respondent issued a memorandum to thepetitioner informing him that the petitioner could not beconsidered for appointment to the post of Ground man.8. Aggrieved against the memorandum issued by thethird respondent in his letter dated 20/22.9.1999, thepetitioner submitted a representation to the second respondentto reconsider his decision and to appoint the petitioner asGroundman. However, the same was not considered. Thereafter,the petitioner approached the Central Administrative Tribunalby filing an application in O.A.No.376 of 2000, challenging thememo the third respondent as unconstitutional and violative ofArticles 14 and 16 of the Constitution of India. However,the Tribunal dismissed the said application on 12.4.2000. 9. As against the dismissal order passed by theTribunal, present Writ petition has been filed by thepetitioner. 10. The only point to be decided in this petition iswhether the memo issued by the third respondent is arbitraryand violative of Articles 14 and 16 Constitution of India. 11. It is not in dispute the reasons stated by therespondents 1 to 3 in their counter for not considering thepetitioner to the post of Ground man as he is not suitable forGovernment Service. The reasons stated in the counter are asfollows. a. The petitioner involved in a case in Cr.No.23 of1994 under Section 160 I.P.C. dated 24.2.1994 of LawspetPolice Station and that he paid a fine of Rs.50/- on24.6.1994 before the First Class Judicial Magistrate,Pondicherry in S.T.R.No.3278 of 1994. b. The petitioner had furnished a false informationin Col.No.12 of the attestation form. 12. Since the third respondent found the petitionerthat he is not suitable for Government Service for the reasonsstated above, he sent a memorandum, dated 20/22.9.1999informing the same to the petitioner. 13. The learned counsel appearing for the petitionerwould submit that the Tribunal without analysing the https://hcservices.ecourts.gov.in/hcservices/ circumstances has erroneously concluded that the impugnedorder passed by the third respondent is justifiable one andhence, it upheld the order passed by the third respondent. 14. At this juncture, it is just and necessary forthis Court to refer to the said order passed by the Tribunal.The order of the Tribunal reads as follows: "We cannot sit on appeal over suchorders. The applicant has not been recruitedat all. Once if the character and antecedentsis found unfit, we do not think that theprinciples of natural justice to be compliedwith. When a person appears for an interviewwith regard to the recruitment, it is always opento the official respondents to verify thecharacter and antecedents. When the same isfound unfit, the the impugned order in our viewhas been correctly passed and we do not thinkthat we can sit on appeal over such orders.There are no merits in the application and theO.A. is accordingly dismissed."15. The learned counsel for the petitioner wouldsubmit that the Tribunal passed the above order without applyingits mind and therefore, the same has to be set aside for thefollowing reasons. 16. It is factually incorrect to hold that theapplicant has not been recruited at all. It is pointed outthat the petitioner was selected provisionally by theauthority concerned after following the procedures forrecruitment as stated above and therefore, it is incorrect tosay that the petitioner has not been recruited at all. At thisjuncture, the learned counsel appearing for the petitioner wouldcontend that since the petitioner was provisionally selectedand his selection was displayed in the notice board and aftergetting the attestation form duly filled-in by the petitioner,the issuance of memo, dated 20/22.9.1999, by the thirdrespondent informing that the petitioner cannot be consideredfor appointment to the post of Groundman without assigning anyreason therefor, is arbitrary and therefore, the same has tobe set aside. 17. Further, the learned counsel would contend thatthe third respondent before issuing such memo, he should havegiven an opportunity to explain his stand or position to thereason on which the respondent disqualified the petitioner forappointment to the post of Groundman and therefore, the issuanceof the said memo, without affording any opportunity to thepetitioner, is in violation of principles of natural justice.18. In support of his contention, the learned counselrelied on the following decisions. 19. In S. GOVINDARAJU VS. K.S.R.T.C. AND ANOTHER(A.T.R.1986(2) S.C.362), the Supreme Court deals with theaffording of an opportunity to an employee before deletion of https://hcservices.ecourts.gov.in/hcservices/ his name from the selection list, otherwise, it held that, itwould amount to violation of principles of natural justice. 20. In the above said decision, the appellant wasselected for appointment as conductor in the Karnataka StateRoad Transport Corporation. After the completion of one yearservice, his service was terminated. Challenging the saidtermination order passed by the department, he approached theHigh Court of Karnataka by filing a Writ petition underArticle 226 of the Constitution of India as void and illegal forthe non-compliance of Section 25F of the Industrial DisputesAct, 1947. 21. However, a learned Single Judge of the High Courtof Karnataka rejected the petition holding that the orderof termination was made in terms under which employment wasgiven to him and it did not amount to retrenchment in view ofSection 2(oo)(bb) of the Act. 22. As against the order passed by the learned SingleJudge, the appellant preferred a civil appeal before theSupreme Court. 23. While dealing with the above said case, theSupreme Court held as follows: "Once a candidate is selected and his name isincluded in the select list for appointment inaccordance with the Regulations he gets a right tobe considered for appointment as and when vacancyarises. On the removal of his name from the selectlist serious consequences entail as he forfeitshis right to employment in future. In such asituation even though the Regulations do notstipulate for affording any opportunity to theemployee, the principles of natural justice wouldbe attracted and the employee would be entitled toan opportunity of explanation, though no elaborateenquiry would be necessary. Giving an opportunityof explanation would meet the bare minimalrequirement of natural justice. Before theservices of an employee are terminated, resultingin forfeiture of his right to be considered foremployment, opportunity of explanation must beafforded to the employee concerned. The appellantwas not afforded any opportunity of explanationbefore the issue of the impugned order;consequently the order is rendered null and voidbeing inconsistent with the principles of naturaljustice. We accordingly allow the appeal and setaside the order of the High Court and also theorder of termination and direct that the appellantshall be treated in service and be paid his backwages and other benefits. The appeal is allowedwith costs."24. The decision in STATE OF MADHYA PRADESH V. https://hcservices.ecourts.gov.in/hcservices/ RAMASHANKAR RAGHUVANSHI AND ANOTHER (1983 I L.L.J. 299) dealswith the removal of a teacher from service on the basis of thepolice report that the teacher had taken part in R.S.S. and JanSangh activities. 25. It is a case, wherein, the respondent prior tohis absorption into Government Service as a teacher, he tookpart in R.S.S. and Jan Sangh activities. However, he wasterminated from service on the basis of the report of theSuperintendent of Police, Raigarh, dated 31.10.1974 to theeffect that the individual was not a fit person to beentertained in Government Service as he had taken part inR.S.S. and Jan Sangh activities. When the matter was broughtbefore the Hon'ble Supreme Court by the State Government, whiledeciding the Civil Appeal, their Lordships have held in para-2of the judgment as follows: "2.India is not a police State. India is ademocratic republic. More than 30 years ago, onJanuary 26, 1950, the people of India resolved toconstitute India into a democratic republic and tosecure to all its citizens “Liberty of thought,expression, belief, faith and worship; Equality ofstatus and opportunity”; and to promote“Fraternity, assuring the dignity of theindividual”. This determination of the people, letus hope, is not a forgotten chapter of history.The determination has been written into thearticles of the Constitution in the shape ofFundamental Rights and they are what makes India ademocratic republic and what marks India fromauthoritarian or police States. The right tofreedom of speech and expression, the right toform associations and unions, the right toassemble peaceably and without arms, the right toequality before the law and the equal protectionof the laws, the right to equality of opportunityin matters relating to employment or appointmentto any office under the State are declaredFundamental Rights. Yet the Government of MadhyaPradesh seeks to deny employment to the respondenton the ground that the report of a Police Officerstated that he once belonged to some politicalorganisation. It is important to note that theaction sought to be taken against the respondentis not any disciplinary action on the ground ofhis present involvement in political activityafter entering the service of the Government,contrary to some Service Conduct Rule. It isfurther to be noted that it is not alleged thatthe respondent ever participated in any illegal,vicious or subversive activity. There is no hintthat the respondent was or is a perpetrator ofviolent deeds, or that he exhorted anyone tocommit violent deeds. There is no reference to anyaddiction to violence or vice or any incidentinvolving violence, vice or other crime. All that https://hcservices.ecourts.gov.in/hcservices/ is said is that before he was absorbed ingovernment service, he had taken part in some “RSSor Jan Sangh activities”. What those activitieswere has never been disclosed. Neither the RSS northe Jan Sangh is alleged to be engaged in anysubversive or other illegal activity; nor are theorganisations banned. Most people, includingintellectuals, may not agree with the programmeand philosophy of the Jan Sangh and the RSS or,for that matter, of many other political partiesand organisations of an altogether different hue.But that is irrelevant. Everyone is entitled tohis thoughts and views. There are no barriers. OurConstitution guarantees that. In fact members ofthese organisations continue to be Members ofParliament and State Legislatures. They are heard,often with respect, inside and outside theParliament. What then was the sin that therespondent committed in participating in somepolitical activity before his absorption intogovernment service? What was wrong in his being amember of an organisation which is not evenalleged to be devoted to subversive or illegalactivities? The whole idea of seeking a policereport on the political faith and the pastpolitical activity of a candidate for publicemployment appears to our mind to cut at the veryroot of the Fundamental Rights of equality ofopportunity in the matter of employment, freedomof expression and freedom of association. It is adifferent matter altogether if a police report issought on the question of the involvement of thecandidate in any criminal or subversive activityin order to find out his suitability for publicemployment. But why seek a police report on thepolitical faith of a candidate and act upon it?Politics is no crime. Does it mean that only TrueBelievers in the political faith of the party inpower for the time being are entitled to publicemployment? Would it not lead to devastatingresults, if such a policy is pursued by each ofthe Governments of the constituent States of Indiawhere different political parties may happen towield power, for the time being? Is publicemployment reserved for “the cringing and thecraven” in the words of Mr Justice Black of theUnited States Supreme Court? Is it not destructiveof the dignity of the individual mentioned in thePreamble of the Constitution? Is it to be putagainst a young man that before the cold climateof age and office freezes him into immobility, hetakes part in some political activity in a mildmanner. Most students and most young men areexhorted by national leaders to take part inpolitical activities and if they do get involvedin some form of agitation or the other, is it to https://hcservices.ecourts.gov.in/hcservices/ be to their ever lasting discredit? Some timesthey get involved because they feel strongly andbadly about injustice, because they are possessedof integrity and because they are fired byidealism. They get involved because they arepushed into the forefront by elderly leaders wholead and occasionally mislead them. Should allthese young men be debarred from publicemployment? Is Government service such a heaventhat only angels should seek entry into it? We donot have the slightest doubt that the wholebusiness of seeking police reports, about thepolitical faith, belief and association and thepast political activity of a candidate for publicemployment is repugnant to the basic rightsguaranteed by the Constitution and entirelymisplaced in a democratic republic dedicated tothe ideals set forth in the Preamble of theConstitution. We think it offends the FundamentalRights guaranteed by Articles 14 and 16 of theConstitution to deny employment to an individualbecause of his past political affinities, unlesssuch affinities are considered likely to affectthe integrity and efficiency of the individual’sservice. To hold otherwise would be to introduce“McCarthyism” into India. “McCarthyism” isobnoxious to the whole philosophy of ourConstitution. We do not want it."26. In ALOK GUPTA VS. STATE OF MADHYA PRADESH ANDANOTHER(1988-I-L.L.J.401), Gwalior Bench of the Madhya PradeshHigh Court held as follows: "6. The short question, therefore is whatis to be found projected in Annexure R-1? Doesit show that petitioner was tried for thecase which was registered against him for anyactivity in which his moral turpitude wasinvolved? Does it show conclusively that he wasa person whose conduct and character manifestedpropensities inherent in an undisciplinedperson? The only facts which are disclosed byAnnexure R-1 are that he was exercising hisFundamental Right to make a peacefuldemonstration against certain policy of theGovernment of the day. He is not shown to havebeen involved in any violent act or any anti-social or anti-State activities. True, there isa reference in the order that he was raisingslogans praising "R.S.S." which according toShri Qureshi was a banned "association" duringthe period of emergency. However, what wouldthat indicate? It would merely indicate somekind of illegal activity or at the most somepolitical activity, but not anti-social or anti-State activity. Nothing beyond that. If I haveto remember what was said long ago in Kameshar https://hcservices.ecourts.gov.in/hcservices/ Prasad (1962-I-L.L.J.-294) Ram Manohar Lohia (AIR)1966. SC.740 and Ramashankar Raghuvanshi (1983-I-LLJ-299) I cannot but refute Shri Qureshi'scontention as misconceived."27. In PAWAN KUMAR VS. STATE OF HARYANA AND ANOTHER((1996) 4 SCC 17) , the appellant was appointed on a Class IVpost on ad hoc basis. While he was in service, he wasconvicted in a summary trial for the offence under Section 294I.P.C. for causing annoyance to others by doing an obsceneact in public or singing/reciting an obscene song in publicand was ordered to pay a fine of Rs.20/-. When the authoritiescalled for a report with regard to the character andantecedents of the appellant for regularisation of his service,the Superintendent of Police informed the above fact and on thatground the service of the appellant was terminated. Since theappellant has become unsuccessful before the Courts below,including the High Court, he approached the Supreme Court.While dealing with the above said case, the Supreme Court heldas follows: "13. We had required of the respondents toproduce before us the copy of the judgment wherebythe appellant was convicted for the offence. Aswas expected only a copy of theinstitution/summary register maintained by theCourt of the Chief Judicial Magistrate, Bhiwaniwas placed before us showing that the appellant on4-6-1980 was imposed a fine of Rs20. A copy of thetreasury challan supporting that the fine paid wasdeposited by the Chief Judicial Magistrate thesame day has also been produced. The copy of thesummary register neither discloses the substanceof the allegations put to the appellant, nor thewords in which the plea of guilt was entered. Itis of no significance that the appellant treatshimself a convict as he had pleaded guilty. Exfacie it only shows that the entry concerns FIRNo. 231 of 3-6-1980 under Section 294 IPC.Therefrom it is difficult to discern the stepstaken in the summary trial proceedings and whathad the appellant pleaded to as guilty, whether tothe allegations in the FIR or to the provision ofthe IPC or any other particular? Mere payment offine of Rs20 does not go to show that theconviction was validly and legally recorded.Assuming that the conviction is not open tochallenge at the present juncture, we cannot butdeprecate the action of the respondents in havingproceeded to adversely certify the character andantecedents of the appellant on the basis of theconviction per se, opining to have involved moralturpitude, without satisfying the tests laid downin the policy decision of the Government. We arerather unhappy to note that all the three courtsbelow, even when invited to judge the matter inthe said perspective, went on to hold that theact/s involved in conviction under Section 294 IPC https://hcservices.ecourts.gov.in/hcservices/ per se established moral turpitude. They shouldhave been sensitive to the changing perspectivesand concepts of morality to appreciate the effectof Section 294 IPC on today’s society and itsstandards, and its changing views of obscenity.The matter unfortunately was dealt with casuallyat all levels.14.Before concluding this judgment we herebydraw the attention of Parliament to step in andperceive the large many cases which per law andpublic policy are tried summarily, involvingthousands and thousands of people throughout thecountry appearing before summary courts and payingsmall amounts of fine, more often than not, as ameasure of plea-bargaining. Foremost among thembeing traffic, municipal and other petty offencesunder the Indian Penal Code, mostly committed bythe young and/or the inexperienced. The cruelresult of a conviction of that kind and a fine ofpayment of a paltry sum on plea-bargaining is theend of the career, future or present, as the casemay be, of that young and/or inexperienced person,putting a blast to his life and his dreams. Lifeis too precious to be staked over a petty incidentlike this. Immediate remedial measures aretherefore necessary in raising the tolerationlimits with regard to petty offences especiallywhen tried summarily. Provision need be made thatpunishment of fine up to a certain limit, say upto Rs 2000 or so, on a summary/ordinary convictionshall not be treated as conviction at all for anypurpose and all the more for entry into andretention in government service. This can brook nodelay, whatsoever."28. In REGIONAL MANAGER, BANK OF BARODA VS.PRESIDING OFFICER, CENTRAL GOVT. INDUSTRIAL TRIBUNAL ANDANOTHER((1999)2 SUPREME COURT CASES 247), the Supreme Court heldas follows: "8. The facts which are well establishedon record and which have weighed with us forcoming to the aforesaid conclusion may now benoted. It is true that the respondent made a wrongstatement while replying to Query 27 of theapplication form that he had not been prosecutedat any time. It is equally true that the LabourCourt itself found that giving a false statementshould not be deemed to be such a grave misconductwhich may be visited with extreme punishment oftermination from service. However, it has also tobe noted that the appellant-Management whileissuing show-cause notice for the first time on26-2-1980 has in terms noted in the said noticethat not only the criminal proceedings were https://hcservices.ecourts.gov.in/hcservices/ pending but had ultimately ended in conviction ofthe respondent. The appellant itself thought itfit to await the decision of the criminal casebefore taking any precipitate action against therespondent for his misconduct. Thus, according tothe respondent, this suppression was not so graveas to immediately require the appellant to removethe respondent from service. On the contrary, inits wisdom, the appellant thought it fit to awaitthe decision of the criminal proceedings. This maybe presumably so because the charge against therespondent was that he was alleged to haveinvolved himself in an offence under Section 307of the Indian Penal Code. It was not an offenceinvolving cheating or misappropriation which wouldhave a direct impact on the decision of theappointing Bank whether to employ such a person atall. We may not delve further into the liberalapproach of the appellant itself when it did notthink it fit to immediately take action againstthe respondent but wait till the decision of thecriminal case. Be that as it may, once theSessions Court convicted the respondent, theappellant issued the impugned notice dated 26-2-1980. It can therefore be safely presumed that ifthe Sessions Court itself had acquitted therespondent, the appellant would not have decidedto terminate his services on this ground. So faras the notice dated 26-2-1980 is concerned, in thereply to the said show-cause notice filed by therespondent, he had mentioned that an appeal waspending in the High Court against the saidconviction. In that view of the matter, once theHigh Court ultimately acquitted the respondent forany reason, with which strictly we are notconcerned, the net result that follows is that bythe time the Labour Court decided the matter, therespondent was already acquitted and hence thereremained no real occasion for the appellant topursue the termination order. Consequently, thatwas a sufficient ground for not visiting therespondent with the extreme punishment oftermination of service. But even that apart,though the conviction was rendered by the SessionsCourt on 20-2-1979, the show-cause notice for thefirst time was issued by the appellant after oneyear, i.e., on 26-2-1980 and thereafter, thetermination order was passed on 18-4-1983. Thatitself by the passage of time, created a situationwherein the original suppression of involvement ofthe respondent in the prosecution for an offenceunder Section 307 of the Indian Penal Code did notremain so pernicious a misconduct on his part asto visit him with the grave punishment oftermination from service on these peculiar factsof the case and especially when the Labour Court https://hcservices.ecourts.gov.in/hcservices/ also did not award any back wages to therespondent from 1983 till the respondent’sreinstatement by its order dated 29-9-1995 and onemonth thereafter and when the High Court also didnot think it fit to interfere under Article 226 ofthe Constitution of India on the peculiar facts ofthis case. In our opinion, the interest of justicewill be served by maintaining the order passed bythe Labour Court and as confirmed by the HighCourt subject to a slight modification that therespondent may be treated to be a fresh recruitfrom the date when he was exonerated by the HighCourt, i.e., from 13-1-1988 which can be treatedas 1-1-1988 for the sake of convenience. It isordered accordingly. From 1-1-1988, the respondentwill be treated to have been reinstated into theservices of the Bank on the basis that he will betreated as a fresh recruit from that date and willbe entitled to be placed at the bottom of therevised scale of pay for Clerks and will also beentitled to other allowances which were availablein the cadre of Clerks in the Bank’s service. Therespondent will be entitled to back wages witheffect from 1-11-1995, i.e., from the date whenthe Labour Court awarded the reinstatement of therespondent. It also directed that the appellant-Bank will work out appropriate back wages payableto the respondent from 1-11-1995 in the time-scaleof Clerks as available from 1-1-1988, treating hisservices to be continuous from that date andaccordingly, working out of his salary andemoluments on a notional basis with the usualincrements from 1-1-1988 and the actual arrears ofpay and other permissible emoluments from 1-11-1995 till reinstatement of the respondent by theappellant. All such arrears will be paid to therespondent within a period of four weeks from 1-3-1999. The respondent who is present before ustakes notice of this order and his counsel on hisinstructions states that the respondent willreport for duty pursuant to the present orderbefore the Regional Manager, Bank of Baroda,Northern Zone, Meerut on 1-3-1999. Learned counselfor the appellant agrees to the said course beingadopted. The appeal will stand dismissed subjectto the aforesaid modifications. IA No. 2 forpassing order under Section 17-B of the IndustrialDisputes Act, 1947 will not survive in view of thepresent order. We make it clear that this order ofours is rendered on the peculiar facts andcircumstances of the case as mentioned earlier andwill not be treated as a precedent in future.There would be no order as to costs."29. Emphasising the above legal principles, thelearned counsel appearing for the petitioner would contend thatthe petitioner was not indulged in any anti-social, anti-State https://hcservices.ecourts.gov.in/hcservices/ or grave offence but what was the offence committed by thepetitioner is affray, i.e. the petitioner caused public nuisanceand therefore, in the light of the principles laid down by theSupreme Court, the Writ Petition is to be ordered as prayed for.30. Further, the learned counsel appearing for thepetitioner would submit that if the above said post was filledup by the authorities, to which the petitioner was selected, bythis time, the respondents may be directed to appoint thepetitioner as and when vacancy arises for the above said postor any post carrying the same scale of pay which requires thesame qualifications. 31. On the contrary, the learned counsel appearingfor the respondents reiterated the contentions raised in thecounter statement. 32. Further, he would submit that as the petitioneris not a suitable person for Government Service, he was notconsidered for appointment to the post of Ground man andtherefore, the order of the third respondent was upheld by theTribunal and in such circumstances, this writ petition may bedismissed. 33. It is not disputed that the petitioner hascommitted an offence of affray on 24.2.1994 and a case wasregistered in Cr.No.23/94 under Section 160 I.P.C. on the fileof Lawspet Police Station and that the petitioner paid a fine ofRs.50/- in the Court of First Class Judicial Magistrate,Pondicherry in S.T.R.3278 of 1994 on 24.6.1994 and the abovesaid fact was suppressed by filling the Col.No.12 as notapplicable. 34. In this case, it is necessary to discuss about theobject behind for getting a report from the authority concernedwith regard to character and antecedent of an individual, who isselected for appointment in Government Service. 35. We are of the view that the main object andintention of the Government for seeking report of the Policeauthorities concerned with regard to character and antecedent ofthe individuals while recruiting them for Government Serviceis to prevent the anti-social elements, hard core criminals,habitual offenders, and anti-State elements from entering intothe Government Service. 36. In this case, the offence committed by thepetitioner is affray under Section 159 I.P.C., which reads asfollows: "159.Affray-When two or more persons, by fighting ina public place disturb the public peace, they are said to"commit an affray". 37. The punishment Section 160 I.P.C. reads asfollows: 160. Punishment for committing affray- Whoever commitsan affray, shall be punished with imprisonment of eitherdescription for a term which may extend to one month, or withfine which may extend to one hundred rupees, or with both. https://hcservices.ecourts.gov.in/hcservices/

38. From the above, it is clear that the offencecommitted by the petitioner is a petty offence.39. We are of the opinion that when the offencecommitted by the petitioner is a petty one, it cannot be abar to the petitioner to enter into Government Service, whilethe petitioner, otherwise, is eligible to hold that post. 40. In this regard, the principles laid down by theSupreme Court in PAWAN KUMAR VS. STATE OF HARYANA AND ANOTHER((1996) 4 SCC 17) , are squarely applicable to the case onhand. 41. For the sake of convenience and importance, wereproduce some of the observations of the Supreme Court in theabove said decision, which are as follows: "13. We had required of the respondents toproduce before us the copy of the judgment wherebythe appellant was convicted for the offence. Aswas expected only a copy of theinstitution/summary register maintained by theCourt of the Chief Judicial Magistrate, Bhiwaniwas placed before us showing that the appellant on4-6-1980 was imposed a fine of Rs20. A copy of thetreasury challan supporting that the fine paid wasdeposited by the Chief Judicial Magistrate thesame day has also been produced. The copy of thesummary register neither discloses the substanceof the allegations put to the appellant, nor thewords in which the plea of guilt was entered. Itis of no significance that the appellant treatshimself a convict as he had pleaded guilty. Exfacie it only shows that the entry concerns FIRNo. 231 of 3-6-1980 under Section 294 IPC.Therefrom it is difficult to discern the stepstaken in the summary trial proceedings and whathad the appellant pleaded to as guilty, whether tothe allegations in the FIR or to the provision ofthe IPC or any other particular? Mere payment offine of Rs 20 does not go to show that theconviction was validly and legally recorded.Assuming that the conviction is not open tochallenge at the present juncture, we cannot butdeprecate the action of the respondents in havingproceeded to adversely certify the character andantecedents of the appellant on the basis of theconviction per se, opining to have involved moralturpitude, without satisfying the tests laid downin the policy decision of the Government. We arerather unhappy to note that all the three courtsbelow, even when invited to judge the matter inthe said perspective, went on to hold that theact/s involved in conviction under Section 294 IPCper se established moral turpitude. They shouldhave been sensitive to the changing perspectivesand concepts of morality to appreciate the effect https://hcservices.ecourts.gov.in/hcservices/ of Section 294 IPC on today’s society and itsstandards, and its changing views of obscenity.The matter unfortunately was dealt with casuallyat all levels.14.Before concluding this judgment we herebydraw the attention of Parliament to step in andperceive the large many cases which per law andpublic policy are tried summarily, involvingthousands and thousands of people throughout thecountry appearing before summary courts and payingsmall amounts of fine, more often than not, as ameasure of plea-bargaining. Foremost among thembeing traffic, municipal and other petty offencesunder the Indian Penal Code, mostly committed bythe young and/or the inexperienced. The cruelresult of a conviction of that kind and a fine ofpayment of a paltry sum on plea-bargaining is theend of the career, future or present, as the casemay be, of that young and/or inexperienced person,putting a blast to his life and his dreams. Lifeis too precious to be staked over a petty incidentlike this. Immediate remedial measures aretherefore necessary in raising the tolerationlimits with regard to petty offences especiallywhen tried summarily. Provision need be made thatpunishment of fine up to a certain limit, say upto Rs 2000 or so, on a summary/ordinary convictionshall not be treated as conviction at all for anypurpose and all the more for entry into andretention in government service. This can brook nodelay, whatsoever."42. Following the principles laid down in the abovesaid decision, we are of the view that since the offencecommitted by the petitioner is a petty one, it cannot stand inthe way of getting a job, which would decide the fate of theindividual, while the petitioner is otherwise eligible to thesaid post and got selected.43. In the above circumstances, we of the view thatthe memo No.2(42)/97 issued by the third respondent dated20/22.9.1999 is arbitrary and not sustainable under law andtherefore, the same is liable to be set aside. Accordingly, thesaid memo is set aside. Consequently, the order the Tribunaldated 12.4.2000 is also set aside.44. In result, the Writ Petition is allowed as prayedfor. However, if the said post was filled up by therespondents 1 to 3 by this time, the respondents 1 to 3 aredirected to appoint the petitioner as and when the vacancyarises for the above said post or any post carrying the same https://hcservices.ecourts.gov.in/hcservices/ scale of pay and also the same qualifications, whichever isearlier. No costs. Connected W.M.P. is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.RNBTo1. The Secretary to Govt. of IndiaThe Uniion of India, Ministry of Health & Family Welfare ServicesNirman BhavanNew Delhi-1. 2.The Director Jawaharlal Institute of Post-GraduateMedical Examination and ResearchDanvanthri NagarPondicherry – 605 006. 3.The Deputy Director (Administration)Jawaharlal Institute of Post-GraduateMedical Examination and ResearchPondicherry.4.The Under Secretary to the Government Department of Personnel and Administrative Reforms (Personnel Wing)Chief Secretariat BuildingsPondicherry.+ 1 CC to Mr.D.Bharatha Chakravarthy, Advocate SR NO 3259 W.P.NO.16043 OF 2000 andW.M.P.No.23271 of 2000DATE:28.1.2005MJ(CO)GP/31.1