S.Jeeva v. State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.12.2009CORAM:THE HON’BLE MR.JUSTICE K.CHANDRUW.P.No.10892 of 2009 andM.P.No.1 of 2009S.Jeeva...Petitioner Vs1.State of Tamilnadu rep. By its Secretary to Government, Home Department, Fort St.George, Chennai -9.2.The Director General of Police, Tamilnadu Police Department, Chennai -4. .. RespondentsPrayer :Petition under Article 226 of the Constitution of Indiapraying for a Writ of certiorari, calling for the entire recordsrelating to the proceedings of the second respondent inNa.Ka.879/Appointment I/II/2008 dated 29.04.2009 and quash thesame. For Petitioner : Mrs.Jeyanthi Venkatesh For Respondents : Mr.R.Neelakandan,G.A.O R D E RThe petitioner has filed the present writ petition seeking tochallenge the order of the second respondent dated 29.04.2009.2. In the writ petition, notice was directed to be taken bythe learned Government Advocate on 02.11.2009. The learnedGovernment Advocate did not file any counter. But he had producedthe original files relating to the termination of the petitioner.3. By the impugned order, the petitioner was informed that hewas selected for the post of Grade II Police Constable held duringthe year 2007-08 after undergoing the preliminary test includingphysical fitness and written test. Thereafter, his character andantecedent were enquired by the Department. In the report receivedby the Department, it was found that the petitioner was involved inCrime No.744/07 and 24/07 filed under Section 41(1) Cr.P.C by theNellikuppam Police, Cuddalore District. But it was found from theAttestation Form filled up by the petitioner as against Questions https://hcservices.ecourts.gov.in/hcservices/ Nos.15, 16 and 18, he had suppressed the information relating tohis involvement in the criminal case. Therefore, in the light ofRule 14(b) of the Tamil Nadu Special Police Subordinate ServiceRules, for getting appointed to the post of Constable, a personshould not have involved in any criminal case and his conduct andcharacter must be satisfactory. Since the petitioner's conduct wasnot satisfactory, he was not given appointment. It is against thisorder, the petitioner has come forward to file the present writpetition.4. The case of the petitioner was that he was not involved inany criminal case. When he approached the Inspector of Police,Nellikuppam Police Station and enquired about Cr.Nos.744/07 and24/07 dated 23.12.2008, he was informed that normally petty caseswill be booked to show statistics of the total number of cases andagainst the petitioner also they slapped with two such cases. Thesame was closed after the number of cases was reached and hence, heneed not worry about the same. The case against the petitioner wasclosed by the Judicial Magistrate, Cuddalore on 23.12.2008 as itwas barred by limitation under Section 468(2) of Cr.P.C. for themonth of December 2008 as 'Case Dropped'. Since he did not have anycase in any police station, the conduct of the petitioner cannot beheld to be unsatisfactory. As he had already come out successful inthe written examination and medical test, he should be given anappointment.5. Mrs.Jayanthi Venkatesh, learned counsel for the petitioneralso brought to the notice of this Court a copy of the FirstInformation Report and also a letter from the Inspector of Police,Nellikuppam. In the enquiry report, the Inspector had stated thatthe petitioner was working as 'Friends of Police' attached toNellikuppam police station for three months and only a case onsuspicion was registered against the petitioner. On enquiry, it wasfound that the petitioner was having good conduct. The action wasdropped on the complaint and the concerned Judicial Magistrate hadalso rejected the case.6. It is no doubt true that in the application in Annexure 3of the verification column, relating to question No.15 regardingthe involvement in a criminal case, the petitioner wrote as Nil.Against the question whether he was punished for a criminal casehe also said 'No' and whether any civil or criminal cases pendinghe has also stated in the negative. But in the facts andcircumstances, it will have to be seen that the petitioner wasneither arrested in any case nor he was tried by any criminalcourt. As rightly contended by the learned counsel for thepetitioner that the conduct of the petitioner cannot be said to besuppression of a material fact nor there is any material to showthat he was involved in any criminal case. When he was not evenaware of filing of such cases, it is not expected of him to stateanything about such cases in the attestation form. 7. In this context, it is necessary to refer to the judgmentof the Supreme Court in State of Haryana and others v. Dinesh Kumar https://hcservices.ecourts.gov.in/hcservices/ reported in (2008) 3 SCC 222. That was also a similar case where aperson who was not selected for appointment on the ground that hewas arrested in a criminal case. In paragraphs 29 to 33, it washeld as follows:-"29. The sequitur of the above is that when a person,who is not in custody, approaches the police officerand provides information, which leads to the discoveryof a fact, which could be used against him, it would bedeemed that he had surrendered to the authority of theinvestigating agency.30. It must, therefore, be held that the viewsexpressed by the High Court in Dinesh Kumar’s writpetition regarding arrest were incorrect, while theviews expressed in the writ petitions filed by LalitKumar and Bhupinder correctly interpreted the meaningof the expressions “arrest” and “custody”. However, howfar the same would apply in the ultimate analysisrelating to the filling up of Column 13(A) is anothermatter altogether.31. In our view, the reasoning given in Dinesh Kumar’scase in that context is a possible view and does notcall for interference under Article 136 of theConstitution. Conversely, the decision rendered in thewrit petitions filed by Lalit Kumar and Bhupinder hasto be reversed to be in line with the decision inDinesh Kumar’s case. When the question as to whatconstitutes “arrest” has for long engaged the attentionof different High Courts as also this Court, it may notbe altogether unreasonable to expect a layman toconstrue that he had never been arrested on hisappearing before the court and being granted bailimmediately. The position would have been different,had the person concerned not been released on bail. Wewould, in the facts of these cases, give the benefit ofa mistaken impression, rather than that of deliberateand wilful misrepresentation and concealment of facts,to the appellants in the second of the two appeals aswell, while affirming the view taken by the High Courtin Dinesh Kumar’s case.32. Accordingly, although, we are of the view that thelegal position as to what constitutes arrest wascorrectly stated in the writ petitions filed by LalitKumar and Bhupinder, we confirm the order passed inDinesh Kumar’s case and extend the same benefit toLalit Kumar and Bhupinder also.33. In the result, the civil appeal arising out of SLP(C) No. 1840 of 2007 is dismissed, while the civilappeal arising out of SLP (C) No. 14939 of 2007 isallowed. The judgment of the High Court dated 22-9-2005, impugned in the said appeal, is set aside and therespondents concerned are directed to take steps to https://hcservices.ecourts.gov.in/hcservices/ issue appointment letters to the appellants in the saidappeals subject to fulfilment of other conditions bythem. It is also made clear that the appellants will bedeemed to have been appointed as Constable-Drivers witheffect from the date persons lower in merit to themwere appointed. However, while they will be entitled tothe notional benefits of such continuous appointment,they will be entitled to salary only from the date ofthis judgment on the basis of such notional benefits."(Emphasis added)8. Section 41(1) of Cr.P.C. under which a case was allegedlyregistered against the petitioner can arise for very many reasonsand the police officers are having sweeping powers under the saidsection. Unless the party concerned is aware of such a proceedingand the respective Inspector of Police himself had stated that thepetitioner's conduct was good, in such circumstances, it cannot besaid that the petitioner had deliberately gave negative answers inthe application form against Question No.15 regarding hisinvolvement in any criminal case. As found by the Supreme Court,the benefit of doubt regarding mistaken impression which is notdeliberate or wilfull can be given to the petitioner.9. In the light of the above, the writ petition standsallowed. No costs. The respondents are directed to provideappointment to the petitioner as Grade-II Police Constableforthwith. This will not enable the petitioner to claim anyseniority or any retrospective effect on his appointment andwhatever appointment that may be given to the petitioner will beonly prospective and will take effect from the date on which thepetitioner joins duty. Consequently, connected miscellaneouspetition is closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsvkiTo1. The Secretary to Government, Home Department, Fort St. George, Chennai-9.2. The Drector General of Police, Tamilnadu Police Department, Chennai-4.+ one cc to the Govt., Pleader, SR 70697 Order in W.P.No.10892 of 2009JRG (CO)RH (5.1.10)