High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 12.10.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMARW.A. NO. 264 OF 2006ANDW.A.M.P. NO.264 OF 2007N.Bhaskaran.. Appellant- Vs -1. Tamil Nadu Uniformed Forces Recruitment Board, rep. by its Secretary 807, Anna Salai, Chennai 2.2. Director General of Police Chennai 600 004.3. Secretary to Government Government of Tamil Nadu Home Department Secretariat, Chennai 9... Respondents (R-3 impleaded as per order of Court dated 4.9.07 in WAMP 1579/06)Writ Appeal filed against the order dated 17.9.2004 passed by thelearned single Judge in W.P. No.20220 of 2004 as stated therein.For Appellant: Mr. S.JamesFor Respondents : Mr. D.Srinivasan, AGPJUDGMENTS.J.MUKHOPADHAYA, J.This writ appeal has been preferred by the appellant against the orderdated 17th Sept., 2004, passed by learned single Judge in W.P. No.20220/04.By the said order, learned single Judge rejected the petitioner's prayerfor appointment to the post of 2nd Grade Police Constable and dismissed thewrit petition.2. The case of the appellant is that during the year 2001, the 1strespondent called for application for appointment to the post of 2nd GradePolice Constable. He, along with others applied and having come outsuccessful in the written test held on 16th June, 2002, was sent for https://hcservices.ecourts.gov.in/hcservices/ medical examination on 25th Aug., 2002. After medical examination, hisname was referred for police verification, but inspite of the fact that hehad disclosed the fact that a criminal case was pending on the file of theJudicial Magistrate No.I, Sivaganga, against him and that the said caseended in his acquittal on 25th Sept., 2002, no order of appointment hasbeen issued in his favour.3. Counsel for the appellant submitted that the case ended inacquittal and, therefore, cannot be treated as a bar for his appointment.Inspite of the same, the respondents, by their proceeding dated 8th July,2004, has informed that he was not selected on the basis of the policereport.Learned counsel for the appellant also challenged the provision ofRule 14 (b) of the Tamil Nadu Police Subordinate Service Rules, 1978,(hereinafter referred to as 'Rules') as ultra vires Article 14 andsubmitted that the said rule cannot be relied upon to deny appointment tothe appellant.4. Admittedly, the appellant was an accused (Accused No.5) in acriminal case in C.C. No.286/01 on the file of Judicial Magistrate CourtNo.1, Sivaganga in Crime No.108/01 for the offence u/s 147 and 323 IPC.During the pendency of the trial, P.W.s 1 and 2, along with accused, fileda petition u/s 320 IPC alleging that they have come to a compromise.Since certain offences were non-compoundable, the said application wasdismissed, but the victims, P.W.s 1 and 2 and the eye witness, P.W.3,ultimately turned hostile. In view of the same and further as they hadfiled a petition alleging that they had compromised, the Court was of theopinion that there was no purpose to keep the said case pending and,therefore, closed the prosecution's case giving the benefit of doubt infavour of the accused. In view of such antecedent, police report wassubmitted against the appellant, which was taken into consideration torefuse to appoint the appellant as a police constable.5. Rule 14 deals with qualification for appointment. Sub-rule (b) ofRule 14 originally read as follows :-"14. Qualification :xxxxxxxx(b) No person shall be eligible for appointment to theservice by direct recruitment unless he satisfies theappointing authority (i) that he is found health active habits and freefrom any bodily defect or infirmity unfitting him forthat service; and(ii) that his character and antecedents are such as toqualify him for such service."Subsequently, in exercise of power conferred by Section 8 and 10 ofthe Tamil Nadu District Police Act, 1859 and Sections 9 and 10 of theChennai City Police Act, 1988 read with proviso to Article 309 of theConstitution of India, the said Rule was amended vide G.O. Ms. No.101dated 30.1.03, relevant portion of which is quoted hereunder :- https://hcservices.ecourts.gov.in/hcservices/ "In the said Rules in Rule 14 :-(1)x xxxxxxx(2) In sub rule (b), after clause (iii), the followingclause shall be added, namely :-(iv) that he has not involved in any criminal case beforePolice Verification;Explanation :- (1) A person who is acquitted or dischargedon benefit of doubt or due to the fact that thecomplainant "turned hostile" shall be treated as personinvolved in a criminal case;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.xxxxxxxx"6.Learned counsel for the appellant submitted that the 1st Explanationbelow amended Rule 14 (b) is arbitrary and violative of Article 14 of theConstitution of India. According to him, no distinction could be madebetween two similarly situated persons, who have been acquitted in acriminal case on the ground that one has been acquitted giving benefit ofdoubt due to the complainant turning hostile and the other acquittal is onmerit. In criminal jurisprudence, in case of acquittal, no distinctionhas been made on the ground that one acquittal is based on merit and theother acquittal is due to benefit of doubt.7. From Rule 14 (b) (ii), it will be evident that no person iseligible for appointment to the service if his character and antecedentsare such as to qualify him for such service. This character andantecedents has nothing do to with the question whether a person is merelyan accused or convicted or acquitted. To give benefit to those who havebeen acquitted honourably, or was implicated because of mistake of facthave been put in a different class. Under 2nd Explanation, they are to betreated "not involved in a criminal case" and, therefore, for the purposeof appointment, it cannot be held that they were involved in a criminalcase. Otherwise, if a person is an accused in a criminal case, he cannotclaim any right of appointment and due to such antecedent, it is alwaysopen to the employer to deny appointment.8. In the case of Delhi Administration through its Chief Secretary &Ors. - Vs – Sushil Kumar reported in JT 1996 (10) SC 34 :: 1996 (11) SCC605, the Supreme Court noticed that the candidate was acquitted of theoffence under Sections 304 and 324 read with 34 IPC. The employer deniedappointment, but the Central Administrative Tribunal, New Delhi, allowedthe claim of the candidate on the ground that he was acquitted. In thesaid case, the Supreme Court, though noticed that the candidate wasphysically fit, passed the written test and interview and wasprovisionally selected for appointment to the post of police constable,held that though the person was discharged or acquitted of an criminaloffence, the same has nothing to do with the question. What will berelevant is the conduct or character of the candidate appointed to aservice and not the actual result thereof. The decision of the appointing https://hcservices.ecourts.gov.in/hcservices/ authority focussing on this aspect having found that it was not desirableto appoint such candidate, the decision of the Tribunal was set aside.The appellant, being similarly situated, as he was involved in acriminal case and was acquitted because the complainant became hostile anddue to compromise reached between the complainant, he cannot claim that hewas not involved in a criminal case.9. For the reason aforesaid, no interference is called for with theorder passed by the appointing authority as affirmed by learned singleJudge. There being no merit, the writ appeal is dismissed. Consequently,connected miscellaneous petition is also dismissed. But there shall be noorder as to costs.GLNSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1. The Secretary Tamil Nadu Uniformed Forces Recruitment Board 807, Anna Salai, Chennai 2.2. Director General of Police Chennai 600 004.3. Secretary to Government Government of Tamil Nadu Home Department Secretariat, Chennai 9.+1 cc to Mr.S.James, Advocate Sr.No.63301.+1 cc to The Government Pleader Sr.No.63266.SJ(CO)dcp/17.10 W.A. NO. 264 OF 2006