Mr.Ganesan v. The State of Tamil Nadu & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 28.11.2008CORAM:THE HONOURABLE MR.JUSTICE K.CHANDRUW.P.Nos.199, 200, 15755 and 15756 of 2008Mr.Ganesan ...Petitioner in W.P.Nos. 199 & 15755 of 2008Mr.G.Prabhu ...Petitioner in W.P.Nos. 200 & 15756 of 2008 Vs1. The State of Tamil Nadu, rep.by its Secretary to Government, Home Department, Fort St.George, Chennai-600 009.2. The Director General of Police, Chennai-600 004.3. The Director, The Tamil Nadu Uniform Civil Code Recruitment Board, Chennai-600 002. (amended as the Director, Tamil Nadu Uniformed Services Recruitment Board, Anna Salai, Chennai, by order dated 28.11.2008) ... Respondents in all the writ petitionsPRAYER in W.P.Nos.199 and 200 of 2008:- Petitions filed under Article226 of the Constitution of India praying for the issuance of a Writof Certiorarified Mandamus calling for the records relating to theorder of the second respondent in Na.Ka.No.134857/ Appointment 2(1)/2007, dated 31.12.2007, quash the same and to consequently direct therespondents to appoint the petitioners as Sub-Inspector of Police. PRAYER in W.P.Nos.15755 and 15756 of 2008:- Petitions filed underArticle 226 of the Constitution of India praying for the issuance ofa Writ of Declaration declaring that the Amendment in Clause 2Explanation (2) made in G.O.Ms.No.101, Home (Pol.IX) Department, dated 30.1.2003 is illegal and ultra vires infracting Articles 14 and16 of the Constitution of India. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.L.Chandrakumar for Mr.R.G.Narendhiran For Respondents : Mr.A.Arumugam, Spl.G.P*****O R D E R Heard the arguments of Mr.L.Chandrakumar, learned counselappearing for Mr.R.G.Narendiran, learned counsel for the petitionersand Mr.A.Arumugam, learned Special Government Pleader appearing forthe respondents. 2. In all the four writ petitions, the petitioners have describedthe third respondent as ''the Director of Tamil Nadu Uniform CivilCode Recruitment Board". On being pointed out that there is no suchpost exists, the petitioners have filed a memo, dated 19.11.2008seeking for amendment of the third respondent's description as ''theDirector, Tamil Nadu Uniformed Services Recruitment Board, AnnaSalai, Chennai-600 002". Accordingly, the name of the thirdrespondent will stand amended.3. While W.P.Nos.199 and 15755 of 2008 were filed by oneG.Ganesan, W.P.Nos.200 and 15756 were filed by one G.Prabhu and bothof them are brothers and are the residents of Chokka Thevan Patti ofMadurai District. In the first set of writ petitions, viz.,W.P.Nos.199 and 200 of 2008, the prayer of the petitioners is to setaside the order dated 31.12.2007 passed by the second respondentDirector General of Police. By the aforesaid order, dated 31.12.2007,the petitioners were informed that though they were selected to thepost of Sub-Inspector of Police during the year 2006, on verifyingtheir character and antecedents, it was found that they were involvedin a criminal case in Crime No.80 of 2002, Valandor Police Stationand charged under Sections 147, 148, 341, 323, 324, 506 (ii), 307,I.P.C. r/w. Section 3(1) of the TNPBDL Act and under Section 3(i)(x)of the SC/ST (Prevention of Atrocities) Act, 1989, they will not beappointed to the said posts.4. In that criminal case, G.Ganesan (the petitioner in W.P.No.199of 2008) was arrayed as the 14th accused and G.Prabhu (petitioner inW.P.No.200 of 2008) was arrayed as the 15th accused. They were triedby the III Additional Sessions Court, Madurai in S.C.No.100 of 2003.After the trial, they were acquitted under Section 232, Cr.P.C. bythe learned Sessions Judge vide his judgment dated 01.4.2004. In viewof the above fact, they were informed by an order dated 19.12.2007 ofthe second respondent that since under Rule 13(b) of the Tamil NaduSpecial Police Subordinate Service Rules (for short 'the saidRules'), for a person to be eligible to be recruited to the Police https://hcservices.ecourts.gov.in/hcservices/ Force, he should not have been involved in any criminal case and hisprior conduct and character should be satisfactory. Since thepetitioners' character and conduct were not satisfactory, they werenot selected to the post of Sub-Inspectors of Police. However, theywere informed by a revised order dated 31.12.2007 that they were notdenied the posting on the ground of any suppression of information inthe undertaking given before the Department. Their case was dealtwith only in terms of Rule 13(b) of the said Rules. It is againstthese two orders, the petitioners have filed the first set of writpetitions. 5. The writ petitions came up for admission on 04.1.2008 but itwas not admitted. Subsequently, the very same petitioners have filedtwo new writ petitions being W.P.Nos.15755 and 15756 of 2008challenging the Explanation (2) to Rule 14(b) of the said Rules asillegal and ultra vires Articles 14 and 16 of the Constitution. Thosetwo writ petitions along with earlier writ petitions came to beadmitted on 03.7.2008. On the same day, this Court granted aninterim-direction directing the respondents to keep the two posts ofSub-Inspectors of Police vacant. A further direction to send thepetitioners for training for the posts in the ensuing batch itselfwas also issued. It was stated that such training will not confer anyright on them.6. The respondent State filed applications for vacating theinterim directions granted by this Court in M.P.No.2 of 2008. Whenthat matter came up for hearing, this Court by an order dated06.11.2008 made the following order:-''From the perusal of the said order, it is evident thatconsidering the acquittal in the criminal case by thisCourt on merits and for the next recruitment, thepetitioners are not eligible to participate due to theirover age, direction was given to give training to thepetitioners subject to the result in the writ petition. Bypermitting the writ petitioners to undergo training, noprejudice will be caused to the respondent. Hence, no caseis made out to vacate the order passed on 03.7.2008.M.P.Nos.2 (2 counts) of 2008 in both these writ petitionsare dismissed." 7. Aggrieved by these two interim orders, the matters were takenon appeal to the Division Bench vide Writ Appeal Nos.1284 and 1285 of2008 as well as W.A.No.1305 of 2008. The first two writ appeals, namely, W.A.Nos.1284 and 1285 of 2008 were allowed by the DivisionBench vide its judgment dated 10.11.2008. The Division Bench passedthe following order:- https://hcservices.ecourts.gov.in/hcservices/ ''3. .. .. .. We, therefore, direct that the writpetitions, if they are otherwise ready, should be heard anddisposed of by Hon'ble Mr.Justice K.Chandru, as early aspossible, but we are requesting the learned Judge todispose of the same by 05th December, 2008. The pending writpetitions may appear in the list of the learned Judge underthe caption ''to be mentioned" on 14th of November, 2008.4. We make it clear that two posts shall be keptvacant since there are two writ petitioners. Filling up ofthose two posts will be subject to the result of the writpetitions. We further make it clear that we do not make anyobservation on the merits of either of the parties. Thelearned Judge of the Writ Court will decide thosequestions." 8. Subsequently, in the other Writ Appeal being W.A.No.1305 of2008, a similar order came to be passed by the Division Bench videits judgment dated 13.11.2008. Thus all the four writ petitions cameto be posted before this Court.9. Mr.L.Chandrakumar, learned counsel for the petitionerssubmitted that the present writ petitioners on their sheer meritwere selected to the post of Sub-Inspectors of Police in theSelection held for the year 2006. For the verification of theirantecedents and character, the respondents relied upon the judgmentof the Criminal Court in S.C.No.100 of 2003 dated 01.4.2004. It wasstated that since the Criminal Case had ended in acquittal, by givingbenefit of doubt, by virtue of Special Rules, they shall be treatedas persons involved in Criminal Case as per Explanation (1) to Rule14(b) of the Rules. But the petitioners, after the rejection oftheir appointments, by orders dated 31.12.2007 and after filing oftwo writ petitions in January 2008, moved the Madurai Bench of thisCourt with Cr.R.C. (MD) No.369 of 2008 filed under Section 397 readwith Sections 401 and 482, Cr.P.C. to expunge the remarks of theCriminal Court describing their 'acquittal of benefit of doubt' andto declare it as 'honourable acquittal' and the said CriminalRevision Case filed by them was allowed by this Court vide orderdated 01.4.2008. In the operative portion of the order, it wasobserved as follows:-''5. .. .. in my considered opinion, the observation ofthe learned III Additional Sessions cum PCR Court, Maduraithat the acquittal is on the basis of benefit of doubtrequires to be modified so as to record the acquittalhonourable. https://hcservices.ecourts.gov.in/hcservices/

#6. For all the reasons stated above, this CriminalRevision Case is allowed and the finding of the Lower Courtthat the petitioners are acquitted on giving benefit ofdoubt is modified and the petitioners shall stand acquittedhonourably". 10. For rendering such a finding, the Court took an inspirationfrom another case in Crl.R.C.No.289 of 2008, dated 28.2.2008 inSomasundaram -vs- The State through the Inspector of Police, MelurPolice Station, Madurai. It is not clear as to how the petitioners, when they were especially acquitted by the Criminal Court, can file aRevision Petition under Section 397, Cr.P.C. and that too, after aperiod of four years from the date of Trial Court's originaljudgment. It is also not clear as to how any such observations can bemade by this Court either under Section 397 or under Section 482,Cr.P.C.11. Be that as it may, the petitioners based upon the said orderpassed by this Court, dated 01.4.2008 contended that as they havebeen honourably acquitted, the Explanation (1) to Rule 14(b) of thesaid Rules is not attracted. Assuming that Explanation (1) stands inthe way of granting a posting order under Explanation (2) to Rule 14(b), makes it clear that in case of honourable acquittal, it would betreated as not involved in a criminal case, but the candidate canclaim a right for appointment only by participating in the nextrecruitment. 12. According to the learned counsel for the petitioner, the saidExplanation it does not help the case of the petitioners for tworeasons, viz., (i) no one knows as to when the next recruitment willtake place; and (ii) even assuming such a recruitment takes place inall likelihood, the petitioners may cross the maximum age for suchrecruitment. Therefore, he wants this Court to strike down thatportion of the Explanation (2), where it says that the person, whowas honourably acquitted, should get his chance only in the nextrecruitment. He submitted that the petitioners have participated inthe 2006 selection process. At that time, the Sessions Court hadacquitted them by granting benefit of doubt and, therefore, they werenon-suited by the application of Explanation (1) to Rule 14(b), thesubsequent modification of the Trial Court's order made by this Courtin Crl.R.C.(MD).No.369 of 2008 dated 01.4.2008 granting adeclaration that they were honourably acquitted should date back tothe original selection process and, therefore, they should be giventhe post of Sub-Inspectors of Police. He also submitted that the casefiled against them was foisted due to communal feelings in thevillage and they were innocent of the charges. Even a perusal of theCriminal Court's judgment will show that no overt act is attributedto them. In such view of the matter, he pleaded for allowing of the https://hcservices.ecourts.gov.in/hcservices/ writ petitions in their favour and for a direction to appoint them asSub-Inspectors of Police under the Tamil Nadu Special PoliceSubordinate Services Rules.13. The learned Special Government Pleader contended that theissues raised in the present writ petitions are squarely covered bythe judgment of the Full Bench in Manikandan and others -vs- TheChairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennaiand others reported in 2008 (2) CTC 97. Inasmuch as Explanation (1)to Rule 14(b) has been upheld by this Court, the petitioners cannotindirectly get over that judgment by bringing new set of argumentsand it is not open to them. What weighed with the Full Bench touphold the vires of the Rule including Explanation (1) to Rule 14(b)will also be available to the respondents for upholding the vires ofExplanation (2) to Rule 14(b) of the Rules. Therefore, he pleaded forthe dismissal of the writ petitions. 14. In the light of the rival submissions, the followingquestions emerges for consideration:-(i)Whether Explanation (2) to Rule 14(b) is ultra viresArticles 14 and 16? (ii)Whether the subsequent order passed by this Court dated01.4.2008 in the Crl.R.C.(MD) No.369 of 2008 will enureto the benefit of the petitioners? and (iii)Whether the petitioners' challenge to the impugnedorders dated 31.12.1997 is justified?15. Since the entire controversy centers around theinterpretation of Rule 14(b), it is necessary to extract the entirerule, as it stands today after the amendment and it is as follows :-''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; and(ii)that his character and antecedents are such as toqualify him for such service; and(iii)that such a person does not have more than one wifeliving https://hcservices.ecourts.gov.in/hcservices/ 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. 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." (Emphasis Added)16. In the aforesaid Rule, Explanation (1) to Rule 14(b) came tobe challenged before this Court in a batch of writ petitions. ThisCourt vide its judgment in V.Veeramani and another -vs- State ofTamil Nadu, rep. by its Secretary to Government, Home (Pol.IX)Department, Chennai reported in (2007) 3 MLJ 676, while upholdingRule 14(b), in paras 17 and 24 had observed as follows:-''17. ... Therefore, if the law provides for an actionagainst the Government servant, who is similarly involvedin any criminal action while in service or after retirementfrom service, there is no reason as to why the same lawshould not be made as a pre-requisite for entering intoservice.".. .. ..24. After a survey of all the aforesaid decisions, it canbe firmly said that Explanation (1) to Rule 14(b)(iv) doesnot suffer from the vires of arbitrariness and it is notdiscriminatory. A Government servant whether in service orbefore enters into service or his post retirement, iscontrolled by similar Rules. Therefore, the contention ofthe learned counsel for the petitioners that the Rules arediscriminatory must fail. Lastly, it must be stated thatthe State also being an employer can set its own standardsin the matter of recruitment of its own personnel and inthe case of Uniformed Services, it must apply rigorousstandard so that all and sundry does not get into theforce." 17. The vires of the said Rule also came to be consideredsubsequently by a Full Bench in Manikandan's case (cited supra). Inparas 39 and 40, the Full Bench has been held as follows:-''39. In any event, it is well settled that provisionalselection does not confer an automatic right toappointment. The petitioners in all these Writ Petitions, https://hcservices.ecourts.gov.in/hcservices/ crossed the stages of physical fitness test, written test, interview and medical test in the entire process ofselection. In the last lap of selection, policeverification of their character and antecedents took place. The petitioners in all these writ petitions had adversereports in the last lap and hence, the Appointing Authoritydid not issue orders of appointment. The stage at which thepetitioners were shown the red card by the referee, is notthe stage at which the petitioners had acquired aninviolable right to be appointed. Therefore, thepetitioners cannot make out a grievance, especially whentheir involvement in the Criminal Cases either prior to thedate of commencement of selection or during the course ofselection process, is not disputed.40. Therefore, in conclusion, we hold that the amendedRule 14(b) of the Special Rules for Tamil Nadu PoliceSubordinate Services is not ultra vires orunconstitutional. We also hold that the non-selection ofthe writ petitioners or the rejection of theircandidatures, by the respondents, either on the basis oftheir involvement in Criminal Case or on the basis of thesuppression of their involvement, is perfectly valid andjustified.In answer to the reference made to the Full Bench, wehold-(a) that by virtue of Explanation 1 to Clause (iv) of Rule14(b) of the Tamil Nadu Special Police Subordinate ServiceRules, a person acquitted on benefit of doubt or dischargedin a Criminal Case, can still be considered as disqualifiedfor selection to the police service of the State and thatthe same cannot be termed as illegal or unjustified; and(b) That the failure of a person to disclose in theApplication form, either his involvement in a Criminal Caseor the pendency of a Criminal Case against him, wouldentitle the Appointing Authority to reject his applicationon the ground of concealment of a material fact, irrespective of the ultimate outcome of the Criminal Case."18. The Supreme Court vide its judgment in Delhi Administrationthrough its Chief Secretary and others -vs- Sushil Kumar reported in(1996) 11 SCC 605 in dealing with the selection of persons toUniformed Services, in para 3 had observed as follows:-''The Tribunal in the impugned order allowed the applicationon the ground that since the respondent had been dischargedand/or acquitted of the offence punishable under Section 304 https://hcservices.ecourts.gov.in/hcservices/ IPC, under Section 324 read with Section 34 IPC and underSection 324 IPC, he cannot be denied the right ofappointment to the post under the State. The question iswhether the view taken by the Tribunal is correct in law? Itis seen that verification of the character and antecedentsis one of the important criteria to test whether theselected candidate is suitable to a post under the State. Though he was found physically fit, passed the written testand interview and was provisionally selected, on account ofhis antecedent record, the appointing authority found it notdesirable to appoint a person of such record as a Constableto the disciplined force. The view taken by the appointingauthority in the background of the case cannot be said to beunwarranted." (Emphasis Added) 19. Thus, it is clearly seen that under Explanation (1) to Rule14(b), even an honourable acquittal shall be treated as a personinvolved in a criminal case. The impugned orders dated 31.12.2007(challenged in W.P.Nos.199 and 200 of 2008) do not suffer from anyinfirmity. On the date of selection, the judgment of the CriminalCourt in S.C.No.100 of 2003 dated 01.4.2004 which was on record hadonly granted the benefit of doubt while acquitting the petitioners. Therefore, the respondents were correct in stating that though thepetitioners' names were in the selection list, their antecedentsshowed that they were involved in a criminal case.20. It was only thereafter they had moved this Court forexpunging the remarks from the order of the Sessions Court byingeniously filing a petition under Section 397 read with Section482, Cr.P.C. It is highly doubtful whether this Court has got anysuch power in granting a declaratory relief that the petitioners wereacquitted honourably and the Trial Court was wrong in describing theacquittal as one granted due to benefit of doubt. So far as CriminalProcedure Code is concerned, there is no distinction between the''honourable acquittal" and ''acquittal on benefit of doubt". Suchdistinctions have been brought only in Service Law through Courtjudgments. Whatever may be, the legality of the order passed by thisCourt dated 01.4.2008 declaring that the petitioners' acquittal washonourable, that cannot invalidate the impugned order dated31.12.2007 passed by the respondents. 21. The present attempt to seek for a declaration thatExplanation (2) to Rule 14(b) is violative of Articles 14 and 16 ofthe Constitution cannot be accepted. It is only an enabling provisionfor any candidate having got 'honourable acquittal' to be allowed toparticipate in the next recruitment drive. The fact that the https://hcservices.ecourts.gov.in/hcservices/ petitioners may either become overaged or the next recruitment maytake number of years cannot be a ground to invalidate an otherwisevalid rule. Hard cases may not make a rule look bad. But that cannotbe a ground to invalidate such rules. Explanations (1) and (2) toRule 14(b) will have to be read together. In Explanation (1) to Rule14(b), all types of acquittal, including discharge, were treated asbeing involved in a criminal case. That rule has been held to beconstitutionally valid. Therefore, the petitioners do not derive anybenefit as the rule has been correctly applied while passing theimpugned orders dated 31.12.2007. 22. Explanation (2) only makes a further classification inrelation to honourable acquittal alone. Such a case will come onlywhen a person is selected and on verification, it is found that hewas involved in a criminal case but the case was yet to be disposedof and subsequently if it ends in an honourable acquittal or treatedas a mistake of fact, then only, he will be treated as not involvedin criminal case. Further he can claim the right for appointment onlyby participating in the next recruitment. The case of the petitionersdoes not come within the Explanation (2) to Rule 14(b), because theiracquittal by the Criminal Court at the time of verification was nothonourable. Further, their cases were rejected by treating them asfalling under Explanation (2) to Rule 14(b). The petitioners' case donot come under Explanation (2). Therefore, the question of theirchallenging the vires of Explanation (2), does not arise.23. Assuming that they can have the benefit of Explanation (2),then certainly, they will have to stand or fall by the very samerule. The question of challenging the said rule, that too, byoutsiders, like the petitioners, is impermissible. The intentionbehind framing of the said Rule is very clear. Even in cases ofsubsequent honourable acquittals, the State wanted the concernedcandidates to go through another selection process as the earlierstigma attached to the non-selection has been removed only in casesof honourable acquittal. The petitioners cannot state that theircases should be considered in the selection held for the year 2006itself. In such a case, Explanation (1) will come into operation andthey will be certainly disqualified. Further, the Rule itself hasbeen upheld by the Full Bench. The fact that they may be overaged orthat there may not be any selection in the near future, cannot be aground to invalidate an otherwise valid rule. Hence, the challenge tothe vires of Explanation (2) or an attempt to re-interpret the saidrule to suit the convenience of the petitioners must necessarily fail.24. Apart from the above facts, this Court had the benefit ofgoing through the Trial Court's judgment and the findings renderedtherein. It is seen that specific charges were framed against thetwo petitioners by the Special Court that they were part of the https://hcservices.ecourts.gov.in/hcservices/ unlawful assembly. The case also involved an offence under the SC/STPrevention of Atrocities Act, 1989. It was an alleged assaultlaunched by the members belonging to Other Backward Class Communitieson the Adidravidars of the Village. The conduct of the petitioners ingetting involved in such a criminal case and thereafter to get entryinto the police force by ingenious arguments cannot be countenancedby this Court. 25. As rightly found by this Court in Veeramani's case (citedsupra) which was approved by the Full Bench in Manikandan's case(cited supra), the State being an employer can set its own standardsin the matter of recruitments of its personnel and in cases ofUniformed Services, it can apply rigorous standards so that all andsundry will not get into the force.26. Under the above circumstances, the writ petitions filed bythe petitioners are totally misconceived, devoid of merits and thereis no unconstitutionality in Explanation (2) to Rule 14(b). Hence, all the writ petitions will stand dismissed. However, there will beno order as to costs.Sd/Asst. Registrar/true copy/ Sub Asst. RegistrarjsTo1. The Secretary to Government, Home Department, Fort St.George, Chennai-600 009.2. The Director General of Police, Chennai-600 004.3. The Director, Tamil Nadu Uniformed Services Recruitment Board, Anna Salai, Chennai. 2 ccs To Mr.R.G.Narendhiran, Advocate, SR.66832W.P.Nos.199, 200,15755 & 15756 of 2008GG(CO)SRA(15/12/2008)