Shrikant v. State of Haryana & Ors.

HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.Gaurav Mohunta, Advocate for the petitioner Mr.RKS Brar, Addl.A.G., Haryana Permod Kohli, J. (Oral) 150 posts of Constables for the Guard in Railway Police for Sportsmen category were advertised by respondents in February, 2003. The petitioner applied being possessed of the requisite qualifications in accordance with the prescribed procedure. He participated in Physical test and other tests and successfully qualified the same. The petitioner was informed to appear in medical test before the Civil Surgeon. He was also found fit in the medical examination. The petitioner was selected and was called for joining the duty on 30.11.2003. He was to appear at Madhuban on

3.12.2003 for allotment of the belt number. When he approached the authorities at Madhuban, no belt number was allotted to him. It is alleged CWP No.4952 of 2006 2 that the petitioner has been denied appointment on account of pendency of a criminal case under Sections 419 and 420 of the IPC. The petitioner has referred to some character certificate granted by the Lambardar of the Village. The petitioner made an application for joining the duty and also gave instances of a number of persons who have been permitted to join duty in the police department on their selection, despite pendency of criminal cases against them. The detail of such persons is mentioned in paragraph 10 of the writ petition. Aggrieved of the refusal to join duty, the petitioner filed CWP No.8305 of 2004 which was dismissed by a Division Bench of this Court with liberty to make representation, vide order dated 25.5.2004. The petitioner made a representation to the respondents. The said representation came to be rejected vide order dated 28.9.2004 (Annexure P- 5). Aggrieved of the aforesaid order, the petitioner filed another CWP No.18893 of 2004 in which notice of motion was issued. During the pendency of the said writ petition, the petitioner was acquitted in FIR No.196 dated 3.5.2003, by the Chief Judicial Magistrate, Bhiwani vide judgment dated 12.7.2005. On his acquittal, the petitioner made another representation dated 30.7.2005 (Annexure P-7) before the respondents seeking appointment. Taking into consideration the above facts, the writ petition came to be disposed of vide order dated 20.9.2005 with a direction to the respondents to consider the petitioner's representation. Consequent upon the aforesaid direction, the respondents considered the representation (Annexure P-7) and rejected the same vide order dated 9.2.2006 (Annexure P-8). It is this order which is under challenge in this writ petition. The ground for rejection of the claim of the petitioner for appointment CWP No.4952 of 2006 3 is that during the process of recruitment, an FIR No.196 dated 3.5.2005 was registered against the petitioner which fact was concealed by him till his selection as constable. It is further mentioned that the appointed candidates have already completed their basic training course and the petitioner cannot be taken in service after such a long time. In the reply filed by the respondents, the same stand is taken. During the course of the arguments, it has been agreed to by the learned counsel for the parties that the controversy in this petition has been settled in CWP No.15109 of 2008 decided on 2.9.2009. In the aforesaid case also, a selected constable was denied appointment and belt number on account of pendency of criminal case against him wherein he was later on acquitted. Considering the Government instructions on the subject, this Court passed following directions:- “.......These instructions seem to have been issued in regard to particular selection and apparently are not for general application. These are apparently for the purpose of guidance and can not be taken to be of a binding in nature. As per these instructions, Constabulary number can be denied to those who are facing investigation, trial or have been convicted for offences involving moral turpitude. Those who are acquitted on technical ground of the offence involving moral turpitude are also not to be considered for allotting the constabulary number. The clarificatory communication dated 2.7.2007, part of which is reproduced above would show that the cases of acquittal and charges of moral turpitude are to be minutely examined and after careful appraisal of the judgment, those who are acquitted honourably are to be considered for appointment as Constables. The provision to honourable acquittal of a charge perhaps is not available. Reading of these communications and the stand taken by the respondents would clearly show that the petitioner is being denied appointment on the ground that he is acquitted of an offence involving moral turpitude by giving benefit of doubt and hence, is not to be so appointed as Constable.....” CWP No.4952 of 2006 4 Can then in the present scenario, he be denied appointment? There may be some sense in the submission that person who is known to be involved in a criminal case, should not be given appointment but the fact that he stands acquitted of this offence, can not altogether be ignored. The distinction between giving appointment to those persons who are acquitted of offences not involving moral turpitude and those who are acquitted of such offences involving moral turpitude may be a fine one but the fact of acquittal is the base which can not be ignored. Once a person has been acquitted of the allegation, then the offence alleged or the allegation made against him, can not be held against him any further. This infirmity must be removed in law and otherwise and can not be attached to the person like the petitioner merely on the basis of instructions which can not even be termed as administrative or executive instructions having been issued by either Head of the Department or some such functionaries. In my considered opinion, acquittal can not be given a different colour on the basis of some communication, which is given the shape of instructions, to deny appointment to such persons like the petitioner. In fact, in this regard, I can seek support from Civil Writ Petition No.17043 of 2007 (Pardeep Kumar Vs. State of Haryana and others), decided on 2.5.2008 and Civil Writ Petition No.4452 of 2008 (Amit Kumar Vs. State of Haryana and others), decided on 15.5.2008. I would, thus, allow the writ petition and direct the respondents to consider the claim of the petitioner for his appointment and giving constabulary number to him from the date it is due to him.” In the present case, the petitioner is at least not guilty of concealment. He informed the authorities while filling up the form for character certificates. The observations in the impugned order that the petitioner did not inform the authorities during the process of selection are of no relevance as the petitioner had no occasion to inform them at an earlier stage. However, when he was required to give such an information, he did mention in the application about the pendency of the criminal case. CWP No.4952 of 2006 5 The petitioner has been acquitted of the charges. He cannot be denied appointment. In view of the above, this petition is allowed. The respondents are directed to appoint the petitioner as Constable on the basis of his merit in the selection process, however, without any monetary benefits, though the salary of the petitioner shall be fixed by granting him the notional benefit of increments etc. and the seniority shall also be maintained at the appropriate stage.

11.2.2010 MFK (PERMOD KOHLI) JUDGE