W.P.No.30779 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.01.2020
CORAM
THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR
W.P.No.30779 of 2017
1 P.Baskaran
S/o.Pitchandi
Door No.2/149 Bajanai Koil Street
Periyakukkundi Kukkundi Pudupadi,
Vellore District … PETITIONER
Vs.
1 The State of Tamil Nadu
rep by the Secretary to Government,
Home Department, Secretariat Chennai-9
2 The Director General of Police,
Dr.Radhakrishnan Salai, Mylapore,
Chennai-4
3 The Superintendent of Police,
District Police Office,
Vellore District,
Vellore. … RESPONDENTS
Prayer:- The Writ Petition is filed under Article 226 of the Constitution of
India, seeking for a Writ of Certiorari Mandamus, to call for the records
pertaining to order passed by the 3rd respondent vide his proceedings in
Na.Ka. No.A2 (3)/ 3000/ 2017 dated 26.10.2017 and to quash the same as
illegal incompetent and ultravires and thereby consequently directing the
respondents to appoint the petitioner in the post of Police Constable
Grade-II.
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For Petitioner : Mr.R.Shase
For Respondents : Mr.J.Ramesh, A.G.P.
******
ORDER
Pursuant to the notification issued by the Tamil Nadu Uniformed
Services Recruitment Board, the petitioner had applied for the post of
Grade II Police Constable. The petitioner successfully completed all the
tests conducted by the respondent Board including written examination,
physical test, etc., and qualified for the said post. Under these
circumstances, the impugned order, dated 26.10.2017 has been passed by
the third respondent stating that the petitioner is not eligible for
appointment to the said post since he has not disclosed the criminal case
pending against him in Cr.No.303 of 2013 under Section 147, 148, 294 (b),
323, 324, 435 506(ii) of I.P.C. R/w Sec. 3(1) (x), 3(2) (iii) SC/ST Act, 1989
on the file of Arcot Taluk Police Station, Vellore in the application
submitted to the said post. Hence, the petitioner has filed the present writ
petition before this Court.
2. According to the learned counsel appearing for the petitioner,
petitioner’s name does not find place in the F.I.R. In the F.I.R., the defacto
complainant has not whispered anything about the role of the petitioner.
Based on the statement made under Sec.161 Cr.P.C., the petitioner’s name
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was included in the F.I.R. Without proper investigation, the petitioner’s
name was arrayed as one of the accused in the criminal case. Writ
petitioner has filed Crl.O.P.No.23022 of 2017 before this Court. Further,
the defacto complainant has no objection for quashing the complaint
against the petitioner and to that effect, a joint memo of compromise was
filed before this Court. By order, dated 30.10.2017, Crl.O.P.No.23022 of
2017 was allowed by this Court. According to the learned counsel appearing
for the petitioner, the writ petitioner was falsely implicated in the
aforesaid criminal case based on the statement made under Sec.161 Cr.P.C.
3. Further, the learned counsel appearing for the petitioner
submitted that the Division Bench of this in an identical issue in
W.A.Nos.626, 627, 816 to 825 and 159 of 2014, dated 24.7.2017 considered
the scope of rejection of appointment to the post of Police Constable and
following the judgment of the Hon’ble Supreme Court in Avtar Singh Vs.
Union of India [(2016) 8 SCC 471] and directed the Director General of
Police, to consider the case of the petitioner in the light of the decision
rendered by the Hon’ble Supreme Court in Avtar Singh case (supra).
Therefore, the impugned order, dated 26.10.2017 is liable to be quashed.
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4. The learned Additional Government Pleader appearing for the
respondents submitted that the petitioner had not disclosed his involvement
in the criminal case registered against him in Cr.No.303 of 2013 under
Section 147, 148, 294 (b), 323, 324, 435 506(ii) of I.P.C. R/w Sec. 3 (1)
(x), 3(2) (iii) SC/ST Act, 1989 on the file of Arcot Taluk Police Station,
Vellore, in coloumn No.15, 16 and 18 of the application submitted for the
post of Grade II Police Constable. As per Rule 14(b) (ii) (iv) of Tamilnadu
Special Police Subordinate Service, a candidate being selected for the post
of Police Constable, Grade II, should not involved in any criminal case and
having good character. Further, subsequent to the finalisation of selection
to the post of Police Constable, Grade II, the order has been passed in
CrLO.P.No.23022 of 2017. Further, in the judgment, dated 28.2.2008 of this
Court in W.P.No.39298 of 2005, it is held that a person who is discharged on
benefit of doubt or due to the fact that the complainant turned hostile shall
be treated as person involved in a criminal case and be considered as
disqualified for selection to the Police Service and shall not be eligible for
appointment to the Police service by direct recruitment. Considering the
antecedents of the petitioner, the impugned order, dated 3.10.2017 has
been passed by the third respondent. In support of his contention, he relied
on the judgment of the Hon’ble Supreme Court in the case of State of M.P.
others vs. Abhijit Singh Pawar reported in 2018 (6) CTC 659.
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W.P.No.30779 of 2017
5. Heard the learned counsel appearing for the petitioner and the
learned Additional Government Pleader appearing for the respondents and
perused the materials available on record.
6. The sum and substance of the case is that a candidate who has
been successfully passed all the tests conducted by the respondent Board,
his selection can be rejected or cancelled on the ground that he/she
involved in a criminal case registered against him or he/she had not
disclosed the criminal case registered against him/her in the application
submitted for the post of Grade II Police Constable.
7. The Division Bench of this Court in an identical issue in
W.A.Nos.626, 627, 816 to 825 and 159 of 2014, considered the scope of
rejection of the candidature to the post of Grade II Police Constable and
following the judgment of the Hon’ble S.C. In Avtar Singh case (supra),
observed that the involvement of the candidate in the criminal case may
have adverse impact, the appointing authority would take a decision after
considering the seriousness of the case and directed the Director General
of Police, to consider the case of the petitioner therein in the light of the
decision rendered by the Hon’ble Supreme Court In Avtar Singh case,
wherein the Hon’ble Supreme Court held as under:
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W.P.No.30779 of 2017
”38.1. Information given to the employer by a
candidate as to conviction, acquittal or arrest, or
pendency of a criminal case, whether before or after
entering into service must be true and there should be no
suppression or false mention of required information.
38.2. While passing order of termination of services or
cancellation of candidature for giving false information,
the employer may take notice of special circumstances of
the case, if any, while giving such information.
38.3. The employer shall take into consideration the
government orders/instructions/rules, applicable to the
employee, at the time of taking the decision.
38.4. In case there is suppression or false information
of involvement in a criminal case where conviction or
acquittal had already been recorded before filling of the
application/verification form and such fact later comes to
knowledge of employer, any of the following recourses
appropriate to the case may be adopted:
38.4.1. In a case trivial in nature in which conviction
had been recorded, such as shouting slogans at young age
or for a petty offence which if disclosed would not have
rendered an incumbent unfit for post in question, the
employer may, in its discretion, ignore such suppression
of fact or false information by condoning the lapse.
38.4.2. Where conviction has been recorded in case
which is not trivial in nature, employer may cancel
candidature or terminate services of the employee.
38.4.3. If acquittal had already been recorded in a
case involving moral turpitude or offence of
heinous/serious nature, on technical ground and it is not
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W.P.No.30779 of 2017
a case of clean acquittal, or benefit of reasonable doubt
has been given, the employer may consider all relevant
facts available as to antecedents, and may take
appropriate decision as to the continuance of the
employee.
38.5. In a case where the employee has made
declaration truthfully of a concluded criminal case, the
employer still has the right to consider antecedents, and
cannot be compelled to appoint the candidate.
38.6. In case when fact has been truthfully declared in
character verification form regarding pendency of a
criminal case of trivial nature, employer, in facts and
circumstances of the case, in its discretion, may appoint
the candidate subject to decision of such case.
38.7. In a case of deliberate suppression of fact with
respect to multiple pending cases such false information
by itself will assume significance and an employer may
pass appropriate order cancelling candidature or
terminating services as appointment of a person against
whom multiple criminal cases were pending may not be
proper.
38.8. If criminal case was pending but not known to the
candidate at the time of filling the form, still it may have
adverse impact and the appointing authority would take
decision after considering the seriousness of the crime.
38.9. In case the employee is confirmed in
service, holding departmental enquiry would be necessary
before passing order of termination/removal or dismissal
on the ground of suppression or submitting false
information in verification form.
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W.P.No.30779 of 2017
38.10. For determining suppression or false information
attestation/verification form has to be specific, not vague.
Only such information which was required to be
specifically mentioned has to be disclosed. If information
not asked for but is relevant comes to knowledge of the
employer the same can be considered in an objective
manner while addressing the question of fitness. However,
in such cases action cannot be taken on basis of
suppression or submitting false information as to a fact
which was not even asked for.
38.11. Before a person is held guilty of suppressio veri
or suggestio falsi, knowledge of the fact must be
attributable to him.”
8. The Hon’ble Supreme Court in the case of M.P. others vs.
Abhijit Singh Pawar reported in 2018 (6) CTC 659, held as under:
”14. In the present case, as on the date when the
respondent had applied, a criminal case was pending
against him. Compromise was entered into only after an
affidavit disclosing such pendency was filed. On the issue
of compounding of offences and the effect of acquittal
under Section 320(8) CrPC, the law declared by this Court
in Mehar Singh [Commr. of Police v. Mehar Singh, (2013)
7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (LS)
910] , specially in paras 34 and 35 completely concludes
the issue. Even after the disclosure is made by a candidate,
the employer would be well within his rights to consider
the antecedents and the suitability of the candidate. While
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W.P.No.30779 of 2017account the job profile for which the selection is
undertaken, the severity of the charges levelled against the
candidate and whether the acquittal in question was an
honourable acquittal or was merely on the ground of
benefit of doubt or as a result of composition.
15. The reliance placed by Mr Dave, learned Amicus
Curiae on the decision of this Court in Mohd.
Imran [Mohd. Imran v. State of Maharashtra, Civil Appeal
No. 10571 of 2018, order dated 12-10-2018 (SC)] is not
quite correct and said decision cannot be of any assistance
to the respondent. In para 5 of the said decision, this
Court had found that the only allegation against the
appellant therein was that he was travelling in an
autorickshaw which was following the autorickshaw in
which the prime accused, who was charged under Section
376 IPC, was travelling with the prosecutrix in question
and that all the accused were acquitted as the prosecutrix
did not support the allegation. The decision in Mohd.
Imran [Mohd. Imran v. State of Maharashtra, Civil Appeal
No. 10571 of 2018, order dated 12-10-2018 (SC)] thus
turned on individual facts and cannot in any way be said
to have departed from the line of decisions rendered by
this Court in Mehar Singh [Commr. of Police v. Mehar
Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 :
(2013) 2 SCC (LS) 910] , Parvez Khan [State of
M.P. v. Parvez Khan, (2015) 2 SCC 591 : (2015) 1 SCC
(LS) 544] and Pradeep Kumar [UT, Chandigarh
Admn. v. Pradeep Kumar, (2018) 1 SCC 797 : (2018) 1
SCC (Cri) 504 : (2018) 1 SCC (LS) 149] .
16. We must observe at this stage that there is nothing
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on record to suggest that the decision taken by the
authorities concerned in rejecting the candidature of the
respondent was in any way actuated by mala fides or
suffered on any other count. The decision on the question
of suitability of the respondent, in our considered view,
was absolutely correct and did not call for any
interference. We, therefore, allow this appeal, set aside the
decisions rendered by the Single Judge [Abhijit Singh
Pawar v. State of M.P., WP No. 9412 of 2013, order dated
31-7-2014 (MP)] as well as by the Division Bench [State
of M.P. v. Abhijit Singh Pawar, 2015 SCC OnLine MP
7517] and dismiss Writ Petition No. 9412 of 2013
preferred by the respondent. No costs.”
9. Considering the facts and circumstances of the case and the
decisions rendered by the Hon’ble Supreme Court cited supra and the
Division Bench of this Court, this Court cannot give any positive direction
for appointing the petitioner to the post of Police Constable, Grade II.
However, considering the directions issued by the Hon’ble Supreme Court in
Avtar Singh case (supra), this Court is inclined to direct the Director
General of Police, to consider afresh and pass orders in accordance with
law. Therefore, this Court is inclined to pass the following order:
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W.P.No.30779 of 2017
(i) The impugned order, dated 26.10.2017 passed by the third
respondent is quashed.
(ii) The Director General of Police, Mylapore, Chennai is directed
to consider afresh, the petitioner’s selection for appointment to the post of
Grade II Police Constable, in the light of aforesaid discussion and pass
orders in accordance with law, within a period of 12 weeks from the date of
receipt of a copy of this order.
10. The writ petition is disposed of with the above directions.
No costs.
28.01.2020
Speaking / Non-Speaking order
Internet:Yes/No
Index:Yes/No
vaan
To
1 The Secretary to Government,
State of Tamil Nadu,
Home Department, Secretariat, Chennai-9
2 The Director General of Police,
Dr.Radhakrishnan Salai, Mylapore, Chennai-4
3 The Superintendent of Police,
District Police Office, Vellore District, Vellore.
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W.P.No.30779 of 2017
D.KRISHNAKUMAR,J.
vaan
W.P.No.30779 of 2017
Dated: 28.01.2020
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