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Judgments of Supreme Court of India and High Courts

S.Hemanathan vs The Director General Of Police on 25 March, 2019

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 25-03-2019

CORAM

THE HON’BLE MR.JUSTICE S.M.SUBRAMANIAM

W.P.No.24898 of 2018

S.Hemanathan .. Petitioner

– Vs. –

1.The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai-4.

2.The Superintendent of Police,
Thiruvallur District. .. Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the
records of the second respondent in connection with the impugned
order passed by him in Na.Ka.No.A2/6421/2017 dated 14.5.2018 and
quash the same and direct the respondents to appoint the petitioner as
Grade II Police Constable and send him for training and grant him all
consequential service and monetary benefits.
For Petitioner : Mr.K.Venkata Ramani,
Senior Counsel for
Mr.M.Muthappan.

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For Respondents : Mr.A.N.Thambidurai,
Special Government Pleader.

ORDER

The order of rejection dated 14.5.2018, rejecting the claim

of the writ petitioner for selection to the post of Grade II Police

Constable in the Tamil Nadu Police Service, is under challenge in the

present writ petition.

2. Pursuant to the Recruitment Notification, issued by the

Competent Authority, for appointment to the post of Grade II Police

Constable in the Tamil Nadu Special Police Battalion, the writ petitioner

submitted an application to participate in the process of selection.

3. The writ petitioner was successful in the written

examination and allowed to participate in the physical efficiency test

and secured the required cut off marks and further participated in the

other required tests and also the medical test.

4. One of the requirements under the Rules are that the

Competent Authority has to verify the character and the antecedents

of the candidates for the purpose of including their names in the Final

Select List.

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5. Verification of character and antecedents were

undertaken in respect of the case of the writ petitioner and a criminal

case was registered against the writ petitioner in Crime No.85 of 2015

on the file of Arambakkam Police Station, Thiruvallur District for the

offences punishable under Sections 147, 148, 294(b), 352, 324, 506

(ii) IPC read with Section 149 IPC. The writ petitioner was arrayed as

an accused No.8 and a charge sheet has been filed before the Criminal

Court of Law.

6. The learned Senior Counsel, appearing on behalf of the

writ petitioner, states that the criminal case registered against the writ

petitioner was quashed by the High Court in Criminal Original Petition

No.22451 of 2017 dated 25.10.2017.

7. In view of the fact that the criminal case itself was

quashed, the writ petitioner is entitled to be considered for selection to

the post Grade II Police Constable, as there was no trial or a final

order in the criminal case.

8. The learned Senior Counsel for the writ petitioner

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further relied on the judgment of this Court in the case of Sivanesan

vs. Superintendent of Police, Tiruvannamalai District [decided

on 26.2.2013 in WP No.177 of 2013] and the relevant paragraphs

17, 18 are extracted hereunder:-

“17. If these two judgments are taken
note of, then reliance placed on by the
respondent in Manikandan’s case cannot have
any direct relevance to the case on hand. On
the other hand, the petitioner was honest and
had disclosed the pendency of the criminal
case. Since the very FIR itself has been
quashed by this court, it cannot be said that he
was involved in the criminal case, which case is
admittedly a false one filed at the instance of
one Murugesan, who remained absent when in
the criminal original petition notice was
ordered. It must also be true that Arachelvi’s
sister-in-law was the Sub Inspector of Police,
who was instrumental in registering the case
against the petitioner. For no fault on the part
of the petitioner, he cannot be punished when
he was not involved in any criminal case. After
all, in the present case what was happened
was the love marriage between one Sudhakar
and Arachelvi and that the two of them were
major. It was said to have been converted into
a criminal case at the instance of some

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aggrieved relatives of the girl.

18. Further, it will not be out of place to
refer to a judgment of the Supreme Court in
Lata Singh v. State of U.P., reported in (2006)
5 SCC 475, wherein the Supreme Court had
considered the case of inter-caste marriage of
couples and false cases being lodged by the
police and the duty of the police to take stern
actions against persons who are committing
crimes against such couples and in paragraphs
14 to 18, the Supreme Court had observed as
follows :

“14. This case reveals a shocking state of
affairs. There is no dispute that the petitioner
is a major and was at all relevant times a
major. Hence she is free to marry anyone she
likes or live with anyone she likes. There is no
bar to an inter-caste marriage under the Hindu
Marriage Act or any other law. Hence, we
cannot see what offence was committed by the
petitioner, her husband or her husband’s
relatives.

15. We are of the opinion that no offence
was committed by any of the accused and the
whole criminal case in question is an abuse of
the process of the court as well as of the
administrative machinery at the instance of the
petitioner’s brothers who were only furious

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because the petitioner married outside her
caste. We are distressed to note that instead of
taking action against the petitioner’s brothers
for their unlawful and high-handed acts (details
of which have been set out above), the police
has instead proceeded against the petitioner’s
husband and his relatives.

16. Since several such instances are
coming to our knowledge of harassment,
threats and violence against young men and
women who marry outside their caste, we feel
it necessary to make some general comments
on the matter. The nation is passing through a
crucial transitional period in our history, and
this Court cannot remain silent in matters of
great public concern, such as the present one.

17. The caste system is a curse on the
nation and the sooner it is destroyed the
better. In fact, it is dividing the nation at a
time when We have to be united to face the
challenges before the nation unitedly. Hence,
inter-caste marriages are in fact in the national
interest as they will result in destroying the
caste system. However, disturbing news are
coming from several parts of the country that
young men and women who undergo inter-
caste marriage, are threatened with violence,
or violence is actually committed on them. In

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our opinion, such acts of violence or threats or
harassment are wholly illegal and those who
commit them must be severely punished. This
is a free and democratic country, and once a
person becomes a major he or she can marry
whosoever he/she likes. If the parents of the
boy or girl do not approve of such inter-caste
or inter-religious marriage the maximum they
can do is that they can cut-off social relations
with the son or the daughter, but they cannot
give threats or commit or instigate acts of
violence and cannot harass the person who
undergoes such inter-caste or inter-religious
marriage. We, therefore, direct that the
administration/police authorities throughout
the country will see to it that if any boy or girl
who is a major undergoes inter-caste or inter-
religious marriage with a woman or man who
is a major, the couple is not harassed by
anyone nor subjected to threats or acts of
violence, and anyone who gives such threats
or harasses or commits acts of violence either
himself or at his instigation, is taken to task by
instituting criminal proceedings by the police
against such persons and further stern action
is taken against such persons as provided by
law.

18. We sometimes hear of “honour”

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killings of such persons who undergo inter-
caste or inter-religious marriage of their own
free will. There is nothing honourable in such
killings, and in fact they are nothing but
barbaric and shameful acts of murder
committed by brutal, feudal-minded persons
who deserve harsh punishment. Only in this
way can we stamp out such acts of barbarism.”

(Emphasis added)

In the present case, the Arni police instead of
helping the couples, who got married, had not
only filed a false case against the husband, but
also against his friends who helped them to get
married.”

9. The similar facts and circumstances were considered by

this Court and directions were issued to appoint the candidate. Thus,

the present writ petition is also to be allowed.

10. The learned Special Government Pleader, appearing on

behalf of the respondents, relying on the counter statement,

contended that during the process of police verification, it is found that

previously an FIR was registered in Crime No.85 of 2015 against the

writ petitioner under Sections 147, 148, 294(b), 352, 324, 506 (ii) IPC

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read with Section 149 IPC on the file of the Aarambakkam Police

Station, Thiruvallur District.

11. Thus, the conduct and character was found not

satisfactory for appointment to the post of Grade II Police Constable. It

is further stated that “a person involved in a criminal case at the time

of police verification and the case yet to be disposed of and

subsequently ended in honourable acquittal or treated as mistake of

fact shall be treated as not involved in a criminal case and he can claim

right for appointment only by participating in the next recruitment

[G.O.Ms.No.101, Home (Police IX) Department, dated 30.1.2003]” and

which was amended in Tamil Nadu Special Police Subordinate Service

Rules in para-14(b).

12. The fact regarding the amendments were intimated to

the writ petitioner in office endorsement dated 14.5.2018 for the non-

appointment to the post of Grade II Police Constable. The writ

petitioner filed a writ petition in WP No.265 of 2018 to consider his

representation dated 6.11.2017 and the said writ petition is pending as

of now.

13. It is further contended that the order of quashing the

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FIR No.85 of 2015 was based on the compromise between the parties

concerned and therefore, the writ petitioner was not appointed to the

post of Grade II Police Constable.

14. It is relevant to extract the order passed by this Court

in Criminal OP No.22451 of 2017 dated 25.10.2017 and the relevant

paragraphs 4, 5 and 6 are extracted as under:-

“4. Today, the petitioners as well as
the 2nd respondent/defacto complainant
are personally present before this Court
and also have been identified. An affidavit
of the 2nd respondent/defacto
complainant dated 25.10.2017 is also filed
to the effect that she has no objection to
quash the proceedings in Cr.No.85 of
2015 on the file of the Inspector of Police,
F-3, Arambakkam Police Station,
Thiruvallur District.

5. Recording the same, the
proceedings in Cr.No.85 of 2015 on the
file of the Inspector of Police, F-3,

Arambakkam Police Station, Thiruvallur
District is quashed. The Criminal Original
Petition is allowed.

6. The Memorandum of Compromise
dated 10.09.2017 between the petitioners

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and the 2nd respondent/defacto
complainant and the affidavit filed by the
2nd respondent/defacto complainant
dated 25.10.2017 shall form part of the
order.”

15. The criminal case registered against the writ petitioner

was quashed based on the fact that the de facto complainant

compromised the issues with the accused persons and there was no

objection from the Inspector of Police.

16. Taking note of the compromise between all the parties,

the First Information Report registered against the writ petitioner was

quashed. The question arises whether such an order will extend

protection for a candidate for the purpose of seeking selection to the

post of Grade II Police Constable.

17. This Court considered the legal principles in the matter

of selection, more specifically, to the post of Grade II Police Constable

in WP No.10689 of 2013 dated 12.7.2018. The Judgement of the

Hon’ble Supreme Court has been relied. The relevant paragraphs 6

and 7 are extracted hereunder:-

“6. Considering the judgments of the

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Hon’ble Supreme Court of India, the Hon’ble
Full Bench of the High Court of Madya
Pradesh answered the questions in relation
to the selection. In the case of Ashutosh
Pawar Vs. High Court of Madhya
Pradesh, reported in 2018 1 CTC 353,
the Hon’ble Full Bench formulated the
following questions for the decision of the
Larger Bench.

1. Whether in all cases, where an FIR
lodged against a person for minor offences
has been quashed on the basis of a
compromise arrived at between the parties
or a person has been acquitted on account
of a compromise between the parties, the
character of the person applying for
appointment thereafter, has to be treated as
Good and such a person cannot be held
ineligible for appointment under the Rules of
1994?

2. Whether the High Court in exercise
of its powers under Article 226 of the
Constitution of India, can step into the shoes
of the Appointing Authority and determine as
to whether the person concerned is fit for
appointment or whether the High Court on
finding that the Authority concerned has
wrongly exercised its discretion in holding

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the candidate to be ineligible should, after
quashing the order, remit the matter back to
the authority concerned for reconsideration
or for fresh consideration as to the eligibility
of the person?

3. Whether the High Court while
allowing such a petition in exercise of its
powers under Article 226 of the Constitution
of India can issue a further direction to the
authority to appoint the person concerned
on the post from the date his batchmates
were appointed and to grant him back dated
seniority and all other benefits or whether
the High Court should simply remit the
matter back to the authority for taking a
decision in this regard?

4. Whether the high standards of
adjudging the good character of a candidate
for appointment as a Judicial Officer, which
has been adopted and followed by the State
under the Rules of 1994 till the decision in
the case of Arvind Gurjar (supra) were and
are right and proper or whether in view of
the decision in the case of Arvind
Gurjar (supra), the same should be
considered to be relaxed to the extent that
in all cases the character of a person should
be treated to be good where he has been

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acquitted for minor offences on the basis of
a compromise?

5. Whether the decision in the case
of Arvind Gurjar (supra) lays down the
correct law?

6. Any other question that may arise
for adjudication or decision in the dispute
involved in the present petition and which
the Larger Bench thinks appropriate to
decide?

7. The Hon’ble Full Bench elaborately
adjudicated the issues involved in respect of
selection and the pendency of criminal case
against the candidates and the relevant
paragraphs 33 to 45 of the judgment cited
supra are extracted hereunder:

33. This brings us to consider the
Question Nos. 2 and 3 referred to for the
opinion, which read as under:—
QUESTION Nos. 2 3:

“2. Whether the High Court in exercise
of its powers under Article 226 of the
Constitution of India, can step into the shoes
of the Appointing Authority and determine as
to whether the person concerned is fit for
appointment or whether the High Court on
finding that the Authority concerned has
wrongly exercised its discretion in holding

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the candidate to be ineligible should, after
quashing the order, remit the matter back to
the authority concerned for reconsideration
or for fresh consideration as to the eligibility
of the person?

3. Whether the High Court while
allowing such a petition in exercise of its
powers under Article 226 of the Constitution
of India can issue a further direction to the
authority to appoint the person concerned
on the post from the date his batchmates
were appointed and to grant him back dated
seniority and all other benefits or whether
the High Court should simply remit the
matter back to the authority for taking a
decision in this regard?”

34. The power of judicial review under
Article 226 of the Constitution of India is not
that as of Court of appeal but to find out
whether the decision-making process is in
accordance with law and is not arbitrary or
irrational. In a Constitution Bench judgment
reported as AIR 1954 SC 440 (T.C.

Basappa v. T. Nagappa) it was held that the
High Court has power to issue writs in a case
where subordinate tribunals or bodies or
officers act wholly without jurisdiction or in
excess of it or in violation of the principles of

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natural justice, or refuse to exercise a
jurisdiction vested in them or there is an
error apparent on the face of record but
such jurisdiction is not wide or large as to
enable the High Court to convert itself into a
Court of appeal and examine for itself the
correctness of the decision impugned.
Relevant extract of the said decision is
reproduced as under:—
“(11) In dealing with the powers of
the High Court under article 226 of the
Constitution this Court has expressed itself
in almost similar terms vide – ‘Veerappa
Pillai v. Raman and Raman Ltd., AIR 1952
SC 192 at pp. 195-196 (I) and said:

“Such writs as are referred to in article
226 are obviously intended to enable the
High Court to issue them in grave cases
where the subordinate Tribunals or bodies or
officers act wholly without jurisdiction, or in
excess of it, or in violation of the principles
of natural justice, or refuse to exercise a
jurisdiction, vested in them, or there is an
error apparent on the face of the record, and
such act, omission, error or excess has
resulted in manifest injustice. However
extensive the jurisdiction may be, it seems
to us that it is not so wide or large as to

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enable the High Court to convert itself into a
Court of appeal and examine for itself the
correctness of the decision impugned and
decide what is the proper view to be taken
or the order to be made.”
These passages indicate with sufficient
fullness the general principles that govern
the exercise of jurisdiction in the matter of
granting writs of certiorari under article 226
of the Constitution.

(24). As regards the omission to
include hiring charges the High Court has
observed that the Tribunal did not record
any finding that such hiring was proved. The
Tribunal has in fact found that as regards
some cars they were hired, while others had
been taken on loan, the money value for
their use having been paid by the first
respondent which is tantamount to saying
that he had to pay the hiring charges. The
matter has been dealt with in paragraph
29(d) of the Tribunal’s order and the entire
evidence has been gone through.

We are unable to say that the finding
of the Tribunal that the respondent No. 1
had omitted to include in his return of
election expenses the dinner and hotel
charges is a finding unsupported by any

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evidence. Reference may be made in this
connection to paragraph 29(f) of the
Tribunal’s order which deals with the matter
in detail.

On the whole our opinion is that the
so-called apparent errors pointed out by the
High Court are neither errors of law nor do
they appear on the face of the record. An
appellate Court might have on a review of
this evidence come to a different conclusion
but these are not matters which would
justify the issue of a writ of certiorari. In our
opinion the judgment of the High Court
cannot be supported and this appeal must
be allowed. The writ issued by the High
Court will therefore be vacated. We make no
order as to costs of this appeal.”

35. In another Constitution Bench
judgment reported as AIR 1965 SC
532 (State of Mysore v. K.N.

Chandrasekhara), the question examined
was in relation to the appointment to the
post of Munsif by the Karnataka Public
Service Commission. The Court held that if
the High Court was satisfied that the
persons, who were occupying the post were
appointed contrary to the Rules, the High
Court could set aside the proceedings of the

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Commission and direct preparation of fresh
list according to law but could not direct to
include the name of the six petitioners only
because they applied to the Court. The
relevant extract read as under:—
“10. It may at once be observed that
the order passed by the High Court cannot in
any view of the case be sustained. The High
Court could, if it held that the notification
issued by the Commission and the
appointments made by the State pursuant
thereto were made in violation of the
statutory rules, quash the list but the High
Court could not direct that the names of six
persons merely because they had applied for
setting aside the list of candidates selected
for promotion be incorporated in that list.
The direction made by the High Court was in
the nature of mandamus. Such a direction
could be issued against a person or body to
compel the performance of a public duty
imposed upon it by law-statutory or
common. The commission is undoubtedly a
body constituted pursuant to the provisions
of the Constitution and has to exercise
powers and perform functions entrusted to it
by the Rules framed under Art. 309. But the
order which the High Court made was not for

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compelling performance of its duty imposed
upon the Commission by statute or common
law. If the High Court came to the
conclusion that the proceeding of the
Commission was vitiated on account of some
irregularity or illegality, it could declare the
proceeding void. The High Court however
held that the orders including respondents 4
to 13 to the petitions in the list of persons
eligible for appointment should be allowed to
stand, because the petitioners in the
petitions before it did not insist on the issue
of a writ of quo warranto. If the High Court
was satisfied on an application specifically
made in that behalf that the persons who
were occupying posts to which they were
appointed contrary to the rules governing
the appointment and consequently were not
competent to occupy the posts, it is difficult
to appreciate the ground on which the High
Court would be justified in declining to pass
appropriate orders. Either the High Court
could set aside the proceeding of the
Commission and direct preparation of a fresh
list according to law, or the High Court could
dismiss the petitions because in its view the
list was regularly prepared. But the order
passed by the High Court maintaining the

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inclusion of respondents 4 to 13 in the list
and then directing the Commission to
include the names of the six petitioners in
the list merely because they had applied to
the High Court is without authority.”

36. In another judgment reported
as (1969) 3 SCC 489 (Thakur Birendra
Singh v. The State of M.P.), the Court held
that the High Court could have quashed the
orders but the High Court was not sitting in
appeal over the decision of the Board of
Revenue. Once the orders complained of are
quashed, the matter should have been left
at large without any further direction leaving
the Revenue Authorities free to take any
steps.

37. The scope of power of judicial
review has also been examined in a
judgment reported as (1994) 6 SCC
651 (Tata Cellular v. Union of India), the
Supreme Court held as under:—
“74. Judicial review is concerned with
reviewing not the merits of the decision in
support of which the application for judicial
review is made, but the decision-making
process itself.

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75. In Chief Constable of the North
Wales Police v. Evans (1982) 3 All ER 141,
154, Lord Brightman said:

“Judicial review, as the words imply, is
not an appeal from a decision, but a review
of the manner in which the decision was
made.

***
Judicial review is concerned, not with
the decision, but with the decision-making
process. Unless that restriction on the power
of the court is observed, the court will in my
view, under the guise of preventing the
abuse of power, be itself guilty of usurping
power.”
In the same case Lord Hailsham
commented on the purpose of the remedy
by way of judicial review under RSC, Ord. 53
in the following terms:

“This remedy, vastly increased in
extent, and rendered, over a long period in
recent years, of infinitely more convenient
access than that provided by the old
prerogative writs and actions for a
declaration, is intended to protect the
individual against the abuse of power by a
wide range of authorities, judicial, quasi-
judicial, and, as would originally have been

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thought when I first practiced at the Bar,
administrative. It is not intended to take
away from those authorities the powers and
discretions properly vested in them by law
and to substitute the courts as the bodies
making the decisions. It is intended to see
that the relevant authorities use their
powers in a proper manner (p. 1160).”
In R. v. Panel on Takeovers and
Mergers, exp Datafin plc (1987) 1 All ER
564, Sir John Donaldson, M.R. commented:

“An application for judicial review is
not an appeal.” In Lonrho plc v. Secretary of
State for Trade and Industry (1989) 2 All ER
609, Lord Keith said: “Judicial review is a
protection and not a weapon.”
It is thus different from an appeal.
When hearing an appeal the Court is
concerned with the merits of the decision
under appeal. In Amin v. Entry Clearance
Officer, (1983) 2 All ER 864, Re, Lord
Fraser observed that:

“Judicial review is concerned not with
the merits of a decision but with the manner
in which the decision was made…. Judicial
review is entirely different from an ordinary
appeal. It is made effective by the court
quashing the administrative decision without

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substituting its own decision, and is to be
contrasted with an appeal where the
appellate tribunal substitutes its own
decision on the merits for that of the
administrative officer.”

76. In R. v. Panel on Take-overs and
Mergers, exp in Guinness plc (1989) 1 All ER
509, Lord Donaldson, M.R. referred to the
judicial review jurisdiction as being
supervisory or ‘longstop’ jurisdiction. Unless
that restriction on the power of the court is
observed, the court will, under the guise of
preventing the abuse of power, be itself
guilty of usurping power.

77. The duty of the court is to confine
itself to the question of legality. Its concern
should be:

1. Whether a decision-making
authority exceeded its powers?

2. Committed an error of law,

3. Committed a breach of the rules of
natural justice,

4. Reached a decision which no
reasonable tribunal would have reached or,

5. Abused its powers.

Therefore, it is not for the court to
determine whether a particular policy or
particular decision taken in the fulfillment of

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that policy is fair. It is only concerned with
the manner in which those decisions have
been taken. The extent of the duty to act
fairly will vary from case to case. Shortly
put, the grounds upon which an
administrative action is subject to control by
judicial review can be classified as under:

(i) Illegality: This means the decision-
maker must understand correctly the law
that regulates his decision-making power
and must give effect to it.

(ii) Irrationality, namely, Wednesbury
unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it
does not rule out addition of further grounds
in course of time. As a matter of fact,
in R. v. Secretary of State for the Home
Department, ex Brind (1991) 1 ACR 696,
Lord Diplock refers specifically to one
development, namely, the possible
recognition of the principle of
proportionality. In all these cases the test to
be adopted is that the court should,
“consider whether something has gone
wrong of a nature and degree which requires
its intervention”.

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38. The Supreme Court in a judgment
reported as (2008) 1 SCC 683 (Aravali Golf
Clubv. Chander Hass) has held that in the
name of judicial activism Judges cannot
cross their limits and try to take over
functions which belong to another organ of
the State. The Court held as under:—
“17. Before parting with this case we
would like to make some observations about
the limits of the powers of the judiciary. We
are compelled to make these observations
because we are repeatedly coming across
cases where judges are unjustifiably trying
to perform executive or legislative functions.
In our opinion this is clearly unconstitutional.
In the name of judicial activism judges
cannot cross their limits and try to take over
functions which belong to another organ of
the State.

18. Judges must exercise judicial
restraint and must not encroach into the
executive or legislative domain, vide Indian
Drugs Pharmaceuticals
Ltd. v. Workmen(2007) 1 SCC 408; and S.C.
Chandra v. State of Jharkhand (2007) 8 SCC
279 (see concurring judgment of M. Katju,
J.).

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19. Under our Constitution, the
legislature, the executive and the judiciary
all have their own broad spheres of
operation. Ordinarily it is not proper for any
of these three organs of the State to
encroach upon the domain of another,
otherwise the delicate balance in the
Constitution will be upset, and there will be a
reaction.

20. Judges must know their limits and
must not try to run the Government. They
must have modesty and humility, and not
behave like emperors. There is broad
separation of powers under the Constitution
and each organ of the State-the legislature,
the executive and the judiciary-must have
respect for the other and must not encroach
into each other’s domains.

21.The theory of separation of powers
first propounded by the French thinker
Montesquieu (in his book The Spirit of Laws)
broadly holds the field in India too. In
Chapter XI of his book The Spirit of
Laws Montesquieu writes:

“When the legislative and executive
powers are united in the same person, or in
the same body of Magistrates, there can be
no liberty; because apprehensions may

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28

arise, lest the same monarch or senate
should enact tyrannical laws, to execute
them in a tyrannical manner.

Again, there is no liberty, if the judicial
power be not separated from the legislative
and executive. Were it joined with the
legislative, the life and liberty of the subject
would be exposed to arbitrary control; for
the judge would be then the legislator. Were
it joined to the executive power, the judge
might behave with violence and oppression.
There would be an end of everything, were
the same man or the same body, whether of
the nobles or of the people, to exercise
those three powers, that of enacting laws,
that of executing the public resolutions, and
of trying the causes of individuals.”
(Emphasis supplied)
We fully agree with the view expressed
above. Montesquieu’s warning in the
passage above quoted is particularly apt and
timely for the Indian judiciary today, since
very often it is rightly criticised for
“overreach” and encroachment into the
domain of the other two organs.”

39. A Full Bench of this Court in Writ
Appeal No. 581/2017 (Nitin Pathak v. State
of M.P.) examined the question as to

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29

whether in exercise of power of judicial
review the Court can refer the matter to a
Court chosen expert or whether the Court
itself can act as Court of appeal and make a
different view than what has been finalised
as the model answer key by the Examining
Body. The Bench held as under:—
“32. In respect of the second
question, this Court does not and should not
act as Court of Appeal in the matter of
opinion of experts in academic matters as
the power of judicial review is concerned,
not with the decision, but with the decision-
making process. The Court should not under
the guise of preventing the abuse of power
be itself guilty of usurping power.”

40. In view of the law laid down in
above said judgments, there is no doubt that
in exercise of power of judicial review under
Article 226 of the Constitution of India, this
Court only examines the decision-making
process and does not substitute itself as a
Court of appeal over the reasons recorded
by the State Government. We find that the
decision of the State Government holding
that the petitioner is not suitable, is just, fair
and reasonable keeping in view the nature of
the post and the duties to be discharged.

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30

41. Even if the High Court finds that
the decision of the State Government is
suffering from some illegality, the
jurisdiction of the High Court in a writ
petition under Article 226 of the Constitution
of India is to remit the matter to the
Authority for reconsideration rather than to
substitute the decision of the competent
Authority with that of its own. The Supreme
Court in a judgment reported as (1994) 4
SCC 448 (State of Haryana v. Naresh Kumar
Bali) was examining a question: as to
whether there could be a direction to appoint
a candidate, who sought appointment on
compassionate ground. The Supreme Court
held as under:—
“16. With regard to appointment on
compassionate ground we have set out the
law in Life Insurance Corpn. of India v. Asha
Ramchhandra Ambekar (1994) 2 SCC 718.
The same principle will clearly apply here.
What the High Court failed to note is the
post of an Inspector is a promotional post.
The issuing a direction to appoint the
respondent within three months when direct
recruitment is not available, is
unsupportable. The High Court could have
merely directed consideration of the claim of

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31

the respondent in accordance with the rules.
It cannot direct appointment. Such a
direction does not fall within the scope of
mandamus. Judicial review, it has been
repeatedly emphasised, is directed against
the decision-making process and not against
the decision itself; and it is no part of the
court’s duty to exercise the power of the
authorities itself. There is widespread
misconception on the scope of interference
in judicial review. The exercise of the
extraordinary jurisdiction constitutionally
conferred on the Apex Court under Article
142(1) of the Constitution can be of no
guidance on the scope of Article 226.”

42. Again while considering the
question of compassionate appointment in a
judgment reported as (2008) 8 SCC
475 (General Manager, State Bank of
India v. Anju Jain), the Supreme Court held
that there could not be any direction for
appointment or promotion. The relevant
para of the said decision is extracted as
under:—
“37. Even on second ground, the
submission of the Bank is well-founded. As
noted earlier, the learned Single Judge
issued direction to the Bank to appoint the

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32

writ petitioner, widow of the deceased
employee within one month. As per settled
law, a writ of mandamus can be issued
directing the authority to consider the case
of the petitioner for an appointment or
promotion as the case may be but no
direction can be given to appoint or promote
a person.”

43. Similar view has been expressed
in a judgment reported as (2014) 3 SCC
767(Ganapath Singh Gangaram Singh
Rajput v. Gulbarga University represented
by its Registrar) wherein while dealing with
the scope of Writ of Mandamus in the matter
of appointment/recruitment, the Supreme
Court held, thus:—
“25. Ordinarily, in a case where the
person appointed is found ineligible, this
Court after setting aside such appointment,
directs for consideration of cases of such of
the candidates, who have been found
eligible. It is only in exceptional cases that
this Court issues mandamus for
appointment. The case in hand is not one of
those cases where the High Court ought to
have issued mandamus for appointment of
Shivanand as Lecturer in MCA. Hence, we
are of the opinion that the High Court rightly

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33

held Ganpat ineligible and quashed his
appointment. However, it erred in issuing
mandamus for appointment of Shivanand.
Accordingly, we uphold the impugned order
(Shivanand v. Gulbarga University, Writ
Appeal No. 3216 of 2004, order dated 19-
11-2009/24-11-2009 (KAR) of the High
Court whereby it had set aside the
appointment of the appellant herein and
direct that the case of the writ petitioner
Shivanand and all other candidates be
considered in accordance with law. However,
we make it clear that the selection already
made shall be taken to its logical
conclusion.”

44. Therefore, the High Court could
not issue any direction for appointment of a
candidate from the date the other
candidates were appointed as such is not the
jurisdiction vested in the High Court under
Article 226 of the Constitution of India.

45. In view of the above, we find that
the judgment of this Court in Arvind Gurjar’s
case (supra) does not lay down the correct
law as the High Court has substituted its
decision regarding suitability of a candidate
and also issued a direction to appoint the
petitioner, therefore, the entire judgment

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34

does not lay down correct law and is thus,
overruled. The question Nos. 2 and 3 are
answered accordingly.

QUESTION No. 6:

(6) Any other question that may arise
for adjudication or decision in the dispute
involved in the present petition and which
the Larger Bench thinks appropriate to
decide?”

18. Even recently, the Three Judges Bench of the Hon’ble

Supreme Court in the case of State of Madhya Pradesh vs. Abhijit

Singh Pawar [2018 (6) CTC 659] held as follows:-

“15. 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) of Cr.P.C., the law declared by
this Court in Mehar Singh (supra), specially in
paragraphs 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 so considering,
the employer can certainly take into account the
job profile for which the selection is undertaken,

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35

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.

17. We must observe at this stage that
there is nothing on record to suggest that the
decision taken by the concerned authorities 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 as well as by the Division Bench and
dismiss Writ Petition No. 9412 of 2013 preferred
by the respondent. No costs.”

19. The legal principles in this regard are that irrespective

of the fact, whether the candidate, who is aspiring to secure the post

of Police Constable Grade II, which is an Uniformed Service, has

involved in the criminal case or not. Whether he was acquitted or

discharged or the proceedings itself is quashed or not, the competent

authority is empowered to verify the character and antecedents.

20. Beyond this, it is for the Authorities Competent to

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36

ensure that the suitability of the candidate for appointment to the post

of Grade II Police Constable. Even in case where there is no criminal

case registered against the writ petitioner, then also the authority

competent is entitled to find out the suitability by verifying the

character and antecedent of the writ petitioner. If the character and

antecedent, on verification, is not satisfactory, then also the competent

authority, by recording the reasons, is empowered to reject the

candidature of the writ petitioner.

21. The only requirement, in this regard, is an application

of mind on the part of the competent authority as well as to verify the

character and antecedent of the writ petitioner.

22. This being the principles to be followed, the High Court

cannot interfere with the process of selection, more specifically,

regarding the verification of character and antecedents of the

candidates, who all are to be appointed in the Uniformed Services.

23. The Selection Committee is the best person to certify

the good conduct or otherwise of the candidates, who all are

participated in the process of selection. However, the High Court

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37

cannot interfere or undertake such an exercise of clarifying the

conduct of a candidate contrary to the decision taken by the Selecting

Authorities. Only in the event of any discrepancies or malpractices or

certain mala fides are established, then alone the High Court can

interfere with the process of selection. The Judicial Review in the

matter of selection is undoubtedly limited.

24. Under these circumstances, the fact remains that the

criminal case was quashed based on the compromise entered into

between the de facto complainant, accused persons as well as the

Inspector of Police, who registered the complaint.

25. Based on the compromise arrived, the High Court

quashed the criminal case proceedings. This would not help the writ

petitioner to secure an employment to the post of Grade II Police

Constable as the competent authority, who verified the character and

antecedent, came to the conclusion that the writ petitioner is not

suitable for appointment to the post of Grade II Police Constable.

26. This being the factum, this Court has no hesitation in

coming to the conclusion that the writ petitioner has not established

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38

any acceptable ground for the purpose of considering the relief, as

such, sought for in the present writ petition.

27. Accordingly, the writ petition stands dismissed.

However, there shall be no order as to costs.

25-03-2019

Index:Yes.

Internet: Yes.

Speaking Order.

Svn

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39

To

1.The Director General of Police,
Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore,
Chennai-4.

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40

S.M.SUBRAMANIAM, J.

Svn

WP No.24898 of 2018

25-03-2019

http://www.judis.nic.in

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