Central Administrative Tribunal - Lucknow
This the 12th day of September, 2012
Hon ble Mr. Justice Alok Kumar Singh, Member (J)
Hon ble Sri S.P.Singh, Member (A)
Vineet Kumar aged about 32 years son of Sri Vijay Pal Singh resident of 741, Civil Lines, Kalyani Devi, Unnao.
By Advocate: Sri P.K. Srivastava
1. Union of India through Secretary, Ministry of Home Affairs, Govt. of India, New Delhi.
2. Director, Central Bureau of Investigation, Govt. of India, 5B, 7th Floor, CGO Complex, Lodhi Road, New Delhi-110003.
3. Staff Selection Commission, through its Chairman, Block No.12, CGO Complex, Lodhi Road, New Delhi-110003.
4. The Regional Director (NR), Staff Selection Commission, Block No. 12, CGO Complex, Lodhi Road, New Delhi-110003.
By Advocate: Sri S.P. Singh
(Reserved on 10.9.2012)
By Hon ble Mr. Justice Alok Kumar Singh, Member (J)
This O.A. has been filed for the following reliefs:-
i) to quash the orders dated 12.5.2011 and 17.6.2011 contained in Annexure 1 and 2 to this O.A. holding such orders bad in law, not enforceable and simultaneously directing the opposite parties to appoint the petitioner on the post of Assistant Public Prosecutor in CBI in pursuance of his selection by the Staff Selection Commission (SCC) within a specified time limit that may be allowed by this Hon ble Tribunal. ii) to issue any other order or direction as this Hon ble Tribunal deems fit and proper may also be passed along with the costs of the original application.
2. In short, the case of the applicant is that the Staff Selection Commission (SSC) (Respondent No.3) advertised 17 vacancies for selection for the post of Assistant Public Prosecutor (APP) for Respondent No.2 i.e. C.B.I. vide advertisement published in the employment news / weekly news 22-28 August, 2009. Reservation for the relevant categories were also made and the applicant belonging to OBC category, being eligible for the post, participated in the selection and after interview, he was finally selected in the month of July, 2010. He stood at position No. 10 in the select list and second amongst the OBC category candidates. On 12.8.2010, CBI, New Delhi asked for certain documents which were to be sent by registered post or in person latest by 31.8.2010 along with two set of attestation form were also enclosed for filling. The applicant appeared in person on 26.8.2010 in the office of the CBI, New Delhi along with the requisite certificate. Thereafter, when the applicant did not receive any communication and other selected candidates were being given appointment letters for joining by 15.1.2011, he preferred an application under Right to Information Act on 29.4.2011 and received communication dated 20.5.2011 enclosing therewith point-wise reply furnished by CBI on 12.5.2011. The SSC also issued a show cause notice of the same date i.e. 12.5.2011 to the applicant calling upon him to show cause as to why not the candidature of the applicant be cancelled because he has misled the SCC regarding his involvement in the criminal case. He submitted a detailed reply on 25.5.2011 (Annexure -9) saying that the candidature of the applicant has been rejected in an arbitrary manner without application of mind. It has also been clarified that at the time of submission of forms in response to the advertisement , no criminal case was pending against the applicant. At that relevant time, he was staying at Banaras Hindu University pursuing his PHD. During that period, a matrimonial discord brewed up with his elder brother Pradeep Kumar Singh and his wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand, his brother s wife lodged an FIR under case Crime No.43/2010 u/s 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur falsely roping therein the entire family which included the applicant , his married sister and Bua etc. (Annexure 10). During investigation, the police added Section 324, 292, 294 ,452 IPC also. But the applicant was enlarged on bail on 27.5.2010 (Annexure 11).
3. It has been further pleaded that the police finally submitted charge sheet against all the family members except the father and the Learned CMM, Kanpur took cognizance on 27.5.2010. As already said at the time of filling form, neither there was any requirement by the SSC nor there was any occasion for the applicant to inform the SSC as regard the lodging of FIR in the criminal case. Similarly, at the time of interview held on 23.6.2010 also, whatever information was sought by the SSC were duly supplied. Nothing has been concealed by the applicant at both the above stages. During course of time, some of the family members also challenged the charge sheet u/s 482 Cr PC before the Hon ble High Court vide Misc. Application No. 23046/2010 and the proceedings of the lower court were stayed. Thereafter, the matter was sent to the mediation centre for amicable resolution. The efforts however failed and ultimately the above case was also dismissed on 8.3.2011. After the applicant was declared successful by the SCC and recommended for appointment in response to the letter dated 12.8.2010, it was for the first time the applicant had to submit attestation form to CBI answering certain queries as mentioned at point No.12 as under:- 12 a) Have you ever been arrested? Yes/No
b) Have you ever been prosecuted? Yes/No
c) Have you ever been kept under detention? Yes/No
d) Have you ever been bound down? Yes/No
e) Have you ever been fined by a court of law? Yes/No
f) Have you ever been convicted by a court
of law for any offence Yes/No
g) Have you ever been debarred from any
Examination or rusticated by any University? Yes/No
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes/No
j) detention /fine/conviction/ sentence
Punishment etc and /or the name of the
Case pending in the Court/ university
Educational authority etc. at the time of
Filling up this form? Yes/No
Note 1) Please also see the WARNING at the top of this attestation form.
2) Specific answer to each of the question should be given by striking out Yes/No as the case may be.
The warning at Point No. 1,2 and 3 mentioned in the said attestation form are being berating been reproduced herein:-
1. The furnishing of false information of suppression of any factual information in the application for would be a disqualification and is likely to render the candidate unfit for employment under the Govt.
2. If detained, arrested prosecuted bound down, fined, convicted debarred acquitted etc. subsequent to the completion and submission of this form the detail should be communicated immediately to the Union Public Service Commission or the authority to whom the attestation form has been sent earlier as the case may be, failing which it will be deemed to be suppression of factual information.
3. If the act that information has been furnished or that there has been suppression of any factual information in the attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.
4. The applicant answered the aforesaid questions correctly including about the criminal case and he also gave complete description of the criminal case at the foot of the point No. 12. Thus at no point of time, he concealed any thing either from the CBI or from the SSC. Reference has also been made to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.) of Govt. of India, New Delhi which provides for verification of character and antecedents. It is also provided that even if a person has been convicted after obtaining specific approval of the Govt. if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the case of the applicant, he has not been convicted and there is no provision in the rules including the CBI manual that selection of a candidate may invite ineligibility in case a criminal case is found to be pending. Still his candidature has been canceleld without any application of mind . Hence this O.A.
5. The O.A. has been contested by filing a detailed CA on behalf of the CBI (R.No.1). It has been admitted that the applicant was finally selected but the SSC while recommending the names of the candidates for appointment in the CBI had advised to verify their character/antecedents before issuing offer of appointment. The applicant was therefore, directed to furnish the required information in the attestation form for verification of his character/ antecedents vide letter dated 12.8.2010. The applicant filled the attestation form under his signature. In column No.12 of the Attestation form, he has furnished information as under:- a) Have you ever been arrested? Yes
b) Have you ever been prosecuted? No
c) Have you ever been kept under detention? No
d) Have you ever been bound down? No
e) Have you ever been fined by a court of law? No
f) Have you ever been convicted by a court
of law for any offence No
g) Have you ever been debarred from any
Examination or rusticated by any University
or any other educational authority/
h) Have you ever been debarred/disqualified
by any Public Service Commission/ Staff
Selection Commission for any of their
Examination/ selection? No
i) Is any case pending against you in any
Court of law at the time of filing up this
Attestation Form? Yes
6. It has been also admitted that the applicant has further mentioned that a case Crime No. 43/2010 dated 21.2.2010 u/s 498-A/323/504/506 IPC and > of DP Act has been registered against him in the Police Station Kidwai Nagar, Kanpur. It was further mentioned that Hon ble High Court has referred the matter to the mediation centre and proceedings has been stayed. Based on the information furnished by the applicant, the District Magistrate, Unnao was requested vide letter dated 6.9.2010 for verification of character /antecedents of the applicant. He sent his report on 31.12.2010. Similarly, S.P. Unnao also sent his report on 5.10.2011 mentioning about the pendency of the above criminal case. The verification about the conduct of the applicant was also made by the CBI itself through its Dy. S.P. who reported on 28.9.2010 that the charge sheet dated 6.6.2010 under the aforesaid sections has been filed, which is under trial. After examining the above reports, it was found that the applicant is involved in the above criminal case which is still pending . Though he has not been convicted, it was decided not to appoint him in the organization. Accordingly, his dossier was returned to SSC vide letter dated 3.2.2011 followed by letter dated 15.2.2011 requesting to sponsor another candidate of OBC category in his place. The applicant was also informed about this vide letter dated 12.5.2011 with reference to his application dated 29.4.2011 under RTI. Thereafter, SSC issued a show cause notice dated 12.5.2011 to the applicant . He submitted his reply to the SSC on 25.5.2011. After due consideration of the reply, the SSC vide its letter dated 17.6.2011 had cancelled the candidature of the applicant.
7. The applicant also filed Rejoinder Reply reiterating his averments contained in the O.A. and also saying that now even the criminal case against him and his family members has been decided on 29.3.2012 and all the accused along with applicant have been acquitted. After this judgment, no appeal has been filed in the higher court of law. Therefore, the applicant deserves to be appointed in pursuance of his selection by the SSC.
8. No Counter Reply has been filed on behalf of SSC which has passed the impugned order dated 17.6.2011 (Annexure -2).
9. We have heard the learned counsel for parties and perused the material on record.
10. Before entering into the merit of the case, certain facts are required to be mentioned which are either admitted or not denied from the other side. It is worthwhile to mention that out of the four respondents, including Union of India, CBI and SSC, only CBI has filed Counter Reply.
11. Admittedly, the applicant got finally selected by the SSC for the post of Assistant Public Prosecutor for CBI in response to the advertisement published in the employment news/weekly news 22-28 August, 2009. He stood at position No.10 in the select list and second amongst the OBC category candidates. On 12.8.2010, the CBI, New Delhi asked for certain documents which were required to be sent by registered post or to be made available in person latest by 31.8.2010. Those documents also included two set of attestation forms which were to be filled by the applicant. The applicant personally submitted those forms/ documents on26.8.2010 in the office of the CBI, New Delhi.
12. Earlier, in response to the advertisement in question, the applicant had filled the form (Annexure 5) on 21.6.2010 showing him a practicing advocate in Unnao Bar Association from 11.1.2003. This form consisted of 16 columns which we have gone through but did not find any column requiring to give any particulars of involvement in any criminal case. Similarly, the typed copy of the advertisement in question, which has been brought on record also does not show any such requirement. It is also noteworthy that till that relevant time, only an FIR has come into existence in case Crime No. 43/2010 dated 21.2.2010. But any charge sheet/ criminal case was not pending. It has also not been denied that at that time, the applicant was staying at BHU pursing his PHD and during that period , a matrimonial discord brewed up with his elder brother and elder brother s wife who were staying in Vikas Nagar, Lucknow. His elder brother filed a divorce suit. On the other hand his elder brother s wife lodged an FIR under case Crime No. 43/2010 U/Ss 498-A, 323, 504 and 506 IPC and > Dowry Prohibition Act at P.S. Kidwai Nagar, Kanpur. It is a matter of common knowledge that in such unfortunate matrimonial disputes, cases are lodged from both sides and from the side of the wife, when an FIR is lodged, allegation of harassment on account of non-fulfillment of demand of dowry etc. are usually made not only against the husband but also against all the family members and some times even against married sisters etc. as has been done in the present case also. The applicant was however, released on bail. Thus, at the time of filling form, neither there was any requirement in the form or in the advertisement issued by the SSC nor there was any occasion for the applicant to inform the SSC in respect of lodging of FIR in a criminal case. For the first time, after his final selection, such information was sought vide letter dated 12.8.2010 in the shape of attestation form at point No.12. It is also not disputed that the applicant furnished correct information in column No.12. The relevant sub columns are (a) and (i) : a) Have you ever been arrested? Yes
i) Is any case pending against you
in any Court of law at the time of filling
up this Attestation form? Yes
13. In fact these replies have been categorically admitted in para 8 of the counter reply filed by the CBI itself. Not only this, it has also been fairly admitted in the same paragraph of Counter reply that the applicant has also gave particulars such as case Crime No. 43/2010 dated 21.2.2010 U/Ss 498-A, 323, 504, 506 of IPC and > of D.P. Act Police Station, Kidwai Nagar, Kanpur and that the Hon ble High Court has referred the matter to the Mediation Centre and proceedings have been stayed and that the applicant was granted bail by the CMM Court, Kanpur. In the show cause notice issued on 12.5.2011 (Annexure -8), it is mentioned as to why the candidature may not be cancelled as the candidate has mislead the Commission regarding his involvement in criminal case. But in fact, there does not appear to be any concealment or act of misleading on the part of the applicant because admittedly, he has revealed the relevant information with full particulars in response to the relevant columns of the attestation form as mentioned above. Probably, that was the reason that while passing the impugned order dated 17.6.2011 (Annexure -2), cancelling the candidature of the applicant, the ground of concealment or misleading has not been mentioned. Instead it has been simply said that on account of his involvement in the said case, it has been decided not to appoint him in the CBI as APP. We would come to that question hereinafter. But we find that the explanation/ reply was sought unnecessarily and wrongly from the applicant by means of show cause notice dated 12.5.2011 that he has mislead the Commission regarding his involvement in the criminal case, whereas he had furnished all the required information correctly in response to para 12 of the attestation form as already mentioned. This becomes further clear from the reply submitted by the applicant in response to the above show cause (Annexure -9). It is a detailed reply comprising 10 paragraphs. The relevant paragraphs of the reply are as under:- 4. It so happened there after that a criminal case wide CR Case No. 43/2010/ U/S 498-A, 323, 504, 506 IPC and > D.P.Act has been registered at police station Kidwai Nagar, Kanpur (U.P. on 21.2.2010 on the complaint of Smt.Meera Devi. The said Smt. Meera Devi is wife of elder brother of the applicant namely Pradeep Kumar Singh. Entire family of the applicant and also certain distant relatives has been roped in the said criminal case which is essentially the matrimonial dispute between my elder brother and his wife. The Axe has also fell upon the applicant only because he is the younger brother of husband of said Smt.Meera Devi as he has also being named in the said case.Teh copy of the FIR enclosed as Annexure -1.
5. The applicant came to know of such FIR only on 14.3.2010 when he was arrested while he was staying in Lucknow. The applicant was released on bail wide order dated 15.3.2010 by CMM, Kanpur . Copy is enclosed as Annexure No.2. Mother was also named in the FIR was released on bail on 15.3.2010 the elder brother was also released on bail on 20.3.2010. I.O. supplemented the charge with sections 324, 292, 294, 452 on 17.3.2010. For which the applicant was released on bail 27.5.2010 by the CMM Court, Kanpur. Rest of the person named in FIR sought stay on their arrest by preferring the writ petition .Wherein the Hon ble High Court, Allahabad wide order dated 29.3.2010 stayed the arrest of remaining.
6. The applicant received the interview letter from SSC conveying the interview date fix on 23.6.2010.The applicant was required to submit the biographical data at the time of interview. The format was sent along with the interview letter. The applicant appeared in the scheduled interview on 23.6.2010 and also submitted the biographical data. It is pertinent to mention that there was no requirement as per the information sought in the said biographical data to bring in the notice of the SSC as to any criminal case which could have been lodged/ instituted after the submission of the application form till the date of interview. The applicant was neither only inquired in this behalf by the SSC in all bonafides and good faith. He submitted the biographical data without any concealment of information , he was expected to fill in prescribed bio data form.
7. The applicant was declared successful when the result was declared in July/ August, 2010.
8. Thereafter, the applicant received letter dated 12.8.2010 from the CBI, HO , New Delhi where under he was required to submit certificate in support of date of birth, education certificate, caste certificate in original before the CBI by 31.8.2010. Two attestation form fully filled by the candidate was also required to be submitted by 31.8.2010, attestation form was also enclosed with this letter.
9. The applicant appeared before the CBI, H.O. on 26.8.2010 for the purpose of verification of his certificates and submissions of attestation form in response to the letter of CBI. The applicant submitted the attestation form the said form contained every detail of which the applicant was required to make disclosure at point No.12, therein the applicant was required to answer various questions by putting in yes/ no option, a few of which questions pertaining to the arrest / prosecution conviction criminal case etc. the applicant made true and correct disclosure to every question wide point no. 12 of the form. The applicant in all bonafide and with a view to give complete information regarding the criminal case in which he was unfortunately found involved by writing details of the same in his own handwriting at the foot of the page no. 4 below the point No.12 (i) .At the point of time, Hon ble High Court , Allahabad ordered dated 15.7.2010 the dispute seems to be between husband and wife, matter was referred to mediation centre and further proceedings of criminal case No. 43/2010 was remain stayed. The copy of the order is enclosed as Annexure No. 3. It is also relevant to mention that it was not required in the attestation form that SSC is also to be informed by the candidate as regard to lodging of criminal case.
10. The applicant never concealed anything at any point of time either from the SSC or from the CBI. The application form submitted to the SSC was duly filled in and complete in all respect. Since no case was lodged against the applicant by that time, there was no occasion of any concealment on the part of the applicant. Again there was no requirement in the application form that SSC has to be kept informed regarding future involvement in criminal case, subsequent to submitting the application form neither was there any column in biographical data sent by the SSC along with the interview letter. Requiring the applicant to disclose the criminal case lodged after submitting the application form till the date of interview. Again there was no occasion for the applicant to conceal anything from the SSC when he was not asked for the same by the SSC, in the first place. For the first time, after the submission of application form in connection with the present requirement process the applicant was required to disclose the criminal case pending against the applicant when he had to submit the attestation form sent by the CBI and where in the applicant mentioned everything without even iota of any concealment .The applicant did never have any point of time nor will in future any intention to mislead either the SSC or CBI. In view of the above, it is most humbly requested the candidature of the applicant may not be cancelled. The applicant sincerely desires to serve the institution of the CBI with complete determination and dedication and if he is given appointment on the said post he would ever feel obliged.
14. Now, we come to the impugned order of cancellation of candidature of the applicant which has been passed after considering the above reply comprising 10 paragraphs running into four pages. In comparison to the above, the impugned order is very short which consists of only seven lines and there is not even a whisper about the main and sole point i.e. the applicant has concealed or mislead the Commission about his involvement ina criminal case. It appears that when the Commission did not find any act of misleading or concealment, then they left that point and instead passed an order saying that on account of his involvement in the criminal case, it has been decided not to appoint him. The detailed explanation / reply submitted by the applicant has not been discussed at all. Thus, there does not appear to be any sequence or proximity or coherency between the show cause notice, the detailed reply submitted by the applicant vis-a-vis the above order passed by the SSC. There also does not appear any application of mind in passing the impugned order. It is also not a reasoned order because none of the points raised by the applicant in his reply have been dealt with. Not only this, there also does not appear to be any rule or provision in the CBI manual or elsewhere as claimed by the applicant that a person duly selected by the SSC shall be held ineligible or unsuitable for appointment in the CBI merely because of pendency of a criminal case. There was also no direct involvement of the applicant in this case. Being husband s brother (Devar), he along with his married sister and Bua who were living separately, were also implicated. It was also not a case of moral turpitude or any serious offence. Reference has also been made in the pleadings contained in O.A. to para 2.2.7 of the chapter 2 of the Manual of CBI (Admn.), Govt. of India, New Delhi which provides for verification of character and antecedents. It says that even if a person has been convicted then after obtaining specific approval of the Govt. , if appointing authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, he may be appointed. In the present case, what to say of conviction, the applicant has been finally acquitted on 29.3.2012 and no appeal has been filed in the higher court of law. In the present case, the SSC has not even filed any Counter reply. It is only the CBI who has filed Counter Reply. Thus, the author of the impugned order i.e. the SSC (R-3) has not even dared or cared to controvert the pleadings of the O.A. Therefore, as against the SSC, the pleadings of the O.A. stand uncontroverted and admitted.
15. From the side of the applicant, reliance has been placed on the following four case laws:-
(1) Commissioner of Police and others Vs. Sandeep Kumar (2011) 4 SCC 644. Before Markandey Katju and Gyan Sudha Misra, JJ. The case in hand appears to be substantially covered by the preposition of law laid down in this case law. In the above case, in the application form itself, an information was sought as to whether the applicant has been arrested, prosecuted, kept under detention, convicted by any court of law etc. But the candidate i.e. Sandeep Kumar wrongly answered in negative , though he was involved in a case U/Ss 325/ 34 IPC. The selection was for the post of Head Constable (Ministerial). In the case before us, the selection is for APP in CBI wherein no such information was sought at the time of filing of form and he did neither conceal any information nor give any wrong information. Coming back to the case of Sandeep Kumar (Supra), after applying in February, 1999, he was qualified in all the test for selection. Then on 3.4.2001, he filled the attestation form, wherein for the first time, he disclosed that he had been involved in a criminal case with his tenant which later on has been compromised in 1998. Therefore, in August, 2001, a show cause notice was issued to him as to why his candidature may not be cancelled on account of concealment of the fact that he was involved in the above criminal case and for making a wrong submission in his application form. He submitted his reply but the authorities were not satisfied and canceled the candidature of the applicant in May 2003. Sandeep Kumar filed a petition before CAT, which was dismissed but the Hon ble Delhi High Court allowed it. Thereafter, an appeal was filed by the Commissioner of Police. The Hon ble Apex Court did not find any substance in the appeal and therefore upheld the judgment of Delhi High Court. The relevant paragraphs are as under:- 8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in the matter. When the incident happened the respondent must have been about 20 years of age. At that age young people often commit indiscretions, and such indiscretions can often be condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.
9. In this connection, we may refer to the character Jean Valjean in Victor Hugo's novel Les Miserables, in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach should be to reform a person instead of branding him as a criminal all his life.
10. We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed: I come now to Mr Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the Judge to show and to show to all students everywhere that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land and I speak both for England and Wales they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are privileged to be students and to study and live in peace. So let them support the law and not strike it down. But now what is to be done? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law. They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the bards of the poets and the singers more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done wrong very wrong in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed. (Vide Morris v. Crown Office1, QB at p. 125C-H.) In our opinion, we should display the same wisdom as displayed by Lord Denning.
11. As already observed above, youth often commits indiscretions, which are often condoned.
12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC. Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.
13. For the reasons given above, this appeal has no force and it is dismissed. No costs.
As said above, the case in hand is substantially and squarely covered by the above case law.
2. Ram Kumar Vs. State of U.P. and others reported in 2011 (3) LBESR 544. Before R.V. Raveendran and A.K. Patnaik, JJ. This case has been decided by the Hon ble Apex Court in August 2011 i.e. after about 4 months of the decision of the above case of Commissioner of Police (supra) which was decided in March 2011. In this judgment, the aforesaid case of Commissioner of Police (supra) was also cited and considered. From the other side, reliance was placed on the judgment of Kendriya Vidyalaya Sangathan and others Vs. Ram Ratan Yadav reported in 2003 (3) SCC 437, in which the case under sections 323, 341, 294, 506-B read with Section 34 IPC was pending and this material was suppressed in the attestation form. The criminal case was however, withdrawn. Appointment in question was on the post of Physical Education Teacher in Kendriya Vidyalaya Sangathan. On these facts, the Hon ble Apex Court held in that case that he was to serve on the said post and he could not be suitable for that post because the character, conduct and antecedents of a teacher will have some impact on the minds of the students of impressionable age. Therefore, his dismissal from service was not interfered with. On the other hand, the facts of the case of Ram Kumar (supra) were that the post in question was of a constable and the applicant had submitted an affidavit dated 12.6.2006 to the recruiting authority in the proforma of verification roll. In para 4,he had stated that no criminal case was registered against him. He was selected and appointed as male constable and deputed for training. Thereafter, Police Station, Jaswant Nagar, Etawah submitted a report about pendency of criminal case under Sections 324/323/ 504 IPC. Subsequently the criminal case was disposed of on18.7.2002 and the appellant was acquitted. Along with the above report of the police station, the order of acquittal was also enclosed. The said report was however, submitted to the SSP, Ghaziabad who by order dated 8.8.2007 cancelled the order of selection on the ground that he has submitted an affidavit stating wrong facts and concealed correct facts and his selection was irregular and illegal. Aggrieved by this order, a writ petition was filed before a single judge who dismissed it on 30.8.2007, in the light of the judgment of Kendriya Vidyalaya Sangathan (supra). Then a special appeal was filed before the Division Bench which has also dismissed it on 31.8.2009. After considering all the facts and circumstances, the Hon ble Supreme Court observed as under:-
7. We have carefully read the Government Order dated 28.04.1958 on the subject Verification of the character and antecedents of government servants before their first appointment and it is stated in the Government order that the Governor has been pleased to lay down the following instructions in supercession of all the previous orders:
The rule regarding character of candidate for appointment under the State Government shall continue to be as follows:
The character of a candidate for direct appointment must be such as to render him suitable in all respects for employment in the service or post to which he is to be appointed. It would be duty of the appointing authority to satisfy itself on this point.
8. It will be clear from the aforesaid instructions issued by the Governor that the object of the verification of the character and antecedents of government servants before their first appointment is to ensure that the character of a government servant for a direct recruitment is such as to render him suitable in all respects for employment in the service or post to which he is to be appointed and it would be a duty of the appointing authority to satisfy itself on this point.
9. In the facts of the present case, we find that though Criminal Case No.275 of 2001 under Sections 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m. children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused persons by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Sections 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable.
10. The order dated 18.07.2002 of the Additional Chief Judicial Magistrate had been sent along with the report dated 15.01.2007 of the Jaswant Nagar Police Station to the Senior Superintendent of Police, Ghaziabad, but it appears from the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad, that he has not gone into the question as to whether the appellant was suitable for appointment to service or to the post of constable in which he was appointed and he has only held that the selection of the appellant was illegal and irregular because he did not furnish in his affidavit in the proforma of verification roll that a criminal case has been registered against him. As has been stated in the instructions in the Government Order dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the appointing authority, to satisfy himself on the point as to whether the appellant was suitable for appointment to the post of a constable, with reference to the nature of suppression and nature of the criminal case. Instead of considering whether the appellant was suitable for appointment to the post of male constable, the appointing authority has mechanically held that his selection was irregular and illegal because the appellant had furnished an affidavit stating the facts incorrectly at the time of recruitment .
In respect of Kendriya Vidyalaya Sangathan (supra), the Hn ble Apex Court observed that the facts of that case were therefore, materially different from the facts of the case of Ram Kumar (Supra). Therefore, the Hon ble Apex Court allowed the appeal and set aside the appeal of Learned Single Judge and Division Bench of the High Court of Allahabad and quashed the order passed by the SSP, Ghaziabad with a direction that the applicant will be taken back in service within a period of 2 months from the date of receipt of order. But he will not be entitled for any back wages for the period he has remained out of service. Thus, this case is applicable in the present case before us with full strength.
3. Awadhesh Kumar Sharma Vs. Union of India and others reported in (2000) 1 UPLBEC 763. Before M. Katju and Shitla Prasad Srivastava, JJ. According to the facts of this case, the petitioner applied for appointment as Mazdoor in Central Ordinance Department, Kanpur and he was finally selected for the post vide letter dated 7.1.1989.However, he did not mention about his involvement in a criminal case under Sections 147/323/352/504 IPC which was later converted into Section 307 IPC. Hence, his selection was cancelled. However, in the criminal case, he was acquitted vide judgment and order dated 7.7.1989. Thereafter, he made representation that since he has been acquitted in the criminal case, he may be permitted to join duty. But he was informed by letter dated 12.10.1990 that he can be considered as a fresh candidate as and when vacancies are released. He then filed a petition before the CAT which was dismissed and the review application was also dismissed. Then he filed writ petition. The Division Bench of our High Court opined that when the petitioner was acquitted, it has to be deemed in law that he was never involved in any criminal case. It is settled law that every statute ordinarily operates prospectively unless expressly made retrospectively whereas every judgment of a Court of law operates retrospectively unless expressly made prospectively. The only material against the petitioner was the criminal case in which he was acquitted. Therefore, the Hon ble High Court mandated that since he has been selected, he must now be allowed to join duty. The impugned orders dated 26.2.1997 and 24.12.99 were quashed and the mandamus was issued to appoint the petitioner within 6 weeks in accordance with law in pursuance of selection letter issued in his favour earlier. This case law also applies in the present case with full force.
4. Harendra Panwar, Constable Vs. State of U.P.and others reported in 2012 (2) LBESR 94 (All)- Present : Sunil Hali, J. In this case also, pursuant to the advertisement, the petitioner applied for the post of Constable for which he was selected from District Etawah and was appointed as a Constable in the Police Department on 26.11.20005. After completion of the post recruitment training the petitioner was posted as Constable in District Etawah in June 2006. On 18.8.2007, his selection was cancelled by the respondent No.2 for the reasons that he did not disclose that a case Crime No. 32 of 2005 under Sections 147, 148, 149, 307, 504 and 506 IPC at P.S. Kandhala, District- Muzaffar Nagar was against him. The Hon ble High Court while referring to G.O. dated 28.4.1958, providing for verification of character and antecedents of the Govt. servants as a pre-requisite for being appointed as a Govt. servant, observed that character and antecedents of the appointee shall have to be verified by having an over view of his personality in respect of his moral character and integrity. This is done in order to enable the appointing authority to draw its satisfaction as to whether a person is fit to be appointed to the said post. The Hon ble Court found that in the G.O. no such obligation is caste on the appointee to disclose any such information regarding his involvement in a criminal case. But in column 11 of the form, it was required to inform as to whether the petitioner has been convicted in any case or not. The Hon ble High Court then observed that in the case before it , the petitioner was not convicted in any case. Therefore, withholding of an information which was not required to be given by the petitioner could not have become a ground for cancellation of his appointment. The Hon ble High Court specifically observed that it is trite in law that mere involvement in a criminal case is not an impediment for appointment to the post of a constable. Moreover, after a person has already been acquitted from the criminal charge, the stigma attached to a person is obliterated. The Hon ble High Court observed that while recording its satisfaction, the appointing authority may on verification of the conduct, antecedents and character come to a conclusion that the over all profile of the petitioner is not conducive for his appointment. This will depend upon many factors including the reputation of the person, his behaviour in the public, his integrity and morality etc. The notes attached to column 3 of the G.O. dated 28.4.58 itself provide that a conviction need not of itself involve the refusal of a certificate of good character. Stands of conviction should be taken into consideration if it involves moral turpitude or association with crimes of violence or with a movement which has as its object to overthrow by violent means a Government. The case of Ram Kumar (supra) was also referred, which was followed by the Hon ble High Court saying that in the order before it also no satisfaction has been recorded by the appointing authority that the petitioner is not suitable to be appointed with reference to the nature of alleged suppression and the nature of criminal case. Therefore, the Hon ble High Court allowed the writ petition and quashed the impugned order with the direction to the respondents to take back the petitioner in service within a period of one month with all consequential benefits except back wages for the period he remained out of service.
16. From the side of the respondents following case laws have been relied upon:-
(1). State of West Bangal and Others Vs. SK. Nazrul Islam (2011) 10 SCC-184. In this case law there was concealment of fact regarding antecedents. A criminal charge sheet had already been filed against him. The authority i.e. Police Directorate, West Bangal therefore, did not appoint him as a constable. He went to the Tribunal which declined any relief. The Hon ble High Court however directed to issue appointment letter subject to final decision of pending criminal case. The Hon ble Apex Court held that no mandamus could have issued by High Court because a criminal case was pending. It was also observed that the person cannot be held to be suitable in the police till he has not been acquitted. The above case law is not applicable here because of different facts and circumstances. Admittedly, there is no concealment of facts regarding antecedents in the case before us. Moreover, here the applicant has already been acquitted. Therefore, this case law is not applicable in the present case.
(2). Arun Kumar Yadav Vs. GNCT of Delhi through Chief Secretary, Delhi Secretariat and Others , O.A.No.2339 of 2008 (Swamynews-52-53)---In this case there was concealment of involvement in a criminal case, though he was acquitted. The Tribunal held that though the applicant was acquitted but the fact remains that he concealed this fact. As said above in the case before us however, there is no such concealment. Therefore this judgment of CAT Principal Bench (decided on 12.8.2010) has also no application in the present matter. Moreover, this was decided on 12.8.2010 by the Principal Bench whereas subsequently in March, 2011 the Hon ble Apex Court has decided the case of Commissioner of Police (Supra) in which similar question was involved as already discussed on page 15 of this order. We are therefore bound to obey the preposition of law laid down in the above case of Commissioner of Police, being the law of land. Further, from the perusal of the electrostat copy of this judgment as published in Swamynews as filed on behalf of respondents, it appears that following three judgments were also considered by the Principal Bench CAT in that case. We obtained these case laws also from our CAT library and the same were also perused by us. We would like to make a brief mention of these judgments also as under:- (1). Union of India and Others Vs. Bipad Bhanjan Gayen (2008) 11 SCC-314.
(2). R. Raqdhakrishana Vs. Director General of Police and Others (2008) 1 SCC-660.
Both these cases do not apply in the present case because of different facts. In both these cases wrong information was disclosed by the candidate which is not a case here.
(3). Delhi Administration Through its Chief Secretary and Others Vs. Sushil Kumar (1996) 11 SCC-605---According to facts of this case appointment was denied on the ground of undesirability because on verification it was found that his appointment to the post of constable was not desirable. The involvement of the applicant was under Section-304 IPC, 324 read with 34 IPS, which was very serious offence. He was however acquitted. But, the appointing authority took a view that in the background of the case, it was not desirable to appoint him as a constable to a disciplined force. The Apex Court found that appointing authority has rightly focused this aspect and found him not desirable to appoint him to the service. But, in the present case neither any such consideration has been made nor any such order has been passed by the appointing authority. Instead the impugned order has been passed by the Commission. However, that order has no connectivity with the show cause notice as already discussed. The applicant was asked to show cause in respect of alleged concealment of his involvement in the criminal case. But the order cancelling his candidature was passed on the ground of his involvement and not concealment. The sole point of concealment was thus given up. Further, the Commission has not even defended the order passed by it. The Commission has not filed any Counter Affidavit refuting the averments and pleadings of the applicant contained in O.A. Moreover, in the case before us the offence is of not of a serious nature. It was an outcome of a matrimonial dispute and allegations were of harassment on account of non-fulfillment of demand of dowry wherein, the applicant s brother-in-law (Devar), was also implicated though, he was living separately in a different district/city making preparations for appearing in competitive examinations as per uncontroverted pleadings. Even, married sister and Bua living separately were also implicated as is normally done these days in such cases. Lastly the above is a case law of 1996. During last 15-16 years, the law has further developed and we do not have any justification to ignore the recent and two consecutive case laws on this point of Hon ble Apex Court in the above cases of Commissioner of Police (Supra) and Ram Kumar (Supra), both of 2011. Therefore, the respondents cannot derive any benefit from the above case law. A photostat copy of a letter dated 29.8.2012 of CBI (Administration) showing internal correspondence has also been filed alongwith the above case law. In fact no cognizance can be taken of such a paper at this stage because, it is not a part of pleading. It has been filed after closure of final arguments. Still, we have perused it. It is mentioned in this letter that as per verification report dated 14.8.2012 the applicant has been acquitted in the relevant criminal case and the limitation period of filing an appeal has also expired. Further, it is mentioned that another case no.757/2010 under Section-12 of Domestic Violence Act is pending in the Court of Metropolitan Magistrate, Kanpur in which the applicant is also one of the accused. Therefore, a request has been made vide this letter to bring it to the notice of learned counsel for the respondents to apprise this Tribunal before passing final orders. As said above this subsequent fact has not been pleaded in the counter affidavit. This Tribunal cannot travel beyond the pleadings, which are on record. This alleged case also does not find place either in show cause notice or any documents on record including the impugned order of cancellation of candidature. Otherwise also, it appears to be an offshoot of same matrimonial dispute giving rise to above main criminal case which has already ended in acquittal. It is a petty case of similar nature under different Act. It has no significance after acquittal in the main case.
17. Thus in the case before us, firstly there is no concealment at all in respect of involvement in the criminal case. Admittedly the applicant had furnished all the required information with all the particulars. Therefore, the show cause notice in respect of alleged concealment was ab-anitio wrong and against the record and when this fact was specifically pointed out in the reply it was not dealt with at all in the impugned order. Instead the impugned order was passed on a new ground i.e. merely on the ground of involvement in a criminal case, though it has been nowhere provided either in any law or in the Manual of CBI (Admn.) or in the conditions of the relevant advertisement that candidature or selection can be cancelled on this ground. On the converse in para 2.2.7 of the chapt. 2 of the Manual of CBI (Admn.) (as pleaded in O.A. (which is not controverted in C.A.) that even if a person is a convict, he can be appointed after obtaining approval of the Govt., if appointing authority feels that there are redeeming features and reasons to believe that the person has cured himself of the weakness, if any. In the present case, such facts were not considered at all and there was no application of mind by the appointing authority on these points. In fact, appointing authority has not passed any order whatsoever. After receiving of verification report the dossier was admittedly sent from CBI to the Commission which issued show cause notice dated 12.5.2011 and then impugned order dated 17.6.2011 was passed by the Commission cancelling the candidature of the applicant. But even the Commission was not sure as to who took the actual decision. It is a typical order which has been passed by the Commission saying the CBI has decided not to appoint him and at the same time, it is mentioned that Commission has also decided the same. But there is neither any separate decision of the CBI nor any such joint decision of both of them on record. Secondly, as has been observed in the cases of Ram Kumar (Supra ) and Harendra Panwar (supra) in the present case also, no such satisfaction has been recorded by the appointing authority that the applicant was not fit or suitable to be appointed to the post in question. Thirdly, the applicant has been ultimately acquitted in the criminal case and no appeal has been filed which, as laid down in the case of Awadhesh Kumar Sharma (Supra), would mean that he was not involved in any criminal case on the alleged date because the judgment of acquittal in his favour operates retrospectively. Fourthly, it is trite in law that mere involvement in a criminal case is not an impediment for appointment and after acquittal ,the stigma attached to a person is obliterated.
18. In the conspectus of the discussion made hereinabove and having regard to the preposition of law laid down by the Hon ble Apex Court in the aforesaid judgments, this O.A. is partly allowed. The impugned order dated 17.6.2011 cancelling the candidature of the applicant (Roll No. 0901040793-OBC) is hereby quashed. The other order which has been impugned dated 12.5.2011 is in fact an information furnished under Right to Information Act and as such in respect of it neither any order can be passed nor it is required to be passed. In the follow up action, the opposite parties are directed to appoint the applicant on the post in question in pursuance of his selection, expeditiously. No order as to costs.
(S.P.Singh) (Justice Alok Kumar Singh)
Member (A) Member (J)
V.K. Bali, J. (Chairman)
1. Harish Kumar, applicant herein, had applied for selection to the post of Constable (Driver) in Delhi Police on 02.05.2005 in prescribed format. He cleared the written test on 05.08.2005, physical measurement test on 18.01.2006, trade test on 02.02.2006 and interview on 03.04.2006. On succeeding in the above tests and the interview, he was called for completion of codal formalities for appointment as Constable (Driver) on 03.05.2006, and after completion of such formalities, he was provisionally selected along with other 14 candidates on 26.05.2006, and was directed to report for medical examination on 13.06.2006. As the luck would have it, by the time he was called to complete codal formalities, his in-laws and wife got an FIR registered under Section 498A/406 IPC against him and his relations. He honestly disclosed this fact in his pre-appointment formalities. In November/December, 2006, when other candidates, selected with him, received appointment letters but the same was not issued to him, he submitted a representation, upon which he received the impugned order dated 05.02.2007 conveying him that his case for appointment has been held in abeyance till the finalization of the case in the trial court after which it shall be decided after thorough examination of the decision of the court on merits. It is in the wake of facts, as mentioned above, present Application under Section 19 of the Administrative Tribunals Act, 1985 has been filed seeking to set aside order dated 05.02.2007 and in consequence thereof to direct the respondents to issue him appointment letter for the post of Constable (Driver).
2. It has been the case of the applicant all through as also before this Tribunal that he got married on 21.04.2003, and after marriage it was revealed that his wife Mrs. Sumitra had been suffering from certain serious incurable diseases and was thus not fit to perform marital obligations. The said fact was concealed by parents of the girl from him and the marriage was thus arranged fraudulently. The above fact came to his notice when he took his wife to doctor for her treatment. It is the case of the applicant that after his marriage in April, 2003, he has been regularly getting his wife treated from various hospitals i.e. Charak Palika Hospital, Moti Bagh, Satyam Medical Centre (Government approved Maternity & Nursing Home), Gopniye Nirog Dham, A.I.I.M.S. etc. Medical record of applicant's wife has been enclosed at Annexure A-3 (Colly.). It is further the case of the applicant that when his in-laws realized that disease of their daughter is incurable, they, under fear psychosis that applicant may not divorce their daughter, lodged a false complaint against him in Crime Against Women Cell, before whom a number of hearings were given but no amicable solution came to be found out, and on false and fabricated grounds the applicant was subjected to trial before the court of ASJ, Patiala House under Sections 498-A/406 IPC. The applicant avers that when true facts were brought to the notice of trial judge seized of the criminal case, some interim orders, which may show the defence projected by him, came to be passed. Such orders have been placed on record at Annexure A-5 (Colly.). The first order placed on record is dated 21.03.2005 which appears to be passed in the application filed under Section 438 Cr.P.C. seeking anticipatory bail, relevant part whereof reads as follows:
The complainants are not ready and willing to join the company of the applicants. There seems to be some dispute regarding the mental as well as physical health of complainant Sumitra which has resulted into the breaking of the two families, though the complaint has been filed under Section 406/498-A IPC. Applicant Yogesh Kumar is ready and willing to take back his wife and child with him. No FIR is registered.
Under these circumstances, in case any FIR is registered against any of the applicants and applicants are wanted in any case, Investigating Officer shall give them a week's notice before their arrest.
The next order placed on record is dated 25.10.2005, which reads as follows:
Counsel for complaint submits that both the complainants are ready to live with their husband. Counsel for applicants submits that applicant Yogesh in FIR No. 168/05 is ready to keep the complainant. Counsel for applicant also submits that the complainant Sumitra is suffering from epilepsy fits (dyspareunia) and she was got treated by the applicant. The photostat copy of medical papers have been filed by the applicant. IO seeks time to verify the same. Adjourned to 14/11/05. Till then interim order to continue.
The next order is dated 19.12.2005. The same reads as follows:
I have heard the parties at length. Complainant is willing to go to matrimonial home but Mr. Suhail submits that he is not in a position to say anything at this stage. However, he has argued vehemently that this is not a case where Section 406/498-A IPC is attracted as he is willing to return the entire dowry articles. He has time and again taken the dowry articles to the CAW Cell He has shown me the photographs of the truck loaded with the articles standing in front of the police station but IO for the best reasons known to him has not collected the articles nor the complainant. He has argued vehemently that complainant Sumitra is suffering from dysparenia. He submitted that there has been no cohabitation between the complainant and the applicant and this is the root cause of the entire problem. It is very difficult to give any opinion at this stage but both the complainants are willing to join matrimonial home. I direct the complainant and the applicants to sit together in the company of Ld. counsel for complainant as well as for applicant and sort out the matter amicable. If applicants are not willing to take back the complainants the applicants are directed to return all the dowry articles to the complainant. To come up on 20th January 2006. Interim order to continue.
The last order placed on record is dated 20.04.2006. The same reads as follows:
It is reported that Rs. 70,000/- have been agreed to be paid by the accused persons to the complainant without prejudice in lieu of the jewelery articles. Rs. 40,000/- have been paid in cash today to the father of the complainant by the Ld. counsel for the accused before the Court. Rs. 30,000/- are agreed to be paid today to the counsel for the complainant. On this, Ld. counsel for complainant has no objection to the grant of anticipatory bail to the applicants.
In view of the same, it is directed that in the event of arrest, applicants shall be released on bail on their furnishing personal bond in the sum of Rs. 10,000/- with one surety each in the like amount to the satisfaction of the IO/SHO concerned subject to the condition that the applicants shall join investigation of the case as and when summoned by the IO.
3. While challenging the impugned order, the applicant has taken variety of grounds but what primarily has been urged before this Tribunal is that at the time the impugned order came to be passed, no charge had been framed against the applicant or his co-accused by the court seized of the matter and, therefore, the procedure so as to keep the candidature of the applicant in animated suspension or in abeyance would be wholly illegal as has already been held by judicial precedents upto the highest court of the land. Learned Counsel appearing for the applicant has tried to compare cases of promotions where sealed cover procedure is adopted with initial appointment. It is urged that if while promoting a government servant the sealed cover procedure is adopted only when a charge is framed in a criminal case, the same should also hold good with regard to initial appointment. The other ground seriously pressed is with regard to validity of circular relied upon by the respondents on the basis of which the candidature of the applicant has been kept in abeyance. It is urged that circular relied upon by the respondents is wholly unjustified and unreasonable which offends Articles 14 & 16 of the Constitution of India.
4. Pursuant to notice issued by this Tribunal, respondents have entered appearance and, while filing counter reply, contested the cause of the applicant. At this stage, we may only refer to the circular relied upon by them in denying relief to the applicant. The same, we may, however, reproduce while dealing with question number (ii) framed for adjudication by this Tribunal, which too, we may mention hereinafter. Suffice it to say at this stage that the circular dated 12.9.1983 inter alia provides that if a candidate may have revealed his involvement in a criminal case, he would be taken in service, if he is fully exonerated by the court or no moral turpitude was involved. On the basis of the circular, it is the case of the respondents, once a candidate seeking appointment in Delhi Police is involved in a criminal case, the decision in the said case has to be awaited and appointment made only if he is fully exonerated, and further that the offence with which he may have been charged, does not involve moral turpitude.
5. The Division Bench, before which the matter came up for hearing on 05.11.2007, by an order of even date, referred the case to the Full Bench. The questions referred to the Full Bench would be clear from paragraphs 4 to 6 of the reference order, which read as follows:
4. The circular relied upon by the respondents deals with two different situations. Candidates who may not have revealed their involvement in a criminal case despite knowledge of the same, would not be appointed and in fact, their candidature shall be cancelled as they had given false statement and tried to seek employment by adopting deceitful means. The other situation covered under the circular pertains to such candidates who have disclosed the factum of pendency of criminal case against them. The candidature of such candidates shall be kept in abeyance till the decision of the case and it is only after the court's judgment that the case along with the judgment would be thoroughly examined with a view to ascertain as to whether the candidate has been fully exonerated. The decision could be taken at the level of Police Headquarters. If the circular Annexure R-I is strictly applied irrespective of the nature of criminal involvement of a candidate and the facts and circumstances under which he is facing criminal trial, perhaps the impugned order cannot be adversely commented upon and has thus to be sustained. The words 'still pending' in the circular would take their ordinary meaning, and presentation of challan in a court would be treated as if a case is pending against a candidate. The question that, however, arises is that as to when a criminal case can be said to be pending against a person under law, particularly in the context of service jurisprudence. The question framed above is of considerable importance and is arising case after case. There is no clarity on the issue referred to above, and we have come across some judgments which may have taken contradictory views as well.
5. The other significant question that arises for determination in the present case is as to whether pendency of any case of whatever nature it may be and whatever the facts and circumstances of the case, can become a ground to keep in abeyance appointment of a citizen who has been selected after due process of selection. To illustrate, if a candidate seeking recruitment is involved in petty offences under IPC or such offences which are tried summarily involving hundreds of thousands of people throughout the country, like motor vehicle challans, can his candidature be kept in abeyance? Whether the nature of offence and the facts leading to commission thereof would be a relevant factor? Would the authorities not like to see the bare minimum facts of the allegations made against a candidate in the offence alleged to have been committed by him? would yet be the question that may need a serious thought.
6. We may also mention that whereas the learned Counsel representing the applicant contends that registration of an FIR, at the most, makes an alleged offender only an accused and not a criminal. Every person facing a trial is supposed to be innocent till proved guilty, and, therefore, if the allegation made against him may turn to be a hoax or an outcome of ill will of the complainant to frame him, and ultimately the criminal trial may culminate into honourable acquittal, what shall be the fate of the candidate who may have suffered a long agonizing trial? Shri Ajesh Luthra, the learned Counsel representing the respondents, would, on the other hand, contend that what shall happen if the trial results into conviction? Would it be desirable to appoint a person in the police force who may ultimately be convicted? The contentions raised by the learned Counsel representing the parties would lead to yet another significant question to be determined by this Tribunal, which would be as to whether it is possible to find some middle path where the interest of the candidate may be vouchsafed without any adverse effect in the police discipline.
6. Culled out from paragraphs 4 to 6, the questions that need adjudication would be:
As to whether the circular relied upon by the respondents pertaining to initial appointment can be compared to sealed cover procedure in the matter of promotion, which course is to be adopted as per rules and judicial precedents, when the concerned criminal court has framed the charge, or if it is a case of departmental enquiry, the charge has been framed.
Second question that would need adjudication by the Full Bench would be as to whether the circular relied upon by the respondents is harsh and unreasonable and offends Articles 14 & 16 of the Constitution of India.
7. At the very outset, we may mention that in service matters, broadly speaking, there are three stages, which would be - (i) appointment, (ii) promotion and (iii) retirement. It appears to us that different parameters may follow on the three stages in service matters, as enumerated above. Initial appointment, in any case, in our considered view, cannot be compared with promotion, and that being so, the rules or judicial precedents that may govern promotion may not at all be applicable in the matter of initial appointment. Service jurisprudence would commence only when a person is appointed, and that being so, a protection while in service or for promotion may not be available to a person who has still to enter service.
8. The learned Counsel representing the applicant, for the contention raised by him that mere registration of an FIR against a person would not debar him from occupying a public office, by and large relied upon judgments in the matter of promotion and retirement. The basic judgment on the issue relied upon is of Hon'ble Supreme Court in Union of India and Ors. v. K.V. Jankiraman and Ors. (1993) 23 ATC 322. The question debated and adjudicated in the case aforesaid was as to whether an employee can be denied promotion on the ground of pendency of preliminary enquiry/criminal investigation. The specific questions dealt with are as follows:
(1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? (3) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal?
Obviously, in the context of the facts of the present case, it is only question number (1) as reproduced above, which is relevant. After considering the rival contentions of the learned Counsel representing the parties, the Hon'ble Supreme Court observed thus:
It is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the
charge-memo/charge-sheet is issued. To deny the said benefit they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges. Further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy.
9. From perusal of paragraph above, it is clear that even in case of promotion, Hon'ble Supreme Court is of the view that if allegations are serious, authorities can always suspend the person and suspension itself would be sufficient to permit the authorities to resort to sealed cover procedure meaning thereby that in case of serious allegations even promotion could be denied by suspending him but in normal complaints of petty nature it was held, unless the authorities issue charge-sheet, it should not be taken against the employee to deny him the promotion. The reasoning for same is given in para 16 wherein it is clearly mentioned that experience shows, many a time, investigation and complaints are initiated at the instance of interested persons and are kept pending deliberately for long periods without taking them to a logical conclusion. It was observed that if allegations are of serious nature, and authorities are keen to investigate them, ordinarily it should not take much time to collect the relevant evidence and finalise the charges but if complaints are not even seriously viewed or taken cognizance of, it would amount to injustice to the employees, if their names are allowed to be kept in sealed cover merely on the ground of some pending investigations.
10. The next reliance of the learned Counsel is on the judgment of the Hon'ble Supreme Court in Coal India Ltd. and Ors. v. Saroj Kumar Mishra (2007) 9 SCC 625. The said case also pertains to promotion. Respondents before the Hon'ble Supreme Court, it appears from the judgment, were not promoted on the premise that vigilance cases were pending against them. When respondents were not promoted and persons junior to them were promoted, they filed writ petition before the Orissa High Court, which was allowed. In the appeal preferred by Coal India Ltd. and others, it was canvassed that in terms of memo dated 19.6.1979 pendency of vigilance or departmental action would itself be sufficient for not promoting the officer who would, in the event of his complete exoneration, be promoted as and from the date his immediate junior has been promoted. The Hon'ble Supreme Court in the context of the memo referred to above, as modified from time to time, held that circular letter issued by the appellants put restrictions on a valuable right of an employee, and, therefore, required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. The Hon'ble Supreme Court then referred to the revised guideline, which reads as follows:
The vigilance clearance shall be withheld only on the ground (a) when officer is under suspension; (b) when the officer, in respect of whom a charge-sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending.
Even though the circular was said not to be applicable ipso facto, but since the same clearly laid down the law otherwise prevailing, the contention of the counsel as noted above, was repelled and the appeal preferred by Coal India Ltd. was dismissed.
11. Learned Counsel representing the applicant has placed reliance upon other judicial precedents for the proposition that while promoting an employee, departmental and criminal proceedings can be taken into consideration only if charge has been framed, be it in departmental or criminal proceedings, and sealed cover procedure in such an event/situation has to be resorted. It would be unnecessary to burden the present judgment by referring to all these judgments. Suffice it to say that either because of the rules governing a particular service in the matter of promotion or judicial precedents, the law by now is well entrenched that only if charge has been framed in departmental or judicial proceedings, that sealed cover procedure has to be adopted and in case the proceedings are not at that stage, the employee will be entitled to promotion. Insofar as post retiral benefits are concerned, government employees are governed by CCS (Pension) Rules. In view of rule 69 read with rule 9(6) and (4), in case where a government servant has retired and against whom proceedings are pending under Sub-rule (2) of Rule 9, provisional pension has to be sanctioned. The date of institution is further explained in Sub-rule (6) of Rule 9, which reads thus:
9(6) For the purpose of this rule, -
departmental proceedings shall be deemed to be instituted on the date on which statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and
judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance, is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the Court.
The provisions of rule 9(6) also take care of the stage where criminal case would be said to be instituted. The same would be said to be instituted only after charge is framed. Obviously, the object of the rule is to ensure that at the fag end of his career an employee is not put to indefinite inconvenience on the ground of some investigation/enquiry which has not culminated into a charge sheet. It is will known and may not need any elaboration that charge sheet, be it in departmental enquiry or criminal trial, is framed only when the allegations of misconduct or criminality may prima facie are made out from the material on record. In both the situations, as mentioned above, for employees who are already in service, rules and judicial precedents are framed only to ensure that no injustice is done to the employees and they are not harassed on account of frivolous complaints. Thus, rules that may apply for denying promotion or post-retiral dues, as may be applicable in the case of promotion and retirement, in our considered view, would not hold good when a person is seeking entry in government service. As mentioned above, service jurisprudence starts only when a person is appointed. While seeking initial appointment, a candidate, in our considered view, has no enforceable right to be appointed, nor, therefore, any duty is cast upon the employer to protect his interests. As per known procedure, for initial appointment in service a candidate who may answer basic qualifications of education and experience etc. has to go through a process of selection. Such candidates who may successfully go through the process set for selection, would be provisionally empanelled, but before the government may issue orders of their appointment, it has an indefeasible right to verify the character and antecedents of such candidates. It is often seen that in some cases even provisional appointment letters are issued but the same are subject to verification of character and antecedents. This verification is necessarily to be done to ensure that no undesirable or anti-social elements enter government service. This procedure becomes all the more essential when it is a case of making appointment to a disciplined force. The role of employees in Delhi Police, at whatever level they may be appointed, is to safeguard the interest of public at large and maintain law and order. Surely, the department would not make recruitment of a person simply because he has successfully gone through the selection process, if his integrity is doubtful or if he is, at any stage, suspected to have committed an offence. Thus, if on verification of character and antecedents of a candidate, either disclosed by himself or that may come to the notice of concerned authorities, it may transpire that such candidate is involved in a criminal case, in our considered view, his candidature can be put in suspended animation, awaiting result of the criminal case that he may be involved in. A person is at least suspect of committing a crime if the FIR lodged against him discloses ingredients of the crime that he is said to have committed. In our considered view, the concerned authorities need not await framing of charge by the criminal court and thus to appoint him till such time a criminal charge is framed against him. Mere registration of an FIR, contents whereof may, however, disclose commission of an offence would be sufficient to put on temporary hold appointment of the candidate. His candidature, in our considered view, can be kept in abeyance till final decision of the criminal case. The department would thus be within its right to await the final outcome of the criminal case in which the candidate may be involved. It is settled proposition of law by now that the employer would have a right and be thus justified to verify the character and antecedents of a candidate before issuing him letter of appointment. Reliance in this connection be made to judgments of the Hon'ble Supreme Court in Delhi Administration and Ors. v. Sushil Kumar , and R. Radhakrishnan v. Director General of Police and Ors. (2008) 1 SCC 660. The facts in Delhi Administration (supra) reveal that Sushil Kumar had cleared all the tests for recruitment as constable in Delhi Police. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by local police. On verification it was found that his antecedents were such that his appointment to the post of constable was not found desirable, and accordingly his candidature was cancelled. He successfully challenged the order denying him appointment before this Tribunal. His Application was allowed on the ground that since he had been discharged and/or acquitted of the offence punishable under Section 304/324/34 IPC, he cannot be denied the right of appointment to the post under the State. Hon'ble Supreme Court, in appeal against the order of the learned Tribunal, reversed its order by observing as follows:
The question is whether the view taken by the tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found it not desirable to appoint him to the service.
In R. Radhakrishnan (supra), even though it was a case wherein the petitioner who had sought appointment as a fireman had suppressed the factum of his involvement in a criminal case in which he was acquitted also, the Hon'ble Supreme court while rejecting his plea relied upon its decision in Delhi Administration (supra) as well.
12. In recent past, i.e., on 24.4.2008, we had occasion to deal with a set of connected OAs bearing No. 2137/2006 and others in the matter of Sanjeev Kumar and Ors. v. Government of NCT of Delhi and Ors. The question involved was with regard to recruitment as constables in Delhi place, and the applicants therein although were selected after going through the entire process of selection, were not appointed even though criminal cases in which they were involved had resulted into acquittal. Some of the OAs decided by the common order dated 24.4.2008 had earlier come up before this Tribunal and were allowed by observing that appointments to the applicants were denied only because of their involvement in criminal cases, and the mere fact that they were acquitted either on account of witnesses turning hostile or giving them benefit of doubt would not make any difference in their acquittal, and that once they were acquitted the administrative authorities could not sit over the decision of the court and come to a contrary conclusion. Decision of this Tribunal was challenged before the High Court of Delhi. Orders passed by the Tribunal were set aside and the matter was remitted to Commissioner of Police to appreciate the nature and gravity of offences and the manner in which they were acquitted, and to pass orders for their appointment or otherwise. It was held that even though a person may be acquitted of the charge, but when the same is because of the witnesses turning hostile or giving benefit of doubt, the authorities would be well within their right to take a decision and to find out as to whether they were fit to be appointed or not. Some of the candidates who suffered adverse orders and were thus not appointed, challenged the said orders before this Tribunal once again. Meanwhile, some other candidates of a different recruitment year were also not appointed on similar grounds. All these Applications came up for hearing before us, and, as mentioned above, were decided on 24.4.2008. It was held by this Tribunal that 'In wake of judgment of Delhi High Court, which is an inter partes decision and, therefore, binding upon the parties and SLP against which has since been dismissed, in our considered view, it is not open for the applicants to contend that an acquittal is an acquittal and no distinction can be made on that behalf whether being honourable acquittal or acquittal on benefit of doubt. This was indeed the view of this Tribunal, which has been specifically overruled by the Division Bench of Delhi High Court. Hon'ble Delhi High Court, as mentioned above, noted the findings of this Tribunal that there could be no different yardstick for those persons who have been acquitted honourably to be treated differently from those persons who were also involved in criminal cases but were acquitted on benefit of doubt.
13. The judicial precedents referred to above and in particular Delhi Administration (supra) and Sanjeev Kumar (supra), would clearly manifest that the employer would be well within his right not to make appointment of a person who may be involved in a criminal case. Surely, even if the acquittal in the criminal case may not necessarily result in giving appointment to the person, no different parameters may follow where a person is involved in criminal case, as he may even be convicted. Before we may part with this aspect of the case, we may mention that putting the case of a candidate in suspended animation awaiting decision in the criminal case, in a way is adopting of sealed cover procedure, as may be applicable in the case of promotion. The candidature of the applicant is not rejected merely because of his involvement in a criminal case. Only his appointment has to await decision of the criminal case. In a case of sealed cover procedure also, the employee is not promoted. His promotion is dependent upon outcome of departmental/criminal proceedings against him. The only difference is that whereas in the case of promotion, sealed cover procedure is adopted if charge sheet has been framed in departmental/criminal proceedings, in the case of initial appointment, as in the present case, the said procedure is adopted on involvement in a criminal case when FIR for a cognizable offence is registered. We find no merit whatsoever in the contention of the learned Counsel representing the applicant that mere involvement of a candidate in criminal case is not enough to stall his appointment awaiting decision of the criminal case, and, therefore, till such time at least the criminal court may frame charge against him, he has to be appointed. That being so, the first question as framed above would be answered against the applicant.
14. The circular dated 12.9.1983 on which rests the defence projected by the respondents so as to put on a temporary hold appointment of a candidate in Delhi Police, reads as follows:
With a view to dealing with cases of concealment of facts about the involvement of candidates in criminal cases at the time of filling-up their application/attestation forms for recruitment in Delhi Police, it has been decided that:
The candidature of such individuals against whom the cases are still pending will be held in abeyance till the decision of the case. After the court's judgement, each case alongwith judgment will be thoroughly examined, with a view to seeing whether the candidate has been fully exonerated or if his moral turpitude was involved. Such decision will be taken at the level of Police Headquarters.
If the candidate had himself revealed his involvement in a criminal case, he would be taken in service, if he is fully exonerated by the court or no moral turpitude was involved.
The candidates not revealing their involvement in the criminal cases despite knowing the same (knowledge will be presumed on the part of the candidate about his involvement in the criminal case, if he was arrested therein) and thus concealing the material information, which may be revealed later, on verification of character and antecedents, the candidature of the candidate would be cancelled, as he had given false statement and had tried to seek employment in the Delhi Police, by adopting deceitful means.
Perusal of the circular aforesaid would reveal broadly two categories one, where a person is involved in a criminal case, but while seeking appointment with Delhi Police he conceals the same. Concealment in itself is a ground to deny appointment to him. Surely, we are not concerned with this aspect of the circular. The other part of the circular deals with candidature of a person who has voluntarily mentioned about his involvement in a criminal case. He is not to be taken in service till such time he is fully exonerated by the court or the offence is not such which may involve moral turpitude. The learned Counsel representing the applicant vehemently contends that the circular putting on hold employment of a duly selected candidate is unreasonable, unrealistic and harsh, and that the same suffers from the vice of Article 14 of the Constitution. It is urged that the State would not deny any person equality before law or the equal protection of laws and the concept of equality and equal protection of laws guaranteed by Article 14 in its proper spectrum encompasses social and economic justice in a political democracy. Article 14 enjoins upon the State and its instrumentalities to make laws in such a manner that the same are fair, just and equitable, after taking objectively all the relevant options into consideration, and in a manner that is reasonable, relevant and germane to effectuate the purpose of public good and in general public interest. While elaborating, the counsel contends that the circular would make no distinction between involvement of a candidate in heinous crimes or crimes which may be absolutely petty in nature, and may ultimately result in a token fine. Non appointment of a candidate for his involvement in a petty case like motor vehicle challans and such other petty offences would be wholly unreasonable, denying an opportunity to the person to seek public appointment, which is a Fundamental Right. The outcome of a criminal case which has to be awaited may take years and years because of complex procedural laws and tardy progress of cases in the courts, which may some times even take a decade. The acquittal of a person by the trial court seeking appointment may not put an end to his miseries. The State may challenge the order of acquittal by filing an appeal, or even a complainant aggrieved of the said order may challenge the same in a higher judicial forum. In the process, not only the candidate may be deprived of his livelihood for years, but it may also result into his becoming overage and losing the benefit of his success in a competitive test for appointment.
15. Per contra, Shri Ajesh Luthra, learned Counsel representing the respondents, with matching vehemence contends that the circular only ensures that the police which has important task to perform including maintaining law and order, is not run by persons who may have a tainted past, and only such persons could be appointed who may have an unblemished character, as surely, candidates with criminal background would not only not be able to protect the law and order, but even public would have no confidence in them, bringing the whole system to disrepute, frustrating the object of running administration efficiently and honestly. He further contends that if appointment is to be made pending criminal trial against a candidate and ultimately he is convicted, surely, there would be such persons who cannot and should not be appointed and, therefore, circular dated 12.9.1983 is legal and has to be sustained. It is also urged by the learned Counsel that initial appointment is prerogative of the employer and no one simply on his successful participation in the test can be automatically appointed, and that verification of character and antecedents of a person is the right of employer and the circular is in tune with the same.
16. Having heard the learned Counsel representing the parties, we are of the considered view that the circular dated 12.9.1983 cannot be struck down being unreasonable or harsh. Surely, those who may be facing trial for heinous offences cannot and should not be permitted to occupy any public office, and in particular, a disciplined force. When it may come to involvement of a candidate in a serious crime, it may be noted that it is not even the case of the applicant that he should be given employment in Delhi Police. The only contention raised by the learned Counsel is that if the offences may be petty in nature and may involve no moral turpitude, appointment cannot be put on hold till finalisation of the criminal trial, and, therefore, a candidate should be given employment which may be subject to the outcome of the criminal case. In the context of the facts as mentioned above, the only question that needs to be determined by this Tribunal is as to whether when the circular makes no distinction whatsoever between involvement of a candidate in a serious or a petty offence, the same should be struck down even on that count.
17. We have given our anxious thoughts to the rival contentions of learned Counsel representing the parties. Before we may, however, comment upon validity of the circular dated 12.9.1983 and the jurisdiction of this Tribunal to uphold or strike it down, we may mention that there appears to be a marked distinction between a citizen seeking employment to a public office involved in petty offences and offences which may involve moral turpitude or serious crimes. The present and future of job seekers in a country like ours, where there are teaming millions unemployed youth, it appears to us, cannot be ruined because of their involvement in petty offences which may involve no moral turpitude also. Circular dated 12.9.1983 which came into being 25 years ago, in our considered view, needs a fresh look. There are lots of changes taking place in the social milieu. Therefore, it is high time that the provision of law, which in the present case, was made more than two decades ago, is looked at again. The IPC describes various kinds of offences, some of which are bailable while the others are non-bailable. Some offences are cognizable while others are non-cognizable. Some others are compoundable with permission of the court and others are non-compoundable. We need not enumerate in all their details such offences. Suffice it, however, to say that there are some offences which are compoundable even without permission of the court. Obviously, such offences are petty. Should a person involved in compoundable offences be debarred from seeking employment when such offences are not considered to be serious at all and even permission of court is also not required for compounding the same? In our considered view, involvement of a person in such crimes should not be hurdle in getting public employment. Offences involving moral turpitude, however, stand on different footing. If the victim of a crime may forgive the offender and thus compound the offence willingly or voluntarily, there does not appear to be any reason for the State to deny employment to the accused of such an offence. Practical experience shows that in case of offences which are compoundable with permission of the court, generally, when the victim may willingly or voluntarily like to compromise, such permission is granted. There were times when for cognizable and non-cognizable offences, trial had to conclude and culminate in conviction or acquittal, even though parties might have settled their disputes. The High Court had no power either under Article 226 of the Constitution or Section 482 CrPC to quash an FIR pertaining to a non-compoundable offence, even if the parties might have arrived at a compromise. With the advent of time, the law has now been settled that even in non-compoundable offences where parties may have compromised, the High Court would have ample power and jurisdiction to quash the FIR. Reference in this connection be made to the judgment of the Hon'ble Supreme Court in B. S. Joshi and Ors. v. State of Haryana and Ors. (2003) 4 SCC 657 followed by a Full Bench of five Hon'ble Judges of the Punjab & Haryana High Court in Kulwinder Singh and Ors. v. State of Punjab and Anr. Crl. Misc. Petition No. 33016-M of 2007 decided on 8.8.2007, and reported as 2007 (3) RCR 1052. In this scenario, it would be iniquitous to deny or put on indefinite hold appointment of a person seeking public employment. Balance between purity in administration by employing clean people and the fundamental right of a person to seek a job of his choice, has to be struck. We have no doubt in our mind that public appointment should not be denied to a person who may not have been charged with any offence involving moral turpitude and is involved in only petty offences. To illustrate, can a person be denied employment if he is involved in motor vehicle challans, defying a prohibitory order under Section 144 CrPC or petty offences like 323 IPC which is simple hurt. There are cases which have been intentionally given criminal overtones, even though they may be pure and simple property disputes, or arising from contracts and partnership concerns, and/or pure and simple money transactions. Such criminal proceedings are normally resorted to with a view to put pressure upon the other side to abide by a contract that he might have failed to adhere to. The list of petty offences and such offences which may be made to look like as if having criminal overtones should not be a hurdle in the way of a person seeking public appointment. That apart, even though the offence may appear to be somewhat serious, but the attending circumstances may show that the accused is a victim of frame-up so as to settle some score, or the circumstances may appear to show that it is a family feud, or a matrimonial dispute, where some times the whole family of one party may be involved in a criminal case, need to be looked into. A provision like circular dated 12.9.1983 encompassing in it all kinds of offences, petty or serious, involving moral turpitude or not, in our considered view, would seriously and prejudicially affect not only the rights of a citizen, but would also be impediment in progress of the nation. The hardship that a person may face in long agonizing trials is indeed a factor which also needs to be taken into consideration.
18. In Pawan Kumar v. State of Haryana and Anr. , the Hon'ble Supreme Court while dealing with case of a person who was convicted in summary trial for offence under Section 294 IPC and on that count his services were terminated as no longer required, observed thus:
13. Assuming that the conviction is not open to challenge at the present juncture, we cannot but deprecate the action of the respondents in having proceeded to adversely certify the character and antecedents of the appellant on the basis of the conviction per se, opining to have involved moral turpitude, without satisfying the tests laid down in the policy decision of the Government. We are rather unhappy to note that all the three courts below, even when invited to judge the matter in the said perspective, went on to hold that the act/s involved in conviction under Section 294 IPC per se established moral turpitude. They should have been sensitive to the changing perspectives and concepts of morality to appreciate the effect of Section 294 IPC on today's society and its standards, and its changing views of obscenity. The matter unfortunately was dealt with casually at all levels.
The Hon'ble Supreme Court further observed that:
14. Before concluding this judgment we hereby draw the attention of Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary courts and paying small amounts of find, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced. The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea-bargaining is the end of the career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are therefore necessary in raising the toleration limits with regard to petty offences especially when tried summarily.
It may be noted that Section 294 IPC is causing annoyance to others by doing any obscene act in any public place, or singing, reciting or uttering any obscene songs, ballad or words, in or near any public place. In State of M.P. and Ors. v. Hazarilal , the Hon'ble Supreme Court was dealing with the case of a person who was convicted for an offence Under Section 323 IPC, and on that account was shown the exit door from his service. The job of the employee was restored and the attitude of the appellants was held to be ex facie wholly unreasonable. While dealing with the issue, the Hon'ble Supreme Court observed as follows:
8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly.
19. Having held that it may not be justifiable for the respondents to deny or to put on indefinite hold appointment of a person for his involvement in a criminal case of whatever nature it may be, the question that arises is as to whether on that ground the circular dated 12.9.1983 can be set aside or quashed being opposed to provisions contained in Article 14 of the Constitution. We have, once again, given our thoughtful consideration to the issue and are of the view that once, denying or withholding appointment of a person for his involvement in a serious offence or an offence that may involve moral turpitude is permissible and also desirable, it may not be possible for us to strike down the circular or even to re-write it. If we were perhaps to hold that the circular would be read to mean that a citizen involved in petty offences involving no moral turpitude can be permitted to join the job, which may be even subject to the outcome of the criminal trial, it would amount to legislation, which, surely, is not in our domain. It is too well settled a proposition of law that abuse or misuse of a provision does not per se invalidate the legislation. If a provision of law is misused and subjected to abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. Reference in this connection be made to the decision of the Hon'ble Supreme Court in Sushil Kumar Sharma v. Union of India and Ors. , wherein it was held as follows:
12. It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done 'not with an evil eye and unequal hand'. (See A. Thangal Kunju Musalidar v. M. Venkatichalam Potti ).
14. the principle appears to be well settled that if a statutory provision is otherwise intra vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra vires or unconstitutional. In such cases, 'action' and not the 'section' may be vulnerable. If it is so, the court by upholding the provision of law, may still set aside the action, order or decision and grant appropriate relief to the person aggrieved.
20. In view of the settled law that abuse or misuse, in the present case misuse, of a provision would be no ground to invalidate it, we have no choice but for not to accede to the prayer of learned Counsel representing the applicant to quash circular dated 12.9.1983. The second question for adjudication by the Full Bench, as reproduced above, would be answered accordingly.
21. Before we may part with this order, we may mention that circular dated 12.9.1983 which came to be issued 25 years ago needs a fresh look in the light of our observations made above. Such was also the wish of the Hon'ble Supreme Court in Pawan Kumar v. State of Haryana (supra). We direct that the Chief Secretary, Government of NCT of Delhi would bring to the notice of the Hon'ble Lieutenant Governor of Delhi this judgment recorded by us for remedial measures, if it may be so thought appropriate and reasonable.
22. The matter be listed before appropriate Division Bench for decision on merits.