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2002 DIGILAW 251 (JK)

Fayaz Ahmed Panchoo v. State Of J. &K.

2002-08-05

B.C.PATEL, MUZAFFAR JAN

body2002
Per : Honble B.C. Patel, Chief Justice (Oral) Being aggrieved by an order made by learned Single Judge in SWP No. 399/1996 decided on 07.08.1998 dismissing the petition, the present appeal is preferred. 2. The facts in nutshell, which are relevant for disposal of this appeal, are as under :- For the posts of driver (constable) process was commenced by the recruitment Board for selecting suitable candidates. The Board approved a panel of candidates for enrolment against the said posts. Out of 19 candidates selected, the petitioner was at Sr. No. 18. The Senior Superintendent of Police, Srinagar, vide his communication dated 21.07.1995 called for the information, so as to enable him to judge the character and antecedents of the appellants, from all the Station House Officers and Senior Divisional Police Officers. After perusing the report, it was found fit not to appoint the appellant as Constable (driver). Against the non-appointment, a petition was filed by the appellant, which has been rejected by the learned Single Judge. It is not disputed that the original petitioner was enlisted in the select list. So far as the right of appointment of the appellant is concerned, before the writ court, provisions containing the rules and precedents were cited to point out that the person who is enlisted has no right of appointment. 3. It was pointed out to the learned Single Judge that during the course of verification, it was noticed that the petitioner had links with Anti-national elements and had got involved in militancy related activities, so much so, that he was required to be arrested by the Security forces in Dec., 1991. It was further pointed out that the petitioner was detained under the provisions contained under Public Safety Act for a period of one year on account of his prejudicial activities threatening the security of the State vide order dated 26.10 1992. It was also pointed out to the learned Single Judge that the petitioner was required in two criminal cases numbered as FIR No. 18/1992 and FIR No. 18/1993. It was also pointed out to the learned Single Judge that the petitioner was required in two criminal cases numbered as FIR No. 18/1992 and FIR No. 18/1993. It was submitted before the learned Single Judge that the petitioner, though selected for appointment, his appointment, which was required to be made, was subject to verification of his character and antecedents and as it was found that he was involved in activities prejudicial to the security of the state and was involved in criminal offences, he was not given the letter of appointment. 4. Rules known as Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 applies to all servants. Rule 17 refers to verification. Clauses (c) and (d) of Rule 17 read as under :- "17. Qualifications -No person shall be eligible for appointment to any service by direct recruitment unless -- (a) xx xx xx (b) xx xx xx (c) he satisfies the appointing authority that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and (d) he satisfies the appointing authority that his character and antecedents are such as to qualify him for such service. 5. Thus, reading Clause (d), it is very clear that the appointing authority must be satisfied about the character and antecedents of the person who is to be appointed. On this aspect Mr. Qadri, learned Senior Additional Advocate General, appearing for the State, pointed out that it is for the authority to consider the character and antecedents of the person concerned. According to him, mere involvement in serious crimes is more than sufficient for not appointing the persons in the police Department who are required to look after the security of the State and are required to investigate the crimes or are required with the police force. He submitted that if the authority, appointing the person, is satisfied that the character and antecedents are such that it would disqualify the person, and if a decision is taken, then it is not for the court to sit in appeal over the decision. He further submitted that it is not for the court to disturb the decision taken by the appropriate authority in view of the facts, which are brought before the court. 6. Our attention was drawn to the rules framed under the Jammu and Kashmir Police Act. He further submitted that it is not for the court to disturb the decision taken by the appropriate authority in view of the facts, which are brought before the court. 6. Our attention was drawn to the rules framed under the Jammu and Kashmir Police Act. Under Rule 179 of the Jammu and Kashmir Police Rules, duty is cast upon the authority concerned to be more careful at the time of recruitment and to see that a person who is appearing as a candidate and who is selected, is not an element which can be said to be undesirable for the police force. Not only that, they have to make enquiries in this behalf. Rule 181 states that recruits should be of good character and great care should be taken in selecting a man of a type suitable for police service from candidates presenting themselves for enrolment. Rule 185 is a mandatory provision. Reading the provision, it is clear that it is the duty of the appointing authority to verify the character and suitability for enrolment of every recruit and that must be ascertained. Thus, it is bounden duty of the authority to be more careful while appointing persons in the police Department. 7. In the affidavit in reply, before the writ court, it was pointed out in para 10 of the reply that the petitioner was previously arrested by the security forces in December, 1991 and was released later on. He was again apprehended by the Security forces in connection with FIR No. 18/1992, police station CIK, Srinagar on 23.07.1992. It further transpires that he was detained under Public Safety Act on 26.10.1992 for a period of one year for his activities prejudicial to the security of the State. It is also fairly admitted by the State that he was later on released by the Screening Committee on 12.02.1993. However, it is also pointed out that even thereafter he was required in FIR filed against him under No. 18/1993. No affidavit in rejoinder is filed in this behalf contending that the averments made by the deponent in affidavit in reply are false and in absence of affidavit in a writ petition, the writ court may accept the contention. The affidavit is sworn by a person on the basis of record who had no grudge against the petitioner. 8. Ms. No affidavit in rejoinder is filed in this behalf contending that the averments made by the deponent in affidavit in reply are false and in absence of affidavit in a writ petition, the writ court may accept the contention. The affidavit is sworn by a person on the basis of record who had no grudge against the petitioner. 8. Ms. Asifa Ali, learned counsel appearing for the appellant, submitted that the appellant was already released and therefore, there was no case against him. It was submitted that as he was discharged for the offences mentioned in FIRs (no material is placed for discharge) mere detention should not be taken against him, more particularly when the competent authority itself found that he is required to be released and his continued detention is not warranted. It was also submitted by the learned Advocate, Ms. Asifa Ali, that when a person who was involved in anti-social activities or even involved in the activities nearer to the militancy, he should not be deprived of his right of getting an appointment when he was found fit by the Selection Committee. 9. It is not for this court to sit in appeal over the decision taken by the authorities which is supported by an affidavit. One may think to take into consideration these aspects and try to weigh though not permissible, however, we are not able to consider, as the appellant was required in two criminal cases. No reply has been filed by the original petitioner denying his involvement. 10. In this behalf Mr. Qadri, Sr. Additional Advocate General, appearing for the respondents, drew the attention of the court to the decision reported in case of Delhi Administration through its Chief Secretary & Ors. v. Sushil Kumar, 1996 (11) SCC 605. In this case, the petitioner/candidate was found physically fit, passed the written test and after interview he was selected provisionally. However, selection was subject to verification of character and antecedents by the local police. On verification it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Therefore, he was not appointed. However, selection was subject to verification of character and antecedents by the local police. On verification it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Therefore, he was not appointed. The Central Administrative Tribunal allowed the application, filed by the petitioner, on the ground that since the respondent had been discharged and/or acquitted of the offences punishable under Section 304 IPC, under Section 324 read with Section 34 IPC and under Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The judgment delivered by the Central Administrative Tribunal was challenged before the Apex Court, and the Apex Court has pointed out as under : ".... 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 direcition 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." 11. Relying on this decision, it was submitted by Mr. Qadri, Sr. Additional Advocate General, that once it was brought to the notice of the authorities that the candidate was involved in activities which we have already referred, his name cannot be accepted and that decision cannot be said to be perverse or arbitrary. He submitted that considering the provisions contained in the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, and the rules framed under the Jammu and Kashmir Police Act, the decision was taken. 12. Ms. Asifa Ali, learned Advocate appearing for the appellant, submitted that once the local police has submitted a certificate indicating, that the appellant is not involved in subversive activities, that ought to have been taken into consideration. 12. Ms. Asifa Ali, learned Advocate appearing for the appellant, submitted that once the local police has submitted a certificate indicating, that the appellant is not involved in subversive activities, that ought to have been taken into consideration. It has been pointed out to us by giving an illustration that if a person is resident of place `A and if he has committed crimes at place `B, then the police at Place `A may not be aware about the lodging of FIR or the involvement of the person. It would be only known to the officers at place `B. Considering the situation of the State, decision was taken to collect the information from all concerned police stations and the higher officers in this behalf and in view of this, the information was received which we have indicated earlier. Therefore, we find no merit in this argument that once the local police is satisfied, the appellant ought to have been given appointment. In a city, there may be various police stations. In a city, crime registered at one police station, obviously that would not be on the record of all the police stations. It is for the appointing authority to find out the mode of collecting information. If they collect the information about character or antecedent of a candidate from all the police stations, candidate cannot say that appointing authority should have relied on the local police stations verification. 13. Mr. Qadri, Sr. Additional Advocate General, appearing for the respondents, submitted that so far as appointment is concerned, the person whose name is born in the select list has no right of appointment. Select list also indicates that the appellant was considered and by the selection committee, was found fit according to their test, but so far as the verification about the character and antecedents is concerned, as per the rule, it was required to be verified from all the authorities concerned. He submitted that so far as the appointment is concerned, the Apex Court in case of Tagin Litin v. State of Arunachal Pradesh & Ors., AIR 1996 SC 2121 has pointed out as under :- "Here we are concerned with appointment to a post. He submitted that so far as the appointment is concerned, the Apex Court in case of Tagin Litin v. State of Arunachal Pradesh & Ors., AIR 1996 SC 2121 has pointed out as under :- "Here we are concerned with appointment to a post. An appointment to a post or office postulates -- (a) a decision by the competent authority to appoint a particular person; (b) incorporation of the said decision in an order of appointment; and (c) communication of the order of appointment to the person who is being appointed. All the three requirements must be fulfilled for an appointment to be effective." 14. Thus, mere inclusion of the name in the select list is not sufficient. There must be communication of the order of appointment to the person who is being appointed. The gap between the selection and the communication is required to be bridged by the satisfaction of the appointing authority on the aspect of character and antecedents, and, if that gap is not bridged, it is not possible to say that on mere inclusion of the name in the select list, the candidate has a right to get an appointment. 15. Mr. Qadri, learned counsel for the respondents submitted that there are decisions of the Apex court pointing out that mere inclusion of the name in the list of selected candidates would not confer any right on the candidates to be appointed. The Apex Court in case of Union Territory of Chandigarh v. Dilbagh Singh, (1993) 1 SCC 154 has held that a candidate whose name finds place in the select list for appointment to a civil post does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and he could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bonafide or valid reason. In case of State of Bihar v. Secretariat Assistant Successful Examinees Union 1986, (1994) 1 SCC 126 the Apex Court has held that a person having been selected, does not, on account of being empanelled alone, acquire any indefeasible right to appointment. In case of State of Bihar v. Secretariat Assistant Successful Examinees Union 1986, (1994) 1 SCC 126 the Apex Court has held that a person having been selected, does not, on account of being empanelled alone, acquire any indefeasible right to appointment. The Apex Court, considering these two judgments and various other judgments in case of N. Mohanan v. State of Kerala, AIR 1997 SC 1896, has pointed out that mere inclusion of name in the list of selected candidates does not confer any right on the candidate for being appointed. 16. It was submitted by the learned counsel for the Appellant that if the appellant was involved in subversive activities, then the respondents should not have called him for interview. It is the duty of the State to give appointment so as to see that the man is improved. It was further submitted that if the person is otherwise competent, merely because of some involvement, he should not be denied of his right of appointment. The argument that the person is competent has some relevance only if the character and antecedents are found to be good. Only question in the matter which is to be decided is the character and antecedents of the person and the satisfaction of the competent authority in this behalf. As we have indicated that mere passing the test itself is not sufficient, and therefore, the submissions cannot be accepted. 17. It was also pointed out to us that the verification is required by the police authorities. It is the satisfaction of the authority and, therefore, mere production of a certificate issued by some authority is of no consequence. It was submitted that once the rule making authority has prescribed procedure to be followed for verification, then that procedure is to be followed. By bye-passing the procedure, if someone is appointed, then the State would be required to face litigation stating that the State is acting arbitrarily, beyond the scope of the rules. Learned counsel for the respondent submitted that in case of Bharathari Singhania & Ors. v. Commissioner of Wealth Tax (Central) & Ors., 1994 Suppl. (3) SCC 46, the Apex Court has pointed out as under :- ".... The rule-making authority has prescribed under Rule 1-D only one method for valuing the unquoted equity shares. If this method were not to be followed, there is no other method prescribed by the rules. v. Commissioner of Wealth Tax (Central) & Ors., 1994 Suppl. (3) SCC 46, the Apex Court has pointed out as under :- ".... The rule-making authority has prescribed under Rule 1-D only one method for valuing the unquoted equity shares. If this method were not to be followed, there is no other method prescribed by the rules. As the rule is good and valid, it has to be followed in each and every case. It is not a matter of choice or option." 18. It was submitted that in view of the provisions indicated in the police Act, the rules framed thereunder, and, the provisions contained in the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, the appointing authority has followed the procedure and the court should not sit in appeal over that decision. Learned counsel appearing for the State also drew our attention to the judgment, delivered by learned Single Judge of this Court, reported in 1998 SLJ 267 in case of Abdul Latif Thoker v. State of Jammu and Kashmir, and pointed out that selection is of no consequence, as appointment was refused on the ground that the candidate was involved in criminal cases. Learned Single Judge has considered that aspect in detail and we endorse the view taken by the learned Single Judge. 19. In view of what we have stated hereinabove, the judgment delivered by learned Single Judge requires no interference and the appeal is required to be dismissed, and is dismissed, accordingly. However, looking to the facts and circumstances of this case, we are not passing any order as to costs.