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2003 DIGILAW 142 (JK)

State Of J. &K. v. Ab. Majid Mir

2003-05-20

SYED BASHIR-UD-DIN, V.K.JHANJI

body2003
Per : V. K. Jhanji, ACJ, (Oral) This Letters Patent Appeal has been directed against order dated 16.10.1998 passed by the learned Single Judge whereby the writ petition has been allowed and the respondents, namely, the appellants herein, have been directed to allow the writ petitioner, respondent herein, to join duties with effect from 15th October, 1998 and his seniority be reckoned from the date from which his batchmates were allowed to join. However, his pay has been ordered to be released from 15th October, 1998. 2. In brief, the facts are that in pursuance of advertisements notice, the respondent applied for the post of Constable in J&K Police, District Kupwara. He appeared in the selection process and was selected for the said post. In terms of Police Rules, before making appointment, the character and antecedents of a selected candidates were required to be verified by the Police Department and before the same could be verified and formal letter of appointment could be issued, the respondent filed writ petition with the grievance that appointment letter has not been issued to him for the reason that he has failed to furnish clearance certificate from the CID wing of the Police Department. Upon notice of the writ petition, the police in their counter-affidavit submitted that the list of the candidates for the post of Constable was made subject to the verification of their Character and antecedents and, since character and antecedents are being verified from the CID and, as and when any report was received, the police department of its own would consider the appointment of the respondent and necessary orders would follow. It was also stated that information has been received by the Police Department in regard to the respondent being a militant and having crossed the Actual Line of Control for obtaining training in arms and ammunition. The information has been sent to the concerned department and report is being sought from the CID and, as and when any report is received , the same would be placed before the court. The information has been sent to the concerned department and report is being sought from the CID and, as and when any report is received , the same would be placed before the court. The learned Single Judge, instead of directing the Police to expedite the report, which was to be received from the CID, allowed the writ petition by taking into account two circumstances, firstly, that the respondent had produced a certificate issued by 30 Rashtria Rifles whereby it was certified that his character was good; and secondly, that the respondent was working as SPO with the Police Department. While taking the second circumstances into account, the learned Single Judge was of the view that he must have been appointed as SPO after his character and antecedents had been properly verified. The learned Single Judge was further of the view that the Police Department should have geared up its machinery and concluded the process of verifying the character and antecedents in the shortest possible time, especially when "we are living in an electronic age where it could be two minutes job to ascertain the antecedents of one individual who is recorded and registered with the State". The learned Single Judge, accordingly, directed the appellants to allow the respondent to join as Constable with effect from 15th October, 1998. Hence this appeal. 3. Learned counsel appearing on behalf of the appellants contended that during the pendency of this appeal, report has been received from the CID Headquarters who, vide letter No. CID/VB/96/Police/100/Kup. dated 7th August, 1996, have found that the respondent was an active POK trained militant. He was apprehended by the security forces in the year 1991 and was detained under the provisions of Jammu and Kashmir Public Safety Act, 1978, for a period of two years in terms of the detention order No. DMK/129 dated 30th October, 1992 passed by District Magistrate, Kupwara, and was lodged in Hira Nagar Jail. The detention order of the respondent was issued on the ground of his activities being prejudicial to the security of the State. The detention order of the respondent was issued on the ground of his activities being prejudicial to the security of the State. He submitted that because of the character and antecedents of the respondent, he could not, and cannot, be appointed as a Constable in a force like the Police which has to maintain law and order and also to provide security to VIPs like Politicians, Judges, bureaucrats etc, and also to provide watch and ward to important installations of the State and Centre. 4. On the other hand, Mr. A.K. Malik, learned counsel for the respondent, submitted that the respondent was never associated with any enquiry conducted in order to verify his character and antecedents and, any report of the CID, on the basis of the enquiry conducted ex-parte relating to the verification of the character and antecedents of the respondent, cannot be taken into account. He further submitted that CID report was not made available to the respondent nor was he ever asked to explain the same and, since the report entails civil consequences, action of the appellants is not offering appointment to the respondent is violative of the principles of natural justice. 5. We have heard learned counsel for the parties at length and have carefully gone through the record of this case. 6. From the record of this case, it is manifestly clear that selection of the respondent for appointment to the post of Constable was indisputably made subject to verification of his character and antecedents. In regard to the appointments to be made in Police and other Departments, Government has taken a decision vide order No. 344 of 1995 dated 16th February, 1995, whereby powers have been conferred upon the Criminal Investigation Department (CID) to verify the character and antecedents of selected candidates and, on the basis of the said verification, the appointing authorities of all the Government Departments, including the Police Department, are required to take a decision whether a candidate is entitled to be appointed or not. In the case, the report relating to the character and antecedents of the petitioner was sought from the CID. In the case, the report relating to the character and antecedents of the petitioner was sought from the CID. Before it could be verified by the CID, or report could be submitted, the Police received a secret information that the respondent is a militant and, of course, had actually crossed the Line of Actual Control to POK and received training in the handling of arms and ammunition. This information was also sent to CID for verification. It is for that matter, it was submitted in the counter-affidavit filed by the appellants before the writ-court, that, as and when clearance regarding the character and antecedents of the respondents was received from the CID, the same would be placed before the Court and that appellants of their own would consider the appointment of the respondent and necessary orders would be issued. But the learned Single Judge did not wait for the report. The certificate issued by 30 Rashtria Rifles cannot be taken to be proof of the character and antecedents of the respondent and, that too, when Rashtria Rifles is not connected with the task of obtaining information in regard to the character and antecedents of persons who are to be employed in Government Departments. In our considered view, the learned Single Judge ought to have waited for the report from the CID instead of directing the respondents to allow the respondent (writ-petitioner) to join with effect from 15th October, 1998 solely on the certificate issued by the Rashtria Rifles and the respondent having been already an SPO. We may also note that there is nothing on record to show that before the respondent came to be engaged as an SPO any enquiry regarding his character and antecedents was made or any report in this regard was received. That apart, SPO is not a member of any force, nor is he appointed to any service of the Police Organization or wing. SPO is a nomenclature given to such individuals drawn from either ex-servicemen or ex-militants who are willing to render assistance to the members and officers of Police force in tasks other than policing on a monthly consolidated remuneration of Rs. 2000/-. Therefore, they need not possess the requisite standards prescribed for enrolment into the force. 7. SPO is a nomenclature given to such individuals drawn from either ex-servicemen or ex-militants who are willing to render assistance to the members and officers of Police force in tasks other than policing on a monthly consolidated remuneration of Rs. 2000/-. Therefore, they need not possess the requisite standards prescribed for enrolment into the force. 7. In regard to the submission of learned counsel for the respondent, that the respondent has a legal right to be appointed on being selected, it is only to be stated that it is now well settled by a series of decisions of the Supreme Court that the empanelment of the candidate in the select list confers no right on the candidates to appointment on account of being so empanelled. At the best, it is a condition of eligibility for the purpose of appointment and by itself does not amount to selection nor does it create a vested right to be appointed unless the service rules provide to the contrary. As already noticed, the appointment to the post of Constable was subject to verification of character and antecedents and it cannot be denied that in selecting a candidate regard had to be had to the character and antecedents of the candidates concerned. 8. Further, without going into the point whether the respondent was entitled to be given an opportunity of being heard in regard to the report about his character and antecedents, it would suffice to say that even if such an opportunity would have been granted to him, that would have been an exercise in futility because the respondent would not have been able to improve upon his character and antecedents. What explanation would have he provided for going across the Line of Actual Control to take training in arms and ammunition and to participate in militant activities in the State for which he was apprehended and detained, being a potential threat to the security of the State. Police is the sheet anchor of an orderly society. It is the trustee of respect, dignity and property of the members of the society. Therefore, its members are supposed to be, if not above board, at least, in tune with the requisite standards prescribed by the competent authority and also commensurate with expectations of the society. Police is the sheet anchor of an orderly society. It is the trustee of respect, dignity and property of the members of the society. Therefore, its members are supposed to be, if not above board, at least, in tune with the requisite standards prescribed by the competent authority and also commensurate with expectations of the society. Whether an individual, having indelibly tainted character, can become a good police officer can be judged only by the competent Police authority and this Court would be loathe in sitting in judgement over that decision of the competent authority, which is based on secret information received by the Department. Enrolment in Police Organisation of a person having militant back-ground, apt to wage war against the State, is an oxymoron, the idealogy of the two being extremely opposed and opposite to each other. If entry of such individuals into the force is facilitated, that is likely to vitiate the disciplinary faculties of the force as a whole, besides augmenting the security hazards for the State and the society. This Court is the custodian of the fundamental rights of the citizens of the country, including their life and liberty. It cannot facilitate an action on the part of the respondent that would be perilous for the people in general and the State and its machinery in particular. 9. In view of the above, we are of the view that the order of the learned Single Judge is not sustainable in law, we, accordingly, set-aside the same. In consequence thereof, the writ petition is dismissed without any order as to costs.