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2004 DIGILAW 172 (KER)

Sebastian v. State of Kerala

2004-04-07

K.K.DENESAN

body2004
Judgment :- K.K. Denesan, J. State of Kerala in exercise of the power conferred by R.10(b)(iii) of Part II of Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to as 'the Rules') issued Ext.P8 order dated 11.9.2001, directing that the advice of the Kerala Public Service Commission for appointment of the petitioner as Police Constable in the M.S.P. Bn., Malappuram shall not be given effect to. Petitioner, aggrieved by the above order, has filed this O.P. seeking to quash Ext.P8. 2. Kerala Public Service Commission invited applications in the year 1998 for selection to the post of Police Constables in Armed Battalion. Candidates had to come out successful in the written examination, physical efficiency test and medical examination for inclusion of their names in the select list. Petitioner passed all the tests and he was included in the ranked list. He was advised for appointment according to his turn. Ext.P1 is the copy of the advice memo issued to the petitioner on 6.7.1998. 3. Selection of candidates and their advice for appointment are subject to Rr.3(c) and 10(b) of the Rules. R. 10(b)(iii) says that no person shall be eligible for appointment to any service by direct recruitment, unless the State Government are satisfied that his character and antecedents are such as to qualify him for such service. 4. State Government decided that the petitioner need not be appointed since bis character and antecedents were such as to disqualify him for appointment as Constable in the Police Department. Petitioner was accused in three criminal cases of which two cases arose after his selection for appointment as Police Constable. He was acquitted in all the three cases. Orders of acquittal in two criminal cases were passed after full-fledged trial whereas in the third case the offences were compounded and the acquittal was under S.320(8) of the Code of Criminal Procedure. According to the Government, the fact that the petitioner was an accused in three criminal caseswould go to show that "there is a tendency on the part of the candidate to involve in criminal activities." Government was also of the opinion that the order acquitting him under S.320(8) of the Code of Criminal Procedure, was not an honourable acquittal. 5. Ext.P8 order is attacked by the petitioner mainly on three grounds: (1) Total non-application of mind. 5. Ext.P8 order is attacked by the petitioner mainly on three grounds: (1) Total non-application of mind. (2) Wrong application of the principles of law and (3) Violation of the principles of natural justice. 6. Smt. A.G. Aneetha, learned counsel for the petitioner, submitted that the 1st respondent failed to assess the factual situation in an objective manner and drew incorrect and illegal inferences on the basis of a peripheral impression. Counsel contended that the Government was carried away by the fact that the petitioner was accused in three criminal cases out of which two cases arose after his selection to the post of Police Constable. Government did not consider whether the order of acquittal rested on technical grounds or benefit of doubt or absence of evidence to establish the complicity of the petitioner. 7. A counter affidavit has been filed on behalf of the 1st respondent, wherein the grounds stated in Ext.P8 are repeated. Learned Government Pleader, however, submitted that no candidate acquires an indefeasible right to get appointment in public service merely on the ground of his inclusion in the ranked list or his advice for appointment. The candidate has to pass through the acid test and prove himself to be a person of character with clean antecedents. R.10(b)(iii) of the Rules, among other, intends to achieve the object. 8 Heard both sides. 9. It is well settled that by mere inclusion in the rank list or in the advice list, no candidate acquires an indefeasible right for appointment to the post. The object of R.10(b) of the rules is also not in controversy. Right for appointment will depend on the satisfaction of the appointing authority that the candidate's character and antecedents are such as to qualify him for appointment. The debatable point, however, is whether the satisfaction referred to in the aforesaid Rule is a subjective one or is it one to be formed on the basis of objective considerations with due regard to relevant facts and materials. If the appointing authority was bound to arrive at the required satisfaction on the basis of an objective assessment of facts and materials, then, the question to be answered is whether the appointing authority did exercise the power fairly and reasonably, in the given facts and circumstances. 10. If the appointing authority was bound to arrive at the required satisfaction on the basis of an objective assessment of facts and materials, then, the question to be answered is whether the appointing authority did exercise the power fairly and reasonably, in the given facts and circumstances. 10. Equality of opportunity in matters relating to employment under the State is a fundamental right guaranteed by Art. 16 of the Constitution which is a limb of Art. 14. It is the constitutional mandate that the State shall not deny equality before law and equal protection of the laws. The true scope and ambit of Art. 14 has been the subject matter of numerous decisions of the Supreme Court. It is now well settled that the content and reach of Art. 15 must not be confused with the doctrine of classification. It was for the first time in E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, that the Apex Court laid bare a new dimension of Art.14 and pointed out that that Article was highly activist magnitude and it embodies a guarantee against arbitrariness. The Apex Court speaking through Bhagwati, J. said: "The basic principle which therefore informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now what is the consent and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., "a way of life", and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From apositivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art: 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment". Arts. 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment". 11. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, Supreme Court held that "the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Art. 14 like a brooding omnipresence". The element of reasonableness and fairness in action should be read into R.10(b)(iii) of the Rules and viewed in that perspective the required satisfaction contemplated by that provision has necessarily to be objective. It is therefore, obligatory on the part of the appointing authority not to act arbitrarily. The satisfaction should be founded on cogent and relevant materials and should not depend upon the whims and fancies of the authority. 12. Copies of the judgment dated 18.11.2000 in C.C.No.1560 of 2000 on the file of the Court of the judicial 1st Class Magistrate-II, Kollam, judgment dated 21.8.2000 in S.C. No.82 of 1999 of the Court of Sessions, Kollam, and order of acquittal under S.320(8) Crl.P.C. passed on 3.2.2001 in C.C.No.230 of 2001 of the judicial 1st Class Magistrate-II, Kollam are produced with the Original Petition and marked as Exts.P2, P3 and P4 respectively, to show that the satisfaction of the State Government referred to in Ext.P8 is legally infirm and arbitrary. Ext.P2 judgment shows that the prosecution case was that the accused committed mischief by damaging a notice board which was in the possession and use of C.P.I.(M) local committee office, Perinad. Offence alleged against the accused was one punishable under S.379 read with Ss.34 of the IPC. It is not understood, how, for the offence of mischief, S.379 read with S.34, IPC will be attracted. Whatever that be, a perusal of the judgment shows that two witnesses, namely, P.Ws.1 and 2 were examined to prove the occurrence. Regarding their evidence the trial court in its judgment says as follows: "P.W.I who is the local secretary and PW2 who is an independent witness said that even though the board was damaged and mischief was committed they do not know the persons responsible for it". Both PWs.1 and 2 were declared hostile by the prosecution and they were cross-examined by the Asst. Public Prosecutor. The learned Magistrate in Ext.P2 judgment has stated as follows: "Even though PWs.I and 2 were cross-examined, nothing was brought out to discredit them. Both PWs.1 and 2 were declared hostile by the prosecution and they were cross-examined by the Asst. Public Prosecutor. The learned Magistrate in Ext.P2 judgment has stated as follows: "Even though PWs.I and 2 were cross-examined, nothing was brought out to discredit them. Since prosecution failed in proving its case, I find them not guilty of offence under S.379 r/w. S.34 IPC, and point is answered against prosecution". And the accused were acquitted under S.248(1) Cr.P.C. 13. The accused persons in the second case were tried and acquitted by the Court of Sessions, Kollam. In that case, the petitioner along with another was charge- sheeted for offences punishable under S.323 read with S.34 IPC and S.3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Ext.P3 judgment shows that the evidence available on record for proving the prosecution case was the testimony of PWs.1 and 2, the victims of the alleged acts of the accused. Regarding the prosecution evidence, the learned Sessions Judge in Ext.P3 judgment has stated as follows: "It is very strange to note that PWs.I and 2 have turned hostile to the prosecution. 'The other prosecution witnesses have not stated anything about the occurrence. The eye witnesses in this case have not spoken in conformity with the prosecution case. PW1 denied having given Ext.P1 F.I. statement. There is no evidence to prove that the accused called the caste name of PWs.I and 2 in public view to humiliate and harass them. Absolutely there is no evidence to sustain charge under S.323 r/w S.34 of thelndian Penal Code and S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. There is no evidence acceptable to prove that the accused assaulted P.Ws.I and 2 and called their caste name". The learned Sessions Judge found that the prosecution has miserably failed to bring home the guilt of the accused under S.323 r/w. S.34 of the Indian Penal Code and S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (emphasis supplied). In the result, the accused were acquitted under S.232 of Cr.P.C. 14. The learned Sessions Judge found that the prosecution has miserably failed to bring home the guilt of the accused under S.323 r/w. S.34 of the Indian Penal Code and S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (emphasis supplied). In the result, the accused were acquitted under S.232 of Cr.P.C. 14. Having thus gone through the above two judgments pronounced by the competent criminal courts, I am of the view that there is merit in the contention raised on behalf of the petitioner that the allegations made against him in the above two cases making him an accused along with some others, cannot be taken into account to cast aspersions on his character. Respondent No.1 failed to look into the contents of Exts.P2 and P3 judgments. It is pertinent to note that no appeal was filed against Exts.P2 and P3 and thus, the judgments have become final. 15. To form an opinion regarding the character and antecedents of the petitioner mere counting the number of cases in which he faced prosecution and trial as accused is definitely not the safe test or the sole test. Government is not justified in forming its opinion, in a case of this nature, totally divorced from the findings entered by the criminal Courts and the reasons stated therefor by the said courts. Whether the prosecution version is true or the accused's version is true has to be found out from the judgments of the competent Court of law. The satisfaction arrived at by the Government will be erroneous and legally infirm unless the judgments of the competent courts are carefully studied with due application of mind. Ext.P8 order does not show that the 1st respondent made any attempt to ascertain the truth of the allegations against the petitioner. 16. A person can be accused of having committed an offence on account of his actual involvement in the crime or on account of the suspicion entertained by the complainant or witnesses or the investigating officer regarding his involvement in the crime or by false implication. The mere fact that a person was arrayed as accused in a criminal case or more than one, by itself, cannot be a safe ground to hold that the person so accused did commit the offence or was involved in the commission of the offence. 17. The mere fact that a person was arrayed as accused in a criminal case or more than one, by itself, cannot be a safe ground to hold that the person so accused did commit the offence or was involved in the commission of the offence. 17. In my view the 1st respondent erred in branding the petitioner as a person having a tendency to involve in criminal activities and unsuitable for appointment in public service, solely on the grounds stated in Ext.P8. 18. Now I shall examine the relevance of the 3rd case disposed of by the judicial 1st Class Magistrate's Court-II, Kollam as per Ext.P4 under S.320(8) of the Code of Criminal Procedure. The view taken by the 1st respondent in Ext.P8 is that the acquittal of the accused on compounding the offence cannot be treated as honourable acquittal. Learned counsel for the petitioner attempted to demolish the basis of the above reasoning, and raised three points: (1) The allegation which formed the basis of the charge against the petitioner in the case which ended in acquittal under S.320(8) Cr.P.C. was neither grave nor involving moral turpitude but something which could be characterised as trivial. Producing a copy of the charge sheet as Ext.P5, it was contended that the alleged occurrence took place on account of a civil dispute involving the right to use a pathway. The overtact attributed to the petitioner who was accused No.5 in that case was that he pulled down the branch of an Anjali tree standing on the southern side of the property of the defacto complainant causing a loss of Rs.100/-. The averments in the O.P. show that the accused and the defacto complainant are neighbours and relatives. According to the petitioner, he was not present at the scene of occurrence and that he was falsely implicated in the background of the property dispute between the two families. When the estranged feelings between the two families cooled down they came to a compromise. Accordingly, application to compound the offences with the permission of the Court was filed. Learned Magistrate granted permission to compound the offences and the accused were acquitted under S.320(8) of Cr.P.C. 19. When the estranged feelings between the two families cooled down they came to a compromise. Accordingly, application to compound the offences with the permission of the Court was filed. Learned Magistrate granted permission to compound the offences and the accused were acquitted under S.320(8) of Cr.P.C. 19. In Mansarudeen v. K.S.E.B.,1994 (1) KLT 603, a Division Bench of this Court held that on the sole ground that a candidate selected by the Public Service Commission was an accused in a criminal case arising from civil dispute is not a valid ground to hold that his character and antecedents are such as to disqualify him for appointment in public service. In the above decision, the Division Bench thought it appropriate to restate the fundamental principle of criminal jurisprudence that every accused is presumed to be innocent till he is convicted. A perusal of the charge sheet in the above case makes it clear that the only overt act alleged against the petitioner was that he along with two others pulled down the branch of an Anjili tree and thereby caused a loss of Rs.100/-. Evidently, the 1st respondent-Government did not make any effort to apply its mind to the nature of the allegations and other relevant materials. Ext.P8 order does not show that pertinent aspects had entered the mind of the Government or the relevancy of those aspects considered in the proper perspective. 20. Counsel for the petitioner submitted that it is patently erroneous to say that an order passed by the competent criminal Court compounding the offence under S.320(8) of Cr.P.C. cannot be considered as an order having the effect of an acquittal of the accused. The above submission has to be appreciated in the light of the decision of the Supreme Court in Biswabahan Das v. Gopen Chandra Hazarika, AIR 1967 SC 895. Supreme Court held that if a person is charged with an offence, then unless there is some provision for composition of it, the law must take its course and the charge enquired into resulting either in conviction or acquittal. However, if the composition Of an offence was permissible under the law, the effect of such composition would depend on what the law provided for. However, if the composition Of an offence was permissible under the law, the effect of such composition would depend on what the law provided for. If the effect of composition is to amount to an acquittal then it may be said that no stigma should attach to the character of the person, but unless that is expressly provided for, the mere rendering of compensation would not amount to the vindication of the character of person charged with the offence, (emphasis supplied). It is admitted position that the accused persons in C.C. No.230 of 2001 of the Court of the judicial 1 st Class-II, Kollam were acquitted under S.320(8) Cr.P.C. which provides that the composition of an offence under that section shall have the effect of an acquittal of the accused with whom the offence has been compounded, (emphasis supplied). Hence in the light of the law laid down by the Supreme Court in Biswabahan Das (supra) no stigma should attach to the character of the person who is accused of the offence in a case where the law provides that the effect of composition amounts to an acquittal. We have already seen what S.320(8) of the Code of Criminal Procedure says. It therefore follows that the effect of acquittal of the accused cannot be brushed aside by the 1st respondent stating that it does not amount to honourable acquittal. 21. Now let me advert to the third contention. Counsel submitted that the impugned order (Ext.P8) is void being in gross violation of the principles of natural justice. No notice was issued to the petitioner to show cause against the finding that he has got a tendency to involve in criminal cases and that his character and antecedents were unsatisfactory as to disqualify him to seek appointment in Government service. Undoubtedly, Ext.P8 order visits the petitioner with adverse civil consequences. The effect of Ext.P8 is that the petitioner not only would lose his appointment as Constable in the Police Department but his prospects for employment in public service also would stand blocked. Hence a show cause notice was the minimum requirement to do justice to the procedural safeguards and the principle of audi alteram partem. Petitioner is entitled to the opportunity to have his say before the Government gave final shape to the view expressed in Ext.P8. Viewed from any angle, Ext.P8 is liable to be quashed. 22. Hence a show cause notice was the minimum requirement to do justice to the procedural safeguards and the principle of audi alteram partem. Petitioner is entitled to the opportunity to have his say before the Government gave final shape to the view expressed in Ext.P8. Viewed from any angle, Ext.P8 is liable to be quashed. 22. For the reasons stated above, I quash Ext.P8. Since persons inferior in rank have already been appointed, there shall be a direction to the respondents to appoint the petitioner as Police Constable on the strength of Ext.P1 advice memo dated 6.7.1998 with consequential benefits. Original Petition is allowed as above.