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2008 DIGILAW 351 (MAD)

S. Selvakumar v. State of T. N.

2008-01-31

S.NAGAMUTHU

body2008
O R D E R:-An important question as to whether a person, who was a political party functionary and also involved in political agitations, is disqualified under Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules 1978 for being appointed as a police constable has arisen in this case for consideration. 2. During the year 2002, the third respondent initiated recruitment process for appointment of Secondary Grade Police Constables. The petitioner was one of the applicants, who aspired for the said post. He was allowed to participate in the process and he came out successful in the written examination also. Thereafter, verification of his character and antecedents was resorted to. Subsequently, the petitioner was rejected on the ground that in his application, he did not disclose that he was involved in a criminal case in Crime No.266 / 2000 on the file of Thalavaipuram Police Station for the offences punishable under Sections 147, 148, 341 and 324 I.P.C. Then, the petitioner approached the learned Judicial Magistrate, Rajapalayam on whose file, the above case in Crime No.266/2000 was pending. On verification, it was found that even Charge Sheet had been laid before the learned Magistrate in C.C.No.369/2000 on 23.01.2001. When the petitioner obtained copies of the F.I.R., and Charge Sheet in Crime No.266/2000 and the relevant documents, to his shock and surprise, he found that his name was not found neither in the F.I.R nor in the Charge Sheet nor there was any indication whatsoever in the records that he was involved in the said criminal case. Then, the petitioner made a representation on 01.10.2000 to the third respondent bringing to his notice the above facts and requested him to appoint him, but the third respondent did not consider the same. 3. Again, the third respondent initiated recruitment process during the year 2002-2003 for appointing Grade II Constables. The petitioner again made an application to the third respondent. The petitioner passed all the tests including the written test conducted. Thereafter, he was directed to appear before the fourth respondent for verification of his certificates such as Educational Qualification Certificates, Community Certificate etc. Such verification was held on 23.10.2003. 4. The petitioner again made an application to the third respondent. The petitioner passed all the tests including the written test conducted. Thereafter, he was directed to appear before the fourth respondent for verification of his certificates such as Educational Qualification Certificates, Community Certificate etc. Such verification was held on 23.10.2003. 4. Subsequently, the third respondent by his Proceedings in Na.Ka.No.080992/epakdk;.3/2003 dated 21.01.2004 rejected the petitioner on the ground that for some time, he was the branch Secretary of a particular political party and he involved himself in many political agitations organised by the said political party and thus, his character was not upto the satisfaction of the third respondent. The petitioner challenges the same in this writ petition. 5. Though in the affidavit filed in support of the writ petition it has been stated that the petitioner was never involved in any political party and he was not even a member of any such political party, I do not want to go into the said disputed question of fact. Now, let me analyse whether the petitioner suffers from any disqualification because of his previous alleged involvement in political activities. The relevant service rule which prescribes the qualification for recruitment is as follows:- "14(b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority. (i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service and (ii) that his character and antecedents are such as to qualify him for such service; and (iii) that such a person does not have more than one wife living. (iv) that he has not involved in any criminal case before ever. Explanation:- (1) A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a criminal case. Explanation:- (2) A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of any subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment". Explanation:- (2) A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of any subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment". A perusal of the said Rule would go to show that if only a candidate does not have good character and good antecedents, he would be disqualified. So, now the question is whether involvement in political activities and participation in peaceful political agitations would ipso facto constitute bad character or bad antecedents so as to disqualify a candidate. 6. Learned counsel appearing for the petitioner would rely on the Judgment of the Hon'ble Supreme Court reported in State of Madhya Pradesh ..Vs.. Ramashanker Raghuvanshi and Another ( 1983 (2) S.C.C. 145 ). The respondent in the said case was denied employment by the Government of Madhya Pradesh on the ground that the report of the Police Officer stated that he once belonged to some political organisation. In the said case, admittedly, there was nothing on record to show that the respondent ever participated in any illegal, vicious or subversive activity and there was also no material to hint that the respondent was or is a perpetrator of violent deeds or that he exhorted anyone to commit violent deeds. What was said against him was that before he was absorbed in Government service, he had taken part in some RSS or Jan Sangh activities. What those activities were has never been disclosed. Neither the RSS nor the Jan Sangh is alleged to be engaged in any subversive or other illegal activity nor are the organisations banned. In these background, when the respondent in the said case was dismissed from service, the High Court of Madhya Pradesh held that the order of termination of service was of a punitive character and quashed it. In the Special Leave Petition preferred by the State of Madhya Pradesh, the Hon'ble Supreme Court has observed as follows:- "2. ...... Everyone is entitled to his thoughts and views. There are no barriers. Our Constitution guarantees that. In fact members of these organisations continue to be Members of Parliament and State Legislatures. They are heard often with respect, inside and outside the Parliament. ...... Everyone is entitled to his thoughts and views. There are no barriers. Our Constitution guarantees that. In fact members of these organisations continue to be Members of Parliament and State Legislatures. They are heard often with respect, inside and outside the Parliament. What then was the sin that the respondent committed in participating in some political activity before his absorption into Government service? What was wrong in his being a member of an organisation which is not even allged to be devoted to subversive or illegal activities? The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association. It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment. But why seek a police report on the political faith of a candidate and act upon it? Politics is no crime. Does it mean that only True Believers in the political faith of the party in power for the time being are entitled to public employment? Would it not lead to devastating results, if such a policy is pursued by each of the Governments of the constituent States of India where different political parties may happen to wield power, for the time being? Is public employment reserved for "the cringing and the craven" in the words of Mr.Justice Black of the United States Supreme Court? Is it not destructive of the dignity of the individual mentioned in the Preamble of the Constitution? Is it to be put against a youngman that before the cold climate of age and office freezes him into immobility, he takes part in some political activity in a mild manner. Most students and most youngmen are exhorted by national leaders to take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever lasting discredit? Some times they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism. Some times they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism. They get involved because they are pushed into the forefront by elderly leaders who lead and occasionally mislead them. Should all these youngmen be debarred from public employment? Is government service such a heaven that only angels should seek entry into it? We do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the Preamble of the Constitution. We think it offends the Fundamental Rights guaranteed by Articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual's service. To hold otherwise would be to introduce "McCarthyism" into India. "McCarthyism" is obnoxious to the whole philosophy of our Constitution. We do not want it". (Emphasis supplied) As held by the Hon'ble Supreme Court, mere affiliation to a political party cannot be a ground to deny him public employment as the same would be repugnant to Articles 14 and 16 of the Constitution of India. It is to be further seen as to whether such affiliation during the past, is likely to affect the integrity and efficiency of the individual in the service. 7. In the case on hand, it not the case of the respondents that the petitioner's involvement in a political party would affect his integrity and efficiency in police service. A bare perusal of the impugned order would go to show that he was rejected on the ground that he was the office bearer of a political party and involved in certain political agitations. Admittedly, the said political party in which he was the office bearer is not a banned organisation and the agitations in which the petitioner is alleged to have participated are also not anti social or anti national or unlawful agitations. Admittedly, the said political party in which he was the office bearer is not a banned organisation and the agitations in which the petitioner is alleged to have participated are also not anti social or anti national or unlawful agitations. Thus, in my considered opinion as held by the Hon'ble Supreme Court the rejection of the petitioner that he was involved in politics as a member of a political party and also participated in some of the political agitations cannot be a valid ground at all and the same cannot be a disqualification under Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules 1978. 8. The Learned Additional Government Pleader appearing for the respondents would rely on the decision of the Hon'ble Supreme Court reported in Delhi Administration through its Chief Secretary and others ..Vs.. Sushil Kumar ( 1996 (11) S.C.C. 605 ), wherein the Hon'ble Supreme Court had an occasion to deal with the case of non-selection of a candidate for being appointed in police service on the ground that the candidate was involved in a criminal case though he was either acquitted or discharged. The relevant portion of the said judgment is as follows:- "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 acquired 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". (Emphasis supplied). 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". (Emphasis supplied). 9. Relying on the above Judgment, the learned Additional Government Pleader would submit that, being a member of a political party would constitute bad antecedent and therefore, the petitioner is not eligible for appointment in police force, a disciplined force, which cannot be equated to any other Government Department. But, I am not able to agree with the said contention for the simple reason that in the above said case, apart from the involvement of the respondent therein in a criminal case, which ended in acquittal, there were other materials before the appointing authority to come to the conclusion that he had bad antecedents and thus, he was held disqualified from getting into police service. But, in our case, it is not disputed by the learned Additional Government Pleader that there are no such materials as of now to substantiate the said contention that the petitioner had bad antecedents. 10. Nextly, the learned Additional Government Pleader would rely on the Judgment of the Hon'ble Supreme Court reported in Union of India and others ..Vs.. Kalidass Batish and another ( 2006 (1) S.C.C. 779 ). That is a case where the non-appointment of a Member for Central Administrative Tribunal made in consultation with Hon'ble Chief Justice of India came to be considered. A writ petition filed before the Himachal Pradesh High Court challenging the non-appointment was allowed and writ appeal was dismissed. Challenging the same, Special Leave Petition was filed by the Government. While setting aside the orders of the High Court, the Hon'ble Supreme Court in Paragraph 13 of the Judgment has observed as follows:- "....It must be remembered that a member of an Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate thereagainst. It is for this reason, that a policy decision had been taken by the Government of India that while considering members of the Bar for appointment to such a post, their antecedents have to be verified by IB. It is for this reason, that a policy decision had been taken by the Government of India that while considering members of the Bar for appointment to such a post, their antecedents have to be verified by IB. The antecedents would include various facts, like association with antisocial elements, unlawful organisations, political affiliations, integrity of conduct and moral uprightness. All these factors have necessarily to be verified before a decision is taken by the appointing authority to appoint a candidate to a sensitive post like member of CAT. In Delhi Admn ..Vs.. Sushil Kumar ( 1996 (11) S.C.C. 605 ), this Court emphasised that even for the appointment of a constable in police services, verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable for a post under the State. Even if such candidate was found physically fit, had passed the written test and interview and was provisionally selected, if on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a constable, the view taken by the appointing authority could not be said to be unwarranted, nor could it be interdicted in judicial review.....". 11. A close reading of the above said Judgment would go to show that since a Member of the Central Administrative Tribunal must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate thereagainst, the Hon'ble Supreme Court held that association with antisocial elements, unlawful organisations and political affiliations are also matters to be considered. In the case on hand, for appointment of a Police Constable it is not my endeavour to say that the political affiliation of an individual should be never taken into account. I am also to say that the political affiliation of the particular candidate is to be taken into account, but at the same time, it is to be further seen as to whether the particular candidate has involved in any illegal activities by resorting to any agitation organised by the political party etc., As held by the Hon'ble Supreme Court in Ramashanker Raghuvanshi's case (cited supra), being a member of a political party is not a sin. What is relevant is only his antecedents and character. What is relevant is only his antecedents and character. In the case on hand, in the impugned order, except stating that the petitioner was the Branch Secretary of a political party and also involved in political agitations, there are no materials to brand him as disqualified for being appointed in police service. Thus, applying the principles laid down by the Hon'ble Supreme Court in the cases cited supra, I do not find any material to show that the petitioner had bad character and bad antecedents so as to disqualify him under Rule 14(b) of the Tamil Nadu Special Police Subordinate Rules 1978. 12. In the result, the writ petition is allowed and the impugned order is quashed. The respondents are directed to allow the petitioner to participate in the rest of the selection process and appoint him, if he is otherwise qualified. No costs.