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2012 DIGILAW 535 (JK)

Jahangir Ahmad Khanday v. State & Ors.

2012-08-31

MANSOOR AHMAD MIR

body2012
1. It appears that advertisement notice was issued by the respondents inviting applications for selection/appointment against the post of Constables in the Jammu & Kashmir Executive Police in the Districts of Anantnag, Pulwama, Kulgam, and Shopian. The petitioner, being eligible, applied along with all other candidates and on completion of the selection process, he came to be selected figuring at S. No. 166. 2. The petitioner was directed to report to respondent No. 4 along with his original testimonials. In compliance of the said order, the petitioner submitted all the relevant documents before the competent authority and was expecting to receive orders for undergoing the requisite training course. It is contended that, despite lapse of about six months, the petitioner was not allowed to join the duties and on enquiries being made by him as to the reason that he was not allowed to join, he was informed that the reason was the receipt of adverse verification report, which revealed the petitioner’s involvement in FIR No. 122/2010 at Police Station, Qazigund, under sections 354, 427, 323, 336, 147 and 447 RPC. It is submitted that the allegations leveled against the petitioner in the said FIR are false and frivolous and that the case is pending before the learned Judicial Magistrate, Qazigund and no witness has deposed against the petitioner so far, which substantiates that the allegations leveled against him are false and frivolous. It is submitted on behalf of the petitioner that the said FIR and the offences alleged against the petitioner cannot be made a ground for refusal/denial of the appointment to the petitioner. 3. Writ petition came up for consideration and in terms of order dated 20.08.2011, notice was issued to the respondents for filing the objections, if any, and in the meantime, respondents were directed to allow the petitioner to join against the post of Constable against which he stands selected. 4. Respondents have filed the reply and contested the averments made in the writ petition and averred that the petitioner was found involved in the FIR supra and that is the reason for not issuing appointment order in favour of the petitioner. 5. Respondents had also questioned the interim direction passed by this Court by medium of Letters Patent Appeal (LPA No. 42/2012), which was allowed and the interim direction passed by this Court on 20.08.2011 was set aside. 5. Respondents had also questioned the interim direction passed by this Court by medium of Letters Patent Appeal (LPA No. 42/2012), which was allowed and the interim direction passed by this Court on 20.08.2011 was set aside. However, while allowing the Letters Patent Appeal, it was observed by the Hon’ble Division Bench that any observation made shall not be considered as an expression of opinion on the merits of the controversy and the Writ Court shall proceed to decide the issue without being influenced by the order passed by the Hon’ble Division Bench. 6. Mr. Jahangir Iqbal, learned appearing counsel for the petitioner has laid a motion wherein he has placed on record the order passed by the Learned Judicial Magistrate, Qazigund, whereby he stands acquitted in the FIR, which is subject matter of the whole controversy. 7. Heard learned counsel for the parties. Writ petition is admitted to hearing. In the given facts and in view of the above said reasons, I deem it proper to take the writ petition for final disposal at this very stage to which course the learned counsel for the parties have no objection. 8. The core question involved in the writ petition is as to whether the petitioner is entitled to appointment and has right to be allowed to join in view of the subsequent development viz., acquittal in the FIR supra. Admittedly, the appointment order was withheld and the petitioner was not allowed to join because of his involvement in the said FIR. Now that the trial has come to an end and the petitioner stands acquitted of the charges leveled against him, he is entitled to the relief sought for by him. 9. The apex Court recently in a judgement titled State of West Bengal & ors. v. S. Nazrul Islam reported in 2011 AIR SCW 6558 has held that if a Constable is involved in any criminal offence, he cannot possibly be held to be suitable for appointment to the post of Constable, till he is acquitted of the charges leveled against him. It is relevant to extract paragraph 5 of the judgement, which reads as under: “5. It is relevant to extract paragraph 5 of the judgement, which reads as under: “5. We have heard learned counsel for the parties and we fail to appreciate how when a criminal case under Sections 148/323/380/427/596, IPC, against the respondent was pending in the Court of the Additional Chief Judicial Magistrate, Uluberia, Howrah, any mandamus could have been issued by the High Court to the authorities to appoint the respondent as a Constable. Surely, the authorities entrusted with the responsibility of appointing constables were under duty to verify the antecedents of a candidate to find out where he is suitable for the post of constable and so long as the candidate has not been acquitted in the criminal case of the charges under Sections 148/323/380/427/596, IPC, he cannot possibly be held to be suitable for appointment to the post of Constable.” 10. The Supreme Court in another case titled Commissioner of Police and others v. Sandeep Kumar reported in (2011) 4 SCC 644 held that the authorities should condone the minor indiscretions made by young people rather than brand them as criminals for the rest of their lives. The apex Court further held that young people often commit indiscretions, and the approach of the State should be to condone such indiscretions rather than branding them as criminals for rest of their lives, and that the modern approach should be to reform a person instead of branding him as a criminal for all his life. It is relevant to reproduce the paragraphs 8, 9 and 10 of the judgement, which read 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 branch them as criminals for the rest of their lives. 9. 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 branch them as criminals for the rest of their lives. 9. In this connection, we may refer to the character “Jean Valijean” 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 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….” 11. The Supreme Court in the aforementioned judgement has further gone to say that even if a candidate has not mentioned in the application form that he was involved in a criminal case, that cannot be a ground for denying him the appointment. It is useful to reproduce paragraph 12 of the judgement, which reads: “12. It is true that in the application from 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.” 12. This Court in Narinder Kumar Sharma v. State and others reported in 2011 (4) JKJ 176 (HC) and Bilal Ahmad Parra v. State and others reported in 2011 (4) JKJ 601 (HC), while discussing the issue has laid down the same law. 13. This Court in Narinder Kumar Sharma v. State and others reported in 2011 (4) JKJ 176 (HC) and Bilal Ahmad Parra v. State and others reported in 2011 (4) JKJ 601 (HC), while discussing the issue has laid down the same law. 13. In view of the facts of the present case narrated above and in light of the law laid down by the judgments supra, coupled with the fact that the petitioner stands already appointed as a Constable in Jammu & Kashmir Executive Police, subject to outcome of LPA and writ petition, in terms of order No. 706 of 2012 dated 04.07.2012 passed by the respondents, respondents are directed to allow the petitioner to join against the aforesaid post of Constable deeming him to have been appointed as such pursuant to the aforesaid order dated 04.07.2012. 14. Disposed of along with all connected CMPs.