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2012 DIGILAW 630 (JK)

Zulfakar Ahmed v. State and Ors.

2012-10-04

MANSOOR AHMAD MIR

body2012
Mansoor Ahmad Mir, J.— (i) Whether to be reported in Press, Journal/Media: Yes (ii) Whether to be reported in Journal/Digest: Yes 1. By the medium of this petition, the petitioner is seeking to quash Order No.73 of 2010 dated 07.01.2010 issued by Director General of Police, Jammu, respondent no.2 herein, whereby he has rejected the claim of petitioner for his enrolment in the Police Department (for short, impugned order). 2. The facts in brief are that in pursuance to the Advertisement Notice dated 26.06.2006, the petitioner herein applied for the post of Constable/Follower in JKAP. He came to be selected as a Constable in the year 2007 and was adjusted in JKAP 13th Bn. However, when he went to join his duties, he was not allowed on the ground that a criminal case was pending against him. It is further contended that he has already been acquitted of the charges by the Principal Sessions Judge, Poonch, vide judgment and order dated 29.12.2008. Accordingly, it is prayed that the impugned order be quashed, thereby directing the respondents to permit the petitioner to join against the post of Constable in JKAP. 3. The petitioner earlier had also filed a writ petition, SWP No.1621/2007, which, later on, was withdrawn on the assurance given by the respondents that his grievance would be redressed. While allowing the petitioner to withdraw the writ petition, this court vide order dated 03.06.2009 granted liberty to him to approach the court again if his grievances would not be redressed. Since the respondents have failed to redress the grievances of the petitioner and have rejected his claim vide the impugned order, the petitioner has approached this court by the medium of instant writ petition. 4. Precisely, the case of the petitioner is that since he was allegedly involved in a criminal case, therefore, the respondents did not issue the formal appointment order in his favour and he was not allowed to join against the said post. 5. Respondents have filed the reply resisting the writ petition. It would be appropriate to reproduce paragraph-3 of the para-wise reply hereunder: “In reply to this para, it is submitted that mere selection does not confer any right to seek appointment as the appointment was subject to clearance of Character/antecedents verification report. 5. Respondents have filed the reply resisting the writ petition. It would be appropriate to reproduce paragraph-3 of the para-wise reply hereunder: “In reply to this para, it is submitted that mere selection does not confer any right to seek appointment as the appointment was subject to clearance of Character/antecedents verification report. As the verification report was reported adverse because of the involvement of the petitioner in a case U/S 376 RPC, he was not permitted to join and formal order of appointment was not issued.” 6. Admittedly, the petitioner was selected, but formal appointment order of appointment was not issued in his favour and he was not permitted to join only on the ground that he was allegedly involved in a criminal case. 7. Now the question for consideration is: whether pendency of a criminal case can be a ground for not allowing the petitioner to join on the post? Keeping in view the facts of the case and in the given circumstance, the answer has to be negative for the following reasons. 8. It is not the case of respondents that the petitioner was involved in any militancy related activity. Only objection raised in the objections is that he was allegedly involved in a criminal case. 9. The petitioner while claiming his appointment against the post in question has placed reliance on a judgment of the trial court dated 29.12.2008, whereby he has been acquitted honorably. It would be appropriate to reproduce last paragraph of the judgment hereunder: “What follows from the above discussion is that the prosecution has failed in connecting the accused with the commission of offence u/s 376/RPC. He is, therefore, acquitted u/s 376/RPC and discharged of his bail and personal bond. The seized property, if any, shall stand destroyed after the period of appeal is over.” 10. Impugned order dated 07.01.2010 was made by the respondents after withdrawal of SWP No. 1621/2007 and on that date the petitioner had already been acquitted by the trial court. This fact has also been recorded in the impugned order, but despite of that the grievances of the petitioner have not been redressed. 11. The Apex Court recently in a judgement, titled as, State of West Bengal & ors. This fact has also been recorded in the impugned order, but despite of that the grievances of the petitioner have not been redressed. 11. The Apex Court recently in a judgement, titled as, State of West Bengal & ors. vs 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. 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.” 12. The Supreme Court in another case, titled as, Commissioner of Police and others vs Sandeep Kumar, reported in (2011) 4 SCC 644 , has 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. 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. 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….” 13. 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. 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.” 14. This Court in Narinder Kumar Sharma v. State and others, reported in 2011 (4) JKJ 176 (HC); Bilal Ahmad Parra vs State and others, reported in 2011 (4) JKJ 601 (HC), and Jahangir Ahmad Khanday vs State & others, SWP No.1811/2011, decided on 31.08.2012, while discussing the issue has laid down the same law. 15. The Apex Court in case, Ram Kumar vs. State of UP and ors., 2012(1) JKJ 113(SC), has held that if the police official is acquitted, his order of discharge or termination is required to be quashed. It would be profitable to reproduce paragraphs 8 & 11 thereof, which read as under: “8. In the facts of the present case, we find that though Criminal Case No. 275 of 2001 under Section 324/323/504 IPC had been registered against the appellant at Jaswant Nagar Police Station, District Etawah, admittedly the appellant had been acquitted by order dated 18.07.2002 by the Additional Chief Judicial Magistrate, Etawah. On a reading of the order dated 18.07.2002 of the Additional Chief Judicial Magistrate would show that the sole witness examined before the Court, PW-1 Mr. Akhilesh Kumar, had deposed before the Court that on 02.12.2000 at 4.00 p.m children were quarrelling and at that time the appellant, Shailendra and Ajay Kumar amongst other neighbours had reached there and someone from the crowd hurled abuses and in the scuffle Akhilesh Kumar got injured when he fell and his head hit a brick platform and that he was not beaten by the accused person by any sharp weapon. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Section 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable. 11. In the absence of any other witness against the appellant, the Additional Chief Judicial Magistrate acquitted the appellant of the charges under Section 323/34/504 IPC. On these facts, it was not at all possible for the appointing authority to take a view that the appellant was not suitable for appointment to the post of a police constable. 11. For the aforesaid reasons, we allow the appeal, set aside the order of the learned Single Judge and the impugned order of the Division Bench and allow the writ petition of the appellant and quash the order dated 08.08.2007 of the Senior Superintendent of Police, Ghaziabad. The appellant will be taken back in service within a period of two months from today but he will not be entitled to any back wages for the period he has remained out of service. There shall be no order as to costs.” 16. 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 Armed Police, this writ petition is allowed and the order impugned is quashed. Respondents are directed to consider the case of the petitioner by issuing formal appointment order in his favour and allow him to join against the post of Constable in JKAP. Let consideration order be passed within a period of two months from the date copy of the order is served upon them. 17. Disposed of along with all connected CMPs.