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2012 DIGILAW 803 (JK)

Naranjan Singh v. State & Ors.

2012-12-27

MANSOOR AHMAD MIR

body2012
1. I have heard learned counsel for the parties and considered the matter. 2. I have already dealt with a similar controversy at Srinagar in a writ petition titled Jahangir Ahmad Khanday v. State of J&K and others, 2012 (4) JKJ HC-596 being writ petition SWP No. 1811/2011, by a reasoned judgment dated 31.08.2012, followed by another judgement at Jammu in case titled Zulfakar Ahmad v. State and others (SWP No. 232/2010), Decided on 04.10.2012, holding that the writ petitions merit acceptance. 3. The brief facts of the case at hand are 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 Udhampur and Reasi. 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. 49 in the select list. 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. The reason of not allowing the petitioner to join is the receipt of adverse verification report, which revealed the petitioner's involvement in FIR No. 43/2006 at Police Station, Kud, under section 8/20 NDPS Act. 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, Udhampur 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. 5. Writ petition came up for consideration from time to time and in terms of order dated 01.02.2012, respondents were directed to consider and reexamine the claim of the petitioner for appointment in view of his acquittal in the criminal proceedings. 6. 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. 7. Mr. 6. 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. 7. Mr. S. K. Shukla, learned appearing counsel for the petitioner has placed on record the order passed by the Learned Judicial Magistrate, Udhampur, whereby the petitioner stands acquitted in the FIR, which is subject matter of the whole controversy. It is also submitted at the Bar by learned counsel for the petitioner that during the pendency of the writ petition, the Director General of Police has passed an order bearing No. 3017 of 2012 dated 03.09.2012. whereby the selection of the petitioner has been cancelled. 8. The core question involved in the writ petition is as to whether the respondents can pass the order aforementioned during the pendency of the lis and 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 judgment 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. 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. 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. 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. 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 325/34IPC. 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. Law on the point is no more res integra. Reference in this behalf may be made to Ram Kumar v. State of UP and ors., reported as 2012(1) JKJ 113 [SC], wherein the Supreme Court has held that if the police official is acquitted, his order of discharge or termination is required to be quashed. 13. Law on the point is no more res integra. Reference in this behalf may be made to Ram Kumar v. State of UP and ors., reported as 2012(1) JKJ 113 [SC], wherein the Supreme Court 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 323/34/504IPC. 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." 14. 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." 14. In view of the facts of the present case narrated above and in light of the law laid down in the judgments supra, Order bearing No. 3017 of 2012 dated 03.09.2012, passed by the Director General of Police does not sustain. Accordingly, it is quashed, with direction to the respondents to consider the case of the petitioner by issuing appointment order in his favour and allow him to join against the aforesaid post of Constable on the analogy of candidates appointed on similar post pursuant to the said selection process. The consideration order shall be passed within a period two weeks, which period shall begin from the date copy of this order is made available to the respondents. 15. Disposed of along with all connected CMPs.