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2013 DIGILAW 767 (JK)

Younis Qadir Mir v. State Of J&K

2013-12-30

JANAK RAJ KOTWAL

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1. Petitioner has been selected as Water Carrier by the Police Central Recruitment Board J&K for IRP 12th Bn. The select list was published in a newspaper on 29.4.2007. However, his formal appointment order was not issued for the reason that CID report about his character and antecedent verification was not received. 2. Petitioner, therefore, filed this writ petition seeking following relief: a) Mandamus commanding the respondents to allow the petitioner to join the post of Water Carrier in 12th Bn. IRP irrespective of receipt or otherwise of his character antecedent verification report. b) Mandamus commanding the respondents to draw the pay/emoluments of the petitioner for the post of Water Carrier w.e.f. the month of May, 2007 and fix his seniority accordingly. c) Any other writ, order or direction, as this Hon'ble Court may deem fit. 3. Respondents have opposed the writ petition. In their reply, which has been treated as counter to the writ petition, respondents, while admitting selection of the petitioner, have pleaded that after selection of the petitioner his verification roll was submitted to the CID Headquarters J&K among other recruit Constables/followers for verification of character and antecedents. The verification report was not received till the time of filing of this petition. However, the report furnished by the CID, pursuant to a direction issued by this Court showed that the petitioner was facing trial in a criminal case arising in FIR No. 134/2004 registered against him at Police Station Nishat for commission of offence under Section 7/27 Arms Act. The appointment order, therefore, could not be issued. Contextually, in para (i) of the preliminary objections it is urged on behalf of the respondents that "petitioner cannot claim formal appointment order unless and until he gets himself cleared from the criminal case pending against him. On this ground, the writ petition merits dismissal in limini." It is further urged in para 7/8 that "in view of above, it is not desirable to issue formal appointment order in favour of petitioner until he is acquitted of the charges in respect of which he is facing trial before the Hon'ble trial court." 4. Petitioner in a rejoinder affidavit, however, has stated, while producing copy of the judgment dated 31.03.2008 rendered by Additional Sessions Judge, Srinagar, that he has been acquitted of the charge arising in FIR No.134/2007 of Police Station Nishat. 5. Petitioner in a rejoinder affidavit, however, has stated, while producing copy of the judgment dated 31.03.2008 rendered by Additional Sessions Judge, Srinagar, that he has been acquitted of the charge arising in FIR No.134/2007 of Police Station Nishat. 5. I may restate precisely the undisputed fact situation arising thus: Petitioner has been selected for his appointment as Water Carrier in IRP 12th Bn. His appointment order, however, was not issued because he was facing trial for offence under section 7/27 Arms Act arising in FIR No.134/2004 of P/S Nishat. He has been acquitted of the offence vide judgment dated 31.03.2008 rendered by the trial court it is also undisputed that the appointment order has not been issued even after his acquittal. It is not stated on behalf of the respondents that the judgment whereby petitioner has been acquitted has been challenged in appeal. 6. Mr. Shakir Haqani, learned counsel appearing on behalf of the petitioner, submitted that with his selection in the regular process petitioner has acquired an indefeasible right of appointment and respondents ought to have issued formal appointment order. Mr. Shakir would say that respondents were not justified in not issuing the appointment order of the petitioner for mere pendency of the trial against him as the petitioner was not held guilty and in any case there is no justification in not issuing the order even after the acquittal of the petitioner. He submitted further that question of verification of the character and antecedents of the petitioner should not have been raised because since long petitioners services are being availed by the police department as Special Police Officer and appointment order should have been issued, may be, subject to verification. It is urged in this context on behalf of the petitioner that some years back respondents had created temporary posts/positions of Special Police Officers in order to combat militancy and secure counter insurgency plan. For this purpose respondents had engaged mostly surrendered militants/ex-militants on the said posts/positions of Special Police Officers. The personnel engaged on the said posts/positions were utilized by the respondents for obtaining information about the militancy related situations and to find out the militants. It was in that connection, services of the petitioner have been utilized by the respondents for last several years as Special Police Officer. Mr. The personnel engaged on the said posts/positions were utilized by the respondents for obtaining information about the militancy related situations and to find out the militants. It was in that connection, services of the petitioner have been utilized by the respondents for last several years as Special Police Officer. Mr. Shakir, thus, concluded his submissions emphasizing that once the petitioner has been acquitted of the charge, which had come in the way of issuing formal order of his appointment the formal appointment order is required to be issued, refusal whereof tantamount violation of fundamental right of the petitioner as guaranteed under Article 14 and 16 of the Constitution of India, particularly when formal orders as regards number of other similarly situated persons have been issued. Mr. Shakir relied upon Commissioner of Police v. Sandeep Kumar, (2011) 4 SCC 644 . 7. Per contra, Mr. R. A. Khan, learned AAG would say vehemently that mere selection does not create a right to appointment and in no case an enforceable right. Such selection is provisional only and is subject to verification of character and antecedents of a candidate. Mr. Khan submitted that appointment order could not have been issued as a criminal case was pending against the petitioner. Mr. Khan even took a stand that appointment order cannot be issued even if the petitioner has been acquitted because it would be against general security interest and discipline of the force if a person involved in commission of an offence under Arms Act is taken on regular cadre of Police Force. While not disputing that the services of the petitioner had been utilised as a Special Police Officer, Mr. Khan submitted that appointment to a cadre of service has to follow procedure prescribed under rules .and character verification is sine quo non for such appointment, which can in no case be dispensed with Mr. Khan relied upon a Bench decision of this court in Fayaz Ahmad Panchoo v. State of Jammu and Kashmir and Ors. 2003 (4) JKJ [HC] 765 : 2003 (1) SLJ 45 8. The first important question thus arising from rival submissions would be; whether selection of a candidate for a post creates an indefeasible right of appointment in his favour? 9. Reply to this question is discernible from more than one decisions of the Supreme Court. 2003 (4) JKJ [HC] 765 : 2003 (1) SLJ 45 8. The first important question thus arising from rival submissions would be; whether selection of a candidate for a post creates an indefeasible right of appointment in his favour? 9. Reply to this question is discernible from more than one decisions of the Supreme Court. In Shankarsan Dass v. Union of India, AIR 1991 SC 1612 , Their Lordships of the Constitution Bench of the Supreme Court have laid down: "It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates is found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. 10. In a similar fact situation, a Division Bench of this court in Fayaz Ahmad Panchoo v. State of Jammu and Kashmir and Ors. 2003 (4) JKJ [HC] 765 : 2003 (1) SLJ 45 (supra) has held: "14. Thus, mere inclusion of the name in select list is not sufficient. There must be the communication of order of appointment of the person who is being appointed, The gap between the selection and the communication is required to be bridged by the satisfaction of the appointing authority on the aspect of character and antecedents, and, if that gap is not bridged it is not possible to say that on mere inclusion of the name in the select list, the candidate has a right to get an appointment." 11. In view of the law laid by the Supreme Court in Shankarsan Das, the contention urged on behalf of the petitioner that selection of the petitioner has created indefensible right of appointment in his favour, does not survive. It would not be correct to say that mere selection of a candidate in a selection process creates a right in favour of that candidate to be appointed to the post for which the selection has been made. It would not be correct to say that mere selection of a candidate in a selection process creates a right in favour of that candidate to be appointed to the post for which the selection has been made. The correct legal position is that the gap between the select list and the appointment order is required to be bridged by that important link called verification of and satisfaction of the Appointing Authority about the character and antecedents of the selected candidate to determine the suitability of the candidate for the post for which the selection has been made. Their Lordships in Shankarsan Das (supra) have also observed: ".... The final selection is subject to satisfactory report on the character, antecedent and Suitability of the candidates. We, therefore, reject the claim that the appellant has acquired a right to be appointed against the vacancy arising later on the basis of any of the rules." 12. Rule 17 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, which apply to all government servants, provides: 17. Qualifications.- No person shall be eligible for appointment to any service by direct recruitment, unless- (a) XX XXXX (b) XX XXXX (c) he satisfies the appointing authority that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service; and (d) he satisfies the appointing authority that his character and antecedents are such as to qualify him for such service. 13. Verification of character and antecedents of a candidate assumes even more importance when appointment is to police service. Besides Rule 17(supra), which applies to all government servants, selection and appointment to Police service also attracts the Rules framed under Jammu and Kashmir Police Act. Under Rule 179 of these Rules, duty is cast upon the appointing authority to be more careful at the time of recruitment and to see that a person who is appearing as a candidate and who is selected, is not an element which can be said to be undesirable for the police force. Rule 181 states that recruits should be of good character and great care should be taken in selecting man of a type suitable for police service from candidates presenting themselves for enrolment. 14. Rule 181 states that recruits should be of good character and great care should be taken in selecting man of a type suitable for police service from candidates presenting themselves for enrolment. 14. To state precisely, the gap between selection and appointment of a candidate to any Government service in general and to police service in particular is to be bridged by the satisfaction of the appointing authority that the character and antecedents of a candidate are such as to qualify him for such service and that the person going to be appointed is not an undesirable element for the service. It is to fulfil this requirement under service/recruitment rules that a report about character and antecedents of a candidate is sought from agencies like CID of the State. 15. Having stated and underlined the importance of, verification of the character and antecedents of a candidate before appointing him to Government service in particular and police force in particular, the next question arising would be; whether acquittal of a selected candidate from a criminal charge, which he had been facing at the time of or prior to the selection would be a sufficient ground for issuing appointment order in his favour? 16. Similar issue arose before the Supreme Court in Delhi Administration and others v. Sushil Kumar, (1996) 11 SCC 605 . In that case a candidate was selected for appointment as constable in Delhi Police in a regular selection process. However, he was not appointed because on verification of his character and antecedents appointing authority did not find him fit and desirable for appointment to police service. The Central Administrative Tribunal allowed the application filed by the candidate on the ground that since the candidate had been discharged and/or acquitted, he cannot be denied the right of appointment to the post under the State. Order of the Tribunal came to be challenged in the Supreme Court. Their Lordships of the Supreme Court have held that: "The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 1989-90 with Roll No. 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated December 18, 1990 culminating in cancellation of his provisional selection he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under Section 304 IPC, under Section 324 read with 34 IPC and under Section 394 IPC, he cannot be denied the right of appointment to the post under the State. The question is: whether the view taken by the Tribunal is correct in law? 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 physically found 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 forces 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 acquitted 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 him not desirable to appoint him to the service." 17. Question, thus, arising can no longer be said to be res integra in face of the law declared by the Supreme Court. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focussed this aspect and found him not desirable to appoint him to the service." 17. Question, thus, arising can no longer be said to be res integra in face of the law declared by the Supreme Court. Acquittal/discharge in a criminal case does not in itself conclude the issue as regards the character and antecedents of a selected candidate for his appointment to Government service. The candidate still has to satisfy the appointing authority and the `appointing authority must be satisfied that there is no nexus between the charges for which he had been tried and the nature of service to which the appointment is to be made. The authority, among other, will have to take into the consideration the nature of the accusation against the candidate, the nature of evidence collected during investigation and the circumstances and the reasons leading to his discharge or acquittal at the trial. The appointing authority before issuing appointment order, in nutshell will have to arrive at a positive satisfaction about the character and antecedents of the candidate and also about the desirability of inducting him to Government service in general and police force in particular. Necessary corollary would be that the appointing authority must be satisfied that the candidate will not be an undesirable element for the service. Duty is cast upon and power is vested in the appointing authority to arrive at such satisfaction. Such duty and power, however, cannot be enforced by any kind of writ or direction of the court/Nonetheless, It can be said that the appointing authority must discharge this duty in .time, without unnecessary delay and judiciously. Such decision has to be fair and bona fide and not arbitrary or mala fide. 18. Authority in Sandeep Kumar's case (supra) relied upon by the learned counsel for the petitioner would not apply in this case because it pertains to a different fact situation and does not cover the law point as involved in this case. Such decision has to be fair and bona fide and not arbitrary or mala fide. 18. Authority in Sandeep Kumar's case (supra) relied upon by the learned counsel for the petitioner would not apply in this case because it pertains to a different fact situation and does not cover the law point as involved in this case. In that case the candidate, while filling the application form had not disclosed the factum of his having been involved in a criminal case under section 325/34 RPC being FIR No. 362 in which he along with his family members were acquitted on the basis of a compromise, and the Supreme Court has condoned the act taking the view that young people often commit such indiscretions and the approach should be to condone them. 19. For all what has been said and discussed above, this writ petition is liable to be dismissed and is accordingly dismissed. 20. Before parting with, it requires to be noticed that from the counter filed on behalf of the respondents it is evident that the appointing authority, due to pendency of criminal case against the petitioner, had not taken any decision as regards his character and antecedents for issuing the appointment order. Stand taken in the respondents' reply to this petition is that it was not desirable to issue formal appointment order in favour of petitioner until he is acquitted of the charges in respect of which he is facing trial before the Hon'ble trial court. This court at no time has been informed about any such decision having been taken even after his acquittal. It is thus made clear that since it is the duty of the appointing authority to take such decision, the result of this writ petition will not came in the way of the appointing authority in taking any decision in the matter.