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Himachal Pradesh High Court · body

2014 DIGILAW 1974 (HP)

Anil Thakur v. State of H. P.

2014-12-22

SURESHWAR THAKUR

body2014
JUDGMENT : Sureshwar Thakur, J. 1. The petitioner applied for the post of Sub Inspector in Himachal Pradesh Police. The said post was to be filled up through the Himachal Pradesh Subordinate Services Selection Board. The petitioner having qualified the written test, hence, he was on 8.5.2008 requested to appear for physical and efficiency test and on his having qualified the aforesaid test, he was asked to appear in the interview to be held on 22.08.2008. On his having successfully passed the viva voce conducted by the Interviewing Board, the result of the interview was declared and published in various newspapers on 29.8.2008. Accordingly, he was directed to appear along with original documents pertaining to recruitment on 16.9.2008. However on 15.11.2008, the petitioner received a memo stating that an FIR had been registered against him which was pending investigation and keeping in view the pendency of the FIR registered against him, he was apprised that his appointment was kept in abeyance. On 24.11.2008, the petitioner represented to the department. On 30.11.20008, on conclusion of the investigation by the Investigating Officer into the offences constituted in the FIR lodged against the petitioner a cancellation/closure report was filed before the Criminal Court of competent jurisdiction. The Criminal Court of competent jurisdiction before whom the closure/cancellation report was filed by the Investigating Officer under orders rendered on 4.4.2009, accepted the cancellation/closure report. However only on 23.6.2009 an offer of appointment was given to the petitioner by the respondents which offer having come to be accepted by the petitioner, the latter was under appointment letter of 24.6.2009, appointed to the post for which he was selected. Thereafter the petitioner was sent for basic training course w.e.f. 18.1.2010. On 13.2.2013 a provisional seniority list was circulated wherein the name of the petitioner was reflected to be occurring at the apposite place, however, in it his date of appointment was proclaimed to be 24.6.2009. The petitioner had made a detailed representation to the Director General of Police and requested him to consider his date of appointment as 12.12.2008 on which date the other candidates selected alongwith him were issued appointment letter qua the post for which they have come to be selected. The petitioner had made a detailed representation to the Director General of Police and requested him to consider his date of appointment as 12.12.2008 on which date the other candidates selected alongwith him were issued appointment letter qua the post for which they have come to be selected. Since, the representation of the petitioner came to be rejected by the respondents, as such, he is aggrieved by the rejection of his representation and is constrained to institute the instant writ petition before this Court. 2. The relief which the petitioner seeks from this Court is of quashing of the order comprised in Annexure P-15 of 18.12.2013 besides he prays that order comprised in Annexure P-5 of 15.11.2008 whereby the petitioner?s appointment was kept in abeyance given the pendency of investigation in an FIR lodged against him be also quashed and set aside and he be declared to have been appointed as Sub Inspector w.e.f. 12.12.2008. 3. The learned Deputy Advocate General appearing for the respondents has vehemently espoused before this Court that the act of the respondents in rejecting the representation of the petitioner herein wherein he had claimed a relief analogous to the one as voiced in the instant writ petition is tenable as the respondents were beset with a tenable constraint of investigation pending against the petitioner in an FIR lodged against him in Police Station Shillai. However, the learned counsel appearing for the petitioner vigorously concerted before this Court that the petitioner on his coming to be selected as Sub Inspector, as such, on his selection, dehors the pendency of investigation into the FIR lodged against him was neither unsuitable nor unfit to be offered and issued an appointment letter along with other candidates contemporaneously selected alongwith him. The learned counsel appearing for the petitioner has relied upon a judgment of the Hon?ble Allahabad High Court reported in Satya Prakash Pandey versus Union of India and others (2010)7 ADJ 297 wherein the Hon?ble Allahabad High Court while considering the impact and import of suppression by the petitioner therein of the fact of pendency of a criminal case against him at the time contemporaneous to his being proposed to be appointed had in the relevant paragraphs No.15 and 16, which are extracted hereinafter emphatically pronounced that the factum of involvement of a selected candidate in a scuffle which occurred on the spur of moment and which sequeled the lodging of an FIR would not render the selected candidate to be construable to be either not bearing a good moral character or his, hence, being debarred to assert claim for appointment or for continuation in service, if appointed. The factum of registration of an FIR against a selected candidate and its constituting a bar against his being appointed in service or continuing in service would arise or erupt only in the event of his being involved in an offence involving moral turpitude, involvement wherein would render his character to be construable to be not above board hence rendering him unfit for either being appointed or continuing in service. Relevant paragraphs No.15 and 16 of the judgment supra read as under:- “15. Apart from the police report from the Inspector-In-Charge of the police station Unchahar, Raibareli, the character certificate at the level of the Superintendent of Police, Raibareli has also been obtained which shows that character of the petitioner is satisfactory and there is no adverse material against him. A similar character certificate has been issued by the Gram Pradhan of Itaura Bujurg, Raibareli. Learned Counsel for the petitioner has argued that the sole purpose of police verification is that whether the candidate is having good moral character and is involved in any criminal case of such a nature which can hold him to be involved moral turpitude. The offices of the Government department should not be held by the persons who cannot have the confidence of the people. His character should be above board. At the same time, it is also to be seen that stereotype classifications are not made. The offices of the Government department should not be held by the persons who cannot have the confidence of the people. His character should be above board. At the same time, it is also to be seen that stereotype classifications are not made. For instance, if a person is involved in a scuffle which occurred due to sudden cycle accident on the road or is involved in some kind of 'marpeet? during heated exchange of words on the spurt of the moment. Definitely, these are instances which may result into an FIR being lodged and a case being conducted but eruption of scuffle on the spur of the moment will not necessarily mean that a candidate belongs to a group of criminals. It may also not necessarily mean that the petitioner does not have a good moral character. 16. In the world of today when job opportunities are shrinking, a young lad of twenty years can hardly be expected to go an extra mile to inform the authorities about a case which can get him rejected at the threshold. If a specific question is not asked he cannot be expected to analyze the query by himself and prepare the answer which is prejudicial to his interest. Social and economic pressure on a young boy is today?s society is a reality. The moral values which are otherwise vanishing cannot be stretched beyond a limit. The virtues and values in a candidate should be decided on a practical apparatus. Realities of life cannot be wished away. In the present case, when the petitioner was neither convicted nor fined nor bound down nor prosecuted nor debarred from appearing in any examination, his answer to clause 12 as 'No? can be read as near truth. The Inspector in-charge Police Station-Unchahar as well as the Superintendent of Police of District have verified his character as being good, the certificate of good moral character has been issued by the Village Pradhan. On inquiry no adverse material has come out against him nor any complaint was made to the police by any of the villagers.” 4. The Inspector in-charge Police Station-Unchahar as well as the Superintendent of Police of District have verified his character as being good, the certificate of good moral character has been issued by the Village Pradhan. On inquiry no adverse material has come out against him nor any complaint was made to the police by any of the villagers.” 4. Moreover in a judgment reported in 1993 Supp (3) SCC 49 in case titled as Jagtar Singh versus Director, Central Bureau of Investigation and others, the relevant paragraphs 3 and 4 whereof are extracted hereinafter, bring to the fore the factum of even the Hon?ble Apex Court on the strength of occurrence of a singular previous incident involving the appellant therein had held that, hence, any conclusion could not be drawn that the selected candidate or the aspirant was unfit for appointment in public service. Even though when there is reticence therein qua the magnitude or enormity of the incident involving him, it appears that the incident involving the appellant therein was a trifling incident not hinging upon immorality nor tantamounting to commission of an offence involving moral turpitude. Obviously, then it did not impinge upon the moral character of the appellant therein. Even though when there is reticence therein qua the magnitude or enormity of the incident involving him, it appears that the incident involving the appellant therein was a trifling incident not hinging upon immorality nor tantamounting to commission of an offence involving moral turpitude. Obviously, then it did not impinge upon the moral character of the appellant therein. If the above deduction is arriveable qua the fact of the Apex Court having not construed a trivial incident or a trifling incident not proclaiming the commission of an offence constituting moral depravity or tantamounting to an offence involving moral turpitude, to be not rendering the appellant therein to be unfit for public employment , as such, while applying the ratio of the above judgment and for the reasons recorded hereinafter this Court would be prodded to form an inference that the factum of involvement of the petitioner herein in offences constituted under Sections 147, 148, 451, 506 (II), 379, IPC does not obviously proclaim the factum of his involvement in offences involving moral turpitude, nor also hence the provisions aforesaid constitute any offence, construable to be pronouncing upon the moral depravity of the petitioner, rather it being a trifling incident which occurred on the spur of the moment and which ultimately sequelled the institution of a closure report by the Investigating Officer before the criminal Court of Competent jurisdiction which ultimately came to be accepted, as such, its occurrence and pendency at the stage of selection of the petitioner herein for appointment to the post of Sub Inspector ought not to have acted as a deterrent against the petitioner then being offered appointment to the post against which he had come to be selected. Relevant paragraphs No.3 and 4 of the judgment supra read as under:- “3. Before us an affidavit has been filed by Mr. Dandapani, Secretary to the Government of India in the Ministry of Personnel and Training, claiming privilege in respect of the documents which contain reasons to show that the appellant is not a suitable person for appointment to the post of Senior Public Prosecutor. The documents are in a sealed cover. In para 4 of the affidavit it is stated as under: “However, I have no objection to the aforesaid records being produced for perusal by the Hon?ble Court for satisfying itself about the bona fides and genuineness of the privilege.” 4. Mr. The documents are in a sealed cover. In para 4 of the affidavit it is stated as under: “However, I have no objection to the aforesaid records being produced for perusal by the Hon?ble Court for satisfying itself about the bona fides and genuineness of the privilege.” 4. Mr. D.P. Gupta, learned Solicitor General has filed copies of the documents for our consideration. It is not disputed that the District Magistrate, Nainital by his letter dated September 20, 1984 reported that there was no adverse entry against the appellant in the records of the Chowki Kathgodam which might affect his appointment as a Government servant. The District Magistrate?s letter was based on the verification done by incharge Chowki Kathgodam, police station Haldwani, Senior Sub Inspector Local Intelligence Unit, Nainital and finally by the Senior Superintendent of Police, Nainital who appended the endorsement “character verified and found correct”. Not satisfied with the initial verification in favour of the appellant further investigations were made regarding his character and antecedents and it was finally concluded that the appellant was not a suitable person to be appointed to the Government service. It is not necessary for us to go into the question as to whether the claim of privilege by the respondents is justified or not. We also do not wish to go into the details of the investigations made regarding the antecedents and character of the appellant. We have carefully examined the material on the basis of which the respondents have come to the conclusion that the appellant is not suitable for appointment to the post of Senior Public Prosecutor in the Central Bureau of Investigation and we are of the view that the respondents are not justified in reaching a conclusion adverse to the appellant. NO reasonable person, on the basis of the material placed before us, can come to the conclusion that the appellant?s antecedents and character are such that he is unfit to be appointed to the post of Senior Public Prosecutor. There has been total lack of application of mind on the part of the respondents. Only on the basis of surmises and conjectures arising out of a single incident which happened in the year 1983 it has been concluded that the appellant is not a desirable person to be appointed to the Government Service. There has been total lack of application of mind on the part of the respondents. Only on the basis of surmises and conjectures arising out of a single incident which happened in the year 1983 it has been concluded that the appellant is not a desirable person to be appointed to the Government Service. We are of the view that the appellant has been unjustifiably denied his right to be appointed to the post to which he was selected and recommended by the Union Public Service Commission.” 5. In another judgment reported in case titled as Commissioner of Police and others versus Sandeep Kumar, (2011) 4 SCC 644 the Hon?ble Apex Court while being seized of the factum of the respondent therein having omitted to disclose or suppressed the factum of his involvement in a criminal case, had given the fact that at the time of the commission of the offence, the respondent was 24 years of age at which age youth had a tendency to commit indiscretions. Consequently, the suppression or non-disclosure by the respondent therein of the fact of his involvement in a criminal case at the time of his filling up the requisite/apposite column in the verification form was construed not to be militating against his rights to be retained in public service. 6. Besides in a judgment of the Hon?ble Delhi High Court in W.P. (C) No.8731 of 2011, Devender Kumar Yadav versus Govt. of NCT of Delhi and another , rendered on 30.03.2012, the Hon?ble Delhi High Court while being seized of the validity of the de-recommendation of the petitioner therein for employment in Delhi Police by the Screening Committee on the score of his being unsuitable and unfit on the strength of his having two criminal cases to his discredit, which de-recommendation, however, was upheld by the Central Administrative Tribunal was constrained to render a judgment reversing the view pronounced by the Central Administrative Tribunal in O.A. No. 97 of 2010. On an ad nauseam and in extenso consideration of the law on the subject relating to the factum whether the involvement of a selected candidate in a criminal case renders him unfit for appointment and if appointed, renders him unfit to continue in service, had in the concluding paragraphs while denouncing the de-recommendation of the petitioner by the Screening Committee, inasmuch as his being unsuitable for employment on the score of his having two criminal cases to his discredit held that the opinion formed by the screening committee qua unsuitability of the petitioner for employment in public service was surmisal as it had no material before it which could germinate an inference that the petitioner has actually committed the offence for which he was prosecuted, rather had proceeded to also held that there is a presumption of innocence attached to the accused in criminal cases and the onus was on the prosecution to prove the charges leveled against him. The essence thereof is that the Hon?ble Delhi High Court had in the judgment supra, relevant paragraphs whereof are extracted hereinafter, rendered emphatic, clear and lucid findings that the screening committee which is beset with or seized of the factum of pendency of a criminal case/cases against the candidate proposed to be appointed or selected in public service and whose appointment or continuation in service is, hence, beset with peril ought not to de-recommend the appointment of the selected candidate in public service or qua his continuing in public service unless a preceding independent inquiry has unearthed material qua the truthfulness or otherwise of the allegations and such findings and conclusions are placed before the relevant/apposite committee and which committee dispassionately, hence on a thorough application of mind to such material renders a vindicable finding qua the suitability or otherwise of the selected candidate for appointment and if appointed, his continuation in public service. Relevant paragraphs of the judgment supra read as under:- “………….We cannot presume that a witness, who does not support the case of the prosecution is necessarily doing so in collusion with the accused, in order to save him from punishment, despite his actually having committed the offence, with the commission of which he is charged. It may be true in some cases, but may not necessarily be so in each case. It may be true in some cases, but may not necessarily be so in each case. What has to be seen in such cases is as to whether the material witnesses were examined or not. If they are examined, but do not support the prosecution and consequently it is held that the charge against the accused does not stand proved, that would not be a case of technical acquittal. We would like to note here that no independent inquiry was held by the respondents to verify the truthfulness or otherwise of the allegations which were made against the petitioner in the FIRs that were registered against him. The Screening Committee which considered the case of the petitioner had no material before it which could give rise to an inference that the petitioner had actually committed the offences for which he had been prosecuted. As noted earlier, there is a presumption of innocence attached to an accused in a criminal case and the onus is on the prosecution to prove the charges leveled against him. Acquittal of the accused, after trial, only strengthens and reinforces the statutory presumption, which is otherwise available to him. We, therefore, hold that the view taken by the Screening Committee was not based on some legally admissible material and therefore, cannot be sustained in law. The case of the petitioner before us is squarely covered by the decisions of the Supreme Court in Sandeep Kumar (Supra) and Ram Kumar (supra as well as by the decision of this Court in Robin Singh (supra), Naveen Kumar Mandiwaandi (supra), Dinesh Kumar (supra), Omveer Yadav (Supra), Jai Prakash (supra) and Daulat Ram (supra). In face the case of the petitioner, before us stands on a much stronger footing than the cases of Sandeep Kumar (supra), Ram Kumar (supra), Robin Singh (supra) wherein the persons concerned had concealed their prosecution. His case stands on a better footing than the case of Subhash Chand, who was prosecuted under Section 307 of IPC and Omveer Yadav, who was alleged to have committed offence under Section 392 of IPC. For the reasons stated hereinabove, the impugned order dated 31.5.2011 passed by the Tribunal cannot be sustained and the same is accordingly set aside. The respondent is directed to issue an appointment letter to the petitioner within 08 weeks subject to his otherwise being fit and completing all necessary formalities and requirements. For the reasons stated hereinabove, the impugned order dated 31.5.2011 passed by the Tribunal cannot be sustained and the same is accordingly set aside. The respondent is directed to issue an appointment letter to the petitioner within 08 weeks subject to his otherwise being fit and completing all necessary formalities and requirements. The petitioner would be entitled to seniority as well as pay and allowances from the date of he joins the service.” 7. The petitioner was selected for appointment in the police department. The FIR which was lodged against him was under investigation by an official of the police department. The Investigating Officer on conducting and carrying out the investigation and on his having completed the same, his having formed an opinion qua no offence having been committed by the petitioner herein sequelled the institution of a cancellation report at his instance before the Criminal Court of competent jurisdiction which came to be accepted and on whose acceptance, the respondents then came to construe the petitioner suitable for appointment, is the factum probandum which does devolve upon especially given the fact that the offence constituted against the petitioner herein in the FIR alleged against him is not an offence involving moral turpitude rather is a trivial and trifling incident, the legitimacy or vindicability of the act of the respondents to on his selection construe him unfit or unsuitable for his being appointed then. The unvindicability of the act of the respondents in, given the pendency of a criminal case against the petitioner herein kept his appointment in abeyance is stepped up and lent a fillip by the factum of a vivid pronouncement in the FIR of the offences recorded therein having occurred on 24.8.2008 qua which an FIR was belatedly lodged on 30.8.2008 which factum of procrastinated lodging of the FIR before the police station concerned itself per se is communicative of and articulates the factum of the allegations comprised in the FIR lodged against the petitioner being vitiated with the vice of concoction and premeditation, arising from imprompt lodging of the FIR which vitiatory factor in lending, hence, prevarication to the allegations comprised in it against the petitioner herein ought to have immediately seized the attention of the respondents in concluding qua the factum of truthfulness or otherwise of the allegations recorded therein. Moreover, when the said elicitation qua the factum of the truthfulness or veracity or otherwise of the allegations against the petitioner herein in the FIR lodged against him could have been garnered or gathered by the respondents from the Investigating Officer who was an official subordinate to the respondents. However, there is no record portraying that the respondents while having inaptly, at the stage of the lodging of the FIR and its portraying the purported commission of offences against the petitioner herein which may have occurred at the spur of moment or which were trivial acts of youthful indiscretion and were not offences involving moral turpitude which rather would render the petitioner unfit and unsuitable for his being offered appointment against the post for which he was selected, even when there was no material on record gathered by them or mobilised by them from the Investigating Officer conveying the truthfulness or otherwise of the allegations comprised in the FIR lodged against the petitioner, concluded that given the mere factum of pendency of an FIR against the petitioner was severe constraint for issuing appointment letter to him in quick succession to his selection, is rather construable to by an act ridden with thorough non application of mind or a severely and grossly unvindicable act anvilled upon no material. Therefore, for non existence of any material on record for fostering succor to a conclusion that the respondents had undertaken a thorough and threadbare exercise to verify the correctness, truthfulness, veracity or otherwise of the allegations constituted in the FIR lodged againsg the petitioner. In the absence, hence, of any such exercise having been undertaken by the respondents preceding to their act of having kept the petitioner?s appointment in abeyance does constitute infraction of the rule enjoined upon the respondents by the judgment of the Hon?ble Delhi High Court in Devender Kumar Yadav?s case (supra) mandating therein that prior to construing a selected candidate unfit for public employment the Screening Committee on available material on record ought for recorded reasons conclude qua the truthfulness of the allegations comprised in the FIR lodged against a selected candidate then proceeed to render vindicable conclusion qua his hence being barred from seeking public employment. For infraction thereof, rather gives leverage to the inference that the respondents had unilaterally concluded without any material on record qua the truthfulness of the offences constituted in the FIR lodged against the petitioner, such unilateralness not hinged upon nor anchored upon any material necessitates deprecation. Besides, the omission and apathy on the part of the respondents to elicit or garner necessary facts at the earliest or with promptitude from the Investigating Officer qua the truthfulness of the allegations comprised in FIR qua the petitioner herein also rather portrays that it had acted in a perfunctory , short shift and mechanical manner even when prima facie given the procrastinated delay in the lodging of the FIR qua the incident involving the petitioner herein would then have prima facie rendered the allegations therein to be deprived of their veracity. For reiteration such premature/inchoate determination by the respondents without sufficient material on record qua the guilt of the petitioner, merely on the score of an FIR having been lodged against him is also a determination in derogation of the cardinal principle of criminal jurisprudence proclaiming that a man cannot be adjudged guilty unless is pronounced so by a Court of law. In aftermath, such an inchoate determination not founded upon any material is in gross detraction of the verdict of the Hon?ble Courts referred to hereinabove. Besides, the respondents appear to have also perpetrated a wrong upon the petitioner in denying to him appointment immediately on his coming to be selected by them. Preeminently, the factum of the pendnecy of an FIR against the petitioner, more so for a trifling or a trivial incident herein even when rather prima facie given the procrastinated delay in the lodging of the FIR, the allegations therein per se were construable to be premeditated or concocted, as such, bereft of veracity, the respondents having kept the appointment of the petitioner in abeyance, in face thereof have infringed a valuable right of the petitioner for his being appointed in quick succession to his selection contemporaneous with other selected candidates. Aggravated strength and muscle to the untenability of the act of the respondent in omitting to give appointment to the petitioner contemporaneous to his selection merely for pendency of an FIR against him which on investigation constrained the Investigating Officer to file a closure/cancellation report before the Criminal Court of competent jurisdiction which came to be accepted per se bespeaks of the falsity of the allegations comprised in the FIR. In face thereof, when the allegations comprised in the FIR lodged against the petitioner though sequelled the filing of a cancellation report and its acceptance by the Criminal Court of competent jurisdiction subsequent to his selection and while till then his appointment was kept in abeyance, the Court adjudges that the factum of his being hence exonerated of the allegations comprised in the FIR ought to for reasons detailed threadbare hereinabove relate back to the date of his selection. If so, the act of the respondent holding back of his appointment letter is construed to be untenable. 8. For the foregoing reasons, the petition is allowed and impugned Annexure P-5 of 15.11.2008 and Annexure P-15 of 18.12.2013 are quashed and set aside. The respondents are directed to consider the petitioner for his being appointed to the post of Sub Inspector from the date when the other persons of his Batch were appointed inasmuch as on 12.12.2008 with all consequential benefits. 9. All the pending applications, if any, also stands disposed of.