Bashir Ahmad Chechi v. State of Jammu and Kashmir through Commissioner/Secretary
2016-10-17
N.PAUL VASANTHAKUMAR, TASHI RABSTAN
body2016
DigiLaw.ai
Judgment N. Paul Vasanthakumar, C.J.—This appeal is filed against the order made in SWP No. 1814/2012 dated 14.11.2014 wherein the appellant has prayed to quash the order dated 07.07.2012,’ cancelling the appointment of the appellant as Police Constable in J&K Police on the ground that during the process of verification of his character and antecedents it was found that he was a militant of Hizbul Mujahideen outfit and surrendered before Superintendent of Police Kupwara along with arms and ammunition. The Writ Court considered the matter on merits and dismissed the writ petition on the ground that character antecedents for selection to the post of Police. Constable should be a prime importance. Against this order this appeal is preferred. 2. The case of the appellant before the Writ Court was that he was appointed as SPO by Superintendent of Police Kupwara vide order dated 13.09.2005 on a consolidated pay of Rs. 1500/- per month and assigned Belt No. 521. As he was residing in District Kupwara, which place remained heavily infested with militant activities, in order to save his life he associated himself with the militants for saving himself and his family from any untoward incident. According to the appellant, in the year 2003 the Government initiated the policy of rehabilitation of surrendered militants consequent to which the appellant surrendered before the District Superintendent. of Police, Kupwara and thereafter he was engaged as SPO in the. Special Operation Group. According to him, after his surrender he has not been found involved in any kind of subversive activities. The Inspector General of Police, Kashmir Zone, recommended his case for absorption as Constable in Executive Police vide his communication dated 17.10.2011 based on which sanction was also accorded on 19.12.2011 subject to his fines and clearance from CID headquarters. The Director General of Police by irnpugned order dated 07.07.2012 cancelled the approval accorded to the appointment of the appellant as Constable by stating the reason that after verification of character and antecedents of the appellant it was found that he was a surrendered militant as per the report of the Superintendent of Police dated 16.03.2012 addressed to the Inspector General of Police, CID, J&K. It was stated .in the report that the appellant was a militant of HM outfit and in the year 2003 he surrendered before the District Superintendent of Police along with arms and ammunition. 3.
3. The contention of the appellant is that he was compelled to join the militant camps and due to rehabilitation policy announced by the Government he surrendered in the year 2003 and he having been engaged in the Special Operation Group after his surrender, the respondents are estopped from verifying his antecedents further and the order passed cancelling his appointment as Constable is liable to be set aside. 4. We have perused the grounds raised in the L.P appeal. It is an admitted fact that appellant joined the militant ranks in the year 2000 and he is a surrendered militant. The rehabilitation policy announced by the Government through Government Order No. 55-Home of 2004 dated 31.01.2004 nowhere contemplates appointment of surrendered militants in police service or in government service. In the absence of any such policy being framed by the Government, it is no open to the appellant to contend that without verifying his character antecedents he should be appointed as Police Constable. 5. Rule 185 of the Police Rules 1960 deals with verification of character of selected candidates and the same reads us under:— “185. Recruitments-verification of character of (1) The character and suitability for enrolment of every recruit shall be ascertained by a reference to the Lambardar of the village or Ward Officer of the Town of which the recruit is a resident. A second slip may also be sent to the Finger Print• Bureau in order to establish his freedom or otherwise from conviction. Such Lambardar or Ward officer shall if the recruit is of good character, furnish a certificate to that effect in Form 27 which shall be verified and attested by the Sub-Inspector Incharge of the local Police Station. Recruits shall be provisionally enrolled pending result of the reference.” 6. A perusal of the aforesaid Rule along with Rule 179 shows that the character and suitability of enrolment of every recruit must be ascertained by a reference to the Lambardar of the village or Ward Officer of the Town of which the recruit is a resident. A reference may also be sent to the Finger Print Bureau in order to establish that he is free from any stigma or otherwise from conviction.
A reference may also be sent to the Finger Print Bureau in order to establish that he is free from any stigma or otherwise from conviction. Rules 179 of the Rules cast a duty upon the authority to be more careful at the time of recruitment and to ensure that a person who is appearing as a candidate, if selected, does not carry an element which could be said to be undesirable for the Police Force. The aforesaid Rule has remained subject matter of consideration of this Court in case of Fayaz Ahmed Panchoo v. State of J&K and ors 2003 (Supp.) JKJ 765. Referring to Rule 185, the Division Bench has held that it is mandatory duty cast upon the appointing authority to verify the character and suitability for enrolment of every recruit and that must be ascertained. 7. Whether a person to be selected as Police Constable or even if selected can be allowed to continue if his character is not found satisfactory, particularly in a disciplined force, came up for consideration before the Hon’ble Supreme Court in the decision reported in (1996) 11 SCC 605 ( Delhi Administration v. Sushil Kumar). In the said case Hon’ble the Supreme Court held that a candidate to be appointed in police services must have good antecedents and even if he is acquitted in a criminal case, he is not entitled to be selected. In the decision reported in (2013) 9 SCC 363 (Devendra Kumar v. State of Uttaranchal) the said point was reemphasized by Hon’ble the Supreme Court. In the decision reported in 2013 (7) SCC 685 (Commissioner. of Police, New Delhi v. Mehar Singh) the Hon’ble Supreme Court in paragraph 28 held thus:— “28. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith’ and confidence in it. It must be worthy of th-at confidence. A candidate wishing to join the police force-must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category.
People repose great faith’ and confidence in it. It must be worthy of th-at confidence. A candidate wishing to join the police force-must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and area matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and ‘efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who• are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of trust reposed in it and must treat all candidates with even hand.” In the decision reported in AIR 2015 SC 602 (State of M. P. and ors v. Parvez Khan), Hon’ble the Supreme’ Court, in paragraph 13 has held as under:— 13. “that a candidate to be recruited to the police service must be worthy of confidence and must be a person of utmost rectitude and must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged, it cannot be presumed that he was completely exonerated. Persons who are likely to erode the credibility of the police ought not to enter the police force. No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by leamed counsel for the Respondent, in the present case, the Superintendent of Police has gone’ into the matter’. The Superintendent of Police is the appointing authority.
No doubt the Screening Committee has not been constituted in the case considered by this Court, as rightly pointed out by leamed counsel for the Respondent, in the present case, the Superintendent of Police has gone’ into the matter’. The Superintendent of Police is the appointing authority. There is no allegation of mala fides against the person taking the said decision nor the decision is shown to be perverse or irrational.” A similar issue was considered by a three-Judge Hench of Hon’ble the Supreme Court in the decision reported in AIR 2016 SC 3598 (Avtar Singh v. Union of India and Ors.) wherein it is held that, “an employer would be justified in not appointing or if appointed to terminate services of such incumbent on due consideration of various aspects. One of the aspect the employer shall take note of is Government Orders/Instructions/Rules, applicable to the employee, at the time of taking decision. In this case police Rule 185 is taken into consideration. 8. The Rehabilitation policy issued in GO No. Home-55/H of 2004 dated 31.01.2004 provides the following incentives for surrendered weapons and surrenderees. “INCENTIVES FOR SURRENDERED WEAPONS 5. The following incentives will be provided for weapons etc. S.N. Weapons Incentives 1. AK Rifle Rs. 15,000/- per weapon 2. UMG/GPMG/Pika/RPG/Sniper rifle Rs. 25,000/- per weapon 3. Pistol/Revolver Rs. 3,000/- per weapon 4. Grenades/hand Grenade/stick grenade 500/- per grenade 5. Rocket Rs. 1,000/- per rocket 6. Remote Control Device Rs. 3,000/- each device 7. Ammunition of all types Rs. 3/- per round 8. IEDs Rs. 1,000/- each 9. Mines Rs.3,000/- 10. Explosive material Rs. 1,000/- per Kg. 11. Wireless set Rs.1,000 Short range Rs.5,000/- Long range 12. SAM Missiles Rs. 20,000/- 13. Satellite Phones Rs.10,000/- 14. VHF/HF communication sets Rs.5,000/- 15. Electronic Detonators Rs. 50/- Other Detonators Rs.10/- In so far as rehabilitation incentives for surrendered militants, the policy provides as under:— 6. REHABILITTION INCENTIVE FOR SURRNDEREES Every surrenderee eligible for rehabilitation under this scheme will be entitled to:— a) Immediate grant of Rs.1.50 lakh to be kept in the shape of an FOR in a bank “ in the name of surrenderee for a period of three years which can be drawn by him only on completion of three year period and subject to good behaviour. b) Rs. 2000/- as monthly stipend for three years after surrender.” 9.
b) Rs. 2000/- as monthly stipend for three years after surrender.” 9. On a perusal of the above incentives provided in terms of the rehabilitation policy, nowhere it is stated that a surrendered militant will be given employment much less in. a disciplined force like Police force. Therefore, the contention of the appellant that he has to be given employment is misconceived. 10. In this case the appellant admittedly joined militant rank and fought against the Nation with other militants. Merely because he surrendered, the same will not erase his past conduct. As per Rule 185 of the Police Rules, 1960 verification of antecedents is mandatory. Thus the decision arrived at by the Director General of Police that appellant is not fit to be appointed as police constable and cancelling his appointment cannot be find fault with. The learned Single Judge has decided the issue in right perspective, therefore, there is no merit in this L.P. appeal and the same is dismissed. No costs.