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2018 DIGILAW 295 (JK)

Imtiyaz Ahmad Malla v. State

2018-05-14

M.K.HANJURA

body2018
JUDGMENT : 1. By the medium of this writ petition, the petitioner seeks a writ of Certiorari for quashing the order bearing No. 2580 of 2017 dated 31-07-2017, by virtue of which the respondents have rejected his claim for appointment as Constable as non-maintainable and bereft of genuine grounds. A Writ of Mandamus is also sought to direct the respondents to reinstate the petitioner and pay him all consequential benefits. 2. The facts as are essential for the just decision of the instant case are that the petitioner was initially appointed as a Constable in the J&K Police vide order dated 20-08-2009 and was posted in DPL Handwara. While the petitioner was undergoing a training course in the Training School, Manigam, he was midway called back by the DPL Handwara, for facing an enquiry for not having disclosed the pendency of an F.I.R against him. It is further stated that as a consequence, the order of appointment of the petitioner was revoked by the respondents vide order dated 01-03-2010 without holding a proper enquiry in the mater. The petitioner challenged the said order of cancellation of his appointment before the Court in SWP 2616/2011. While responding to the notice in the said petition, the respondents filed the counter, stating therein that an F.I.R for an offence u/s 379 RPC & section 6 of the Forest Act was registered against the petitioner at police Station, Kralgund, in which the Challan was also filed in the Court of the learned CJM, Handwara. However, on account of contradictory evidence, which came to fore during the trial, the petitioner was acquitted and the benefit of doubt was given to him. Justifying the cancellation of the order of appointment, the respondents further stated in their counter that the order has been passed in a fair, just and transparent manner and after conducting a thorough enquiry into the misconduct of the petitioner. 3. It is further stated by the petitioner that he filed the rejoinder affidavit in the matter stating therein that the contents of the reply affidavit are false. The petitioner further stated that at the time of his selection, he had submitted all the required documents before the respondents, which were verified by them and it was only thereafter that a formal appointment order was issued in his favour. The petitioner further stated that no enquiry under rules was ever conducted in his case. The petitioner further stated that at the time of his selection, he had submitted all the required documents before the respondents, which were verified by them and it was only thereafter that a formal appointment order was issued in his favour. The petitioner further stated that no enquiry under rules was ever conducted in his case. 4. The petitioner has further stated that he was acquitted of the charges levelled against him in the aforesaid F.I.R by the Court of learned CJM, Handwara, and when the same was intimated to the respondents, the respondent No.3 addressed a communication dated 16-06-2011 to the respondent No.2, apprising him about the acquittal, and sought directions for further course of action. In the meantime writ petition (SWP 2616/2011) was allowed by the Court vide its order dated 18-05-2016, setting aside the order of cancellation of the appointment of the petitioner with the direction to the respondent No.3 to take further action in the matter within two weeks from the date copy of the order is served on him. The petitioner has further stated that despite the receipt of the copy of the order of the Court, the respondents deliberately and intentionally did not pass any order, which resulted in the initiation of contempt proceedings against them. They were again directed by the Court, vide its order dated 23-03-2017, passed in the Contempt No. 156/2017, to comply with the order dated 18-05-2016. The petitioner has further stated that although the contempt petition is pending adjudication before the Court, yet the respondent No.2 passed the order dated 31-07-2017, impugned herein, rejecting the claim of the petitioner, to be appointed as Constable, as non-maintainable and bereft of any genuine grounds. 5. In the objections, filed by the respondents, the very maintainability of the writ petition has been questioned on the ground that the same does not disclose any genuine cause of action. The writ petition raises disputed questions of fact, which cannot be adjudicated upon in the writ petition. It is further stated that the impugned order has been passed by the concerned authority with due application of mind and in pursuance of the order of the Court passed in the earlier writ petition of the petitioner. It is further stated that none of the rights, be it fundamental or constitutional, have been violated by passing of the impugned order. It is further stated that none of the rights, be it fundamental or constitutional, have been violated by passing of the impugned order. The petitioner has suppressed & misrepresented the material facts, rendering the writ petition liable to be dismissed. It is further stated that the order impugned was passed after conducting proper departmental enquiry in the matter under rules and it was held that the petitioner has concealed the information with respect to the registration and pendency of a criminal case against him and had also given a false residential address. It is further stated that the petitioner was given due opportunity to participate in the enquiry proceedings where he was permitted to cross examine the witnesses and defend himself. However, he was not found fit for appointment in the Belt Force of the department and, consequently, the order of his appointment was cancelled. The respondents have prayed that in view of what has been mentioned in the objections, the writ petition be dismissed with costs. 6. Heard and considered. 7. What needs to be said at the outset is that the petitioner in an earlier round of the litigation filed a petition before this Court bearing SWP No. 2616/2011, wherein on the basis of a communication dated 27th February, 2012, send by the AIG (P) for Director General of Police, J&K, Jammu to the Inspector General of Police, Kashmir zone, Srinagar, the latter was requested to issue a formal appointment order in favour of two persons including the petitioner. The Court vide order dated 18th May, 2016, held that in view of the aforesaid fact situation, the Inspector General of Police, Kashmir Zone, is duty bound to issue an appropriate order in favour of the petitioner and, accordingly, the order dated Ist March, 2010, passed by the respondent No. 5 is set aside with a direction to take further action on the communication supra. On the direction of the Court extended in the aforesaid petition, the Director General of Police, J&K, Srinagar, passed an order (Annexure-G attached to the petition), directing the rejection of the claim of the petitioner, the relevant excerpts of which are reproduced herein below verbatim et literatim: “Whereas, after threadbare examination/discussion in light of the available records and authoritative judicial pronouncement/judgment of Hon’ble Supreme Court of India in case titled Commissioner of Police v. Mehar Singh (2013) 7 SCC 685 as well as judgment passed by Hon’ble High Court of J&K at Jammu in SWP No. 2489/2001 titled Muneer Hussain v. UOI and Others in view of his criminal background the petitioner has been found unsuitable for the post of Constable in a disciplined force and as such his claim has been decided to be rejected. There for having regard to the relevant Court orders quoted above and the circumstances of the case, claim of the petitioner being non-maintainable & bereft of genuine grounds is hereby rejected on merit. (i). The delay, if any, is procedural. (ii). The petitioners be informed accordingly.” 8. It is not in dispute that the petitioner was facing trial in a case for the commission of offences under Section 379 RPC and Section 6 of Forest Act and on the culmination of the trial, the petitioner was acquitted of the charges levelled against him by giving him the bereft of doubt. 9. The apex Court of the country, in the case of ‘Union Territory, Chandigarh, Administration & Ors. v. Pradeep Kumar & Anr.’, reported in “ (2018) 1 SCC 797 ”, has analyzed the scope and effect of a judgment of acquittal earned by a member of the police force and has left it open for the ‘Screening Committee’ to take a call in such matters. The relevant paragraphs of the judicial precedent as are germane to the issue and have a direct bearing on the subject read as under: “15. From the above details, we find that the screening committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. The relevant paragraphs of the judicial precedent as are germane to the issue and have a direct bearing on the subject read as under: “15. From the above details, we find that the screening committee examined each and every case of the respondents and reasonings for their acquittal and taken the decision. While deciding whether a person involved in a criminal case has been acquitted or discharged should be appointed to a post in a police force, nature of offence in which he is involved, whether it was an honourable acquittal or only an extension of benefit of doubt because of witnesses turned hostile and flaws in the prosecution are all the aspects to be considered by the Screening Committee for taking the decision whether the candidate is suitable for the post. As pointed out earlier, the Screening Committee examined each and every case and reasonings for their acquittal and took decision that the respondents are not suitable for the post of Constable in Chandigarh Police. The procedure followed is as per guideline 2 (A) (b) and object of such screening is to ensure that only persons with impeccable character enters police force. While SWP No. 374/2012 Page 11 of 12 so, the court cannot substitute its views for the decision of the Screening Committee. 16. On behalf of the respondents, much reliance was placed upon Joginder Singh v. Union Territory of Chandigrah and Others (2015) 2 SCC 377 . In the said case, the appellant thereon was charged under sections 148, 149, 323, 325 and 307 IPC but acquitted by the trial court holding that the prosecution has failed to prove the charges leveled against him since complainant as well as injured eye witnesses failed to identify the assailants and the complainant had stated that his signature was obtained on a blank sheet by the investigating officer. The case involved was a family dispute. In such facts and circumstances, this Court held that acquittal of appellant Joginder Singh was an honourable acquittal and hence, he should not be denied appointment to the post in question. The decision in Joginder Singh case does not advance the case of the respondents herein. 17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. The decision in Joginder Singh case does not advance the case of the respondents herein. 17. In a catena of judgments, the importance of integrity and high standard of conduct in police force has been emphasized. As held in Mehar Singh case, the decision of the Screening Committee must be taken as final unless it is mala fide. In the case in hand, there is nothing to suggest that the decision of the Screening Committee is mala fide. The decision of the Screening Committee that the respondents are not suitable for being appointed to the post of Constable does not call for interference. The Tribunal and the High Court, in our view, erred in setting aside the decision of the Screening Committee and the impugned judgment is liable to be set aside.” 10. Taking into consideration the law laid down in the aforesaid judicial dictum, the Director General of Police, J&K, Srinagar, after looking into the pros and cons of the case took a decision that the petitioner is not a suitable person to man the post in view of his criminal background. The law laid down above provides that the persons with impeccable character only can be allowed to make entry into the police force which is a disciplined one. The importance of the integrity and high standard of conduct in police force has to be taken into consideration in the matter of forming an opinion whether his retention in the police force is or is not justifiable. The decision of the Director General of Police, J&K, Srinagar, that the petitioner is not suitable for his induction into the police force cannot be called in question before this Court. The Director General of Police, J&K, Srinagar, being the highest functionary in the police hierarchy is the best judge to consider this facet of the case and he after due application of mind to the facts of the case has come to the conclusion that the petitioner is not a fit person to hold the post in view of his criminal background. The order impugned in this petition is based on law and reason and cannot be tampered with. 11. In view of the above, the petition of the petitioner sans merit. It entails dismissal and is, accordingly, dismissed. 12. Writ petition disposed of as above.