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2023 DIGILAW 2190 (ALL)

Beer Bahadur Singh v. State of U. P.

2023-09-21

AJIT KUMAR

body2023
JUDGMENT : Hon'ble Ajit Kumar, J.-Petitioner has been applicant for the post of Constable in Civil Police/Police Armed Constabulary pursuant to the advertisement issued and the recruitment examination held in 2015. While recruitment process was being undertaken and the examination was held, the entire selection and recruitment became subject-matter of litigation before this Court. Ultimately, with the dismissal of the writ petition, the respondents proceeded with further medical examination test. Petitioner was also medically examined and successfully made it to the merit list. However, when he submitted his affidavit of undertaking and disclosed therein two criminal cases pending against him, one relating to Sections 341/332/353 Indian Penal Code and 2/3 Gangsters Act and the other relating to Sections 147/148/149/504/506 IPC, the disclosure became instrumental in denial of appointment to the petitioner. Consequently, he approached this Court first time vide Writ-A No. 15583 of 2018 which was disposed of with the direction that his claim should be considered in light of the judgment of Avatar Singh v. Union of India and others, 2016 (8) SCC 471 . Ultimately, the candidature of the petitioner came to be cancelled on the sole ground that two criminal cases were pending against him, vide order dated 26.3.2021. This order too came to be challenged before this Court vide Writ-A No. 4098 of 2020 on the ground that the ratio of judgment in the case of Avtar Singh (supra) was not understood in its correct perspective by the authorities and that the cases being trivial in nature, petitioner if had been offered the appointment on the post of Constable it would not have adversely affected the discharge of his duties as such. The Court found that the dictum in the case of Avtar Singh (supra) was not accorded due consideration and accordingly, set aside the order and remitted the matter to be decided afresh. It is in compliance of this order dated 15.7.2021 that the impugned order has now come to be passed. 2. The Court found that the dictum in the case of Avtar Singh (supra) was not accorded due consideration and accordingly, set aside the order and remitted the matter to be decided afresh. It is in compliance of this order dated 15.7.2021 that the impugned order has now come to be passed. 2. Learned counsel for the petitioner has submitted that the guidelines that have been prescribed for in the judgment of Avtar Singh (supra) are indicative of an important legal aspect that just because a criminal case has been registered against a candidate, his candidature ought not to have been cancelled outrightly but there should be due objective consideration to be accorded to such cases, the nature of criminal case, the circumstances in which a person has got implicated and may be history of criminal cases. 3. Learned counsel for the petitioner has also relied upon the judgment of the Division Bench of this Court in the case of Umesh Chand v. State of UP and others decided on 24.3.2023 in Special Appeal No. 67 of 2023. 4. Per contra, the learned Additional Chief Standing Counsel has relied upon a latest judgment of Supreme Court in the case of State of Rajasthan and others v. Chetan Jeff; AIR 2022 (SC) 2274 . He has placed reliance upon paragraphs 7 & 8 of the judgment and submits that after taking into consideration various previous judgments of the Supreme Court including that of Avtar Singh (supra) case, the Apex Court has come to conclude that it is within the discretion of the employer to offer appointment to a person or not if he has criminal antecedents to his credit. 5. Before I proceed to examine the order impugned, learned counsel, at the very outset, informed the Court that in so far as the criminal case in connection with the Case Crime No. 345 of 2016 under Sections 147/332/341/353 IPC is concerned, he has been acquitted in that case vide judgment and order of the trial Court dated 9.6.2022 in Criminal Case No. 470 of 2017. Thus, now there remains only one criminal case pending today. 6. Thus, now there remains only one criminal case pending today. 6. Having heard learned counsel for the respective parties and having perused the record and having examined the order impugned in the writ petition, I find that petitioner's candidature has been rejected only on the ground of pendency of two criminal cases and upon receiving the verification report from the District Magistrate, Mirzapur dated 26.3.2019 i.e. much prior to the judgment of this Court dated 15.7.2021 whereupon the earlier decision was taken by the authority and the said order was quashed. The reasons assigned is that in view of paragraphs 38.3, 38.5 and 38.6 of the judgment of Avtaar Singh (supra), the matter of the petitioner has been examined and since in the criminal cases charge-sheet has been submitted, it cannot be said that they are trivial in nature. The authority has recorded that in connection with Case Crime No. 345 of 2016, petitioner was charged for creating obstacle in discharge of official duty of the police force and that he was involved in damaging public property and also causing disturbance to public order. 7. I would have understood this case to be quite serious in nature, had the petitioner been involved individually but looking to the First Information Report, in connection with Case Crime No. 345 of 2016, I find that the FIR was lodged against 200 boys who were agitating at Lucknow office of the Police Recruitment and promotion Board for completing the recruitment and selection process. It appears that when the police resisted certain people involved in brick batting that resulted in damaging headlights and indicators of vehicles and one of the policemen got slightly injured. 8. This cannot be said to be a well-organised crime. It was a mere agitation being launched by the candidates for the purposes of carrying out speedy recruitment and selection process which was at a standstill and that the First Information Report came to be lodged against unknown persons. 9. It is true that charge-sheet has been submitted and quite possible that all those who could be identified through CCTV footage were subjected to the charge-sheet but it may be too difficult to prove the charges. It further transpires to be not a case of that kind that petitioner had criminal history to be involved in such incidents. 10. 9. It is true that charge-sheet has been submitted and quite possible that all those who could be identified through CCTV footage were subjected to the charge-sheet but it may be too difficult to prove the charges. It further transpires to be not a case of that kind that petitioner had criminal history to be involved in such incidents. 10. The Supreme Court in the case of Avtar Singh (supra) has noticed that in many cases people may be involved in general in masses where the agitation is taking place and they got implicated in criminal case, therefore, the discretion of the employer would be to assess the suitability while adjudging such antecedents of the incumbent. 11. In my considered view, participation in an agitation of unemployed youths that may ultimately turn out to be violent for certain reasons beyond the control of those who are participating in the agitation and ultimately their names figures in the charge-sheet, by itself would not be adding gravity to the offence or involving a case of moral turpitude. 12. Presence of animus attributable to the named accused in criminal case so as to arrive at a conclusion that such an accused if assigned duty would erode faith of people and credibility of the department should be hallmark to reject the candidature. Many a time a named accused himself may be a victim and allegations being general in nature, has no specific role could be assigned. In such cases it is quite possible that prosecution fails to produce cogent material resulting in acquittal. If an accused does not have a long history of criminal cases and implication in criminal case for any village politics and neighbour animosity or family dispute, the department should take pragmatic view. Similarly, when public agitation is going on, it is quite possible that FIR allegations are found to be general in nature and some persons are identified as raising hands/fists or slogans in CCTV footage or media reporting and charge-sheet is filed naming them, the department must adopt pragmatic approach. Such implication in criminal cases may result in acquittal ultimately, but a candidate who had been in agitation by default of his presence may loose a lifetime opportunity to have a career in Government service. 13. Such implication in criminal cases may result in acquittal ultimately, but a candidate who had been in agitation by default of his presence may loose a lifetime opportunity to have a career in Government service. 13. Similarly, when the Court has recorded vide paragraph 31 in Avtar Singh (supra) that in case an offence is petty in nature and committed at young age such as stealing bread, shouting of slogans or with such a moral turpitude, cheating or misappropriation etc. or otherwise not a serious or heinous offence and if accused has been acquitted in such a case when verification report is filed, employer may ignore lapse of even suppression or submitting false information. 14. Here is a better case where the petitioner had disclosed both the criminal cases registered against him and in one of the cases, now he has been acquitted. In the other case, I would say the participation in agitation by unemployed youths for seeking speedy recruitment is only attributable to mass tendencies and there is no animus as such of an individual so as to attract him to have committed heinous crime like disturbing public order or damaging public property. Such an approach is required for a healthier ecosystem of public employment offered by the State, being a model employer. 15. Following the principles in Avtar Singh (supra), the Division Bench of this Court allowed appeal of one Umesh Chand (supra). The Court emphasised the principle as contained in para 38.3 and 38.6 of the judgment in Avtar Singh (supra). In so far as in the case of Chetan Jeff (supra) is concerned, there I find to be history of criminal antecedents to the credit of the petitioner and then acquittal in one of the cases was only on the basis of the compromise. While in other case, he was though convicted but was given benefit of Probation of Offenders Act, 1958. Paragraphs 7 & 8 of Chetan Jeff (supra) runs as under: ''7. Applying the law laid down by this Court in the aforesaid cases, it cannot be said that the authority committed any error in rejecting the candidature of the original writ petitioner for the post of constable in the instant case. 8. Paragraphs 7 & 8 of Chetan Jeff (supra) runs as under: ''7. Applying the law laid down by this Court in the aforesaid cases, it cannot be said that the authority committed any error in rejecting the candidature of the original writ petitioner for the post of constable in the instant case. 8. Even otherwise it is required to be noted that subsequently and during the proceedings before the learned Single Judge as well as the Division Bench, there are three to four other FIRs filed against the original writ petitioner culminating into criminal trials and in two cases he has been acquitted on the ground of compromise and in one case though convicted, he has been granted the benefit of Probation of Offenders Act. One more criminal case is pending against him. Therefore, the original writ petitioner cannot be appointed to such a post of constable.'' 16. In view of the above, therefore, the judgment in the case of Chetan Jeff (supra) is distinguishable on facts. It has been repeatedly held by Supreme Court that the judgments are not theories of law to be applied generally. It is to be always taken into consideration as to whether a particular judgment fits in the setting of facts of case or not. In Chintels India Limited v. Bhayana Builders Private Limited, (2021) 4 SCC 602 , Supreme Court has dealt with this principle of law in detail. vide paragraph No. 31 it has held thus: ''31. It is well-settled that judgments are not to be construed like Euclid's theorems (see Amar Nath Om Prakash v. State of Punjab, (1985) 1 SCC 345 ), but all observations made therein must relate to the context in which they were made. In that case, the Court put it thus: (SCC p. 362-63, paras 10-11) ''10. There is one other significant sentence in Sreenivasa General Traders v. State of A.P [ (1983) 4 SCC 353 ] with which we must express our agreement, it was said: (SCC p. 377, paras 26-27) ''26-27. ? With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.'' We consider it proper to say, as we have already said in other cases, that judgments of Courts are not to be construed as statutes. With utmost respect, these observations of the learned Judge are not to be read as Euclid's theorems, nor as provisions of a statute. These observations must be read in the context in which they appear.'' We consider it proper to say, as we have already said in other cases, that judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton [ 1951 AC 737 , 761] Lord MacDermott observed: (AC p. 761) ''...The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.?' In Home Office v. Dorset Yacht Co. Ltd. [(1970) 2 All ER 294] Lord Reid said: (AC p. 1027) ''...Lord Atkin's speech [Donoghue v. Stevension, 1932 All ER Rep 1, 11] ... is not to be treated as if it was a statutory definition. It will require qualification in new circumstances.'' Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2), (1971) 1 WLR 1062, observed: (WLR p. 1069) ''...One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament.'' And, in Herrington v. British Railways Board [ 1972 AC 877 Lord Morris said: (AC p. 902) ''There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.'' 11. There are a few other observations in Kewal Krishan Puri case [ (1980) 1 SCC 416 ] to which apply with the same force all that we have said above. There are a few other observations in Kewal Krishan Puri case [ (1980) 1 SCC 416 ] to which apply with the same force all that we have said above. It is needless to repeat the oft-quoted truism of Lord Halsbury that a case is only an authority for what it actually decides and not for what may seem to follow logically from it.'' 17. In view of the above, writ petition succeeds and is allowed. The order impugned dated 25.10.2021 passed by Superintendent of Police is hereby quashed. The respondents are directed to accord positive consideration to the candidature of the petitioner and offer him appointment if otherwise there is no legal impediment. The appointment, however, shall abide by the outcome of criminal case which is going on against the petitioner in connection with Case Crime No. 591 of 2015.