Pintoo Singh vs Union Of India Thru Its Secy & Ors.
2014 Latest Caselaw 8952 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 59
 

 
Case :- WRIT - A No. - 1868 of 2013
 

 
Petitioner :- Pintoo Singh
 
Respondent :- Union Of India Thru Its Secy & Ors.
 
Counsel for Petitioner :- Prabha Shankar Chaturvedi,Ashok Srivastava,K.M. Asthana
 
Counsel for Respondent :- A.S.G.I.,S.C.,Vikas Srivastava
 

 
Hon'ble Rajan Roy,J.

Heard Sri K.M. Asthana, learned counsel for the petitioner and Sri Vikas Srivastava, learned counsel for the respondents.

The petitioner herein applied for consideration for recruitment for the post of Head Constable (Ministerial) in the Central Industrial Force (CISF) pursuant to an advertisement issued by the respondents. At the time of applying he was required to fill up the requisite form, wherein, he did not disclose the factum of involvement in a criminal case under Sections 342, 363 I.P.C., wherein, he had already been acquitted on 05.07.2007, i.e. much prior to filling up the said form. The written examination was held on 31.07.2011. He participated in the said examination and was successful, whereupon, he was called for medical examination/ physical efficiency test etc. to be held on 07.06.2012. On the said date, he was required to fill a questionnaire/ verification of attestation form. While filling the said form, a copy of which has been annexed as Annexure-CA-1 to the counter affidavit of the respondents, the petitioner herein categorically disclosed that an FIR was lodged against him in the past. He also disclosed the case number and sections under which the FIR was lodged, i.e. Case No.392 of 2005 under Sections 342, 363 I.P.C. He also disclosed the name of the police station, i.e. Kotwali Fatehpur, where the F.I.R. was lodged. He also disclosed the factum of a charge sheet having been filed in the said case and also his acquittal.

After completion of the medical examination/ physical efficiency test etc. the other candidates were issued their appointment letters, but, the petitioner was not issued the same, instead, his case was forwarded to the screening committee vide letter dated 03.07.2012 for a decision in terms of the policy guidelines framed by the Ministry of Home Affairs dated 01.02.2012 regarding cases of candidates for appointment in Central Army - Para Military Forces - pendency of criminal cases against the candidates - the effect of the same.

Thereafter, the petitioner was communicated a letter dated 04.12.2012 intimating him that he was not found eligible for appointment in CISF in view of the guidelines referred hereinabove.

The contention of the learned counsel for the petitioner is that the decision is apparently in violation of the guidelines dated 01.02.2012, though, it purports to have been taken pursuance thereof.

The learned counsel for the petitioner has invited the attention of the court to paragraph-2(II) of the said guidelines which reads as under:

"II. If a candidate does not disclose his/her involvement and/or arrest in criminal case(s), complaint case(s), preventive proceedings etc. under IPC or any other Act of the Central or State Government in the application form but discloses the same during medical examination/PET and/or in the attestation/verification form, in writing, the candidature will not be cancelled on this ground alone. "

He also invited the attention of the court to the relevant extracts of paragraphs-2(III) of the said guidelines which reads as under:

"III. The candidate will not be considered for recruitment if:

a) Such involvement/case/arrest is concerned with an offence mentioned in Annexure A;

b) Such arrest/detention is made under any of the Acts which are concerned with security and integrity of the country, terrorist and disruptive activities, acts against the State, insurgency, etc.;

c) The candidate has been detained under the National Security Act/Crime Control Act/any similar legislation, and the same is confirmed by the Reviewing Authority;

d) Such involvement/case/arrest is concerned with an offence involving moral turpitude;

e) He/she has been convicted by a Court in any case whether or not an appeal is pending against such conviction.

Provided that the candidate shall not be barred in the above cases, if only an FIR has been registered/case is under investigation and no charges have been framed either on FIR or on the complaint in any Court of Law.

Provided further that the candidate shall not be debarred if he/she has been finally acquitted/discharged by a Court, whether an appeal is pending or not against such acquittal."

Based on paragraph-2(II) read with paragraph-III(a) of the second proviso thereof, learned counsel contends that non-disclosure of the aforesaid proceedings at the time of filling the initial form will not entail the cancellation of candidature if the said information has been disclosed during medical examination/ PET and/or in the attestation/ verification form in writing. Secondly, he submits that in view of second proviso to clause (e) of paragraph-III, the candidates shall not be debarred if he/ she is finally acquitted/ discharged by a court, whether an appeal is pending or not against such acquittal, therefore, the impugned decision is clearly contrary to the guidelines of the Ministry of Home Affairs and the same suffers from an error apparent from record.

The contention of Sri Srivastava, learned counsel for the respondents is that the non-disclosure of the information dis-entitles the petitioner to appointment, therefore, the impugned order has rightly been passed.

I have heard the learned counsel for the parties and perused the records. In my view, the impugned order suffers from an error apparent and is contrary to the guidelines of the respondents themselves. The impugned action purports to have been taken in accordance with the said guidelines, but, neither counter affidavit nor the learned counsel for the respondents was able to show as to which provision of the said guidelines had been violated in the case of the petitioner thereby entailing the issuance of the impugned order. In my view, in view of the provisions contained in paragraph 2(II) read with second proviso to paragraph 2(III) of the guidelines, the petitioner's candidature could not have been cancelled as he had disclosed all the relevant facts pertaining to the criminal case at the time of medical examination/ physical efficiency test by filing up the form, copy of which has been annexed by the respondents themselves with the counter affidavit. On a perusal of paragraph 2(III), I find that clause (a) thereof provides that a candidate will not be considered for recruitment if the candidate is involved or is arrested with an offence mentioned in Annexure-A. However, the provisions contained in clause (a) to (e) of paragraph 2(III) are qualified by the second proviso, which says that the candidature shall not be debarred, if he/ she is finally acquitted/ discharged by a court, whether an appeal is pending or not against such acquittal, thus, in view of this proviso, the contents of Annexure-A would not come in way of the petitioner's appointment, if he has been selected and has been found fit otherwise. The provisions contained in paragraph 2(III) clause (a) to (e) have to be read and understood in the light of the provisos thereof, which carve out an exception to the main Rule as contained in para 2(III)(a) to (e). Reference may be made to the pronouncement of the Supreme Court reported in Tribhov and as Haribhai Tamboli Vs. Gujarat Revenue Tribunal, 1991 (3) SCC 442 wherein their lordships have held as under:

"It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, it to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule."

Similar is the view expressed in the case reported in Kush Saigal Vs. M.C. Mitter, 2000 (4) SCC 526, wherein, it has been held as under:

"This we say because the normal function of a proviso is to except something out of the enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. (See Kedarnath Jute Mfg. Co. Ltd. v. CTO.) Since the natural presumption is that but for the proviso, the enacting part of the section would have included the subject matter of the proviso, the enacting part has to be given such a construction which would make the exceptions carved out by the proviso necessary and a construction which would make the exceptions unnecessary and redundant should be avoided(see Justice G.P. Singh's Principless of Statutory Interpretation, 7th Edn., 1999, p.163). This principle has been deduced from the decision of the Privy Council in Govt. of the Province of Bombay v. Hormusji Manekji AIR 1947 PC 200 as also the decision of this Court in Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, AIR 1965 SC 980."

In view of the above discussion, the impugned action is not sustainable. The same is accordingly quashed. If the petitioner has been otherwise found fit for selection and appointment, then the appointment letter shall be issued to him within a period of one month from the date a certified copy of this judgment is produced before him. Consequences to follow as per rules.

The writ petition is accordingly allowed.

Order Date :- 21.11.2014

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