Delhi Police & Anr. vs Omveer Yadav
2010 Latest Caselaw 2014 Del

*                IN THE HIGH COURT OF DELHI AT NEW DELHI


+                            WP(C) No.12899/2009
%

                          Date of Decision: 19.04.2010


Delhi Police & Anr.                                           .... Petitioner
                       Through   Ms. Sonia Sharma, Advocate


                                   Versus


Omveer Yadav                                             .... Respondent
                       Through   Mr. Deepender Hooda, Advocate



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be            YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                  NO
3.    Whether the judgment should be reported                 NO
      in the Digest?




ANIL KUMAR, J.

*

The petitioners, recruitment cell of Delhi Police and another has

impugned the order dated 10th July, 2009 passed by the Central

Administrative Tribunal, Principal Bench in OA No. 2479/2008 titled

Omveer Yadav Vs. Delhi Police and Ors., whereby the original

application filed by the respondent was allowed and the order dated

16th October 2008 passed by the petitioner holding that the respondent

was not suitable for the post of constable (executive) and cancelling his

candidature for the said post, was quashed and the petitioners were

directed to confer the appointment order if the respondent is found fit in

all respects otherwise. The Tribunal had also held that the respondent

shall not be entitled to be assigned any prior date in respect of his

appointment and it would be only prospective.

Brief facts to comprehend the controversies are that the

respondent had applied for the post of Constable (Executive), Mail in

Delhi Police during the recruitment held in the year 2007. He was

selected provisionally subject to medical fitness, verification of character

and antecedents reveal that he was involved in a criminal case FIR

865/2005 dated 20th December, 2005 under Section 392/34 of IPC

where, the respondent was released by order dated 24th November,

2006, though these facts were disclosed by the respondent in his

application form and attestation form, however, in view of nature of

involvement of the respondent and the gravity of offence and other

relevant factors a show cause notice was issued to the respondent as to

why his candidature be not cancelled.

After considering the reply of the respondent to the show cause

notice, it was held that the replies given by the respondent were not

convincing and the respondent was held not suitable for the post of

Constable (Executive), Mail and his candidature was cancelled by order

dated 16th October, 2008 which was challenged by the respondent

before the Tribunal in a petition under Section 19 of the Administrative

Tribunal Act, 1985.

The respondent had contended that he was implicated falsely in

the case of snatching of a car by one Mr. Manoj and he was neither a

party nor he had any information regarding the alleged offence. It was

emphasized on behalf of the respondent that the FIR did not include his

name nor stipulated his involvement. The victim Mr. Vikas had stated

that he could identify Mr. Manoj and his associates who were involved

in snatching of the car and therefore test identification parade was

conducted by the Magistrate, where the complainant/victim did not

identify the respondent. No recoveries were also made from the

respondent, therefore, the investigating officer had filed an application

for discharge of respondent from the case stipulating that putting up

the name of the respondent in charge-sheet would be a futile exercise

and consequently, the respondent was discharged from the case FIR

865/2005 by the Metropolitan Magistrate by order dated 24th

November, 2006. In the circumstances, it was contended on behalf of

the respondent that the order dated 16th October, 2008 was perverse

and was based on non-application of mind. Merely because the

respondent was falsely implicated, his candidature could not be

cancelled merely because he was arrested despite his name being not

included in FIR 865/2005. It was contended that while inferring his

suitability these factors were not considered and merely on the basis of

statement of main accused, which is also not admissible against him, it

has been held that he is not suitable. The respondent also contended

that the treatment meted to him was harsh and therefore, such a harsh

treatment of cancelling his candidature could not be inflicted upon the

respondent in the facts and circumstances.

The plea of the respondent was opposed by the petitioners

contending, inter alia, that a person who was accused in a case of

robbery could not be permitted to work in the police force and since the

primary accused, Mr. Manoj had disclosed the name of the applicant,

therefore, perhaps on account of undue pressure alleged to have been

put, the respondent was not identified in the test identification parade

and was released. It was contended that no malafides were attributed to

the petitioners and since the decision was taken bonafide and for the

administrative exigencies and reasons and so that no ineligible person

gets into police force, the order cancelling the candidature of the

respondent was passed and it is not required any interference by the

Tribunal.

The Tribunal, however, noted that no fraud has been played by

the respondent and his name was not included in the FIR, and the

arrest of the respondent was almost a year after the incident of car

snatching. It was also observed that had the name of the respondent

been in the FIR, the facts would have been different. Reliance was also

placed on the fact that at the instance of the victim/complainant that

he could identify the prime accused Manoj and his accomplice, a test

identification parade was conducted where the complainant had Failed

to identify the respondent leading to an application being filed by the

petitioners for his release on the ground that putting up the name of the

respondent shall be a futile exercise and the plea of the petitioner was

accepted and the Metropolitan Magistrate had released the respondent

by order dated 24th November, 2006. The Tribunal also noted that the

case of the respondent is not where he was acquitted after the trial or

by availing any benefit of doubt. The Tribunal had held that though a

person with stigma cannot be enrolled, however, an innocent person

cannot be denied the right for public employment if is implicated falsely

and there is no incriminating material against the respondent. In the

circumstances, the order of the petitioners holding that the reasons

disclosed by the respondent to the show cause notice for cancelling his

candidature were not convincing and were without any basis and

perverse was not accepted and it was set aside.

We have perused the impugned order, the petition filed by the

respondent before the Tribunal, reply of the petitioners before the

Tribunal and the writ petition. The learned counsel for the petitioners

has also relied on (1996) 11 SCC 605 Delhi Administration & Ors. Vs.

Sushil Kumar, AIR 2008 SC 578, R. RAdhakrishnan Vs. Director

General of Police & Ors. in support of petitioners' pleas and

contentions. Sushil Kumar (supra) was also relied by the petitioners

before the Tribunal. However, it was held that in the case relied on by

the petitioners, the case was under Section 304, 324/34 of IPC and the

Supreme Court had held that the view taken by the appointing

authority in the background of the case, could not be set to be

unwarranted. The Supreme Court had held so in the peculiar facts and

circumstances of the case. Apparently, the case relied on by the

petitioner is distinguishable as in the case of the present respondent,

his name was not included in the FIR, he was not arrested for almost

after one year and the complainant, though stated that he could identify

the accused and his associates, however, in the test identification, he

had failed to identify the respondent leading to an application being

filed by the petitioners for release of his name, as it was contended that

putting up respondent's name would be a futile exercise. Although,

these facts were disclosed to the petitioners, however while passing the

order dated 16th October, 2008, these facts apparently were not taken

into consideration and merely on the basis that name of the respondent

was disclosed by the accused Manoj Kumar, it was held that the

reasons given by the respondent are not convincing. Apparently, the

petitioners had passed the orders mechanically and in the

circumstances, the order of the Tribunal quashing the order dated 16th

October, 2008, cancelling the candidature of the respondent and

holding that he is not suitable for the post of constable is arbitrary and

could not be sustained in law and therefore, the order of the Tribunal

setting aside the same does not suffer from any illegality or such

irrationality, which would require any interference by this Court.

The other case relied on by the petitioner of R. Radhakrishnan

(supra) is also distinguishable as in that case, a candidate had filed an

application for appointment to the post of fireman and he was

provisionally selected. The candidate in the said case, in reply to a

question in the application whether he had ever been convicted in any

criminal case as an accused had stated that he had not been involved

in any case and subsequently it had transpired that he had suppressed

the material fact and consequently, his candidature was cancelled. The

case of the respondent is not of suppressing of any fact and in the

circumstances, the ratio of R. Radhakrishnan (supra) cannot be relied

on by the petitioners. Even the decision rendered by the Supreme

Court in the case of Sushil Kumar on peculiar facts and circumstances

of the said case, cannot be treated to be a binding precedent.

In totality of the facts and circumstances, therefore, this Court

does not find any such illegality or irregularity in the order of the

Tribunal, which will require any interference by this Court with the

order impugned before us. The writ petition in the facts and

circumstances, is without any merit and, it is therefore, dismissed.

The parties are however, left to bear their own costs.

ANIL KUMAR, J.

MARCH 23rd, 2010                                 MOOL CHAND GARG, J.
'rs'