Rajesh Kumar vs Commissioner Of Police & Anr
2011 Latest Caselaw 5634 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 22 nd November, 2011

+                          W.P.(C) 8223/2011

        RAJESH KUMAR                                         ..... Petitioner
                           Through:     Ms. Manpreet Kaur, Adv.

                                 Versus

        COMMISSIONER OF POLICE & ANR            .... Respondents
                    Through: Mr. Anjum Javed, Adv.


        CORAM:
        HON'BLE THE ACTING CHIEF JUSTICE
        HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                 JUDGMENT

RAJIV SAHAI ENDLAW, J

1. This petition seeks judicial review of the order dated 5 th April, 2011

of the Central Administrative Tribunal (CAT), Principal Bench, New Delhi

dismissing O.A. No.3917/2010 preferred by the petitioner under Section 19

of the Administrative Tribunals Act, 1985. The said O.A. was preferred

impugning the order dated 20th August, 2010 of the respondents cancelling

the candidature of the petitioner for the post of Constable (Executive) Male

in Delhi Police.

2. The respondents had in the year 2009 invited applications for the

vacancies for the said post. The petitioner applied, cleared the qualifying

written test as well as physical test and was declared provisionally selected

subject to verification of character and antecedents, medical fitness and final

checking of documents etc. During the said verification, it was discovered

that the petitioner was involved in criminal case FIR No.51 dated 17 th

March, 2000 under Sections 323/324/34 IPC, P.S.-Kosli, District-Rewari,

Haryana, though had been acquitted vide order dated 28th February, 2009

pursuant to amicable settlement. The respondents nevertheless cancelled

the provisional selection of the petitioner for the reason of the petitioner

having concealed his involvement in the aforesaid FIR inspite of direction in

this regard in the Application Form which he had filled up.

3. The petitioner before the Tribunal relied inter alia on judgment dated

17th March, 2011 of the Apex Court in Commissioner of Police Vs.

Sandeep Kumar (2011) 4 SCC 644. Sandeep Kumar also had concealed his

involvement in a criminal case under Section 325/34 IPC and which case

had also resulted in an acquittal on compromise. The Supreme Court held

that Sandeep Kumar at the time of the FIR was about 20 years of age; at that

age, young people often commit indiscretions and such indiscretions can

often been condoned; youth will be youth; they are not expected to behave

in as mature a manner as older people and minor indiscretions made by

young people should be condoned rather than to brand them as criminals for

the rest of their lives. Relying upon Morris Vs. Crown Office (1970) 2 Q.B.

114, it was held that the non-mentioning of involvement in a criminal case

was out of fear inasmuch as if the same had been disclosed, he would have

been automatically disqualified. The Supreme Court accordingly held

cancellation of provisional selection of Sandeep Kumar to be illegal.

4. The appellant in the present case also is now about 26 years of age; in

the year 2000 he was less than 16 years of age; the offence with which he

was charged is also not grave. It would thus be seen that the judgment of

the Apex Court squarely applied.

5. However the Tribunal held that Sandeep Kumar (supra) could not be

read as laying down that the factum of furnishing of false information or

suppression of any material information in the application form has to be

condoned and is not relevant factor for rejection of the candidature. The

Tribunal further observed that the Apex Court in the judgment in Sandeep

Kumar (supra) had not taken note of previous judgments in Daya Shankar

Yadav Vs. Union of India (2010) 12 SCALE 477 and in Kendriya

Vidyalaya Sangathan Vs. Ram Ratan Yadav (2003) 3 SCC 437 laying

down that if it is found that the employee had suppressed or given false

information in regard to matters which had a bearing on his fitness or

suitability to the post, he could be terminated from service without holding

any inquiry. The Tribunal accordingly did not give to the petitioner the

benefit of the dicta in Sandeep Kumar (supra).

6. We are of the opinion that the Tribunal has erred in appreciating the

dicta of the Apex Court in Sandeep Kumar (supra) and in not following the

same. The Apex Court by the said judgment had affirmed the judgment of

the Division Bench of this Court reported as Sandeep Kumar Vs.

Commissioner of Police (2006) 90 DRJ 707. The Division Bench held that

though there could be no denying that there should be a complete and honest

disclosure of all questions but the same would not prevent the authorities

and the Courts from condoning the non disclosure or false disclosure,

whether it be on account of bona fides or extenuating circumstances. It was

further held that the pleas of inadvertent and / or bona fide mistakes in non

disclosure or wrongful disclosure and of the concealment being not willful

also have to be considered. It was yet further held that in view of acquittal

following compromise in the criminal case, the applicant could not be said

to be having any reason for withholding the information especially if the

incident did not involve any moral turpitude or grave offence and / or was

not demonstrative of any propensity to crime. The Supreme Court besides

affirming the aforesaid propositions further added that the age at the time of

the incident also has to be considered. It was observed that indiscretions

committed in youth can be condoned and owing to such indiscretion or

minor offences, a young man cannot be branded as a criminal for all his life.

It was yet further held that wisdom as in Morris Vs. Crown Office (1970) 2

QB 114 ought to be displayed in such matters. The test of seriousness of the

offence committed and which was concealed was also evolved.

7. The hard reality cannot also be lost sight of. A disclosure of the FIR,

even if leading to acquittal, invariably leads to rejection of the application.

The applicants thus cannot be blamed for shying away from making such

disclosure and / or from indulging in concealment for fear of rejection at the

threshold only without even having any opportunity to explain. We may in

this regard also notice that the "Policy For Deciding Cases of Candidates

Provisionally Selected in Delhi Police, Involved in Criminal Cases (Facing

Trial or Acquitted)" has been framed vide Standing Order No.398/2010

dated 23.11.2010. The said Policy also provides that even where the

disclosure has not been made in the application form and the facts are

discovered on verification, the case is required to be referred to the

Screening Committee to assess suitability for appointment. The concept of

minor offences and / or offences not involving moral turpitude has also been

evolved. The same indicates that the respondents have themselves accepted

the judgment of the Apex Court in Sandeep Kumar (supra). The Tribunal

has thus erred in ignoring the dicta in Sandeep Kumar and in blindly

following the earlier judgments in Daya Shankar Yadav and Ram Ratan

Yadav (supra) when the judgment in Sandeep Kumar was an advancement

in law.

8. We may even otherwise observe that the principle of precedents also

require the Tribunal to test the case of the petitioner in terms of the

judgment in Sandeep Kumar which was later in point of time and had

evolved exceptions out of the law earlier laid down in Daya Shankar Yadav

and Ram Ratan Yadav. It was not for the Tribunal to ignore the latest dicta

and to decide the lis following the earlier judgments holding that the same

had not been noticed in the latest dicta. The Supreme Court in Director of

Settlements, A.P. Vs. M.R. Apparao (2002) 4 SCC 638 held that the

decision in a judgment of the Supreme Court cannot be assailed on the

ground that certain aspects were not considered or were not brought to

notice of the Court; that when the Supreme Court decides a principles it

would be the duty of the High Courts or the Subordinate Courts to follow

the decision of the Supreme Court.

9. We may notice that the Tribunal in the impugned order has also relied

upon its earlier order dated 25th March, 2011 in Jai Singh Vs. GNCTD. We

have in W.P.(C) No.7472/2011 preferred thereagainst, on 2 nd November,

2011 set aside the said order of the Tribunal also.

10. We therefore set aside / quash the order of the Tribunal and also

quash the order dated 20.08.2010 of the respondents cancelling the

candidature of the petitioner for the post of Constable (Executive) Male and

direct the respondents to, subject to the petitioner complying with the other

requirements / formalities and otherwise being found suitable, consider the

case of the petitioner for appointment.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

NOVEMBER 22, 2011/bs..