Commissioner Of Police & Anr. vs Rakesh Kumar
2012 Latest Caselaw 3226 Del

       *         IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                 Judgment delivered on 15.05.2012

+      W.P.(C) 2861/2012

COMMISSIONER OF POLICE & ANR.                                 ...           Petitioners

                                        Versus
RAKESH KUMAR                                                  ...           Respondent
Advocates who appeared in this case:
For the Petitioners   : Mr S.P.Sharma
For the Respondent    : None.
CORAM:
HON'BLE MR. JUSTICE BADAR DURREZ AHMED
HON'BLE MR. JUSTICE V.K.JAIN
                  JUDGMENT

BADAR DURREZ AHMED, J. (ORAL)

CM 6175/2012(exemption) Allowed, subject to all just exceptions.

The application stands disposed of.

W.P.(C) 2861/2012 & CM 6176/2012(stay)

1. The writ petition is directed against the orders dated 09.01.2012 and

06.03.2012 passed by the Central Administrative Tribunal, Principal Bench, New

Delhi, in O.A. No. 798/2011 and R.A. No. 54/2012 respectively. The respondent

(Rakesh Kumar) applied for the post of Constable (Executive) with the Delhi

Police for the recruitments which took place in 2009. In the said application,

Rakesh Kumar had clearly disclosed that he had been allegedly involved in a case

arising out of an FIR No. 93/2008 registered under Section 143/323/341/325 IPC at

Police Station Kurhera, District Bharatpur, Rajasthan. He had also disclosed the

factum of the pendency of the criminal case. However, despite this, the said

Rakesh Kumar was offered appointment and he actually joined service as a

Constable.

2. Subsequently, a show-cause notice was issued to the said Rakesh Kumar on

19.07.2010 asking him to show-cause as to why his service ought not to be

terminated under Rule 5(i) of the CCS (Temporary Service) Rules, 1965. The said

Rakesh Kumar submitted his reply on 24.07.2010. The reply was, of course, not

accepted by the petitioner and consequently, by an order dated 25.08.2010, the

Additional Commissioner of Police : Principal, Police Training College, Jharoda

Kalan, New Delhi, terminated the services of Rakesh Kumar in pursuance of the

provisions of Rule 5(i) of the CCS (Temporary Service) Rules, 1965 with

immediate effect.

3. Rakesh Kumar preferred an appeal before the Appellate Authority. The

Appellate Authority also rejected the appeal by an order dated 11.01.2011 but

modified the order after relying on the Standing Order No. 371/2009 in the

following manner:-

"Since the abovesaid case is pending trial in the court and at this stage his representation cannot be accepted in view of the erstwhile prevailing SO No. 371/2009. In case he

is acquitted/discharged in this case, he should inform the Department about his acquittal/discharge along with copy of judgment and FIR and his case will be judged by the Screening Committee of PHQ and if found fit/suitable, he will be re-instated in service. Hence, the decision taken by the Disciplinary Authority at this stage in terminating the services of the representationist is correct. Therefore, his representation is hereby rejected."

4. Being aggrieved by the said order dated 11.01.2011, Rakesh Kumar filed the

said Original Application being OA No. 798/2011 in which the impugned order

dated 09.01.2012 came to be passed.

5. At this juncture, it would be appropriate to refer to Standing Order

No. 371/2009 and, in particular, to clause 2(A)(c) thereof which reads as under:-

"2. GUIDELINES:-

           (A)         Concealment of information/declaration at the time of
                       filling up application/attestation forms

           (a)                xxxx

           (b)                xxxx

           (c)         If a candidate had disclosed his involvement and/or arrest in

criminal case(s), complaint case(s), preventive proceedings etc. and the case is pending investigation or pending trial, the candidature will be kept in abeyance till the final decision of the case. After the court's judgment, if the candidate is acquitted or discharged, the case will be referred to the Screening Committee of the PHQ to assess his suitability for appointment in the Delhi Police."

6. As per the said clause 2(A)(c), it is clear that in case a candidate has

disclosed his involvement in a criminal case and the said case was pending trial, the

candidature of such a person was to be kept in abeyance till the final decision of the

case. It is also stipulated that after the Court's judgment if the candidate is

acquitted or discharged, the case of appointment has to be referred to the Screening

Committee of the Police Headquarters to assess the suitability for appointment in

the Delhi Police. It is clear that clause 2(A)(c) of the standing order No. 371/2009

was not followed in the present case. This is so because although Rakesh Kumar

had disclosed his involvement both in his application form as well as in the

attestation form and had also disclosed the fact that the trial was pending, his

candidature was not kept in abeyance but he was in fact appointed as a Constable

(executive). Such appointment was contrary to the said standing order. What

ought to have been done was that the candidature of Rakesh Kumar ought to have

been kept in abeyance till the final decision in the case.

7. In this backdrop, we find that the order passed by the Appellate Authority on

11.1.2011 is in keeping with the Standing Order but, the impugned order passed by

the Tribunal runs contrary to the same. The Tribunal ought not to have set aside

the termination of Rakesh Kumar which would result in his reinstatement. We also

feel that the Tribunal had misdirected itself inasmuch as the Tribunal had not even

adverted to the said Standing Order No. 371/2009 even though that was the specific

ground and basis for the passing of the appellate order dated 11.1.2011. Once the

Standing Order is seen and, in particular, clause 2(A)(c) thereof, it is abundantly

clear that in a case such as present the candidature of Rakesh Kumar has to be kept

in abeyance till the final decision of the case. If the Court's decision goes in favour

of Rakesh Kumar, his case for appointment would then have to be referred to the

Screening Committee of the Police Headquarters for assessing his suitability for

appointment in the Delhi Police.

8. In fact, Rakesh Kumar's case ought not to have been considered under Rule

5(i) of the CCS(Temporary Service) Rules, 1965 at all, inasmuch as his very

appointment was contrary to the Standing Order. Consequently, we feel that the

impugned orders passed by the Tribunal cannot be sustained. As a result, the same

are set aside. While doing so, we restore the order dated 11.01.2011 passed by the

appellate authority which, we feel, is in keeping with the Standing Order.

9. The writ petition is allowed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

V.K.JAIN, J MAY 15,2012/'sn'