Delhi High Court

Satish Kumar vs Union Of India & Ors on 8 November, 2013

Author: Gita Mittal

$~11
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 6275/2012 and CM Nos.822/2013 and 16788/2012


%                         Date of decision: 8th November, 2013


      SATISH KUMAR                              ..... Petitioner
                          Through :    Mr.N.L.Bareja, Adv.

                          versus

      UNION OF INDIA & ORS                      ..... Respondents
                    Through :          Mr.Sunil       Kumar      and
                                       Mr.T.P.Singh, Advocates.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MS. JUSTICE DEEPA SHARMA

      GITA MITTAL, J. (Oral)

1. By way of the instant writ petition the petitioner has assailed

the order dated 26th September, 2011 and whereby the respondents

have held that the petitioner was not suitable for recruitment in the

Central Industrial Security Force on account of his implication in a

criminal prosecution. The petitioner also assails the order dated 6th

January, 2012 passed by the respondents to the legal notice served

by the petitioner challenging the above decision.

2. The case of the petitioner is that pursuant to the

advertisement issued in September, 2010, he had applied for the

direct recruitment to the post of ASI/Pharmacist in CISF as a

General Category candidate. He was successful in the written

examination conducted by the respondent on 10th October, 2010

whereafter he was required to report to the National Industrial

Security Academy (NISA), Ranga Reddy, Hyderabad with original

certificates/testimonials for undergoing Physical Standard Test

(PST), Basic Vocational Aptitude Test and the Basic Vocational

Aptitude Test (BVAT) as well as interview etc.

3. It is undisputed before us that the application form for

recruitment to be filled by the petitioner required information to be

given with regard to conviction by a court or judicial institution;

pendency of a case in court of law; lodging of FIR and pendency of

the case arising therefrom and in addition full details of the FIR;

police station; whether charge sheet was submitted or returned; if

the case was charge sheeted, then what was the

outcome/information in the court, that had to be given in Appendix

B to the application form.

4. The respondents have placed the original application form

dated 6th September, 2010 which was filled by the petitioner duly

signed by him. The petitioner has responded in the negative to all

the queries made by the respondents.

5. It is the admitted position that when the petitioner reported to

the training institute at Hyderabad, he was required to fill another

questionnaire which is dated 19th August, 2011. In this

questionnaire, the petitioner disclosed that FIR under Section 417

and 419 of the IPC was registered against him by Police Station

Hissar, Haryana. The petitioner, however, did not reveal the

number of the case despite a specific query contained in the form.

In reply to the query, as to whether he was charge sheeted, the

petitioner had endorsed that no charge sheet was issued.

6. The petitioner wrote a representation dated 21st August, 2011

to the Chairman of the Recruitment Board of the CISF at

Hyderabad stating that an FIR was registered against him in the

year 2005 under Section 417 and 419 of the IPC due to a cheating

case in the Haryana Agricultural University (Hissar) under FIR no.

217. The petitioner also submitted that the case was cleared in

April, 2009 as the court could not find proof against the petitioner

and that he would produce the original copy of the order. The

petitioner prayed that the respondents considered his candidature

after receipt of the original clearance.

The respondents kept the matter of issuance of offer of

appointment to the petitioner in abeyance by a communication

dated 25th August, 2011. He was called upon to submit the original

documents.

7. After examination of the judgment in the case lodged against

the petitioner, the respondents took a decision that the acquittal

from the criminal charge was sufficient to render petitioner unfit

for appointment in the CISF it being the Central Armed Police

Force of the Union which was communicated to the petitioner by

the letter dated 26th September, 2011. Aggrieved thereby, the

present writ petition has been filed.

8. Before dealing with the contentions relating to the

allegations against the petitioner, it is necessary to note the fact that

in Appendix B of the original application form, the petitioner has

deliberately concealed the entire information with regard to the

case against him which was then pending. As noted above, this

form was filled up by him on 6th September, 2010. Even in the

questionnaire form which was filled by him at Hyderabad on 19 th

August, 2011, the petitioner had concealed all material facts which

would enable the respondents to take a considered view with regard

to the suitability of the petitioner for recruitment in a disciplinary

force as the Central Industrial Security Force. FIR no.271 was

registered against the petitioner on 9th July, 2005. It is apparent that

the case was pending when the questionnaire was filed on 19th

August, 2011.

9. In his representation dated 21st August, 2011, the petitioner

has again mentioned that the case has been cleared in April, 2009

in order to create an impression that the petitioner was free from

the charge before recruitment process. The above narration would

show that the concealment on the part of the petitioner was

certainly wilful and malafide and he is disentitled to any relief in

exercise of our extraordinary jurisdiction under Article 226 of the

Constitution of India.

10. There is yet another reason which would disentitle the

petitioner to any relief. The respondents have pointed out that the

petitioner was charged for commission of an offence punishable

under Section 417 and 419 of the IPC. The judgment dated 9 th

March, 2011 passed by the learned trial court noted the allegations

by the complainant which were to the effect that one Dharmender

Singh son of Sh.Bhagwan was found impersonating for the

petitioner at the time of entrance examination of VLD which was

held in the Campus School, CCS HAU, Hissar. Dr.V.K.Madan,

the invigilator had appeared as PW1 before the court and had

identified the petitioner present in court as the person involved.

The trial court disregarded this evidence only on the ground that no

other person had been examined to support these allegations and

that the prosecution had failed to tender the roll number slip/date

sheet etc. in the evidence.

11. Learned Standing Counsel for the respondents has placed

before us the copy of policy dated 1st February, 2012 framed by the

Ministry of Home Affairs which provides the guidelines for

considering cases of candidates for appointments in CAPFs against

whom criminal case had been registered and the effect thereof.

12. Our attention has been drawn to paras II, III (a) and V which

read as follows:

"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 disclose 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.

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

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

......

V. Notwithstanding the provisions of 3(III) above, such candidates against whom chargesheet in a criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later on acquitted by extending benefit of doubt or acquitted for the reasons that the witness have turned hostile due to fear of reprisal by the accused person(s), he/she will generally not be considered suitable for appointment in the CAPF. The details of crimes which are serious offences or involve moral turpitude are at Annexure 'A'. However, cases in which the criminal court, while acquitting, has categorically mentioned that the criminal case would not be a bar on appointment in Government Services, the candidate shall be considered for appointment in the concerned CAPF."

13. The respondents have set out in Annexure A the offences

under the Indian Penal Code which are considered as serious

offences or involving moral turpitude. At sl.no.9, the respondents

have specifically included offences under Sections 417 and 419 of

the IPC with which the petitioner was charged.

14. We may also refer to a very recent pronouncement of the

Supreme Court reported in AIR 2013 SC 2861 Commissioner of

Police, New Delhi and Anr. vs. Mehar Singh wherein the issue

which has been raised before us was considered by the Supreme

Court of India. In this judgment, the court considered acquittal of

one of the respondents seeking appointment to the Delhi Police

force. The factual narration and observations of the court on the

claim of this respondent based on his acquittal deserve to be

considered in extenso and read thus:

"23. So far as respondent - Shani Kumar is concerned, the FIR lodged against him stated that he along with other accused abused and threatened the complainant's brother.They opened fire at him due to which he sustained bullet injuries. Offences under Sections 307, 504 and 506 of the IPC were registered against respondent - Shani Kumar and others. Order dated 14/5/2010 passed by the Sessions Judge, Muzaffarnagar shows that the complainant and the injured person did not support the prosecution case. They were declared hostile. Hence, learned Sessions Judge gave the accused the benefit of doubt and acquitted them. This again is not a clean acquittal. Use of firearms in this manner is a serious matter. For entry in the police force,

acquittal order based on benefit of doubt in a serious case of this nature is bound to act as an impediment."

15. In view of the above, the narration in the judgment dated 9 th

March, 2010 and the ground on which the Trial Court had premised

the acquittal of the petitioner, the petitioner cannot claim the

benefit of his acquittal in support of the assertion that the

implication in the criminal case as well as the trial which the

petitioner has faced cannot impact his appointment with the Central

Industrial Force.

16. The fact is that the petitioner was implicated in a case under

Section 417 and 419 of the IPC which squarely fall within the

prohibition under the policy dated 1st February, 2012.

17. Even if it could be argued that the policy would not have any

application as the petitioner was being considered for recruitment