Between vs State Of H.P.
2021 Latest Caselaw 4789 HP

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 28th DAY OF SEPTEMBER, 2021




                                                          .
                           BEFORE





           HON'BLE MR. JUSTICE AJAY MOHAN GOEL
                 CIVIL WRIT PETITION (ORIGINAL APPLICATION)





                 No. 664 of 2020

     Between:-
     SANDEEP KUMAR, S/O SH.
     MOHINDER             KUMAR,




     RESIDENT    OF   MOHINDER
     COTTAGE, P.O. KASUMPTI,
     DISTRICT SHIMLA, H.P.
                                                 ...PETITIONER

     (BY SHRI SANJEEV BHUSHAN,

     SENIOR   ADVOCATE, WITH SHRI
     RAJESH KUMAR, ADVOCATE)

     AND



1.   STATE OF H.P. THROUGH
     SECRETARY (HOME) TO THE
     GOVERNMENT OF HIMACHAL




     PRADESH, SHIMLA-2.





2.   DIRECTOR     GENERAL          OF
     POLICE, SHIMLA, H.P.

3.   INSPECTOR    GENERAL OF





     POLICE, SOUTHERN RANGE,
     SHIMLA, H.P.

4.   SUPERINTENDENT OF POLICE,
     SHIMLA, HIMACHAL PRADESH.


                                          ...RESPONDENTS
     (BY  SHRI   ASHOK   SHARMA,
     ADVOCATE GENERAL, WITH M/S
     SUMESH RAJ, ADARSH SHARMA &




                                         ::: Downloaded on - 31/01/2022 23:08:55 :::CIS
                                            2

      SANJEEV   SOOD,   ADDITIONAL
      ADVOCATE GENERALS & MR.
      KAMAL KANT, DEPUTY ADVOCATE
      GENERAL)




                                                                          .
      Whether approved for reporting? Yes.





__________________________________________________________
         This petition coming on for hearing this day, the Court passed
the following:





                                       JUDGMENT

By way of this petition, the petitioner has, inter alia, prayed for

the following reliefs:-

              "(i)           r That this Original Application may
              kindly      be         allowed   and    the      impugned

              orders/communications              dated         07.1.2011

(Annexure A-4), 07.06.2012 (Annexure A-7), 05.05.2014 (Annexure A-9) and 17.06.2016

(Annexure A-10) may very kindly be quashed and set aside.

(ii) That the respondents may very kindly

be directed to offer the appointment to the post of

Constable to the applicant by further directing the respondents to send the applicant for training for

the post of Constable in the Police Department (6th I.R.B.N., Sirmour, District Shimla) by further directing the respondents to grant all consequential benefits to the applicant from the date his counterparts were given appointment, which included pay, arrears, seniority etc. in the interest of law and justice.

(iii) That the respondents may very kindly be directed to grant pay and seniority to the applicant from the date when the persons from the

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same recruitment process were given the same."

2. Brief facts necessary for the adjudication of present petition

are as under:-

Respondents advertised the posts of Constable in 6 th Indian

Reserve Battalion (IRBn.) Sirmaur, District Shimla. Petitioner being

eligible, participated in the process of selection. His identification number

was SHI2196. He was called for the physical efficiency test vide letter

dated 04.04.2010 (Annexure A-1). He qualified the physical efficiency test

and thereafter appeared in the written examination under Roll No. 191095.

He successfully cleared the same. Thereafter, he was called for

personality test, which took place at Police Line Bharari, Shimla on

30.09.2010. Petitioner was declared over all successful in the selection

process so undertaken and was reflected amongst the selected

candidates for the post in issue. As other successful candidates, who had

participated in the selection process alongwith the petitioner were called

for training and he did not receive any such communication, he made a

representation to the Inspector General of Police, Recruitment Board,

Southern Range, Shimla on 02.01.2011 (Annexure A-3). In response

thereto, he was informed vide Annexure A-4, dated 07.01.2011 that

though he was provisionally selected for the post of Constable 6th IRBn.

and other Battalions, however, when his character and antecedents were

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got verified from the local police, it was found that FIR No. 3/2006, dated

04.01.2006, under Section 160 of the Indian Penal Code and FIR No.

101/2006, dated 09.05.2006, under Sections 325 & 34 of the Indian Penal

Code were registered against him at Police Station East and though in

FIR No. 101/2006, he was acquitted by learned Court, but in FIR No.

3/2006, dated 04.01.2006, he was fined Rs.100/- and was sentenced till

the rising of the Court and in this view of the matter, as the sentence stood

imposed upon the petitioner, he could not be offered appointment.

3. Against the judgment of conviction, the petitioner had

preferred an appeal, which was decided by the Court of learned Additional

Sessions Judge, Fast Track Court, Shimla, H.P. vide judgment dated

30.12.2011, passed in Criminal Appeal No. 31-S/10 of 2011, titled as

Sandeep Kumar Vs. State of H.P., copy of which judgment is appended

with the petition as Annexure A-5. In terms thereof, the appeal so filed by

the petitioner against the judgment of conviction, was allowed by the

learned Appellate Court by holding that the prosecution had not been able

to prove that the petitioner was guilty of the offence alleged against him.

He was thus acquitted of the offence punishable under Section 160 of the

Indian Penal Code.

4. Thereafter, vide Annexure A-6, the petitioner made a

representation to the Inspector General of Police, Recruitment Board,

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Southern Range, Shimla, H.P. for offering him appointment in view of the

fact that the judgment of conviction against him had been set aside by the

learned Appellate Court. However, the claim of the petitioner was rejected

by the respondent-Department vide Communication dated 07.06.2012

(Annexure A-7) on the ground that as at the time of participating in the

process of selection, the petitioner did not disclose that there were

criminal cases pending against him or that he stood involved in criminal

cases, hence as per the directions of the Police Headquarter, he could not

be considered for the post in question.

5. For completion of pleadings, it is relevant to mention that the

petitioner after issuance of Communication, dated 07.06.2012 (Annexure

A-7) filed a writ petition before this Court, i.e., CWP No. 309 of 2011-A,

which was disposed of by this Court in the following terms:-

"After the matter was heard for some time, learned counsel, under instructions, seeks

permission to withdraw the present petition with liberty to approach the respondent-authorities for redressal of his grievances as also approach this Court on the same cause of action, if need so arises. Request not opposed by leaned Dy. Advocate General. As such, prayer allowed.

2. In view of the aforesaid observations, petition is disposed of with a direction that as and when any request is received by the competent

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authority, same shall be considered and decided on

its merits, in accordance with law, within a period of two months from the date of receipt thereof after

affording adequate opportunity of hearing to all concerned. Liberty granted to the petitioner to approach the Court if need so arises subsequently."

6.

Thereafter, the petitioner made a detailed representation to

the Inspector General of Police, Sounthern Range, H.P., Shimla, however,

the same was rejected vide Communication dated 05.05.2014 (Annexure

A-9). Petitioner filed an appeal against the same before the Principal

Secretary (Home), Government of Himachal Pradesh, which was also

rejected vide Communication dated 17.06.2016 (Annexure A-10).

7. Feeling aggrieved, the petitioner filed this petition (originally

filed as OA No. 6163/2016 before the erstwhile learned Himachal Pradesh

State Administrative Tribunal).

8. Learned Senior Counsel for the petitioner has argued that

rejection of the candidature of the petitioner is not sustainable in the eyes

of law, for the reason that when earlier the appointment was refused to the

petitioner on the ground that he stood convicted by imposition of fine to

the tune of Rs.100/- and by award of sentence till the rising of the Court,

subsequently his candidature could not be rejected in view of the fact that

he stood acquitted, that too, honourably by the learned Appellate Court on

a new ground. On this count, he prays that the impugned orders be set

.

aside and the respondents be directed to offer the petitioner appointment

against the post of Constable in 6th IRBn. and/or other Battalions. On

instructions from the Instructing Counsel, learned Senior Counsel has

stated that in case this Court is pleased to grant the said relief in favour of

the petitioner, then the petitioner shall forgo the relief of seniority etc. and

he shall accept the appointment as from the date when the offer shall be

made to him, but in case he has become over age, then this aspect may

be looked into by the Court sympathetically.

9. Opposing the petition, learned Additional Advocate General

has submitted that there is no infirmity in the orders passed by the

Department vide which the case of the petitioner was rejected. He has

specifically drawn the attention of the Court to the averments made in

para-6(ii) of the reply, which has been filed to the petition (originally filed

as OA). He submitted that there was concealment of fact by the petitioner

at the time when he applied for the post in question, because he did not

disclose about the pendency of criminal cases against him and about his

conviction. He also submitted that in terms of the Form which has to be

filled in by the candidate at the time of applying for the post in question,

these holding outs are to be mandatorily made out by a candidate and as

the petitioner herein has mislead the employer, therefore, he deserves no

sympathy from the Court. He has further submitted that as on the date,

when initially the candidature of the petitioner was rejected by the

.

Department, admittedly, there was a judgment of conviction against him

and, therefore, the rejection of the candidature of the petitioner as on the

said date cannot be held to be bad, even if subsequently in appeal, the

judgment of conviction was set aside. Accordingly, he has prayed for

dismissal of the petition.

10. I have heard learned counsel for the parties and also gone

through the pleadings as well as the record of the case.

11. The factum of the petitioner being provisionally selected for

the post of Constable is not in dispute. The factum of rejection of the

candidature of the petitioner initially by the Department on the ground that

he stood convicted in FIR No. 3/2006, dated 04.01.2006 is also not in

dispute. Subsequently, after the petitioner was acquitted by the learned

Appellate Court and he approached the Department seeking appointment

against the post of Constable, the same stood refused to him by the

Department, on the ground that he had concealed the factum of his being

involved in criminal cases at the time of applying for the post in issue. This

is also a fact which is not much in dispute. However, this Court cannot

lose sight of the fact that the offence for which the petitioner was

convicted at the relevant time and which he concealed, was under Section

160 of the Indian Penal Code and at that time, age of the petitioner was

hardly between 18-19 years. Not only this, even the punishment which

stood imposed upon him, which subsequently stood set aside by the

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learned Appellate Court, was to pay fine of Rs.100/- and sentence up to

the rising of the Court.

12. In similar circumstances, Hon'ble Supreme Court in

Commissioner of Police and others Vs. Sandeep Kumar (2011) 4

Supreme Court cases 644 has been pleased to hold as under:-

"8. We respectfully agree with the Delhi High Court that the cancellation of his candidature was illegal, but we wish to give our own opinion in

the matter. When the incident happened the

respondent must have been about 20 years of age. At that age young people often commit

indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a

manner as older people. Hence, our approach

should be to condone minor indiscretions made by young people rather than to brand them as

criminals for the rest of their lives.

9. In this connection, we may refer to the character 'Jean Valjean' in Victor Hugo's novel 'Les Miserables', in which for committing a minor offence of stealing a loaf of bread for his hungry family Jean Valjean was branded as a thief for his whole life. The modern approach

should be to reform a person instead of branding him as a criminal all his life.

10. We may also here refer to the case

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of Welsh students mentioned by Lord Denning in his book 'Due Process of Law'. It appears

that some students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes

were being broadcast in the English language and not in Welsh. Then came up to London and invaded the High Court. They were found guilty

of contempt of court and sentenced to prison for

three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord Denning observed :-

"I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive,

at the time they were given and in the circumstances then existing. Here was a

deliberate interference with the course of justice in a case which was no concern of theirs. It was necessary for the judge to show -

and to show to all students everywhere - that this kind of thing cannot be tolerated. Let students demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike at the course of justice in this land - and I speak both for England and Wales - they strike at the roots of society itself, and they bring down that which protects them. It is only by the maintenance of law and order that they are

privileged to be students and to study and live in peace. So let them support the law and not strike it down.

But now what is to be done? The

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law has been vindicated by the sentences

which the judge passed on Wednesday of last week. He has shown that law and order must be maintained, and will be maintained. But on

this appeal, things are changed. These students here no longer defy the law. They have appealed to this court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them

inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was much that we should applaud. They

wish to do all they can to preserve the Welsh

language. Well may they be proud of it. It is the language of the bards - of the poets and the singers - more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with English. They have done

wrong- very wrong - in going to the extreme they did. But, that having been shown, I think we can, and should, show mercy on them. We

should permit them to go back to their studies, to their parents and continue the good course

which they have so wrongly disturbed."[ Vide : Morris Vs. Crown Office, (1970) 2 Q.B. at p.125C-H.)

In our opinion, we should display the same wisdom as displayed by Lord Denning.

11. As already observed above, youth often commits indiscretions, which are often condoned.

12. It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections

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325/34 IPC. Probably he did not mention this

out of fear that if he did so he would automatically be disqualified. At any event, it

was not such a serious offence like murder, dacoity or rape, and hence a more lenient view should be taken in the matter."

13.

Similarly, in Basanti Prasad Vs. Chairman, Bihar School

Examination Board and others (2009) 6 Supreme Court Cases 791, in

which case, the services of the incumbent therein were terminated after

he stood convicted in a criminal case, which sentence was subsequently

set aside in appeal and the incumbent was acquitted, Hon'ble Supreme

Court was pleased to hold that since the punishment imposed was based

on an order of conviction and since the same stood set aside by an order

passed by a superior Forum and that order has become final for various

reasons, the natural corollary of the same is that the order of the

Department terminating the services of the incumbent was required to be

set aside.

14. Ordinarily, in such like cases, this Court does not interfere

with the decision of the employer because in case a person applies for a

post and does not disclose true facts, then such person has to face the

consequences. But herein we are dealing with the petitioner, who at the

relevant time was 18 to 19 years old. Therefore, as has been held by the

Hon'ble Supreme Court in Commissioner of Police and others (supra), the

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approach has to be to give opportunity to such a person to reform instead

of branding him as a criminal all his life. As has been held by the Hon'ble

Supreme Court, at young age, people often commit indiscretions and such

indiscretions can often be condoned, as after all, youth will be youth.

Hon'ble Supreme Court has also observed in the said case that at such

age, young people are not expected to behave in as mature a manner as

older people. Therefore, approach has to be to condone minor

indiscretions rather than to brand them as criminals for rest of their lives.

15. While respectfully concurring with the findings so returned by

the Hon'ble Supreme Court, this Court is of the view that this benefit in the

present case also deserves to be given to the present petitioner, taking

into consideration his age when said indiscretion was committed by him.

16. In this view of the matter, this petition is allowed. Annexures

A-4 dated 07.01.2011, A-7 dated 07.06.2012, A-9 dated 05.05.2014 and

A-10 dated 17.06.2016 are ordered to be quashed and set aside, with a

direction to the respondent-Department to offer appointment to the

petitioner against the post of Constable in 6th IRBn. Sirmaur, District

Shimla or other Battalions. It is further directed that in case the petitioner

has become over age, then he shall be offered appointment by exercising

the power of relaxation. However, it is clarified that the appointment of the

petitioner, for all intents and purposes, shall be prospective as from the

date of his appointment, which be offered to him not less than 60 days

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from today. The petitioner shall be ranked at the bottom of the seniority list

as on the date of appointment and he shall not claim any benefit

whatsoever prior to the date of his appointment.

With these observations, the petition stands disposed, so also

pending miscellaneous applications, if any.

(Ajay Mohan Goel) Judge September 28, 2021 (bhupender)