Karnataka High Court
The State Of Karnataka vs Sri. Manohar S/O Sri. Manappa on 13 February, 2024
Author: S G Pandit
Bench: S G Pandit
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE S G PANDIT
AND
THE HON'BLE MR JUSTICE K V ARAVIND
WRIT PETITION NO.111563 OF 2017 (S-KAT)
BETWEEN:
1. THE STATE OF KARNATAKA
KM
SOMASHEKAR REP. BY SECRETARY TO GOVT.
Digitally signed by
HOME DEPARTMENT,
K M SOMASHEKAR
Date: 2024.02.17
10:26:15 +0530
VIDHANA SOUDHA, BENGALURU.
2. THE SUPERINTENDENT OF POLICE
BALLARI DISTRICT,
BALLARI-583101.
...PETITIONERS
(BY SRI. G.K. HIREGOUDAR, GOVERNMENT ADVOCATE)
AND:
SRI. MANOHAR S/O. SRI. MANAPPA
AGED ABOUT 27 YEARS,
ARMED POLICE CONSTABLE NO.71,
OFFICE OF THE DEPUTY SUPERINTENDENT OF POLICE,
DISTRICT ARMED RESERVE POLICE, RAICHUR,
R/AT: C/O. T. ANNAPPA,
NEAR WATER TANK,
L.B.S. NAGAR, RAICHUR-584101.
...RESPONDENT
(BY SRI. RAMACHANDRA V. BHAT, ADVOCATE FOR
SRI. F.V. PATIL, ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE A WRIT, ORDER
OR DIRECTION IN THE NATURE OF CERTIORARI FOR SET ASIDE THE
IMPUGNED ORDER PASSED ON 18.11.2016 BY THE KARNATAKA
ADMINISTRATIVE TRIBUNAL, BENGALURU IN APPLICATION
NO.1577/2011 (ANNEXURE-"C" TO THE WRIT PETITION) & ECT.,
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED ON
12.01.2024 COMING ON FOR PRONOUNCEMENT OF ORDER, THIS
DAY, S G PANDIT, J., MADE THE FOLLOWING:
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ORDER
The State authorities are before this Court under
Article 226 of the Constitution of India questioning the
correctness and legality of the order dated 18.11.2016
passed in Application No.1577/2011 by the Karnataka State
Administrative Tribunal at Bangalore (for short, 'the
Tribunal') wherein the respondents were directed to
consider the representation of the applicant and restore the
applicant's name in the provisional select list dated
18.01.2008 and the final list. The Tribunal further directed
that, if a vacant post was not available, the respondent
shall create supernumerary post of Police Constable and
appoint the applicant (the respondent herein) as Police
Constable in Bellary District.
2. The parties would be referred to as they stand
before the Tribunal. Before the Tribunal, the petitioners
herein were the respondents and the respondent herein was
the applicant.
3. Heard Sri. G.K.Hiregoudar, learned Government
Advocate for the petitioners-respondents, and Sri. Nandish
Patil, learned counsel for the respondent-applicant. Perused
the writ petition papers.
4. Brief facts of the case are that:
(a) The applicant was working as an Armed Police
Constable in District Armed Reserve Police at Raichur.
He applied for the post of Police Constable (Civil) in
Bellary District in pursuance of the Notification dated
10.07.2007. The applicant was successful and he was
placed in the provisional select list published on
18.01.2008 and was at Sl.No.17 of the said list. At that
point of time, a complaint came to be registered against
the applicant for the offences punishable under Sections
376 and 420 of the Indian Penal Code, 1860, and it was
registered as C.C. No.124/2008. Subsequently, a charge
sheet was filed and the case was committed to the
Sessions Court at Raichur and the same was numbered
as S.C. No.78/2008.
(b) The respondent (petitioner No.2 herein) taking note of
the charge sheet filed against the applicant in S.C.
No.78/2008, by order dated 24.06.2008 (Annexure-A3)
deleted the name of the applicant from the provisional
select list. It is also pertinent to note here itself that, on
the very same allegations, a departmental enquiry was
also initiated against the applicant by issuing a charge
memo dated 31.08.2008. In the meanwhile, the
applicant was acquitted from the criminal case vide
judgment dated 24.10.2008.
(c) However, in the departmental enquiry, vide order dated
02.07.2010 passed by Superintendent of Police,
Raichur, the applicant was imposed with penalty of
stoppage of two increments with cumulative effect and
further ordered to treat the period of suspension as
suspension only. On an appeal filed by the applicant,
the Inspector General of Police, North-Eastern Range,
Kalaburagi, vide order dated 17.11.2010, allowed the
appeal and set aside the order dated 02.07.2010.
(d) Thereafter, in view of the order of acquittal and
exoneration in the departmental enquiry, the applicant
requested the respondent to include his name in the
provisional select list and final select list and to appoint
him as Police Constable (Civil). When the respondent
failed to consider his request, the applicant approached
the Tribunal in Application No.1577/2011 with a prayer
to direct the respondent to appoint him to the post of
Police Constable (Civil) from the date his juniors were
appointed, with all consequential benefits. The Tribunal,
under impugned order, directed the respondent to
consider the representation of the applicant and to
restore his name in the provisional list dated
18.01.2008 and the final select list; and further directed
the respondent that, if a vacant post was not available,
to create a supernumerary post of Police Constable and
appoint the applicant as Police Constable in Bellary
District.
5. Sri. G.K.Hiregoudar, learned Government
Advocate would submit that the Tribunal committed a grave
error in allowing the application of the applicant and in
directing the petitioners/respondents to include the name of
the applicant in the provisional select list and final select list
of Police Constable (Civil) and to appoint the applicant by
creating supernumerary post, if vacant post was not
available. Learned Government Advocate would submit that
suitability of a candidate is to be assessed in terms of Rule
10 of the Karnataka Civil Services (General Recruitment)
Rules, 1977 (for short, 'the 1977 Rules'), and only on being
satisfied that the candidate is suitable to the post for which
he was selected, appointment could be made. He submits
that in the instant case, the applicant was facing charge
under Sections 376 and 420 of IPC and as such,
respondent/petitioner No.2 rightly deleted the name of the
applicant from the provisional select list. Further, the
learned Government Advocate would submit that, after
deleting the name of the applicant, the selection was
finalised and all the posts were filled up. He would submit
that the applicant, though was acquitted in October 2008,
approached the Tribunal belatedly after more than three
years in the year 2011 by which time there was no vacancy
and all the notified vacancies under the Notification dated
10.07.2007 were filled up. Further, the learned Government
Advocate would submit that the applicant never challenged
the order dated 24.06.2008 by which his name was deleted
from the select list, and without challenging the order
deleting his name from the select list, the applicant could
not have approached the Tribunal seeking only for a
mandamus that too belatedly.
6. Learned Government Advocate would also
contend that mere inclusion of name in the select list would
not confer any right on the selected candidate and it is for
the authority to examine the suitability or otherwise of a
selected candidate before appointing such a selected
candidate.
7. Learned Government Advocate places reliance on
the decision of the Hon'ble Apex Court in the case of Union
of India and Others Vs. Methu Meda1 to say that a
person who wishes to join police force must be a person of
utmost rectitude and have impeccable character and
integrity. Further, it is contended that the acquittal of the
applicant is due to witness turning hostile. It is submitted
that, moreover, the Tribunal could not have directed the
authorities to create supernumerary post to provide
(2022)1 SCC 1
appointment to the applicant. It is also submitted that, in
the facts and circumstances of the case, the Tribunal had no
jurisdiction to issue such a direction to create
supernumerary post. Thus, he prays to allow the writ
petition and to set aside the impugned order of the
Tribunal.
8. Per contra, Sri. Nandish Patil, learned counsel
appearing for the applicant would support the order passed
by the Tribunal and submit that the Tribunal rightly directed
the respondents to consider the case of the applicant for
appointment as Police Constable (Civil) taking note of the
fact that the applicant is exonerated of the criminal charges
made against him. Learned counsel referring to the
judgment in S.C. No.78/2008 would submit that the
applicant is exonerated as there was no evidence available
against the accused and further submits that the
prosecution has miserably failed to bring home the guilt of
the accused, and thus when the applicant is acquitted on
the ground that there was no evidence, the applicant would
be entitled for consideration of his case for appointment to
the post of Police Constable (Civil).
9. Learned counsel for the applicant would further
submit that in departmental enquiry instituted against the
applicant, the applicant is exonerated and as such, there
was no impediment for the respondents-authorities to
consider the case of the applicant for being appointed to the
post of Police Constable (Civil). Further, learned counsel
would submit that when the Tribunal had come to the
conclusion that the applicant is entitled for consideration of
his case for appointment, since he was acquitted of
charges, the Tribunal was justified in directing the
respondents-authorities to create a supernumerary post.
Thus, he prays for dismissal of the writ petition.
10. Having heard the learned counsel for the parties
and on perusal of the writ petition papers, the only point
which falls for consideration is,
Whether the impugned order of the
Tribunal requires interference?
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11. The answer to the above point would be in the
affirmative for the following reasons:
(a) The applicant was working as a Armed Police Constable
in District Armed Reserve Police, and he submitted an
application to the post of Police Constable (Civil)
pursuant to the Notification dated 10.07.2007 issued
by respondent/petitioner No.2. As the applicant was
successful in all the tests, he was selected and placed
at Sl.No.17 in the provisional select list dated
18.01.2008.
(b) It is not in dispute that, at that relevant point of time,
one Smt. Basamma filed a criminal complaint against
the applicant in which the applicant was arrested on
31.01.2008 and was enlarged on bail on 06.03.2008. A
criminal case in C.C. No.124/2008 came to be
registered and charge sheet was filed for the offences
punishable under Sections 376 and 420 of IPC. The
said criminal case was committed to the Sessions Court
at Raichur and it was numbered as S.C. No.78/2008.
Taking note of the said fact, respondent (petitioner
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No.2)-Superintendent of Police, by order dated
24.06.2008 deleted the name of the applicant from the
select list. Admittedly, the applicant has not challenged
the said order dated 24.06.2008.
(c) The recruitment and appointment in question is to the
police department, a disciplined force. A candidate to
be recruited to the Police Service must be worthy of
confidence and must have an impeccable character and
integrity. A person having criminal antecedent would
not fit into the said category; even if he is acquitted or
discharged, it cannot be presumed that he was
completely exonerated; persons likely to erode the
credibility of police ought not to enter the police force
[State of Madhya Pradesh and Others Vs. Parvez
Khan - (2015)2 SCC 591].
(d) The Hon'ble Apex Court in the case of Methu Meda
(supra) has also made it clear that the employer has
right to consider the suitability of a candidate as per
the government orders/instructions/rules at the time of
taking a decision for induction of the candidate in
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employment. Further, the Hon'ble Apex Court makes it
clear that if one is acquitted because the witnesses
turned hostile, it would not automatically entitle for
employment, that too in a disciplined force. The
relevant paragraph 21 reads as follows:
"21. As discussed hereinabove, the law is well-
settled. If a person is acquitted giving him the benefit of
doubt, from the charge of an offence involving moral
turpitude or because the witnesses turned hostile, it
would not automatically entitle him for the employment,
that too in disciplined force. The employer is having
aright to consider his candidature in terms of the
circulars issued by the Screening Committee. The mere
disclosure of the offences alleged and the result of the
trial is not sufficient. In the said situation, the employer
cannot be compelled to give appointment to the
candidate. Both the Single Bench and the Division
Bench of the High Court have not considered the said
legal psotiion, as discussed above in the orders
impugned. Therefore, the impugned orders passed by
the learned Single Judge of the High Court in Methu
Meda V. Union of India and the Division Bench in Union
of India v. Methu Meda are not sustainable in law, as
discussed hereinabove."
In the instant case also, on a perusal of the judgment
dated 24.10.2008 passed in S.C. No.78/2008, it is seen
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that P.W.1-complainant completely turned hostile. The
learned Sessions Judge has observed that P.W.1 is not
an illiterate and she is a Post-Graduate. P.W.2, the
mother of the victim, has also turned hostile. P.W.4 a
relevant witness also turned hostile. When the
applicant is acquitted as the witnesses turned hostile,
the applicant would not automatically be entitled for
employment. Rule 10 of 1977 Rules empowers the
authority to get itself satisfied with the character in
addition to the qualification with regard to suitability of
a candidate for appoint to government service.
(e) The Tribunal committed a grave error in directing
consideration of applicant's case and to restore the
applicant's name in the provisional list dated
18.01.2008 without examining as to the nature of
acquittal and without taking note of the fact that the
recruitment is to police department - a disciplined
force. The Tribunal also committed further error in
directing the authorities to create a supernumerary
post if vacant post was not available, when the
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applicant approached the Tribunal belatedly more than
three years after completion of the recruitment without
challenging the order deleting his name from the select
list. When the vacancy notified in a particular
notification are filled up, normally, the Courts and
Tribunals shall restrain itself from directing the
authorities to create supernumerary post.
12. For the reasons recorded above, the writ
petition is allowed. The order dated 18.11.2016 passed in
Application No.1577/2011 by the Tribunal is set aside, and
consequently, the Application No.1577/2011 stands
dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
KMS
