Madras High Court
D.Mahadevan vs The Director General Of Police on 22 July, 2021
WP.No.15053/2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
WP.No.15053/2021
[Video Conferencing]
D.Mahadevan .. Petitioner
Vs.
The Director General of Police
Tamil Nadu, Dr.Radhakrishnan Salai
Mylapore, Chennai-4. .. Respondent
Prayer:- Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a writ of mandamus directing the respondent to
consider and pass orders on the representation dated 27.11.2020 made by
the petitioner for appointment to the post of Sub Inspector of police for the
year 2006-2007 within a limited time frame.
For Petitioner : Mr.M.Alagu Goutham
For Respondent : Mr.C.Kathiravan
Government Advocate
ORDER
1. By consent, the writ petition is taken up for final disposal and
disposed of by this order.
WP.No.15053/2021
2. Mr.C.Kathiravan, learned Government Advocate accepts notice on
behalf of the respondents.
3. The petitioner has filed the present writ petition seeking mandamus
to direct the respondent to consider and pass orders on the
representation dated 27.11.2020 made by the petitioner for
appointment to the post of Sub Inspector of police for the year 2006-
2007 within a limited time frame.
4. Brief facts which are necessary for the disposal of this writ petition,
are as follows.
5. The petitioner was appointed as Grade II Constable on 01.12.2003
through the Tamil Nadu Uniformed Service Recruitment Board
[hereinafter referred to as ''TNUSRB''] for the year 2002-2003 and
promoted as Grade I Constable during the year 2013 and finally
promoted as Head Constable during the year 2018. It is the case of
the petitioner that prior to his entering in the service, he was involved
in a criminal case in Crime No.118 of 1999 for the alleged offences
u/s.341, 323 and 325 of IPC and he was arrayed as the second
accused. It is his further case that the said criminal case ended in
acquittal and the Trial Court had acquitted him based on benefit of
WP.No.15053/2021
doubt. Since the petitioner had suppressed the said fact of criminal
case at the time of his appointment as Grade II Constable, he was
issued with a charge memo under Rule 3[b] of the Tamil Nadu
Police Subordinate Service [Discipline and Appeal] Rules, in
PR.No.24/2005 and he was awarded punishment of reduction in
time scale of pay by two stages for two years without cumulative
effect.
6. During the year 2006, TNUSRB had called for applications for the
post of Sub Inspector of Police and the petitioner had participated in
the same and secured 75 marks [both written examination, physical
fitness and viva voce]. However, the Department had rejected the
petitioner's candidature vide order dated 19.12.2007 on the ground
of suppression of his involvement in the criminal case. Subsequently,
vide order dated 31.12.2007, the earlier order dated 19.12.2007
came to be modified stating that since the petitioner had informed
about his involvement in the criminal case, his candidature is rejected
solely on the ground of his involvement in the said case.
7. The petitioner, challenging the said order dated 31.12.2007, had
filed WP.No.976/2007 and this Court, vide order dated 14.03.2008
WP.No.15053/2021
had disposed of the said writ petition by directing the respondent to
reconsider the case of the petitioner to the post of Sub Inspector of
Police by eschewing the involvement of the petitioner in the criminal
case. Aggrieved over the same, the respondent preferred
WA.No.1287/2008 and a Division Bench of this Court vide
judgment dated 02.09.2009 had allowed the said writ appeal in the
following lines:-
''17.On the facts of this Case, the Board was justified
in not selecting the respondent on the ground that he
had involved in a criminal case and through he was
acquitted, the same was only on benefit of doubt.
The reliance placed by the Board to explanation-1 to
sub-rule [b] of Rule 13 cannot be said to be either
unfair or unreasonable or the decision is not
supported by any provision of the rules. In view of
our above discussion and in view of our finding that
the acquittal by the criminal court was only on
benefit of doubt and it cannot in any way be
construed as one of honourable acquittal, the
respondent is not entitled to be considered for
selection. Hence, the impugned order directing the
appellant to consider the respondent for appointment
to the post of Sub Inspector of Police eschewing from
consideration of the criminal case is liable to be set
aside. Accordingly, the impugned order is set aside.''
8. It is admitted that the petitioner, challenging the above said judgment
of the Division Bench dated 02.09.2009, had filed a Special Leave
WP.No.15053/2021
Petition in SLP [Civil] No.12108/2010 and the Hon'ble Supreme
Court of India dismissed the said SLP vide order dated 01.02.2012.
The petitioner has not moved any review and the judgment of the
Division Bench has become final.
9. The petitioner, narrating the above set of sequence of facts, had
submitted a fresh representation to the respondent on 27.11.2020 to
reconsider his case in the light of subsequent judgment of this court
in some other case. Since the said representation did not evoke any
kind of response, the petitioner is constrained to approach this Court
by filing the present writ petition.
10. The petitioner has relied upon a judgment of the Apex Court
reported in 2018 [1] SCC 797 [Union Territory, Chandigarh Vs.
Pradeep Kumar], wherein the Hon'ble Supreme Court of India
explained the word ''honourable acquittal'', in the light of the
previous judgments. It is held that ''when an accused is acquitted
after full consideration of prosecution evidence and that the
prosecution had miserably failed to prove the charges levelled
against the accused, it can possibly be said that the accused was
honourably acquitted.''
WP.No.15053/2021
11. Referring to a few judgments of the Hon'ble Apex Court reported in
2016 [8] SCC 471 [Avtar Singh Vs. Union of India and others]
and 2013 [3] SCC 99 [M.Manohar Reddy and Another V. Union
of India and others], the Hon'ble First Bench of this Court, in
WA.No.3877/2019 [C.Surendran V. The Director General of Police,
Chennai-4 and others], vide judgment dated 13.11.2019, has held as
follows:-
''34.The next question is whether such involvement
would necessary lead to the conclusion for the
Appointing Authority to hold as to whether he should
be selected and appointed for the services or not.
Involvement without knowledge is also a factor that
can eclipse any disadvantage or prospective
impediment in certain circumstances, as explained by
the Apex Court in the case of M.Manohar Reddy and
Another Vs. Union of India and Others reported in
2013 [3] SCC 99. Whether the fact or information
unknowingly withheld is at all a material fact, is a
matter of assessment on the peculiarity of the
material and it's impact to be judiciously and
objectively assessed by the employer without any
prejudice or preconceived notions to rule out any
possibility of malice or pure subjectivity in the
decision making process. It is here that a play in the
joints has to be given to the employer and unless
such a latitude is given, it will be injuncting the
authority from exercising its discretion to engage a
WP.No.15053/2021
person suitable for the post. We, therefore, find that
an assessment has to be made by the Appointing
Authority as to whether the involvement of a
candidate in a criminal case would ultimately lead to
the conclusion that his engagement would be
detrimental for the nature of the employment for
which he is being engaged. This may involve a bit of
subjectivity, but the material on record has to receive
an objective consideration. The question as to
whether a person was involved in a case of violating
a mere traffic rule or was involved in a heinous
offence would obviously weigh with the employer to
assess as to whether his engagement would otherwise
be sustainable or be detrimental for recruitment in a
Uniformed Police Force or not. We, therefore, leave
that open to the authority concerned for an
independent assessment. But, on the facts of the
present case we find that the authority has simply
rested its decision on the finding that the appellant
did not deserve to be engaged on account of not
having been honourably acquitted. Whether the fact
of his involvement was such that this inference could
be justified does not appear to have been discussed
in the impugned order. To this extent, we accept the
argument of the learned counsel for the petitioner.''
12. Relying upon the above cited judgment, the petitioner has submitted
the present representation to consider his case once again afresh
despite the binding judgment of this Court in the writ petition filed
by him.
13. This is nothing but re-litigation. The principle of res judicata is held
applicable to writ proceedings. The judgment inter-parties which has
WP.No.15053/2021
become final cannot be reopened. The parties to the judgment are
bound by it except the remedy available by way of appeal or review.
The issue once decided between the same parties cannot be re-
agitated in a subsequent proceedings. The earlier judgment of this
Court will operate as res judicata. The practice of a person
indulging in re-litigation should be deprecated.
14. Hence, holding that the petitioner's attempt by way of a fresh
representation, is nothing but an abuse of process of law, this Court
finds no merits in the writ petition and accordingly, the same is
dismissed at the admission stage itself with costs of Rs.5,000/-
[Rupees five thousand only] payable to the Tamil Nadu State
Legal Services Authority, Chennai, within a period of three
weeks from the date of receipt of a copy of this order.
22.07.2021
AP
Index : Yes
Internet : Yes
To
The Director General of Police
Tamil Nadu, Dr.Radhakrishnan Salai
WP.No.15053/2021
Mylapore, Chennai-4.
Copy to:-
The Tamil Nadu State Legal Services Authority,
High Court, Chennai.
WP.No.15053/2021
S.S.SUNDAR, J.,
AP
WP.No.15053/2021
22.07.2021
http://www.judis.nic.in 10
