Madras High Court
C. Dinesh vs The State Of Tamil Nadu on 25 May, 2021
W.P.No.12523 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Order reserved on 08.12.2021
Order delivered on 05.01.2022
CORAM:
THE HON'BLE MRS. JUSTICE V. PARTHIBAN
W.P.No.12523 of 2021
and
W.M.P.Nos.13304 & 13305 of 2021
C. Dinesh
...Petitioner
Vs.
1. The State of Tamil Nadu,
Represented by the Secretary to Government,
Home Department,
Secretariat,
Chennai – 600 009.
2. The Director of General of Police,
State of Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
3. The Deputy Inspector of General of Police,
Western Zone, Coimbatore.
4. The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board,
Old Commissioner of Police Campus,
Egmore, Chennai – 600 008.
5. The Superintendent of Police,
Page No.1 of 24
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W.P.No.12523 of 2021
Tiruppur District, Tiruppur. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the proceedings of the 3rd respondent in
Na.Ka.No.A1/3731/2021 dated 25.05.2021 and quash the same as
illegal, incompetent and ultravires and consequently direct the
respondents to appoint the petitioner in the post of Sub-Inspector.
For Petitioner : Mr.Arun Anbumani
for Mr.R.Jayaprakash
For Respondents :Mr.P.Kumaresan
Additional Advocate General
assisted by Mr. L.S.M. Hasan Fizal
Additional Government Advocate
ORDER
This writ petition has been filed challenging the impugned order
passed by the 3rd respondent in Na.Ka.No.A1/3731/2021 dated
25.05.2021 and quash the same as illegal, incompetent and ultravires and
consequently direct the respondents to appoint the petitioner in the post
of Sub-Inspector.
2. The 4th respondent Recruitment Board issued a Notification
No.2/2019 dated 08.03.2019 calling for common recruitment to the post
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W.P.No.12523 of 2021
of Sub-Inspector of Police (Taluk Armed Reserve and Tamil Nadu
Special Police). The petitioner has applied in response to the notification
and was permitted to participate in the selection process. The petitioner
passed the initial written examination and has also come out successfully
in the physical test conducted by the Board. When he was awaiting
appointment order to be issued, the impugned order was passed on
25.05.2021, rejecting the candidature of the petitioner on the ground that
he had suppressed the criminal case which was registered against him
earlier to his participation in the selection.
3. According to the petitioner, a case in Crime No.289 of 2014 was
registered on the file of the Inspector of Police, Kangeyam Police Station
for the alleged offences under Section 323, 294(b) and 506(i) of I.P.C.
The said case was taken on file as C.C.No.132 of 2017 on the file of the
learned Judicial Magistrate, Kangeyam. After the trial, the petitioner was
acquitted from the charges vide order dated 25.04.2018.
4. According to the petitioner, the criminal case ended in acquittal
as early as on 25.04.2018, but the notification was issued only on
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W.P.No.12523 of 2021
08.03.2019. At that time, there was no pendency of criminal case against
him. Even, otherwise a petty quarrel had resulted in registration of the
FIR and the criminal case, but eventually, the petitioner was acquitted of
all the charges and has come out unscathed in the proceedings.
5. The learned counsel Mr.Arun Anbumani, who appeared for the
petitioner has drawn the attention of this Court to number of decisions
passed by this Court in such matters allowing the writ petition and
interfering with the cliched and hackneyed reasoning of the appointing
authority while considering such matters. The learned counsel referred to
one such decision in W.P.No.8135 of 2020 dated 04.12.2020. The
learned counsel would draw the attention of this Court to paragraph
Nos.24 to 26, which are extracted hereunder.
24. In one other recent decision of this Court in
W.P.No.10788 of 2020 dated 06.10.2020, yet again this
Court has reminded the authority has to how they should
discharge the discretion vested in them. In this decision,
this Court has inextenso extracted the decision of the
Hon'ble Supreme Court in Avtar Singh's case and also
the observation of the learned Division Bench of this
Court referred to above and finally, held as under in
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W.P.No.12523 of 2021
paragraph Nos. 23,24,25 and 26:
“23. The above decision is a pointer
to the authorities of the importance of the
discretionary power vested in them and the
exercise of such power in matters like the
present one.
24. In cases of this nature, when the
discretion is vested with the authorities,
they are expected to adopt circumstantial
flexibility and cannot meaninglessly take
refuge under the Rule position and reject
all cases by painting every candidate with
same brush, who was involved in the
criminal case or failed to disclose the same
in the application form. Such exhibition of
pedantic-application of mind would
amount to apathetic surrendering of the
discretion, so vested, to the inanimate
letters of the rule, giving a go by to the
spirit of the rule which was essentially
brought into existence to address the
complex and variegated claims of the
candidates concerned, falling with the
purview of the Rule.
25. Coming back to the case on
hand, the petitioner herein has admittedly
cleared all the stages of selection and has
also been provisionally selected, which
facts are not in dispute. The objection for
her appointment is only on the stated
grounds, which have been dealt with by this
Court in the above paragraphs. For a
simple quarrel in the family, which is
common in our social settings i.e., mother-
in-law, sisters-in-law on one side versus
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W.P.No.12523 of 2021
daughter-in-law might have attracted the
mischief of two provisions 294(b) and 323
of I.P.C., but considering the involvement
of the petitioner in a family squabble and
branding the petitioner as a candidates of
criminal antecedents and hence not fit for
the appointment in the police force is a
apologetic display of pretentious
sanctimony of officious disposition. In such
circumstances, the involvement of the
petitioner in the criminal case and the
conviction perforce cannot operate as a
blanket bar under the rule and the
petitioner be denied of the appointment.
The petitioner's aspiration to become a
member of the police force cannot be
nipped at the budding stage of her
blossoming life by holding on to so called
criminal antecedents against her and
disqualifying her for a life time. If such
action is upheld, it would amount to
Mccarthyism to have a full play in
infringing the fundamental right of
aspiring young people who seek
employment in public service. Therefore,
the authorities need to have a larger
understanding of the future of the
candidates and also need to exhibit
judicious application of mind in
segregating the deserving cases from
undeserving ones so that the sublime
purpose and the noble ends of justice is
better served. The art of being wise is the
art of knowing what to over look, as the
saying goes and the authorities would be
looked upon with deferential esteem, if they
act wisely in these matters, towards
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W.P.No.12523 of 2021
advancing the cause of good public
administration.
26. In the above circumstances, this
Court has no hesitation in allowing the writ
petition and hence the impugned order in
Na.Ka.No.F1/5482/2019 dated 13.03.2020
is hereby set aside and the second
respondent is directed to process the
candidature of the petitioner and if she is
otherwise fit for appointment to the post to
which she has applied, grant her
appointment on the basis of her selection in
pursuance of the notification issued by the
Uniformed Service Board in 2019. The
second respondent is directed to pass
appropriate orders within a period of
four(4) weeks from the date of receipt of a
copy of this order.”
25. The above decisions have dealt with as how to
discharge the discretionary power by the authority while
making objective assessment vis-a-vis dealing with such
claims as in the present case. Merely by exhibiting rule
oriented pedantic approach time and again by the
authority in rejecting the candidatures of the candidates
who are involved in criminal cases and being acquitted
on the basis of “benefit of doubt”, without appreciating
the nature of offence and the facts which led to acquittal
etc., tantamounts to relegating the spirit of the rule to the
back burner and enforcing the inanimate letter of the rule
in negation of the fundamental rights of the candidate.
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W.P.No.12523 of 2021
Such approach in the considered opinion of this Court
would invariably result in undermining procedural
fairness and denial of objective consideration towards
the claim of the candidates who seek appointment in
Police Service or Public Service.
26. To hold every person involved in a criminal
case as a criminal across the spectrum, regardless of the
nature of offence charged, is a sordid reflection of a
warped understanding of the jaded administration,
branding someone a criminal and barring him from
seeking public employment for his life time, even if the
offences were trivial in nature, amounted to integrating
“Mccarthyism” into the decision making process in the
police administration.
6. The learned counsel would also refer to another decision of this
Court order dated 16.12.2020 passed in W.P.No.7229 of 2020 and he
would rely on paragraph Nos.9 to 12 which are extracted hereunder.
"9. This Court has considered the submissions of
the learned counsel for the petitioner and the learned
Special Government Pleader for the respondents. In
matters of this nature, particularly, in the recruitment
of Police force, this Court has passed a number of
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W.P.No.12523 of 2021
orders emphasizing the importance of proper
application of mind on the part of the authority who is
vested with the power of assessment of suitability of
the candidates. Time and again this Court has held on
the basis of the Hon'ble Supreme Court's all
encompassing decision on the subject matter as to how
to deal with the claim of the candidates who are
involved in criminal cases, on various aspects.
10. But, despite all the decisions, it is
unfortunate that the authorities have been passing
orders almost in a cyclostyled form quoting the same
decisions and rule position without disclosing any
material that the authority had taken into
consideration each candidates' involvement in the
criminal case, nature of the offences, the manner in
which he or she was acquitted and whether the non
disclosure of the involvement was material, intentional
or deliberate. There are several aspects like these to
be considered before the candidature could be
rejected. But, unfortunately the authorities have been
adopting a mechanical approach in rejecting the
candidatures merely on the basis of the involvement in
the criminal cases.
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W.P.No.12523 of 2021
11. The important discretion vested in the
authority would have no meaning if such cliched
approach is adopted in rejecting the candidature
across the Board based on the mere fact of pending
criminal case or involvement in the criminal case or
non disclosure of the involvement in the criminal case
by the candidate concerned. The discretion so vested
is not to be surrendered apathetically in violation of
the fundamental rights of the candidates in being
considered for public employment. In the opinion of
this Court, every involvement of the candidate in
criminal case does not become an absolute bar from
consideration in public employment, even in the Police
Force, unless the authority comes to a valid conclusion
that the appointment of the candidate in the Police
Force is against public interest. Such conclusion must
be reflected in the order of the authority, while
rejecting the candidature of the candidates concerned.
Otherwise such orders are liable and vulnerable to
interference by this Court.
12. Even this Court earlier has allowed few writ
petitions by setting aside the similar type of orders by
the authorities and unfortunately without taking any
cue from those decisions, the authorities are still
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W.P.No.12523 of 2021
passing routine administrative orders without
disclosing an iota of application of mind, in terms of
the ruling of the Hon'ble Supreme Court of India and
by this Court."
7. According to the learned counsel, when a similar writ petition
was allowed in respect of one A.Manikandan, it was appealed against in
W.A.No.2486 of 2018. The Division Bench of this Court vide order dated
24.01.2019 has dismissed the appeal by confirming the order of the
learned Single Judge of this Court. The Division Bench has extracted the
relevant succinct and crucial significant observations of the Hon'ble
Supreme Court of India which holds the field in respect of the subject
matter of the present writ petition as well. It is useful therefore, to refer
and extract paragraph Nos.8 and 9 of the Division Bench as follows:-
8. Perusal of the above offences would show that
they are punishable with imprisonment or with fine thereby
they are trivial offences.
9. A Hon'ble Division Bench of this Court in
W.A.(MD)Nos.753 of 2015, by judgement dated 06.09.2017,
observed as under:
"4. The Hon'ble Apex Court in Avtar
Singh v. Union of India (cited supra) culled
out the principles governing the cases
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W.P.No.12523 of 2021
involved in suppression of materials facts,
such as conviction rendered by the Criminal
Court etc., It also taken note of non
declaration of pendency of the criminal cases.
The following is the direction given by the
Apex Court finally:-
“38. We have noticed various
decisions and tried to explain and
reconcile them as far as possible. In view
of aforesaid discussion, we in summarize
our conclusion thus:
38.1.Information given to the
employer by a candidate as to
conviction, acquittal or arrest, or
pendency of a criminal case, whether
before or after entering into service
must be true and there should be no
suppression or false mention of required
information. 38.2. While passing order
of termination of services or
cancellation candidature for giving
false information, the employer may
take notice of special circumstances of
the case, if any, while giving such
information.
38.3. The employer shall take
into consideration the Government
orders /instructions/ rules, applicable to
the employee, at the time of taking the
decision.
38.4. In case there is suppression
or false information of involvement in a
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W.P.No.12523 of 2021
criminal case where conviction or
acquittal had already been recorded
before filling of the application/
verification form and such fact later
comes to knowledge of employer, any of
the following recourse appropriate to
the case may be adopted : -
38.4.1.In a case trivial in nature
in which conviction had been recorded,
such as shouting slogans at young age
or for a petty offence which if disclosed
would not have rendered an incumbent
unfit for post in question, the employer
may, in its discretion, ignore such
suppression of fact or false information
by condoning the lapse.
38.4.2.Where conviction has been
recorded in case which is not trivial in
nature, employer may cancel
candidature or terminate services of the
employee.
38.4.3. If acquittal had already
been recorded in a case involving moral
turpitude or offence of heinous/serious
nature, on technical ground and it is not
a case of clean acquittal, or benefit of
reasonable doubt has been given, the
employer may consider all relevant
facts available as to antecedents, and
may take appropriate decision as to the
continuance of the employee.
38.5 In a case where the
employee has made declaration
truthfully of a concluded criminal case,
the employer still has the right to
consider antecedents, and cannot be
compelled to appoint the candidate.
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W.P.No.12523 of 2021
38.6. In case when fact has been
truthfully declared in character
verification form regarding pendency of
a criminal case of trivial nature,
employer, in facts and circumstances of
the case, in its discretion may
appoint the candidate subject to
decision of such case.
38.7 In a case of deliberate
suppression of fact with respect to
multiple pending cases such false
information by itself will assume
significance and an employer may pass
appropriate order cancelling
candidature or terminating services as
appointment of a person against whom
multiple criminal cases were pending
may not be proper.
38.8 If criminal case was pending
but not known to the candidate at the
time of filling the form, still it may have
adverse impact and the appointing
authority would take decision after
considering the seriousness of the
crime.
38.9 In case the employee is
confirmed in service, holding
Departmental enquiry would be
necessary before passing order
of termination/removal or dismissal on
the ground of suppression or submitting
false information in verification form.
38.10 For determining
suppression or false information
attestation/verification form has to be
specific, not vague. Only such
information which was required to be
specifically mentioned has to be
disclosed. If information not asked for
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W.P.No.12523 of 2021
but is relevant comes to knowledge of
the employer the same can be
considered in an objective manner while
addressing the question of fitness.
However, in such cases action cannot be
taken on basis of suppression or
submitting false information as to a fact
which was not even asked for.
38.11 Before a person is held
guilty of suppressio veri or suggestio
falsi, knowledge of the fact must be
attributable to him.”
5. In the case on hand, the writ
petitioner was admittedly involved in a
trivial case. Furthermore, on a perusal of the
records we find that he has not ticked the
column as yes with respect to involvement of
criminal case and the First Information
Report. As rightly submitted by the learned
counsel for the writ petitioner, it is not a case
of willful suppression. It has come out of
ignorance, otherwise he would have tick the
column as yes, which raised question as to
whether the applicant is convicted or not,
apart from pendency of the criminal case. One
more thing has to be seen that the complainant
in the criminal case has become his wife. The
conviction is only with respect to payment of
Rs.500/-. Even on the date of filing of the
charge sheet, the conviction was rendered on
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W.P.No.12523 of 2021
payment. The writ petitioner did not want to go
through the Trial without knowing the
implication that may arise in future. The
affidavit filed by the writ petitioner would
show that he is in penury having married the
lady who given the complaint. After giving the
complaint, not only the writ petitioner, even the
complainant is suffering with two minor
children.
6. As per paragraph 38.4.a mentioned
in the judgment referred supra
certainly leverage has been given to a case
trivial in nature. The appellants have not
exercised their discretion which in our
considered view is not correct. In fact the
appellants have proceeded on the footing that
respondent is not entitled for such discretion."
8. The learned counsel, apart from the above orders would also
refer to a decision of the learned Single Judge in a batch of writ petition
in W.P.No.2795 of 2013 etc. dated 22.03.2013. The observation of the
learned single Judge in paragraph Nos.24 to 28 is important for the
present case, as the allegation against the petitioner was that he did not
disclose his involvement in the criminal case. Paragraph Nos. 24 to 28
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W.P.No.12523 of 2021
are extracted herein:-
"24. The question, whether a person, who was
acquitted of criminal charges prior to
commencement of the selection process, was
considered by this Court in W.P.No.2100 of 2008
(Navaneethakrishnan Vs. The Secretary to
Government and another), decided on 12.02.2013
and this Court was pleased to lay down, that when a
person is acquitted or criminal charges prior to the
selection process had commenced, it cannot be said
that any criminal case is pending against the person
or he is involved in any criminal case.
25. The stand of the State Government as
noticed above was, that the petitioners were
admittedly involved in the criminal case, therefore,
are not entitled to challenge the impugned orders
passed in consonance with the Rule 14 read with the
explanation added thereto, which was upheld by the
Hon'ble Full Bench of this Court.
26. Learned Additional Government Pleader
vehemently contended, that this Court held the
amended Rule 14(b) of the Special Rules for Tamil
Nadu Police Subordinate Services Rules, to be a
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W.P.No.12523 of 2021
valid piece of legislation, therefore action taken
under Rule 14(b) does not call for any interference
by this Court in exercise of writ jurisdiction.
27. On consideration, I find force in the
contention raised by the learned counsel for the
petitioners. It would be seen, that in all these cases,
the petitioners were acqcuitted in criminal cases
much before commencement of process of selection.
Acquittal in criminal cases means, that the charges
framed against the accused itself were bad,
therefore, it cannot be said, that persons were
involved in any criminal case. Therefore, Rule 14(b)
can only be interpreted to mean, that in cases, which
are pending at the time for selection, and in
acquittal by giving benefit of doubt, then a person
can be denied the right of appointment by
considering him to be involved in criminal cases, but
not in a case, where much before the start of
selection process, the person is acquitted, even by
giving benefit of doubt.
28. As already noticed above, persons in
whose case criminal cases was closed and "Mistake
of Fact", also by no stretch of imagination, can be
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W.P.No.12523 of 2021
said to be involved in criminal case to deny them
public appointment, as has been done by the
respondents."
According to the learned counsel in all fours, the present writ petition is
covered.
9. Mr. P.Kumaresan, Additional Advocate General assisted by
Mr.L.S.M. Hasan Fizal, Additional Government Advocate entered
appearance on behalf of the respondents and a detailed counter affidavit
has been filed. In fact, an attempt was made in the counter affidavit to
differentiate between the cases relied on by the learned counsel for the
petitioner and the present one. This Court does not consider that this case
is materially different from the other case laws cited above. The fact of
the matter is that the petitioner was acquitted of the charges by the
criminal court and the IPC sections invoked in the case of the petitioner
were relating to a petty quarrel involving the petitioner. He was acquitted
of the charges vide judgment dated 25.04.2018, much prior to the
commencement of the selection process held pursuant to the notification
dated 08.03.2019. As rightly held as above by the learned Judge of this
Court, once the acquittal had taken place much prior to the issuance of
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the notification, failure to mention his involvement in the criminal case,
cannot construed to be material and such candidates cannot said to be
involved in criminal cases, even if they were acquitted on the ground of
benefit of doubt.
10. In any event, in terms of the landmark ruling of the Hon'ble
Supreme Court in Avtar Singh's case (2016 (8) SCC 471), even if
disclosure of the involvement in the criminal case would not have
rendered the candidate unfit for the post in question, denying an
opportunity to the petitioner herein to serve in Police Force in the face of
the charges against him being flimsy, not serious enough and further
branding the petitioner as criminal for him to be debarred from gaining
employment in Police Force at all for his life time is opposed to good
conscience and justice. The minimum what is expected of the higher
officials is to apply their mind to each and every case, where the
candidate was involved in the criminal case and the discretion cannot be
applied uniformly and rigidly leading only to the rejection of the
candidature solely on the basis of the involvement in the criminal case
and not disclosing about the same in the application form. Such
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W.P.No.12523 of 2021
perfunctory discharge of the discretion reflects not only non-application
of mind but also amount to abdication of onerous responsibility rest on
the shoulders of the higher officials concerned.
11. In the light of the above facts and the rulings, the 3rd
respondent who passed the impugned order, failed to appreciate the
nature of the criminal charges as against the petitioner and the acquittal
by criminal Court which had become final. As could be seen from the
charges, it was only petty quarrel which led to the registration of the FIR
in Crime No.289/2014 which in any event, ended in acquittal, ultimately.
When the discretion is vested with the authority to take a decision about
the validity of the candidature of the candidates who are involved in the
criminal cases, the discretion must be discharged objectively and validly.
Such discretion cannot be mutely and mechanically surrendered to
inanity merely on the basis of the fact that there was an act of
suppression on the part of the candidate in not disclosing the criminal
case pending or framed against him.
12. On the whole, this Court is of the considered view that the
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petitioner has made out a case for grant of relief and the impugned order
passed by the 3rd respondent is liable to be interfered with.
13. Accordingly, the impugned order passed by the 3rd respondent
in Na.Ka.No.A1/3731/2021 dated 25.05.2021 is hereby set aside and the
4th respondent/ The Member Secretary, Tamil Nadu Uniformed Services
Recruitment Board is directed to publish the result of the petitioner on the
basis of his selection to the post of Sub-Inspector of Police and forward
his name to the Appointing Authority for further action on their end.
14. The 4th respondent is further directed to pass appropriate orders
in this regard within a period of four weeks from the date of receipt of a
copy of this order.
15. The appointing authority, on receipt of the communication
from the 4th respondent, shall pass appropriate orders within a period of
four weeks,granting appointment to the petitioner on the basis of his
selection in the subject recruitment.
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W.P.No.12523 of 2021
16. This Writ Petition is allowed in terms of the above directions.
No costs. Consequently, connected miscellaneous petitions are also
closed.
05.01.2022
Index: Yes/No
Internet: Yes/No
vsi/gba
To
1. The State of Tamil Nadu,
Represented by the Secretary to Government,
Home Department,
Secretariat,
Chennai – 600 009.
2. The Director of General of Police,
State of Tamil Nadu,
Dr.Radhakrishnan Salai,
Mylapore, Chennai – 600 004.
3. The Deputy Inspector of General of Police,
Western Zone, Coimbatore.
4. The Member Secretary,
Tamil Nadu Uniformed Services Recruitment Board,
Old Commissioner of Police Campus,
Egmore, Chennai – 600 008.
5. The Superintendent of Police,
Tiruppur District, Tiruppur.
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W.P.No.12523 of 2021
V.PARTHIBAN, J.
vsi/gba
W.P.No.12523 of 2021
and
W.M.P.Nos.13304 & 13305 of 2021
05.01.2022
https://www.mhc.tn.gov.in/judis
