Madras High Court

Raffik Basha vs 3 The Superintendent Of Police on 2 March, 2022

                                                                                  W.P.No.6847 of 2020

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                   DATED : 2.3.2022
                                                          CORAM

                                    THE HONOURABLE Mr.JUSTICE D.KRISHNAKUMAR

                                                  W.P.No.6847 of 2020
                                               and W.M.P.No.8156 of 2020


                     1     Raffik Basha                          ...                Petitioner

                                            Vs.

                     1     The Director General of Police,
                           Dr. Radhakrishnan Salai, Chennai-4.

                     2    The Member Secretary,
                          Tamil Nadu Uniformed Services Recruitment
                          Board, Old Commissioner of Police Office
                          Campus, Pantheon Road, Egmore, Chennai-8.

                     3    The Superintendent of Police,
                          District Police office,
                          Thiruvannamali District.                          ...     Respondents



                     Prayer:- The Writ Petition is filed under Article 226 of the Constitution of
                     India, seeking for a Writ of Certiorari, calling for the records relating to the
                     third respondent vide proceedings Na.Ka.No.A2(2)/09927/2019 dated
                     5.3.2020 and to quash the same and consequently direct the respondents to
                     appoint the petitioner as Grade II Police Constable.

                                  For Petitioner          : Mr.S.Vijayakumar
                                  For Respondent No.2     : Mr.P.Kumaresan, A.A.G.
                                  For Respondent-1&3      : Mr.P.Balathandayutham,
                                                            Special Govt. Pleader
                                                        *****

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                                                                                 W.P.No.6847 of 2020


                                                          ORDER

The issue involved in the writ petition is that the writ petitioner

has applied for the post of Police Constable Grade II, he successfully passed

written examination and also successfully come out from practical test and

provisionally selected for the post of Police Constable Grade II. However,

the selection was cancelled by the respondent by stating that the petitioner

did not disclose the pendency of the criminal case registered in Cr.No.542 of

2018 for the offence punishable under Sec.294(b) of I.P.C. Challenging the

said order, the petitioner has filed the instant writ petition before this

Court.

2. The learned counsel Mr.Vijayakumar, has vehemently argued

the matter by stating that the aforesaid criminal case was registered when

the petitioner was aged 19 years and the criminal case was ended in

acquittal before the Judicial Magistrate, Chengam by judgment dated

5.12.2019 made in C.C.No.106 of 2018. According to the learned counsel

appearing for the petitioner, since the petitioner was acquitted by the trial

Court in the aforesaid criminal case, there was no embargo to consider the

petitioner's name for selection, as the petitioner has already passed written

examination and practical test for selection to the post of Police Constable

Grade II. According to the learned counsel appearing for the petitioner, non

disclosure of pendency of criminal case in the application would not be fatal https://www.mhc.tn.gov.in/judis

W.P.No.6847 of 2020

to the selection for the post of Police Constable Grade II. In support of his

contention, he relied upon the judgment passed by the Division Bench of

this Court in C.SURENDHAR VS. THE DIRECTOR GENERAL OF POLICE,

Chennai-4 AND TWO OTHERS [W.A.No.3877 of 2019 dt.13.11.2019]

wherein it has been categorically held as follows:

''32. However, the march of law does not rest there. The issues raised came to be considered later on and as per the judgments that have been cited at the bar, we find that they have been settled to the effect that the acquittal in a criminal case is not conclusive of the suitability of a candidate for a particular post. The antecedents of a candidate have to be verified and more particularly, in a case where it is a matter of Uniformed Service of the State Police''.

34. ............ 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 https://www.mhc.tn.gov.in/judis

W.P.No.6847 of 2020

engage a 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.''

3. The learned Additional Advocate General appearing for the

respondents has clearly stated in the counter affidavit that the notification

regarding recruitment to the post of Police Constable Grade II was published

in the year 2019 and the application has been submitted by the petitioner

on 30.3.2019. According to the Additional Advocate General appearing for

the respondents, a criminal case has been lodged against the petitioner in

Cr.No.542 of 2018 for the offence punishable under Sec.294-b of I.P.C. and

the same was taken on the file of the Judicial Magistrate, Chengam on

6.10.2018 and the same is pending before the Judicial Magistrate Court,

Chengam at the time of submitting the application by the petitioner. The

said fact was not disclosed in the application submitted by the petitioner.

The aforesaid criminal case was ended in acquittal before the trial Court on

5.12.2019 in C.C.No.106 of 2018.

4. The petitioner submitted the application on 30.3.2019.

Therefore, it is clear that as on the date of submitting the application, the

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W.P.No.6847 of 2020

aforesaid criminal case was pending against the petitioner before the trial

Court. The entire selection process has already been completed on

26.11.2019 and the provisional list was published on 4.2.2020. Therefore,

according to the Additional Advocate General appearing for the respondents

as per Rule 13 (b) and (e) of the Special Rules of Tamil Nadu Police

Subordinate Rules, if the criminal case is pending against the applicant at

the time of submitting the application, such candidature cannot be

considered for selection to the post of Police Constable Grade II and in the

event of the criminal case ended in acquittal, his candidature can be

considered for the next selection. Therefore, the writ petition is liable to be

dismissed.

5. Heard the rival submissions of the parties and perused the

materials available on record.

6. As per Rule 13 (b) and (e) of the Special Rules of Tamil Nadu

Police Subordinate Rules, if the criminal case is pending against the

applicant at the time of submitting the application, such candidature

cannot be considered for selection to the post of Police Constable Grade II

and in the event of the criminal case ended in acquittal, his candidature can

be considered for the next selection.

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W.P.No.6847 of 2020

7. The Hon'ble Supreme Court while dealing with an identical

issue in State of M.P. Vs. Abhijit Singh Pawar [2018 (6) CTC 659 = 2018 (18)

SCC 733, the Hon'ble Supreme Court settled the proposition of law that the

employer is still have the right to consider the antecedents and the

suitability of the candidate and held as under:

''14. In the present case, as on the date when the respondent had applied, a criminal case was pending against him. Compromise was entered into only after an affidavit disclosing such pendency was filed. On the issue of compounding of offences and the effect of acquittal under Section 320(8) CrPC, the law declared by this Court in Mehar Singh [Commr. of Police v.Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910], specially in paras 34 and 35 completely concludes the issue. Even after the disclosure is made by a candidate, the employer would be well within his rights to consider the antecedents and the suitability of the candidate. While so considering, the employer can certainly take into account the job profile for which the selection is undertaken, the severity of the charges levelled against the candidate and whether the acquittal in question was an honourable acquittal or was merely on the ground of benefit of doubt or as a result of composition.

15. The reliance placed by Mr Dave, learned Amicus Curiae on the decision of this Court in Mohd. Imran [Mohd. Imran v. State of Maharashtra, Civil Appeal No.

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W.P.No.6847 of 2020

10571 of 2018, order dated 12-10-2018 (SC)] is not quite correct and said decision cannot be of any assistance to the respondent. In para 5 of the said decision, this Court had found that the only allegation against the appellant therein was that he was travelling in an autorickshaw which was following the autorickshaw in which the prime accused, who was charged under Section 376 IPC, was travelling with the prosecutrix in question and that all the accused were acquitted as the prosecutrix did not support the allegation. The decision in Mohd. Imran [Mohd. Imran v. State of Maharashtra, Civil Appeal No. 10571 of 2018, order dated 12-10-2018 (SC)] thus turned on individual facts and cannot in any way be said to have departed from the line of decisions rendered by this Court in Mehar Singh [Commr. of Police v.Mehar Singh, (2013) 7 SCC 685 : (2013) 3 SCC (Cri) 669 : (2013) 2 SCC (L&S) 910] , Parvez Khan[State of M.P.v.Parvez Khan, (2015) 2 SCC 591 : (2015) 1 SCC (L&S) 544] and Pradeep Kumar [UT, Chandigarh Admn. v.

Pradeep Kumar, (2018) 1 SCC 797 : (2018) 1 SCC (Cri) 504 : (2018) 1 SCC (L&S) 149] .

16. We must observe at this stage that there is nothing on record to suggest that the decision taken by the authorities concerned in rejecting the candidature of the respondent was in any way actuated by mala fides or suffered on any other count. The decision on the question of suitability of the respondent, in our considered view, was absolutely correct and did not call for any interference. We, therefore, allow this appeal, set aside the decisions rendered by the Single Judge [Abhijit Singh

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W.P.No.6847 of 2020

Pawar v.State of M.P., WP No. 9412 of 2013, order dated 31-7-2014 (MP)] as well as by the Division Bench [State of M.P.v.Abhijit Singh Pawar, 2015 SCC OnLine MP 7517] and dismiss Writ Petition No. 9412 of 2013 preferred by the respondent. No costs.''

8. I had also an occasion to consider the same issue following the

aforesaid judgment in C.RAJAMANI VS. THE TAMIL NADU UNIFORMED

SERVICES RECRUITMENT BOARD REP. BY ITS MEMBER SECRETARY,

CHENNAI AND TWO OTHERS [W.P.No.30633 of 2017 dt.7.1.2020]

dismissed the writ petition.

9. As rightly submitted by the learned Standing Counsel appearing

for the respondents, at the time of submitting application by the petitioner,

a criminal case has been registered against the petitioner in Cr.No.542 2018

for the offence punishable under Sec.294(b) of I.P.C. and the same was

pending on the file of Judicial Magistrate, Chengam and the petitioner has

not disclosed the aforesaid criminal case in his application. In the aforesaid

background, the petitioner was selected for the post of Grade II Police