Madras High Court
M.Dhinakaran vs The Tamil Nadu Uniformed Servies ... on 23 January, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.01.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
W.P No.5947 of 2022
M.Dhinakaran Petitioner
vs.
1.The Tamil Nadu Uniformed Servies Recruitment Board,
Rep. by its Vice Chairman,
Having office at
Old Commissioner of Police Office Campus,
Pantheon, Egmore,
Chennai – 600 008
2.The Director General of Police,
Director General of Prisons and Correctional Services,
Emore,
Chennai – 600 008.
3.The Member Secretary,
The Tamil Nadu Uniformed Services Recruitment Board,
Having office at
Old Commissioner of Police Office Campus,
Pantheon, Egmore,
Chennai – 600 008.
4.The Superintendent of Police,
Office of the Superintendent of Police,
Cuddalore District,
Cuddalore – 607 001. Respondents
https://www.mhc.tn.gov.in/judis
2
Prayer: Writ Petition filed under Article 226 of the Constitution of India for
issuance of a Writ of Certiorarified Mandamus, calling for the records relating to
the order dated 07.04.2021 bearing Order No. 32134/EW .1/2019 passed by the
2nd Respondent and to quash the same and direct the Respondents to issue
appointment to the post of Jail Warder under the 2nd Respondents office.
For Petitioner : Mr.V.Jai Bharathi
For Respondents : Mr.P.Kumaresan
Additional Advocate General
assisted by
Mr.Ru.Dinesh Rajkumar
Additional Government Pleader
ORDER
This writ petition has been filed challenging the impugned proceedings of
the 2nd respondent dated 07.04.2021 and for a consequential direction to the
respondents to appoint the petitioner to the post of Jail Warder.
2.The brief facts of the case are as under:
(a) The petitioner is the holder of Post Graduate Degree in M.C.A. The 3rd
respondent issued a recruitment notification, dated 06.03.2019 calling for
applications to fill up the post of Jail Warder. The petitioner also
submitted his application to participate in the selection. Even at the time
of submitting the application, the petitioner had disclosed that there was a
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criminal case registered against him and the same ended in an acquittal.
(b)The petitioner was permitted to write the examination and on successful
completion of the written examination, the petitioner was called for
physical examination. The petitioner was successful in the physical
examination also. Thereafter, he was called for certificate verification on
30.11.2019.
(c) The respondents ultimately published the results in February 2020 and in
the provisional selection list, the petitioner was placed at S.No.17.
Thereafter, the petitioner was called for medical test and the petitioner
was expecting the appointment order to be issued to him.
(d)To the shock and surprise of the petitioner, the 2nd respondent through
the impugned proceedings dated 07.04.2021, refused the candidature of
the petitioner by assigning the following reasons:
Taking into consideration, all the facts and the law points
discussed above, the plea of the petitioner for appointment
to the post of Grade II Warder could not be accepted as per
Rule No.6 Appendix Sub Rule (f), Explanation 1 and 2 of
Tamil Nadu Jail Subordinate Service He is not found
eligible for the recruitment of Grade II Warder for the year
2019 as his previous character and antecedents are not
satisfactory. Hence, his candidature is not considered for
appointment during the year 2019.
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(e) Aggrieved by the rejection order passed by the 2nd respondent, the
present writ petition has been filed before this Court.
3.The 2nd respondent for himself and on behalf of other respondents has
filed a counter affidavit. A specific stand has been taken in the counter affidavit
to the effect that the special Rules for the Tamil Nadu Jail Subordinate Services
Rules clearly provides that a person who is involved in a criminal case will not
be considered for selection. Even, if such a person is acquitted or discharged on
a benefit of doubt or because the witnesses have turned hostile, that will not in
any way bind the department. In the counter affidavit, the earlier judgments
passed in Avtar Singh vs. Union of India and others reported in 2016 8 SCC
471 and the judgment in Pradeep Kumar arising in Civil Appeal Nos.67 to 70
of 2018, dated 08.01.2018, has also been relied upon. Ultimately, at Paragraph
No.17 of the counter affidavit, it has been stated as follows:
17.It is humbly submitted that the Trial Court had taken into
consideration that PW1 and PW2 has turned hostile and after
consideration of all these aspects, the judgment of acquittal has
been passed. As such, the judgment of acquittal in C.C.o.199 of
2015 was considered as deemed to be an Honourable acquirral.
Hence, as per G.O.Ms.No.1410, Home (Pri) Department, dated
17.10.2008, he is not eligible for appointment to the post of
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Grade II Warder for the year 2019. He can claim right for
appointment only by partitipating in the next recruitment.
Therefore, the orders passed by the 2nd respondent is not contrary
to law. The orders were passed based on the rules and
regulations enabled by law.
4.Heard Mr.V.Jai Bharath, learned counsel appearing on behalf of the
petitioner and Mr.P.Kumaresan, learned Additional Advocate General appearing
on behalf of the respondents.
5.The short issue that arises for consideration in the present case is as to
whether the 2nd respondent was right in rejecting the candidature of the
petitioner for selection to the post of Jail Warder by pointing out to the earlier
criminal case that was registered against the petitioner and in which the
petitioner was ultimately, acquitted and it was also held by this Court in
Crl.O.P.No.24941 of 2019, dated 17.09.2019, to be a Hon'ble acquittal.
6.Even at the inception, the exercise of power by this Court under Section
482 of Cr.P.C., to declare an acquittal as an Hon'ble acquittal has been held by
the Division Bench of this Court to be beyond the scope of the power of this
Court. Useful reference can be made to the judgment in Rakesh Tiwari,
Advocate vs. Alok Pandey, Chief Judicial Magistrate reported in 2019 6 CTC
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465. Hence, just because this Court has declared the acquittal of the petitioner
to be a Hon'ble acquittal, the same does not in any way stand in the way of the
respondents to deal with the application submitted by the petitioner on its own
merits and in line with the Rules and judgments of the Hon'ble Apex Court.
7.Before going into the reason for rejecting the candidature of the
petitioner, it will be apposite to take note of the judgment of the Apex Court in
Commissioner of Police and Other vs. Sandeep Kumar case reported in 2011
4 SCC 644 and Paragraph No.8 of the judgment is extracted hereunder:
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 be 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.
8.The learned Additional Advocate General also brought to the notice of
this Court the latest judgment of the Apex Court in Union of India and Others
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vs. Methu Meda reported in 2022 1 SCC 1 and the following paragraphs were
relied upon:
13. The expression "honourable acquittal" has been
considered in S. Samuthiram after considering the judgments in
RBI v. Bhopal Singh Panchal and R.P. Kapur, Raghava
Rajgopalachari; this Court observed that the standard of proof
required for holding a person guilty by a criminal court and
enquiry conducted by way of disciplinary proceeding is entirely
different. In a criminal case, the onus of establishing guilt of the
accused is on the prosecution, until proved beyond reasonable
doubt. In case, the prosecution failed to take steps to examine
crucial witnesses or the witnesses turned hostile, such acquittal
would fall within the purview of giving benefit of doubt and the
accused cannot be treated as honourably acquitted by the
criminal court. While, in a case of departmental proceedings, the
guilt may be proved on the basis of preponderance of
probabilities, it is thus observed that acquittal giving benefit of
doubt would not automatically lead to reinstatement of candidate
unless the rules provide so.
14. Recently, this Court in State (UT of Chandigarh) v.
Pradeep Kumar, relying upon the judgment of S. Samuthiram said
that acquittal in a criminal case is not conclusive of the
suitability of the candidates on the post concerned. It is
observed, acquittal or discharge of a person cannot always be
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inferred that he was falsely involved or he had no criminal
antecedent. The said issue has further been considered in Mehar
Singh holding non-examination of key witnesses leading to
acquittal is not honourable acquittal, in fact, it is by giving
benefit of doubt. The Court said that nature of acquittal is
necessary for core consideration. If acquittal is not honourable,
the candidates are not suitable for government service and are to
be avoided. The relevant factors and the nature of offence, extent
of his involvement, propensity of such person to indulge in
similar activities in future, are the relevant aspects for
consideration by the Screening Committee, which is competent to
decide all these issues.
.
.
.
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 a right 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 position, as discussed above in the orders impugned.
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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.
9.There is absolutely no quarrel on the proposition that where a person
has been acquitted by giving him the benefit of doubt, from the charges of an
offence involving moral turpitude or because the witnesses turned hostile, it
would not automatically entitle the participant for employment and more
particularly in the disciplined force. It was always considered that such elements
who have a criminal case, should be nipped at the bud even before coming into
the service and cause more damage to the disciplined forces.
10.While dealing with cases of this nature, the most important factor to
be taken into consideration by the Court is with regard to the nature of
allegation and to see if it involves moral turpitude and it must also be seen at
what age such an offence was committed by the concerned person.
11.In the instant case, the petitioner was aged about 19 years, when the
criminal case came to be registered against Arun and six others, wherein, the
petitioner was arrayed as A2, in Crime No.73 of 2015. On carefully going
through the charge, it is seen that there was a dispute regarding a right over a
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temple and in the spur of the movement, the accused person are said to have
attacked the injured with hands, wooden log and also a pipe. This dispute had
happened in between persons who know each other well. On going through the
judgment passed in C.C.No.199 of 2015, dated 18.02.2016, it is seen that even
the defacto complainant and the person injured informed the Court that the
matter has been compromised between the parties and sought for compounding
the offences. Since one of the offence under Section 324 of IPC was non-
compoundable, the trial Court went ahead with the trial and naturally the
injured and the defacto complainant did not support the case of the prosecution.
Ultimately, the petitioner and others were acquitted for charges under Section
294(b), 323, 324 and 506(ii) of IPC.
12.It is quite obvious that the petitioner turned to be a more responsible
person and he pursued his education and completed his Under Graduation in
B.Sc., Computer Science in the year 2015 and M.C.A., in the year 2017. The
nature of offence that was committed, obviously did not involve any moral
turpitude and it was an offence which emanated in the spur of movement.
13.In view of the above, the observation made by the Apex Court in
Sandeep Kumar case will have a lot of significance. In fact Paragraph No.8 of
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the judgment which has been extracted supra, perfectly falls in line with the
facts of the present case.
14.In the light of the above discussion, this Court is inclined to interfere
with the impugned proceedings of the 2nd respondent dated 07.04.2021 and the
same is hereby quashed.
15.It is brought to the notice of this Court that the selection process for
the post of Jail Warder came to an end and thereafter, applications were called
for to fill up the post of Police Constable Armed Reserve through Advertisement
dated 30.06.2022 and the petitioner had also submitted his application and has
cleared his written examination. The petitioner has been called for physical
examination on 07.02.2023. In the light of this development, the consequential
direction sought for by the petitioner cannot be granted by this Court. It is made
clear that the selection of the petitioner for the present selection will be based on
the petitioner satisfying all the requirements and the earlier criminal case that
was put against the petitioner should be disregarded in view of the order passed
in this writ petition. This clarity given by this Court will sufficiently safeguard
the interest of the petitioner.
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16.In the result, this writ petition stands allowed in the above terms. No
Costs.
23.01.2023
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
Neutral Citation Case : Yes/No
ssr
Note: Issue Order Copy on 30.01.2023
To
1.The Vice Chairman,
Tamil Nadu Uniformed Servies Recruitment Board,
Having office at
Old Commissioner of Police Office Campus,
Pantheon, Egmore,
Chennai – 600 008
2.The Director General of Police,
Director General of Prisons and Correctional Services,
Emore,
Chennai – 600 008.
3.The Member Secretary,
The Tamil Nadu Uniformed Services Recruitment Board,
Having office at
Old Commissioner of Police Office Campus,
Pantheon, Egmore,
Chennai – 600 008.
https://www.mhc.tn.gov.in/judis
4.The Superintendent of Police,
Office of the Superintendent of Police,
Cuddalore District,
Cuddalore – 607 001.
https://www.mhc.tn.gov.in/judis
N. ANAND VENKATESH, J.
ssr
W.P No.5947 of 2022
23.01.2023
https://www.mhc.tn.gov.in/judis
