Madras High Court
S.Chitrarasan vs The State Of Tamil Nadu on 22 November, 2023
W.P.No.4990 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22.11.2023
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.No.4990 of 2021
S.Chitrarasan ... Petitioner
Vs.
1.The State of Tamil Nadu,
Rep by its Secretary,
Home Department,
Fort St. George, Chennai 9.
2.The Director General of Police,
Chennai 4.
3.The Chairman,
Tamil Nadu Uniformed Service Recruitment Board,
Chennai 2. ... Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorarified Mandamus, to call for the entire
records connected with the impugned order passed by the second
respondent in Rc.No.371236/REct.1(2)/2020, dated 11.03.2020 served
on 20.03.2020 and quash the same and consequently direct the
respondents to appoint the petitioner as Grade II Constable in the
Tamilnadu Special Police Service recruitment for the year 2007-2008 or
2008-2009 with notional seniority without backwages.
Page No.1 of 18
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W.P.No.4990 of 2021
For Petitioner : Mr.S.N.Ravichandran
For Respondents : Mr.P.Kumaresan, Addl. Advocate General
Assisted by Mr.T.Chezhiyan
Additional Government Pleader
ORDER
The petitioner has filed this Writ Petition seeking to issue a Writ of
Certiorarified Mandamus, to call for the entire records connected with
the impugned order passed by the second respondent in
Rc.No.371236/REct.1(2)/2020, dated 11.03.2020 served on 20.03.2020
and quash the same and consequently direct the respondents to appoint
the petitioner as Grade II Constable in the Tamilnadu Special Police
Service recruitment for the year 2007-2008 or 2008-2009 with notional
seniority without back wages.
2. Heard Mr.S.N.Ravichandran, learned counsel for the petitioner
and Mr.P.Kumaresan, learned Additional Advocate General for the
respondents.
3. The petitioner appeared for the recruitment for the year 2008-09
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and found to be qualified for the post of Grade – II Constable and he
came out successful in both physical and written examination. However,
appointment was not offered to him by stating that he had suppressed the
material particulars with regard to the pendency of a criminal case
against him.
4. Mr.S.N.Ravichandran, learned counsel for the petitioner
submitted that during the first selection pertaining to the recruitment for
the year 2007-08, the petitioner disclosed that a criminal case was
pending. Even though the case was pending during selection, at the time
of passing of rejection order dated 19.10.2009, the petitioner got
acquitted by virtue of the judgment dated 06.02.2009 made by the
learned District Munsif-cum-Judicial Magistrate, Neyveli in C.C.No.251
of 2008. Even though the petitioner got acquitted, he filed a criminal
revision in Crl.R.C.No.1327 of 2010 by stating that he is entitled for
honourable acquittal, not just an acquittal on benefit of doubt. The said
revision was allowed by considering the petitioner's acquittal on merits.
The relevant portion of the order passed in Crl.R.C.No.1327 of 2010 is
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extracted hereunder:
"10.As far as the case on hand is concerned, a
perusal of the impugned order passed by the learned
Magistrate reveals that the learned Magistrate has given
a specific finding to the effect that there is absolutely no
evidence available on record to arrive at the conclusion
that the accused including the revision petitioner have
committed the offence alleged against them in this case.
It is also pertinent to note that in the order of acquittal,
it is clearly stated that the prosecution has failed to
prove its case beyond reasonable doubt. The learned
Magistrate has not observed or given any finding to the
effect that the accused has been acquitted by giving
benefit of doubt. Therefore, it is crystal clear that the
accused in this case including the revision petitioner
have been acquitted as there is no evidence available on
record against anyone of the accused much less, the
revision petitioner, who has been arrayed as A1 in this
case. Therefore, this Court is of the considered view that
it is very clear that the order of acquittal passed by the
learned Magistrate, Neyveli, dated 06.02.2009 in
C.C.No.215 of 2008 is one of honourable acquittal."
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5. In the subsequent selection for the year 2008-09 also the
petitioner cleared the physical and written examination successfully.
However, by virtue of an order dated 06.04.2010, once again the
petitioner's appointment was rejected by stating that the petitioner had
suppressed the earlier criminal case. The petitioner did not bring it to
the notice of the second respondent as he got an acquittal in the above
case. Subsequently, the petitioner has filed Writ Petitions in
W.P.Nos.21831 & 21832 of 2010 for seeking direction to set aside the
order of rejection. In the above said Writ Petitions an order has been
passed on 20.12.2019. Paragraph No.5 and 6, which are more relevant
are extracted hereunder:
"5.The Writ Petitions were filed in the year 2010
and the respondents have also filed counter affidavit
dated 26.10.2010. It proceeded on the basis that the
petitioner fall within Explanation-I to Clause (iv) of
Rule 14(b) of the Tamil nadu Special Police
Subordinate Service Rules, 1978. But subsequently, on
28.02.2011, this Court has declared that the petitioner
was Honourably acquitted and therefore, in the present
circumstances, the respondents have to consider the
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candidature of the petitioner in the light of the order
passed in Crl.R.C.No.1327 of 2010 dated 28.02.2011.
6.In view of the same, both the Writ Petitioners
are disposed of with a direction to the respondents to
consider the candidature of the petitioner in the light of
the order passed in Crl.R.C.No.1327 of 2010 dated
28.02.2011 and pass appropriate orders, in accordance
with law. This exercise shall be completed by the
respondents within a period of eight weeks from the
date of receipt of a copy of this order. No costs."
6. Mr.P.Kumaresan, learned Additional Advocate General
appearing for the respondents submitted that the confirmation of the
acquittal of the petitioner as that of honourable acquittal by virtue of the
order passed in Crl.R.C.No.1327 of 2010 relates to the date 28.02.2011,
but the petitioner appeared for the recruitment for the year 2009. It is
further submitted that the petitioner did not disclose in his application
about his involvement in the criminal case and that he had got acquittal
and hence the petitioner is not entitled to make any submission that his
acquittal in the Appellate Court relates back to the date of the judgment
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passed in the Lower Court. Since the material facts were suppressed by
the petitioner, the petitioner's request does not warrant any consideration.
In the impugned order dated 11.03.2020, the second respondent has
passed the order of rejection by placing reliance on the judgment passed
in W.A(MD) Nos.285 & 286 of 2015. In paragraph No.9 of the impugned
order, it is observed as under:
"9.The Hon'ble High Court of Madras in its
orders, dated 20.04.2015 in Writ Appeals(MD) Nos.285
of 2015 and 286 of 2015 filed by Tr.S.Balakrishnan
Pradeep and others have observed as follows:-
"30.As observed earlier, there cannot
be any suppression, on the part of the
appellants, at the time when they submitted
their applications. But after completion of
the written tests and during police
verification, conviction and payment of fine,
had come to the knowledge of the
authorities. Discovery of the said fact
cannot be ignored. Criminal Revision (MD)
No.772 of 2010, has been disposed of, on
legal grounds. Evidence has not been
discussed. Therefore, with due respect, we
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are not in agreement with the contention of
the learned counsel for the appellants, that
the facts on hand is similar to Ram Kumar's
case. Even taking it for granted that
conviction has been set aside in 2010, it
cannot be retrospectively applied, to the non
selection of the appellants which was
conducted in the year 2008. Selection or non
selection, depends upon the satisfaction of
the required criteria, at the time of scrutiny
of application, during teh process of
selection and if a person is disqualified,
during such process, on account of
conviction and if the same, is set aside, at a
later point of time, by a higher forum, the
judgment rendered acquitting the candidate,
cannot be applied retrospectively, to the
period of selection and in the case on hand,
when the selection has already been
finalised in 2008 itself. Eligibility criteria
has to be satisfied on the date of submission
of application, during the selection process
and till it is finalised."
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7. Pursuant to the above, it was observed that the acquittal of the
petitioner on the date of the judgment could have been considered as
only an acquittal by giving the benefit of doubt and not an honourable
acquittal.
8. Before adverting into the applicability of the observation made
in the impugned order dated 11.03.2020 to the facts of this case, one
clarity has to be made in respect of the order made in Crl.R.C.No.1327 of
2010. The petitioner was acquitted in the criminal case pending against
him in C.C.No.251 of 2008 by virtue of the judgment dated 06.02.2009.
However, he filed a criminal revision by claiming that the acquittal in the
above case is an honourable acquittal not just an acquittal on benefit of
doubt. In the order passed in the revision, a clarification has been given
that the acquittal of the petitioner on the materials relied by the learned
Trial Judge would only amount to honourable acquittal and it is not a
mere acquittal by giving benefit of doubt. In fact, the Court has made an
observation that there is no material available against the petitioner
during the trial and hence his acquittal has to be considered only as an
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honourable one.
9. In the impugned order, a reference has been made about the case
in W.A(MD) Nos.285 & 286 of 2015. In those cases, the case against that
petitioner had ended in conviction and later on challenge, it was reversed
and the person involved was acquitted subsequently. Hence, it is rightly
held that the order of acquittal due to reversal in the Appellate Court
cannot be considered as acquittal relating back to the date of judgment of
the Trial Court.
10. But in the case of the petitioner, the petitioner was never
convicted either by the Trial Court or by the Appellate Court by way of
reversing the Trial Court's judgment. The petitioner on his own volition
sought clarification on the order passed by the Trial Court that his
acquittal is an honourable acquittal. Even if the petitioner omitted to file
a Criminal Revision, the fact remains that he got acquitted on
06.02.2009, when the judgment of the Criminal Court was passed. The
petitioner applied to the next recruitment (i.e) 2008-09, only on
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07.06.2009, on which date there was no case pending against him.
11. The allegation is that in the application, the petitioner did not
mention about his acquittal in the criminal case. In case, the petitioner
had not filed the Criminal Revision, still he had the order of acquittal in
his favour and it is for the second respondent to appreciate whether it
should be taken as an honourable acquittal or not, irrespective of the
words ‘beyond reasonable doubt’ employed by the Trial Court in its
concluding part of the judgment.
12. The petitioner who got acquitted on the date when he applied
for the recruitment for the year 2008-09, seems to have presumed that
on that date no criminal case was pending against him and hence he
omitted to make any mention in column No.16 of the application.
However, subsequent to his successful clearance in the written
examination and physical fitness, during verification, the respondents
could have very well known that the criminal case which was pending
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earlier had ended in acquittal. As on the date when the petitioner
applied, there was no case pending against him.
13. So far as the criminal case was concerned, it was due to some
alleged clash between two groups and cases in counter have been
registered against this petitioner for the charges under Sections 147, 148,
294 IPC. The above charges are trivial in nature and hence, the case can
be classified under the case involving trivial offences. It cannot be
claimed that on the date when the order in Criminal Revision was passed,
there was no order of acquittal. Since the order of acquittal was very well
in existence, the reliance placed by the second respondent for rejecting
the appointment of the petitioner on the judgment in W.A(MD) Nos.285
& 286 of 2015 is apparently incorrect. The interpretation given in the
Criminal Revision about the nature of acquittal can also hold the result of
acquittal to the date on which the judgement was pronounced by the Trial
Court. So there is no question of giving retrospective effect for an order
of acquittal and the acquittal stands as such with effect from 06.02.2009
only.
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14. So far as the suppression of material facts is concerned, I feel it
is worthwhile to refer to the order passed by the Madurai Bench of this
Court in W.A.(MD).Nos.938 & 939 of 2020 and batch dated 05.06.2023,
in which preposition of law has been summarised as under:
“(D). SUMMARY OF PREPOSITION OF LAW:
(a). In case of honourable acquittal, discharge,
case closed as mistake of fact, quashing of FIR /
Charge Sheet before the date of police verification,
the same should be considered in favour of the
candidate in the current selection itself.
(b). Where the candidate has been acquitted on
the ground of benefit of doubt or hostility of witnesses
(before the date of police verification), that would not
confer any right upon the candidate to claim
appointment as a matter of right. It is for the
employer to consider the suitability of the candidate
based upon his conduct and antecedents only if the
offences are trivial in nature.
(c). Where the criminal case has been quashed
(before police verification) on the basis of a
compromise and the offence is of trivial in nature, the
same can be considered in favour of the candidate in
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the current selection itself. However, if the offence
involved is not of a trivial in nature, the same cannot
be considered for appointment.
(d). Where a candidate having knowledge about
his involvement in a criminal case had suppressed the
same in his application and the said offence is not
trivial in nature, he is not entitled to seek any
appointment. On the other hand, in cases of trivial
offences, without knowledge about his involvement or
after having knowledge had suppressed his
involvement, the employer in his discretion is entitled
to consider the candidature by considering his
character and past antecedents.
(e). Where the candidate is involved in
petty/trivial cases like family dispute or dispute with
neighbors or shouting of slogans or traffic offence
where fine was imposed, the same can be considered
to be offence of trivial/petty in nature. However, the
offence against women, children or under NDPS Act
should never be considered to be an offence of trivial
in nature.
(f). Where the candidate is involved in criminal
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offences under Juvenile Justice Act, he/she is to be
considered in the light of the Division Bench
Judgment of this Court dated 01.03.2023 in
Rev.Apln.No.17 of 2023 in W.A.No.2759 of 2018 (The
Superintendent of Police, Villupuram District
Vs.S.Rajeshkumar)
(g). Pending the recruitment process, if a
candidate is discharged from the criminal case or
acquitted in the criminal case, he/she shall be eligible
to be considered for the next recruitment process as
per Rule 14(b) of the Tamil Nadu State Police
Subordinate Service Rules. ”
15. In the case in hand also, the case pending against the petitioner
falls under trivial offences. Even in trivial offences, if the pendency of
such case is within the knowledge of the applicant and he ought to have
brought it to the notice of the authority concerned. However, the lack of
understanding on the part of the applicant in construing the meaning of
column No.16 that he is bound to reveal information only if a criminal
case is pending, cannot be taken so seriously that the petitioner had
wantonly suppressed the material fact. Had there been such an intention
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in the mind of the petitioner, he would not have mentioned it even during
his earlier application filed for the recruitment of the year 2007-08. So
the omission on the part of the petitioner to make a mention about his
acquittal in the criminal case in Column No.16 of the application is due
to sheer misunderstanding and not an intentional suppression.
16. The second respondent has passed the impugned order without
taking into consideration of the relevant facts but wrongly placing
reliance on a judgment in W.A(MD) Nos.285 & 286 of 2015 which is not
applicable to the facts of this case. Hence I feel the impugned order is
liable to be set aside and the petitioner is entitled to grant the relief as
prayed by him.
17. In the result, this Writ Petition is allowed and the order passed
by the second respondent in Rc.No.371236/REct.1(2)/2020, dated
11.03.2020 is set aside and the respondents are directed to appoint the
petitioner as Grade II Police Constable in the Tamil Nadu Special Police
Service recruitment for the year 2008-09 with notional seniority without
back wages within a period of twelve weeks from the date of receipt of
copy of this order. No costs.
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22.11.2023
Index : Yes
Internet : Yes/No
gsk
To
1.The Secretary,
Home Department,
Fort St. George, Chennai 9.
2.The Director General of Police,
Chennai 4.
3.The Chairman,
Tamil Nadu Uniformed Service Recruitment Board,
Chennai 2.
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R.N.MANJULA, J.
gsk
22.11.2023
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