(Judgment of the Court was made by Mr. Justice S.MANIKUMAR) Challenge in this appeal is to the order made in W.P(MD)No.1290 of 2013 dated 26.03.2013, by which, the Writ Court has set aside the communication, dated 18.12.2012 and consequently, directed the appellants to select the writ petitioner to the post of Grade II Police Constable in service.
2. Pursuant to the notification issued by the 1st appellant herein/Chairman, Tamil Nadu Uniformed Service Recruitment Board, Chennai, calling for applications from eligible candidates, to fill up the post of Grade-II Police Constable/Grade II Jail Warders/Fireman for the year 2012, the respondent/writ petitioner, applied for the same. The respondent/petitioner was successful in the written examination, physical test and medical test. Thereafter, the 3rd appellant/Superintendent of Police, Madurai District, vide proceeding, dated 03.11.2012, directed the respondent/petitioner to appear for certificate verification, on 07.11.2012. Pursuant to the certificate verification, the 3rd appellant, by order, dated 18.12.2012, rejected the candidature of the respondent/petitioner, on the grounds that the following http://www.judis.nic.in 3 cases were pending against him.
(1)Crime No.566/2005 on the file of the Inspector of Police, T.Kallupatti Police Station, for the offences u/s. 147, 148, 323, 324, 338 and 427 of IPC r/w Section 3(1) of TNPPDL Act.
(2)Crime No.14/2008 on the file of the Inspector of Police, T.Kallupatti Police Station for the offence u/s. 147, 148, 341, 448, 427 and 506(i) of IPC.
In the abovesaid order, the 3rd appellant has further stated that column Nos. 15, 16 and 18 of the verification roll of the petitioner have not been filled up properly and that there was suppression of correct particulars, against service rules, which states that if any person involved in a criminal case, he is not entitled to be appointed in the police department.
3. According to the respondent/writ petitioner, when the occurrence took place, he was a juvenile, not completed 18 years of age, thus, he shall not suffer any disqualification, if any, as provided under
Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Even though the Principal Magistrate of Juvenile Justice Board has passed an order, dated http://www.judis.nic.in 4 11.01.2013 in Cr.M.P.No.2 of 2013 that as per
Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000, he should not be disqualified, on account of the cases pending against him and thus, the 3rd appellant/Superintendent of Police, Madurai District, erred in rejecting his candidature. In support of his contention, he placed reliance on a decision in The Commissioner of Police and others vs. Sandeep Kumar, reported in 2011 (4) SCC 644.
4. W.P(MD)No.1290 of 2013 was heard along with a batch of writ petitions, relating to an issue, namely, rejection of candidature on the ground of non disclosure of the involvement in criminal case in the application form. Before the Writ Court, assailing the orders of rejection, it has been contended by the writ petitioners that though a Hon'ble Full Bench in Manikandan and others vs. The Chairman, Tamil Nadu Uniformed Services, Recruitment Board, Chennai and 4 others, reported in 2008 (2) CTC 97, has held that as per Explanation 1 to Clause (iv) of Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, 1978, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified, for selection to the police service and the failure of a person to disclose in the http://www.judis.nic.in 5 application form, either of his involvement in a criminal case or pendency of a criminal case against him would entitle the appointing authority to reject his application on the ground of concealment of material facts, irrespective of ultimate outcome of the criminal case, having regard to the judgment of the Hon'ble Supreme Court reported in Commissioner of Police and others vs. Sandeep Kumar [2011 (3) SCALE 606 : (2011 )4 MLJ 1006(SC)], Ram Kumar vs. State of U.P & others [2011 (6) CTC 440 (SC)] and Jainendra Singh vs. State of U.P. Tr.Prinl. Section Home and others [(2012) 7 MLJ 68(SC)], the case of the petitioner ought to have considered and the judgment of the Full Bench in Manikandan's case (cited supra), should not be taken into consideration for rejecting the application and therefore, rejection of the candidature of the petitioners for the post of Grade II Police Constable is illegal and liable to be set aside. After considering the facts and circumstances of the case, ultimately, at Paragraph 35, the Writ Court has ordered as follows:-
''Considering the fact that the Hon'ble Supreme Court has referred the issue, whether a person can be denied a job for having suppressed his involvement either in the application form or in the verification roll to the Larger Bench, I set aside the orders of the http://www.judis.nic.in 6 respondents in rejecting the applications of the petitioners and depending upon the judgment to be rendered by the Larger Bench, it is always open to the respondents to take further action, even after their appointment in the police force. In other-words, the appointment of the petitioners into the police force is depending upon the decision of the Hon'ble Larger Bench of the Supreme Court and till a final verdict is rendered by the Hon'ble Supreme Court, these persons should not be denied of their chance to serve in the police Department.''
5. Learned Special Government Pleader appearing for the appellants submitted that the impugned order is against the decision of the Hon'ble Full Bench of this Court in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB). He further submitted that the judgment of the Hon'ble Apex Court in SLP (Civil) Appeal No.38886 of 2013 and SLP (Civil) Appeal No.4057 of 2013 in Civil Appeal Nos.4892 and 4965 of 2013 held that a person with criminal antecedents cannot be a policeman.
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6. Placing reliance on the provision under Rule 14(b) of Special Rules for Tamil Nadu Special Police Subordinate Service, as amended in G.O.Ms.No. 101 Home (Pol.IX) Department, dated 30.01.2003, learned Special Government Pleader further submitted that even taking it for granted that the respondent/writ petitioner has been acquitted in the criminal case, suppression of the fact of involvement in the criminal case, is per se apparent.
7. To sustain the order of the Writ Court, Mr.T.Lenin Kumar, learned counsel for the respondent/writ petitioner submitted that at the time, when the two occurrences took place, the respondent/writ petitioner was a juvenile and and as per
Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000, an offence committed by a person, when he was a juvenile, shall not suffer disqualification, if any. He prayed to sustain the impugned order.
Heard the learned counsel appearing for the parties and perused the materials available on record.
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8. Before adverting to the rival contentions, it is worthwhile to extract Rule 14(b) of Tamil Nadu Special Police Subordinate Service, dealing with the selection to the post of Police Constable, is as follows:
“a) Rule 14(b) of Special Rules for Tamil Nadu Special Police Subordinate Service as amended in G.O.Ms.No.101 Home (Pol.IX) Department, dated 30.01.2003 is furnished below:-
“No persons shall be eligible for appointment to the service by direct recruitment unless he satisfied the appointing authority.
ii) that his character and antecedents are such as to qualify him for such service
iv) that he has not involved in any criminal case before police verification.
Explanation:-(1) A person who is acquitted or discharged on benefit of doubt or due to the fact that complainant “turned hostile” shall be treated as person involved in a criminal case.
Explanation:- (2) A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of any subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for http://www.judis.nic.in 9 appointment only by participating in the next recruitment.”
9. While adverting to the rival contentions, Writ Court, after going through the offences framed against the respondent, has observed as follows:
"21. The persons coming under the categories 4 and 5, namely persons involved in Petty Offences, cannot also be denied of selection on the simple ground that they have suppressed their involvement, considering the nature of the offence in which they were found guilty. Further, the petitioners who were juveniles at the time of committing of offences cannot also be denied selection, considering the
Section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000. Therefore, in my opinion, the persons coming under the 1st five categories cannot be found guilty of suppression of facts, either in the application form or in the verification roll and rejection of those candidates cannot be justified."
10. In T.S.Vasudevan Nair vs. Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) SCC 795, on the facts and http://www.judis.nic.in 10 circumstances of the case, the Hon'ble Supreme Court, by observing that the appellant therein should not have been denied employment on the sole ground that he had not disclosed that during emergency he had been convicted under the Defence of India Rules for having shouted slogans on one occasion, set aside the judgment of the High Court and also the order, cancelling the offer of the appointment. Facts involved in the above case are inapposite to the case on hand, in the light of Rule 14(b) of Tamil Nadu Special Police Subordinate Service.
11. Decision in State of Haryana v. Dinesh Kumar reported in 2008 (3) SCC 222, deals with arrest and custody and therefore, it is not applicable in strict senso to the facts on hand.
12. In Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, the respondent therein suppressed the information regarding involvement of the criminal case, registered under Section 325/
34 IPC. To Query No.12(a), “Have you ever been arrested, prosecuted kept under detention or bound down/fined, convicted by a court of law for any offence debarred/disqualified by any Public Service Commission http://www.judis.nic.in 11 from appearing at its examination/selection or debarred from any Examination, rusticated by any university or any other education authority/Institution.", the respondent therein wrote as 'No'. A show cause notice was issued, asking him to explain, as to why, his candidature for the post should not be cancelled, because he had concealed the fact of his involvement in the criminal case. The respondent submitted his reply and counter reply. However, his candidature was cancelled. He filed a petition before the Central Administrative Tribunal, which was dismissed on 13.02.2004. Writ Petition was allowed. The Commissioner of Police went on appeal before the Apex Court. By observing that when the incident happened, the respondent therein must have been about 20 years of age and at that age, young people often commit indiscretions and such indiscretions can often been condoned and after all, youth are not expected to behave in as mature a manner as older people and therefore, the approach of the Hon'ble Apex Court should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives and further observing that probably he did not mention this out of fear that if he did so he would automatically be disqualified, the Hon'ble Supreme Court upheld the order of the High Court.
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13. In Ram Kumar v. State of U.P., reported in 2011 (6) CTC 440, the appointment of the appellant therein as Police Constable was cancelled on the ground that he had suppressed and concealed the fact about his involvement in criminal case in Proforma Verification Roll. However, the respondent therein had not gone into question, as to whether, the appellant was suitable for appointment to service or to post of Constable, in which, he was appointed and he has only held that selection of the appellant therein was illegal and irregular. On the abovesaid facts, the Hon'ble Supreme Court, by observing that the appointing authority has to satisfy himself on point as to whether, the appellant therein was suitable for appointment to the post of Constable, with reference to nature of suppression and nature of criminal case, set aside the order, canceling the appointment and directed reinstatement.
14. In the case on hand, based on the Hon'ble Full Bench judgment in Manikandan's case and the decision in SLP (Civil) Appeal No.38886 of 2013 and SLP (Civil) Appeal No.4057 of 2013 in Civil Appeal Nos.4892 and 4965 of 2013, the appellants have contended that a person with criminal antecedent, cannot be appointed as policeman. Moreover, suppression of material facts, is per se apparent.
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15. In K.Sathyaseelan v. Tamil Nadu Uniformed Services Recruitment Board reported in 2013 Writ.L.R. 360, the petitioner therein was involved in a criminal case in Crime No.12 of 2010, registered by the All Women Police Station, Harur, for the offence, under
Section 498-A IPC., and
Section 4 of Dowry Prohibition Act. After trial, he was acquitted. However, the petitioner therein was not selected, on the ground that he has suppressed the said information. Subsequent to the complaint and even before trial, he had started living with his wife and also gave birth two children. He was acquitted, since there was no evidence. On the facts and circumstances, the petitioner therein claimed that he was under the bona fide impression that he need not have to mention about his involvement in the criminal case, since the complainant herself stated that she had started living with him. Though he has suppressed about the involvement of the criminal case, on the facts and circumstances of the case, a learned single Judge of this Court was pleased to direct the respondents therein to grant an appointment order to the petitioner therein to the post of Grade II Police Constable. Reported case is inapplicable to the facts on hand.
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16. In Sivanesan v. Superintendent of Police reported in 2013 (3) MLJ 142, though initially the petitioner therein did not furnish the information regarding registration of the criminal case, at the time of filling up of verification roll, he mentioned about his involvement in the criminal case, which was subsequently quashed. In the above reported case, a complaint was lodged against him, alleging that he had kidnapped one Arachelvi, who subsequently appeared before the Court and submitted that they were in love and married. Paternal Grandfather of Arachelvi had given a complaint. Thus, in the abovesaid case, in the police verification roll, the petitioner therein had given the details of involvement of the criminal case, which has been subsequently quashed.
17. In Joginder Singh v. Union Territory of Chandigarh reported in 2015 (2) SCC 377, the appellant therein was charged under
Sections 148,149,323,325 and
307 IPC., but acquitted by trial Court, holding that prosecution had miserably failed to prove charges levelled against him, since the complainant as well as injured eyewitness had failed to identify assailants. The complainant had further admitted that the contents of Section 161 Cr.P.C. statements were not disclosed to him and his signature was obtained on blank http://www.judis.nic.in 15 sheet of paper by Investigation Officer. In the abovesaid circumstances, the Hon'ble Supreme Court held that acquittal of the appellant therein was an honourable acquittal and hence, he should not be denied appointment to post in question.
18. With reference to Rule 14(1)(b) of the Special Rules for Tamil Nadu Special Police Subordinate Service, the appellants herein, while declining selection of the respondent herein, have categorically stated that as against Column Nos.15 to 17 in the Proforma, he has suppressed to mention the fact about the involvement in the criminal case and thus, his conduct and character, are not suitable for appointment. Therefore, all the above cases are distinguishable.
19. Though the above reported judgments relied on, by the respondent, may lend support that the acquittal therein should be construed as an honourable acquittal, if there was no evidence, there is concealment of reasonable information in the application. In the instant case, one of the reasons for not selecting the respondent/writ petitioner is suppression of involvement in the criminal case.
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20. On the aspect of non-disclosure of information, regarding involvement in the criminal case and after considering the decision of the Apex Corut in R.Radhakrishnan v. The Director General of Police and others reported in 2007 (12) SCALE 539, a Hon'ble Full Bench of this Court in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB), at Paragraphs 35 and 36, held as follows:
“35. ........Thus the above latest decision of the Apex Court has cleared the cloud of suspicion on the issue. Therefore we hold that the failure of a person to disclose his involvement in a criminal case, at the earliest point of time, when the application form is filled up, is fatal. His subsequent disclosure, whether before acquittal or after acquittal, will not cure the defect. In any case, the subsequent disclosure may not have any effect upon his selection, since his case will then fall under any one of the 2 Explanations under clause (iv) of Rule 14(b) and make him ineligible for the current selection or for all future selection depending on whether the acquittal is honorable or otherwise.
36. Coming to the individual cases, it is seen http://www.judis.nic.in 17 that all these cases fall either under the category covered by Explanation-1 to Rule 14(b) of the aforesaid Rules or under the category of suppression of the factum of involvement in the criminal case.
Therefore, none of the writ petitioners are entitled to any relief.”
21. In J.Alex Ponseelan v. Director General of Police reported in 2014 (3) MLJ 777 (FB), a Constitutional Bench of this Court revisited the validity of Rule 14(b)(iv) of the Special Rules for Tamil Nadu Special Police Subordinate Service and affirmed the views made in Manikandan and others vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others reported in 2008 (2) MLJ 1203 (FB), both on the aspect of acquittal and non-disclosure.
22. On the aspect of non-disclosure, the Writ Court has considered two decisions, viz., T.S.Vasudevan Nair vs. Director of Vikram Sarabhai Space Centre and others reported in 1988 (Supp) SCC 795 and Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644. T.S.Vasudevan Nair's case (cited supra), which have been considered and http://www.judis.nic.in 18 distinguished in Manikandan's case (cited supra), by placing reliance on a decision of the Apex Court in R.Radhakrishnan v. The Director General of Police and others reported in 2007 (12) SCALE 539, wherein, the Hon'ble Apex Court, at Paragraphs 10 to 13, held as follows:
“10. Indisputably, the Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the persons who has not made such disclosures and were, thus, similarly situated had not been appointed.
11. The question came up for consideration before this Court in Delhi Administration through its Chief Secretary and others v. Sushil Kumar {(1996) 11 SCC 65}, wherein it was categorically held:
http://www.judis.nic.in 19 "3.... The Tribunal in the impugned order allowed the application on the ground that since the respondent had been discharged and/or acquitted of the offence punishable under
Section 304 IPC, under
Section 324 read with
Section 34 IPC and under
Section 324 IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted....."
12. Mr.Prabhakar has relied upon a decision of this Court in T.S.Vasudevan Nair v. Director of Vikram Sarabhai Space Centre and Others (1998 Supp. SCC
795). The said decision has been rendered, as would be evident from the judgment itself, on special facts and circumstances of the said case and cannot be http://www.judis.nic.in 20 treated to be a binding precedent.
13. In the instant case, indisputably, the appellant had suppressed a material fact. In a case of this nature, we are of the opinion that question of exercising an equitable jurisdiction in his favour would not arise."
23. In the other judgment, viz., Commissioner of Police and others vs. Sandeepkumar reported in 2011 (4) SCC 644, the respondent therein was aged 20 years, against whom, a criminal case, under Section 325/
34 IPC, was registered, which was ended in compromise and he was also acquitted. In J.Alex Ponseelan's case (cited supra), a Constitutional Bench of this Court affirmed the legal position, as regards non-disclosure or suppression of involvement or pendency of the criminal case in the application form and that would be a ground for the appointing authority to reject the application, on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case. Sandeepkumar's case (cited supra) has been considered and discussed, at Paragraph 17 of the judgment in J.Alex Ponseelan's case (cited supra), as follows:
http://www.judis.nic.in 21 "17. The Referring Judge has stated that Single Judges have taken a different view with regard to the issue on involvement in a criminal case, and this, according to the Referring Judge, is causing some confusion. We do not think so. The Single Judge is bound by the decision of the Full Bench and there is no reason to doubt when the Rule is held intra vires and it holds the field and the learned Single Judge cannot overlook the said rule and the Full Bench decision of this Court in Manikandan's Case (supra) and such a view is legally untenable. The two Supreme Court decisions relied upon by the Referring Judge do not, in anyway, support the issue raised in the reference, as in Sandeep Kumar's case, the issue arose in respect of appointment to the post of Head Constable in NCT of Delhi. The relevant rules were not subjected to judicial test and it was an issue not in dispute. Further in Pawan Kumar's case, the Supreme Court did not have an occasion to test the validity of any particular rule. It only gave suggestions to the Government to amend certain provisions to iron out creases.” http://www.judis.nic.in 22
24. Even in Joginder Singh v. Union Territory of Chandigarh reported in 2015 (2) SCC 377, relied on by the learned counsel for the respondent/writ petitioner, the Hon'ble Supreme Court, while finding that there was no allegation of concealment of the material fact, upheld the order of selection. Whereas, on the facts and circumstances of the case and considering the Hon'ble Full Bench decision of this Court in Manikandan's case (cited supra), as affirmed by a Constitutional Bench decision of this Court in J.Alex Ponseelan's case (cited supra), with reference to Rule 14(b)(iv) of the Special Rules for Tamil Nadu Special Police Subordinate Service, there is a clear case of suppression of material fact of involvement in the criminal case by the respondent herein. Though the Hon'ble Supreme Court in Sandeep Kumar's case (cited supra), observed that, “indiscretions can often been condoned”, which judgment has also been considered by the Constitutional Bench judgment in J.Alex Ponseelan's case (cited supra), we are of the view that the later judgment is binding on this Bench.
http://www.judis.nic.in 23 In the light of the decisions and discussion, we are inclined to interfere with the order made in W.P(MD)No.1290 of 2013 dated 26.03.2013. Hence, Writ Appeal is allowed. No costs. Consequently, connected Miscellaneous Petition is also closed.