Baraf Singh vs State of Jammu and Kashmir

Arun Kumar Goel, J.—Petitioner has filed this writ petition alleging that he is ExC.R.P. man, he was selected in the I.R.P. by the

respondents in the year 1999, after he was found eligible. His name figured at Serial No. 42 in the Select List, AnnexureA to the writ petition. S.P.

(CID) Batote vide his letter dated 24.11.1999 (AnnexureB) verified that ""there is nothing adverse against serial No. 42"". For ready reference,

contents of AnnexureB are reproduced herein below :

Signal

To

Addl. DGPCIDJ&K Jammu

From

S.P. CIDHqrsBatote

No. CID/rB/B/24382585

Dt. 24.11.1999

Kindly refer CIDHqrs letter No. CID/rB/99/Doda/ 147/5th6th/BN, Dt. 10.7.1999. The verification got conducted through DiCIDDoda, reveals

that there is nothing adverse against S.No. 42 Baraf Singh S/o Hans Raj R/o Rai Shenda Doda in the record of CID Sichi concerned.

After having been selected and in the aforesaid background, petitioner went to join in the Battalion, when Respondent No. 4 refused to accept

his joining report, there is no justifiable cause for his joining report not being accepted. This could not have been done and thereby denying him his

fundamental right of seeking public employment.

According to the petitioner, FIR No. 34 of 1997 is registered at Police Station, Bhaderwah, District Doda. This relates to an incident that had

taken place on 27.3.1999 at the residence of a relation of the petitioner. In this incident, petitioner had sustained injury and was sent for medical

examination by the Medical Officer, Doda alongwith other persons. Petitioner is cited as a witness in the challan, that was filed after the registration

of the case. He figures in the list of witnesses in such prosecution launched on the basis of FIR No. 34 of 1997 of Police Station, Bhaderwah.

He alleges that a counterblast and with a view to cause harassment to the petitioner as a witness as aforesaid accuses in FIR No. 34 and 1997,

lodged FIR No. 35 of 1997 on 28.03.1997. Petitioner has been named as an accused in this FIR.

FIR No. 34/1997, wherein petitioner is a witness is under Sections 27/336, 321/307, 148/147, 452/149 RPC and 3/25 Indian Arms Act;

whereas FIR No. 35/1997 (supra) is under Sections 452/307, 147/148 and 149 of the RPC.

Pendency of the aforesaid FIR and the alleged involvement of the petitioner is alleged to be the reason for his being not allowed to join in the

I.R.P. Battalion as aforesaid. This writ petition was admitted on 29.5.2000. A prayer was made for the grant of interim relief, thereby praying that

respondents be directed to allow the petitioner to join as Constable in the Jammu and Kashmir Police (I.R.P.), pursuant to his selection or in the

alternative direct the respondentsauthorities not to fill up the post of the petitioner till disposal of the criminal case pending against him. While

admitting the writ petition on 29.5.2000, this CMP was disposed of in the following terms :

CMP 864/2000. No orders save and except that if writ is allowed petitioner will be entitled to all benefits from today the 29.5.2000. CMP is

deposed of.

Case was directed to be listed on 7.11.2000.

As already observed, prayer for the grant of interim relief was declined. Idea was to enable the respondents to file counter, for which eight

weeks time was allowed. Whole idea of not considering the grant of interim relief was that respondents should also be before the Court. It is

unfortunate that after more than five months, when the case came up before the Court on 7.11.2000, again prayer was made for granting further

opportunity. May be in case the respondents were prevented by any justifiable as well as sustainable cause, by bringing the facts before the Court

in that behalf, they could have filed the necessary application and praying for extension of time. Except for making a prayer, there was nothing

brought to the notice of the Court as to why counter has not been filed, as such, right to file the counter was closed and the matter has been heard.

No doubt, as per Rule 17(d) of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956, no person shall be

eligible for appointment to any service by direct recruitment, unless

(d) he satisfies the appointing authority that his character and antecedents are such as to qualify him for such service.

Thus Government is competent to get the antecedents of a person selected for his appointment by direct recruitment verified. There is nothing

wrong with this rule as well as Government Instructions on the subject issued vide Government Order No. Home559IS of 1969 dated 18.9.1969,

wherein procedure has been prescribed for verification of the antecedents and character of the incumbent like petitioner. In a given case,

appointing authority will be well within the rights as well as will also be well advised to refuse appointment to such a candidate, if after verification

of his character and antecedents, it is found that the incumbent is not entitled to the post in question.

From the circumstances of this case, for want of counter as well as no contemporaneous official record having been produced at the time of

hearing of this writ petition to demonstrate that the character and antecedents were got verified and thereafter the appointing authority on

examination of both came to the conclusion that the petitioner was not a fit person to be appointed as Constable in the I.R.P.

Least that was expected of the respondents as well as the appointing authority was to examine such report of verification of character and

antecedents, and if it was received and then pass an order justifying that the petitioner was not a fit person for being appointed as such. While

doing so, appointing authority is expected to go into the whole case and then come to its independent conclusion. By either not appointing an

incumbent like petitioner simply on the basis of the verification report of character and antecedents without taking a decision on it, action of the

appointing authority would be not only be unjust and harsh, but at the same time would be illegal, arbitrary and unconstitutional. Thus violative of

Articles 14 and 16 of the Constitution of India. For taking this view, reliance is being placed on a decision of this Court reported in Onkar Singh v.

State, 1997(2) SCT 413.

In Abid Ali v. The Additional Chief Secretary (Home), J&K Government, Jammu, 2000(3) SCT 275, after having examined decided cases on

the subject, identical view was taken by this Court.

In the context of the present case, another decision of this Court is dated 12.5.1997 in S.W.P. No. 1223/1996; what was observed and is

relevant in the context of the present case was in the following terms:

However, it shall be open to the competent authority to deal with the matter in accordance with the rules, in case he is convicted by any criminal

Court. His seniority shall reckon from the date his coselectees were appointed in order of merit but this shall not entitle him to any pecuniary

benefit.

Earlier it was said :

The respondents submit that formal order of appointment would be issued after verification of the certificates and on the satisfaction of the

appointing authority regarding the petitioner's character and antecedents in terms of Rule 17(d) of the J&K Civil Services (Classification, Control

and Appeal) Rules, 1956 (1956 Rules) and the J&K Civil Services (Verification of Character and Antecedents) Instructions of 1969 sanctioned

vide Govt. Order No. Home559IS of 1969 dated 18.9.1969 which empower the Appointing Authority to satisfy himself about the character and

antecedent of a candidate before making his appointment.

In the scenario all that remains to be seen is whether the respondents were justified in withholding the appointment order of the petitioner in the

facts and circumstances of the case in light of Rule 17(d) of the 1956 Rules and the Govt. instructions contained in Govt. Creder No. Home559/IS

of 1969.

The appointing authority cannot keep the matter in cold storage and hold the available `adverse material' close to his chest without formation of

any opinion on such material and taking appropriate action supported by reasons to disentitle a selected candidate from appointment. Such a

course of action would be wholly and grossly arbitrary infringing the right of equality of employment of a candidate at his back.

The requirement of passing of the order by the appointing authority on the basis of available material becomes necessary to ensure that the

selected candidate is not deprived of his employment on an extraneous consideration or relevant (irrelevant) material. The verification of

antecedents and character of a candidate through the police agency may throw up material which may not be relevant to his suitability for the job

or which may be extraneous to the nature of his duties attached to the post. The selected candidate in such a situation, cannot be shown the door

merely because the verification had disclosed some secret information about him.

It was further observed :

Such pendency which could also result in acquittal of an accused, could not constitute a factor for depriving a selected candidate from

employment unless he was convicted and sentenced which would earn him a disqualification for holding the post.

To similar effect is another decision of this Court in S.W.P. No. 194/98, Ritu Raj Singh Jamwal v. State and another.

In view of the uncontroverted facts of this case as also for want of production of contemporaneous official record as well as in view of the case

law referred to hereinabove, this writ petition is allowed with a direction to the respondents to examine the case of the petitioner, and not to deny

the benefit of appointment to the petitioner due to the pendency of case, FIR No. 35/1997 of Police Station, Bhaderwah referred to hereinabove,

in the absence of there being any verification of his character and antecedents as well as the decision having been taken by the appointing authority

on receipt of such verification. Respondents are further directed to decide the case of the petitioner on or before 29.12.2000 by taking a decision,

and in case petitioner is found entitled to join the I.R.P. Battalion; in such a situation, he will be entitled to the benefit of his seniority, etc., except

monetary benefits from the date person below him in the merit list was allowed to join.

Respondent No. 4 will report compliance by filing affidavit. For limited purpose of filing affidavit only, this case will be listed before the Court

on 29th of December, 2000.

No order as to costs.