Hitesh Kumar Prabhudas Patel vs State of Gujarat and Another

Abhilasha Kumari, J.—Rule. Mr. Anand L. Sharma, learned AssistantGovernment Pleader waives service of notice of Rulefor the Respondents. On the facts, and in the circumstances of the case, and with the consent ofthe learned Counsel for the Petitioner, the matter isbeing heard, and finally decided,today.

This petition, has been preferred under Articles 226 and 227 of the Constitution of India, inter alia,with a prayer to quash and set aside the impugnedcommunication dated 24-9-2010 issued by RespondentNo. 2 whereby the appointment of the Petitioner to thepost of Lok Rakshak ("Un-Armed Police Constable") inthe State Reserve Police ("SRP" for short), has beenrefused.

The brief factual matrix of the case is that,pursuant to an advertisement for recruitment to the post of Un-Armed Police Constables in the SRP, thePetitioner applied for the said post, somewhere inthe month of March 2009. The Petitioner appeared inthe written examination for the said post, held on 74-2010, and was successful. Thereafter, bycommunication dated 24-6-2010 of Respondent No. 2, thePetitioner was intimated that he was required toremain present on 30-6-2010 for completion of theremaining formalities, along with all originaldocuments, including an original copy of the PoliceVerification i.e. Police Clearance Certificate on thestipulated date.

An offence was registered against the Petitioner videC.R. No. I-78 of 2002, on 7-3-2002, under Sections 147, 148, 149, 435, 395 of the Indian Penal Code and Section 135 of the Bombay Police Act. This is statedin the Police Clearance Certificate dated 26-6-2010. It is also stated that the criminal case against thePetitioner is pending trial. The Petitioner filedSpecial Civil Application No. 7473 of 2010 before thisCourt, with a prayer that he may be appointed as Un-Armed Police Constable, pending trial. The petition was permitted to be withdrawn, by order dated 30-62010, with liberty to file a fresh petition, in caseof difficulty. The Petitioner then sentrepresentation dated 30-6-2010 to Respondent No. 2,requesting the said Respondent for appointment as Un-Armed Police Constable, pending trial. The Petitioneralso sent an application dated 23-7-2010 toRespondent No. 2, which was received by the saidRespondent on 27-8-2010. In response to the same,Respondent No. 2 addressed communication dated 24-92010 to the Petitioner, stating therein that as thePetitioner is involved in criminal offences, itcannot be said that he possesses a good character;and as per Rule 42 Sub-rule (1) of Gujarat PoliceManual, 1975 ("Manual" for short), appointment in theSRP, cannot be given to him. Aggrieved by the abovementioned communication, the Petitioner hasapproached this Court by filing the present petition.

Mr. Jayesh A. Kotecha, learned advocate for thePetitioner has submitted that the impugnedcommunication has been passed without application ofmind, as the candidature of the Petitioner had been rejected by applying the provisions of Sub-rule (1) ofRule 42 of the Manual. The concerned Respondent hastotally over-looked the provisions of Rule 41 whereinit is stipulated, that even if a person is convictedof an offence, such conviction will not come in theway of his recruitment. It is further contended thatRule 42 does not state that a person against whom acriminal case is pending is ineligible forappointment. That the name of the Petitioner does notfigure in the FIR. The case has been registered inthe year 2002, and the Petitioner was arrested in theyear 2008, but the trial has still not begun. ThePetitioner is, at present on bail. It is submittedthat this is the last chance for the Petitioner toapply for the post in question, as he would becomeoverage thereafter. That mere pendency of a criminalcase against the Petitioner ought not to be thereason for denial of appointment, in view of theprovisions of Rule 41 of the Manual.

It is, therefore, prayed by the learned Counsel for the Petitioner that suitable directions be issued tothe Respondent-authority to appoint the Petitioner, subject to the outcome of criminal case that is pending against him.

Mr. Anand L. Sharma,learned Assistant GovernmentPleader has strongly opposed the prayers made in thepetition. It is submitted by him that in the chargesheet filed against the Petitioner, his name is atSr. No. 1. The offences alleged against the Petitionerare of a serious nature. The basic requirement forappointment to a post in the Police Department asalso as Un-Armed Police Constable in the SRP, is thatthe candidate should possess a good character, and inview of the offences registered against thePetitioner, the Respondent-authority has rightlyrejected his candidature on the ground that thePetitioner does not possess the good character,therefore, the petition may be dismissed.

Having heard learned Counsel for the respectiveparties and having perused the averments made in thepetition, as well as documents annexed thereto, it isan admitted position that the Petitioner is involvedin offences punishable under Sections 147, 148, 149, 435, 395 of the Indian Penal Code and Section 135 ofthe Bombay Police Act, vide C.R. No. I-78 of 2002registered at Bhiloda Police Station, on 7-3-2002. The Petitioner came to be arrested in connection withthe above-mentioned offences on 18-5-2008, and is atpresent on bail. Criminal Case No. 995 of 2008 ispending trial, against the Petitioner. In thisbackground, it would be relevant to notice the Rulesapplicable for appointment in the Police Departmentas also to the post to which the Petitioner claimsappointment.

Rule 42 of the Gujarat Police Manual,1975 (Volume I) is relevant and is reproduced hereinbelow:

Certificate of good character and their verification - (1) An appointment to any service or post, otherwise than by promotion or transfer of a person already in service, shall be subject to the production of such evidence of good character as may be required:

(a) by the Commission, if the appointment is to be made after consulting the Commission, or

(b) by the appointing authority, in any other cases.

(2) The Heads of offices whenever they haveoccasion to make appointments of Class III andClass IV servants should invariably require thecandidates concerned to produce certificate ofgood character from at least two respectablepersons, scrutinise them properly and satisfythemselves that the candidates possess goodcharacter before they are actually appointed.

(3)The officers should also make an entry in theService Books/Sheets/Rolls of all Class III andClass IV servants (except directly recruited Sub-Inspectors passing out of the Police Training School, Junagadh) regarding certificates of good character and their verification. The papers of such verification should be filed in the Personal Files of the Government servants concerned.

The case of the Petitioner would fall within thepurview of Sub-rule (1) of Rule 42, which stipulatesthat appointment to any service or post, otherwisethan promotion or transfer of a person already inservice, would be subject to production of suchevidence of good character, as may be required. Inthe present case, the Police Clearance Certificate,which is a necessary document, stipulates the offences in which the Petitioner is involved. On the basis of the same, Respondent No. 2 has arrived at a decision on the basis of Rule 42(1), that the Petitioner cannot be said to be possessing a good character and is, therefore, ineligible and unsuitable for appointment to the post in question.

The learned Counsel for the Petitioner has submitted that Rule 41 of the Manual should have been taken into consideration by the Respondent-authority, before rejecting the case of the Petitioner. The provisions of Rule 41 read as below:

Recruitment of a person Convicted of an offence. -(1) Conviction by itself should not be considered as a disqualification for Government service, but each case should be considered on its merits, with due regard to the nature of the offence for which the person concerned is convicted. Ordinarily there should be no objection to recruiting to Government service a person, though he may have been convicted by a court or has been detained in a Borstal School after such a conviction, provided the offence for which he was convicted did not involve moral turpitude or an anti-social attitude.

(2) According to the provisions contained in theBombay Children Act, 1948, the commitment of achild to a certified school does not operate asa disqualification for any employment. Personsshould not, therefore, be held ineligible foremployment in service on the ground that theyhave been committed in their childhood tocertified schools if they are otherwisequalified for such appointments.

As seen from the above, Rule 41 applies in caseswhere a person has been convicted. This is not the case with the Petitioner as trial against him ispending. However, even in such cases, as is clearlystipulated in the said Rule, ordinarily there shouldbe no objection to recruitment of a person, who mighthave been convicted by a Court of law or detained ina Borstal School after conviction, provided theoffence for which he was convicted did not involvemoral turpitude or an anti-social attitude. Thoughthe Petitioner has not been convicted and thecriminal case against him is pending trial, however,even if the provisions of Rule 41 are seen, it isclear that the convicted person can only beconsidered for recruitment/appointment, if the offences for which he has been convicted do notinvolve moral turpitude or an anti-social attitude. From the nature of offences alleged against thePetitioner, especially the one punishable underSection 395 (Punishment for dacoity), it cannot besaid that it is an offence which does not involve "ananti-social attitude". In this view of the matter,the provisions of Rule 41 of the Manual, would be ofno help to the case of the Petitioner.

In light of the above discussion and keeping inview the basic requirements for appointment toservice or post by direct recruitment as per theManual, the requirement of evidence of good characteris essential. Keeping in view the nature of dutiesrequired to be performed by police personnel and therole that they are required to play in society, whichinvolves great responsibility and public trust, itcannot be said that evidence of possession of a goodcharacter, is an unreasonable requirement.

The submission of the learned Counsel for thePetitioner that Rule 42 does not state that a person against whom a criminal case is pending is ineligiblefor appointment, cannot be accepted. When theessential requirement for appointment is possessionof a good character, it is but obvious thatinvolvement in criminal offences of a serious natureas in the present case, would go against the basicrequirements for appointment. The meaning, purportand intention of the rule is clear and unambiguousand the Petitioner cannot seek to rewrite it to suithis own purposes.

For the above-stated reasons, in my consideredview, there is no illegality or infirmity in theimpugned communication dated 24-9-2010.

The petition is devoid of merit and deserves to be dismissed. It is, accordingly, dismissed. Rule is discharged. There shall be no orders as to costs.