Narinder Kumar Sharma vs State and Others

Muzaffar Hussain Attar-Judge

With the consent of learned counsel for the parties, this petition is taken up for final disposal.

The petitioner responded to the Advertisement Notice issued by the respondents for being selected and appointed on the post of Follower

(Cook) in IRP. The petitioner along with other eligible candidates were subjected to the selection process. The petitioner on the basis of the merit

and suitability was selected for being appointed as Follower (Cook) which select list was published in a daily English newspaper Daily Excelsior in

its issue dated 29.12.2008. The petitioner was shown to have been selected as Follower (Cook) in general category and was adjusted in 13 Bn

IRP. It appears that the petitioner was denied appointment in view of the registration of FIR no.46/2007 under sections 451/147 RPC. The

petitioner being aggrieved of the inaction of the respondents to appoint him filed writ petition on hand claiming that respondents be directed to

allow the petitioner to join on the post of Follower (Cook) with a further prayer that action of the respondents which prevented him to join on the

said post be declared as ultra vires, illegal, arbitrary, unconstitutional.

On notice, reply has been filed by the respondents in which it is stated that it was not deemed proper and desirable to appoint the petitioner on

the post of Follower (Cook) in view of verification report about his character and antecedents.

The petitioner has filed CMP no. 3168/2011 with the prayer that judgment passed by the learned Judicial Magistrate Ist Class City Judge,

Jammu whereunder accused including the petitioner in FIR no. 46/2007 have been acquitted of the charges levelled against them be taken on

record. Application is allowed and copy of the judgement dated 26.09.2011 is taken on record.

Learned counsel for the petitioners referred to the judgment of the Hon'ble Supreme Court in case titled Commr. of Police and Others Vs.

Sandeep Kumar, and judgment of Punjab and Haryana High Court in case titled Parvesh v. State of Harayana and others reported in 2009 (4)

RCR (Cri) and submitted that in almost identical circumstances, Hon'ble Supreme Court and Punjab and Harayana High Court held that the

persons who was selected and appointed on the post should not be denied the appointment for having committing indiscreet act at a particular

period of time. Learned counsel further submitted that case of the petitioner is further strengthened for the reasons that he has been acquitted of the

charges levelled against him.

Learned counsel for the respondents referred to the Division Bench judgment of this court in case titled Fayaz Ahmed Panchoo v. State and

others reported in 2003 (1) KLJ 45 and also judgment of Hon'ble Supreme Court in case titled Delhi Administration through its Chief Secretary

and others v. Sushil Kumar reported in 1996 (1) SCC 605 and submitted that appointing authority is within its right to deny the appointment to the

petitioner on the basis of verification of character and antecedents. True it is that appointing authority has discretion to refuse the appointment to

the selected candidate in case it is shown that character and antecedents of such candidates were of such nature which would not make him fit for

appointment. The employer, however, cannot have the indefensible and unguided power to refuse appointment to the selected candidate who has

been found fit and suitable by the properly constituted Selection Committee for the post of Follower (Cook).

Right to seek appointment for being selected and appointed on a public post is guaranteed under Article 16 of the Constitution of India. When a

person is adjudged suitable by the duly constituted Committee for being appointed on a post, then there has to be a strong reason for denying

appointment to him. In the present case, there has not been any serious charge levelled against the petitioner. Charges are of minor nature, it can be

safely said that nature of charge was not of such a nature which would disentitle him for being appointed on the post of Follower (Cook). The

Hon'ble Supreme Court in Commr. of Police and Others Vs. Sandeep Kumar, observed in paras 8 to 12 which are taken note of :-

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 as 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.

In this connection, we may refer to the character Jean Valjean in Victor Hugo's novel Les Miserable, in which for committing a minor offence of

stealing a loaf of bread for his hungry family Jean Valjean was branded as thief for his whole life. The modern approach should be to reform a

person instead of branding him as a criminal all his life.

We may also here refer to the case of Welsh students mentioned by Lord Denning in his book Due Process of Law. It appears that some

students of Wales were very enthusiastic about the Welsh language and they were upset because the radio programmes were being broadcast in

the English language and not in Welsh. They came up to London and invaded the High Court. They were found guilty of contempt of court and

sentenced to prison for three months by the High Court Judge. They filed an appeal before the Court of Appeals. Allowing the appeal, Lord

Denning observed :

I come now to Mr. Watkin Powell's third point. He says that the sentences were excessive. I do not think they were excessive, at the time they

were given and in the circumstances then existing. Here was a deliberate interference with the course of justice in a case which was no concern of

theirs. It was necessary for the Judge to show- and to show to all students everywhere- that this kind of thing cannot be tolerated. Let students

demonstrate, if they please, for the causes in which they believe. Let them make their protests as they will. But they must do it by lawful means and

not by unlawful. If they strike at the course of justice in this land- and I speak both for England and Wales-they strike at the roots of society itself,

and they bring down that which protects them. It is only by the maintenance of law and order that they were privileged to be students and to study

and live in peace. So let them support the law and not strike it down.

But now what is to be done ? The law has been vindicated by the sentences which the Judge passed on Wednesday of last week. He has shown

that law and order must be maintained, and will be maintained. But on this appeal, things are changed. These students here no longer defy the law.

They have appealed to this Court and shown respect for it. They have already served a week in prison. I do not think it necessary to keep them

inside it any longer. These young people are no ordinary criminals. There is no violence, dishonesty or vice in them. On the contrary, there was

much that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they be proud of it. It is the language of the

bards-of the poets and the singers-more melodious by far than our rough English tongue. On high authority, it should be equal in Wales with

English. They have done wrong-very wrongin going to the extreme they did. But, that having been shown, I think we can, and should, show mercy

on them. We should permit them to go back to their studies, to their parents and continue the good course which they have so wrongly disturbed.

(Vide Morris v. Crown Office QB at p. 125C-H).

In our opinion, we should display the same wisdom as displayed by Lord Denning.

As already observed above, youth often commits indiscretions, which are often condoned.

It is true that in the application form the respondent did not mention that he was involved in a criminal case under Sections 325/34 IPC.

Probably he did not mention this out of fear that if he did so he would automatically be disqualified. At any event, it was not such a serious offence

like murder, dacoity or rape, and hence a more lenient view should be taken in the matter.

The law laid down by the Hon'ble Supreme Court in Sandeep Kumar's case oblige the respondents to accord consideration to the case of the

petitioner. Post of Follower (Cook) is not of that importance, which would impel the respondents not to consider the claim of the petitioner for

appointment on the said post.

For the reasons mentioned above, this writ petition is disposed of in the following manners:-

Respondents are directed to reconsider the claim of the petitioner for being appointed on the post of Follower (Cook) for which he was already

selected and take a decision in this regard preferably within a period of eight weeks from the date copy of this order is served upon them.

Disposed of along with connected CMP(s).