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Judgment
D. Hariparanthaman, J.—The Petitioner is a graduate and he registered the same in the concerned employment exchange and he also possessed Post Graduate Diploma in Computer Application. The first Respondent called for applications to the post of Constable in Railway Protection Force by notification No. 1/2005. The Petitioner applied for the same. He appeared for Physical Test on 17.01.2005 and written test on 23.01.2005. After preliminary selection, he appeared before the Medical Board for Medical Test conducted on 18.05.2005. He got selected. However, he was not given appointment on the ground that he was involved in a criminal case, which ended in acquittal. According to him, he was let off under the provisions of Probation of Offenders Act, 1958. Hence, there is no disqualification for appointment as Constable in the Railway Protection Force. In these circumstances, he made representations on 11.07.2007 and 12.07.2007 to the second Respondent to provide him appointment as he was let off under the provisions of Probation of Offenders Act, 1958. But, the second Respondent passed the impugned order, dated 22.08.2007 stating that he is not considered for appointment as Constable in Railway Protection Force. The Petitioner filed the present writ petition to quash the afore-said order and for a direction to the Respondents to appoint him as a Constable in the Railway Protection Force.
The Respondents have filed a counter affidavit refuting the allegations. The Respondents have admitted that the Petitioner was successful in all the tests and he was also found medically fit. He was selected. However, he was not given appointment, since before giving appointment his Character and antecedents got verified in accordance with the procedure prescribed by the Central Government and on verification, it was found that he was convicted by a criminal Court and therefore, he was not considered for appointment. It is stated that he was not considered, as per Rule 52 of The Railway Protection Force Rules, 1957. It is also stated that the Petitioner suppressed about the criminal case while submitting his application. The Respondents sought for dismissal of the writ petition.
The learned Counsel for the Petitioner has taken me through the judgment of the Judicial Magistrate, Srivaikundam, in C.C. No. 173 of 2001, dated 02.05.2007 and submitted that the trial Court granted the benefit u/s 4(1) of The Probation of Offenders Act and therefore, the Petitioner does not suffer any disqualification. He relies on a decision of the Honourable Apex Court reported in Md. Monir Alam Vs. State of Bihar, and an unreported judgment of this Court dated 07.02.2011 made in W.P. No. 21254 of 2010 (G. KIRUBAGARAN v. DIRECTOR GENERAL OF POLICE, CHENNAI AND OTHE R S).
On the other hand, the learned Counsel for the Respondents submits that the Petitioner was not considered for appointment as per Rule 52 of The Railway Protection Force Rules. The learned Counsel for the Respondents further submits that since the Petitioner was convicted by the criminal Court and there is no dispute over conviction, the Petitioner is not entitled for appointment as Police Constable in Railway Protection Force. He relies on two decisions, one is reported in Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, and another is Delhi Administration through its Chief Secretary and Others Vs. Sushil Kumar, .
I have considered the submissions made on either side.
It is not in dispute that the Petitioner was successful in Physical and Written Test. It is also not in dispute that he was medically found fit and he was also provisionally selected. But before giving him appointment, the Respondents found that the Petitioner was convicted by the judgment dated 02.05.2007 in C.C.173 of 2001. Before giving the appointment, the Respondents sought to verify the antecedents and character of the Petitioner. While so, the Superintendent of Police, Thoothukudi reported that the Petitioner is not fit for Government Services and the same was communicated to the District Collector, by letter, dated 09.07.2005. The impugned order was passed based on the afore-said judgment of the criminal Court. At this juncture, it is relevant to take into account the Rule 52 of The Railway Protection Force Rules. As per the afore-said Rule, after selection the Character and antecedents of a recruit would be verified and on verification alone a recruit would be given the order of appointment. Hence, I find considerable force in the submissions of the learned Counsel for the Respondents that the Respondents verified the character and antecedents of the Petitioner and found that the Petitioner was convicted and released u/s 4(1) of Probation of Offenders Act and that therefore they did not appoint him.
The learned Counsel for the Petitioner submits that since the Petitioner was released under 4(1) of The Probation of Offenders Act, the conviction could be disregarded and he should be appointed. He relies on a decision of this Court dated 07.02.2011 made in W.P. No. 21254 of 2010 (stated supra).
In my view, the afore-said decision is not applicable to the facts of the case. In the said judgment, the Petitioner therein was not considered for appointment, though he was honourably acquitted by the criminal Court. In those circumstances, this Court held that there is no impediment on the part of the department to consider the Petitioner''s claim for appointment to the post of Grade II Police Constable subject to fulfillment of other conditions. Paragraph 11 of the afore-said judgment is extracted hereunder;
Since the Petitioner has been honourably acquitted by the Court of Judicial Magistrate, No. III, Cuddalore in C.C. No. 272/2008 by its order dated 28.04.2010, there is no impediment on the part of the Respondents to consider the Petitioner''s claim for appointment to the post of Grade II Police Constable for the year 2007-2008, subject to the fulfilment of other conditions.
The other judgment relied on by the Petitioner is reported in Md. Monir Alam Vs. State of Bihar, . In the said judgment, the Appellant was convicted under Sections 304 Part II, and 149 IPC and sentenced to undergo three years imprisonment for committing the offence of assaulting the deceased during free fight. In this regard I extract paragraph 4 of the said judgment hereunder;
We have considered Mr. Suri''s submissions very carefully. We see from the documents that the Appellant has secured a Doctorate and is presently employed as a Senior Assistant Professor in the Department of Strategic and Regional Studies, University of Jammu and that he had secured this appointment in the year 1997. His professional qualifications have also been provided to us which shows his expertise in his specialty and also portrays his association with prestigious organizations world wide in the filed of strategic studies. We are, therefore, of the opinion that his conduct and attainments after his involvement in this matter justifies his release on probation. We, accordingly, dismiss the appeal but direct that he shall be released on probation u/s 4 of the Probation of Offenders Act, 1958 on terms to be settled by the trial Court.
While upholding the conviction, the Honourable Apex Court set free the Appellant by invoking Section 4 of the Probation of Offenders Act, 1958. In my view, the said judgment has nothing to do with the present case.
On the other hand, Rule 52 of The Railway Protection Force Rules, empowers the Respondents to verify the character and antecedents of the selected candidates before giving appointment. Hence, I do not find anything wrong done by the Respondents in getting the character and antecedents verified and based on the reports, denied appointment to the Petitioner. The judgment relied on by the learned Counsel for the Respondents also squarely applies to the facts of the case. In the judgment reported in Delhi Administration through its Chief Secretary and Others Vs. Sushil Kumar, , the Hon''ble Supreme Court has held that the denial of appointment to the Respondent on the ground of undesirability was not improper. Though the Respondent was discharged or acquitted for the offence punishable for the offence under Sections 304, 324 read with Section 34 and 324 IPC, it is held that on verification of his antecedent and character, 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. In my view, the judgment squarely applies to the facts of the case. In the said case, the Respondent therein appeared for recruitment as Constable in Delhi Police Service. He was selected in all the tests (Physical endurance test, written test and interview and found medically fit) and he was selected provisionally. His selection was subject to verification of character and antecedents by the local police. On verification it was found that such appointment was not found desirable. Hence, he was not appointed and his provisional selection was cancelled and he filed original application before the Central Administrative Tribunal. The Tribunal quashed the impugned order on the ground that the Petitioner was discharged/acquitted of the offence. The matter went to the Hon''ble Apex Court and the Hon''ble Apex Court reversed the judgment of the Tribunal and held as follows:
Verification of the character and antecedent is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though the Respondent 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 in the disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The Tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences.
The other judgment relied on by the Respondents is the judgment of the Hon''ble Supreme Court reported in Sushil Kumar Singhal Vs. The Regional Manager, Punjab National Bank, . In the said judgment, the Appellant therein was dismissed from service based on the conviction. Though he was convicted, he was released under the provisions of Probation of Offenders Act, 1958. According to the Appellant therein, in view of Section 12 of the Probation of Offenders Act, the dismissal is bad. The Honourable Apex Court, considering the various judgments on this aspect held in paragraph 18 that the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act. The said paragraph is extracted hereunder;
In view of the above, the law on the issue can be summarised to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word "disqualification" contained in Section 12 of the 1958 Act refers to a disqualification provided in other statutes, as explained by this Court in the above-referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the 1958 Act.
Hence, I do not find any infirmity in the impugned order. The writ petition fails and the same is dismissed. No costs.