OP(KAT).322/2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **TUESDAY ,THE 04TH DAY OF SEPTEMBER 2018 / 13TH BHADRA, 1940** ## **OP(KAT).No. 322 of 2018** **OA 964/2018 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT** **RAHUL K, AGED 28 YEARS, S/O GANGADHARAN K, RESIDING AT KUNDATHRA HOUSE, PANTHEERANKAVU PO, KOZHIKODE 673019, MOB: 9745023637** **BY SRI. S.P. ARAVINDAKSHAN PILLAY** ## **RESPONDENTS/RESPONDENTS** - **1 STATE OF KERALA SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 THE STATE POLICE CHIEF, POLICE HEADQUARTERS, THIRUVANANTHAPURAM-695 010.** - **3 THE COMMANDANT, MALABAR SPECIAL POLICE, MALAPPURAM-676505.** - **4 THE DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, DISTRICT OFFICE, MALAPPURAM-676 505.** SC SRI.P.C.SASIDHARAN GP SRI.R.RAJASEKHARAN NAIR **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 04.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **OP(KAT).322/2018** 2 ## JUDGMENT 1. The captioned Original Petition carries a challenge against the order dated 23.7.2018 passed by the Kerala Administrative Tribunal in O.A. (EKM).No.964/2018. The petitioner/the applicant in the said O.A applied for the post of Police Constable in Armed Police Battalion, Malappuram in response to a notification issued by the Kerala Public Service Commission (for short 'the PSC). After the process of selection, the PSC drew Annexure-A13 ranked list. Petitioner was included therein at rank No.256. Based on his rank in the said list, he was advised for appointment as per Annexure-A1 dated 31.1.2017 viz., Ext.P1. However, it was not followed by order of appointment. It is the said circumstances that constrained the petitioner to file the above mentioned OA. Pending the O.A, Government issued Annexure-A4 order dated 13.3.2018. Evidently, it was issued in exercise of the powers conferred under Rule 10(iii) of Part-II of the Kerala State and Subordinate Services Rules (for brevity 'KS & SSR'). As per the same, taking **OP(KAT).322/2018** 3 note of his antecedents, he was found not eligible for the post of Police Constable in Police Department. The petitioner challenged the said order in the above mentioned O.A. The Tribunal after considering the rival contentions and the provisions under Rule 10(iii) and also the decisions relied on by both sides, dismissed the O.A. It is aggrieved by the dismissal of the OA that the above mentioned Original Petition has been filed. 2. We have heard the learned counsel appearing for the petitioner, the learned Government Pleader for respondents 1 to 3 and also the learned Standing Counsel appearing for the PSC 3. Pleadings of the petitioner in the O.A as also in this Original Petition would reveal that the said contentions are founded on the provisions under Section 86 of the Kerala Police Act, 2011 and also Annexure-A3 judgment. Placing reliance on them it is contended by the learned counsel for the petitioner that denying the petitioner entry into the police force is per se illegal. But the **OP(KAT).322/2018** 4 respondents justified their decision as also that of the Tribunal relying on the decision of the Hon'ble Apex Court in Union Territory, Chandigarh Administration v. Pradeep Kumar and Another (2018 (1) SCC 797) . Admittedly, the petitioner who had applied for appointment to the post of Police Constable in Armed Police Battalion in Malappuram district was included at rank No.256 in AnnexureA13 ranked list drawn by the PSC pursuant to the selection process. Earlier, the petitioner approached the Tribunal by filing OA(EKM).No.2916/2017 raising grievance against his non-appointment despite being advised for appointment as per Annexure-A1. It is pending the said OA that Annexure-A4 was passed by which he was held not eligible for appointment to the post of police Constable in Police Department. Consequently the petitioner was permitted to withdraw the said O.A and it is thereafter that he filed OA.964/2018. A perusal of Annexure-A4 would reveal that Government had considered the fact that he was arrayed as accused in crime No.621/2011 of Kasaba police station, Kozhikode, in crime No.1363/2015 of Nallalam police station **OP(KAT).322/2018** 5 and in crime No.341/2017 of Nallalam police station. In the contextual situation it is only relevant to refer to the following recital in Annexure-A4 of Ext.P1. “The brief of Crime No.621/2011 is that while a procession of a student organization was passing through the road in front of Sree Guruvayoorappan College Valayanad the Candide (A3) and other accused formed themselves in to an unlawful assembly with the intent to attack CW1 due to political enmity and in prosecution of their common object committed noting armed with deadly weapons and voluntarily caused hurt to CW1 The brief of Crime No.1363/15 is that the candidate and other accused persons trespassed into the complainant's property and obstructed the work of his newly constituting building and thereby caused a loss of Rs 4500/- to the complainant. The brief of Crime No.341/17 is that the candidate and other accused persons formed themselves in to an unlawful assembly shouted provocative slogans, trespassed in to rival political office at Pantheerankavu and destroyed office equipment and there by caused a loss of Rs 50,000/- to the office.” 4. It is after considering the said aspects that the respondents had arrived at the conclusion that the character and antecedents of the petitioner are not satisfactory and therefore he is not suitable for the post of Police Constable in Police Department, in exercise of the powers conferred by Rule 10(iii) of Part-II of KS & SSR. Essentially, **OP(KAT).322/2018** 6 the contention of the petitioner is that among the aforementioned crimes, in crime No.621/2011 he was acquitted. It is his contention that in crime No.1363/2015 the offence was permitted to be compounded and accordingly it was compounded. True that this is not controverted. In crime No.341/2017, the contention is that the Investigating Officer had filed a report before the Magistrate Court concerned to delete him from the array of accused. In such circumstances, the petitioner contends that the 1[st] respondent ought not have entered into a finding that he is not suitable for appointment to the post of Police Constable in exercise of powers under Rule 10(iii). 5. Per contra, the learned Standing Counsel appearing for the 4[th] respondent as also the learned Government Pleader contended that merely the acquittal of the petitioner in criminal cases by itself would not make him entitle to get appointment as despite the acquittal it will be open to the authorities to consider the suitability of candidates for appointment invoking **OP(KAT).322/2018** 7 the power under Rule 10(iii) of Part-II of KS & SSR. 6. In the context of the contentions it is only apposite to refer to the decisions of the Honourable Apex Court reported in Commissioner of Police, New Delhi v. Mehar Singh (AIR 2013 SC 2861) and in Union Territory, Chandigarh Administration v. Pradeep Kumar and Another (2018 (1) SCC 797) . In Mehar Singh 's case, the Apex Court held that in a case where a candidate had involved in serious cases of moral turpitude, despite his discharge on technical grounds or acquittal otherwise than by honourable acquittal, cancellation of candidature could not be said to be faulty. In that case, in respect of an incident involving stopping of bus, assaulting bus conductor as also persons who intervened, despite the acquittal of the accused concerned under Sections 341, 323 and 427 of the IPC based on the compromise entered with the complainant and taking note of the fact that his acquittal of offences was mainly because the main witness turned hostile, the Apex Court held that acquittal could **OP(KAT).322/2018** 8 not be treated as honourable acquittal and upheld the cancellation of the candidature. It is also relevant to note that the petitioner has also got a case that under similar circumstances, certain persons were inducted into police force and they are continuing in service. Essentially the said contention was raised to canvas the position that there is violation of Article 14 of the Constitution of India. In that context also the decision in Mehar Singh' s case assumes relevance. The Apex Court held that for appointment to Police force, the screening committee constituted for checking the suitability of appointment of candidates with criminal antecedents and strict norms need to be applied while appointing persons in a disciplinary force because public interest is involved in it. In such circumstances when the screening committee found a candidate concerned unsuitable for appointment to the post of Constable in Police Department owing to the criminal antecedents despite the factum of his acquittal otherwise than honourable acquittal the finding of non-suitability requires no interference. Virtually, the said position was **OP(KAT).322/2018** 9 reiterated by the Apex Court in Pradeep Kumar 's case. In the contextual situation it is only apposite to refer to paragraphs 10, 11 and 13 of the said decision. It reads thus :- 10. The acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. If a person is acquitted or discharged, it cannot always be inferred that he was falsely involved or he had no criminal antecedents. Unless it is an honourable acquittal, the candidate cannot claim the benefit of the case. 11. Entering into the police service required a candidate to be of good character, integrity and clean antecedents. In Commr. Of Police v. Mehar Singh, the respondent was acquitted based on the compromise. This Court held that even though acquittal was based on compromise, it is still open to the Screening Committee to examine the suitability of the candidate and take a decision. 12........... 13.It is thus well settled that acquittal in a criminal case does not automatically entitle him for appointment to the post. Still it is open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. 7. In paragraph 10, the Honourable Apex Court held that the acquittal in a criminal case is not conclusive of the suitability of the candidates in the post concerned. In paragraph 11 the Apex Court **OP(KAT).322/2018** ## 10 held that for entering into the police service a candidate require good character, integrity and clean antecedents. In paragraph 13, it is held that acquittal in criminal case need not be automatically entitle a candidate for appointment to the post and despite the acquittal, it would be open to the employer to consider the antecedents and examine whether he is suitable for appointment to the post. 8. We have already found that in one of the crimes referred in Annexure-A4, the petitioner was acquitted and in another case the offence was compounded. In the contextual situation it is only apposite to refer to Section 320 of the Code of Criminal Procedure. More particularly sub-section (8) thereof. It reads thus :- The composition of an offence under this section shall have the effect of an acquittal of the accused with whom the offence has been compounded. 9. Thus, a perusal of section 320(8) of the Cr.P.C would reveal that compounding of offence under the said section would have the effect of acquittal **OP(KAT).322/2018** 11 with whom the offence has been compounded. In this context, it is relevant to note that in Pradeep Kumar 's case (supra), the Apex Court drew a distinction between acquittal and honourable acquittal evidently, relying on its earlier decision in Inspector General of Police v. S.Samuthiram [(2013) 1 SCC 598] . The Apex Court held that the expressions 'honourable acquittal', 'acquitted of blame' and 'fully exonerated' are unknown to the Code of Criminal Procedure and at the same time, such expressions could possibly be employed in a case where the accused was acquitted after full consideration of prosecution evidence and upon finding that the prosecution had miserably failed to prove the charges levelled against the accused. In Pradeep Kumar 's case, the Apex Court held that mere acquittal in a criminal case would not be conclusive of suitability of a candidate in regard to a post concerned especially to a post in a uniformed force and perhaps a person could claim that he could not be found unsuitable only if he was honourably acquitted. The expression employed under sub-section 8 of section 320 is that the compounding would have the **OP(KAT).322/2018** 12 effect of acquittal. Even when an acquittal which is not honourable acquittal can be taken into account for the purpose of considering the suitability of appointment of a candidate for appointment, we have absolutely no hesitation to hold that an offence where such a candidate was permitted to compound, by virtue of the provisions under sub- section 8 of section 320, can have only the effect of an acquittal and therefore, such compounding which got only the effect of acquittal can be taken into account while considering the antecedents for the purpose of deciding the suitability of the candidate concerned for appointment to the post. At any rate, it cannot be said to be honourable acquittal. This view is fortified by the decision of the Apex Court in Mehar Singh 's case (supra). In short, in view of the exposition of law by the Apex Court, we do not find any reason to hold the action on the part of the respondents in taking into account the nature of the incident, for considering the question whether his character and antecedents are satisfactory, in the absence of honourable acquittal, as illegal. Certainly, in the light of **OP(KAT).322/2018** 13 the aforesaid position obtained from the decisions, the respondents were at liberty to consider such aspects. On such consideration, as is obvious from Annexure A4, they arrived at a conclusion especially taking note of the fact that the petitioner is seeking appointment in a disciplined force that he is not a suitable candidate for appointment. We have already noticed that the Apex Court in Pradeep Kumar 's case held that a person seeking a berth in Police Department must be of good character, integrity and clean antecedents. Essentially, the decision which culminated in Annexure A4 is nothing but a decision arrived at, following the spirit of the decision of the Apex Court in Pradeep Kumar 's case. A scanning of the order of the Tribunal would reveal that it is after taking note of all such aspects that the Tribunal had declined to interfere with the finding in Annexure A4 entered in exercise of the powers under Rule 10(iii) of Part II of KS & SSR regarding the suitability of the petitioner for appointment as Constable in Police Department. The authority exercising the power under Rule 10(iii) of Part II of KS & SSR **OP(KAT).322/2018** 14 arrived at the aforesaid conclusion regarding the petitioner's suitability for appointment and that decision got confirmed with the order passed by the Tribunal. In such circumstances, unless the decision is patently illegal or perverse and thereby unpalpable, no interference is invited in exercise of the power of judicial review. The upshot of the discussions is that there is absolutely no ground to interfere with the order passed by the Tribunal. Resultantly, this original petition is dismissed. C.T.RAVIKUMAR Judge Sd/- A.M.BABU Judge Mrcs/5.9.18 **OP(KAT).322/2018** 15 ## **APPENDIX** **EXHIBITS:** - **EXHIBIT P1** - **TRUE COPY OF THE O.A.(EKM)NO.964/2018 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** - **EXHIBIT P2** **TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN O.A.(EKM) NO..964 OF 2018 OF THE HON'BLE KAT.** - **EXHIBIT P3** - **TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.70/2018 REPORTED IN (2018) I SCC 797.** - **EXHIBIT P4** - **TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT FILED ON BEHALF OF THE 3RD RESPONDENT.** - **EXHIBIT P5** - **TRUE COPY OF THE MISCELLANEOUS APPLICATION FOR DIRECTION IN O.A. (EKM)964/2018 OF THE HON'BLE KAT.** - **EXHIBIT P6** **TRUE COPY OF THE ORDER DATED 23.7.2018 IN O.A.(EKM)NO,964/2018 OF THE HON'BLE KAT.** /True copy/ P.S.To Judge