BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 25/04/2012

CORAM

THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN

W.P.(MD)No.4258 of 2011

and M.P.(MD) No.1 of 2011

Vijaya Kumar ... Petitioner

vs.

Director General of Police,

Office of the Director General of Police,

Chennai - 600 004. ... Respondent

PRAYER

Petition filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorarified Mandamus to call for the records of the respondent herein in his proceeding in Na.Ka.No.103799/CC-3/ RECRUITMENT.II(2)/2008 dated 09.12.2009, quash the same and to further direct the respondent to appoint the petitioner in the post of band man in pursuant to the band men recruitment for the year 2007.

!For Petitioner ... Mr.D.Sivaraman

^For Respondent ... Mr.D.Muruganandam

Additional Government Pleader

:ORDER

The petitioner has applied for the post of Band Man Constable for the year 2007. He was successful in the written test, physical efficiency test and he was also found fit in the medical examination. He was selected for the post. Before giving the appointment order police verification was conducted. However, on the police verification it was found that the petitioner was involved in a criminal case in S.C.No.62 of 2002 on the file of the Additional Sessions Judge, Fast Track Court No.1, Madurai and he was acquitted by the said Court on 18.10.2002, giving benefit of doubt. Based on the police verification, the impugned order dated 09.12.2009, was passed and respondent declined to give appointment order to the petitioner stating that as per Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, 1978, he is not eligible for the appointment of the post of Band Man Constable.

2. The petitioner has filed the present writ petition to quash the aforesaid order dated 09.12.2009 of the respondent and sought for a direction to appoint him in the post of Band Man Constable in pursuant to the Band Man Recruitment for the year 2007.

3. No counter affidavit is filed.

4. Heard both sides.

5. The learned counsel for the petitioner would submit that the criminal case was instituted against the petitioner under Sections 147, 148 I.P.C. read with Section 3(1) of T.N.P.P.D.L. Act. He was the third accused in the case. According to him, in the judgment dated 18.10.2002, in S.C.No.62 of 2002, the Additional Sessions Judge, Fast Track Court No.1, Madurai has acquitted him of all the charges. Though the same was an honourable acquittal, the learned Additional Sessions Judge has stated that the petitioner was acquitted, giving benefit of doubt. Therefore, the petitioner filed Crl.R.C.(MD) No.289 of 2010 before this Court insofar as acquitting him on benefit of doubt and to modify the same as honourable acquittal. This Court allowed the Crl.R.C.(MD) No.289 of 2010 on 21.04.2010 and modified the order of the Additional Sessions Judge, Fast Track Court No.1, Madurai as honourable acquittal. Thereafter, the petitioner made a representation dated 20.07.2010, to the respondent enclosing the aforesaid judgment, but no order was passed considering the honourable acquittal as held by this Court in its order dated 21.04.2010, in Crl.R.C.(MD) No.289 of 2010. Hence, he has filed the present writ petition.

6. The learned counsel for the petitioner relied on the following decisions and drew my attention to the relevant paragraphs: (i) (2008) 2 MLJ 1203 (FB) [Manikandan v. Chairman, T.N. Uniformed Services].

(ii) (2008) 4 MLJ 88 [D. Mahadevan v. Director General of Police]. (iii) CDJ 2009 MHC 4450 [K. Satyanarayanan v. The State of Tamil Nadu]. (iv) CDJ 2010 MHC 3759 [Ganesan and another v. The State of Tamil Nadu].

7. The learned counsel for the petitioner further submitted that the recruitment was for 710 posts of Band Men, but only 310 were found eligible. Hence, there are about 400 posts remaining vacant. In these circumstances, he has sought for a positive direction to respondent to appoint him as Band Man Constable, particularly based on the judgment of this Court dated 21.04.2010, in Crl.R.C.(MD) No.289 of 2010 read with the judgments of this Court reported in CDJ 2009 MHC 4450 [K. Satyanarayanan v. The State of Tamil Nadu] and CDJ 2010 MHC 3759 [Ganesan and another v. The State of Tamil Nadu].

8. On the other hand, the learned Additional Government Pleader has strenuously submitted that when the police verification took place, the order dated 21.04.2010, in Crl.R.C.(MD) No.289 of 2010 was not in existence. At that time, based on the judgment dated 18.10.2002, made in S.C.No.62 of 2002, on the file of the Additional Sessions Judge, Fast Track Court No.1, Madurai, the respondent correctly came to the conclusion that the petitioner was not entitled to appointment to the post of Band Man Constable in view of rule 14(b) of Tamil Nadu Special Police Subordinate Service Rules. The learned Government Advocate has heavily relied on the explanations given to Rule 14(b) of Tamil Nadu Special Police Subordinate Service Rules.

9. I have considered the submissions made on either side.

10. The facts are not in dispute. The petitioner was successful in the written test and also in physical efficiency test. He was selected to the post of Band Man Constable. However, before giving appointment order, police verification took place and in the police verification it was found that the petitioner was acquitted by the learned Additional Sessions Judge, Fast Track Court No.1, Madurai by order dated 18.10.2002, in S.C.No.62 of 2002 giving benefit of doubt. Hence, he was denied appointment in the impugned order.

11. The learned Government Advocate has heavily relied on Rules 14(b) of Tamil Nadu Special Police Subordinate Service Rules. Hence, the same is extracted hereunder:

"14(b). No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the appointing authority. (i) that he is of sound health, active habits and free from any bodily defect or infirmity unfitting him for such service and

(ii) that his character and antecedents are such as to qualify him for such service; and

(iii) that such a person does not have more than one wife living. (iv) That he has not involved in any criminal case before police verification. Explanation (1): A person who is acquitted or discharged on benefit of doubt or due to the fact that the complainant "turned hostile" shall be treated as person involved in a criminal case.

Explanation (2): A person involved in a criminal case at the time of Police Verification and the case yet to be disposed of and subsequently ended in honourable acquittal or treated as mistake of fact shall be treated as not involved in a criminal case and he can claim right for appointment only by participating in the next recruitment."

12. The learned counsel for the petitioner has taken me through the judgment dated 18.10.2002, made in S.C.No.62 of 2002 on the file of the Additional Sessions Judge, Madurai and submitted that the order shall be read as honourable acquittal. He has heavily relied on the judgment of this Court reported in (2008) 4 MLJ 88 [D. Mahadevan v. Director General of Police] in this regard. It is true that in the said case, this Court has read the criminal Court judgment and recorded a finding as follows:

"So, there is no evidence as to who inflicted the hurt and to whom. The doctor who treated the injured witnesses has not been examined. The weapons allegedly used have not been recovered. The learned trial Judge holds that there is no evidence and that the case has not been proved beyond reasonable doubt. The judgment also reads that the accused are acquitted, "giving them the benefit of doubt". Though the words 'benefit of doubt' are used, the case is really one of honourable acquittal. Even the complainant, P.W.1 did not implicate the petitioner. This is not a case where the acquittal was because of witnesses turned hostile or on the basis of technicalities like belated registration of F.I.R. This is a case of no evidence."

13. But, I am not going to do the said exercise, in view of the judgment of this Court dated 21.04.2010, in Crl.R.C.(MD) No.289 of 2010 modifying the order dated 18.10.2002, made in S.C.No.62 of 2002 into one of honourable acquittal. Paragraph No.4 of the said judgment dated 21.04.2010, in Crl.R.C.(MD) No.289 of 2010 is extracted hereunder:

"4. Following the said Order of this Court, the present Criminal Revision Petition is allowed and the finding of the Lower Court that the petitioner is acquitted on the benefit of doubt is modified and the petitioner shall stand acquitted honourably."

Therefore, it is clear that the petitioner was honourably acquitted in view of the order of this Court and the said order has attained finality.

14. The learned Government Advocate submitted that the said order would be of no use to the petitioner and the same shall be used only for the next recruitment. On the other hand, the learned counsel for the petitioner heavily relied on the judgment of the Division Bench of this Court in CDJ 2009 MHC 4450 [K. Satyanarayanan v. The State of Tamil Nadu] and CDJ 2010 MHC 3759 [Ganesan and another v. The State of Tamil Nadu] and has submitted that the petitioner is entitled to the relief which he has sought for.

15. I have perused the judgment of this Court in CDJ 2010 MHC 3759 [Ganesan and another v. The State of Tamil Nadu] and the facts of the said case are identical to this case. In the said case, the petitioner therein was acquitted by giving benefit of doubt on 01.04.2004 in S.C.No.100 of 2003 by the III Additional Sessions Judge, Madurai. The petitioner therein participated in the selection for the post of Sub-Inspector of Police for the year 2006-2007. He was denied appointment on 31.12.2007 by the impugned order, which is akin to the impugned order passed herein. After 31.12.2007, the petitioner therein filed Crl.R.C.(MD) No.369 of 2008 seeking for modification of the order of the Session Judge dated 01.04.2004, in S.C.No.100 of 2003 into one of honourable acquittal. The revision petition was allowed by this Court. In the said circumstances, the said impugned order therein was quashed by this Court. In my view, the said decision is squarely applicable to the facts of the case. Hence, I am inclined to quash the impugned order.

16. The learned counsel for the petitioner submitted that the recruitment was for 710 Band Men Constable in the year 2007. But only 310 person were eligible and 400 posts were remained vacant. In these circumstances, he heavily relied on the following passage of the decision of the Division Bench of this Court in CDJ 2009 MHC 4450 [K. Satyanarayanan v. The State of Tamil Nadu]: "6. This takes us to the next question as to whether the respondents should be directed to appoint the petitioner at the time of next selection. In order to find out as to whether any vacancies are available for the present in view of the fact that the appellant had participated in the selection for the year 2006 and already nearly three years have elapsed, we directed the learned Government Advocate to find out as to the vacancies available. On instructions, the learned Government Advocate has submitted that there are vacancies available to the said post.

7. In that view of the matter, instead of directing the respondents to permit the appellant for his appointment at the time of next selection, we direct the respondents to appoint the petitioner in any one of the vacancies, which are available at present and consequently, provide him posting after training. With the above directions, the writ appeal is allowed and the order in the writ petition as well as the original order impugned in the writ petition are set aside. No costs."

17. In these circumstances, while quashing the impugned order, I direct the respondent to give appointment to the petitioner as Band Man Constable in one of the vacant posts available at present, within a period of 8 weeks from the date of receipt of copy of the order.

18. The Writ Petition is allowed in the above terms. No costs. Consequently, connected M.P.(MD) No.1 of 2011 is closed. sj

To

Director General of Police,