Abdul Latif Thokkar vs State of J & K

Petitioner, it is* admitted, was selected for the post of Police constable but has not beep appointed because the appointing authority did not find

him suitable in view of his involvement in a criminal case pending trial in the Designated court under the Terrorists and Disruptive Activities

(Prevention) Act, 1985 (for short TADA hereafter). He challenges this action of the respondents on the ground that failure to appoint him on the

post for which he was selected tantamounts to holding him guilty of the charges when the court has yet to return its finding. Such an action,

according to the petitioner, offends Articles 14 and 16 of the Constitution of India.

Mr. Mohd. Ayub Bhat, learned advocate appearing for the petitioner, argued that involvement of the petitioner in a criminal case irrespective of

the nature of charges cannot be a justification to deny him appointment after he has been duly selected by the Selection Committee. The action on

the part of appointing authority, holding him not suitable for the post, according to the learned counsel, is arbitrary and, therefore, not sustainable.

Mr. Qadiri, learned S.A.A.G on the other hand submitted that merely because petitioner was selected for the post of police constable it does

not follow that he has a right to be appointed. Such a selection, according to Mr. Qadiri, is provisional and subject to character and antecedents

verification of the candidate. Since on verification of his antecedents, the petitioner was found involved in FIR No: 193 of 1994 registered in Police

Station Saddar, Srinagar,

in which he is being tried under section 3 of the TADA and section 25 of the Arms Act, the competent authority came to conclusion that he is not a

person suitable to be recruited in the disciplined force. The conclusion of the appointing authority, in the circumstances of the case, according to

Mr. Qadiri, cannot be termed arbitrary or unwarranted.

The questions which arise for consideration are:

(i) whether the right of the candidate selected for the post is indefeasible? and

(ii) whether a person who is being tried on a criminal charge but has yet to be held guilty can be denied appointment by the appointing authority on

the ground that he is not suitable for the post because of his involvement in the criminal case when he has been duly selected for the post?

Both these questions are no longer resintegra so far as this court is concerned. With regard to first question, the constitutional Bench of the Apex

Court in Shankarsan Dass Vs. Union of India (1991)3 SCC 47 (AIR 1991 SC 1612), laid down the law as under:

It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful

candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. In view of the above, the argument that he has

acquired an indefeasible right to be appointed does not survive any longer.

With regard to the second question, their Lordships in the course of judgment observed as follows:

...The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim

that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules.

It is admitted case of the parties that verification of character and antecedents is one of the important criteria to test whether the selected candidate

is suitable for appointment to a post in the State. However, according to the contention of Mr. Bhat, since the petitioner is yet to be found guilty,

therefore, it is premature on the part of appointing authority to hold that he was not suitable for the post. In support of this submission, Mr. Bhat

relied on the bench decision of this court in LPA (SWP) No: 155 of 1991, titled Rauf Ahmad Khan Vs. State of J and K and others decided on

27.04.1995, where it was observed that:

The verification of the antecedents of a candidate does not envisage that anything adverse can be recorded at his back and that he can be denied

equal opportunity for employment in the process. If some valid inquiry authorised by law finds such a person involved in activities reflecting on the

discipline of the service, the charge is required to be brought home specifically and categorically. There is no scope for entertaining a bald

imputation or allegation in this regard to divest a candidate of his appointment which tantamounts to deprive him of a constitutional right of

consideration on merits infringing the rights guaranteed under Article 16 of the Constitution. Otherwise, any candidate can be arbitrarily refused

appointment on allegations which may lack in basis or which may be totally irrational and unreasonable. What is found in the verification of the

antecedents of the candidate, must have proximity and nexus with the purpose and the discipline of the service in which he is to be appointed(sic)

deprived of his right of consideration, for appointment on irrelevant extraneous, untenable and flimsy grounds.

The observations of the bench that:

If some valid inquiry authorised by law finds such a person involved in activities reflecting on the discipline of the service, the charge must be

brought home specifically.

can be said to have laid down that any adverse reporting must be based on the inquiry authorised by law. Since petitioner was found involved in

the commission of offence as investigated in accordance with the provisions of Criminal Procedure Code, the same is in accord with the

observation whether his involvement in the offence punishable under TADA and Arms Act will reflect on the discipline of Police is a matter to be

decided by the appointing authority and not by the court and the appointing authority has made its assessment about his antecedents.

The other observation is that: ""What is found in the verification of the antecedents of the candidates must have proximity and nexus with the

purpose and the discipline of the service in which he is to be appointed.

But even this has to be considered by the appointing authority after examining the nature of allegations and their impact on the disciplined force.

Since the petitioner is involved under sections 3 of TADA and 25 of the Arms Act, it cannot be said that his antecedents have no nexus with his

appointment in the belt force. However, even these observations have been made in the peculiar facts of the case in which the selected candidate,

according to the Bench, had been framed by the police in a false and frivolous case which the court dismissed. So the judgment cannot be said to

have laid down any proposition of law. However, the issue stands concluded by the judgment of the Apex Court in Delhi Administration and

others Vs. Sushil Kumar, (1996) IISCC 605, where even after acquittal of the candidate, their Lordships held that:

'This appeal by Special leave arises from the order of the Central Administrative Tribunal, New Delhi made on 6.9.1995 in OA No: 1756 of

1991. The admitted position is that the respondent appeared for recruitment as a Constable in Delhi Police Services in the year 198990 with Roll

No: 65790. Though he was found physically fit through endurance test, written test and interview and was selected provisionally, his selection was

subject to verification of character and antecedents by the local police. On verification, it was found that his antecedents were such that his

appointment to the post of Constable was not found desirable. Accordingly, his name was rejected. Aggrieved by proceedings dated 18.12.1990,

culminating in cancellation of his provisional selection, he filed OA in the Central Administrative Tribunal. The Tribunal in the impugned order

allowed the application on the ground that since the respondent had been discharged and/ or acquitted of the offence punishable under Section 304

IPC, he cannot be denied the right of appointment to the post under the State. The question is whether the view taken by the Tribunal is correct in

law? It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to

a post under the State. Though he 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 to 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 consideration relevant

to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it is not desirable to

appoint him to the service.

So it is not the discharge or acquittal of the criminal offences, but his involvement in the case does have a bearing on his conduct or character which

is relevant and this, according to their Lordships, has to be considered by the appointing authority. So the refusal to appoint the petitioner, who is

being tried by the Designated court under section 3 of TADA and Section 7/25 of the Arms Act cannot be said to be unwarranted. So the

judgment in Sushil Kumar's case (supra) applies to the facts of this case on all fours and assuming that in Rauf Ahmad Khan's case (supra), the

Bench of this court has expressed a contrary view, though I find none the same is to be deemed to have been implicitly over ruled.

There is thus no merit in the petition, which is dismissed accordingly.