Krishan Kumar vs Commissioner Of Police & Anr.

Hon’ble Mr. R. N. Singh, Member (J):

In the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has challenged the show cause notice dated 21.09.2015 (Annexure A/1) vide which the respondents have proposed to cancel the candidature of the applicant for the post of Constable (Exe.) (Male) and the order dated 2.11.2015 (Annexure A/2) vide which the respondents have cancelled the candidature of the applicant for the said post.

Undisputed facts leading to the present OA are that the Advertisement notification to fill up 2622 vacancies for the post of Constable (Exe.) (Male) was published in the newspapers dated 23.10.2011 and Employment News dated 29.10.2011 as per rules. In response to the said advertisement, the applicant had applied under the OBC category and he underwent physical endurance & measurement test, written test and was declared provisionally selected vide Roll No.721261, subject to verification of character & antecedents, medical fitness and final checking of documents etc. On scrutiny of Application Form and Attestation form filled up by the applicant on 4.11.2011 and 08.03.2015 respectively, it was revealed that the applicant had disclosed about the facts of his involvement in criminal case FIR No.87/2008 dated 17.02.2008 under Sections 323/452/506 IPC, Police Station Sikandrabad (UP). Later on the said criminal case was decided by the Hon’ble High Court and the and the applicant was acquitted vide order dated 31.08.2010. Accordingly, the case of the applicant was examined by the Screening Committee constituted by the respondent no.1. The Screening Committee after examining the case of the applicant in the light of the provisions contained in Standing Order No.398/2010, the observations of the Hon’ble Apex Court in Civil Appeal No.4842/2013, titled Commissioner of Police, Delhi vs. Mehar Singh, and Civil Appeal No.4965/2013, titled Commissioner of Police, Delhi vs. Shani Kumar, recorded the finding that the applicant was involved in a serious offence and his acquittal from serious charges is on technical grounds, i.e., turning hostile of witnesses as the matter was got compromised and the same was not an honourable acquittal and, therefore, the applicant is not fit to be inducted in police services in the interest of public service and security of the society and did not recommend the case of the applicant for appointment to the post of Constable (Exe.) (Male) in Delhi Police. This led to issuance of the show cause notice to the applicant. The applicant had submitted his reply (Annexure A/2). The respondents have passed the impugned order dated 2.11.2015.

Pursuant to notice from this Tribunal, the respondents have filed their counter reply and the applicant has filed rejoinder.

Shri Luthra, learned counsel for the applicant has argued that the applicant and his brother, namely, Balram Yadav were falsely implicated in the above said case FIR No.87/2008 dated 17.02.2008. When the father of the applicant came to know about the fact that certain persons had quarrelled with his sons, i.e., the applicant and his brother, namely, Balram Yadav, in which the said Balram Yadav had sustained head injuries, an FIR No.99/2008 was registered against the aggressors at Police Station, Sikandrabad, Bulandshahr. Both the said FIRs went ahead for trial. However, during pendency of the trial, one accused, namely, Dinesh was selected for appointment in CISF and at the behest of the said Dinesh, who was also involved in the said case, respectable persons of the society and the said Mr. Dinesh’s family approached to the applicant’s family for compromise. In this background, the said two FIRs got closed vide order dated 31.8.2010, i.e., even before the issuance of notification of appointment to the post under reference. He has further argued that ground on the basis of registration of said FIR in which the applicant had been acquitted, it cannot be alleged that the applicant has any propensity of becoming a cause of adversely affecting the law and order situation. The applicant is having good past antecedents and he has voluntarily disclosed about the registration of FIR under reference. He has also argued that the said Screening Committee had consisted of officers senior to the Deputy Commissioner of Police and, therefore, the authority, i.e., Additional Deputy Commissioner of Police, who has issued the show cause notice or the impugned order dated 2.11.2015 cannot be said to have applied their independent mind. He has further argued that at the time of alleged commission of offence, the applicant was minor and, therefore, also the impugned order is liable to be quashed and the applicant is entitled to the benefits of the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘Juvenile Justice Act, 2000’). He has also argued that the impugned order dated 2.11.2015 (Annexure A/2) has been passed taking a view that the applicant was not juvenile at the time of registration of the aforesaid case FIR and, therefore, the applicant’s case has not been found convincing. The learned counsel for the applicant has further argued that such finding is perverse on facts as well as on law in as much as on the date of alleged commission of offence, the applicant was juvenile and this aspect has not been considered by the respondents. He has also added that in the said case FIR 87/2008, the applicant’s brother was also implicated and the said brother, namely, Balram Yadav, who had also participated in the said selection process for the said post, has been considered and on being recommended, has been appointed and working under the respondents.

Ms. Rashmi Chopra, learned counsel for the respondents, with the assistance of the counter reply, has submitted that in para 4.12 of the counter reply of the respondents, the respondents have averred that the applicant’s date of birth is 10.2.1990 whereas that of his brother, namely, Shri Balram Yadav having roll no.702451 is 08.11.1991 and on the date of registration of FIR, i.e., 17.2.2008, the said brother of the applicant was juvenile (16+) and, therefore, applicant’s brother was allowed to join the department as per the provisions of Section 19 of the Juvenile Justice Act, 2000 whereas the applicant had attained the age of 18 years on the date of registration of such FIR and as such, his case was examined by the Screening Committee and the said Committee did not recommend the appointment of the applicant on the said post.

We have heard the learned counsels for the parties. It is not in dispute that the applicant as well as his brother, namely, Shri Balram Yadav both had participated in the selection process for the post of Constable (Exe.) (Male) pursuant to the advertisement under reference. They qualified in the said selection process. The applicant’s date of birth is 10.02.1990 and the date of birth of applicant’s brother – Balram Yadav is 08.11.1991. The respondents have admittedly considered the applicant’s brother – Balram Yadav in view of the provisions of Section 19 of the Juvenile Justice Act, 2000 and have allowed him to join whereas though the applicant was alleged to be falsely implicated in the said case FIR No.87/2008, however, he was not recommended by the concerned Committee for appointment as Constable (Exe.) (Male) in Delhi Police, as the applicant was not juvenile because the applicant has attained the age of 18 on the date of registration of the said FIR No.87/2008 on 17.2.2008.

Sub sections (i), (k) and (l) of Section 2 of Juvenile Justice Act, 2000 read as under:-

Learned counsel for the applicant has also relied upon the judgment of the Hon’ble Apex Court in the case of Bhim vs. State of West Bengal, reported in MANU/SC/1134/2010 : (2010) 14 SCC 571. Paras 8 and 9 of the said judgment of the Apex Court read as under:-

Learned counsel for the respondents has though invited our attention to the pleadings of respondents, however, she has very fairly not disputed the fact that provisions of the Act ibid and/or the law that the date relevant for determining the age of the accused to be a juvenile/child would be the date on which the offence had been committed and not the date on which he is produced before the competent authority or in the court or an FIR was registered. Though various judgments have been referred to by the respondents in their impugned order as well as in the counter reply and copies of a few judgments have also been placed on record by the learned counsels for the parties, however, it is evident from the pleadings that the impugned orders have been passed basically keeping in view the fact that the applicant has not been juvenile on the date of registration of the said FIR No.87/2008 dated 17.2.2008 as on that date the applicant has attained the age of 18 years and the applicant’s younger brother – Balram Yadav, who also was implicated in the said case FIR No.87/2008 and qualified the relevant selection process along with the applicant was allowed to join the post in question keeping in view the fact that he was juvenile on the date of registration of the said case FIR No.87/2008. In this background, we are of the conscious view that the impugned orders deserve to be quashed and the matter is remitted to the respondents for fresh consideration.

In view of the aforesaid facts and circumstances, the impugned orders are quashed and the matter is remitted to the respondents to consider the appointment of the applicant afresh. It is directed that such consideration is required to be done keeping in view the applicant to be juvenile as he admittedly was on the date of commission of offence, i.e., 07.02.2018 and also the fact that the applicant’s brother, namely, Balram Yadav who was allegedly involved in the said case FIR has been allowed to join the post under reference by giving the benefits of Section 19 of the Juvenile Justice Act, 2000. The respondents are directed to pass the order in this regard as expeditiously as possible and in any case within six weeks of receipt of a copy of this Order. On such consideration, if the applicant is found suitable for appointment to the post of Constable (Exe.) (Male), he will be allowed to join and the applicant shall be entitled for all consequential benefits, i.e., seniority, fixation of his pay on notional basis, increments etc. from the same date from which his immediate junior in the merit has been granted. However, the applicant shall not be entitled for arrears of pay etc.

The OA is partly allowed in the aforesaid terms. However, in the facts and circumstances, there shall be no order as to costs.