Pradeep Nandrajog, J. (Oral)

1. Heard learned counsel for the parties.

2. Since a common question of law arises for consideration in the three above captioned writ petitions, they are being decided by a common judgment.

3. Let us note the facts.

4. Rahul Yadav, the writ petitioner of WP(C) No.8094/2010 applied in response to an advertisement issued by the Staff Selection Commission for appointment of Sub-Inspector through the CPO Examination, to be held in the year 2008. He successfully cleared the selection process and on 29.03.2010 a letter provisionally offering appointment was issued to him for being appointed as Sub-Inspector under CISF. On 22.06.2010 the provisional offer of appointment dated 29.03.2010 was withdrawn, stating that on scrutiny of documents produced by him, he was found not suitable to be appointed as Sub-Inspector in CISF. Though not explicitly stated in the letter, the counter affidavit filed by the respondents evidences the reason; being his involvement for having allegedly committed offences punishable under Sections 323/325/504/506/34 IPC as per FIR No.213/2004.

5. It may be noted that Rahul Yadav was aged 18 years when the alleged incident in which he was stated to have been involved took place on 20.06.2005 and it may be additionally noted that he was acquitted of the said charge. It may further be noted that the complainant was the owner of the neighbouring agricultural lands and had named the petitioner, his brother and his mother as the accused.

6. We may note that it is not the case of the respondents that the petitioner did not come to correct information while filling up the forms. It is not the case of the respondents that the petitioner did not disclosed his being an accused in the afore-noted FIR and his being acquitted of the offences charged of.

7. Anil Yadav, the writ petitioner of WP(C) No.6170/2010 was likewise issued a letter provisionally offering appointment as a Sub-Inspector by CISF. The letter is dated 25.03.2010 which was withdrawn vide letter dated 22.06.2010. As in the case of Rahul Yadav, it is not the case of the respondents that Anil Yadav had suppressed information of his being an accused for having committed offences punishable under Sections 148/149/323/341/506/34 IPC as per FIR No.389/2006. It may be noted that the alleged incident took place on 02.09.2006 when Anil Yadav was aged 20 years. It may further be noted that Rahul Yadav has been acquitted.

8. The 3rd writ petitioner Parveen Kumar was likewise issued a letter of provisional offer for the post of Sub-Inspector by CISF on 09.11.2010. The same has not been formally withdrawn in terms of a written communication served upon the petitioner, but he has been orally told not to join. As per the counter affidavit the reason is FIR No.310/2006 for having allegedly committed offences punishable under Sections 323/324/34 IPC and even he stands acquitted. It may be noted that the date of the stated incident is 18.07.2006 when Praveen Kumar was aged only 18 years.

9. It is thus apparent that two out of the three writ petitioners were aged 18 years when the alleged incidents took place and the third was aged 20 years. What we want to convey is that though they were major, all petitioners were not sufficiently matured enough. We may highlight at this stage that all the writ petitioners come from a rural background.

10. Justifying withdrawing letters offering appointment, the respondent rely upon a circular dated 31.03.2010 as per which the Ministry of Home Affairs has informed CISF to not allow any candidate found involved in any criminal case to join without instructions of the OFFICE OF THE TRAINING SECTOR NATIONAL INDUSTRIAL SECURITY ACADEMY, CISF.

11. It is not pleaded by the respondents that cases of the petitioners were referred to the office of the Training Sector, National Industrial Security Academy.

12. Now, the circular dated 31.03.2010 does not prohibit appointment merely because, sentence in the past, a candidate was found involved in a criminal case. The office order merely requires the matter to be referred to the National Industrial Security Academy.

13. On this short ground alone, the writ petitions are liable to be disposed of quashing the impugned orders dated 22.06.2010 issued to writ petitioner Rahul Yadav and Anil Yadav as also the un-communicated office order withdrawing letter of offer issued to Praveen Kumar on 09.11.2010 and directing the respondents to forthwith refer the case of the petitioners to the office of the Training Sector National Industrial Security Academy with a direction to the said Academy to decide whether in view of the fact that the petitioners have been acquitted, merely because they were accused of having committed offences in the past, should appointment be denied to them.

14. Ordered accordingly.

15. In this connection we would like to draw the attention of the decision making authority to the reasoning of the judgment and order dated 25.08.2010 passed by a Division Bench of this Court allowing WP(C) No.2068/2010 Govt. of NCT of Delhi & Anr. vs. Robin Singh , in paras 16 to 38 it was observed as under:-

16. It is no doubt true that police plays an essential role of enforcement of law and order in modern societies. Without an efficient police force, a society would become anarchic. To ensure that the police force of a state is efficient, the state must ensure that each individual recruited to the police force, at whatever level, must possess the following attributes:-

(a) Physical Strength and fitness/Free from medical diseases.

(b) Emotional maturity, and ability to remain calm in emotionally charged situations.

(c) Ability to exercise initiative in their work.

(d) Good moral character and integrity.

(e) The ability to carry a great deal of responsibility in handling difficult situations alone/ dependability.

(f) Good Judgment.

17. Keeping in view the above attributes, which are the minimum required of a person who becomes a member of the police force, it becomes the duty of the State to carefully screen the candidates with reference to the aforesaid attributes. But, what we find in India is that the only screening done is with respect to the moral character and integrity, physical strength and free from medical disease. Evidenced by the instant case, the first attribute is sought to be verified by archaic means i.e. checking on the police dossiers or relying upon information provided by the candidate himself and the second, of physical strength, by subjecting the candidates to a physical test, and of being free from medical disease by conducting the medical examination. No evaluation pertaining to the emotional maturity, ability to remain calm in emotionally charged situations, ability to handle difficult situations and be responsive and the ability of initiative in work is conducted.

18. We find that in some jurisdictions abroad, such as United States of America, Canada, Philippines, to name a few, a psychological test is conducted to ascertain the suitability of candidates commensurate to the nature of job they are being inducted to. At times a polygraph test is also conducted to check the deceiving tendencies of candidates. Because so much public trust is placed in peace officers, candidates for these positions are carefully screened to rule out emotional instability, poor judgment, lack of dependability, or other problems which might negatively affect their law enforcement work.

19. A criminal record is a record of a persons criminal history, generally used by potential employers to assess the candidates trustworthiness. The information included in a criminal record varies between countries and even between jurisdictions within a country. In most cases it lists all non-expunged criminal offenses and may also include traffic offenses such as speeding and drunk-driving. In some countries the record is limited to actual convictions (where the individual has pleaded guilty or been declared guilty by a qualified court) while in others it also includes arrests, charges dismissed, charges pending and even charges of which the individual has been acquitted. The latter policy is often argued to be a human rights violation since it works contrary to the presumption of innocence by exposing people to discrimination on the basis of unproven allegations.

20. It is unfortunate that in India we are not marching ahead in the comity of nations and prefer to be governed by the recruitment processes which are a legacy of the British era; ignoring that the purpose of governance then was to rule and the purpose of governance now is to serve.

21. We have prefaced our decision with the statement whether pendency of a criminal proceeding or for that matter a conviction by a competent court of law may justify eyebrows to be raised, but would it justify the shutting of ones eye

22. Now, a man can be booked for the offence of over-speeding and perhaps may be convicted for parking his motor vehicle in a non-parking area. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service The answer would be in the negative. As against that, a man has committed murder or has broken into a departmental store and stolen cash. Would this man be of a character, compelling in public interest and for public good, not to induct him in public service. The answer would be in the affirmative.

23. Not to induct persons with a criminal background in public service, is based on the premise that considerations of public policy, concern for public interest, regard for public good would justify a prohibition. Thus, the primary consideration is, whether public interest and public good would be jeopardized if a person with a criminal background is inducted in public service. And this takes us straight to the core of the issue, whether brush with penal law would justify the eyes to be closed against the offender or only such brush with penal law which is of a higher degree of criminality. If the answer is in the negative, the further question: what should be the higher degree of criminality which would justify the eyes being shut to such person needs to be addressed.

24. With respect to the first two examples given by us in para 22 above, none would argue that for such trivial offences the eyes must be shut against the offender, and with regard to the next two, everybody would agree that the eyes should be shut to such a person who has to be ignored. We concede that the examples are in the extreme, but they certainly help us in understanding as to the process of reasoning required to be adopted to decide as to on which side of the border-line a case would fall.

25. A look at the penal laws in India would show that most of the penal offences can be categorized under two broad categories i.e. felony and misdemeanour. A further look at the sections stipulating penalties would show that felonies are treated as more grave vis--vis misdemeanours. Further, by classifying offences as cognizable and non-cognizable, higher and lower degrees of criminality to the offences can be discerned. Further, by classifying offences as bailable and non-bailable, the degree of criminality can be further discerned.

26. The civil concept of an offence being of a depraving character is to look at whether the act complained of suffers from the tag of a moral turpitude or not.

27. We do not intend to make a catalog of reported decisions as to what misdemeanours should normally attract the penalty of removal or dismissal from service. We may simply state that with respect to conviction for grave and serious offences alone, on the anvil of public interest and for public good, Courts have held that the offender has rendered himself unfit to continue in office and in extreme cases summary dismissal or removal from service by invoking Article 311 of the Constitution is also held justified.

28. Thus, we have a guideline of serious and grave offences being the touchstone in case of the door being shown to the government servant.

29. Looking through the prism of case law pertaining to when can the door be shown to a government servant and by doing reverse engineering we can safely say that what is good for the door to be shown, is good for prohibiting entry through the door, and thus while denying public employment with respect to the offence committed by a person, it can be said, and we say so, that it may be a serious violation of the constitutional right of a citizen to be fairly treated in the matter of public employment if trivial offences committed by the citizen would justify the State shutting its eyes and denying employment.

30. Having answered the question posed in para 1 above, and the answer being in favour of the citizen, we need to answer the further question as to which offences or brush therewith, would justify non entry into public service.

31. We have a clue; of offences being grave, serious and involving a moral turpitude justifying public employment not being given. These would certainly not justify the offender being inducted into public service. None would disagree that convicted and fined for parking a car in a no-parking area or convicted for over-speeding would attract the de minimis principle, but the problem would be in cases closer to the borderline. For therein would lie the problem as to in which side of the boundary line should they be categorized.

32. It is unfortunate that in India, the Government does not come out with white papers of the deliberations at various seminars, but we find a reference made to the All India Seminar on Correctional Service held at New Delhi in March 1969, to consider and lay guidelines pertaining to the problem of rehabilitation of ex-convicts, with emphasis on the need for their employment under the government. Vide OM dated 2.2.1973, No.6857-GSI-72-2755, the State of Haryana has listed the penal offences which have been treated as grave, serious and involving moral turpitude. The said OM lists the under-noted penal offences as grave, serious and involving moral turpitude, disentitling the convict to public employment; the offences are:- Sections 120-A, 121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182, 193 to 201, 205, 209, 293, 302, 304, 307, 354, 359, 362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377, 379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409, 417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to 476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to 498 of the Penal Code.

33. We are a little surprised at the list as it excludes offences such as promoting enmity or doing acts prejudicial to maintenance of harmony i.e. offences punishable under Section 153-A IPC. It excludes offences pertaining to mutiny and its abetment i.e. offences under Sections 131 to 136 IPC. But we do not comment. However, what we find is, the common thread of including all offences against women and such offences which are punishable with imprisonment for life as also imprisonment for a term exceeding three years and above. We get a clue. Offences which do not carry a mandatory sentence of imprisonment and it to be imprisoned the term is less than 3 years and the offender can be let off with payment of fine, are not included in the said list. It is an undisputed fact that there are no rules to guide the authorities in Delhi Police as to in what cases despite acquittal, the person can be kept out of service or can be deprived of employment.

34. That apart, as generically understood, offences involving moral turpitude can be classified with reference to the act being one which shocks the moral conscience of the society in general and this can be determined with reference to the motive of the offender i.e. whether the motive which led to the act was a base one or alternatively whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.

35. Today, with plea bargaining being a well-recognized facet of the administration of criminal law and a part of criminal jurisprudence in India, we do perceive a large number of cases involving thousands and thousands throughout the country, appearing before the Summary Courts and paying small amounts of fine, more often than not, as a measure of plea bargaining. Foremost would be amongst them petty crimes committed mostly by the young and/or the inexperienced. Some may even undergo a petty sentence of imprisonment of a week or ten days. We may also notice that Section 302 Cr.P.C. prescribes for taking note of compoundable offences at the instance of the complainant itself and there are cases where compounding can take place with the permission of the Court.

36. Life is too precious to be staked over petty incidents and the cruel result of conviction for petty offences being the end of the career, the future and the present, of young and inexperienced persons cannot blast their life and their dreams.

37. In a growing democracy, where the systems are failing and the weak and the downtrodden are hardly given the opportunity to sharpen their intellect thereby diminishing the ability of their consciousness to act as a mirror to their acts and actions, it is high time that the executive brings into place a policy where summary/ordinary conviction should not be treated as a conviction for entry or retention in government service.

38. Till then, it would be the duty of the Court to interpret the law by harmonizing human sufferings and human wants, delinquencies and criminal tendencies; conscious of the fact that passengers on Spaceship Earth are the rich and the poor, the needy and the well-off, the hungry and the well-fed, the educated and the uneducated. The need of the hour is to understand that criminals are not born and are not irredeemable brutes. Crime may be a disease but not the criminal, who are a kind of psychic patients and to understand, that anti-social maladies are mostly the result of social imbalances. It must be remembered that on the one hand, social stresses, for various reasons, explosively mount in the real worlds hard environs and the harsh remedy of heartless incarceration and ouster from society deepens the criminality. The swing of the pendulum to the humanist side requires respect for the worth of personhood and the right of every man and woman in its residual human essence.

16. Suffice would it be to state that not only have the three writ petitioners being acquitted of the charge framed against them, we note that they were very young in age when they were accused of having indulged in squabbles and allegedly inflicted injuries on persons. It is not unknown in rural areas to lodge false complaints and it is also not known in rural India to ensnare all and sundry due to petty rivalry. We would also highlight that the offences alleged against the petitioners as stated to have been committed by them are not of a grave kind in respect whereof guidance can be had from the decision taken by the State of Haryana, contents whereof have been noted by us in para 32 of the decision in Robin Singhs case (supra).

17. Needful would be done within a period of four weeks from today and a reasoned decision would be communicated to the petitioners. If the decision is in favour of the petitioners they would be re-inducted/inducted in service with all consequential benefits except arrears of salary. If decision is against the petitioners, for which reasons would have to be recorded, petitioners would have remedy as per law. The decision containing reasons would evidence that the decision making authority has applied its mind to the reasoning of this Court in Robin Singhs case (supra).

18. No costs.

CM No.20859/2010 in WP(C) No.8094/2010 CM No.1056/2011 in WP(C) No.502/2011 W.P. (C) Nos.8094-10, 6170-10 & 502-11 Page 12 of 12

Dismissed as infructuous.