BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
27. 02.2014 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR THE HONOURABLE MR.JUSTICE S.TAMILVANAN THE HONOURABLE MR.JUSTICE A.SELVAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN and THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD)No.8345 of 2011 and W.P.(MD)Nos.13148 and 13149 of 2012, 85, 3287, 5055, 5717, 6717, 6799, 6800, 7211, 7813, 7838, 9398, 9861, 11794 and 16635 of 2013 and Rev.Appn.(MD)No.71 of 2013 W.P.(MD)No.8345/2011 J.Alex Ponseelan ... Petitioner vs 1.The Director General of Police, Tamil Nadu, Chennai. 2.The Director, Tamil Nadu Uniformed Services Recruitment Board, Anna Salai, Chennai. 3.The Superintendent of Police, Thoothukudi District, Thoothukudi. ... Respondents Writ petition under Article 226 of the Constitution of India, praying to issue a writ of certiorarified mandamus calling for the records pertaining to the impugned order passed by the 1st respondent in his proceedings in Na.Ka.No.540/117953/ appointment 1(2)/2011, dated 19.05.2011, setting aside the same an consequently directing the respondents to appoint the petitioner as Constable Grade-II in the recruitment of the year 2009-2010. !For Petitioner in .. Mr.T.A.Ebenezer WP83452011 For Petitioner in .. Mr.G.Thalaimutharasu WPs 13148 & 13149/2012 & 5055/2013 For Petitioner in .. Mr.A.John Vincent WP832013 For Petitioner in .. Mr.K.Mahendran WP98612013 For Petitioner in .. Mr.J.Sivaram WP117942013 For Petitioner in .. Mr.M.Suresh Kumar WP57172013 For Petitioner in .. Mr.B.K.Rajendran WP67172013 For Petitioner in .. Mr.J.Jeyakumaran WPs 6799 and 6800/2013 For Petitioner in .. Mr.A.Haja Mohideen WP78132013 For Petitioner in .. Mr.A.Jayaramachandran WP93982013 For Petitioner in .. Mr.R.Aravind Raj WP32872013 for Petitioner in .. Mr.D.Sasikumar WP78382013 For Petitioner in .. Mr.J.Parekhkumar WP72112013 For petitioner in .. Mr.G.Chandrasekar Rev.Appn. ^For Respondents in .. Mr.K.Chellapandian, all the WPs & Addl.Advocate General, Review Appn. assisted by Mr.B.Pugalendhi, Spl.Govt.Pleader and Mr.N.S.Karthikeyan, Addl.Govt.Pleader. :
ORDERON REFERENCE R.SUDHAKAR,J These writ petitions are before this Larger Bench as per the orders of His Lordship the Hon'ble Chief Justice, dated 03.12.2013, on the Order of Reference, dated 07.11.2013, passed by Justice S.NAGAMUTHU. The two issues raised by the learned Referring Judge are as follows: (i)Whether the law laid down by the Full Bench of this Court in Manikandan vs. Chairman, T.N.Uniformed Services Recruitment Board - 2008 (2) CTC97holds the field or it needs to be over-ruled?. (ii)Whether Rule 14(b)(iv) together with Explanations 1 and 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?.
2. Before we go to the issues at large, we notice that the constitutional validity of Rule 14(b)(iv) together with Explanations 1 and 2 of the Special Police Subordinate Service Rules, 1978 was questioned before a learned Single Judge of this Court and the said Rule was upheld as constitutionally valid in V.Veeramani vs. The State of Tamil Nadu, reported in 2007 3 MLJ676 That order was not challenged by way of appeal. It appears that despite upholding of the validity of the said Rule by the learned Single Judge, two Division Benches of this Court were of the view that in cases where the offence committed by the person concerned is petty one, it is not a bar to enter into Government Service, if he is otherwise eligible to hold the post and reliance was placed on the decision of the Supreme Court in Pawan Kumar v. State of Haryana and another - 1996 (4) SCC17 Those two decisions are in the case of (i) P.Virabhagu v. The Union of India - 2005 (1) CTC429 and (ii)K.Ram Prasad v. State of Tamil Nadu - W.P.No.21671 of 2005 and W.A.No.1963 of 2005, decided on 06.12.2005. The above said view of the Division Benches was differed by another Division Bench in T.Sekar vs. Secretary to Government, reported in 2007 1 MLJ510 3. In view of the above, a learned Single Judge referred two issues to the Hon'ble Chief Justice for resolving the issues by a Full Bench. The issues which were raised for consideration by the Full Bench were: ".(a) the effect of an order of acquittal or discharge of a person involved in a Criminal Case with reference to Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, and (b)the effect of non-disclosure of the same at the time of applying for appointment to the Police Service of the State.".
4. When the matter was taken-up by the Full Bench, it was noticed that the constitutional validity of the Rule has already been upheld by a learned Single Judge. Therefore, a plea was made by the petitioners therein to amend the prayer to declare Rule as ultra-vires and permission was granted by the Full Bench for amendment. Accordingly, the Full Bench also had an occasion to consider the Constitutional Validity of the aforesaid Rule. In paragraph 40 of its Judgment, the Full Bench has held as follows: ".40. Therefore in conclusion, we hold that the amended Rule 14(b) of the Special Rules for TamilNadu Police Subordinate Services is not ultra vires or unconstitutional. We also hold that the non-selection of the Writ petitioners or the rejection of their candidatures, by the respondents, either on the basis of their involvement in criminal case or on the basis of the suppression of their involvement, is perfectly valid and justified. In answer to the reference made to the Full Bench, we hold-- (a)that by virtue of Explanation 1 to Clause (iv) of Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a Criminal Case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified; and (b)That the failure of a person to disclose in the Application form, either his involvement in a Criminal Case or the pendency of a Criminal Case against him, would entitle the Appointing Authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the Criminal Case.".
5. After the Full Bench rendered its decision on 28.02.2008, reported in 2008 (2) CTC97- Manikandan v. Chairman, T.N.Uniformed Services Recruitment Board, a large number of writ petitions came to be filed by persons aspiring to the post of Grade-II Police Constables and who were not selected on the ground that they were involved in criminal cases. Their non-selection was on account of Rule 14(b)(iv), along with Explanations 1 and 2. The Referring Judge, in this case, drew inspiration from the decisions rendered by learned Single Judges of this Court, namely, (i)M.Vijaya Baskar vs. The Superintendent of Police, Dharmapuri and another - CDJ2013MHC1921 (ii)M.Mahendiran vs. Superintendent of Police - (2013) 6 MLJ109 and (iii)W.P.(MD)No.474 of 2013 etc. batch, decided on 26.03.2013. The Referring Judge has also referred to the following decisions of the Apex Court: (i)Commissioner of Police v. Sandeep Kumar - (2011) 4 MLJ1006(SC); (ii)Pawan Kumar v. State of Haryana - AIR1996SC3300 6. In the above decisions, the learned Single Judges of this Court took a view contrary to the decision of the Full Bench of this Court in Manikandan's case. Therefore, the learned Referring Judge, relying on the decisions of the learned Single Judges of this Court and placing reliance upon some of the decisions of the Apex Court, as above, wherein it has been held that trivial violations of law should not be held against the persons for denying appointment to Police Service, doubted the legal position laid down in the Full Bench decision of this Court in Manikandan's Case. The learned Referring Judge is of the view that every time when selection process is taken-up by the Tamil Nadu Uniformed Services Recruitment Board, referring to Rule 14(b)(iv) of the Rules and the Full Bench Judgment of this Court in Manikandan's Case, the candidature of successful candidates is rejected forcing them to approach this Court. The learned Referring Judge is also of the view that the legal position is so volatile so far as this State is concerned and the Government itself appears to be confused as to whether to follow the verdict of the Full Bench in Manikandan's case or the judgments of the learned Single Judges delivered subsequently referring to the later judgments of the Hon'ble Supreme Court. The learned Referring Judge also had his doubts on various issues, as set out in the order of reference for consideration, which touch upon the interpretation of Rule 14(b)(iv), particularly Explanation (i), of which we will consider later. In paragraph 30 of the order of Reference, the learned Referring Judge states that the Full Bench of this Court in Manikandan's case dealt with the validity of the said Rule on the touchstone of Article 14 of the Constitution of India and it did not consider the issue as to whether Rule 14(b)(iv) of the Rules offends Article 21 of the Constitution. Therefore, as the learned Referring Judge was not able to disagree or dissent from the view taken by the Full Bench or Division Bench, directed the Registry to place the matter before The Hon'ble Chief Justice for referring the issues to a Larger Bench to decide as to whether the law laid down by the Full Bench of this Court in Manikandan's case holds the field or it needs to be over-ruled and whether Rule 14(b)(iv) together with Explanations 1 and 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid.
7. At the outset, it has to be pointed out that the Full Bench decision in Manikandan's case is in a batch of writ petitions, which were heard and disposed of. The petitioners in W.P.Nos.5525, 6260 and 7832 of 2007 challenged the said decision before the Apex Court by petitions for Special Leave to Appeal (Civil) Nos.4679-4681 of 2009. The petitions for Special Leave to file Appeal came to be dismissed on 23.03.2012, observing as follows: ".No ground is made out for our interference with the impugned judgment. The Special Leave Petitions are dismissed accordingly.".
8. It is only thereafter, on 07.11.2013, the present reference has been made by the learned Single Judge. We find that the substantial issues raised in the Reference are one relating to the constitutional validity of the Rule and the other is as to whether the judgment of the Full Bench in Manikandan's case is a good law.
9. In the Full Bench decision in Manikandan's case, there are two parts. The first part relates to upholding the validity of Explanation 1 to Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Service Rules, of which we are concerned. The second part relates to non-disclosure of fact as to the involvement in the criminal case at the time of submitting application and that issue is now referred to a Larger Bench by the Hon'ble Supreme Court in Jainendra Singh vs. State of Uttar Pradesh - (2012) 8 SCC748and therefore we cannot express anything on that issue when the matter is before the Apex Court for consideration.
10. Since the Rule itself has been upheld by the Full Bench in paragraph 40 of its judgment and the Special Leave Petition was dismissed, the same issue cannot be re-agitated before this Court for testing the constitutional validity, even by way of Reference by a learned Single Judge to a larger Bench and we are emboldened to say so in view of the law laid down by the Supreme Court in Abbai Maligai Partnership Firm v. K.Santhakumaran - (1998) 7 SCC386(Three Judges Bench). Paragraph 4 of the Judgment reads as follows: ".4. The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the selfsame order had been dismissed by this Court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned Single Judge at that stage is subversive of judicial discipline. The High Court was aware that the SLPs against the orders dated 7-1-1987 had already been dismissed by this Court. The High Court, therefore, had no power or jurisdiction to review the selfsame order, which was the subject-matter of challenge in the SLPs in this Court after the challenge had failed. By passing the impugned order on 7-4-1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this Court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case, was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this Court, abused the process of the court and indulged in vexatious litigation. We strongly deprecate the matter (sic manner) in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this Court. .....". (emphasis supplied) 11. The above view has been followed in K.Rajamouli vs. A.V.K.N.Swamy, reported in (2001) 5 SCC37 Paragraph 4 of the judgment reads as follows: ".4. Following the decision in the case of Kunhayammed [(2000) 6 SCC359, we are of the view that the dismissal of the special leave petition against the dismissal of main judgment of the High Court would not constitute res judicata when a special leave petition is filed against the order passed in the review petition provided the review petition was filed prior to the filing of special leave petition against the main judgment of the High Court. The position would be different where after dismissal of the special leave petition against the main judgment a party files a review petition after a long delay on the ground that the party was prosecuting remedy by way of special leave petition. In such a situation the filing of review would be an abuse of the process of the law. We are in agreement with the view taken in Abbai Maligai Partnership Firm [(1998) 7 SCC386 that if the High Court allows the review petition filed after the special leave petition was dismissed after condoning the delay, it would be treated as an affront to the order of the Supreme Court. But this is not the case here. In the present case, the review petition was filed well within time and since the review petition was not being decided by the High Court, the appellant filed the special leave petition against the main judgment of the High Court. We, therefore, overrule the preliminary objection of the counsel for the respondent and hold that this appeal arising out of the special leave petition is maintainable.". (emphasis supplied) 12. In the above case, when the judgment of the High Court was challenged by way of Special Leave Petition, the review petition filed before the High Court came to be dismissed consequent to the dismissal of the SLP. The Supreme Court clearly held that after the dismissal of SLP, a Review Petition would be an abuse of process of law. In the present reference case also, we find that by referring the matter to the larger Bench, the issues which have already been decided by the Full Bench and upheld by the Supreme Court, are sought to be re- agitated, on various hypothetical factual scenario and on the plea of constitutional breach. The constitutional validity cannot be reopened by the learned Referring Judge on interpretation of law as posed, doubting the Full Bench decision which is binding on the referring Single Judge, as there is no contrary view by another Full Bench and the present rule was not in issue in the Supreme Court decision relied upon in the reference. If review itself is not maintainable, we fail to understand as to how the reference can be made by the learned Single Judge doubting the view taken by the Full Bench.
13. There is yet another way of looking at the issue. We find that in Khoday Distilleries Limited vs. Mahadeswara S.S.K.Ltd - (2012) 12 SCC291 a reference has been made to the Larger Bench to resolve the conflict between judgments in K.Rajamouli vs. A.V.K.N.Swamy - (2001) 5 SCC37and Gangadhara Palo vs. Revenue Divisional Officer - (2011) 4 SCC602 Among the questions that were referred to the Larger Bench in Khoday Distilleries Limited Case, one is whether review can be filed after dismissal of S.L.P. In Gangadhara Palo's case, the Supreme Court took the extreme view that it is not permissible, which is evident from the judgment itself. Paragraphs 5 and 6 of Gangadhara Palo's case, read as follows: ".5.We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not. 6.When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however, meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.".
14. The Apex Court held that once Special Leave Petition is dismissed, the doctrine of merger applies and the judgment of the High Court merges with the order of the Supreme Court and the emphasis is that even if the dismissal of the Special Leave Petition is by giving some reason, even if it be just one sentence, the doctrine of merger will apply. Therefore, even by the view taken by the Apex Court in Gangadhara Palo vs. Revenue Divisional Officer case, the Special Leave Petitions filed against the Full Bench decision of this Court in Manikandan's case having been dismissed holding that no ground is made out for interference with the impugned judgment, there can be no review of the issue decided by way of reference. The learned Single Judge ought not to have referred the issue once over by citing few examples. The learned Referring Judge's attempt to re-open the case for rehearing on the validity of the rule upheld by the Full Bench is without any legal basis, but is on an interpretation in a manner that is propounded. The Rule cannot be re-adjudicated at whim.
15. The issue of constitutional validity of the Rule 14(b)(iv) of the Rules cannot be re-agitated on a reference by a learned Single Judge, as the validity of the said Rule has already been upheld by the Full Bench of this Court in Manikandan's Case and the appeal by way of Petition for Special Leave has been dismissed by the Hon'ble Apex Court. Furthermore, the legal doubt raised by the learned Referring Judge has been dealt with by the Hon'ble Supreme Court in a recent decision in Commr. of Police v. Mehar Singh, (2013) 7 SCC685 Paragraphs 20, 21, 23, 25, 26 and 35 of the said decision read as follows: ".20. It would be appropriate to reproduce the relevant portions of the said Standing Order: ".Standing Order No.398/2010 Policy for deciding cases of candidates provisionally selected in Delhi Police involved in criminal cases (facing trial or acquitted). During the recruitments made in Delhi Police, several cases come to light where candidates conceal the fact of their involvement in criminal cases in the application form/attestation form in the hope that it may not come to light and disclosure by them at the beginning of the recruitment process itself may debar them from participating in the various recruitment tests. Also the appointment if he/she has been acquitted but not honourably. In order to formulate a comprehensive policy, the following rules shall be applicable for all the recruitments conducted by Delhi Police: (1)-(2) * * * (3) If a candidate had disclosed his/her involvement and/or arrest in criminal cases, complaint case, preventive proceedings, etc. and the case is pending investigation or pending trial, the candidature will be kept in abeyance till the final decision of the case. After the court's judgment, if the candidate is acquitted or discharged, the case will be referred to the Screening Committee of the PHQ comprising of Special Commissioner of Police/Administration, Joint Commissioner of Police/Headquarters and Joint Commissioner of Police/Vigilance to assess his/her suitability for appointment in Delhi Police. (4) If a candidate had disclosed his/her involvement in criminal case, complaint case, preventive proceedings, etc. both in the application form as well as in the attestation form but was acquitted or discharged by the court, his/her case will be referred to the Screening Committee of PHQ to assess his/her suitability for appointment in Delhi Police. (5) * * * (6) Such candidates against whom charge-sheet in any criminal case has been filed in the court and the charges fall in the category of serious offences or moral turpitude, though later acquitted or acquitted by extending benefit of doubt or the witnesses have turned hostile due to fear of reprisal by the accused person, he/she will generally not be considered suitable for government service. However, all such cases will be judged by the Screening Committee of PHQ to assess their suitability for the government job. The details of criminal cases which involve moral turpitude may kindly be perused at Annexure 'A'. (7) Such cases in which a candidate had faced trial in any criminal case which does not fall in the category of moral turpitude and is subsequently acquitted by the court and he/she discloses about the same in both application form as well as attestation form will be judged by the Screening Committee to decide about his/her suitability for the government job. (8) * * * (9) If any candidate is discharged by extending the benefit of Probation of Offenders Act, 1958 this will also not be viewed adversely by the department for his/her suitability for government service. (10) If a candidate was involved in a criminal case which was withdrawn by the State Government, he/she will generally be considered fit for government service, unless there are other extenuating circumstances.".
21. Annexure 'A' as mentioned in clause (6) above lays down the following offences involving moral turpitude: ".1. Criminal conspiracy (Section 120-B IPC) 2. Offences against the State (Sections 121-130 IPC) 3. Offences relating to Army, Navy and Air Force (Sections 131-134 IPC) 4. Offence against public tranquillity (Sections 153-A and 153-B IPC).
5. False evidence and offences against public justice (Sections 193-216- A IPC) 6. Offences relating to coin and government stamps (Sections 231 to 263-A IPC).
7. Offences relating to religion (Sections 295-297 IPC) 8. Offences affecting human body (Sections 302-304, 304-B, 305-308, 311- 317, 325-333, 335, 347, 348, 354, 363-373,376-376-A, 376-B, 376-C, 376-D, 377 IPC) 9. Offences against property (Sections 379-462 IPC) 10. Offences relating to documents and property marks (Sections 465-489 IPC) 11. Offences relating to marriage and the Dowry Prohibition Act (Section 498-A IPC)". * * * * * * * * * 23. A careful perusal of the policy leads us to conclude that the Screening Committee would be entitled to keep persons involved in grave cases of moral turpitude out of the police force even if they are acquitted or discharged if it feels that the acquittal or discharge is on technical grounds or not honourable. The Screening Committee will be within its rights to cancel the candidature of a candidate if it finds that the acquittal is based on some serious flaw in the conduct of the prosecution case or is the result of material witnesses turning hostile. It is only experienced officers of the Screening Committee who will be able to judge whether the acquitted or discharged candidate is likely to revert to similar activities in future with more strength and vigour, if appointed, to the post in a police force. The Screening Committee will have to consider the nature and extent of such person's involvement in the crime and his propensity of becoming a cause for worsening the law and order situation rather than maintaining it. In our opinion, this policy framed by the Delhi Police does not merit any interference from this Court as its object appears to be to ensure that only persons with impeccable character enter the police force. * * * * * * * * * 25. The expression ".honourable acquittal". was considered by this Court in S. Samuthiram [(2013) 1 SCC598. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and under Section 4 of the Eve-Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in RBI v. Bhopal Singh Panchal [(1994) 1 SCC541, where in somewhat similar fact situation, this Court upheld a bank's action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. This Court observed that the expressions ".honourable acquittal"., ".acquitted of blame". and ".fully exonerated". are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression ".honourably acquitted".. This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted. * * * * * * * * * 35. The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force. The Standing Order, therefore, has entrusted the task of taking decisions in these matters to the Screening Committee. The decision of the Screening Committee must be taken as final unless it is mala fide. In recent times, the image of the police force is tarnished. Instances of police personnel behaving in a wayward manner by misusing power are in public domain and are a matter of concern. The reputation of the police force has taken a beating. In such a situation, we would not like to dilute the importance and efficacy of a mechanism like the Screening Committee created by the Delhi Police to ensure that persons who are likely to erode its credibility do not enter the police force. At the same time, the Screening Committee must be alive to the importance of the trust reposed in it and must treat all candidates with an even hand.". (emphasis supplied) 16. The Explanation doubted by the Referring Judge with regard to the issue of 'acquittal and discharge on benefit of doubt' has been considered in paragraph 23 of the above judgment and it clearly answers the issue. The Apex Court holds that the Screening Committee is the competent authority to decide as to whether a candidate is a person involved in a criminal case or not and that is the tenor of Rule 14(b)(iv) of the Rules, where the power is given to the Appointing Authority to verify whether a candidate is involved in a criminal case before considering him for selection. Therefore, Rule 14(b)(iv) and Explanations attached thereto are in consonance with the decision of the Apex Court in Mehar Singh's Case (supra).
17. The Referring Judge has stated that Single Judges have taken a different view with regard to the issue on involvement in a criminal case, and this, according to the Referring Judge, is causing some confusion. We do not think so. The Single Judge is bound by the decision of the Full Bench and there is no reason to doubt when the Rule is held intra vires and it holds the field and the learned Single Judge cannot overlook the said rule and the Full Bench decision of this Court in Manikandan's Case (supra) and such a view is legally untenable. The two Supreme Court decisions relied upon by the Referring Judge do not, in anyway, support the issue raised in the reference, as in Sandeep Kumar's case, the issue arose in respect of appointment to the post of Head Constable in NCT of Delhi. The relevant rules were not subjected to judicial test and it was an issue not in dispute. Further in Pawan Kumar's case, the Supreme Court did not have an occasion to test the validity of any particular rule. It only gave suggestions to the Government to amend certain provisions to iron out creases.
18. According to the Referring Judge, it is the Explanation to the Rule 14(b)(iv) which is causing confusion and therefore the reference is made to state that the Full Bench decision is not a good law and that it is not constitutionally valid. As to the scope of the term ".Explanation"., the Apex Court in Sundaram Pillai v. Pattabiraman - (1985) 1 SCC591 had an occasion to examine the explanation added to the proviso to Section 10(2) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, as per State Act 23 of 1973 and the impact of the term ".explanation". has been considered in the said decision. In the said decision, it has been held that the object of explanation is to explain the meaning and intendment of the Act itself and to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful. The object of term ".explanation"., summarised in paragraph 53 of the judgment, reads as follows: ".53.Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-- (a) to explain the meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.".
19. In so far as the present case is concerned, the explanation to Rule 14(b)(iv) indicates that it is not exhaustive but it specifies certain instances, which would explain the term ".involvement in a criminal case".. In any event, assuming without admitting that there is some confusion in the understanding of the language by which the Explanation has been stated, that issue can however be appropriately addressed by the Government by suitably amending the Tamil Nadu Special Police Subordinate Service Rules, on the lines of the Delhi Police Rules and its Standing Order No.398/2010, which is reproduced in Paragraph 20 of the judgment in Mehar Singh's case (Supra). Such a recommendation is made taking cue from the decision of the Hon'ble Apex Court in Pawan Kumar vs. State of Haryana and another - AIR1996SC3300 20. It is trite law that the order of the Division Bench is binding on the Single Judge and that of the Full Bench or a Larger Bench on the Division Bench and the Single Judge. The decision of the Single Judges, without reference to the Full Bench decision in Manikandan's case, if it is in conflict, is not a correct view and not good law. The doctrine of 'binding precedent' has been expounded in the case of Chandra Prakash v. State of U.P. - AIR2002SC1652 Paragraphs 19 to 21 of the Judgment read as follows: ".19. The question, therefore, for our consideration is how far this is permissible?.
20. The principles of the doctrine of binding precedent are no more in doubt. This is reflected in a larger number of cases decided by this Court. For the purpose of deciding the issue before us, we intend referring to the following two judgments of this Court.
21. In the case of Union of India v. Raghubir Singh (AIR1989SC1933, a 5-Judge Bench of this Court speaking through Pathak, C.J., held that pronouncement of a law by a Division Bench of this Court is binding on another Division Bench of the same or smaller number of Judges. The judgment further states that in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. To avoid a repetition of the discussion on this subject, we think it appropriate to reproduce the following paragraph of that judgment which reads as follows: ".What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case realising the same point subsequently before a Division Bench of a smaller number of Judges?. There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of the work demanding the attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other consideration which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. We may refer to a few of the recent cases on the point. In John Martin v. State of West Bengal, [1975]. 3 SCC836 a Division Bench of three Judges found it right to follow the law declared in Haradhan Shah v. Stare of West Bengal, [1975]. 3 SCC198 decided by a Division Bench of five Judges, in preference to Bhut Nath Mate v. State of West Bengal, [1974]. 1 SCC645decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain, [1975]. Supp. SCC1 Beg J held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala, [1973]. 4 SCC225. In Ganapati Sitaram Balvalkar v. Waman Shripad Mage, [1981]. 4 SCC143 this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, [1974]. 2 SCC365 this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasaiji Anandprasadji Maharaj v. State of Gujarat, [1975]. 1 SCC11that even where the strength of two differing Division Benches consisted of the same number of Judges, it was not open to one Division Bench to decide the correctness or otherwise of the views of the other. The principle was reaffirmed in Union of India v. Godfrey Philips India Ltd., [1985]. 4 SCC369which noted that a Division Bench of two Judges of this Court in Jit Ram Shiv Kumar v. State of Haryana, [1981]. 1 SCC11had differed from the view taken by an earlier Division Bench of two Judges in Motilal Padampat Sugar Mills v. State of U.P., [1979]. 2 SCC409on the point whether the doctrine of promissory estoppel could be defeated by invoking the defence of executive necessity, and holding that to do so was wholly unacceptable reference was made to the well accepted and desirable practice of the later bench referring the case to a larger Bench when the learned Judges found that the situation called for such reference.".
21. I, therefore, answer the Reference in the following: (i)The decision rendered by the Full Bench of this Court in Manikandan's case, reported in 2008(2) CTC97 is a good law. (ii)Rule 14(b)(iv) together with Explanations 1 and 2 of the Tamil Nadu Special Police Subordinate Service Rules is intra vires of the Constitution, as has already been held by the Full Bench in the Manikandan's case and by the learned Single Judge in V.Veeramani's case.
22. Before parting, I may observe that I have had the privilege of perusing the judgments proposed by my learned brothers Justice S.Tamilvanan and Justice A.Selvam and it had been my endeavour not to repeat the reasonings of A.Selvam, J.
with whom I respectfully agree and, with utmost respect, I dissent from the views of S.Tamilvanan,J.
23. Registry is directed to list the individual writ petitions and the Review Application before the appropriate Benches for disposal in terms of the order on reference. (R.SUDHAKAR,J) (S.TAMILVANAN,J) (A.SELVAM,J) (M.SATHYANARAYANAN,J) (B.RAJENDRAN,J) 27.02.2014 S.TAMILVANAN, J.
The matter has been referred to this Larger Bench of Five Judges, by the Hon'ble Chief Justice of High Court of Judicature Madras, pursuant to the request made by the Hon'ble Mr.Justice S.Nagamuthu, in the order, dated 07.11.2013 passed in a Batch of writ petitions.
2. As per the order of Reference dated 07.11.2013 of the learned single Judge, it is brought to the purview of this Larger Bench to decide whether the Full Bench decision of this Court in Manikandan v. Chairman, T.N.Uniformed Services, reported in (2008) 2 MLJ1203(FB) is directly in conflict with the Judgment of the Hon'ble Supreme Court and various Judgments of this Court as well, in interpreting Rule 14 (b) (iv) and the Explanations (1) & (2) thereto of Tamil Nadu Special Police Subordinate Service Rules, 1978 (herein after referred to as ".the Rules".).
3. Having considered the averments and the order of Reference, made by the learned single Judge, that the Full Bench decision of this Court in Manikandan's case directly in conflict with the Judgments of the Hon'ble Supreme Court and various Judgments of this Court, in interpreting the aforesaid Service Rule, the matter has been referred for deciding the constitutional validity of Rule 14(b)(iv) Explanation (1) & (2) that was upheld by the Full Bench and also to decide whether the Full Bench decision needs to be over-ruled. The following questions are referred to this Larger Bench of Five Judges: ".(i) Whether the law laid down by the Full Bench of this Court in Manikandan vs. Chairman, T.N.Uniformed Services Recruitment Board - 2008 (2) CTC97holds the field or it needs to be over-ruled?. and (ii) Whether Rule 14(b)(iv) together with Explanations 1 and 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?.".
4. A perusal of the order of Manikandan's case referred to above, dated 28.02.2008 shows an earlier reference had been made by Hon'ble Mr.Justice P.Jyothimani (as he then was) and in view of the said earlier reference, the following issues had been raised in Manikandan's case before the Full Bench for consideration: ".(i) Whether the acquittal or discharge of a person in a Criminal case on benefit of doubt would amount to a stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation-1 of the Tamil Nadu Special Police Subordinate Service Rules?. (ii) Whether the non-disclosure of involvement in a Criminal Case which has ultimately ended in acquittal, but in some cases disclosed after acquittal, can be a ground for disqualifying the persons concerned from entering into the Government service?.".
5. As per order, dated 28.02.2008, the Full Bench answered for the reference made, holding that the amended Rule 14 (b) (iv) of the Special Rules for the Tamil Nadu Police Subordinate Service is not ultra vires or unconstitutional and accordingly, dismissed all the writ petitions, relating to Manikandan's case. In Manikandan v. Chairman, T.N.Uniformed Service, the Full Bench of three Judges has answered for the reference as follows : ".(a) that by virtue of Explanation 1 to clause (iv) of Rule 14 (b) of the Tamilnadu Special Police Subordinate Service Rules, a person acquitted on benefit of doubt or discharged in a criminal case, can still be considered as disqualified for selection to the police service of the State and that the same cannot be termed as illegal or unjustified; and (b) That the failure of a person to disclose in the application form, either his involvement in a criminal case or the pendency of a criminal case against him, would entitle the appointing authority to reject his application on the ground of concealment of a material fact, irrespective of the ultimate outcome of the criminal case.".
6. While dealing with various writ petitions, by order, dated 07.11.2013, Hon'ble Mr.Justice S.Nagamuthu, held that the decision rendered by the Full Bench in Manikandan's case is in conflict with the law laid down by the Hon'ble Supreme Court in Commissioner of Police and others v. Sandeep Kumar, reported in (2011) 4 MLJ1006(SC) and various other decisions.
7. The learned single Judge has further observed in his order, dated 07.11.2013 that Hon'ble Mr.Justice Vinod K.Sharma (as he then was) in a batch of writ petitions, relying on the decisions in (i) Jainendra Singh vs. State of U.P. And others - 2012 (5) Supreme 215; (ii) Commissioner of Police and others vs. Sandeep Kumar - (2011) 4 MLJ1006(SC); (iii) Kendriya Vidyalaya Sangathan and others vs. Ram Ratan Yadav - (2003) 3 SCC437 (iv) Ram Kumar vs. State of U.P. and others - 2011 (6) Supreme 23 and also the orders of this Court in K.Sathyaseelan v. Tamil Nadu Uniformed Services Recruitment Board and another - W.P.No.2068 of 2013, dated 26.02.2013; K.Satyanarayanan vs. The State of Tamil Nadu and another in W.A.No.1231 of 2009, dated 17.09.2009 and Navaneethakrishnan vs. The Secretary to Government and another in W.P.No.2100 of 2008, dated 12.02.2013 held, by his Judgment, dated 22.03.2012 reported in CDJ2013 MHC1921 that it would be totally arbitrary and unfair to deny appointment to any young man, who has been found guilty of very minor offence, for which imposition of fine was considered to be adequate punishment, contrary to Rule 14 (b) (iv) Explanation (1) of the Tamil Nadu Special Police Subordinate Service Rules, in spite of the constitutional validity uphold by the Full Bench of this Court. In the aforesaid decision, paragraph Nos.29 to 31 reads as follows : ".29. On consideration, I find force in the contention raised by the learned counsel for the petitioners. It would be seen, that in all these cases, the petitioners were acquitted in criminal cases much before commencement of process of selection. Acquittal in criminal cases means, that the charges framed against the accused itself were bad, therefore, it cannot be said, that persons were involved in any criminal case. Therefore, Rule 14(b) can only be interpreted to mean, that in cases, which are pending at the time of selection, and end in acquittal by giving benefit of doubt, then a person can be denied the right of appointment by considering him to be involved in criminal cases, but not in a case, where much before the start of selection process, the person is acquitted, even by giving benefit of doubt.
30. As already noticed above, persons in whose case criminal cases was closed as ".Mistake of Fact"., also by no stretch of imagination, can be said to be involved in criminal case to deny them public appointment, as has been done by the respondents.
31. However, in the cases, where punishment of fine was awarded, the appointment cannot be denied in view of the law laid down by the Hon'ble Supreme Court in the case of Commissioner of Police and others vs. Sandeep Kumar (supra), holding, that it will be totally arbitrary and unfair to deny appointment to a young man, who has been found guilty of very minor offence, for which imposition of fine was considered to be adequate punishment.".
8. Hon'ble Mr.Justice D.Hariparanthaman, in M.Mahendiran v. Superintendent of Police, reported in (2013) 6 MLJ109 relying on the decision in C.Vijayaraja v. The Director General of Police, Mylapore, Chennai - 4 and 3 others - W.P.(MD).No.145 of 2010 took a similar view like that of the view taken by Mr.Justice Vinod K.Sharma and in this regard Paragaraph Nos.13,14, 15 of the Judgment rendered by the learned Judge reads as follows : ".13. In this case, it is true that the Full Bench judgment of this Court considered Rule 14(b) of Tamil Nadu Special Police Subordinate Service Rules and held that if a person was acquitted by a criminal Court, even then he could not claim appointment in view of Explanation (1) to the aforesaid Rules. But, the Full Bench judgment of this Court was considered in the order dt. 26.03.2013 in W.P.(MD)No.1145 of 2010 (Batch cases) C.Vijayaraja v. The Director General of Police, Mylapore, Chennai 8 and 3 Others, and a direction was issued to the respondents/authorities to provide appointment if the candidates were honourably acquitted.
14. In view of the aforesaid judgment dt.26.3.2013 in W.P.(MD)No.1145 of 2010 Batch cases C.Vijayaraja v. The Director General of Police, Mylapore, Chennai 8 and 3 Others (supra), I am of the view that the petitioner is entitled to succeed in this case.
15. Accordingly, the impugned order dated 5.12.2012 refusing to provide appointment to the petitioner on the ground that the petitioner faced criminal case is liable to be quashed and a direction is issued to the respondents to give appointment to the petitioner within a period of six weeks from the date of receipt of copy of this order. Consequently, connected miscellaneous petition is closed. No costs.".
9. Similarly, Hon'ble Mr.Justice R.S.Ramanathan in a similar situation, has relied on the subsequent judgments of the Hon'ble Supreme Court in Ram Kumar vs. State of U.P. & Others, reported in 2011(6) CTC440 Daya Shankar Yadav vs. Union of India & Others - [2011 (2) LLN34(SC)]. and Commissioner of Police, and others vs. Sandeep Kumar - 2011 (4) MLJ1006(SC), and took a view that until a Larger Bench of the Supreme Court decides the issue in Jainendra Singh vs. State of U.P. Tr.Prinl.Sec., Home and others - (2012) 7 MLJ65(SC), the Full Bench judgment of this Court in Manikandan's case cannot hold the field.
10. Hon'ble Mr.Justice K.Chandru, in V.Veeramani v. State of Tamil Nadu, reported in (2007) 3 MLJ676 held in the common order as follows: ".24. After a survey of all the aforesaid decisions, it can be firmly said that Explanation (1) to Rule 14(b)(iv) does not suffer from the vires of arbitrariness and it is not discriminatory. A Government servant whether in service or before enters into service or his post retirement, is controlled by similar Rules. Therefore, the contention of the learned counsel for the petitioners that the Rules are discriminatory must fail. Lastly, it must be stated that the State also being an employer can set its own standards in the matter of recruitment of its own personnel and in the case of Uniformed Services, it must apply rigorous standard so that all and sundry does not get into the force.". In V.Veeramani v. State of Tamil Nadu, it was categorically held by the Judge that explanation (1) to Rule 14(b)(iv) does not suffer from the vires of arbitrariness and it is not discriminatory. However, in a subsequent decision, K.Sathiyaseelan v. Tamil Nadu Uniformed Services in W.P.No.2068 of 2013, dated 26.02.2013, Mr.Justice K.Chandru, relying on the decision of the Supreme Court in Ramkumar v. State of U.P and others, reported in AIR2011SC2903held contrary to Explanation (1) to Rule 14(b)(iv) of the Rules as follows : ".10...Certainly, the case of the petitioner do not come under Rule 14(b) as explanation-1 will not apply since the wife herself, who was the defacto complainant did not support the complaint. Mere suspension of the information by itself will not result in the petitioner being denied employment as held by the Supreme Court in the decisions cited supra.".
11. It is seen that the Explanation (1) to Rule 14(b)(iv) reads that 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. The Explanation No.1, has no exemption, in case of an offence relating to Section 498 A IPC. However, having held the provision valid, in the earlier decision, it has been decided by the learned Judge, subsequently that Explanation No.1, is not applicable to cases registered under Section 498 (A) IPC, when the de facto complainant did not support her complaint. Therefore, the subsequent decision rendered by Mr.Justice K.Chandru in K.Sathiyaseelan v. Tamil Nadu Uniformed Services, is also fell in line with the decisions rendered by Mr.Justice Vinod K.Sharma and others against the Explanation (1) to Rule 14(b)(iv) of the Rules.
12. It is well settled by the Hon'ble Apex Court that as per Article 13 (2) of the Constitution, the State shall not make any law, which takes away or abridges the Fundamental Rights, conferred by Part III of the Constitution and any such law made in contravention of the clause shall, to the extent of the contravention, be void. As per the definition under Article 13 (3) (a) of the Constitution, ".law". includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. Therefore, it can rightly be said that Rule 14(b)(iv) and the Explanation (1) & (2) thereto of Tamil Nadu Special Police Subordinate Service Rules, comes under the purview of law, as per Article 13(3)(a) of the Constitution. Hence, it should not ultra vires the constitutional mandate and the Fundamental Rights, as enshrined under part III of the Constitution to be held valid in law.
13. It is the legal plea of the petitioners that a careful reading of the impugned Rule 14(b)(iv) and the Explanation (1) & (2) thereto, would make it clear that Explanation (1) to the Rule 14(b)(iv) of the Rules, takes away or abridges the Fundamental Right, conferred under Part III of the Constitution. The Hon'ble Supreme Court in the land mark judgment, Kesavananda Bharathi v. State of Kerala, reported in AIR1973SC1461has categorically ruled that the 'Basic structure' of the Constitution cannot be taken away even by Parliament by way of constitutional amendment, invoking Article 368 of the Constitution. The remedies for enforcement of Fundamental Rights are available by way of invoking the power of writ jurisdiction, conferred on the Supreme Court under Article 32 and the High Courts under Article 226, which are held as basic structure of the Constitution, in addition to the vital aspects like Parliamentary Democracy, Secularism, etc., in Kesavananda Bharathi's case.
14. Learned counsel appearing for the writ petitioners in W.P.(MD).No.8345 of 2011 and W.P.(MD).Nos.13148 and 13149 of 2012 submitted his arguments, relying on the decisions in Commissioner of Police v. Sandeep Kumar, reported in (2011) 4 MLJ1006(SC) and Pawan Kumar v. State of Haryana, reported in AIR1996SC330 that the Full Bench decision in Manikandan's case is contrary to the aforesaid decisions of the Hon'ble Supreme Court, hence, the same needs to be over-ruled, so as to allow the said writ petitions.
15. In Commissioner of Police v. Sandeep Kumar, reported in (2011) 4 MLJ1006(SC), the Hon'ble Apex Court has held as follows : ".10. When the incident happened, the respondent must have been about 20 years of age. At that age, young people often commit indiscretions, and such indiscretions can often been condoned. After all, youth will be youth. They are not expected to behave in as mature a manner as older people. Hence, our approach should be to condone minor indiscretions made by young people rather than to brand them as criminals for the rest of their lives.". In support of the decision, the Hon'ble Supreme Court relied on the view of LORD DENNING in his book ".Due Process of Law". and the decision in Morris v. Crown Office, (1970) 2 Q.B114, and observed thus : ".12. In our opinion, we should display the same wisdom as displayed by LORD DENNING. As already observed above, youth often commit indiscretions, which are often condoned. It is true that in the application form, the respondent did not mention that he was involved in a criminal case under Section 325/34 IPC. Probably, he did not mention this out of fear that if he did so, he would automatically be disqualified.
13. At any even, it was not such a serious offence like murder, dacoity or rape and hence, a more lenient view should be taken in the matter.". With the aforesaid observation the appeal preferred by the Commissioner of Police was dismissed.
16. However, it is argued that the validity of the view taken in the said decision is yet to be decided by a Larger Bench. The Hon'ble Supreme Court has differentiated minor misdeeds and the major crimes, which are to be dealt with severely. As per the decision, cancellation of candidature on the ground of minor indiscretions committed by youth is legal and such minor misdeeds have to be condoned rather than brand them as criminals for the rest of their lives. There is no stay granted against the view taken by the Hon'ble Supreme Court in differentiating minor misdeeds and the serious offence like murder, dacoity or rape. In fact, the Hon'ble Apex Court in the decision referred to above, has decided that more lenient view should be taken in the matter of minor misdeeds by youngsters considering that their life should not be affected. It is well settled that ".Law". should not be interpreted mechanically, since law is only the means and justice is the end.
17. As per the Judgment in Pawan Kumar v. State of Haryana, reported in AIR1996SC3300 the Hon'ble Apex Court has held that provision need to be made so as to clarify that punishment of fine up to a certain limit, say up to Rs.2,000/- or so, on a summary / ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into or a retention in Government service. In Paragraph No.14 of the Judgment, the Supreme Court drew the attention of the Parliament to step in and perceive for the larger interest of the people facing various cases throughout the country. In this regard, the view of the Hon'ble Apex Court is that imposing fine more often based on plea-bargaining and petty offences which are tried summarily, need not be a bar in getting public appointment.
18. It was argued on behalf of the respondents that the decision rendered in Pawan Kumar's case by the Honourable Supreme Court is recommendatory in nature to the Parliament which has no binding effect for deciding the writ petitions by this Court. No decision of the Supreme Court can be taken in a lighter sense by this Court while dispensing justice.
19. At this juncture, it is relevant to refer the Constitutional debate that had taken place for about two years prior to the Constitution of India being adopted. It had been argued by various persons during the Constitutional Assembly debate that directive principles of state policy available at Part IV of the Constitution as being advisory in nature to the Executive and Legislature and not justiciable through Court of law, like Fundamental Rights in Part III of the Constitution, hence the directive principles of state policy need not form part of the Constitution. However, the wisdom of the framers of the Constitution, clarified that the same is required as guidelines for the Executive and the Legislature, including the Parliament. At present, for proper interpretation and to decide the scope of any Fundamental Right or in case of Public Interest Litigation, only directive principles of state policy is taken into consideration as a guideline by the Supreme Court and which plays a vital role, which cannot be disputed. Though the view of Lord Denning in his book ".Due process of law". and the decisions rendered by courts of other countries are not binding on the Courts in India, however, judicial wisdom requires that such valuable jurisprudential views shall be taken into consideration for proper interpretation of any law. Hence, there is no bar for the reference court to go into various legal aspects and all the views that are taken by the Hon'ble Apex Court, in various decisions, including the order passed in Commissioner of Police v. Sandeep Kumar and the Judgment in the Civil Appeal in Pawan Kumar v. State of Haryana to reach a correct conclusion. It is also well settled that when there is a decision by the Hon'ble Apex Court, that cannot be treated as per incuriam, by any High Court, while interpreting the law.
20. It is well settled that in a democracy ".Law". is supreme and no one is above the law. However, law is only a servant and Justice is the master. Hence, the applicability of the dictum and the ratio laid down by the Apex Court has to be considered on the facts and circumstance of each case, towards rendering Justice and while passing appropriate orders, by maintaining judicial wisdom in interpreting any law, that would be available to the referring Court, which cannot be curtailed.
21. So far as the writ petitions relating to the reference court are concerned, there was no representation for the petitioner in W.P.(MD).No.85 of 2013 and W.P(MD).No.11794 of 2013, however, we have gone through the averments made therein for the purpose of deciding the reference made before the Larger Bench.
22. It was contended by the learned counsel appearing for the petitioner in W.P.(MD).No.3287 of 2013 that the decision rendered by the Full Bench in Manikandan's case is liable to be over-ruled, as it has not considered Article 20 (3) of the Constitution of India. Learned counsel for the petitioner in the writ petition contended that as per Article 20 (3) of the Constitution, no person accused of any offence, shall be compelled to be a witness against himself and hence keeping silence is also a right of an accused, as per Article 20(3). However, even in a case, where all the witnesses turned hostile and the case ended in acquittal, as per the impugned rule 14(b)(iv) Explanation (1), the accused thereof could be construed only a person involved in the criminal case, unless the Judgment specifically states it a honourable acquittal. In such a case, if the word 'honourable acquittal' is omitted in the Judgment, the accused be in a compelling circumstance to adduce evidence, to prove his innocence which would be contrary to Article 20 (3) of the Constitution of India.
23. It was argued by the learned counsel appearing for the petitioner in W.P.(MD).No.5055 of 2013 that once an accused is acquitted in a criminal case, no stigma could be attached to him. Further, the learned counsel contended that as per Manikandan's case, distinction has not been made between acquittal and honourable acquittal. Discharge can be done before framing of charge, if there is no prima facie case made out, based on the materials produced by the prosecution. No stigma can be attached against the accused, when discharge is recorded in his favour, hence, according to the learned counsel, the Full Bench decision is bad in law, as it stipulates that even in case of discharge that amounts to involvement in criminal case.
24. It was argued by the learned counsel appearing for the petitioner in W.P.(MD).No.5717 of 2013 that the plea raised by the petitioner is not covered under the order of reference, however, other details are not given by the petitioner, to show as to how it was not covered.
25. Learned counsel appearing for the petitioners in W.P.(MD).Nos.6799 and 6800 of 2013 and W.P.(MD).No.9861 of 2013, raised similar arguments as that of the arguments advanced by the learned counsel appearing for the petitioner in W.P.(MD).No.5717 of 2013.
26. It is seen that W.P.(MD).Nos.7211, 7813, 7838 and 9398 of 2013 are pertaining to pending criminal cases at the time of police verification, however, subsequently, the petitioners therein were acquitted. Hence, it was argued that they are entitled for appointment, in view of the acquittal as per the Constitutional safeguards available under Part III of the Constitution.
27. It is seen that W.P.(MD).No.16635 of 2013 is related to a case, for which investigation was pending at the time of police verification, however, the petitioner was honourably acquitted, as per Rule 14(b)(iv) Explanation (2), hence, the learned counsel argued that he is entitled to get appointment on the facts of the case.
28. Learned counsel appearing for the Review Petitioner in Rev.AplC.(MD).No.71 of 2013 argued that after pronouncing Judgment by the concerned Court, police have no power to scrutinize the same and decide its merits and under the said circumstances, Explanation (1) to Rule 14(b)(iv) is liable to be struck down as unconstitutional.
29. Mr.Ajmal Khan, learned Senior counsel as Amicus curiae, argued that Explanations (1) & (2) to Rule 14(b)(iv) of the Rules are contrary to the constitutional mandate. The learned Senior counsel contended that when an accused is honourably acquitted, he is entitled to get appointment as per Explanation (2), however, the Explanation (1) to the Rule deny the right to a person, who has been discharged by a competent Court, which is violative of Articles 14, 16 and 21 of the Constitution. He advanced similar arguments as that of his submissions made before the learned Reference Judge. In support of his contention, the learned senior counsel relied on the decisions The Secretary ... v. District Educational Office And..., reported in 2005 (4) CTC7and Shri Manni Lal v. Shri Parmai Lal and others, reported in (1970) 2 SCC462 It has been further argued with reference to Section 19 of Juvenile Justice (Care and Protection of Children) Act, 2000, and submitted that the decision rendered by the Full Bench in Manikandan's case has not considered their appointment on attaining majority, though the minor, on attaining majority is a different class of person and there could be no stigma attached on him. The learned Amicus curiae argued that Manikandan's case requires to be over-ruled.
30. Mr.K.Chellapandian, learned Additional Advocate-General submitted that it is the bounden duty of the police officers in maintaining peace and tranquility in the society, hence, only persons who do not bear bad antecedents are entitled to seek appointment. Learned Additional Advocate General further argued that though a case ended in acquittal, on the ground that the witness turned hostile, even then there will be stigma against the accused, if it is a serious offence like murder, dacoity or rape, hence, nothing wrong in Rule 14(b)(iv) Explanations (1) & (2) to the Rules.
31. At this juncture, it is relevant to consider the wisdom of jurisprudential thoughts with reference to the concept of equality and the democracy. The former President of United States of America Abraham Lincoln emphatically addressed that democracy is the government of the people, by the people and for the people that shall not vanish from this earth, in his Gettysburg Address, 1863. Rule of law is the foundation and the edifice of any democracy. The important aspect of Rule of law is basically the concept of equality. Though absolute equal is not possible, there shall be utmost equality for the survival of democracy. The State being the employer can set it's own standard in the matter of recruitment of it's own personal and in the case of uniformed services and it can also adopt proper standards so that it does not get into force. However, such standard or policy decision should not take away the fundamental rights guaranteed under the Constitution.
32. The legal concept ".King can do no wrong". has no application in a democratic set up, since no one is above law. As per democracy, every organ and the authority should function according to law and cannot claim exclusive supremacy. Hence, in a democratic setup, the Executive Legislature or the Judiciary shall function only as per the constitutional mandate and as such the constitution is supreme.
33. It is well settled that the Constitution of India is the supreme law of the land and also the touch-stone in deciding the validity of any law, either passed by Parliament, state legislature, ordinance, Government Order, etc. Hence, there shall be no hesitation for this court, while exercising the power of judicial review under Article 226 of the Constitution to declare any service Rule or the amendment thereto as void, if the same takes away or abridges the Fundamental Rights enshrined under Part III of the Constitution, in view of Article 13(2) of the Constitution.
34. The questions to be answered in the reference made to this Larger Bench is to decide the Constitutional validity of the Explanations (1) & (2) to Rule 14(b)(iv) of Tamil Nadu Special Police Subordinate Service Rules that has been upheld by the Full Bench in Manikandan's case. According to the petitioners, the Explanation (1) to the said Rule is against the Fundamental Rights enshrined under Articles 14, 16 and 21 of the Constitution of India and as such, the same ultra vires the Constitution, hence, liable to be declared void and accordingly, the Full Bench decision in Manikandan's case has to be over-ruled.
35. It is well settled that in view of the Constitutional guarantee given under Article 14, the State shall not deny to any person equality before law or equal protection of the laws, within the territory of India. In fact, Article 14 prohibits class legislation, though it permits reasonable classification for the purpose of legislation and it depends on the object of the legislation and what it really seeks to achieve for the same, as held by the Hon'ble Apex Court in K.Thimmappa v. Chairman Central Board of Directors, SBI, reported in AIR2001SC467 In Pathumma v. State of Kerala, reported in AIR1978SC771 the Honourable Supreme Court held that what Article 14 prohibits is the hostile discrimination and not reasonable classification.
36. In K.Thimmappa v. Chairman Central Board of Directors SBI, reported in AIR2001SC467 the Hon'ble Supreme Court has ruled that while Article 14 forbids class legislation, it does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of achieving specific ends. But classification must not be ".arbitrary, artificial and evasive.". It must always rest upon some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. Such classification to be reasonable, as per Article 14, must fulfill the following two conditions : (1) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (2) the differentia must have a rational relation to the object sought to be achieved by the Act.
37. In E.P.Royappa v. State of Tamil Nadu, reported in AIR1974SC555and in Maneka Gandhi v. Union of India, reported in AIR1978SC597 the Hon'ble Supreme Court has given a new dimension to the traditional concept of equality, which was based on reasonable classification and has laid down a new concept of equality. Bhagwati, J., delivering the Judgment on behalf of himself, Chandrachud and Krishna Iyer, JJ, propounded the new concept of equality in the following words - ".Equality is a dynamic concept with many aspects and dimensions and it cannot be cribbed, cabined and confined within traditional and doctrinaire limits. From a positive point of view, equality is antithesis to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belong to the rule of law in a republic, while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and unconstitutional law and is therefore, violative of Article 14"..
38. In Maneka Gandhi v. Union of India, reported in AIR1978SC597 Bhagwati, J again quoted with the approval of the new concept of equality propounded by him in the E.P.Royappa's case as follows : ".....Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which equally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence.".
39. It is also relevant to refer Article 7 of Universal Declaration of Human Rights, which says ".All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination".. Universal Declaration of Human Rights was adopted by the General Assembly of U.N.O on the 10th December 1948, for which India is a member. In view of Article 14 of the Constitution of India, the State shall not deny any person equality before the law or the equal protection of the laws, within the territory of India, which is similar to that of Article 7 of Universal Declaration of Human Rights. Unless there is reasonable classification, no discrimination by any authority could be justified, based on class legislation, as it is against the mandate of Article 14 of the Constitution.
40. In Nair Service Society v. State of Kerala, reported in (2007) 4 SCC1 the Hon'ble Apex Court has held that a statute professing division among citizens, subject to Arts.15 and 16 of the Constitution may be considered to be a suspect legislation. A suspect legislation must pass the test of strict scrutiny, as held by the Supreme Court.
41. It is an admitted fact that in G.O.Ms.No.101, Human (Police-IX) Department, dated 30.01.2003, the Government of Tamil Nadu introduced an amendment to Tamil Nadu Special Police Subordinate Service Rules, 1978 in exercise of the powers conferred under the Tamil Nadu District Police Act, 1859 and Section 9 of the Chennai City Police Act read with the proviso to Article 309 of the Constitution of India.
42. The said Rule 14(b), prior to the amendment containing only clause (i) (ii) & (iii). However, after the amendment and introduction of clause (iv) with Explanations 1 and 2, it reads thus : ".14(b) No person shall be eligible for appointment to the service by direct recruitment unless he satisfies the Appointing Authority,-- (i) ............. (ii) ............. (iii) ............. (iv) That he has not involved in any Criminal Case before police verification.".
43. In order to give an interpretation for the term ".involved in any criminal case"., the following Explanations have been given by way of the impugned amendment to Rule 14(b)(iv) to the Rules: 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.".
44. As per Explanation (2), if there is honourable acquittal, the person would be entitled to claim right for appointment only by participating in the next recruitment, whereas as per Explanation (1), a candidate, 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 and as such, there is a hurdle for him in getting appointment, even in case of discharge recorded by the Court.
45. So far as criminal cases are concerned there are three important stages, if a case is taken on file (i) discharge or framing of charge(s); (ii) trial; and (iii) either acquittal or conviction. When there is no sufficient grounds for proceeding against the accused before framing of charges and commencing the trial, the Sessions Court is empowered to record discharge, as per Section 227 of the Code of Criminal Procedure (herein after referred to as ".the Code".). In a warrant case, triable by Magistrate, similar power is vested with the Magistrate to record acquittal, if he finds that the case registered is groundless for proceeding further against the accused, as per Section 239 of the Code. However, acquittal is entirely different from discharge, while considering the legal aspect. It cannot be disputed that acquittal, either honourable acquittal or other type of acquittal could be possible only after the trial. For proceeding with the trial, charge(s) need to be framed as per Section 228 of the Code, if it is a case triable by Court of Sessions and is a warrant case, triable by Magistrate, as per Section 240 of the Code, the Magistrate has to frame charge(s) based on police report and the documents sent with the same under Section 173 of the Code.
46. However, if no case is made out based on the materials produced by the prosecution, after hearing the accused and the prosecution, the concerned Court comes to the conclusion that there is no sufficient ground for proceeding further against the accused, shall discharge the accused. Hence, a person, who has got discharge in a criminal case, is in a better footing than a person honourably acquitted in a criminal case.
47. Both under Sections 227 and 239 of the Code, the word ".shall". has been employed by the Legislature. However, while recording discharge, the concerned Court has to record reasons for so doing. Therefore, it is crystal clear that a person, who is discharged in a criminal case is in a better position than a person, who has got honourable acquittal in getting public appointment, which cannot be disputed.
48. Learned counsel appearing for the petitioner in W.P.(MD).No.5055 of 2013 argued that there could only be one form of acquittal and according to him, there is no honourable acquittal or acquittal on benefit of doubt. However, it is clear that the Hon'ble Supreme Court, in its wisdom has classified the two categories of acquittal. When there is no evidence to convict an accused or the prosecution failed to prove the alleged guilt, against the accused, based on the evidence and if the case is ended in acquittal, there shall be no stigma attached to the accused, hence such acquittal is coined as honourable acquittal by the Honourable Supreme Court. As there is no stigma attached to the accused in case of honourable acquittal, he is eligible for getting appointment in the Government or Government undertakings. However, as per the Adversarial system of criminal jurisprudence, the alleged guilt has to be proved against the accused by the prosecution, beyond reasonable doubt and the benefit of doubt shall be given in favour of the accused and accordingly, acquittal can be recorded by giving benefit of doubt in favour of the accused, hence, which cannot be treated as honourable acquittal.
49. When an accused is acquitted by giving benefit of doubt, it cannot be said that the acquitted accused is totally an innocent person. However, when an accused is acquitted on the ground that there is no sufficient evidence for conviction or the prosecution has failed to establish the alleged guilt against the accused, the acquittal is considered as honourable acquittal, which cannot be a bar for getting public employment. Hence, it is crystal clear that there could be no stigma attached to the person, who is honourably acquitted, however, when there is acquittal based on benefit of doubt getting public employment cannot be a matter of right. The said classification is based on intelligible differentia, which cannot be construed as unreasonable classification or hostile discrimination, as per Article 16 of the Constitution of India in getting public appointments. Hence, both the classification of acquittal cannot be said as one and the same.
50. In order to decide the Constitutional validity of Rule 14(b)(iv), Explanation (1), the legal interpretations for the terms ".discharge". and ".honourable acquittal". are needed. As discussed earlier, a person who got discharged in a criminal case is in a better footing than a person, who is honourably acquitted. Though there is no classification such as honourable acquittal and the acquittal recorded by giving benefit of doubt, as per the Code of Criminal Procedure, however by way of judicial interpretations, such classifications are highlighted and recognised. In view of Article 141 of the Constitution of India, the aforesaid interpretation given by the Honourable Apex Court comes within the purview of the law declared by the Supreme Court, which is binding on all Courts in the territory of India. So far as the classification ".honourable acquittal". is concerned, the person, who got honourable acquittal is in a better footing than a person acquitted by giving benefit of doubt in his favour, which cannot be disputed, even as per Explanation (2) to Rule 14(b)(iv) of the Rules.
51. As per the Code of Criminal Procedure, it is crystal clear that person, who got discharge is in a better position than a person honourably acquitted. Discharge in criminal case certainly cannot create any stigma against a person discharged of an offence. Hence, comparatively, a person discharged in a criminal case is in a better position than a person, who got honourable acquittal for getting public appointment. However, as per Explanation (1) to Rule 14(b)(iv) of the Rules, a person, who is discharged shall be treated as a person involved in a criminal case and he is not eligible for appointment to the service in the police department as Gr.II police constable. However, as per Explanation (2) of the said Rule, a person, who got honourable acquittal, shall be treated as a person not involved in criminal case and he can claim right for appointment by participating in the next recruitment and hence it was argued as an unjustifiable classification in view of Article 14 of the Constitution.
52. It is argued on behalf of the petitioners that Explanation (1) to Rule 14(b)(iv) is contrary to the mandate of Article 14, as the same is not a reasonable classification, to consider the Explanation (1) of the Rule based on intelligible differentia.
53. As it is a reference made to this Larger Bench, the questions referred to shall be answered, which is pertaining to the Constitutional validity of Rule 14(b)(iv) together with Explanations (1) & (2) attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, to decide whether the law laid down by the Full Bench in Manikandan's case holds the field or it needs to be over-ruled.
54. It cannot be disputed that the aforesaid provision could be declared void, if it takes away or abridges the Fundamental Rights conferred by Part III of the Constitution, since as per Article 13(2) of the Constitution, any law made in contravention of the said class shall, to the extent of the contravention be void.
55. In view of Article 14, the State shall not deny to any person equality before law or the equal protection of the laws, within the territory of India. It is well settled that Article 14 prohibits class legislation and not reasonable classification. As held by the Hon'ble Supreme Court in Pathumma v. State of Kerala, reported in AIR1978SC771 Article 14 prohibits hostile discrimination and not reasonable classification. As per Explanation (1) to Rule 14(b)(iv) of the Rules, it reads that a person who is acquitted or discharged on benefit of doubt shall be treated as a person involved in criminal case under Rule 14(b)(iv) of the Rules. When there is discharge of an accused, there shall be no question of giving benefit of doubt. Giving benefit of doubt arises only when there is acquittal being recorded after the trial, which is not applicable for recording a discharge, either under Section 227 of the Code by a Court of Sessions or under Section 239 of the Code by a Magistrate. Hence, the averments in Explanation (1) stating that person discharged on benefit of doubt is only a total misconception in respect of the legal terms ".discharge". and ".acquittal"..
56. The same Explanation (1) reads further that due to the fact that the complainant turned hostile, in respect of acquittal or discharge, which is incorrect. As per the adversarial system of criminal jurisprudence, an offence is an act against the society, hence the State is the de jure complainant, however, case taken on private complainant is an exception. When the State is the complainant, there is no question of stating that the ".complainant turned hostile".. However, there is a possibility that the defacto-complainant, who has actually given the complaint for registering the case later on could be treated as ".witness turned hostile".. However, Explanation (1) reads that the complainant turned hostile, which needs proper clarification to make it clear that it is only the de facto complainant and not the State being the complaint in general in criminal cases.
57. The vital aspect in respect of Explanation (1) to Rule 14(b)(iv) relates to the violation of the constitutional mandate under Articles 14, 16 and 21 of the Constitution. In view of Article 13 (2) of the Constitution, the State shall not make any law, which takes away or abridges the Fundamental Rights conferred by Part III of the Constitution and any law made in contravention of the said clause shall to the extent of the contravention be void.
58. As per Explanation (2) to Rule 14(b)(iv), a person, who got honourable acquittal is entitled to claim appointment by participating in the next recruitment, however, such right is denied to a person, who is discharged from the case, though he is in a better position without any stigma than a person, who got honourable acquittal, as per Explanation (1) to Rule 14(b)(iv). As Explanation (2) to the said Rule permits any person, who got honourable acquittal, though the Court found that there had been ground for framing of charge against him, based on the material and after framing of charge(s), commencing the trial, however, based on the evidence records honourable acquittal is made, by a Court of Sessions under Section 232 of the Code and under Section 248 by a Magistrate. Whereas while recording discharge, either as per Section 227 of the Code, by Court of Sessions or under Section 239 by a Magistrate, there could be no sufficient ground for proceeding further against the person accused of, based on the materials.
59. Hence, it is crystal clear that permitting a person, who got honourable acquittal for the purpose of getting appointment and denying a person, discharged from a criminal case, as per Explanation (1), treating him as a person involved in a criminal case is totally an erroneous view against criminal law and also not based on reasonable classification, and as such the Explanation (1) to Rule 14(b)(iv) takes away or abridges the Fundamental Rights conferred under Article 14 of the Constitution against the person, who comes under the purview of Explanation (1) to Rule 14(b)(iv) through he got discharged in the criminal case. However, the Full Bench in Manikandan's case has over looked the very vital legal aspect and upheld the said Explanation (1) to Rule 14(b)(iv) of the Rules. Since, the Explanation to Rule 14(b)(iv) takes away or abridges the Fundamental Rights conferred by Part III of the Constitution, the said law made in contravention of the said clause shall to that extent of the said contravention is void, as per Article 13(2) of the Constitution.
60. Article 16 is also similar to that of Article 14, since as per Article 16, there shall be equality of opportunity for all citizens in the matters relating to public employment or appointment to any office under the State. If there is hostile discrimination or unjusticiable classification, not based on intelligible differentia, that would also violate Article 16. Though Article 21 relates to protection of life and personal liberty, the Hon'ble Supreme Court has categorically held in various decisions that right to life, enshrined in Article 21 means something more than survival or animal existence. It would include the right to live with human dignity including all those aspects of life, which would go to make a man's life meaningful, complete and worth living.
61. In Confederation of Ex-Servicemen Associations v. Union of India, reported in (2006) 8 SCC399 it has been held that right to life guaranteed under Article 21 of the Constitution embraces within its sweep not only physical existence but the quality of life. If any statutory provision runs counter to such a right, it must be held to be unconstitutional and ultra vires the Part III of the Constitution. Thus, by way of curtailing the right of getting appointment, arbitrarily, unreasonable and unjustifiable classification has been made under Explanation (1) to Rule 14(b)(iv) of the Rules and it has to be construed, not only against Article 14 but also against Articles 16 and 21 of the Constitution of India, in the light of various decisions rendered by the Hon'ble Apex Court.
62. A candidate, who has been selected by way of written examination and physical fitness test cannot be denied appointment, on the ground that he is involved in a criminal case as per Explanation (1) to Rule 14(b)(iv) of the Rules even though discharge is recorded in his favour. To decide the term ".involvement". in a criminal case, Explanations (1) & (2) to Rule 14(b)(iv) are given by way of a Government Order, which comes under the purview of the term law as per Article 13(3)(a) of the Constitution.
63. The questions to be decided in the reference are not based on any disputed question of fact or mixed disputed question of law and fact, but only on the question of law. It is clear that Explanation (1) to the said Rule is based on a misconception of understanding the legal terms ".discharge". and ".honourable acquittal"., as per the criminal law and also against criminal jurisprudence, which affects the fundamental rights of various eligible youngsters in getting their appointment. The said Explanation (1) to the Rule affects their fundamental rights under Articles 14, 16 and 21 as discussed above, hence Explanation (1) has to be declared void in view of Article 13(2) of the Constitution. In addition to that, as per Article 141 of the Constitution of India, any decision of the Supreme Court is the law declared by the Supreme Court which is binding on all courts, within the territory of India. When there is a decision by the Supreme Court, that cannot be taken as Per Incuriam by any High Courts, either by a single Judge or Larger Bench and similarly it cannot be said that was decided under Article 142 of the Constitution.
64. In Commissioner of Police v. Mehar Singh, reported in (2013) 7SCC685 having considered the expression ".honourable acquittal". in the decision in Inspector General of Police v. S.Samuthiram reported in (2013) 1 SCC598 the Apex Court, in para 25, held as follows :
25. ..It is difficult to define what is meant by the expression ".honourably acquitted".. This Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.".
65. In Inspector General of Police v. S.Samuthiram reported in (2013) 1 SCC598 the Hon'ble Supreme Court, referring various earlier decisions, has held as follows : ".24. The meaning of the expression 'honourable acquittal' came up for consideration before this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal (1994) 1 SCC541 In that case, this Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions 'honourable acquittal', 'acquitted of blame', 'fully exonerated' are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression 'honourably acquitted'. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.".
66. In Ram Kumar v. State of U.P, reported in (2011) 6 CTC440 the Supreme Court held in paragraph 9 thus : ".9... As has been stated in the instructions in the Government Order, dated 28.04.1958, it was the duty of the Senior Superintendent of Police, Ghaziabad, as the Appointing Authority, to satisfy himself on the point as to whether the Appellant was suitable for appointment to the post of a Constable, with reference to the nature of suppression and nature of the Criminal case. Instead of considering whether the Appellant was suitable for appointment to the post of male Constable, the Appointing Authority has mechanically held that his selection was irregular and illegal because the Appellant had furnished an Affidavit stating the facts incorrectly at the time of recruitment.". Ultimately the appeal was allowed, setting aside the order of the single Judge, and the impugned order of the Division Bench therein and the order passed by the Senior Superintendent of Police, Ghaziabad was also quashed by the Honourable Apex Court.
67. It cannot be said that Rule 14(b)(iv) together with Explanations (1) & (2) are not under challenge, when the Reference is directly on the point relates to decide the Constitutional validity of the said Rule 14(b)(iv) together with Explanations (1) & (2) attached thereto and to decide whether the Full Bench decision in Manikandan's case holds the field and to find out whether the same needs to be over-ruled.
68. It is well settled, that when there is a question of fact or mixed question of law and fact, this Larger Bench cannot go into such questions. Here it is purely a question of law, that was raised by way of Reference made before this Larger Bench. Even in the earlier Reference made by Hon'ble Mr.Justice P.Jyothimani (as he then was), the same had been raised in a different form as issues before the Full Bench.
69. A careful reading of the questions raised before the Full Bench would clearly show that the questions referred to earlier is only in respect of deciding the Constitutional validity of Rule 14(b)(iv) together with Explanations (1) & (2) attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 and further, the Full Bench has upheld that the validity of the Rule together with Explanations 1 and 2. In the Reference before this Larger Bench, specifically the Constitutional validity of the said Rule has been raised and therefore, it cannot be said that the validity of Rule 14(b)(iv) Explanations 1 and 2 is not under challenge before this Larger Bench.
70. Another vital legal aspect is that the Full Bench has over-looked the well settled proposition of law in Manikandan's case, whereby dismissed all the writ petitions without remitting back same to the referring Judge, that is also contrary to various decisions rendered by the Honourable Supreme Court. In Kerala State Science & Technology Museum v. Rambal Co, reported in (2006) 6 SCC258 (Page 262, para 8), the Hon'ble Supreme Court has held as follows : ".8. It is fairly well settled that when reference is made on a specific issue either by a learned Singe Judge or Division Bench to a larger Bench, i.e., Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue, which is not the question referred to.".
71. In T.A.Hameed v. M.Viswanathan, reported in (2008) 3 SCC243 (Page 245, para 12), the Hon'ble Apex Court has held thus : ".12... Since, only reference was made to the Full Bench, the Full Bench should have answered the question referrred to it and remitted the metter to the Division Bench for deciding the revision petition on merits.".
72. Similarly in Saquib Abdul Hameed Nachan v. State of Maharashtra, reported in (2010) 9 SCC93(page 102, para 15), the Hon'ble Supreme Court has held as follows : ".15.... Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the answers given by the larger Bench.".
73. It has been categorically held by the Hon'ble Supreme Court that when there is a reference to a Larger Bench, the Larger Bench cannot adjudicate upon an issue, which is not the question referred to and after answering the questions referred to, the matter should be remitted back to the Reference Court for deciding the matters on merits, on the basis of the answers given by the Larger Bench. The aforesaid decisions rendered by the Hon'ble Apex Court would make it clear that the writ petitions could neither be allowed nor be dismissed by the Larger Bench, as the same has to be decided by the Reference Court. Hence, a Full Bench, after answering the questions referred to, could have remitted back the writ petitions and other petitions, to the referring Judge to be disposed of according to law. However, contrary to the dictum laid down by the Hon'ble Supreme Court, it is seen that the Full Bench in Manikandan's case passed the order as follows : ".In view of the above, all the writ petitions fail and they are dismissed. No costs. ".
74. It is clear that the dismissal of the writ petitions by the Full Bench is also contrary to the decisions rendered by the Hon'ble Supreme Court, hence the order passed by the Full Bench, has to be over-ruled on that score also, as the writ petitions have to be decided only by the Reference Court and not by the Full Bench to which the reference was made.
75. It is seen that two issues had been raised before the Full Bench. The first question is whether the acquittal or discharge of a person in a Criminal case on benefit of doubt would amount to a stigma on the life of a person so as to make him ineligible as per Rule 14(b), Explanation (1) of the Tamil Nadu Special Police Subordinate Service Rules?. Hence, it is clear that even the reference made before the Full Bench relates to the Constitutional validity of Explanation (1) to Rule 14(b)(iv) of the Rules.
76. As contended by the learned Additional Advocate-General, offences, which are serious in nature like murder, dacoity or rape are different from petty offences. However, as per Explanation (1), to Rule 14(b)(iv), there is no differential approach to meet the ends of justice, in case of acquittal, even if it relates to ordinary petty offence or minor indiscretions.
77. As per the decision rendered in Sandeep Kumar's case, the Supreme Court held that minor indiscretions committed by youth cannot be treated on par with serious offences. However, the Reference Court has to decide all the petitions on merits and this Larger Bench has to decide the questions raised in this reference and answer for the same, as per law.
78. It is well settled by the Hon'ble Apex Court that when there is a reference to a Larger Bench, the Larger Bench cannot adjudicate upon an issue, which is not a question referred to and it is for the Reference Court to decide the issue on merits on the basis of the answers given by the Larger Bench, hence, after the question being answered in the reference, the matter has to be remitted back to the reference Court for disposal on merits according to law.
79. It is not in dispute that S.L.P.(Civil) Nos.4679-4681 of 2009, relating to W.P.Nos.5525, 6260 and 7832 of 2007, preferred by some of the petitioners in Manikandan's case, were dismissed by the Order of the Honourable Supreme Court as follows: ".No ground is made out for our interference with the impugned judgment. The Special Leave Petitions are dismissed accordingly.".
80. It is well settled that after the dismissal of Special Leave Petitions, the petitioners in Manikandan's case (cited supra) are not entitled to file any review petition before this Court. However, the reference made herein is nothing to do with the dismissal of the Special Leave Petitions in the light of various decisions rendered by the Honourable Apex Court. The questions referred to this Larger Bench is only to decide the Law laid down by the Full Bench in Manikandan's case (cited supra) on the basis, whether it holds the field or needs to be over-ruled. In fact, the reference relates to some other writ petitions for taking the Law laid down by the Full Bench as ratio decedenti . In other words, the first question is to decide the binding nature of the ratio or the Law laid down by the Full Bench in the said case for other cases. It is not a review petition filed by the petitioners in Manikandan's case (cited supra).
81. The second question is whether Rule 14(b)(iv) together with Explanations 1 and 2, attached thereto of the Rules, is constitutionally valid. It was argued that the aforesaid decisions rendered by the Full Bench is against the constitutional mandate and the Law laid down by the Honourable Supreme Court, hence, the same has to be over-ruled. Admittedly, the Law laid down by the Full bench of this Court and the constitutional validity of Rule 14(b)(iv) and the Explanations 1 and 2 of the said Rules have not been decided by the Honourable Apex Court. Hence, there is no legal bar in deciding the questions raised before this Larger Bench.
82. In the decisions in Kunhayammed v. State of Kerala, AIR2000SC2587 K.Rajamouli v. A.V.K.N.Swamy, (2001) 5 SCC37and Khoday Distilleries Ltd., v. Mahadeswara S.S.K.Ltd., (2012) 12 SCC291 it has been made clear that after the dismissal of the Special Leave Petition, the parties cannot prefer any review petition before the High Court. However, there is no bar for the Larger Bench to decide the validity of the Law laid down by the Full Bench of this Court considering various decisions rendered by the Honourable Apex Court. Similarly, there is no bar to decide the constitutionality of Rule 14(b)(iv) together with Explanations 1 and 2, attached thereto of the Rules, since the same has not been decided by the Honourable Apex Court. The dismissal of the Special Leave Petitions cannot create a legal presumption that the law laid down by the Full Bench in Manikandan's case, contrary to the decisions of the Supreme Court, has been approved by the Apex Court.
83. Referring Abbai Maligai Partnership Firm v. K.Santhakumaran, (1998) 7 SCC386and various other decisions, the Honourable Supreme Court in Kunhayammed's case (cited supra) has categorically held as follows: ".A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (1) as barred by time, or (ii) being a defective presentation, (iii)the petitioner having no locus standi to file the petition, (iv)the conduct of the petitioner disentitling him to any indulgence by the Court, (v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by Supreme Court while disposing of such petitions are -'heard and dismissed', 'dismissed', 'dismissed as barred by time' and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply it's mind to the meritworthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say 'dismissed on merits'. Such an order may be passed even ex-part, that is in the absence of opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. Neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order.".
84. In Gangadhara Palo v. Revenue Divisional Officer, (2011) 4 SCC602 the Honourable Supreme Court has held that review would not be maintainable before this Court, after the dismissal of Special Leave Petition. In the reference to this Larger Bench, the doctrine of merger has no application as there is no question of review of the order passed by the Full Bench by the petitioners therein and the questions raised herein do not relate to any review petition.
85. While deciding the constitutional validity of Explanations 1 and 2 to Rule 14(b)(iv) of the Rules, it is relevant to consider the legal terms 'Discharge' and 'honourable acquittal'. When discharge being recorded under Section 227 of the Code of Criminal Procedure by a Court of Sessions or under Section 239 of the Code of Criminal Procedure by a Magistrate, as the case may be, there could be no possibility for giving benefit of doubt in favour of the accused. However, Explanation (1) to Rule 14(b)(iv) of the Rules has been misconceived the term discharge and acquittal stating discharge by giving benefit of doubt. Hence, the term used 'Discharged by giving benefit of doubt' is misconceived and mis-leading on the legal aspect of discharge being recorded, by any Court as per the Criminal Procedure Code.
86. It is well settled that a person, who is discharged from a criminal case, is in a better position than a person honourably acquitted. As per the Code of Criminal Procedure, 1973, if the concerned Court finds that there is no sufficient ground even to proceed against an accused based on the materials placed before the Court, after hearing the accuse and the Public Prosecutor, it shall discharge the accused and record reasons for doing so, as per Section 227 Cr.P.C., if the case relates to a Court of Sessions. Similarly, the Magistrate shall discharge in a case triable by a Magistrate under Section 239 Cr.P.C., if there is no material or prima facie case to proceed against the accused.
87. However, as per Section 228 Cr.P.C., if the Sessions Judge is of the opinion that there is ground for proceeding against the accused that he has committed an offence, charge(s) has to be framed under Section 228 Cr.P.C. Similarly, when the Magistrate is of the opinion that there is ground to proceed against the accused, he has to frame charge(s) under Section 340 Cr.P.C. Hence, honourable acquittal is possible only after framing of charge(s) and after the trial. Therefore, it is crystal clear that a person, who got discharge, in a criminal case, is in a better position than a person, who got honourable acquittal, for getting public appointment.
88. However, though Explanation (2) to Rule 14(b)(iv) of the Rules permits that a person, who got honourable acquittal, eligible to be considered in the next selection, a person, who got discharged, has to be declared as a person involved in a criminal case as such not eligible for appointment as per Explanation 1 to Rule 14(b)(iv). Therefore, it is crystal clear that Explanation (1) is based on the wrong legal notion and it leads to hostile discrimination whereby the right of a person, who got discharged is taken away or abridged by way of arbitrary and unjustifiable hostile discrimination, which is not based on a reasonable classification as required under Article 14 of the Constitution of India and hence Explanation (1) to Rule 14(b)(iv) is clearly violative of Articles 14, 16 and 21 of the Constitution of India. However, the said rule was upheld by the Full Bench in Manikandan's case (cited supra). It cannot be said that the settled proposition of law, laid down by the Honourable Supreme Court in safeguarding Fundamental Rights, could be changed on account of the dismissal of the Special Leave Petition preferred by some of the petitioners in Manikandan's case (cited supra).
89. It is clear that the Full Bench decision in Manikandan's case (cited supra) has to be over-ruled as it has not considered that Explanation 1 to Rule 14 (b) (iv) of Tamil Nadu Special Police Subordinate Service Rules, 1978, ultra vires the Constitution under Articles 14, 16 and 21 and as such the said provision has to be declared unconstitutional in view of Article 13(2) of the Constitution of India as it clearly takes away or abridges the fundamental rights guaranteed under Part III of the Constitution, apart from the misconception of discharge being recorded by giving benefit of doubt in favour of the accused.
90. Similarly, the Honourable Apex Court has categorically held that when there is a reference to decide any legal issue, after answering the questions, the matter has to be remitted back to the reference Court for disposal according to law. However, in Manikandan's case, against the dictum laid down by the Honourable Supreme Court, all the writ petitions were dismissed by the Full Bench itself. The same is also contrary to the decisions of the Honourable Apex Court and which would not be a proper ratio laid down by the Full Bench. Hence, on that score also the Full Bench decision in Manikandan's case needs to be over-ruled on the ground that the decision does not hold the field.
91. In the light of various decisions rendered by the Honourable Supreme Court, the questions referred to this Larger Bench are answered as follows: Answer to question No.I: The law laid down by the Full Bench of this Court, in Manikandan's case (cited supra), upholding the Explanation (1) to Rule 14(b)(iv) of the Rules, has to be over-ruled on the following grounds: (a) That the Full Bench has over-looked the vital legal aspect that the Explanation (1) to Rule 14(b)(iv) of the Rules ultra vires the Constitution, as it is based on a total mis-conception of the legal terms 'Discharge' and 'Acquittal', whereby it takes away and abridges the fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India, sofar as a person comes under Explanation (1) of the said Rule. (b) As per the dictum of the Honourable Supreme Court, after answering the questions referred to, the Full Bench should have remitted back all the petitions to the referring Court to be disposed of on merits, however, the Full Bench itself has dismissed the writ petitions, which is also contrary to catena of decisions rendered by the Honourable Apex Court referred to in this decision. Hence, the law laid down by the Full Bench in Manikandan's case is over-ruled, as it is not a good law and as such, the same does not hold the field. Answer to question No.(II): The Explanation (1) to Rule 14(b)(iv) of the Rules, having force as law, ultra vires the Constitution, since it takes away and abridges the fundamental rights, guaranteed under Articles 14, 16 and 21 of the Constitution of India, as the said Explanation is based on a wrong legal notion that a person discharged from a criminal case is not eligible on the ground that he is involved in the criminal case though permitting a person, who got honourable acquittal, as eligible in view of Explanation (2) of the said Rules. The Explanation (1) has further confusion as it reads that a person, who is acquitted or discharged on benefit of doubt, which is contrary to the criminal jurisprudence prevailing in India since providing benefit of doubt is applicable only for acquittal and not for discharge. As per Explanation (1) to Rule 14(b)(iv) of the Rules, a person, who has got discharge, is in a better position without any stigma, than a person got honourable acquittal, however, he is denied right of appointment, though a person, who honourably acquitted, is eligible to get the public appointment, hence Explanation (1) to the Rule is a hostile discrimination and not a reasonable classification, comparing to the Explanation (2) of the Rule and hence Explanation (1) to Rule 14(b)(iv) of Tamil Nadu Special Police Subordinate Service Rules, 1978, takes away and abridges the fundamental rights guaranteed under Articles 14, 16 and 21 of the Constitution of India and therefore the same is declared as void, as per Clause 2 of Article 13 of the Constitution of India. So far as Explanation (2) to the said Rule is concerned, the same is valid, as found by the Full Bench, on the ground that it is not ultra vires the Constitution of India.
92. All the petitions to the Reference shall be remitted back to the reference Court, the Bench dealing with the petitions to be disposed of on merits according to law, in terms of the answers given in the Reference. (JUSTICE S.TAMILVANAN) 27.02.2014 A.SELVAM, J.
The issue already decided and settled by the Full Bench of this Court and also by subsequent decision rendered by the Hon'ble Apex Court has been resurrected in the form of the present Reference reported in (2013) 6 CTC423[J.Alex Ponseelan Vs. The Director General of Police, Tamil Nadu, Chennai and others]..
2. The petitioners in the Writ Petitions referred to in the reference, have applied for the post of Grade-II Police Constable, in the selection process conducted by the Tamil Nadu Uniformed Services Recruitment Board. The process consisted of written examination and subsequent physical fitness test. The petitioners have been selected and subsequently requisite verifications regarding antecedents of the petitioners have been done through police, which is otherwise called ".Police Verification".. On such police verification, it is found that the petitioners have involved in criminal cases. On the basis of the fact that the petitioners have involved in criminal cases, with the aidance of Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Rules, 1978, the candidatures of the petitioners have been rejected by way of passing separate orders and the said orders are under challenge in the Writ Petitions referred to in the Reference.
3. I have gone through the Order of Hon'ble Justice R.SUDHAKAR and I fully agree with the reasoning contained therein. However, with regard to other aspects raised in the Reference, my views on the Order of Reference are as follows.
4. The learned Referring Judge after hearing elaborate arguments advanced by Mr.M.Ajmal Khan, learned Senior Counsel appointed as Amicus Curiae as well as the arguments of the learned counsel of Writ petitioners and learned Special Government Pleader, has made the Reference, formulating the following questions: (a) Whether the law laid down by the full Bench of this Court in Manikandan Vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, [2008 (2) CTC97 (Full Bench) holds the field or it needs to be overruled?. (b) Whether Rule 14(b)(iv) together with Explanations (i) and (ii) attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?.
5. The Tamil Nadu Special Police Subordinate Service Rules, 1978, Rule 14(b) has been framed with regard to eligibility for appointment to service by recruitment and the same reads as follows:
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.
6. On 30.01.2003, the Tamil Nadu Government have issued G.O.(Ms)No.101, Home (Police IX) Department, by invoking Article 309 of the Indian Constitution and consequently added Clause (iv) together with two explanations and the same reads as follows: (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.".
7. Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules, 1978 deals with physical, mental condition, character, antecedents and status of the applicant and on 30.01.2003, Clause (iv) together with explanations 1 & 2 have been introduced by the Tamil Nadu Government by invoking Article 309 of the Indian Constitution. The newly incorporated Clause (iv) vividly states that an applicant should not be involved in any criminal case before police verification.
8. Explanation (1) can be vivisected as follows with regard to involvement of a person in a criminal case. (a) a person who is acquitted on benefit of doubt (or) (b) discharge on benefit of doubt or (c) due to the fact that the complainant ".turned hostile".. If one of the above said aspects is present, such person shall be treated as involved in a criminal case.
9. As per Explanation (2), it is discernible that a criminal case is pending against a person at the time of police verification and subsequently ended in honourable acquittal or treated as mistake of fact, he shall not be treated as involved in a criminal case and he can claim right for appointment only by way of participating in succeeding recruitment.
10. The vital distinction between Explanation (1) and (2) is that Explanation (1) deals with involvement of a person in a criminal case, in case of acquittal or discharge on benefit of doubt or due to the fact that complainant turned hostile, whereas, explanation (2) deals with a person against whom a criminal case is pending at the time of police verification and subsequently honourably acquitted or treated as mistake of fact and the said person cannot be treated as involved in a criminal case.
11. The learned Referring Judge in the Reference in question has culled out the following dubitations: (a) The Full Bench has held that if a person is acquitted giving benefit of doubt, then he is not eligible for entering into police service. At the same time, if a person is acquitted honourably in the criminal case, then he is eligible for appointment in police service. This is the distinction drawn by the Full Bench. The Explanation (1) to Rule 14(b)(iv) of the Rules also states that if a person is discharged on benefit of doubt or due to the fact that the complainant has turned hostile, even then he is not eligible for appointment in police service. First of all, discharge cannot be on any benefit of doubt. The wordings ".discharged on benefit of doubt". contained in Explanation-1 is contrary to the Code of Criminal Procedure. It is well settled that under the Code of Criminal Procedure, an accused can be discharged if only there are no ground/materials to frame charges. In other words, if there are no materials at all to proceed further, the accused shall be discharged. Thus, there can be no discharge by giving benefit of doubt at all. As per the Full Bench judgment in Manikandan's case, a person, who is discharged because there is no material at all against him, is disqualified to enter into the service; whereas, a person who is acquitted honourably is qualified for appointment. This means, a person, against whom there are materials to frame charges and after framing charges who faces trial gets acquittal, is eligible for appointment; whereas the person who has been discharged as there had been no material at all to frame charges is not qualified. In my considered opinion, this aspect had not been placed before the Full Bench, properly, to decide, when a person who is honourably acquitted is eligible for appointment, there could be no impediment for holding that a person who has been discharged also eligible for appointment. (b) In the same Explanation-1 to Rule 14(b)(iv) of the Rules, it is explained that if a person is acquitted due to the fact that the complainant had ".turned hostile"., then the said person is not eligible for appointment. Whether a person turns hostile or not is not in the hands of the accused. It is the wisdom of the witness. When the witness gives evidence before the court on oath, he is presumed to tell only the truth, whereas, the statement made by him under Section 161 Cr.P.C., which is an unsigned statement, cannot have any authenticity or evidentiary value. Because the said witness has not given evidence in tune with the earlier statement said to have been given by him, he is cross-examined by the prosecution. Similarly, if his evidence goes against the prosecution, there also he is cross-examined by the prosecution. In the Evidence Act, there is no provision to declare a witness as hostile or to enable the witness to turn hostile. What all that contain in Section 154 of the Evidence Act is to cross-examine the witness by the Public Prosecutor, after getting permission from the Court. The accused cannot be, in any manner, held responsible for the witness not supporting the case of the prosecution and therefore the accused cannot be penalised on that score, by disqualifying him from entering into police service. Otherwise, it will be, as though, the accused has to go after the complainant requesting him not to turn hostile and to say some falsehood against him in the court so that he could get honourable acquittal for the purpose of entering into the police service. This aspect was not placed before the Full Bench. (c) Explanation-1 further states that the discharge of accused on the ground that the complainant turned hostile, shall be treated as a person involved in a criminal case. In Criminal Law, there can be no discharge on the ground that the complainant had turned hostile, because, in a case instituted on police report, charges are framed only on the police report and not on any evidence. The term ".complainant"., as referred to in Explanation-I, may be taken as a complainant in a private complaint case. In cases instituted on police reports, there is no complainant at all. Therefore, question of complainant turning hostile in a case instituted on police report is not known to law. Thus, the words ".discharged on benefit of doubt or due to the fact that the complainant ".turned hostile". and acquitted due to the fact that the complainant turned hostile". are all quite contrary to the well known position of criminal law. (d) Above all, assuming that the term ".complainant". refers to the first informant, on whose information FIR is registered, even then the Explanation does not appear to carry any legal meaning. This can be illustrated in the following manner. In a theft case, where there is no eye-witness, the owner of the properties gives a complaint. After some time, the accused is arrested and on whose confession, the stolen articles are recovered. The accused is now prosecuted. The informant (complainant) does not turn hostile. But, witnesses to the confession and recovery turn hostile. Thus, the case ends in acquittal. In this case, can it be said that the accused is not involved in criminal case because, he has been acquitted for the reason that the witnesses, who turned hostile, are not the complainants?. Similarly, the Code of Criminal Procedure permits compounding of certain minor offences. This is done in the larger interest of the society and to bring in cordial relationship between the litigating parties. Compounding is possible if only it is preceded by a compromise between the parties. Thus, if the acquittal is by means of compounding, can it be said that still the said person is disqualified to enter into the police force?.
12. The first and foremost doubt raised by the learned Referring Judge is that in Explanation(1) of Rule 14(b)(iv) it is stated as ".discharge on benefit of doubt".. It is contrary to Code of Criminal Procedure, 1973, wherein it is explicitly stated that an accused can be discharged only if there is no ground or material to frame charge(s). Under the said circumstances, there cannot be any discharge by way of giving benefit of doubt.
13. It is an admitted fact that in Explanation (1) of the said Rule, it is clearly mentioned as ".discharge on benefit of doubt"..
14. The learned Referring Judge has raised the doubt mentioned supra on the basis of the provisions of Sections 227 and 239 of the Code of Criminal Procedure, 1973 and the same read as follows:
227. Discharge-If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 239.When accused shall be discharged.- If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
15. A mere reading of the said sections would clearly show that upon considering the record of the case and the documents submitted therewith, if the concerned Judge comes to a conclusion that there is no sufficient ground for proceeding further, he shall discharge the accused. Likewise, after receipt of police report coupled with documents filed under Section 173 of the said Code, if the concerned Magistrate thinks necessary after giving sufficient opportunity to both accused as well as prosecution and ultimately found that there is no scope for framing charge(s), he shall discharge the accused. To put it short, provisions of Sections 227 and 239 of the said Code can be invoked before framing charge(s) on the basis of available records.
16. Only on the basis of Sections 227 and 239 of the said Code, the learned Referring Judge has observed to the effect that an accused can be discharged only if there is no ground or material to frame charge(s).
17. In Explanation (1) of Rule 14(b)(iv), it is stated that ".a person who is acquitted or discharged on benefit of doubt".. Since the word ".discharge". finds place in Explanation (1) of Rule 14(b)(iv), the learned Referring Judge has raised in the reference that there is no enabling Section in the Code of Criminal Procedure, 1973 to discharge an accused on benefit of doubt.
18. It is true that except Sections 227 and 239 of the said Code, there is no enabling provision to discharge an accused on benefit of doubt.
19. At this juncture, it would be apropos to look into the real meaning of Clause (iv) of Rule 14(b). In Clause (iv) it is stated that ".he has not involved in any criminal case before police verification.". Explanation (1) of Rule 14(b)(iv) states that 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. At this juncture, the Court has to analyse as to whether the words ".discharged on benefit of doubt". mentioned in Explanation (1) of Rule 14(b)(iv) would tantamount to an acquittal.
20. A similar question has been dealt with in the decision reported in 2003 Crl.L.J.949, Calcutta [P.Viswanathan V. Dr.A.K.Burman and another]., wherein the Division Bench has observed that ".discharge may be due to inept investigation and inquiry, however, subsequently upon proper investigation and collection of relevant materials the discharged person can again be prosecuted. The basic intention of the legislature is that one should not be subjected to judicial process or investigation without any foundation. Further it is observed that discharge of an accused does not tantamount to acquittal.". We fully agree with the view expressed by the Division Bench of Calcutta High Court as the pre-trial order is passed in a case of discharge for want of sufficient grounds or if found groundless. In effect, there being no sufficient material.
21. It is true that in Explanation (1) of Rule 14(b)(iv), it is stated that ".discharged on benefit of doubt".. It means that the concerned accused is discharged for want of sufficient grounds or materials and it does not mean that he has been acquitted. The words ".discharged on benefit of doubt". present in Explanation (1) of Rule 14(b)(iv) would mean that the accused has not been acquitted honourably after trial, but discharged pre-trial for want of material. It does not mean that such person has not involved in any criminal case. That is the purport of explanation to Rule 14(b)(iv).
22. Coming to the core of the issue under reference, namely, Explanations to Rule 14(b)(iv), that no person shall be eligible for appointment to the service by direct recruitment, unless he satisfies the Appointing Authority that he has not involved in criminal case before police verification. That is the purport of the Rule. The object is to ensure that persons who involved in criminal cases cannot be appointed in police service and the appointing authority is entitled to look into the antecedents of the probable candidate for appointment as to whether he has involved in any criminal case. The Explanation has been added to explain the real meaning and intendment of the Rule to provide additional support to dominant object of the said Rule to make it meaningful and purposeful. It is not intended to interfere with or change the Rule on any part thereof. But, the intention is to fill-up the gap in order to advance the object of the Rule and it may aid or assist the Court in interpreting the very purport and intendment of the Rule.
23. In S.Sundaram Pillai and others Vs. V.R.Pattabiraman and others, reported in (1985) 1 Supreme Court Cases 591, the Hon'ble Apex Court has observed that ".We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in Interpretion of Statutes while dwelling on various aspects of an Explanation observes as follows: (a) The object of an Explanation is to understand the Act in the light of the explanation. (b) It does not ordinarily enlarge the scope of original section which it explains, but only makes the meaning clear beyond dispute. Sometimes, an Explanation is appended to stress upon a particular thing which ordinarily would not appear clearly from the provisions of the section. The proper function of an Explanation is to make plain or elucidate what is enacted in the substantive provision and not to add or subtract from it. Thus an Explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the original section that it is supposed to explain... The Explanation must be interpreted according to its own tenor; that it is meant to explain and not vice versa.".
24. In the above stated case, object of Explanation has been crystallised in the following manner:
53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is-- (a) to explain the meaning and intendment of the Act itself, (b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.".
25. In the above decision, it is stated that the issuance of two months notice by the landlord for payment rent would be a conclusive proof of the default being wilful unless the tenant proves his incapability of paying the rent due to unavoidable circumstances. It was held to be an enabling provision for the landlord. But, at the same time, the Supreme Court agreed with the view taken by our High Court in N.Ramaswami Reddiar v. S.N.Periamuthu Nadar [(1980) 93 Mad LW577 where a learned Single Judge has held that Explanation to the proviso to Section 10(2) of the Act indicates that it is not exhaustive of all cases of wilful default, but specifies only one instance where the default should be construed as wilful. The learned Single Judge has held as follows: ".A reading of the Explanation indicates that it is not exhaustive of all cases of wilful default, but it specifies only one instance where the default should be construed as wilful. If a tenant does not pay the rents at all for a considerable time and the landlord files a petition for an order of eviction on the basis that the tenant had committed wilful default without issuing any notice, then, in the absence of any other explanation by the tenant, the default should be construed as wilful, in spite of the fact that the landlord had not chosen to issue a notice to the tenant claiming the rents. In this view, I hold that counsel for the petitioner cannot be of any assistance to him.".
26. As far as the present case is concerned, on a reading of the interpretation of an explanation to a particular rule is concerned, it is clear that it can only explain the meaning and intendment of the Rule and it can provide an additional support to the dominant object of the Rule in order to make it meaningful and purposeful and it is ensured that no one, involved in a criminal case is allowed to enter into the police service.
27. From a close reading of the decision rendered by the Hon'ble Apex Court, it is made clear that Explanation should be read inconsonance with the statutory provision and Explanation is not a substantive provision.
28. In the instant case, in Clause (iv) of Rule 14(b) it has been clearly stated that ".he has not involved in any criminal case before police verification.". The words ".discharged on benefit of doubt". would not militate Clause (iv) of Rule 14(b). Further, Rule 14(b) (iv) and Explanation (1) are not mutually incongruous, except the words mentioned as ".discharged on benefit of doubt". and the same do not affect the real meaning as well as intention and purpose of Clause (iv) of Rule 14(b).
29. In view of the discussion made earlier, the first and foremost doubt that emerged in the mind of the learned Referring Judge is totally incorrect.
30. The second and third doubts raised by the learned Referring Judge are that in Explanation (1) of Rule 14(b)(iv) the words ".complainant turned hostile". are found place and if a complainant has turned hostile, it is not a mistake on the part of the concerned accused and therefore, under the said circumstances, the accused should not be penalised and further in the Indian Evidence Act, 1872 no provision is available to declare a witness as hostile and further in Code of Criminal Procedure, 1973, complainant means a person who lodge a private complaint and in cases instituted on the basis of police reports, there is no complainant and therefore, the words ".complainant turned hostile". have been erroneously mentioned in Explanation (1) of Rule 14(b)(iv).
31. The sum and substance of the second and third doubts raised by the learned Referring Judge is that in police cases, question of complainant does not arise and the term complainant is available only in case of private complaint and therefore, the words ".complainant turned hostile". mentioned in Explanation (1) of Rule 14(b)(iv) are not legally correct.
32. It is an archaic principle of law that in a criminal case, the concerned police have used to set the law in motion only on the basis of the First Information Report given under Section 154 of the Code of Criminal Procedure, 1973. In that Section, the word ".Complainant". is not found place. As pointed out by the learned Referring Judge, the word ".complainant". finds place in section 2(d) and also in Section 200 of the said Code.
33. At this juncture a relevant question arises as to whether the person who gives First Information Report under Section 154 of the said Code, can also be treated/called as a ".complainant". in common parlance.
34. As pointed out earlier, in Section 154 of the said Code, the word ".complainant". does not find place. At this juncture, it would be condign to look into the real meaning of ".complainant". with the aidance of ".Black's Law Dictionary"., wherein two categories have been mentioned. The first one is that ".the party who brings a legal complaint against another".. The second one is ".a person who, under oath, signs a statement (called a ".complaint".) establishing reasonable grounds to believe that some named person has committed a crime.". Since first category deals with a person who brings a legal complaint can also be called as a complainant, there is no incertitude in coming to a conclusion that the person who lodged First Information Report under Section 154 can also be called as a complainant in common parlance. Under the said circumstances, the second and third doubts created by the learned Referring Judge with regard to word ".complainant". employed in Explanation (1) of Rule 14(b)(iv) are also incorrect and further in Explanation (1), the words mentioned as ".complainant turned hostile". are only with regard to person who lodged First Information Report under Section 154 of the Code of Criminal Procedure, 1973.
35. The learned Referring Judge has raised a query with regard to meaning of ".involved in a criminal case". by way of acciting two examples. In the first example it is stated that if there is no eye witness in respect of theft of properties, owner of the same has given a complaint, the concerned accused has been arrested, on the basis of confession, properties involved have been recovered, informant/complainant has not become a hostile witness, but witnesses with regard to confession of the concerned accused, have turned hostile and consequently, the concerned accused has been acquitted. Under the said circumstances, whether the concerned accused can be treated that he has not involved in a criminal case. The second example is with regard to compounding of offence and consequently acquitted the concerned accused. Both the examples accited by the learned Referring Judge would come within the purview of Explanation (1) of Rule 14(b)(iv). Simply because, the accused has been acquitted on the basis of circumstances mentioned in the examples, it cannot be stated that he has not involved in a criminal case. In fact, in Explanation (1) of Rule 14(b)(iv), the opening words are ".a person who is acquitted".. Therefore, it is quite clear that the examples accited by the learned Referring Judge would not create any doubt with regard to Explanation (1) of Rule 14(b)(iv).
36. The learned Referring Judge has placed reliance upon the following decisions for making the Reference in question. (a) In Ram Kumar Vs. State of U.P. & Others - 2011 (6) CTC440 the Hon'ble Apex Court has held that ".appointing authority has to satisfy himself on point as to whether the appellant was suitable for appointment to the post of Constable, with reference to nature of suppression and nature of criminal cases.". (b) In Jainendra Singh Vs. State of Uttar Pradesh through Principal Secretary, Home and others - (2012) 8 Supreme Court Cases 748]., the Hon'ble Apex Court has held that ".there is a deliberate suppression of facts by candidates/appointees in respect of involvement in criminal cases, since divergent opinions are in existence, matter has been referred to Larger Bench. Hence, the issue cannot be urged for the present. (c) In Commissioner of Police and others Vs. Sandeep Kumar - (2011) 4 MLJ1006(SC), the Hon'ble Apex Court has held that ".minor indiscretions by youth requires to be condoned. Lenient view needs to be taken in such matters. The later view of the Hon'ble Apex Court in Mehar Singh's case reported in (2013) 7 SCC685holds the field even as on the date of reference. (d) In W.P.No.2068 of 2013 (K.Sathyaseelan Vs. The Tamilnadu Uniformed Services Recruitment Board, rep.by its Member Secretary), the learned Single Judge of this Court has dealt with a case of suppression of facts. In paragraph- 10, it is observed that ".therefore, it has to be seen in the context of the above judgments, whether the petitioner's not mentioning in the attestation form is so serious that he should be denied an employment?. Certainly, the case of the petitioner do not come under Rule 14(b)(iv) as Explanation-1 will not apply since the wife herself, who was the defacto complainant did not support the complaint. Mere suppression of the information by itself will not result in the petitioner being denied employment as held by the Supreme Court in the decisions cited supra.".
37. It has already been pointed out that in case of suppression of facts, the matter has been referred to Larger Bench vide (2012) 8 Supreme Court Cases 748. Therefore, the decision given in W.P.No.2068 of 2013 is inapplicable to the issue under consideration. (e) In W.A.No.1231 of 2009 (K.Sathyanarayanan Vs. The State of Tamil Nadu rep. by Secretary to Government, Home (Police II) Department), the Division Bench of this Court has dealt with a case comes under Explanation (2) of Rule 14(b)(iv) and ultimately observed that ".in view of the matter, instead of directing the respondents to permit the appellant for his appointment at the time of next selection, direct the respondents to appoint the petitioner in any one of the vacancies which are available at present. The above decision is in respect of Explanation (2) of Rule 14(b)(iv) and it is not an issue decided by the Full Bench in Manikandan's case, hence irrelevant. (f) In M.Vijaya Baskar Vs. The Superintendent of Police, Dharmapuri & another - CDJ2013MHC1921 the learned Single Judge of this Court has dealt with various Writ Petitions and most of the Writ Petitions are related to mistake of fact and few of them are related to acquittal. After having elaborate discussion, the learned Single Judge has given a direction to the concerned Authorities to reconsider the cases of the petitioners, who involved in criminal cases. The issue stands covered by the Full Bench decision, against which, Special Leave to Appeal (Civil) Nos.4679 - 4681 of 2009, in so far as W.P.Nos.5525, 6260 and 7832 of 2007 filed, have been dismissed on 23.03.2012 holding as follows: ".No ground is made out for our interference with the impugned judgment. The Special Leave Petitions are dismissed accordingly.". (g) In M.Mahendran, Thiruvarur District Vs. Superintendent of Police, Thiruvarur District and another - (2013) 6 MLJ, the learned Single Judge of this court has dealt with a case of honourable acquittal and the same would clearly come within the purview of Explanation (2) of Rule 14(b)(iv). (h) In W.P.Nos.1145, 5190 of 2010, 1525 of 2011 & 10539, 16858 of 2012 - C.Vijayaraja Vs. The Director General of Police, Mylapore, Chennai and others), the learned Single Judge of this Court has dealt with suppression of material facts, wherein also it has been clearly stated that with regard to suppression of material facts, a reference has been made by the Hon'ble Supreme Court to a Larger Bench. Hence it is irrelevant for the present reference. (i) In Pawan Kumar Vs. State of Haryana and another - AIR1996Supreme Court 3300, the Hon'ble Apex Court has dealt with minor offences, wherein fine amount has alone been imposed. Under the said circumstances in paragraph-14, it observed as follows: ".Before concluding this judgment we hereby draw attention of the Parliament to step in and perceive the large many cases which per law and public policy are tried summarily, involving thousands and thousands of people throughout the country appearing before summary Courts and paying small amounts of fine, more often than not, as a measure of plea-bargaining. Foremost among them being traffic, municipal and other petty offences under the Indian Penal Code, mostly committed by the young and/or the inexperienced, The cruel result of a conviction of that kind and a fine of payment of a paltry sum on plea- bargaining is the end of career, future or present, as the case may be, of that young and/or inexperienced person, putting a blast to his life and his dreams. Life is too precious to be staked over a petty incident like this. Immediate remedial measures are, therefore, necessary in raising the toleration limits with regard to petty offences especially when tried summarily. Provision need to be made that punishment of fine up to a certain limit, say up to Rs.2,000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in Government service. This can brook no delay whatsoever. From the observation made by the Hon'ble Apex Court, it is discernible that ultimate power vests with the Government to frame appropriate Rules or Regulations. (j) In Govt. of NCT of Delhi & Anr. Vs. Robin Singh - W.P.(C)No.2068 of 2010 the Hon'ble Delhi High Court has observed that ".every wrongful information is not deception, when a person gives wrong information under a bona fide belief that he is right is not guilty of deception.". Even at the risk of repetition, it would be necessary to say that the said aspect has been referred to Larger Bench of the Hon'ble Supreme Court. (k) In M.Senthil Kumar Vs. The Director General of Police, Chennai-4 & another - W.P(MD)No.3130 of 2009, the learned Single Judge of this Court has held that ".if a person has been dealt with under Juvenile Justice Act, as per Section 19 of the said Act, he cannot be considered as disqualified. (l) In T.Sathishkumar Vs. The Director General of Police - W.A(MD)No.718 of 2010]. the Division Bench of this Court has dealt with a person who is said to have committed offences as juvenile and ultimately found that the case of the petitioner would not come within the purview of Explanations of Rule 14(b)(iv). (m) In the Secretary, Vallalar Gurukulam higher Secondary School, Vadalur, Cuddalore District Vs. District Educational Officer, Cuddalore, Cuddalore district and another - 2005 (4) CTC7 the Division Bench of this Court has held that ".Judgment in criminal case would operate retrospectively and employee is entitled for reinstatement. (n) In Shri Manni Lal Vs. Shri Parmai Lal and others - 1970 (2) Supreme Court Cases 462, the Hon'ble Apex Court has held that ".Judgment of a criminal court is having retrospective effect.". (o). In Central Board of Dawoodi Bohra Community and another Vs. State of Maharashtra and another - (2005) 2 Supreme Court Cases 673]., the Hon'ble Apex Court has culled out the circumstances under which a reference can be made to a Larger Bench.
38. As stated in some places, the cases dealt with by this court after Manikandan's case, would not come within the contour of Explanation (1) of Rule 14(b)(iv). Further in these Judgments it is not stated that the law laid down in Manikandan's Case, is erroneous.
39. On the basis of the doubts mentioned supra, coupled with the decisions referred to earlier, the Reference in question has been made.
40. The Hon'ble Chief Justice of this Court after considering the reference in question has constituted the present Larger Bench by way of passing the order dated 03.12.2013, wherein the Larger Bench has been directed to decide the following questions: (a) Whether the law laid down by the Full Bench of this Court in Manikandan Vs. Chairman, Tamil Nadu Uniformed Services Recruitment Board, - 2008 (2) CTC97 holds field or it needs to be overruled?. (b) Whether Rule 14(b)(iv) together with explanation (1) and (2) attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?.
41. The learned counsel appearing for the petitioner in WP(MD)No.8345 of 2011 has advanced his argument on the basis of the decision rendered in Commissioner of Police and others Vs. Sandeep Kumar - (2011) 4 MLJ1006(SC).
42. The learned counsel appearing for the writ petitioners in WP(MD)Nos.13148 and 13149 of 2012 has advanced his argument with regard to minor offences and taken shelter under the decision rendered in Commissioner of Police and others Vs. Sandeep Kumar - 2011 4 MLJ1006(SC). Further he has advanced his argument on the basis of Pawan Kumar's case reported in AIR1996Supreme Court 3300 [Pawan Kumar Vs. State of Haryana and another]..
43. The learned counsel appearing for the petitioner in WP(MD)No.85 of 2013 has not made appearance.
44. The learned counsel appearing for the petitioner in WP(MD)No.3287 of 2013 has contended that the Judgment of the Full Bench rendered in Manikandan's case is liable to be overruled, since it has not considered Article 20(3) of the Constitution of India.
45. The learned counsel appearing for the petitioner in WP(MD)No.5055 of 2013 has contended that once an accused has been acquitted in a criminal trial, no stigma can be attached against him. Further, in Manikandan's case, distinction has not been made between acquittal and honourable acquittal. Further, discharge can be done before framing of charge, if there is no prima facie material to proceed further. Under the said circumstances, no stigma can be imposed against the accused concerned.
46. The learned counsel appearing for the writ petitioner in WP(MD)Nos.5717 of 2013 has contended that the petitioner is not covered under order of reference.
47. The learned counsel appearing for the petitioners in WP(MD)Nos.6799 & 6800 of 2013 and WP(MD)No.9861 of 2013 advanced similar argument as advanced by the learned counsel appearing for the writ petitioner in WP(MD)No.5717 of 2013.
48. WP(MD)Nos.7211, 7813, 7838 and 9398 of 2013 are related to pending criminal cases at the time of police verification and subsequently acquitted.
49. In WP(MD)No.11794 representation has not been made.
50. WP(MD)No.16635 of 2013 is related to pending investigation at the time of police verification and subsequently honourably acquitted. (Explanation 2) of Rule 14(b)(iv).
51. The learned counsel appearing for the review petitioner in Rev.Appl(MD)No.71 of 2013 has contended that after pronouncing Judgment by the concerned Court, police have no power to scrutinise the same and decide its merits. Under the said circumstances, Explanation (1) attached to Rule 14(b)(iv) is liable to be struck down.
52. The learned Senior Counsel, amicus curiae, has advanced similar argument as advanced before the learned Referring Judge. However, he has pointed out that he has not touched Rule 14(b) and his grievance is only with regard to Clause (iv) along with Explanations 1 and 2 of Rule 14(b). He also relied upon the decisions reported in 2005 (4) CTC7[the Secretary, Vallalar Gurukulam higher Secondary School, Vadalur, Cuddalore District Vs. District Educational Officer, Cuddalore, Cuddalore district and another]. and 1970 (2) Supreme Court Cases 462 [Shri Manni Lal Vs. Shri Parmai Lal and others].. Further he has quoted section 19 of the Juvenile Justice (Care and Protection of Children) Act, 2000 and ultimately contended that the Judgment rendered by Full Bench in Manikandan's case, requires to be relooked.
53. The learned Additional Advocate General has advanced his argument in support of Rule 14(b) (iv) Explanation (1). Further he has stressed that the bounden duty of the police force is to maintain peace and tranquility in the society. Under the said circumstances, such persons who do not bear bad antecedents are entitled to seek appointment.
54. The learned counsel Mr.K.K.Ramakrishnan, a member of the Bar has himself intervened and submitted his argument in support of Rule 14(b) (iv) and its Explanations.
55. The issue of benefit under Juvenile Justice (Care and Protection of Children) Act, 2000 is not an issue raised in any one of the writ petitions canvassed before the Full Bench when the Rules have been challenged. It cannot be alone by way of the present reference which amounts to review of the Full Bench decision and subsequent dismissal of Special Leave Petitions.
56. Further in Shri Manni Lal Vs. Shri Parmai Lal and others - 1970 (2) Supreme Court Cases 462 the Hon'ble Apex Court has held that ".Judgment of a criminal Court is having retrospective effect.".
57. From the cumulative analyse of the arguments advanced by the learned counsel appearing for the petitioners mentioned supra, this Bench is of a considered view that the arguments advanced by them are not at all sufficient either to transform or to chisel Rule 14(b)(iv) and its Explanations.
58. The crux of the reference is as to whether Manikandan's case still holds field or it needs to be overruled or is constitutionally valid?.
59. Before excogitating further, even at the risk of jarring repetition, this Bench would like to express that the decisions rendered by this court in Manikandan's case, on Rule 14(b)(iv) and its Explanations, has been challenged in Special Leave to Appeal (Civil) Nos.4679 - 4681 of 2009, in so far as W.P.Nos.5525, 6260 and 7832 of 2007 before the Hon'ble Apex court and the same have been dismissed in limine by way of saying that there is no merit.
60. For further analysing the questions engendered in the reference, it would be apropos to look into the following decisions:
61. In Veeramani and another Vs. State of Tamil Nadu, rep.by its Secretary to Government, Home (Pol IX) Department, Chennai and others - (2007) 3 MLJ676 the Hon'ble Single Judge of this Court has upheld constitutional validity of Explanation (1) of Rule 14(b)(iv).
62. The learned Single Judge has observed that ".a Government servant whether in service or before entering into service or during his post retirement, will be controlled by similar (conduct) Rules. Further the learned Single Judge has observed that ".the State also being an employer can set its own standards in the matter of recruitment of its own personnel and in the case of Uniformed Services, it must apply rigourous standard so that all and sundry does not get into the force"..
63. In fact, the Hon'ble single Judge has elaborately dealt with powers of a State, in the matter of recruitment, especially in Uniformed Services and further, constitutional validity of Rule 14(b)(iv) has been upheld by the learned Single Judge.
64. In fact, the Judgment rendered by the learned Single Judge in Veeramani's case, has not been appealed as observed by the Full Bench in Manikandan's case.
65. In State of Punjab Vs. Baldev Singh - (1999) 6 Supreme Court Cases 172, the Hon'ble Larger Bench of Apex Court has observed that ".there is indeed a need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the Investigating authority is curbed.".
66. In Southern Railway Officers Association and another Vs. Union of India and others - (2009) 9 Supreme Court Cases 24, the Hon'ble Apex Court has held that ".the acquittal in a criminal case is not a ground for interfering with the punishment imposed by disciplinary authority.".
67. In Mallikarjuna Rao and others Vs. State of Andhra Pradesh and others - (1990) 2 Supreme Court Cases 707, the Hon'ble Apex Court has held that ".it is neither legal nor proper for the High Courts or Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution.".
68. The Order of Reference has been passed on 07.11.2013. At the time of passing order of reference, the decision reported in (2013) 7 Supreme Court Cases 685 [Commissioner of Police, New Delhi and another Vs. Mehar Singh]. is in force. The Hon'ble Apex Court has rendered the decision referred to supra on 2nd July 2013. But unfortunately, the same has not been brought to the notice of the learned Referring Judge either by the learned amicus curiae or by the learned Special Government Pleader who made appearance for respondents. This in my opinion, has resulted in the mind of learned Referring Judge to embark on the concluded issue afresh.
69. For better appreciation of the questions posed in the Reference, this Bench is bound to follow the dictum laid down in the decision referred to supra.
70. The Hon'ble Apex Court has dealt with similar matters and after having elaborate discussion has held that ".acquittal/discharge in criminal case especially in serious cases/those involving grave moral turpitude and undesirability of such persons in Government service/disciplined forces. Nature of acquittal is a necessary consideration i.e., whether acquittal is on technical ground/not honourable. Generally as a rule candidates whose acquittal is not honourable are not suitable for Government service and are to be avoided.". In fact, the Hon'ble Apex Court has dealt with two Civil Appeal Nos.4842 and 4965 of 2013.
71. The respondent by name Mehar Singh in Civil Appeal No.4842 of 2013 has faced a criminal trial for the offences under Sections 323, 341, 427 and 147 of the Indian Penal Code and the trial Court has acquitted him on the ground that witnesses turned hostile and subsequently he applied for the post of constable by way of disclosing his involvement in criminal case and subsequent acquittal, due to compromise and ultimately he has been selected. But during character and antecedent verification, his involvement in criminal case and his acquittal is found and thereafter, the Screening Committee has not recommended his name for appointment to the post of Constable.
72. The respondent in Civil Appeal No.4965 of 2013 by name Shani Kumar has involved in a criminal case for the offences under Sections 307, 504 and 506 of the Indian Penal Code. On 14.05.2010 he has been acquitted in the said case by way of giving benefit of doubt and subsequently on 03.03.2011 a show case notice has been issued to him as to why his candidatures to the post of Constable (Executive) (Male) should not be cancelled.
73. In both cases, the Hon'ble Apex Court has upheld the cancellation of candidatures of the respondents on the ground of involvement in criminal cases.
74. It has already been pointed out that the Reference in question has been made on the basis of the doubts engendered by the learned Referring Judge. The learned Referring Judge has also given two examples. It is not an adulation to say that the dictum laid down by the Hon'ble Supreme Court in Mehar Singh's case reported in (2013) 7 Supreme Court Cases 685 is a befitting answer to the examples raised by the learned Referring Judge. But the learned Referring Judge's attention has not been drawn to the decision rendered in (2013) 7 SCC685 75. As adverted to earlier, the entire argument put forth on the side of the petitioners is that Rule 14(b)(iv) and its Explanations are violative of Article 20(3) of the Constitution of India, wherein it is stated that ".no person accused of any offence shall be compelled to be a witness against himself.".
76. It is a settled principle of law that Court cannot compel an accused to give evidence and if he desires to examine himself, he can examine. Explanations (1) and (2) of Rule 14(b) (iv) are related to involvement of a person in criminal case. Therefore, Article 20(3) of the Indian Constitution has no relevance as the person concerned is not facing a trial to raise such a plea. Here is a case of employment. Further, with regard to Articles 14 and 16 of the Indian Constitution, the learned Full Bench (Manikandan's case) has elaborately dealt with and ultimately negatived the contention put forth on the side of the petitioners therein. The said decision has been accepted by the Hon'ble Apex Court and the petitions for Special Leave have been dismissed.
77. The first and foremost question raised in the reference is as to whether the law laid down by the Full Bench of this Court in Manikandan and others Vs. The Chairman, Tamil Nadu Uniformed Services Recruitment Board, Chennai and others - 2008 (2) CTC97 holds field or it has to be overruled and the second question is as to whether Rule 14(b)(iv) and Explanations 1 & 2 attached thereto of the Tamil Nadu Special Police Subordinate Service Rules, 1978 is constitutionally valid?.
78. The law laid down in Manikandan's case has been challenged in Special Leave to Appeal (Civil) Nos.4679 - 4681 of 2009, in so far as W.P.Nos.5525, 6260 and 7832 of 2007 before the Hon'ble Apex Court and the same have been dismissed, since there is no merit. Even in the subsequent decisions rendered by this Court as well Hon'ble Apex Court, no deviations have taken from the law laid down in Manikandan's case.
79. As pointed out earlier, Rule 14(b)(iv) and Explanations 1 and 2 have been introduced by the Tamil Nadu Government on 30.01.2003 by invoking Article 309 of the Indian Constitution. It is not the contention of the petitioners that the Tamil Nadu Government have no power to frame such Rule together with Explanations. Only for the purpose of making proper recruitment in uniformed services, Clause IV and Explanations 1 and 2 have been introduced.
80. At this juncture, it is apposite to look into paragraph-35 of the Judgment rendered in (2013) 7 Supreme Court Cases 685 [Commissioner of Police, New Delhi and another Vs. Mehar Singh]., wherein it is stated like thus: ".The police force is a disciplined force. It shoulders the great responsibility of maintaining law and order and public order in the society. People repose great faith and confidence in it. It must be worthy of that confidence. A candidate wishing to join the police force must be a person of utmost rectitude. He must have impeccable character and integrity. A person having criminal antecedents will not fit in this category. Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force.".
81. A cursory look of the observation made by the Hon'ble Apex Court would clearly go to show that police force is a disciplined force, wherein a person who is having atmost rectitude is eligible for recruitment. The person who has involved in criminal case is totally unfit for such recruitment.
82. Since the observation made by the Hon'ble Apex Court in Mehar Singh's case is similar to the object of Explanations 1 and 2 of Rule 14(b)(iv) of the Tamil Nadu Special Police Subordinate Service Rules, 1978, it is needless to say that the same should be held as intra vires. Further in view of the discussion made earlier, the law laid down in Manikandan's case reported in 2008 (2) CTC97rendered by the Full Bench of this Court, still holds field and the same need not be overruled as the Special Leave Petitions have been dismissed holding as follows: ".No ground is made out for our interference with the impugned judgment. The Special Leave Petitions are dismissed accordingly.".
83. It has become shunless to say that Clause IV of Rule 14(b) together with Explanations 1 and 2 have been introduced only for the purpose of recruiting persons who are having rectitude and not persons involved in criminal case(s). The Government of Tamil Nadu have introduced the same with atmost summum bonum for the purpose of maintaining a disciplined police force. Since Clause IV of Rule 14(b) and its Explanations 1 and 2 have been introduced with atmost good faith, nobody is entitled to have a furtive look upon it.
84. It has already been discussed elaborately and decided that the doubts raised by the learned Referring Judge for making the present Reference are not legally sustainable and further for the examples given by the learned Referring Judge, the decision rendered in Mehar Singh's case reported in (2013) 7 Supreme Court Cases 685 by the Hon'ble Apex Court, stands as a befitting answer, and therefore, there is no merit in the Reference in question and answered the same accordingly and no other points have been raised on either side. (A.SELVAM, J) gb/sasi/nbj/krk/mj To 1.The Director General of Police, Tamil Nadu, Chennai. 2.The Director, Tamil Nadu Uniformed Services Recruitment Board, Anna Salai, Chennai. 3.The Superintendent of Police, Thoothukudi District, Thoothukudi. 4.The Tamil Nadu State Law Commission Chennai.