Ajit Kumar Vs. Commissioner of Police and ors. - Court Judgment

Excerpt:
$~21 * in the high court of delhi at new delhi date of decision: april 18, 2013 + w.p.(c) 2372/2010 w.p.(c) 2372/2010 ajit kumar represented by: ..... petitioner mr. nitin thakur, advocate versus comissioner of police and ors ..... respondents represented by: ms. ruchi sindhwani with ms. bandana shukla, advocates coram: hon'ble mr. justice pradeep nandrajog hon'ble mr. justice v.kameswar rao v.kameswar rao, j.(oral) 1. the challenge in this writ petition is to the order dated january 11, 2008 passed by the central administrative tribunal, principal bench, new delhi (the tribunal) in oa no.1498/2008 whereby the plea of the petitioner for a direction to the respondents herein, to appoint him as constable (executive) male in delhi police was rejected.2. an fir no.78/2002 was registered in which apart from two others, the petitioner was named as an accused for offences committed under section 308/341/34 ipc, p.s. vasant vihar. the same culminated in an order of guilt. the petitioner was released on probation and for which he furnished a bond to keep good behaviour for two years. w p (c) 2372/2010 1 o”3. pursuant to an advertisement inviting applications to fill up posts of constable executive in delhi police, the petitioner applied and was successful at the selection process but found offer of appointment not coming his way because the commissioner of police took the view that in view of his being guilty of having committed an offence punishable under section 308 ipc the petitioner was unfit to be appointed as a constable in delhi police.4. but before taking the final decision the petitioner was put to notice on april 10, 2007 and his response was received on april 27, 2007 in which the petitioner took the stand that as per law he being released on probation would require him not to be visited with any civil consequences. the response was found to be unconvincing vide order dated may 17, 2007 it was informed to the petitioner that his candidature was cancelled. this led to the filing of oa no.1498/2008 in which petitioner challenged the order dated may 17, 2007 as also the show cause notice dated april 10, 2007.5. vide the impugned dismissing oa no.1498/2008 the tribunal has concluded as under:although section 12 of the probation of offenders act, refers to a situation where a presumption is presented, we do not think it is relevant for us to hold that the past period of life of a person thereby automatically is to be wished away. so long as there is a consideration of factors, a decision by the administrative authority about the desirability of a person to be introduced into service normally vests in themselves. in government service, mostly the weeding exercises can be done only till the time of appointment and once a person becomes member of a w p (c) 2372/2010 2 of 12 service even if undesirably, procedural formalities may pose problems to get rid of the person. therefore, adoption of strict standards, after a holistic view of the situation may not be objectionable.6. contention of the petitioner is that be released on probation washes away the finding of culpability for having committed an offence punishable under section 308 ipc. per contra ms.ruchi sindhwani, learned counsel appearing for the respondents submits that release of the petitioner would not wash away the wrong conduct of the petitioner. it is expected that a person appointed in government service must be above board and strict standards have to be adopted, as since the appointment is in a police force. she relies upon the following judgments air 199.sc 78.harichand v. director of school education, 2010 (8) scale sushil kumar singhal v. the regional manager, punjab national bank, 2007 ix ad (delhi) 241 satraj singh v. union of india & ors., 177(2011) delhi law times 471 (db) gokul ram meena v. govt. of nct of delhi & others .7. it is seen that even though the tribunal referred to section 12 of the offenders act, it did not deliberate much on it and decided the case more on facts. no doubt the facts become relevant, when the appointment is in a police force. the larger question which falls for our consideration in this case, is whether petitioner having been released under section 4 of the offenders act, does not suffer disqualification because of section 12 of the said act. we feel that the issue is no more res integra having decided by the supreme court in a plethora of judgments which are also followed by w p (c) 2372/2010 3 of 12 this court. in the opinion reported as 2007 (ix) ad (delhi) 241 satraj singh v. union of india & ors. a division bench held as under:10. union of india v. bakshi ram (1990) 2 scc 42.was an appeal from a decision of the rajasthan high court, wherein the rajasthan high court, relying upon section 12 of the act had held that release on probation was the effect of removing the disqualification attaching to the employees conviction under section 10(n) of crpf act. the honble supreme court reversed the said decision of the high court. paragraphs 8 to 13 of the said decision being relevant are produced herein below:8. it will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction. dealing with the scope of sections 3, 4 and 9 of the probation of offenders act, fazal ali, j., in the divisional personnel officer, southern railway and anr. etc. v. t.r.challappan etc., [1975] 2 slr 58.at 596 speaking for the court observed: these provisions would clearly show that an order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. thus the conviction of the accused or the finding of the court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on probation of the offender. the order of release on probation is merely in substitution of the sentence to be imposed by the court. this has been made permissible by the statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. the provisions of section 9(3) of the act extracted above would clearly show that the control of the offender is w p (c) 2372/2010 4 of 12 retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the court can sentence the offender for the original offence. this clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. under sections 3,4, or 6 of the act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. in these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the magistrate releasing the offender on probation obliterates the stigma of conviction.8. on similar lines in the decision reported as air 199.sc 78.harichand v. director of school education the supreme court held as under:in our view, section 12 of the probation of offenders act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. that is the plain meaning of the words disqualification, if any, attaching to a conviction of an offence under such law therein. where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of section 12, suffer the disqualification. it cannot be held that, by reason of section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.9. in a recent decision in sushil kumar singhals case (supra), after w p (c) 2372/2010 5 of 12 analysing the law including the judgments referred above the supreme court has held as under:9. the sole question involved in this case is whether the benefit granted to the appellant under the provisions of act, 1958 makes him entitled to reinstatement in service. the issue involved herein is no more res integra. in aitha chander rao v. state of andhra pradesh, 1981 (suppl.) scc 17.this court held:as the appellant has been released on probation, this may not affect his service career in view of section 12 of the probation of offenders act.10. the said judgment in aitha chander rao (supra) was not approved by this court in harichand v. director of school education, (1998) 2 scc 383.observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 act had been given to him and as in that case there had been no discussion on the words "disqualification, if any attaching to a conviction of an offence under such law", the said judgment cannot be treated as a binding precedent. this court interpreted the provisions of section 12 of the 1958, act and held as under: in our view, section 12 of the probation of offenders act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. that is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of section 12, suffers the disqualification. it cannot be held that w p (c) 2372/2010 6 of 12 by reason of section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service. (emphasis added).11. in divisional personnel officer, southern railway and anr. v. t.r. chellappan, air 197.sc 2216.this court observed that the conviction of an accused, or the finding of the court that he is guilty, does not stand washed away because that is the sine-qua-non for the order of release on probation. the order of release on probation is merely in substitution of the sentence to be imposed by the court. thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the act, 1958.12. in trikha ram v. v.k. seth and anr., (1987) supp. scc 39.this court had held that if a person stands convicted and is given the benefit of the provisions of the 1958, act, he can be removed from service only on the ground that he stood convicted. but by virtue of the provisions of section 12 of the 1958, act, his removal cannot be a "disqualification" for the purposes provided in other statutes such as the representation of the people act, 1950. the same view has been reiterated by this court in union of india and ors. v. bakshi ram, (1990) 2 scc 426.karam singh v. state of punjab and anr., (1996) 7 scc 748.and additional deputy inspector general of police, hyderabad v. p.r.k. mohan, (1997) 11 scc 571.13. in shankar dass v. union of india and anr., air 198.sc 772.this court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of section 12 of the 1958, act. the court held as under: there are statutes which provide that the persons, who are convicted for certain offences, w p (c) 2372/2010 7 of 12 shall incur certain disqualification; for example, chapter iii of the representation of peoples act, 1951 entitles 'disqualification' for membership of parliament and state legislatures, and chapter iv entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the members of legislatures or from voting at election to the legislature. that is the sense in which the word 'disqualification' is used in section12 of the probation of offenders act.......therefore, it is not possible to accept the reasoning of the high court that section 12 of the 1958 act takes away the effect of conviction for the purpose of service also.14. in state of u.p. v. ranjit singh, air 199.sc 1201.this court has held that the high court, while deciding a criminal case and giving the benefit of the u.p. first offenders probation act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. the court has held as under: we also fail to understand, how the high court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. this direction and observation is wholly without jurisdiction....15. in union of india v. trilochan patel, air 198.sc 1612.some part of the judgment in t.r. chellappan (supra) was overruled by the constitution bench of this court. but the observations cited hereinbefore were not overruled.16. in punjab water supply sewerage board and anr. v. ram sajivan and anr., (2007) 9 scc 86.this court explained that the judgment in aitha chander rao (supra) did not lay down w p (c) 2372/2010 8 of 12 any law as no reason has been assigned in support of the order. thus, the same remained merely an order purported to have been passed under article 142 of the constitution of india. this court allowed the disciplinary authority to initiate the disciplinary proceedings in accordance with law and pass an appropriate order, in spite of the fact that in the said case, the court, after recording the conviction, had granted benefits of the provisions of the act, 1958 to the employee.17. in view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. the word `disqualification' contained in section 12 of the act, 1958 refers to a disqualification provided in other statutes, as explained by this court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the act, 1958.10. after considering the position of law as it stood in the year 2007 including some of the judgments referred above, this court in the opinion in satraj singhs case (supra) held that the issue: whether the disqualification from which an employee is saved under section 12 of the act would also include action against him by his employer under his conditions/rules is no more res integra.11. further in gokul ram meenas case (supra) this court upheld the order of the tribunal rejecting the oa filed by the petitioner in that case seeking direction for being appointed as constable (male) executive in identical circumstances by summing up in para 6 as under:6. the stand of the petitioner is that when he submitted the w p (c) 2372/2010 9 of 12 application form, the case registered vide aforesaid fir was sub judice against him in the court of judicial magistrate, 1st class, thana gazi. the petitioner had already mentioned about the case in the application form. the said case has been decided on 1st june, 2009 by the court of judicial magistrate, 1st class, thana gazi, distt. alwar (rajasthan) wherein petitioner and co-accused persons are acquitted under section 323, 341, 354 and 451 ipc due to compromise. the petitioner is convicted under section 143 ipc and the court has given the benefit of section 3 of the probation of offenders act, 1958 and it is ordered that in terms of section 12 of probation of offenders act, the conviction would have no adverse effect on petitioner and one sh. gopi ram in future in their government service or otherwise. in view of the above directions, respondents are not justified in cancelling his candidature. the tribunal has considered the aforesaid aspect of the matter in the light of judgment of this court in satraj singh v. union of india and ors. reported in 2007 ix ad (delhi) 241 wherein after relying on the judgment of the supreme court in commandant, 20th battalion, itb police v. sanjay binjola reported in iv (2001), slt 28=ii (2001)ccr 24.(sc) =(2001) 5 scc 317.it is held that the directions issued by the session judge, bikaner to the effect that the conviction of the petitioner therein shall not have any adverse effect on his service was held to be without jurisdiction and therefore not binding on the respondents. following the aforesaid judgment the tribunal has rejected the contention raised by the petitioner that the direction of the court of judicial magistrate, 1st class, thana gazi, distt. alwar, rajasthan in judgment dated 1st june, 2009 to the effect that the conviction of petitioner would have no adverse effect in future in government service is not binding on the tribunal. w p (c) 2372/2010 10 of 12 recently, the supreme court in sushil kumar singhal v. the regional manager, punjab national bank reported in vi (2010) slt 84=(2010) iv llj 29.(sc) after taking note of various decisions on the issue, where after conviction, a person was released on probation, has upheld the dismissal of an employee who was convicted for an offence involving mortal turpitude. even in the said case, appellant therein was given the benefit of section 12 of the probation of offenders act by the criminal court. if that is so, there is no reason to uphold the contention of petitioner who is involved in a serious crime.12. from the above it is seen that the position of law qua section 12 of the offenders act is well settled. section 12 would not come to the rescue of the petitioner. his release under section 4 of the offenders act would not obliterate the conduct/act which constitutes the offence. the petitioner would not be entitled to any relief even on the interpretation of section 12 of the offenders act.13. so when the conduct/act constituting the offence is not washed of, the employer in this case, the delhi police was within its rights not to appoint the petitioner as constable (executive) male, that too, when no right is said to have accrued in favour of the petitioner who was only on the threshold of being appointed. in this regard we reiterate the following paragraph of the judgment of this court in gokul ram meenas case (supra) wherein this court in paragraph 6 has held as under:further petitioner is seeking employment in police which requires utmost integrity, propriety and uprightness of character. considering the nature of offence, material on record, role of petitioner therein and that there is no honorable acquittal, the screening w p (c) 2372/2010 11 of 12 committee has not found him fit for the job. petitioner was undergoing selection process and was not issued any appointment letter. in view of the judgment in shankarsan dash v. union of india, reported in air 199.sc 1612.petitioner cannot claim any indefeasible right of appointment.14. looking from any perspective, that is, in law or on facts the petitioner would not be entitled to get appointed as constable executive (male). the conclusion of the tribunal cannot be interfered with.15. this writ petition is dismissed but without any order as to costs. (v.kameswar rao) judge (pradeep nandrajog) judge april 18 2013 mm w p (c) 2372/2010 12 of 12

Judgment:
$~21 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: April 18, 2013 + W.P.(C) 2372/2010 W.P.(C) 2372/2010 AJIT KUMAR Represented by: ..... Petitioner Mr. Nitin Thakur, Advocate versus COMISSIONER OF POLICE AND ORS ..... Respondents Represented by: Ms. Ruchi Sindhwani with Ms. Bandana Shukla, Advocates CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE V.KAMESWAR RAO V.KAMESWAR RAO, J.

(Oral) 1. The challenge in this writ petition is to the order dated January 11, 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (the Tribunal) in OA No.1498/2008 whereby the plea of the petitioner for a direction to the respondents herein, to appoint him as Constable (Executive) Male in Delhi Police was rejected.

2. An FIR No.78/2002 was registered in which apart from two others, the petitioner was named as an accused for offences committed under Section 308/341/34 IPC, P.S. Vasant Vihar. The same culminated in an order of guilt. The petitioner was released on probation and for which he furnished a bond to keep good behaviour for two years. W P (C) 2372/2010 1 o”

3. Pursuant to an advertisement inviting applications to fill up posts of Constable Executive in Delhi Police, the petitioner applied and was successful at the selection process but found offer of appointment not coming his way because the Commissioner of Police took the view that in view of his being guilty of having committed an offence punishable under Section 308 IPC the petitioner was unfit to be appointed as a Constable in Delhi Police.

4. But before taking the final decision the petitioner was put to notice on April 10, 2007 and his response was received on April 27, 2007 in which the petitioner took the stand that as per law he being released on probation would require him not to be visited with any civil consequences. The response was found to be unconvincing vide order dated May 17, 2007 it was informed to the petitioner that his candidature was cancelled. This led to the filing of OA No.1498/2008 in which petitioner challenged the order dated May 17, 2007 as also the show cause notice dated April 10, 2007.

5. Vide the impugned dismissing OA No.1498/2008 the Tribunal has concluded as under:Although Section 12 of the Probation of Offenders Act, refers to a situation where a presumption is presented, we do not think it is relevant for us to hold that the past period of life of a person thereby automatically is to be wished away. So long as there is a consideration of factors, a decision by the administrative authority about the desirability of a person to be introduced into service normally vests in themselves. In Government service, mostly the weeding exercises can be done only till the time of appointment and once a person becomes member of a W P (C) 2372/2010 2 of 12 service even if undesirably, procedural formalities may pose problems to get rid of the person. Therefore, adoption of strict standards, after a holistic view of the situation may not be objectionable.

6. Contention of the petitioner is that be released on probation washes away the finding of culpability for having committed an offence punishable under Section 308 IPC. Per contra Ms.Ruchi Sindhwani, learned counsel appearing for the respondents submits that release of the petitioner would not wash away the wrong conduct of the petitioner. It is expected that a person appointed in Government service must be above board and strict standards have to be adopted, as since the appointment is in a police force. She relies upon the following judgments AIR 199.SC 78.Harichand v. Director of School Education, 2010 (8) SCALE Sushil Kumar Singhal v. The Regional Manager, Punjab National Bank, 2007 IX AD (Delhi) 241 Satraj Singh v. Union of India & Ors., 177(2011) Delhi Law Times 471 (DB) Gokul Ram Meena v. Govt. of NCT of Delhi & Others .

7. It is seen that even though the Tribunal referred to Section 12 of the Offenders Act, it did not deliberate much on it and decided the case more on facts. No doubt the facts become relevant, when the appointment is in a police force. The larger question which falls for our consideration in this case, is whether petitioner having been released under Section 4 of the Offenders Act, does not suffer disqualification because of Section 12 of the said Act. We feel that the issue is no more res integra having decided by the Supreme Court in a plethora of judgments which are also followed by W P (C) 2372/2010 3 of 12 this Court. In the opinion reported as 2007 (IX) AD (Delhi) 241 Satraj Singh v. Union of India & Ors. a Division Bench held as under:10. Union of India v. Bakshi Ram (1990) 2 SCC 42.was an appeal from a decision of the Rajasthan High Court, wherein the Rajasthan High Court, relying upon Section 12 of the Act had held that release on probation was the effect of removing the disqualification attaching to the employees conviction under Section 10(n) of CRPF Act. The Honble Supreme Court reversed the said decision of the High Court. Paragraphs 8 to 13 of the said decision being relevant are produced herein below:

8. It will be clear from these provisions that the release of the offender on probation does not obliterate the stigma of conviction. Dealing with the scope of Sections 3, 4 and 9 of the Probation of Offenders Act, Fazal Ali, J., in The Divisional Personnel Officer, Southern Railway and Anr. Etc. V. T.R.Challappan etc., [1975] 2 SLR 58.at 596 speaking for the Court observed: These provisions would clearly show that an order of release on probation comes into existence only after the accused is found guilty and is convicted of the offence. Thus the conviction of the accused or the finding of the Court that he is guilty cannot be washed out at all because that is the sine qua non for the order or release on probation of the offender. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. This has been made permissible by the Statute with a humanist point of view in order to reform youthful offenders and to prevent them from becoming hardened criminals. The provisions of Section 9(3) of the Act extracted above would clearly show that the control of the offender is W P (C) 2372/2010 4 of 12 retained by the criminal court and where it is satisfied that the conditions of the bond have been broken by the offender who has been released on probation, the Court can sentence the offender for the original offence. This clearly shows that the factum of guilt on the criminal charge is not swept away merely by passing the order releasing the offender on probation. Under Sections 3,4, or 6 of the Act, the stigma continues and the finding of the misconduct resulting in conviction must be treated to be a conclusive proof. In these circumstances, therefore, we are unable to accept the argument of the respondents that the order of the Magistrate releasing the offender on probation obliterates the stigma of conviction.

8. On similar lines in the decision reported as AIR 199.SC 78.Harichand v. Director of School Education the Supreme Court held as under:In our view, Section 12 of the Probation of Offenders Act would apply only in respect of a disqualification that goes with a conviction under the law which provides for the offence and its punishment. That is the plain meaning of the words disqualification, if any, attaching to a conviction of an offence under such law therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not, by reason of Section 12, suffer the disqualification. It cannot be held that, by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service.

9. In a recent decision in Sushil Kumar Singhals case (supra), after W P (C) 2372/2010 5 of 12 analysing the law including the judgments referred above the Supreme Court has held as under:9. The sole question involved in this case is whether the benefit granted to the appellant under the provisions of Act, 1958 makes him entitled to reinstatement in service. The issue involved herein is no more res integra. In Aitha Chander Rao v. State of Andhra Pradesh, 1981 (Suppl.) SCC 17.this Court held:As the appellant has been released on probation, this may not affect his service career in view of Section 12 of the Probation of offenders Act.

10. The said judgment in Aitha Chander Rao (Supra) was not approved by this Court in Harichand v. Director of School Education, (1998) 2 SCC 383.observing that due to the peculiar circumstances of the case, the benefit of the provisions of 1958 Act had been given to him and as in that case there had been no discussion on the words "disqualification, if any attaching to a conviction of an offence under such law", the said judgment cannot be treated as a binding precedent. This Court interpreted the provisions of Section 12 of the 1958, Act and held as under: In our view, Section 12 of the probation of offenders Act would apply only in respect of a disqualification that goes with a conviction under law which provides for the offence and its punishment. That is the plain meaning of the words "disqualification, if any, attaching to a conviction of an offence under such law" therein. Where the law that provides for an offence and its punishment also stipulates a disqualification, a person convicted of the offence but released on probation does not by reason of Section 12, suffers the disqualification. It cannot be held that W P (C) 2372/2010 6 of 12 by reason of Section 12, a conviction for an offence should not be taken into account for the purposes of dismissal of the person convicted from government service. (Emphasis added).

11. In Divisional Personnel Officer, Southern Railway and Anr. v. T.R. Chellappan, AIR 197.SC 2216.this Court observed that the conviction of an accused, or the finding of the Court that he is guilty, does not stand washed away because that is the sine-qua-non for the order of release on probation. The order of release on probation is merely in substitution of the sentence to be imposed by the Court. Thus, the factum of guilt on the criminal charge is not swept away merely by passing the order under the Act, 1958.

12. In Trikha Ram v. V.K. Seth and Anr., (1987) Supp. SCC 39.this Court had held that if a person stands convicted and is given the benefit of the provisions of the 1958, Act, he can be removed from service only on the ground that he stood convicted. But by virtue of the provisions of Section 12 of the 1958, Act, his removal cannot be a "disqualification" for the purposes provided in other Statutes such as the Representation of the People Act, 1950. The same view has been reiterated by this Court in Union of India and Ors. v. Bakshi Ram, (1990) 2 SCC 426.Karam Singh v. State of Punjab and Anr., (1996) 7 SCC 748.and Additional Deputy Inspector General of Police, Hyderabad v. P.R.K. Mohan, (1997) 11 SCC 571.

13. In Shankar Dass v. Union of India and Anr., AIR 198.SC 772.this Court has held that the order of dismissal from service, consequent upon a conviction, is not a disqualification within the meaning of Section 12 of the 1958, Act. The court held as under: There are Statutes which provide that the persons, who are convicted for certain offences, W P (C) 2372/2010 7 of 12 shall incur certain disqualification; for example, Chapter III of the Representation of Peoples Act, 1951 entitles 'disqualification' for Membership of Parliament and State Legislatures, and Chapter IV entitles 'disqualification' for voting, contains the provisions which disqualify persons convicted of certain charges from being the Members of Legislatures or from voting at election to the legislature. That is the sense in which the word 'disqualification' is used in Section12 of the Probation of Offenders Act.......Therefore, it is not possible to accept the reasoning of the High Court that Section 12 of the 1958 Act takes away the effect of conviction for the purpose of service also.

14. In State of U.P. v. Ranjit Singh, AIR 199.SC 1201.this Court has held that the High Court, while deciding a criminal case and giving the benefit of the U.P. First Offenders Probation Act, 1958, or similar enactment, has no competence to issue any direction that the accused shall not suffer any civil consequences. The Court has held as under: We also fail to understand, how the High Court, while deciding a criminal case, can direct that the accused must be deemed to have been in continuous service without break, and, therefore, he should be paid his full pay and dearness allowance during the period of his suspension. This direction and observation is wholly without jurisdiction....

15. In Union of India v. Trilochan Patel, AIR 198.SC 1612.some part of the Judgment in T.R. Chellappan (supra) was overruled by the Constitution Bench of this Court. But the observations cited hereinbefore were not overruled.

16. In Punjab Water Supply Sewerage Board and Anr. v. Ram Sajivan and Anr., (2007) 9 SCC 86.this Court explained that the Judgment in Aitha Chander Rao (supra) did not lay down W P (C) 2372/2010 8 of 12 any law as no reason has been assigned in support of the order. Thus, the same remained merely an order purported to have been passed under Article 142 of the Constitution of India. This Court allowed the disciplinary authority to initiate the disciplinary proceedings in accordance with law and pass an appropriate order, in spite of the fact that in the said case, the court, after recording the conviction, had granted benefits of the provisions of the Act, 1958 to the employee.

17. In view of the above, the law on the issue can be summarized to the effect that the conviction of an employee in an offence permits the disciplinary authority to initiate disciplinary proceedings against the employee or to take appropriate steps for his dismissal/removal only on the basis of his conviction. The word `Disqualification' contained in Section 12 of the Act, 1958 refers to a disqualification provided in other Statutes, as explained by this Court in the above referred cases, and the employee cannot claim a right to continue in service merely on the ground that he had been given the benefit of probation under the Act, 1958.

10. After considering the position of law as it stood in the year 2007 including some of the judgments referred above, this Court in the opinion in Satraj Singhs case (supra) held that the issue: whether the disqualification from which an employee is saved under Section 12 of the Act would also include action against him by his employer under his conditions/rules is no more res integra.

11. Further in Gokul Ram Meenas case (supra) this Court upheld the order of the Tribunal rejecting the OA filed by the petitioner in that case seeking direction for being appointed as Constable (Male) Executive in identical circumstances by summing up in para 6 as under:6. The stand of the Petitioner is that when he submitted the W P (C) 2372/2010 9 of 12 application form, the case registered vide aforesaid FIR was sub judice against him in the court of Judicial Magistrate, 1st Class, Thana Gazi. The Petitioner had already mentioned about the case in the application form. The said case has been decided on 1st June, 2009 by the court of Judicial Magistrate, 1st Class, Thana Gazi, Distt. Alwar (Rajasthan) wherein Petitioner and co-accused persons are acquitted under Section 323, 341, 354 and 451 IPC due to compromise. The Petitioner is convicted Under Section 143 IPC and the court has given the benefit of Section 3 of the Probation of Offenders Act, 1958 and it is ordered that in terms of Section 12 of Probation of Offenders Act, the conviction would have no adverse effect on Petitioner and one Sh. Gopi Ram in future in their Government service or otherwise. In view of the above directions, Respondents are not justified in cancelling his candidature. The Tribunal has considered the aforesaid aspect of the matter in the light of judgment of this Court in Satraj Singh v. Union of India and Ors. reported in 2007 IX AD (Delhi) 241 wherein after relying on the judgment of the Supreme Court in Commandant, 20th Battalion, ITB Police v. Sanjay Binjola reported in IV (2001), SLT 28=II (2001)CCR 24.(SC) =(2001) 5 SCC 317.it is held that the directions issued by the Session Judge, Bikaner to the effect that the conviction of the Petitioner therein shall not have any adverse effect on his service was held to be without jurisdiction and therefore not binding on the Respondents. Following the aforesaid judgment the Tribunal has rejected the contention raised by the Petitioner that the direction of the Court of Judicial Magistrate, 1st Class, Thana Gazi, Distt. Alwar, Rajasthan in judgment dated 1st June, 2009 to the effect that the conviction of Petitioner would have no adverse effect in future in Government Service is not binding on the Tribunal. W P (C) 2372/2010 10 of 12 Recently, the Supreme Court in Sushil Kumar Singhal v. The Regional Manager, Punjab National Bank reported in VI (2010) SLT 84=(2010) IV LLJ 29.(SC) after taking note of various decisions on the issue, where after conviction, a person was released on probation, has upheld the dismissal of an employee who was convicted for an offence involving mortal turpitude. Even in the said case, Appellant therein was given the benefit of Section 12 of the Probation of Offenders Act by the criminal court. If that is so, there is no reason to uphold the contention of Petitioner who is involved in a serious crime.

12. From the above it is seen that the position of law qua Section 12 of the Offenders Act is well settled. Section 12 would not come to the rescue of the petitioner. His release under Section 4 of the Offenders Act would not obliterate the conduct/act which constitutes the offence. The petitioner would not be entitled to any relief even on the interpretation of Section 12 of the Offenders Act.

13. So when the conduct/act constituting the offence is not washed of, the employer in this case, the Delhi Police was within its rights not to appoint the petitioner as Constable (Executive) Male, that too, when no right is said to have accrued in favour of the petitioner who was only on the threshold of being appointed. In this regard we reiterate the following paragraph of the judgment of this Court in Gokul Ram Meenas case (supra) wherein this Court in paragraph 6 has held as under:Further Petitioner is seeking employment in Police which requires utmost integrity, propriety and uprightness of character. Considering the nature of offence, material on record, role of Petitioner therein and that there is no honorable acquittal, the Screening W P (C) 2372/2010 11 of 12 Committee has not found him fit for the job. Petitioner was undergoing selection process and was not issued any appointment letter. In view of the judgment in Shankarsan Dash v. Union of India, reported in AIR 199.SC 1612.Petitioner cannot claim any indefeasible right of appointment.

14. Looking from any perspective, that is, in law or on facts the petitioner would not be entitled to get appointed as Constable Executive (Male). The conclusion of the Tribunal cannot be interfered with.

15. This writ petition is dismissed but without any order as to costs. (V.KAMESWAR RAO) JUDGE (PRADEEP NANDRAJOG) JUDGE APRIL 18 2013 mm W P (C) 2372/2010 12 of 12