IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP-T No. 2146/2008 Reserved on : 15.12.2009 Decided on:6.1.2010 _____________________________________________ Ashu Verma. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Dilip Sharma, Advocate. For the Respondents: Mr. R.K. Sharma, Sr. Addl. Advocate General. _____________________________________________________ Rajiv Sharma, Judge. Material facts necessary for the adjudication of this petition are that the State of Himachal Pradesh issued advertisement, which appeared in the daily Edition of “Divya Himachal” on 31.7.2005 whereby applications were invited for filling up 918 posts of constables in 1st India Reserve Battalion and 3rd India Reserve Battalion. Petitioner submitted an application for being considered against 63 posts meant for District Bilaspur. The selection process commenced with effect from 15.9.2005 to 22.9.2005. The process for filling up the posts of Kangra District commenced from 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 14.10.2005 to 28.10.2005 against 202 posts. Petitioner submitted application for the same. However, he was not found suitable. The State Government permitted to fill up 70 additional posts of constables for 1st India Reserve Battalion for which recruitment process was started in the year 2005. Petitioner being in the waiting list was selected against the additional post distributed to Bilaspur District out of 70 posts. He joined his duties on 4.4.2006. A show cause notice was issued to the petitioner on 23.2.2007 for not disclosing the fact that he had already appeared in Kangra District. He filed reply to the same. The Commandant, 1st India Reserve Battalion Bangarh terminated the petitioner from Police Department vide office order dated 5.3.2007. Mr. Dilip Sharma has vehemently argued that issuance of order dated 5.3.2007 is against the law. He then argued that his client has neither misled nor concealed material facts at the time of making declaration. He then elaborated his submission that as per advertisement there were no restrictions that the candidate could apply only in one District. He lastly contended that there is violation of the principles of natural justice. Mr. R.K. Sharma learned Senior Additional Advocate General has strenuously argued that the petitioner had appeared in District Bilaspur in the selection process which has commenced with effect from 15.9.2005 to 22.9.2005 and has given undertaking that he has not appeared in the recruitment for the post of constable except District Bilaspur and thereafter again he has filled in another form to be considered for the post of constable in District 3 Kangra wherein he has given declaration that he has not appeared for recruitment for the post of constable in any other District. He lastly contended that the petitioner has also given affidavit sworn on 21.3.2006 reiterating that he has not appeared in the current recruitment process for the recruitment of police constable of 1st and 3rd India Reserve Battalion in any other District of the Himachal Pradesh in the year 2005. He has supported the issuance of office order dated 5.3.2007. I have heard the learned counsel for the parties and have perused the pleadings carefully. The State Government had decided to fill up 918 posts of constable for 1st India Reserve Battalion and 3rd India Reserve Battalion. The recruitment was to be made on population percentage basis. According to the distribution, 51 posts were to be filled up in District Bilaspur. Petitioner filled in form for recruitment of constable vide Annexure A-2. He has certified on 16.9.2005 that he has not appeared for the recruitment for Police Constable that year in any other District of Himachal Pradesh. Petitioner was permitted to participate in the selection process, which commenced on 15.9.2005 to 22.9.2005. His name was kept in waiting list. Thereafter petitioner again filled second form (Annexure A-3) for being considered for the post of constable in District Kangra. He has certified in the following manner: “I certify that above details are correct to the best of my knowledge and belief and that I have not appeared for the recruitment for police constables this year in any other district of H.P. I understand 4 that willful misrepresentation of any fact will make me liable for disqualification and legal action at any stage.” Petitioner participated in the selection process in District Kangra, which commenced with effect from 14.10.2005 to 28.10.2005. The State Government has sanctioned additional 70 posts of Police Constables for 1st India Reserve Battalion. Since the name of the petitioner figured in the waiting list, he was offered appointment to the post of Constable on 4.4.2006. He joined his duties on 4.4.2006. Petitioner has also tendered affidavit dated 21.3.2006. Material contents thereof reads thus: “That I had not appeared earlier in the correct recruitment process for the recruitment of Police Constables for 3rd India Reserve Battalion and 1st India Reserve Battalion in any other District of H.P. in the year 2005.” Later on, it transpired that the petitioner has given a false certificate vide Annexure A-2 and also tendered a false affidavit vide Annexure A-4. A show cause notice was issued to him by the competent authority on 23.2.2007. He has filed reply to the same. The Disciplinary Authority has terminated the services of the petitioner since he has given false declaration by tendering false affidavit. As far as Annexure A-2 is concerned petitioner has certified that he had not appeared in any other District for the recruitment process. He has given this certificate on 19.9.2005. However, the larger issue involved is: the manner in which the petitioner has 5 again appeared in the selection process commenced for filling up the posts of constables in District Kangra. He has certified, as noticed above, on 20.10.2005 that he has not appeared for the recruitment of Police Constable that year in any other District of Himachal Pradesh. The declaration made by the petitioner was false. It is clearly stipulated in the form of recruitment for constables that willful misrepresentation of any fact will render him disqualify and legal action can be initiated against at any stage. The contention of the petitioner that there was no such stipulation in the advertisement cannot be accepted. He was aware of the conditions imposed in the form of recruitment, which he has voluntarily filled in. He knew throughout that any false declaration will disqualify him. He understood the implications of the declaration made by him or omission to disclose the vital information. It is not that he has given a false certificate on 20.10.2005, he had the audacity to tender a false affidavit on 21.3.2006. He has categorically mentioned that he had not appeared in the selection process of any other District In Himachal Pradesh. In fact, he had appeared in District Bilaspur. This affidavit was also contrary to facts. The plea raised by the petitioner that he had no time to go through the forms of recruitment cannot be accepted. His plea that he thought the recruitment to the post of constable like open Army recruitment rally cannot be accepted. In these circumstances, the action of the respondents to terminate the services of the petitioner cannot be faulted with. He has been heard before terminating his services. The order dated 5.3.2007 is a speaking order. The 6 competent authority has applied its mind. A candidate was permitted only one opportunity in the recruitment process, which has commenced on the basis of Annexure A-1. The process of filling up of District Kangra was integral part of the same recruitment process. Petitioner has given a false declaration at the time of submitting application seeking recruitment for the post of constable in District Kangra. He could not appear in two Districts. The wholesome principle for imposing this condition was to provide equal opportunity to all the candidates. The recruitment process was based on population percentage. In same and similar circumstances, their Lordships of the Hon’ble Supreme Court in K.G. Ashok and others versus Kerala Public Service Commission and others, (2001) 5 SCC 419 have held that the restriction of the choice of candidates to one district was not violative of equality clause enshrined in Articles 14 and 16 of the Constitution of India. Their Lordships have further held that contravention of the said restriction and making of a false declaration in that regard in the application having been declared to be a disqualifying factor, rejection of application of candidates by PSC on that ground was rightly upheld by High Court. Their Lordships have declined to grant equitable relief. Their Lordships have held as under: “8. Acting under Rule 3 of the 1958 Rules the Commission framed rules known as Kerala Public Service Commission Rules of Procedure published in the Kerala Gazette on 5-10-1976 prescribing therein detailed procedure for making 7 selection by the Commission, Rule 22 whereof lays down conditions for disqualifying candidature of a person. Rule 40 of the said rules recognises powers of the Commission to pass necessary orders for proper discharge of functions of the Commission. Relevant portion of the said Rule 22 and Rule 40 run thus : "22. Candidates who are found guilty of the following items of misconduct shall be liable for disqualification for being considered for a particular post or department from applying to the Commission either permanently or for any period or the invalidation of their answer scripts or products in a written, practical test or the initiation of criminal or other proceedings against them or their removal or dismissal from office or the ordering of any other disciplinary action against them if they have already been appointed, or any one or more of the above . . . . . . . . . . . . . . . . (iii) Making of any false statement in the Application form or its Annexure or any document produced in connection with a selection or suppression of any material fact relevant to the selection from the Commission . . . . . . . . . . . . . . . . . . . . . . . . .. " "40. Savings.- Nothing contained in Parts 1 and II of these rules shall be deemed to limit or affect the power of the Commission to make such orders as may be necessary to give effect to any of the provisions of the Constitution of India or for the proper discharge of the functions of the Commission : 8 Provided that no such order which has an overriding effect on the provisions contained in Part I of these rules shall be made by the Commission without the prior concurrent of the Government." 9. In exercise of the powers conferred upon it, the Commission issued notification on 2-4-1996 inviting applications for filling up the posts in question in 14 districts of the State, providing therein restrictions not to apply in more than one district and consequences for its breach, incorporated in Part I, Note (2) and Part II condition Nos. 25(b) and 29 and Note (1) and column No. 8(b) of the application form which read thus : "Note (2) Applications should not be sent to more than one District in response to this Notification. If applications are sent contrary to the above direction and if he/she is selected his/her name will be removed from the ranked list and disciplinary action will be taken against him/her. Candidate should submit application for this post to the concerned District Officer of the Commission and should note the name of the District against the relevant column in the application. The address of the District Officers to which applications are to be sent is furnished in column (9) of the notifications." "25.(b) The application having one or more of the following defects will be summarily rejected : 1 to 8 deleted. 9 9. If the candidates apply to more than one District (For District-wise selection) for a post in response to the same notification." (Emphasis added) "29. Warning Candidates who are found guilty of the following items of misconduct shall be liable for disqualification for being considered for a particular post of debarment from applying to the Commission either permanently or for any period or the invalidation of their answer scripts or products in a written/practical test or the initiations of criminal or other proceedings against them or their removal or dismissal from office or the ordering of any other disciplinary action against them if they have been appointed or any one or more of the above. (i) and (ii) deleted. (iii) Making of any false statement in the application form or any document produced in connection with selection or suspension of any material act relevant to the selection from the Commission." (Emphasis added) "APPLICATION FORM Name of Post . . . . . . . Scale of pay . . . . . . . . Department/Company/Corporation/Board/L ocal Authority . . . . . . . . . Gazette Date. . . . . Note. (1) Leave 5 cm. Space on the top of the application form. (2) Furnish full and correct information. Candidates should read the relevant Gazette notification inviting applications 10 before filling up the application form. Enclose self-attested true copies of documents in proof of the claim". Column 8(b) of the application form reads as follows : "8(b)- Have you applied for the post in any other District as per this notification (Answer 'Yes' or 'No'." (Emphasis added) 11. From bare perusal of the aforesaid rules as well as notifications referred to above it would be clear that a person was debarred from applying in more than one district pursuant to notification dated 2nd April, 1996, whereby application could be filed by a person seeking employment in any one of the 14 districts of his choice for which vacancies were notified and if a candidate applied for more than one district his application was liable to be rejected on this ground alone. Similarly, application of a person liable to be rejected also on the ground if he had applied in more than one district but had made false declaration in the application form that he had not so applied. Apart from rejection of the application on the said grounds, in case such a candidate had appeared in the written test and interview the same were liable to be declared invalid and in case such a person was appointed, he was liable to be dismissed or removed from service treating the same to be one of the misconducts over and above any criminal action that may be taken against him. 12. It appears that the Government introduced discentralisation of recruitment to the lower ministerial cadre in various departments 11 and teaching posts in Education Department to district level vide G.O. (MS) No. 154/71 dated 27-5- 1971 with a view to avoid administrative inconvenience caused due to dearth of recruits in such cadres in northern districts of Kerala. It was with this intention that Government stipulated conditions restricting inter district transfers vide Government Order dated 27-5-1971. However, while implementing the decentralisation, a lot of practical problems cropped up before the Commission. If candidates are allowed to apply to more than one district in response to the same notification, they have to be allowed to appear in the tests to be conducted in different districts on different dates and subsequently, if they find a berth in the ranked list relating to more than one district, they will have to be advised for recruitment from more than one district if the occasion arises. A candidate who is appointed in one district will have to forego appointment in another district and the same defeats the very purpose of the aforementioned Government Order. The circumstances as detailed above would put the Commission in an embarrassing situation and cause administrative difficulties. The situation would assume fresh dimensions if it is allowed to prevail in the present day district- wise selections. Therefore, the candidates are permitted to apply for one district only in one notification. It is in order to avoid such exigencies and to facilities a feasible selection process, the Commission issued orders to the effect that candidates are prohibited from applying to more than one district for the post notified in one and the same notification. Accordingly in the 12 notification inviting applications for district-wise selection specific instructions are incorporated to the effect that candidates should not send applications for the post in more than one district and his failure to observe the same would entail rejection of application of such a person apart from taking other actions enumerated above. 13. Though a candidate is prohibited from applying to more than one district, he is free to choose any district of his choice and thus the only thing is that the candidate is not entitled to apply for the same post in more than one district at a time. Here, the right of the candidate is not curtailed as he/she is not prevented from choosing the district of his/her choice. At the same time, if every person is permitted to apply for all districts the number of applications received by the Commission will be 14 times the number of applications now being received with the result that the Commission will be doing a futile exercise of selection work, in the other 13 districts, as a candidate can after all accept appointment in only one District. Considering all these aspects the Commission has imposed the restriction on candidates from applying in more than one district in response to one and the same notification. The restriction does not tantamount to the denial of opportunity to a candidate for applying to any post. 22. Learned counsel for the appellants also submitted that decision of this Court in the case of O. N. Omana v. Kerala Public Service Commission (S.L.P. (Civil) No. 12562 of 1999) is quite distinguishable as in that case though there was one notification inviting applications for 13 appointment in several districts and similar restriction was there and in contravention of the same application was filed for appointment in more than one district, but written test was conducted in different districts on different dates and not on one date and the candidates appeared in more than one district. In our view, though in the present case written test was conducted in all the 14 districts on one day but that cannot be a ground for making any distinction. Application of some of the appellants have been rejected on the ground that though they had applied for appointment in more than one district but made a false declaration that they had applied in one district only whereas in other cases they did apply in more than one district and stated in the application that they had so applied. According to the gazette notification both the grounds were independently sufficient for rejection of candidature of a candidate. It appears that the Commission has been liberal in simply rejecting their candidature for the time being and had not debarred them from applying for any public post either for a specified period or permanently inasmuch as for making a false declaration though the appellant were liable to be criminally prosecuted but no such steps have been taken against them. 23. Learned counsel for the appellants lastly submitted that as number of appellants has crossed the upper age limit and number of vacancies are available, without disturbing already selected candidates, the appellants can be considered for selection on the basis of their placement in the merit list. In our view seeing the 14 conduct of appellants in making false declaration and applying in more than one district in contravention of gazette notification, it is not possible to accede to their prayer even on equitable grounds.” Their Lordships of the Hon’ble Supreme in number of cases have observed that the police service is a disciplined service requiring the maintenance of strict discipline. In State of Punjab versus Ram Singh Ex. Constable, (1992) 4 SCC 54, their Lordships have held as under: “The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.” In Delhi Administration versus Sushil Kumar, (1996) 11 SCC 605 whereby the selection of the candidate provisionally for appointment as constable in the Delhi Police was cancelled after it was found at the time of verification of character and antecedents that he was involved in a criminal case, their Lordships of the Hon’ble Supreme Court have held as under: “It is seen that verification of the character and antecedents is one of the important criteria to test whether the selected candidate is suitable to a post under the State. Though he was found physically fit, passed the written test and interview and was provisionally selected, on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a Constable to the 15 disciplined force. The view taken by the appointing authority in the background of the case cannot be said to be unwarranted. The tribunal, therefore, was wholly unjustified in giving the direction for reconsideration of his case. Though he was discharged or acquitted of the criminal offences, the same has nothing to do with the question. What would be relevant is the conduct or character of the candidate to be appointed to a service and not the actual result thereof. If the actual result happened to be in a particular way, the law will take care of the consequences. The consideration relevant to the case is of the antecedents of the candidate. Appointing authority, therefore, has rightly focused this aspect and found it not desirable to appoint him to the service.” In a recent judgment, the Apex Court in R. Radhakrishnan versus The Director General of police and others, 2007 (12) Scale 539 has held as under: “10. Indisputably, Appellant intended to obtain appointment in a uniformed service. The standard expected of a person intended to serve in such a service is different from the one of a person who intended to serve other services. Application for appointment and the verification roll were both in Hindi as also in English. He, therefore, knew and understood the implication of his statement or omission to disclose a vital information. The fact that in the event such a disclosure had been made, the authority could have verified his character as also suitability of the appointment is not in dispute. It is also not in dispute that the 16 persons who had not made such disclosures and were, thus, similarly situated had not been appointed.” It is also evident from the appointment letter Annexure A-5 dated 4.4.2006 that in case the information/declaration furnished by the petitioner was proved to be false, it could render him ineligible for appointment and he was liable to be removed from the service. Accordingly, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court and the observations made hereinabove, there is no merit in the petition and the same is dismissed. However, there shall be no order as to costs. (Rajiv Sharma), Judge 6.1.2010. *awasthi*