IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.09.2009 CORAM THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE M.JAICHANDREN W.A.No.1231 of 2009 K.Satyanarayanan .. Appellant Vs 1. The State of Tamil Nadu, rep. By Secretary to Government Home (Police II) Department, Fort St. George, Chennai. 2. The Director General of Police, Chennai. .. Respondents Appeal against the order of this Court in W.P.No.16013 of 2008 dated 10.12.2008. Petition filed under sec.226 of the constitution of India for the issuance of Writ of certiorarified mandamus to call for the records on the file of the 2nd respondent in Proceedings Na.ka.No. 016253/Niyamanam (1)/2008-31 dated 23.05.08 and quash the same and consequently direct the respondents to appoint the petitioner to the post of Grade-II Police Constable with effect from the date of appointment of the order selected candidates at the name selection within the time that may be stipulated by this Honourable Court. For Appellant : Mr.K.Venkataramani, S.C. For Mr.R.Dhineshkumar For Respondents : Ms.Sneha, G.A. J U D G M E N T (Delivered by D.MURUGESAN, J.) The appellant applied for selection and appointment to the post of Grade II police constable pursuant to the notification made in the year 2006. He participated in the selection process, such as physical test, written test and medical test and was successful. While he was waiting for the final order of selection and appointment, he was issued with the order dated 23.5.2008 denying the appointment. That order reads as under:- https://hcservices.ecourts.gov.in/hcservices/ "Tr.K.Sathyanarayanan (Register No.0802688, 2006), after his having passed the written examination for the post of Grade-2 Constable; enquiry was made as regards his past conduct and character. In the aforesaid inquiry, the following deficiencies have been reported. "He has been involved in Criminal Cases". 2)The details about the Criminal Case: He was connected as the Accused-1 in the Dharmapuri Police Station Criminal Case No.1256/2005 U/s.341, 323 IPC. The aforesaid case was decided as ('Mistake of Fact') on 7- 11-2005. 3) As per rule 14(b) of Tamil Nadu Special Police Sub- ordinate Service; for the appointment of the post of Grade- 2 Constable; one should not be connected with any Criminal case whatsoever and his conduct and character should be satisfactory. 4) He is hereby informed that, because of the deficiencies mentioned in para-1; on the basis of his conduct and character not being satisfactory; he is not appointed to the post of Grade-2 Constable." The appellant questioned the above order by filing a writ petition and the same was dismissed placing reliance on Rule 14(b) of the Tamil Nadu Special Police Subordinate Service Rules. The said rule reads as hereunder:- "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. 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. https://hcservices.ecourts.gov.in/hcservices/ 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." The writ appeal is directed against the said order in the writ petition. 2.Mr.K.Venkataramani, learned senior counsel appearing for the appellant, would submit that on the facts of this case, Rule 14(b) of the Rules is not applicable. Though the said rule contemplates that the character and antecedents are relevant for the purpose of selection and explanation (1) to the said rule relates to the acquittal on benefit of doubt and when the complainant turned hostile, it should be treated as disqualification, by virtue of explanation (2) to the said Rule, in the event a complaint is closed as mistake of fact, it should not be treated as a disqualification. 3.We have also heard the learned Government Advocate on the above said submission. 4.It is true that for the recruitment to the post of police constable, character and antecedents of the candidates are very much relevant and the Board, which is competent to make selection, is entitled to verify such character and antecedents before issue of appointment order. It is also made clear that whenever candidates appear for selection, in the event it is brought to the notice of the Board that the candidates, who appear for selection, had involved in a criminal case and faced a trial and ultimately, acquitted on the ground of benefit of doubt or the complainant having turned hostile, still such benefit of doubt and the acquittal on the ground that the witness turned hostile could be a disqualification in terms of explanation (1). However, that is not the case in the event a complaint is registered against such a candidate and in the course of investigation, the investigating officer found that no case is made out and consequently, files a final report for closure of the case on the ground of mistake of fact, as in terms of explanation (2), it would not amount to any disqualification. Nevertheless, as per the said explanation, such candidates would be entitled to be considered for next selection. 5.Having regard to the above rule read with explanations, the facts in the case must be considered. There is no dispute that a case was registered against the appellant in Crime No.1256 of 2005 on 24.7.2005 on the file of Dharmapuri police station. After investigation, by a referred charge sheet dated 7.11.2005, the complaint against the appellant was closed as "mistake of fact". A perusal of the order dated 23.5.2008 questioned in the writ petition https://hcservices.ecourts.gov.in/hcservices/ shows that the appellant was denied the selection and appointment solely on the ground that he is involved in a criminal case. Hence, the case on hand would squarely fall under explanation (2) of Rule 14 (b) of the Rules and in such event, the registration of a criminal case against the appellant cannot be considered to be a disqualification for selection to the post of police constable. In view of the same, we find merit in the submission of the learned senior counsel for the appellant and the findings of the learned single Judge that mistake of fact would amount to disqualification cannot be sustained. 6.This takes us to the next question as to whether the respondents should be directed to appoint the petitioner at the time of next selection. In order to find out as to whether any vacancies are available for the present in view of the fact that the appellant had participated in the selection for the year 2006 and already nearly three years have elapsed, we directed the learned Government Advocate to find out as to the vacancies available. On instructions, the learned Government Advocate has submitted that there are vacancies available to the said post. 7.In that view of the matter, instead of directing the respondents to permit the appellant for his appointment at the time of next selection, we direct the respondents to appoint the petitioner in any one of the vacancies, which are available at present and consequently, provide him posting after training. With the above directions, the writ appeal is allowed and the order in the writ petition as well as the original order impugned in the writ petition are set aside. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sra To 1. The Secretary to Government State of Tamil Nadu, Home (Police II) Department, Fort St. George, Chennai. 2. The Director General of Police, Chennai. 1 cc To M/s.R.Dhineshkumar, Advocate, SR.47750 1 cc To The Government Pleader, SR.48007 W.A.No.1231 of 2009 AKR(CO) SRA(7/10/2009) https://hcservices.ecourts.gov.in/hcservices/