* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15th March, 2011
+ WP(C) 9314/2009
RAM HET MEENA ..... Petitioner
Through: Mr.U.Srivastava, Advocate
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Ms.Naina Kejriwal, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. Vide order dated 13.1.1990, it has been intimated
to the petitioner that the Appointing Authority finds him
unsuitable for service in CISF, a Central Para-Military Force.
2. Petitioner successfully cleared the selection process
for appointment as a Constable-Driver under CISF but on
account of being convicted for an offence punishable under
Section 336 IPC, was let off on probation, has been rendered a
person of questionable antecedents by the Appointing
Authority of CISF.
3. It would be noted that the petitioner was charged
WP(C) 9314/2009 Page 1 of 10
for offences punishable under Section 323, 324, 325, 336 and
341 IPC. There were 3 other co-accused. It was alleged that
the 4 accused had attacked one Anil on a boundary dispute in
the village. Pertaining to the offences punishable under
Section 323, 324, 325 and 341 IPC, the parties entered into a
compromise since the said offences were compoundable. As
regards the offence punishable under Section 326 IPC, the 4
accused voluntarily pleaded guilty and were let off on
probation. This is as per order dated 29.6.2006 passed by a
learned Judicial Magistrate.
4. We may note that the petitioner did not suppress
any information when he applied for the job. Filling up the
application form he truthfully disclosed that he was prosecuted
in a Criminal Court and when asked to clarify as to the nature
of the prosecution he truthfully disclosed his being convicted
and being let off on probation. He enclosed a copy of the
judicial verdict.
5. We highlight that it is not a case where the
petitioner suppressed the truth or tried to hide relevant facts
which had a bearing on his character verification.
6. On the issue whether any kind of brush with the
process of the criminal law resulted in a conviction should
render a citizen of this country ineligible for public
employment on the ground that a brush with criminal law is
indicative of immoral character or a character which renders a
person ineligible for public employment or renders it
undesirable to induct said person in public employment, in the
decision reported as 171 (2010) DLT 705 (DB) Government of
WP(C) 9314/2009 Page 2 of 10
NCT of Delhi & Anr. Vs. Robin Singh, in paras 16 to 38 it was
observed as under:-
16. It is no doubt true that police plays an essential
role of enforcement of law and order in modern
societies. Without an efficient police force, a society
would become anarchic. To ensure that the police
force of a state is efficient, the state must ensure that
each individual recruited to the police force, at
whatever level, must possess the following attributes:-
(a) Physical Strength and fitness/Free from medical
diseases.
(b) Emotional maturity, and ability to remain calm in
emotionally charged situations.
(c) Ability to exercise initiative in their work.
(d) Good moral character and integrity.
(e) The ability to carry a great deal of responsibility
in handling difficult situations alone/ dependability.
(f) Good Judgment
17. Keeping in view the above attributes, which are
the minimum required of a person who becomes a
member of the police force, it becomes the duty of the
State to carefully screen the candidates with reference
to the aforesaid attributes. But, what we find in India
is that the only screening done is with respect to the
moral character and integrity, physical strength and
free from medical disease. Evidenced by the instant
case, the first attribute is sought to be verified by
archaic means i.e. checking on the police dossiers or
relying upon information provided by the candidate
himself and the second, of physical strength, by
subjecting the candidates to a physical test, and of
being free from medical disease by conducting the
medical examination. No evaluation pertaining to the
emotional maturity, ability to remain calm in
emotionally charged situations, ability to handleWP(C) 9314/2009 Page 3 of 10
difficult situations and be responsive and the ability of
initiative in work is conducted.
18. We find that in some jurisdictions abroad, such
as United States of America, Canada, Philippines, to
name a few, a psychological test is conducted to
ascertain the suitability of candidates commensurate
to the nature of job they are being inducted to. At
times a polygraph test is also conducted to check the
deceiving tendencies of candidates. Because so much
public trust is placed in peace officers, candidates for
these positions are carefully screened to rule out
emotional instability, poor judgment, lack of
dependability, or other problems which might
negatively affect their law enforcement work.
19. A criminal record is a record of a person’s
criminal history, generally used by potential employers
to assess the candidate’s trustworthiness. The
information included in a criminal record varies
between countries and even between jurisdictions
within a country. In most cases it lists all non-
expunged criminal offenses and may also include
traffic offenses such as speeding and drunk-driving. In
some countries the record is limited to
actual convictions (where the individual has pleaded
guilty or been declared guilty by a qualified court)
while in others it also includes arrests, charges
dismissed, charges pending and even charges of
which the individual has been acquitted. The latter
policy is often argued to be a human rights violation
since it works contrary to the presumption of
innocence by exposing people to discrimination on the
basis of unproven allegations.
20. It is unfortunate that in India we are not
marching ahead in the comity of nations and prefer to
be governed by the recruitment processes which are a
legacy of the British era; ignoring that the purpose of
governance then was to rule and the purpose of
governance now is to serve.
WP(C) 9314/2009 Page 4 of 10
21. We have prefaced our decision with the
statement whether pendency of a criminal proceeding
or for that matter a conviction by a competent court of
law may justify eyebrows to be raised, but would it
justify the shutting of one’s eye?
22. Now, a man can be booked for the offence of
over-speeding and perhaps may be convicted for
parking his motor vehicle in a non-parking area.
Would this man be of a character, compelling in public
interest and for public good, not to induct him in public
service? The answer would be in the negative. As
against that, a man has committed murder or has
broken into a departmental store and stolen cash.
Would this man be of a character, compelling in public
interest and for public good, not to induct him in public
service. The answer would be in the affirmative.
23. Not to induct persons with a criminal background
in public service, is based on the premise that
considerations of public policy, concern for public
interest, regard for public good would justify a
prohibition. Thus, the primary consideration is,
whether public interest and public good would be
jeopardized if a person with a criminal background is
inducted in public service. And this takes us straight
to the core of the issue, whether brush with penal law
would justify the eyes to be closed against the
offender or only such brush with penal law which is of
a higher degree of criminality. If the answer is in the
negative, the further question: what should be the
higher degree of criminality which would justify the
eyes being shut to such person needs to be
addressed.
24. With respect to the first two examples given by
us in para 22 above, none would argue that for such
trivial offences the eyes must be shut against the
offender, and with regard to the next two, everybody
would agree that the eyes should be shut to such a
person who has to be ignored. We concede that the
examples are in the extreme, but they certainly help
us in understanding as to the process of reasoning
WP(C) 9314/2009 Page 5 of 10
required to be adopted to decide as to on which side
of the border-line a case would fall.
25. A look at the penal laws in India would show that
most of the penal offences can be categorized under
two broad categories i.e. felony and misdemeanour. A
further look at the sections stipulating penalties would
show that felonies are treated as more grave vis-à-vis
misdemeanours. Further, by classifying offences as
cognizable and non-cognizable, higher and lower
degrees of criminality to the offences can be
discerned. Further, by classifying offences as bailable
and non-bailable, the degree of criminality can be
further discerned.
26. The civil concept of an offence being of a
depraving character is to look at whether the act
complained of suffers from the tag of a moral
turpitude or not.
27. We do not intend to make a catalog of reported
decisions as to what misdemeanours should normally
attract the penalty of removal or dismissal from
service. We may simply state that with respect to
conviction for grave and serious offences alone, on the
anvil of public interest and for public good, Courts
have held that the offender has rendered himself unfit
to continue in office and in extreme cases summary
dismissal or removal from service by invoking Article
311 of the Constitution is also held justified.
28. Thus, we have a guideline of serious and grave
offences being the touchstone in case of the door
being shown to the government servant.
29. Looking through the prism of case law pertaining
to when can the door be shown to a government
servant and by doing reverse engineering we can
safely say that what is good for the door to be shown,
is good for prohibiting entry through the door, and
thus while denying public employment with respect to
the offence committed by a person, it can be said, and
we say so, that it may be a serious violation of the
WP(C) 9314/2009 Page 6 of 10
constitutional right of a citizen to be fairly treated in
the matter of public employment if trivial offences
committed by the citizen would justify the State
shutting its eyes and denying employment.
30. Having answered the question posed in para 1
above, and the answer being in favour of the citizen,
we need to answer the further question as to which
offences or brush therewith, would justify non entry
into public service.
31. We have a clue; of offences being grave, serious
and involving a moral turpitude justifying public
employment not being given. These would certainly
not justify the offender being inducted into public
service. None would disagree that convicted and fined
for parking a car in a no-parking area or convicted for
over-speeding would attract the de minimis principle,
but the problem would be in cases closer to the
borderline. For therein would lie the problem as to in
which side of the boundary line should they be
categorized.
32. It is unfortunate that in India, the Government
does not come out with white papers of the
deliberations at various seminars, but we find a
reference made to the ‘All India Seminar on
Correctional Service’ held at New Delhi in March 1969,
to consider and lay guidelines pertaining to the
problem of rehabilitation of ex-convicts, with emphasis
on the need for their employment under the
government. Vide OM dated 2.2.1973, No.6857-GSI-
72-2755, the State of Haryana has listed the penal
offences which have been treated as grave, serious
and involving moral turpitude. The said OM lists the
under-noted penal offences as grave, serious and
involving moral turpitude, disentitling the convict to
public employment; the offences are:- Sections 120-A,
121-A, 122 to 124, 161, 161-1A, 165, 167, 181, 182,
193 to 201, 205, 209, 293, 302, 304, 307, 354, 359,
362, 363 to 366, 366-A, 366-B, 367 to 373, 376, 377,
379, 380, 391, 392, 398 to 400, 403, 404, 406 to 409,
417 to 421, 449, 450, 453 to 458, 465 to 468, 471 to
WP(C) 9314/2009 Page 7 of 10
476, 477-A, 489-A, 489-B, 489-C, 489-D, 489-E, 493 to
498 of the Penal Code.
33. We are a little surprised at the list as it excludes
offences such as promoting enmity or doing acts
prejudicial to maintenance of harmony i.e. offences
punishable under Section 153-A IPC. It excludes
offences pertaining to mutiny and its abetment i.e.
offences under Sections 131 to 136 IPC. But we do not
comment. However, what we find is, the common
thread of including all offences against women and
such offences which are punishable with imprisonment
for life as also imprisonment for a term exceeding
three years and above. We get a clue. Offences
which do not carry a mandatory sentence of
imprisonment and it to be imprisoned the term is less
than 3 years and the offender can be let off with
payment of fine, are not included in the said list. It is
an undisputed fact that there are no rules to guide the
authorities in Delhi Police as to in what cases despite
acquittal, the person can be kept out of service or can
be deprived of employment.
34. That apart, as generically understood, offences
involving moral turpitude can be classified with
reference to the act being one which shocks the moral
conscience of the society in general and this can be
determined with reference to the motive of the
offender i.e. whether the motive which led to the act
was a base one or alternatively whether on account of
the act having been committed the perpetrator could
be considered to be of a depraved character or a
person who was to be looked down upon by the
society.
35. Today, with plea bargaining being a well-
recognized facet of the administration of criminal law
and a part of criminal jurisprudence in India, we do
perceive a large number of cases involving thousands
and thousands throughout the country, appearing
before the Summary Courts and paying small amounts
of fine, more often than not, as a measure of plea
bargaining. Foremost would be amongst them petty
WP(C) 9314/2009 Page 8 of 10
crimes committed mostly by the young and/or the
inexperienced. Some may even undergo a petty
sentence of imprisonment of a week or ten days. We
may also notice that Section 302 Cr.P.C. prescribes for
taking note of compoundable offences at the instance
of the complainant itself and there are cases where
compounding can take place with the permission of
the Court.
36. Life is too precious to be staked over petty
incidents and the cruel result of conviction for petty
offences being the end of the career, the future and
the present, of young and inexperienced persons
cannot blast their life and their dreams.
37. In a growing democracy, where the systems are
failing and the weak and the downtrodden are hardly
given the opportunity to sharpen their intellect
thereby diminishing the ability of their consciousness
to act as a mirror to their acts and actions, it is high
time that the executive brings into place a policy
where summary/ordinary conviction should not be
treated as a conviction for entry or retention in
government service.
38. Till then, it would be the duty of the Court to
interpret the law by harmonizing human sufferings
and human wants, delinquencies and criminal
tendencies; conscious of the fact that passengers on
Spaceship Earth are the rich and the poor, the needy
and the well-off, the hungry and the well-fed, the
educated and the uneducated. The need of the hour
is to understand that criminals are not born and are
not irredeemable brutes. Crime may be a disease but
not the criminal, who are a kind of psychic patients
and to understand, that anti-social maladies are
mostly the result of social imbalances. It must be
remembered that on the one hand, social stresses, for
various reasons, explosively mount in the real world’s
hard environs and the harsh remedy of heartless
incarceration and ouster from society deepens the
criminality. The swing of the pendulum to the
humanist side requires respect for the worth of
WP(C) 9314/2009 Page 9 of 10
personhood and the right of every man and woman in
its residual human essence.”
7. In the said decision, a person convicted of offences
punishable under Section 323/504/506 IPC was held not
rendered ineligible for public employment.
8. Accordingly, we dispose of the writ petition
quashing the order dated 13.1.2009 and issue a direction to
the respondents to reconsider the candidature of the petitioner
in light of the law laid down in Robin Singh’s case (supra),
relevant parts whereof have been extracted extensively
hereinabove.
9. Necessary decision would be communicated to the
petitioner within four weeks from today and further action
would be taken by the parties as per the said decision.
10. No costs.
(PRADEEP NANDRAJOG)
JUDGE
(SURESH KAIT)
JUDGE
MARCH 15, 2011
mm
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