O.P.(KAT).No.315 of 2023

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“C.R.”

THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

&

THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

FRIDAY, THE 15

TH

DAY OF MARCH 2024 / 25TH PHALGUNA, 1945

OP(KAT) NO. 315 OF 2023

PETITIONER/S:

BINNESH BABU@ BINEESH BABU,

AGED 35 YEARS

S/O BABU, RESIDING AT NIKARTHIL HOUSE, THIRUTHUMMA, CHEMPU

VILLAGE, VAIKOM, KOTTAYAM, PIN - 686608

BY ADVS.

R.REJI KUMAR

P.R.JAYAKRISHNAN

RESPONDENT/S:

1 THE STATE OF KERALA ,

REPRESENTED BY SECRETARY TO GOVERNMENT, HOME (SSB) DEPARTMENT,

THIRUVANANTHAPURAM, PIN - 695001

2 THE KERALA PUBLIC SERVICE COMMISSION,

REPRESENTED BY ITS SECRETARY, PATTOM PALACE PO,

THIRUVANANTHAPURAM, PIN - 695004

THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON

15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

AGAINST THE ORDER IN O.A.No.2377/2023 DATED 31/5/2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL

Sr.GOVERNMENT PLEADER SHRI A.J.VARGHESE

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A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ.

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O.P.(KAT).No.315 of 2023 “C.R.”

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Dated this the 15

th

day of March, 2024

J U D G M E N T

A.Muhamed Mustaque, J.

“Every saint has a past and every sinner has a future” is a famous phrase

from Oscar Wilde's play “A Woman of No Importance”

1. The petitioner, lacking any past accolades to boast of, hailed

from a marginalized community entrenched in poverty is caught in between

the province of fortune and condemnation. He carried a history of

criminal involvement long preceding his attempt at the competitive

examination for Police Constable (Kerala Armed Police Battalion). He was

advised by PSC on 18/7/2017. This advice was canceled by the Government

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by proceedings dated 23/3/2018 noting that he was accused of 9 crimes.

Citing Rule 10(b)(iii) of Part II of the Kerala State & Subordinate

Service Rules, 1958, the Government deemed him unsuitable for appointment

due to his questionable character and past indiscretions, thereby barring

his entry into public service.

2. The petitioner is a Scheduled Caste community member and falls

within the Below Poverty Line (BPL) category. He approached the Tribunal

challenging the Government's decision. The Tribunal did not interfere

with the Government's decision. This is how the petitioner approached

this Court.

3. The following are the nine crimes as referred to in the reply

statement filed by the official respondent/s before the Tribunal:

i) Vaikom Police Station.Cr.211/2004 U/s 447, 323, 324, 341, 326,

34 IPC The case is that due to the enmity towards the complainant, the

accused persons ( The applicant and his associates) criminally trespassed

into the house of the complainant on 20-04-2004, restrained the complainant

and attacked him with bike chain and stick and thus he sustained serious

injuries etc. This case 248(i) CrPC on 29 -09-2007 vide CC-535/2004 of

Judicial First Class Magistrate Court, Vaikom.

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ii) Thalayolaparambu Police Station Crime 251/2010 U/s 143, 147,

148,149,447, 294(b),323,324,427 IPC The case is that the accused persons

(The applicant and his associates) unlawfully assembled themselves on 15 -

07-2010 and criminally trespassed into the ho use of the complainant and

abused using filthy languages, attacked the complainant and his son using

iron rod and wooden logs and destroyed the house hold articles worth

Rs.1000/- etc. The applicant was the second accused in this case. This

case was acquitted U/s 232 CrPC on 22-08-2014 vide SC-352/2012 of District

& Sessions Court, Kottayam.

iii) Thalayolaparambu Police Station Crime 555/2011 U/s 12(10) r/w 20 of

KPRB and RR Sand Act - The case is that on 15-10- 2011, the accused (The

applicant) excavated 250 Cubic feet sand from Pullanthi river without any

sanction or license from authority concerned etc. This case was acquitted

U/s 255(i) CrPC on 27-022015 vide CC- 920/2013 of Judicial First Class

Court, Vaikom.

iv) Thalayolaparambu Police Station Crime 672/2011 U/s 12(8)(10) r/w 20

of KPRB and RR Sand Act - The case is that on 08-12- 2011, the accused

persons (The applicant & his associates) excavated about 200 feet sand

from Pullanthi river for sale without any sanction or license from

authority concerned etc. This case was acquitted U/s 256 CrPC on 07 -09-

2016 vide CC-298/2014 of Judicial First Class Court, Vaikom.

v) Thalayolaparambu Police Station Crime 22/2012 U/S 12(8)(10) r/w 20 of

KPRB and RR Sand Act - The case is that on 09-01- 2012, the accused persons

(The applicant & his associates) excavated sand from Pullanth river and

filled it: In a boat for sale witho ut any sanction or license from

authority concerned etc. In this case, the accused (The applicant) pleaded

guilty on 10-03-2014 and convicted and sentenced to fine Rs.1000/ - by the

Honourable Judicial First Class Court, Vaikom and the accused remitted the

amount vide ST- 1563/2012.

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vi) - Thalayolaparambu Police Station Crime 273/2012 U/s 12(10) r/w 20 of

KPRB and RR Sand Act The case is that on 11-04- 2012, the accused persons

(The applicant & his associates) excavated about 250 feet sand from

Pullanthi river and stored it for sale without any sanction etc. This case

was acquitted U/s 255(i) CrPC on 30-06- 2015 vide CC-779/2013 of Judicial

First class Magistrate Court, Vaikom.

vii) Thalayolaparambu Police Station Crime 431/2012 U/s 12(10) r/w 20 of

KPRBand Regulation of Removal of Sand Act The - case is that on 15-06-

2012, the accused (The applicant) excavated about 100 feet sand from

Pullanthi river and stored it for sale witho ut any sanction etc. In this

case the accused (The applicant) pleaded guilty on 31-03-2014 and convicted

and sentenced to fine Rs.1000/- by the Judicial First Class Court, Vaikom

and the accused remitted the amount vide ST454/2013.

viii) Thalayolaparambu Police Station Crime 761/2012 U/s 12(10) r/w 20 of

KPRB and Regulation of Removal of Sand Act The case is that on 15 -11-2012,

the accused (The applicant) excavated about 70 feet sand from Pullanthi

river and stored it for sale withou t any sanction etc. This case was

acquitted U/s 256 CrPC on 09-01-2017 vide CC-140/2014 of Judicial First

Class Court, Vaikom.

ix) Thalayolaparambu Police Station Crime 862/2012 U/s 107 This case was

registered against the applicant since he is continuously involved in

anti-social activities and committed breach of peace and in order to

prevent him from such activities, to obtain bond from him under section

107 CrPC to keep the peace. He executed bond on 18 -04-2013 before the Sub

Divisional Magistrate, Pala vide MC- 09/2013.

4. Apart from the above, the Government noted that the petitioner

neglected to disclose details of any convictions while completing the

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verification process. Consequently, the Government was of the view that

he suppressed material facts while the verification roll was filled.

5. As evident from the statement provided, he was acquitted in

all cases registered against him under the Indian Penal Code. The

conviction he faced was related to violations of the Kerala Protection

of River Banks and Regulation of Removal of Sand Rules, 2002. He pleaded

guilty to two offences and paid a fine of Rs.1000 each. Additionally,

he was subjected to a bond under Section 107 of the Cr.P.C .We examined

the initial offence registered against him, wherein the Magistrate’s

Court in C.C.No.211/2004 conclusively determined that the petitioner was

falsely implicated due to a family dispute with a close relative. In the

second crime registered against him, the criminal court specifically

noted that no one testified against the petitioner, who was implicat ed

merely to link them to the alleged crime. Crimes numbered 3 to 8 involve

the illegal removal of sand from the river by the petitioner and others.

In cases numbered 3, 4, 6, and 8, the petitioner was acquitted. In cases

numbered 5 and 7, he pleaded guilt y and was fined Rs.1000 each. Case

number 9 pertains to the invocation of Section 107 of the Cr.P.C.

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6. Part II Rule 10(b)(iii) of KS & SSR stipulates that no

individual shall be eligible for appointment to any service through

direct recruitment unless the State Government is satisfied that the

individual's character and antecedents qualify them for such service.

7. Upon reviewing the Government order, it appears that the

Government proceeded as though involvement in criminal cases would debar

a candidate from seeking public employment for appointment under public

service. It is crucial to note that what matters h ere is the character

background suitable for appointment in public service. ‘Character’ means

a person's pattern of thought and action especially regarding moral

choices.’[Taber's cyclopedic medical dictionary]. In the Bouvier's Law

Dictionary volume 1, 8th edition; character is defined as ‘the possession

by a person of certain qualities of mind or morals, distinguishing him

from others’.

8. If criminal cases reveal a character unsuitable for the

requirements of a public servant, then the character revealed in those

criminal cases becomes a relevant factor. The necessary traits required

include personal integrity, adherence to the law, and competence in

enforcing rules or laws. There must be a proximity of the history and

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considerations for keeping an individual in public service. The

antecedents, as mentioned in the rule above, should be of a nature that

gives room for the opinion that the individual's character has not

improved or reformed while being considered for appoi ntment in public

service. The past shall hold him but shall not withhold his aspirations

for improvement and progress. Society or the State should not harbor

contempt for such a person solely because he was involved in any criminal

case. The State's stance is to discourage individuals of ill repute who

lack character from holding public service positions, but that does not

mean a sinner's transgression should not contempt him indefinitely.

9. We examined this case from a factual background and found

that absolutely no overt act was proven in the IPC offence registered

against him. The Criminal Court concluded that no evidence was available

to link the petitioner to the case. We , in State of Kerala v.Durgadas

(2023 KHC 637), held that opinion regarding character cannot be solely

based on prosecution allegations. In cases of acquittal, there must be

an independent inquiry into the incidents mentioned in the prosecution's

allegations. No such inquiry was conducted in this matter. The

petitioner paid a fine of Rs.1000 twice. This burden of fine weighs

heavily on him. In a country where legal proceedings are often

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unaffordable, litigation becomes a luxury for those in dire circumstances

who may find themselves drowning in the misery of their misfortunes, one

would prefer condemnation by paying a fine rather than face the ordeal

of trial and drain of a purse. It is not uncommon within the system for

the police to hold the most vulnerable and most deprived accountable to

the law when they fail to capture real culprits who fled from the clutches

of the law. The petitioner should not carry the stigma of being convicted

twice for Rs.1000/- indefinitely. The State overlooked the fact that the

petitioner belongs to the less fortunate members of society who struggle

to afford a square meal a day. In public service, past achievements alone

are not enough, one must consistently demonstrate good character until

retirement. What prevents the State from appointing a candidate to public

service is the candidate's character. All the cases against him were

registered five years ago, before he received the appointment advice.

There is no proximity to the period during which he received the

appointment advice for public service. The live link of the character

from the time of the last prejudicial offence must be maintained to

prevent him from joining public service. The State still has a mple

opportunity to oversee his character when he starts working in public

service. He should not be condemned indefinitely. The State glossed over

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that belongs to the Scheduled Caste community and comes from a Below

Poverty Line (BPL) family whose members suffer inequalities and social

backwardness in social structure. The unbalanced scale of justice

represents him. The mighty hand of State must tilt the scale of justice

to align the lives of those who are vanquished by circumstances. The

State must raise its role as a responsible welfare State to secure social

citizenship, instead of acting solely as an authority wielding power

to enforce its will. If this tiny man is lost, a generation is lost. Our

power corridors are built in a negative frame to find fault with a person

rather than to soothe fears or instill a sense of responsibility to

transform him into a responsible citizen. We all need to be reminded

that every individual's struggle is against their past, and those who

realize their past mistakes and are prepared to move towards the f uture

are the ones who truly enhance the beauty of the world. Past achievements

not necessarily determine one's future as bright. One who learns from

his past and fears distrust of everyone in the future is truly valuable.

In the realm of public employment, the past is relevant but not decisive.

If sinners are not allowed to reform, we all will become sinners. Section

86(2) of the Police Act, 2011 had indeed acknowledged this notion and

asserted that an individual involved in a criminal case, particularly

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those involving violence or moral turpitude, would not be eligible for

appointment unless he is acquitted. We had advert to the rules governing

the character vis-a-vis in Durga Das case (supra) and opined that

general provisions of KS&SSR would bind even if such cases result in the

acquittal of that candidate.

10. We observed that the payment of fines and all the criminal

cases occurred between 2010 and 2012, and there is no live link to his

character for consideration in public employment or appointment. The

past is the past. The system should not foster disma y and condemnation

towards him indefinitely. Let us all be beacons of hope, despite his

condemnation, poverty, and marginalization by societal structures.

11. We noted in the verification report that he mentioned cases

and convictions. Clause 19 requests the disclosure of offences for which

he was convicted. Unfortunately, these clauses are in English and are

also confusing. In response to the clause, he mention ed that he had

cases, but it was over two years ago. However, he did not provide the

case numbers. This does not necessarily imply suppression since he did

refer to the cases he was involved in. Any prudent person could have

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requested details of the cases. Non-disclosure of case numbers cannot be

interpreted as suppression. If he had not disclosed the cases at all,

it would indeed hold against him. However, in this case, it was a curable

defect.

12. The petitioner's counsel relied on the well -known Jean

Valjean, the story of the less fortunate. Jean Valjean is the protagonist

of Les Misérables and is a character who changes throughout the story.

Valjean is a hardened criminal who is released from prison after 19 years

for stealing a loaf of bread to feed his starving family. He emerges

from prison as a bitter man, filled with disdain for societ y. When a

Bishop, M. Myriel, shows him kindness, he decides to change his ways and

becomes a business owner and a loving father to Cosette. Valjean is a

test case for Victor Hugo's theories about the redemptive power of love

and compassion. (source - Google Generative AI)

13. The State must act with fairness and genuine concern for its

citizens, striving to achieve the status of a true welfare State by

addressing social disparities and acknowledging that not everyone has

the same access to resources and opportunities. These disparities result

in diverse challenges. An individual's personality varies in social

structure based on traits, social and cultural environment, family

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background etc. Uniform standards are inadequate for effectively

addressing these challenges. Recognising that individuals are shaped by

unequal circumstances and may not receive equal respect, the State shall

tailor its response to the circumstances based on the relative

requirements. The State should realize that social upbringing shapes

character and there is no single form of social upbringing due to diverse

circumstances. Attempting to apply identical measures (in a matter like

this relating to character) to all individuals can be counterproductive

to the State’s larger objectives. Instead, the State should focus on

evolving character, by fostering a sense of belonging within the desired

societal framework. Condemnation alienates and deepens social divisi on

resulting in further marginalizing those who have already been

marginalized.

14. This case serves as a reminder of those less fortunate

individuals who have faced obstacles due to the overwhelming power of

the State. A quote from Najwa Zebian in her famous book "Sparks of

Phoenix" is befitting here. “Strength does not mean that you have no

struggle or that you are completely at peace with a hurtful past . It

means that you don't allow the past to make you shrink and fall again”.

Thus, the petitioner succeeds. Cancellation of advice is set aside. We

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direct the respondents to appoint him in accordance with the law based

on the advice.

The original petition is disposed of as above.

Sd/-

A.MUHAMED MUSTAQUE, JUDGE

Sd/-

SHOBA ANNAMMA EAPEN, JUDGE

ms

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APPENDIX OF OP(KAT) 315/2023

PETITIONER EXHIBITS

Exhibit P.1 CERTIFIED COPY OF THE ORDER DATED 31-05-2023

IN OA NO.2377/2021 OF THE KERALA

ADMINISTRATIVE TRIBUNAL, ADDITIONAL BENCH,

ERNAKULAM

Exhibit P.2 CERTIFIED COPY OF THE OA NO.2377/2021 ISSUED

BY THE REGISTRY, KAT, ADDITIONAL BENCH,

ERNAKULAM

Exhibit P.3 TRUE COPIES OF THE RELEVANT PAGES OF THE

RANKED LIST DATED 21 -06-2016 FOR THE POST OF

CONSTABLE (KAP 1 BATTALION), ERNAKULAM

PUBLISHED BY THE 2ND RESPONDENT

Exhibit P.4 TRUE COPY OF THE NOTIFICATION DATED 29 -05-

2018 ISSUED BY THE 2ND RESPONDENT CANCELLING

THE EXT P.3 RANKED LIST

Exhibit P.5 TRUE COPY OF THE GAZETTE NOTIFICATION DATED

12-03-2015 FOR THE POST OF CONSTABLE (KAP 1

BATTALION), ERNAKULAM ISSUED BY THE 2ND

RESPONDENT

Exhibit P.6 TRUE COPY OF THE GO DATED 05 -06-2009 ALONG

WITH ANNEXURE 1 ATTESTATION FORM ISSUED BY

THE ADDITIONAL CHIEF SECRETARY, GOVERNMENT

OF KERALA

Exhibit P.7 TRUE COPY OF THE REPLY STATEMENT DATED 31 -

12-2018 FILED BY THE 1ST RESPONDENT IN OA

NO.1116/2018 BEFORE THE HON'BLE KERALA

ADMINISTRATIVE TRIBUNAL

2024/KER/25992