Central Administrative Tribunal - Jabalpur
Mukesh Gupta vs M/O Home Affairs on 12 April, 2022
1 OA No.200/564/2020
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/564/2020
Jabalpur, this Tuesday, the 12thday of April, 2022
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
HON'BLE MR. B.V. SUDHAKAR, ADMINISTRATIVE MEMBER
Mukesh Gupta, Director General of Police, State of Chhattisgarh (Under
Suspension), S/o ShriJaideo Gupta, aged about 57 years, R/o-E-2, Civil Lines,
Raipur, Chhattisgarh- 492001.
-Applicant
(By Advocate - Shri A.K. Behra, Sr. Advocate
assisted by Shri S.K. Gautam)
Versus
1. State of Chhattisgarh through its Chief Secretary Chhattisgarh Secretariat,
D.K.S BhawanMantralaya Raipur, Chhattisgarh - 492001.
2. Union of India through its Secretary, Ministry of Home Affairs,
Government of India North Block, New Delhi - 110001.
3. Director General of Police, Police Headquarter Sector - 19, Atal Nagar,
Raipur, Chhattisgarh.
4. ShriBhupeshBaghel, Hon'ble Chief Minister, State of Chhattisgarh, CM
House, Raipur, Chhattisgarh - 492001
-Respondents
(By Advocate - ShriNamanNagrath, Sr. Advocate assisted by Shri Ajay
Ojha for respondents Nos.1 & 3)
(Date of reserving order : 04.04.2022)
Page 1 of 56
2 OA No.200/564/2020
ORDER
By B.V. Sudhakar, Admn.Member The OA is filed challenging the order dated 12.9.2020 annexed to the Caveat application filed by the respondents and to protect his status as DGP.
2. Brief facts of the case that need to be adumbrated are that, the applicant is a 1988 batch Indian Police Service (for short IPS) officer of the Madhya Pradesh (for short M.P) cadre and is a recipient of Police Medals for Gallantry in 1996/2011. With the bifurcation of the State of M.P, he was allotted to the Chhattisgarh State cadre of IPS in the year 2000 and thereafter, he rose to the rank of Additional DGP by 2012. On 6.10.2018, after being elevated as DGP on regular basis, by creating 3 temporary posts in addition to the existing 4 regular posts of DGP as on 27.12.2017 for a period of 2 years by invoking relevant IPS cadre rules, the post of Chief of Intelligence and Head of Economic Wing (for short EOW) and the ACB of the State of Chhattisgarh, held by the applicant since 2014 as additional DGP was elevated to the rank of DGP. Applicant has registered 3 FIRs relating to the Irrigation Scam,NagarikApurti Nigam(for short NAN) and the allotment of land for low income groups wherein R-4, the then President of the Chhattisgarh Page 2 of 56 3 OA No.200/564/2020 Pradesh Congress Committee as well as sitting MLA was alleged to be involved. Criminal cases have been filed in all the 3 cases cited and are under adjudication. On the same day of creation of temporary posts in DGP cadre, a proposal was forwarded to the Central Govt. for creating 3 permanent posts in the DGP cadre, which was declined on 12.10.2018. With R-4 taking over the reins of the State on 17.12.2018 as Hon'bleCM, many adverse events took place in his career. However, on approaching the judicial fora at different levels the applicant was duly protected from any immediate adverse State action. Nevertheless, the cabinet met on 24.9.2019 without any agenda and cancelled the promotion granted hitherto as DGP vide memo dated 6.10.2018. Another DPC was held on 12.9.2020 promoting 2 officers, who were promoted along with applicant in 2018 and another junior officer. The case of the applicant is reported to be considered and kept in a sealed cover. Thereafter, respondents served the order dated 12.9.2020 along with the caveat filed before the Tribunal. Aggrieved over the same the OA is filed.
3. The contentions of the applicantare that after the Respondent No.4 was elected as theHon'ble CM on 17.12.2018,he was transferred from the post held without giving a posting; FIRs were lodged against him and was suspended on 9.2.2019 leading to the issue of departmental charge Page 3 of 56 4 OA No.200/564/2020 sheets on 6.3.2019/14.8.2020. Further, R-4 was met by the accused in the NAN Scam and based on his representation, a report was called from the new Chief of EOW, finally leading to the suspension of the I.O in NAN scam on 3.1.2019. Applicant also alleges that R-4 has adversely commented about the applicant in a press interview/ public meeting on 20.12.2018/ 10.2.2019 respectively. FIRs were registered against the applicant in NAN/ Irrigation scam on 7.2.2019/11.2.2019 vide FIR Nos. 6/2019 & 7/2019 foralleged illegal interception of telephone calls. The respondents attempted to arrest the applicant after registering the FIRs cited but on approaching the Hon'ble High Court of Chhattisgarh on 15.2.2019 the SIT formed was restrained from carrying out a fresh investigation in NAN scam and interim stay orders were passed on 18.4.2019 preventing arrest of the applicant. Departmental charge sheet was issued vide memo dated 6.3.2019 based on the same charges contained in FIR Nos.6/2019&7/2019 and this Tribunal has protected the applicant on an interim basis from the departmental inquiry by passing appropriate orders on 12.7.2019. When a third FIR bearing No.605/2019 was filed against the applicant on 17.6.2019,he approached the Hon'ble Apex Court in WP (Criminal) No.230/2019 wherein the Hon'ble Apex Court has stayed investigation in respect all the 3 FIRs registered, vide directions dated 2.9.2019. Applicant claims that being peeved with the Page 4 of 56 5 OA No.200/564/2020 protection given by the judicial forum and in order to harass him,respondents have started tapping the phone numbers of the family members, maid servant & the driver in the months of Sep/Oct 2019. Again, with the intervention of the Hon'ble Apex Court, the tapping referred to was stayed on 25.10.2019. Besides, FIRs filed by the State Govt. against the counsel fighting his cases and applicant's father as well as a lady doctor were stayed by the Hon'ble Supreme Court on 4.11.2019/25.6.2020. Respondents initiated another set of disciplinary proceedings dated 14.8.2020, by involving the daughter of the applicant and when challenged before the Hon'ble Apex Court in WP No.1128/2020, the same was stayed on 9.10.2020.
The applicant by furnishing the incumbency position of the DGP posts on 24.9.2019/ 01.12.2019, claims that he is eligible to be considered for one of the 4 permanent posts of DGP as on 1.12.2019. Applicant affirms that R-4, after failing to harm him by filing criminal cases etc, as adduced supra, has resorted to cancelling of the promotion granted. The order of cancellation of promotion has not been served on the applicant and therefore, the order of promotion dated 6.10.2018 holds good. The applicant is retiring in Sep 2022 and keeping the same in view, adverse decisions cited have been taken.Respondents, it is learnt have held a DPC on 12.9.2020 and after considering the case of the applicant Page 5 of 56 6 OA No.200/564/2020 afresh,have kept the same in a sealed cover, which is incorrect since the applicant has already been promoted in 2018 on a regular basis by a duly constituted DPC and the same has not been modified by any lawful order.The respondents along with a caveat application dated 17.9.2020 filed before the Tribunal have served the order dated 12.9.2020 wherein two officers, who were promoted along with the applicant on 6.10.2018 were again promoted as DGP and in addition, another officer from 1989 batch was also promoted. The said order is not an adverse order except to draw an inference that since junior to the applicant having been promoted would mean that the applicant has been reverted as per the respondents' point of view. In the State of Punjab, there are 4 regular posts of DGP and 10 DGPs are working. Similar is the case in respect of the States of Haryana, M.P, Rajasthan, Orissa and therefore, respondents cannot take a different stand. The GOI has never refused permission for creation of temporary posts of DGPs as per IPS (Cadre)Rules. No notice was issued before withdrawing the promotion as is required under the Principles of Natural Justice. R-4 has submitted a complaint to the then CM to remove the applicant from the post of Chief of EOW/ACB and as per Ld. Counsel for the applicant, he is not favorably disposed towards the applicant as evidenced from the criminal /disciplinary cases initiated against the applicant.Applicant is being paid subsistence allowance Page 6 of 56 7 OA No.200/564/2020 based on leave salary admissible in terms of the pay and allowances drawn as DGP at the time of suspension till date, in accordance with Rule 4 (1) of the All India Services (Discipline and Appeal) Rules 1969.
4. Respondents raised preliminary objections claiming that the caveat application filed by them cannot be the basis for the cause of action to file the OA. Applicant has misled the Tribunal by stating that he has no knowledge of the impugned decision.Applicant has sought the copy of the order without even approaching the respondents and that as per documents on record the applicant was aware of the decision dated 26.9.2019. Applicant has absolute knowledge that his temporary promotion was withdrawn/cancelled as is evident from the notice dated 26.2.2020 issued by the advocate of the applicant, I.A (R-2) filed by the applicant before the Hon'ble Apex Court and paras 4.34/4.42 of the OA.The applicant has not indicated as to what steps he has taken to obtain a copy of the order in question. It is incorrect to state that the applicant has been promoted on a regular basis. The order passed on 26.9.2019 withdrawing the earlier promotions granted on 6.10.2018 has been communicated to the 3 officers by Dak Book entries. Other 2 officers have joined the lower posts. It is the look out of the applicant to make necessary arrangements to ensure that letters addressed reach him at his official residence at Raipur. The OA is barred by limitation as Page 7 of 56 8 OA No.200/564/2020 more than a year has lapsed since 26.9.2019. In the past too temporary promotion to a similarly placed officer was withdrawn in the absence of concurrence from GOI, vide memo dated 1.4.2010. Hence for reasons stated above the respondents assert that the OA is not maintainable. The applicant has rebutted the preliminary objections by relying on the verdict of the coordinate bench of this Tribunal in IlaChoudhary v UOI in (1989) 9ATC 546 to aver that there need not always be a formal order to be challenged for approaching the Tribunal. A service grievance under section 19 would do. OAs can be filed apprehending adverse action. The order dated 26.9.2019 was produced after the OA was filed but was not served on the applicant. Applicant cited the judgment of the Hon'ble Apex Court in PasupulatiVenkataswarlu v Motor and General Traders, (1975) 1 SCC 770 to acclaim that the Court should take cognizance of the events subsequent to filing of the court proceedings by applying the rules of fairness. It is fair to mould the relief in the light of the updated facts and that rights vested in a party cannot be negated by subsequent events as held by the Hon'ble Apex Court in Rameshwar&Ors v Jot Ram &Anr., (1976) 1 SCC 194. Taking the relaxation provided by the Hon'ble Supreme Court in filing cases due to Covid, the question of limitation would not apply to the instant case. Page 8 of 56 9 OA No.200/564/2020 The Tribunal, after hearing both the sides and on perusing the relevant records, has dismissed the preliminary objections raised vide its order dated 15.12.2021. The order of the Tribunal was challenged before the Hon'ble High Court in WP No.1035/2022 wherein the pleas raised by the respondents were rejected resulting in the Writ Petition getting dismissed on 14.3.2022.
Thereafter, respondents R-1 & R-3 filed a reply statement stating that the applicant belongs to 1988 batch of IPS and was suspended on 9.2.2019 for violation of AIS (Conduct) Rules leading to issue of charge memos on 6.3.2019/14.8.2020 and challenging the said memos, applicant filed OA 566/2019, for which, a reply has been filed. The same allegations have been repeated in this OA. While working as SP, Ujjain, applicant has invited the displeasure of the disciplinary authorities in the year 2000 (R-2/3-1). The registering of FIRs by the applicant is a part of his routine policing duty and there is nothing extraordinary about them. The details of the cases mentioned have no relevance to the case on hand and some of the cases referred to are sub judice. Closure report in respect of FIR 17/2017 has been accepted by the competent authority.The State Govt. has decided to create 3 posts of Special DG/DG (Ex-Cadre) in Level 16 of the Pay Matrix vide letter dated 4.12.2017 (R-3) after obtaining the concurrence from GOI, which is mandatory as per law.However, GOI Page 9 of 56 10 OA No.200/564/2020 citing memo dated 21.1.2015 refused concurrence vide letter dated 11.12.2017 (R-4).Thereafter, 3 posts were created in the rank of SDG/DG (Ex-cadre Post) for a period of 2 years starting from 1.1.2018 to 31.12.2019 in the Level 16 of the Pay Matrix and at the same time, a fresh proposal was sent to the GOI for concurrence (R-5). The applicant was promoted on a temporary basis and not on a regular basis since the post to which the applicant was promoted was a temporary post. In fact, temporary promotion was granted to 3 officers vide order dated 6.10.2018 to the post of Special DG awaiting concurrence from GOI. However, GOI again refused concurrence vide letter dated 12.10.2018. The transfer of the applicant was carried out as a part of general administrative reshuffle in public interest. Reports in media cannot be a basis to allege bias by the applicant about the decisions of the respondents.The I.O in NAN case was suspended for not following the procedure prescribed by EOW/ACB and later he was reinstated after receipt of his reply.The applicant has not been targeted and that since rules were not followed action was initiated against him as is required under rules/law. Most of the cases initiated are under adjudication by the judicial fora and the subject matter of the said cases is in no way related to the dispute on hand. Considering the nature of the offense committed and reckoning the fact that the applicant being a senior officer is likely to Page 10 of 56 11 OA No.200/564/2020 influence the witnesses, he was suspended. In the order of the Hon'ble High Court dated 15.2.2019, it was directed that the SIT may not act in a manner, which is prejudicial to anybody till its status is finally decided by the court. The charge sheet has been issued by following the rules and it has nothing to do with R-4 taking over as CM. Steps have to be taken to arrest a person against whom FIRs are registered as is required under law. The allegation that the applicant is harassed has been denied. In fact, the applicant has not been cooperating with the investigation authorities and on the contrary,he has been threatening them. Questioning the functioning of the Cabinet has to be avoided. Regarding delivery of the order dated 26.9.2019 withdrawing the promotion dated 6.10.2018, respondents repeated the contentions raised in the preliminary objections to the OA filed by them. The GOI vide Hon'ble Union Home Minister letter dated 12.1.2018 did not concur for creation of posts at DGP level while replying to the DO letter of the Hon'ble CM dated 16.12.2017 much prior to the present dispensation took over the governance of the State. The disciplinary proceedings were initiated as per rules after being not satisfied with the reply given by the applicant in regard to his second marriage which was later stayed by the Hon'bleHigh Court in WP No.1128/2020. An OA cannot be filed taking the caveat filed by R-1 as the cause of action. The DPC that met later Page 11 of 56 12 OA No.200/564/2020 placing the case of the applicant in a sealed cover would mean that there was some proceeding against the applicant propelling sealed cover process to be adopted. The subsistence allowance of the applicant was revised vide order dated 8.12.2020/ 15.1.2021 (R-2) in pursuance of the order dated 26.9.2019. Additional submissions of the respondents were gone through and we find them to be mostly a repetition of those filed as preliminary objections.
Applicant filed a rejoinder wherein he states that the legal notice dated 26.2.2020 and the IA filed by the applicant in WP (Crl.) No. 230 of 2019 only indicate that the knowledge of the applicant was limited to the factum of the cabinet decision dated 24.9.2020. The action of the Govt. is conclusive when the provisions of the Constitution and Business Rules under Article 166 (3) of the Constitution are complied with. Between the Cabinet decision and its implementation, there could be changes. In the States of M.P, Haryana, Punjab & Orissa, the number of DGP posts are in excess of the sanctioned strength. The power given to the State Govt. to create posts has not been withdrawn. The respondents have improperly averred that the order dated 26.9.2019 was served by referring to the stamp account register which indeed is not a dispatch register. A Dak Book has to have details of the senders/addressees with running serial along with dates etc and the postage stamp expenditure Page 12 of 56 13 OA No.200/564/2020 cannot double up as a Dak Register. Delivery of document is confirmed only if Section 27 of the General Clauses Act, 1897 is satisfied. Procedure prescribed under law to deliver a document has to be followed.There is no date specified about the date of delivery of the order under question. When the date of delivery of the order dated 26.9.2019 is not indicated then the question of limitation under Section 21 of the AT Act would not arise. The applicant has challenged adverse orders issued against him in time. Therefore, the contention that the applicant used the caveat as a basis for filing the OA is baseless. Service of an order through a caveat was never heard in the annals of legal history. The cause of action is about the reversion of the applicant and the relief sought was production of such a document which was done by annexing the reversion order along with the reply statement dated 1.10.2020. The incident of 2000 reported by the respondents is irrelevant to the present dispute. The FIRs got registered by the applicant are of relevance since R-4 is one of the accused in the cases cited. The fact that the closure report in FIR No.17/2017 accepted by the competent court was challenged before the Hon'ble High Court in CRR No.114/2020 has not been revealed by the respondents. Filling up of temporary posts does not require concurrence of GOI as per Rule 4(2) of IPS (Cadre)Rules, 1954 and confirmed by the Law Department while responding to the Page 13 of 56 14 OA No.200/564/2020 GOI letter dated 12.10.2018. Subsequently, the State Govt. has sent the name of the applicant vide letter dated 17.12.2018 (A-28) to GOI for selection to the post of the DGP (Head of Police Force) of the State. The GOI letter dated 12.10.2018 has only sought a factual position in regard to the number of DGP posts. The temporary posts created have to subsist upto 31.12.2019.The promotion of the applicant as DGP was not temporary, but permanent. The post of DG created was temporary, but the promotion was permanent. Law permits regular promotion against temporary posts. Applicant has been targeted as per authentic media reports. The suspension and revocation orders of the I.O in NAN case do not contain reasons and that there is no procedure prescribed by EOW in regard to filing replies by the I.O in the competent court. The motive to suspend the I.O was to obstruct the investigation in NAN case and falsely implicate the applicant in the said case. The IAS officers Sri Tuteja and Sri Shukla, who have been named in the charge sheets have not been suspended, whereas the applicant was suspended based on filing of false FIRs, which have been stayed by the Courts, implying bias on the part of the respondents. Despite the Hon'ble Apex Court staying the proceedings initiated vide FIR Nos. 6/2019 &7/2019, which form the basis for suspension, the applicant is continued to be kept under suspension. The members of the SIT formed in NAN trial are the Page 14 of 56 15 OA No.200/564/2020 complainants in the FIRs 6/2019 & 7/2019.The applicant has been cooperating with the investigating authorities and true to speak, the EOW refused to record the statement of the applicant in respect of FIR No.7/2019 after having been summoned. To record his statement, the applicant went to the extent of representing to the Chief Secretary on 6.5.2019. The complaint filed by the private person Sri Manik Mehta on 17.6.2019, a perpetual complainant, for alleged offences, which are 21 years old, is similar to the one filed by R-4 on 15.5.2014, which was examined and closed. As a citizen, the applicant has the right to question a wrong decision of the State. The respondents have delivered official letters by hand through senior police officers under acknowledgement by the applicant or his representative. Applicant claims that there are 40 such letters delivered. Some letters were delivered through the advocate of the applicant Sri Amin Khan and they were duly acknowledged. When the applicant or his representatives were not available the official letters were pasted at the official residence. Further, when the respondents were informed that he has shifted to Delhi which was duly admitted by them in their reply in OA 566/2019 and yet, the order dated 26.9.2019 was not sent to the Delhi address, though some other letters including the caveat were sent to the Delhi address. Applicant has been corresponding with the respondents from March 2019 citing the Delhi Page 15 of 56 16 OA No.200/564/2020 address. The respondents admitted on one hand before the Hon'ble Apex Court in WP (Crl.) No. 230/2019 that they have deputed a team of officers from Chhattisgarh to New Delhi and intercepted the phones of the family members to trace the applicant for serving notices and on the other hand, respondents felt that the order dated 26.9.2019 could be allegedly served by simple post. Strangely before and after 26.9.2019, respondents adopted the delivery of letters as explained but to deliver the order 26.9.2019, they have deviated from the regular procedure followed.Knowledge of the Cabinet decision would not mean delivery of the order dated 26.9.2019 and in the legal notice dated 26.2.2020 by the counsel of the applicant, there was only a mention of the Cabinet decision. Even in the IA cited, it was mentioned that an order was passed on 24.9.2019 withdrawing the promotion but it was not about any order dated 26.9.2019. Delivering the order is the responsibility of the respondents and it is not for the applicant to seek the order.Respondents on 5.4.2019 have fixed the subsistence allowance as that of DG as per Rules after he was placed under suspension. The same was paid for 15 months after the alleged withdrawal of the promotion order. After filing the OA, the said allowance was reduced vide orders dated 8.12.2020/15.1.2021 hurriedly. The order in 2010 is about an officer Sri Paswan, who completed his 2 years tenure unlike in the case of the Page 16 of 56 17 OA No.200/564/2020 applicant. Creation of additional ex-cadre posts has been done by the respondents on multiple occasions. The 2 other officers promoted vide order dated 6.10.2018 were also mechanically demoted though they were within the sanctioned strength of (2+2) by 30.6.2019/31.8.2019.
5. Heard the counsel and perused the pleadings on record.
6. The Dispute.
I. The crux of the dispute is about the withdrawal of the promotion of the applicant as DGP granted to him on6.10.2018. From the facts, it is not under dispute that applicant belongs to the 1988 batch of IPS of the Madhya Pradesh State cadre and he was awarded the Police Medals for Gallantry in 1996/2011. Pursuant to the bifurcation of the State of M.P, he was allotted tothe Chhattisgarh State cadre of IPS in the year 2000. Thereafter applicant was promoted to the post of Inspector General of Police in 2006 and Additional DGP on a regular basis in 2012. In 2014the applicant was posted as Chief of Intelligence/ Head of Economic Wing (for short EOW)/ ACB of the State of Chhattisgarh and in the discharge of his duties in the said post applicant has registered 3 FIRs bearing the numbers as 05/2015,09/2015 & 17/2017 relating to the Irrigation Scam, NagarikApurti Nigam scam ( for short NAN) and the Page 17 of 56 18 OA No.200/564/2020 allotment of land for low income groups in which it is alleged that R-4, the then President of the Chhattisgarh Pradesh Congress Committee as well as sitting MLA was involved. By an order dated 6.10.2018 the applicant was promoted as DGP after the creation of 3 temporary posts of DGP by the State in terms of Rule 4(2) of IPS (Cadre)Rules, 1954. The post of Chief of Intelligence/EOW/ACB held by the applicant was elevated to the rank of DGP vide the promotion order referred to.
Preliminary objections.
II. With R-4 taking over as Hon'ble CM of the State on 17.12.2018, the applicant avers that, many prejudicial decisions were taking against him leading to filing of 4 FIRs, initiation of 2 disciplinary cases, suspension of the applicant and withdrawal of promotion to the post of DGP, which is the core aspect of the present dispute that requires adjudication. The applicant claims that the order of withdrawal of promotion dated 26.9.2019 was not served on him while as the respondents claim that it was served. The respondents at the admission stage of the OA have raised 3 preliminary objections about the maintainability of the OA, concealment of facts relating to the cause of action and limitation in filing the application. Applicant rebutted them by Page 18 of 56 19 OA No.200/564/2020 relying on the relevant judicial pronouncements. The Tribunal vide order dated 15.12.2021 elaborately dealt with the 3 issues and rejected them. Same was the fate when the Tribunal order was challenged before the Hon'ble High Court by the respondents in WP (S) No.1035 of 2022 dated 14.3.2022.The relevant portion of the Hon'ble High Court order is extracted here under:
"10. The learned Tribunal noted that, in essence, three preliminary objections had been raised regarding maintainability of the OA: (i) no particular order has been challenged, (ii) OA suffers from deliberate and conscious concealment of facts relating to cause of action of impugned position/order, which amounts to misrepresentation, and (iii) the OA is barred by limitation. The learned Tribunal held that there must be existence of service grievance for maintaining the OA under Section 19 of the Administrative Tribunals Act, 1985, and in the context, relied on the judgment of the Tribunal in IlaChoudhari v. Union of India, reported in 1989 (9) ATC, wherein the Tribunal had held that there must be an existence of service grievance for maintaining an OA, and concluded that the materials on record demonstrate that the applicant has a service grievance and there is no ambiguity in claiming the reliefs. The Tribunal negated the plea of misrepresentation alleged to be resorted to by the petitioner by holding that the conduct of the respondents in placing the order on record makes it clear that the order had not been served upon the applicant. The plea raised that the OA is barred by limitation was also rejected.
11.Mr. NamanNagrath, learned senior counsel for the petitioners has submitted that as the applicant did not challenge any particular order and had filed the case before the learned Tribunal only on the basis of a caveat, it is apparent that there was no cause of action for filing the OA. It is submitted that there was no cause of action even otherwise inasmuch as creation of post and promotion of the applicant along with two others was without prior concurrence of the Government of India, which is mandatory. Despite the applicant having full knowledge of the relevant facts, demonstrated by the legal notice dated 26.02.2020 and the IA filed before the Hon'ble Supreme Page 19 of 56 20 OA No.200/564/2020 Court, a deliberate false plea was taken by feigning ignorance of the orders passed against him. It is further submitted that the OA is barred by limitation as one year had elapsed from the order dated 26.09.2019. It is emphatically submitted that the order dated 26.09.2019 was communicated to all the three officers and was duly mentioned in the Dak Book to the effect that the same was served upon the officers, including the applicant. It is submitted that the learned Tribunal did not consider the preliminary objection raised for dismissal of the OA in proper perspective.
12.Mr. Ajay K. Behara, learned counsel for the respondent No. 1 submits that all that is necessary for maintainability of an application before the learned Tribunal is that there must be a service grievance and it is not essential that there should always be a formal order in existence for approaching the Tribunal. He relies upon the order of the learned Tribunal for dismissal of this petition. He has also placed reliance on a judgment of the Hon'ble Supreme Court in the case of D.P. Maheshwari v. Delhi Administration & Others, reported in (1983) 4 SCC 293.
13. We have considered the submissions of the learned counsel for the parties and have perused the materials on record.
14. In D.P. Maheshwari (supra), the Hon'ble Supreme Court had observed that there was a time when it was thought prudent and wise policy to decide preliminary issues first but time appeared to have arrived for a reversal of that policy. It was observed that it was better that Tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardize industrial peace, should decide all issues in dispute at the same time without trying some of them as preliminary issues.
15. The specific case presented by the applicant is that neither a copy of the Cabinet decision nor the copy of the order dated 26.09.2019 by which the promotion order dated 06.10.2018 of the applicant along with two others, was withdrawn, was served upon him. Though reliance is placed by the petitioners on the legal notice dated 26.02.2020 and the IA filed by the applicant before the Hon'ble Supreme Court in WP(Cr) No. 230/2019, a perusal of the same does not indicate that a copy of the Cabinet decision or the order dated 26.09.2019 had been received by him. The learned senior counsel for the petitioners had drawn our attention to Annexure R/8 to the OA to contend that the same establishes beyond doubt that the order dated 26.09.2019 was served upon the applicant. Annexure R/8 is a document which Page 20 of 56 21 OA No.200/564/2020 was filed alongwith the preliminary objection. Annexure R/8 is a Stamp Account Register which has three columns, namely, issue number, to whom sent, and postage. Among various names, under the column 'to whom sent', the name of the applicant appears and as against him, postage of Rs.10 is shown. It is not indicated as to whether the same is sent by registered post or by hand. Evidently not by hand, because postage of Rs.10 is shown. While it may be true that the letter dated 26.09.2019 was sent, there is no conclusive material to demonstrate that the same has been served upon the applicant and that despite service of such letter, a false plea has been taken by the applicant.
16. From the order dated 12.09.2020, which was enclosed with the caveat, it transpired that two officers, who were earlier promoted along with the applicant as DGP, were again sought to be promoted as DGP in addition to one more officer, who, being of 1989 batch, was junior to the applicant. The case of the applicant is that he was promoted as DGP on 06.10.2018 on regular basis and as on 01.12.2019, his position was within the first four permanent cadre posts of the DGPs and thus, accommodated against one of the four permanent cadre posts. It is in that context, the applicant has sought for a direction to the respondents in OA (petitioners herein) for a direction for production of the order by which promotion order was withdrawn and to quash the same, if there was any such order, as the genesis and roots of subsequent events including promotion of three officers as DGP lies in such an order. For the purpose of disposal of this writ petition, we are not called upon to record any finding with regard to contentions advanced. However, with regard to the plea taken by the petitioners that the application filed by the applicant before the learned Tribunal is not maintainable, we are of the opinion that the attending facts and circumstances make it clear that the applicant is aggrieved by such orders as are noticed herein above and therefore, the learned Tribunal was justified in rejecting the contention of the petitioners that the OA was not maintainable on the ground that no order had been challenged.
17. So far as the question of limitation is concerned, it is to be noted that in view of Covid-19 pandemic, the Hon'ble Supreme Court, by taking suomoto cognizance of the situation, in WPC No. 3 of 2020, vide order dated 23.03.2020, had directed that the period of limitation in all proceedings in respective Courts/Tribunals across the country, irrespective of the limitation prescribed under the general laws or Special Laws whether condonable or not shall stand extended with effect from Page 21 of 56 22 OA No.200/564/2020 15.03.2020 till further orders to be passed and the said order was extended from time to time. Later on, by an order dated 08.03.2021, amongst others, it was provided that in computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 to 14.03.2021 shall stand excluded. The OA was filed on 19.10.2020 and therefore, the plea that the OA was barred by limitation, the same having been filed after one year of order dated 26.09.2019, has no legs to stand.
18. In view of the above discussion, we find no merit in this application and the same is, accordingly, dismissed. No cost." Challenge is clear and convincing.
III. With the dismissal of the WP in regard to the preliminary objections, the OA was taken up for final hearing. As the Hon'ble High Court has dealt with the preliminary objections after going into the details in depth and gave a verdict, we do not intend to deal with the same aspects, though raised again by the respondents and the Ld. Counsel for the respondents during submissions using the flexibility English language provides to present the same issue in different hues. None the less, from those presented one of the submissions of the Ld. Respondent counselthat requires a resolution is the much labored pleadingthat the applicant has not challenged the withdrawal order dated 26.9.2019 after it was supplied to him along with the reply statement dated 1.10.2020. Ld. Respondents' Counselclaims that without knowing the grounds on which the impugned order is challenged there is no scope for the respondents to respond. Hence without a challenge to the Page 22 of 56 23 OA No.200/564/2020 impugned order, the OA is not maintainable. As was pointed out by the Tribunal and upheld by the Hon'ble High Court in the verdict cited supra, any service grievance would be a subject matter for adjudication by the Tribunal. The facts of the case reveal that the grievance of the applicant is about the withdrawal of his promotion as DGP granted on 6.10.2018 in the background of a series of FIRs, disciplinary cases, etc filed against the applicant with the change of Govt. and R-4 taking over as the Head of the Government. The impugned order is a culmination of the events that preceded its issue having an adverse impact on his career. The challenge in regard to a service grievance would suffice as it covers all aspects of the dispute that are explicit and implicit. In the judgment of the coordinate bench of this Tribunal in IlaChoudhary v UOI (1989) 9ATC 546 it was held that a service grievance under section 19 would do, to approach the Tribunal. In the instant case the junior to the applicant was promoted as DGP vide order dated 12.9.2020and the applicant is aggrieved with the spate of decisions taken consequent to R- 4 becoming head of the Govt. The order dated 12.9.2020 does not speak of the fate of the promotion of the applicant granted previously and therefore the apprehension that something adverse is in the offing has compelled the applicant to knock the doors of the Tribunal, which we do not find it as amiss. The order dated 26.9.2019 was submitted after the Page 23 of 56 24 OA No.200/564/2020 OA was filedand it becomes a part of the court proceedings. Hereon it is for the Tribunal to assess as to whether a challenge is required given the contours of the case spanning over a few years, within the ambit of fair play. The Hon'bleApex Court in PasupulatiVenkataswarlu v Motor and General Traders in (1975) 1 SCC 770 has held that that the Court should take cognizance of the events subsequent to filing of the court proceedings by applying the rules of fairness to either sides and mouldthe relief in the light of the updated facts. Rights vested in a party cannot be negated by subsequent events as held by the Hon'ble Apex Court in Rameshwar&Ors v Jot Ram &Anr in (1976) 1 SCC 194. The regular promotion granted to the applicant, if it has to be modified,then it has to be legally and not otherwise. By coalescing the aspects expounded the material for challenge is thus abundantly evident in the OA. As is said beauty is in the beholders eye so too it requires a legal sight to perceive the rightful challenge. Indeed the verdicts referred to fully answer the contention of the Ld. Respondent counsel. To elaborate, further the challenge mounted by the applicant under Section 19 of the AT Act 1985, at para 1 of the OA is as under:
"The application is being made after the receipt of the caveat application along with a copy of the order dated 12.9.2020. Though till date no order reverting the applicant from the post of DG has ever been served on the applicant, yet by filing the caveat against the applicant along with this order dated 12.9.2020, the respondents' want the applicant to infer that he Page 24 of 56 25 OA No.200/564/2020 has stood reverted from the post of DG. The applicant is concerned about his status as DG albeit under suspension. However, since the said order read with the caveat has immediate civil consequences on the applicant, the applicant is challenging the same in the instant OA. The applicant has no grievance against the persons shown to be promoted vide the said order. In fact, the applicant has no grievance even if the respondents' promote all officers as DG but without affecting the status of the applicant as DG. The applicant only is concerned about his status as DG irrespective of the promotion of others. A copy of the caveat application along with order dated 12.9.2020 is annexed herewith as Annexure -1."
The applicant has stated that the respondents wanted the applicant to infer that he stands reverted in the context of the caveat being filed and issue of order dated 12.9.2020 promoting 3 officers as DGP with one of them being junior to the applicant. The applicant has made it clear that the order with the caveat has adverse civil consequences and the same are under challenge. By implication it would mean any order issued which degrades his rank as DGP is under challenge. The substantive aspect which is of relevance is the issue of withdrawal of the promotion granted which has been challenged by the applicant as at above and the technical aspect of citing an order lacks relevance by considering the entire breadth of the dispute. It is well settled in law that substantive justice prevails over technical justice. Service grievance is not just about an impugned order but the entire gamut of events/decisions that contributed to the issue of the order. A closer look of the well drafted impugned order precisely summarizes events/decisions that led to its Page 25 of 56 26 OA No.200/564/2020 issue. Hence a challenge to the developments causing the issue of the Impugned order is as good as challenging it. For that matter, even the technical aspect in regard to the challenge of the impugned order is mostly satisfied as can be seen from the relief sought in the OA. The main relief sought reads under:
a. Call for the records of the case
b. Direct the respondents to produce the order, if any,
to cancel/withdraw the promotion of the applicant as DG (or to revert the applicant from the post of DG) and on such production quash and set aside the same.
c. Declare that the promotion of the applicant as DG vide order dated 6.10.2018 is lawful and valid and continues to be valid.
d. Direct the respondents to give all consequential benefits to the applicant.
e. Pass any other order/direction which this Hon'ble Tribunal thinks fit and proper in the facts and circumstances of the case.
f. Direct the respondents to pay the cost of the
litigation to the applicant.
Para (b) of the relief requests a direction to produce the impugned order and on production to quash the same. Thus it is clear that the relief implicitly sought is to quash the impugned order dated 26.9.2019, thereby making it clear that the said order is under challenge. The reasons given for quashing the order are found in the various pleadings contained in the body of the OA. In view of the foregoing, we are therefore not persuaded by the argument of the Ld. Respondentcounsel that the impugned order in question has not been challenged by the Page 26 of 56 27 OA No.200/564/2020 applicant after it was served on himalong with the relevant reply statement.
IV. Rarely, do we come across instances where respondents struggle to justify that they have delivered the impugned order. As can be seen from the facts of the case, respondents claimed that they have got delivered the impugned order through a stamp account register (R-8 of reply statement dated 30.11.2020) wherein the entry is in regard to the applicant, is about postage of Rs.10. The entry in the stamp account register cannot be a proof about the delivery of the impugned order to the applicant, since the objective of the stamp account register is to keep an account of the stamps expended. In Ministries/Departments a proper DakRegister is maintained with Sl.No, date, document particulars, from and to whom it is meant and the signature of the recipient. There is no signature of the applicant or his representative acknowledging receipt. We are surprised as to how the respondents can claim the stamp account register to be a substitute for the Dak register. Interestingly the respondents have delivered 40 official documents to the applicant as submitted by the applicant in the rejoinder, as under and not refuted by the respondents.
Envelope Date shown Letter Number From Delivered Postage Remark marked on envelope Through Stamp as S. No. 1. 01.03.2019 392/233/2019/ Home DGP None Confidential Page 27 of 56 28 OA No.200/564/2020 Two-Home/IPS Department 2. 08.04.2019 F2-01/2019/ Home DGP None Two-Home/IPS Department 3. Not shown F1-24/2001/ Home DGP None Two-Home/IPS Department 4. 01.05.2019 F2-1/2019/ Home DGP None Two-Home/IPS Department 5. 07.05.2019 F02-01/2019/ Home DGP None Two/Home Department 6. 10.05.2019 F02-01/2019/ Home DGP None Two/Home/IPS Department 7. 01.07.2020 F-15/2005/ Home DGP None Two-Home/IPS Department 8. 10.07.2019 F2-01/2019/ Home DGP None Confidential Two-Home/IPS Department 9. 27.07.2019 1208/576/2019/ Home DGP None Confidential/ Two-Home/IPS Department Immediate, Received from Additional SP/ RI/TI/ASI 10. 30.07.2019 1225/514/2019/ Home DGP None Confidential/ Two-Home/IPS Department Immediate, Received from Additional SP/ RI/TI/ASI 11. 05.08.2019 F2-01/2019/ Home DGP None Confidential/ Two-Home/IPS Department Immediate, Received from Additional SP/ RI/TI/ASI 12. 13.08.2019 1574/2019/Two Home DGP None Confidential/ -Home/IPS Department Immediate, Received from Additional SP/ RI/TI/ASI 13. 14.08.2019 1327/574/Two- Home DGP None Confidential/ Home/IPS Department Immediate, Received from Additional SP/ RI/TI/ASI 14. 12.09.2019 1492/514/2019/ Home DGP None Received Two-Home/IPS Department on 26.09.2019 from Sub- Inspector Narsingh Dhruv 15. 24.01.2020 F1-13/2014/ Home DGP None SI Banerjee Two-Home/IPS Department 16. 30.01.2020 F2-01/2019/ Home DGP None SI Banerjee Two-Home/IPS Department 17. 30.01.2020 F2-01/2019/ Home Speed Yes Delivered in Two-Home/IPS Department Post the name of the applicant Page 28 of 56 29 OA No.200/564/2020 with address on it of Advocate's Residence 18. 28.07.2020 F2-01/2019/ Home DGP None Confidential/ Two-Home/IPS Department Immediate 19. 08.12.2020 F1-24/2001/ Home DGP None Received from Two-Home/IPS Department Dy. SP Headquarter Raipur 20. 15.01.2021 69/844/2019/ Home DGP None Open letter 2-Home/IPS Department without Envelope 21. 22.01.2021 F2-01/2019/ Home DGP None Extension of Two-Home/IPS Department Suspension 22. 27.04.2019 PHQ/DGP/PA/ PHQ None 412/2019 23. 09.05.2019 PHQ/DGP/PA/ PHQ None 469/2019 24. 14.05.2019 PHQ/1/ESTB./ PHQ None A-2/117/19 25. 25.05.2019 DGP/PA/500/ PHQ None 2019 26. 07.06.2019 PHQ/DGP/PA/ PHQ None 537/2019 27. 24.06.2019 PHQ/DGP/PA/ PHQ None 586/2019 28. 04.07.2019 PHQ/DGP/614/ PHQ None 2019 29. 11.07.2019 PHQ/DGP/PA/ PHQ None 634/19 30. 11.07.2019 PHQ/DGP/PA/ PHQ None 637-A/19 31. 13.08.2019 167/19 PHQ None 32. 23.03.2019 57/PS/DG/ DG, Home Speed Yes Delhi Comp/19 Guard Post Address 33. 18.04.2019 Bureau/Rai/ EOW Yes Delhi P-792/2019 Address 34. 24.06.2019 Bureau/Rai/ EOW Yes Raipur P-3157/2019 35. 29.06.2019 Bureau/Rai/ EOW Yes Delhi P-3339-A/2019 Address 36. 08.07.2019 Bureau/Rai/ EOW Yes Delhi P-3339-B/2019 Address 37. 08.08.2019 M-4132- EOW Speed Yes Delhi A/2019 Post Address 38. 08.08.2019 M-4495-A/ EOW Speed Yes Delhi 2019 Post Address 39. 22.05.2019 12732 Advocate Registered Yes Raipur General's Post Address Office, Bilaspur 40. 17.09.2020 CAVEAT Standing Speed Yes New Delhi Counsel Post Address Page 29 of 56 30 OA No.200/564/2020 Chhattisgarh , Jabalpur
The applicant has claimed that some of the documents were served through his counsel and by hand too through Sr. Police officers which were duly acknowledged. Sometimes in the absence of the applicant the orders were pasted at his residence. From March 2019, applicant has been corresponding from his Delhi address and it is not explained by the respondents as to why the withdrawal order was stated to be delivered at the Raipur address of the applicant. In fact, respondents were informed that he has shifted to Delhi which was duly admitted by them in their reply in OA 566/2019 and yet the order dated 26.9.2019 was not sent to the Delhi address, though some other letters including the caveat were sent to the Delhi address. Respondents are duty bound to deliver an order issued by them affecting the career of the applicant and it is astonishing to observe that the respondents are questioning the applicant as to what steps he has taken to seek the withdrawal letter under reference. Interestingly, after traversing the length and breadth of the replies filed by the respondents we did not find the respondents stating the date of delivery of the withdrawal order anywhere. It was the respondents who passed the impugned order and having passed it, the circuit will be completed only when it is duly received by applicant. Just as an electric circuit when closed the bulb glows and if not, it does not, so too when Page 30 of 56 31 OA No.200/564/2020 the impugned order is not delivered then it is no order of relevance. The respondent stating that the applicant without seeking the withdrawal order has approached the Tribunal lacks rationality since the applicant does not have telepathic ability to intrude into the minds of the respondents to know as to whether an order was issued and if so when, for him to take appropriate steps to receive them. The respondents were best placed to serve the order in question as and when it was passed. It did not happen in the instant case. These aberrations seen in the approach of the respondents to deliver the withdrawal order does not speak well of them. From the history of the case applicant has almost challenged every order issued by the respondents in different administrative/judicial forums. Hence there can be no reason as to why the applicant would not challenge the order dated 26.9.2018, if it were to be served on him. We find it perplexing that respondents unsuccessfully adopted a different approach in regard to the delivery of the impugned order when they could deliver a large segment of official letters to the Delhi address of the applicant. It gives an impression that there is something more than what meets the eye. The Hon'ble High Court has categorically observed that the impugned order was not served on the applicant. In view of the aforesaid circumstances enveloping the issue it is more for the respondents to answer as to why they dragged their feet in delivering the Page 31 of 56 32 OA No.200/564/2020 order under reference and make matters complex. Was it to not to present a clear ground for the applicant to legally challenge the order dated 26.9.2019 at the earliest, given their experience of quite a few restraining orders on many a decisions of the respondents from the judicial fora! Moreover, with the finding of the Tribunal that there was a cause of action while disposing the preliminary objections and upheld by the Hon'ble High Court in the WP cited supra, plus the challenge in para 1 of the OA along with the relief sought at para 8 of the OA as reproduced above, we reaffirm with no hesitation that we find no muscle in the argument of the Ld. Respondents counsel that the applicant has not challenged the order dated 26.9.2019 after it was served with one of their reply statements.
Nature of appointment is Paramount.
V. Now coming to the core aspect of the dispute, Rule 4 (2) of the IPS (Cadre)Rules is of utmost relevance as the entire dispute hinges around this rule. The rule is therefore extracted hereunder:
4(2) The Central Government shall, [ordinarily] at the interval of every 4[five]years, re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:
Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time. Page 32 of 56 33 OA No.200/564/2020 Provided further that State Government concerned may add for a period not exceeding two year and with the approval of the Central Government for a further period not exceeding three years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.
The rule speaks of an outer limit of 2 years for the State Govt. to create posts carrying responsibilities akin to the cadre posts without the consent of the Central Govt. Invoking the cited rule Chhattisgarh State Govt. vide memo dated 27.12.2017 created 3 non cadre posts of DGP in the Pay Matrix Level-16temporarily for the period of 2 years from 1.1.2018 to 31.12.2019. Against the said posts, vide memo dated 6.10.2018, State Govt. has promoted 3 officers who have completed 30 years of service with meritorious service, namely Sri Sanjay Pillai, Sri R.K. Viz and the applicant as special DG. The post held by the applicant as Chief of Intelligence/ Head of Economic Wing (for short EOW)/ ACB was elevated to the status of DGP. It is pertinent to mention at this juncture that a regular DPC was constituted, which met on 6.10.2018 and found the applicant along with the other 2 officers fit for promotion on a regular basis as at para 8 of the DPC minutes (page 39 of MA 537/2021). After approval by the competent authority the applicant was promoted on 6.10.2018. Therefore, the applicant was promoted on a regular basis after evaluating his performances as per prevalent rules to the post of DG Page 33 of 56 34 OA No.200/564/2020 against the 3 temporary posts created in the cadre of DGP. Indeed the letter dated 15.1.1999 of the Ministry of Home affairs addressing all the Chief Secretaries of the States(page 30 of MA 636 of 2021) clearly mentions at clause 20 as under:
The appointment of the members of the AIS to various grades is made on a regular basis and the concept of one time confirmation exists in their cases. The concept of grant of adhoc promotion is alien to them. Unlike Central Government Servants, adhoc promotions are not to be allowed in their cases even if the disciplinary cases/ Criminal prosecutions instituted against them are found to have been prolonged.
In the context of the recommendations of the DPC and acceptance of the same by the competent authority as well as the instructions contained in the Min. of Home letter cited, the contention of the respondents that the applicant has been temporarily promoted is illogical. Furthermore, the applicant has relied on the judgment of the Hon'ble Apex Court in State of UP &Ors.v Dr. M. J. Siddique and Ors.in (1980) 3 SCC 174 dated 31.3.1990, wherein it was held at para 11 as under:
The mere use of the term appointment in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine the nature of the appointments, we have to look into the heart and substance of the matter, the surrounding circumstances, the mode, Page 34 of 56 35 OA No.200/564/2020 the manner and the terms of appointment and other relevant factors.
By applying the legal principle laid above to the case on hand by looking at the heart and the substance of the matter involved, we observe that the DPC duly constituted as per rules has recommended the applicant for promotion on a regular basis against the 3 posts created in the DG cadre for a period of 2 years.Applicant has also cited paras 31 & 32 of the judgment of the Hon'ble Supreme Court in Baleshwar Dass&Ors v State of U.P &Ors(1980) 4 SCC 226 dated 19.8.1980 to support the above legal principle. In addition the Ministry of Home(for short MOH) memo dated 15.1.1999 also states at para 'D' as under:
Promotion panels are to be prepared as soon as the officers of the earlier panel have been provided for. Empanelment of officers has to be considered batch wise. Care shall be taken to ensure that officers are suggested /considered for appointment to various grades in the order of their interse position in the panel. The record of the officers who have been empanelled for promotion but are yet to be promoted despite a lapse of 2 years, may be screened to see if in the last two years, there had been any deterioration in their standard as would warrant their delisting from the panel.
The sum and substance of the MOH order is that once an officer is empanelled in the promotion panel, he has to be accommodated in the promoted post as and when the vacancies arise. Therefore in accordance with the legal principle and the MOH letter cited supra, the promotion of Page 35 of 56 36 OA No.200/564/2020 the applicant to the post of DG on 6.10.18 is unequivocally on a regular basis. The contrary contention of the respondents is thus not maintainable. Yet, the Ld. Respondent counsel asserted that noright will flow to the applicant while occupying the DG post created on a temporary basis. We do not agree, since as was brought out above the promotion was on a regular basis and therefore, presuming for a moment though not admitted, if there was no post available, then it was the expected of the respondents to keep the applicant in the approved promotion panel as per MHA letter referred to.Defacto, in the instant case, the scenario is copiously in favour of the applicant since there were temporary posts available up to 31.12.2019 and regular post from 1.12.2019 onwards but the respondents jumped the gun by curtailing the promotion on 26.9.2019 for unjustified reasons which are discussed in the ensuring paras.The respondents can demote the applicant to a lower post but with the rider of following rules/law. Hence the contention of the Ld. Counsel for the respondents that the applicant has no vested right to continue in a temporary post though promoted on a regular basis as per rules and law by a duly constituted DPC, is rejected lock stock and barrel.
Factual position overlooked.
Page 36 of 56 37 OA No.200/564/2020 VI. In addition, the factual position in regard to incumbency pertaining to the posts of DGP in the State of Chhattisgarh as on 24.9.2019 & 1.12.2019 as given by the applicant and not refuted by the respondents with required documents, is as under:
Sl. Incumbency position i.r.o posts of DGP as on
no
24.9.2019 1.12.2019
1 D.M.Avasthi D.M.Avasthi
2 B.K.Singh Sanjay Pillai
3 Sanjay Pillai R.K.Vij
4 R.K.Vij Mukesh Gupta
5 Mukesh Gupta
Thus, as on 1.12.2019, the applicant being among the top 4 senior officers he could have been considered against one of the 4 DGP posts regularly sanctioned and vacant. However, on 26.9.2019 respondents took a decision to withdraw the regular promotions granted on 6.10.2018 and posted the officers to the lower posts of Additional DGP. It is well settled in law that an employee promoted on a regular basis can be demoted to a lower post only by way of a disciplinary proceeding. The facts of the case indicate that the applicant has been demoted consequent to a cabinet decision dated 24.9.2019. The respondents have not filed any statutory rule to affirm that by way of a cabinet decision regular Page 37 of 56 38 OA No.200/564/2020 promotions granted can be annulled and those promoted can be demoted. Adopting a stance of promoting/demoting officers without following the rule book/law will make the personnel policy go hay wire. Principles of Natural Justice infringed.
VII. The minimum requirement of issue of notice, as is ordained under the Principles of Natural Justice before demoting the applicant was not adhered to. Any decision taken without following the Principles of Natural Justice is not maintainable in the eyes of law as held by the Punjab-Haryana High Court in Goswamivs. Punjab State Power Corporation Limited And Ors on 18 March, 2019 in CM-15990- CWP-2018 in/and CWP-22345-2016 as under:
It is a settled principle of law that any order, which is causing prejudice to an employee, can only be passed after following due procedure of law i.e. observing the rules of natural justice. Once, the rules of natural justice have been violated, any such order passed is not sustainable in the eyes of law.
In the present case, no show-cause notice whatsoever was given to the petitioner before effecting the recovery or even passing the order of recovery.
In this regard, reliance can be placed upon a judgment of this Court rendered in Lekhu Singh Vs. The Punjab SC Land Development & Finance Corp., Chandigarh, 1994(1) S.C.T. 748, wherein, it has been held that any order passed by the department without affording an opportunity of hearing, Page 38 of 56 39 OA No.200/564/2020 which causes prejudice to an employee, is liable to be set aside. The relevant para of the said order is as under: -
"One of the basic principles of natural justice is 'hear the other side'. Initially judicial opinion was that grant of an opportunity was required only while passing a judicial order or quasi-judicial order and that in a purely administrative function/order, opportunity had no role to play. However, with the efflux of time, the grant of an opportunity has become a requirement of law even for a purely administrative act. Still further the concept of opportunity being a basic requirement has been extended to every action which has adverse civil or penal consequences. Alteration of seniority and reversion have been held to have civil consequences and consequently, alter-action of seniority or reversion from a given rank without the grant of an opportunity have been held to be vitiated, being violative of basic principles of natural justice."
Further, the Hon'ble Apex Court judgmentcited by the applicant, inBhagwanShukla v U.O.I in CA No.5447 of 1994 dated 5.8.1994 has held, in regard to the Principles of Natural Justice as under:
The appellant has obviously been visited with civil consequences but he had been granted no opportunity to show cause against the reduction of his basic pay. He was not even put on notice before his pay was reduced by the department and the order came to be made behind his back without following any procedure known to law. There has, thus been flagrant violation of the Principles of Natural Justice and the appellant has been made so suffer huge loss without being heard. Fair play in action warrants that no such order which has the effect of any employee suffering civil consequences should be passed without putting the concerned to notice giving him a hearing in the matter. Since, that was not done, the order dated 25.7.1991, which was impugned before the Central Administrative Tribunal could not certainly be sustained and the Tribunal fell in error in dismissing the petition of the appellant.Page 39 of 56 40 OA No.200/564/2020
By telescoping the above legal principles to the case of the applicant, it is seen that the rank of the applicant has been altered without giving an opportunity to be heard and therefore, the order dated 26.9/2019 has to be held to be vitiated and therefore, lacks legal sanctity. The withdrawalorder dated 26.9.2019 having grave civil consequence was issued at the back of the applicant violating the basic tenets of the Principle of Natural justice and hence it has no legs to stand. Applicant has also cited the judgments of the Hon'ble Apex Court in H.L. Trehan&Ors v UOI and ors (1989) 1 SCC 764 (paras 12 & 13) dated 20.8.1979, Sharawan Kumar Jha& Ors V State of Bihar &Ors (1991 supp. (1) SCC 330 dated 13.11.1990 (pages 44-45) supporting his contentions in regard to the necessity to abide by the Principles of Natural Justice.
Prejudicial Order not served.
VIII. In the instant case, the order dated 26.9.2019 was not even served on the applicant and the Tribunal has given the said finding while disposing the preliminary objections and the Hon'ble High Court has upheld the observation of the Tribunal in WP cited supra. One does not understand as to how the respondents can decide service matters without Page 40 of 56 41 OA No.200/564/2020 letting know the employee as to what action is in store against him. Only when an order is served the mind of the decision maker would be known so that the employee concerned would have an opportunity to represent in accordance with rules and law. True to speak, not serving the order dated 26.9.2019 is surely a colorable exercise of power. Orders passed by the administrative authorities are to be communicated to those they are meant for. Otherwise, the very objective of passing of such orders is defeated. Administration is an art of making the impossible possible and the more the transparency the more the efficacy of administration. With the advent of RTI, suomotu declaration of all the memos issued by the administrative authority by way of display in the organization web site or by circulation or by any appropriate mode of communication available, is the order of the day. Respondents are not above law and they have to respect the RTI Act. We are disturbed to note that even for passing on the DPC minutes in regard to the promotion of the applicant on 6.10.2018 the applicant had to lodge a complaint to the CIC, Chhattisgarh for obtaining them. We do not know as to what is so secretive of the DPC minutes to withhold their supply to the applicant. To be precise the conduct of the respondents in not supplying the document cited does not speak well about them in dealing with the grievance of the applicant, more so when the State Govt. of Chhattisgarh Page 41 of 56 42 OA No.200/564/2020 has to adorn the role of a model employer as per the spirit of article 12 of the constitution. Indeed any order passed by an authority and kept in the file without serving the affected person, cannot be given effect to, as held by the Hon'bleSupreme Court in UOI &ors v DinananthShantaramKrekare&ors in (1998) 7 SCC 569 dated 30.7.1998,at para 9, which has been relied upon by the applicant, as under:
Where the services are terminated , the status of the delinquent as a government servant comes to an end and nothing further remains to be done in the matter but if the order is passed and merely kept in the file, it would not be treated to be an order terminating service nor shall the said order be deemed to have been communicated.
In the instant case, while disposing the preliminary objections the Hon'ble High Court has held that the order of withdrawal of promotion has not been served on the applicant. Therefore the memo dated 26.9.2019 would not be treated as an order of withdrawal of the promotion granted to the applicant as DGPvide order dated 6.10.2018, in accordance with the legal principles cited supra. Applicant has in addition cited para 7 of the verdict of the Hon'ble Apex Court in Dr.Ramesh Chandra Tyagi v UOI &ors in (1994) 2 SCC 416 dated 11.2.1994 to buttress the importance of communication an order passed.Page 42 of 56 43 OA No.200/564/2020
Significance of Statutory Rules.
IX. Continuing his steadfast defense, the Ld. respondent counsel has drawn our attention to the letter dated 12.1.2018 from the GOI wherein concurrence for operation of 3 extra cadre posts as sought by the State vide its letter dated 16.12.2017 at DGP level was not entertained. He has also stated that the letter was received before R-4 took over the office of the CM. Hence in view of the above, it was necessary to withdraw the promotions granted on 6.10.2018 and accordingly the withdrawal memo dated 26.9.2019 consequent to a cabinet decision dated 24.9.2019 had to be issued. The communication dated 12.1.2018 is an executive order and it cannot override the statutory IPS cadre rules clause 4(2). Our remark is supported by the observation of the Hon'bleApex Court in Union Of India &OrsvsSomasundramViswanath&Ors on 22 September, 1988 :: 1988 AIR 2255, 1988 SCR Supl. (3) 146, as under:
"It is well settled that the norms regarding recruitment and promotion of officers belonging to the Civil Services can be laid down either by a law made by the appropriate Legislature or by rules made under the proviso to Article 309 of the Constitution of India or by means of executive instructions issued ;under Article 73 of the Constitution of India in the case of Civil Services under the Union of India and under Article 162 of the Constitution of India in the case of Civil Services under the State Governments. If there is a conflict between the executive instructions and the rules made under the proviso to Article 309 of the Constitution of India, the rules made under proviso to Article 309 of the Constitution of India prevail, and if there is conflict between Page 43 of 56 44 OA No.200/564/2020 the rules made under the proviso to Article 309 of the Constitution of India and the law made by the appropriate Legislature the law made by the appropriate Legislature prevails"
The Ld. Respondents' counsel has also cited the letter ofMHA dated 12.10.2018 wherein a reference is made to the promotions of the applicant and that of his two colleagues on 6.10.2018 and a factual report was called for. The letter does not contain any direction to withdraw the promotion granted to the applicant and 2 others but made an observation that promotions could be in excess of the sanctioned strength. Be that as it may, any executive order/ communication of the MHA cannot override the statutory Rule 4(2) of the IPS(Cadre)Rules 1954 where in the State Govt. has been empowered to create posts in the cadre of DGP for a period of 2 years without the concurrence of the Central Govt.The legal wing of the State Govt. of Chhattisgarh has rightly observed that filling up of temporary posts does not require concurrence of GOI as per Rule 4 (2) of IPS(Cadre)Rules, 1954 while responding tothe GOI letter dated 12.10.2018, as is seen from the material papers filed by the applicant. Therefore, the letters of the State Govt. dated 4.12.2017, 27.12.2017 and that of the GOI dated 11.12.2017, 12.10.2018 respectively with reference to the creation of posts in the cadre of DGP, referred to by the Ld. Counsel for the respondents repeatedly to justify the withdrawal memo Page 44 of 56 45 OA No.200/564/2020 dated 26.9.2019, would not rework the legal position cited supra namely that the GOI letters cited can be no basis to review the promotions granted under statutory IPS cadre rules. Hence the apparent contention that the directions of the MHA could be the basis for the withdrawal of the promotions granted on 6.10.2018 holds no water whatsoever, given the lucid legal axiom laid down by the Hon'ble Apex Court cited supra. There is no memo or any amended rule filed by the respondents which have taken away the power of the State Govt. to create posts in the cadre of DGP for a period of 2 years. Not leaving at that the respondents have cited the case of an officer who was a demoted in a similar circumstances vide order dated 1.4.2010. The applicant has clarified that the concerned officer Sri Paswan was demoted after the period of his temporary promotion was completed and not refuted by the respondents with an apt document. Whereas,promotion granted to the applicantwas prematurely withdrawn in Sep 2019, though it could havelasted upto Dec 2019 as per the memo dated 27.12.2017. Hence the memo 1.4.2010 banked upon by the respondents would not come to their rescue to further their contentions. In fact, the applicant has given the prevailing practice in creating temporary posts in the cadre of DGP by the Chhattisgarh State Govt. on multiple occasionsas under, and the same Page 45 of 56 46 OA No.200/564/2020 has not been rebutted by the respondents by filing appropriate documentary evidence.
a. Against the sanctioned post of 1+1 DGs, there were 3 DGs discharging their duties from 2008 - 2012.
b. Against the sanctioned post of 1+1 DGs, there were 3 DGs discharging their duties in 2015.
c. Against the sanctioned post of 1+1 DGs, there were 5 DGs discharging their duties in 2016 including 1, Mr. Rajiv Shrivastava who was made DG by Order No. F 1-23/2016/Two-Home/IPS dated 28.12.2016 only for four days even when he had not completed his minimum required tenure.
d. Before the revision of the cadre on 17.05.2017, there were 4 DG's. e. During the present dispensation, there were 7 DG's until 30.06.2019, 6 DG's until 31.08.2019 and 5 DG's till 26.09.2019. Further, the applicant has claimed that in the State of Punjab there are 4 regular posts of DGP and 10 DGPs are working. Similar is the case in respect of States of Haryana, M.P, Rajasthan, Orissa and therefore respondents cannot take a different stand. The respondents did not whisper anything in regard to this contention.
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Circumstantial features of the dispute.
X. After having dealt with the core of the dispute we would now like to look at the circumstantial aspects that had an influence on the course of events in the evolution of the dispute. To begin with, after R-4 had become the CM of the State on 17.12.2018, the applicant claims that he was transferred from the post held, multiple FIRs were lodged against him and was suspended on 9.2.2019 leading to the issue of two departmental charge sheets. Our view is that Transfer is an incident of service and the new dispensation would like to have its own team in its place. Hence the transfer of the applicant is within the discretionary domain of the respondents. However, generally officers on having been transferred are given a posting and there services are utilized. Not giving a posting to the applicant is something unusual. After all, it is public money that is involved in paying a Govt. employee and idling the time of a senior officer is not in public interest.
Reports in media lack judicial value since they are mostly based on hearsay and with the concept of TRP ratings in vogue such reports cannot be effusively banked upon to allege bias by the applicant about the decisions of the respondents. However, it is an undeniable fact that the applicant did register FIRs in 3 sensitive cases as a part of his Page 47 of 56 48 OA No.200/564/2020 policing duties but R-4 figuring in one of them does give some credence to the contentions of the applicant that he has been at the receiving end in the form of registering FIRs against him, suspension, disciplinary cases etc, after the change of guard at the helm of the affairs of the State. In particular, with R-4 submitting a complaint to the then CM to remove the applicant from the post of Chief of EOW/ACB and as per Ld. Counsel for the applicant, he is not favorably disposed towards the applicant as is evident from the criminal /disciplinary cases initiated against the applicant. The complaint of R-4 was stated to have been examined and closed as per the version of the applicant.Thus we are of the view that the sequence of events relating to the career of the applicant after 17.12.2018 with judicial intervention wherever required did tacitly contribute in a way to the withdrawal of the promotion granted on 6.10.2018 by way of the order dated 26.9.2019 though it could have been continued up to Dec 2019 as per memo dated 27.12.2017.
The applicant becoming eligible for promotion to one of the 4 regularly sanctioned posts of DG by 1.12.2019 cannot be lost sight of in assessing the angularities of the dispute.The applicant is due to retire in Sep 2022 and its proximity it appears has prompted the decision to Page 48 of 56 49 OA No.200/564/2020 unsettle the settled promotion, as claimed by the Ld. Counsel for the applicant.
Respondents referring to the displeasure expressed by the disciplinary authority against the applicant in the year 2000, some two decades back, ignoring the fact that the applicant was awarded police medals for gallantry service and that his meritorious service finds a mention in the DPC held on 6.10.2018, is unfair to say the least. Overall performance of an employee would be a better yardstick to assess performance. To top it the said displeasure at this distant date has no bearing on the dispute. Respondents should win a war and not side line battles.
The rule of law has to prevail and the respondents cannot act arbitrarily to terminate promotions granted hitherto indiscriminately without hearing the aggrieved. Nevertheless, judicial forum at different levels has come to the rescue of the applicant from any adverse State action as an interim measure. Therefore, we do not intend to get into the nitty-gritty of the cases filed against the applicant since they are under adjudication by different courts. However, they have all added up to make the career of the applicant go through the turbulence of suspension, disciplinary cases, criminal cases and so on.
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Holding another DPC on 12.9.2020 to promote 2 officers who were promoted along with applicant in 2018 and another junior officer by placing the case of the applicant in a sealed cover, when the applicant was regularly promoted to the post of DG by a duly constituted DPC in 2018 is a difficult proposition to be upheld. To hold a DPC afresh without the demotion of the applicant having been done by way of a disciplinary process, the demotion lacks legal sanctity.The order of promotion of 6.10.2018 has not been lawfully modified so far to infuse life into the withdrawal order dated 26.9.2019. Conducting a second DPC for promoting a promoted officer is not heard of. In the instant case we reiterate that the promotion was regular and the posts were available to accommodate, be their nature being temporary or regular, to accommodate the applicant in the DG post by 1.12.2019. It is here that we find the respondents are on a slippery ground. The argument of the respondents that the other 2 officers whose promotions were withdrawn vide order dated 26.9.2019 have accepted the same is no acceptable argument since if someone who does not want to assert his legal right; it is his will and wish. Just because some others have not questioned the illegal action of the respondents in withdrawal of their promotion, the applicant ipso facto is not expected to accept the same and the law provides him the right to question a wrongful action, be it issued by any Page 50 of 56 51 OA No.200/564/2020 authority. That is the beauty and splendor of law. Therefore holding of a second DPC to consider the case of the applicant again for promotion to the post of DG to which he was promoted on a regular basis, is beyond the purview of rules and law for reasons expounded supra.
The suspension and revocation orders of the I.O in NAN has not been ably answered by the respondents as to what were the rules which the EOW had, that were violated by the I.O in filing the affidavit in the competent court, to justify their flip flop. It is also not understood as to what was the hesitation on part of the respondents to state that the closure report in FIR 17/2017 accepted by the competent court was challenged before the Hon'ble High Court in CRRNo.114/2020. Claiming that it was closed without disclosing that a challenge persists in the superior judicial forum does not befit the stature of the respondents.
We do observe that there was no explanation forthcoming from the respondents in the reply statement as to what were the reasons for not contemplating any action against the IAS officers Sri Tuteja and Sri Shukla who have been named in the charge sheets. It requires no mention that rules apply equally to all the employees in taking a view pertaining to aspects hinging on disciplinary issues. When there is a pleading made by the applicant, it requires an appropriate answer from the respondents for the Tribunal to take a balanced view on the issue and Page 51 of 56 52 OA No.200/564/2020 simple denials bereft of reasons would not do. If that were the case the reply statement would lack the essence of being a qualitative reply.
The members of the SIT formed in NAN trial are reported to be the complainants in the FIRs 6/2019 & 7/2019. Albeit, we would not have had much to say on the same given the fact that the matter is under adjudication by different courts, yet the respondents could have used the opportunity for giving the plausible reasons to clear their position. We find none.
The respondents have stated that the applicant is not cooperating with the investigating agencies and on the contrary the applicant claims that it is other way around since the EOW refused to record the statement of the applicant in respect of FIR no 7/2019 after having been summoned. Applicant had to go to the extent of representing to the Chief Secretary on 6.5.2019 (A-23) for recording his statement. No acceptable answers have been offered by the respondents for this assertion of the applicant.
The applicant has also alleged, that complaint filed by the private person Sri Manik Mehta, a perpetual complainant, on 17.6.2019 for alleged offences which are 21 years old, is similar to the one filed by R- Page 52 of 56 53 OA No.200/564/2020 4 on 15.5.2014 which was examined and closed (A-24), was not retorted to by the respondents in a manner that is expected of them.
Respondents claim that in order to prevent the applicant, who was in a senior position from influencing the witnesses, was suspended. Understandable, but with theHon'ble Apex Court staying the proceedings initiated vide FIRs 6/2019 & 7/2019 which form the basis for suspension, it is for the respondents to ponder and introspect as to whether the suspension should continue.
Revision of the subsistence allowance of the applicant vide orders dated 8.12.2020/ 15.1.2021 (R-2) in pursuance of the order dated 26.9.2019 is a corrective administrative measure that cannot be found fault with by the applicant. Suspension is a drain on the public exchequer with the applicant being paid subsistence allowance without making him to do any work. There could be many posts which may not be sensitive where in the applicant could have been accommodated and made to work or given portfolios which are not sensitive. This is common practice adopted in the Central Ministries once the charge sheets are issued and legally it has to be so. The case of the applicant is more or less similar. However, the applicant has challenged the suspension as contended by the Ld. Counsel for the applicant, which is pending adjudication.
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Judgments distinguished.
XI. Respondents have filed 7 judgments of the Hon'ble Apex Court in Om Prakash Gupta (2002) 2 SCC 256, ManoharLal v Ugrasen (2010)11 SCC 557, W.B. Registration Copywriter Assn, (2009)14 SCC 132, Rajasthan Pradesh VaidyaSamithi (2010)12 SCC 609, Ram Sarup Gupta, 1987- 2 SCC 555, Ibrahim Uddin (2012) 8 SCC 148, Bhagwati Prasad v Chadramoul CA No.964/965 of 1964 dated 19.10.1965 to drive home the point that relief not prayed for cannot be granted and that there has to be a challenge to the impugned order. The judgments cited do not apply to the instant case as the facts and circumstances are different. Further, as was pointed out through the elaborate deliberations detailed supra, the relief sought is clear and the grievance being related to a servicematter the challenge is conspicuous and vibrant as has been expounded while touching upon the different aspects of the dispute. Stating them again would be a repetition and hence we avoid the same.
XII. Respondents did file MA 503/2022 seeking adjournment of the hearing as an SLP with the diary No.8757/2022 challenging the order of the Hon'ble High Court in WP (S) No.1035 of 2022 dated 14.3.2022 is pending adjudication. Filing of SLP which has not been adjudicated Page 54 of 56 55 OA No.200/564/2020 upon, does not forbid the Tribunal to hear the dispute, as observed by the Hon'ble Allahabad High Court in BehariLalAndAnr. vs M.M. GobardhanLal And Ors. on 29 April, 1948 at para 14, Equivalent citations: AIR 1948 All 353 as under:
It is clear that, if a review be applied for in proper time, and before an appeal has been preferred, the Judge is not prevented from proceeding upon the application for review by the subsequent presentation of appeal, and he has full power, and is bound to proceed under the application for review.
Keeping the above legal tenet in mind and after hearing both the sides, we are view of the view that the matter can be heard in view of the impending retirement of the applicant in Sep 2022 and deliver the judgment subject to the outcome of the SLP referred to.
XIII. Other contentions submitted by both the parties have been gone into and finding them to be irrelevant they have not been commented upon, in the operative portion of the judgment.Page 55 of 56 56 OA No.200/564/2020
Conditional Relief.
XIV. Thus, in view of the aforesaid circumstances the OA succeeds. Consequently, the respondents' order dated 26.9.2019 is quashed and set aside. Thereby, we declare that the promotion granted to the applicant vide order dated 6.10.2018 would continue to be valid and having held so, we direct the respondents to grant consequential benefits as are permissible under the extant rules and law. Time calendared to implement the judgment is 3 months from the date of receipt of this order. With the above direction, the OA is allowed to the extent indicated, with no order as to costs. However, we hasten to add that judgment delivered is subject to the final outcome of the verdict of the Hon'ble Supreme Court in the SLP referred to in the MA 503/2022.
With the above direction the MA stands disposed.
(B.V. Sudhakar) (Ramesh Singh Thakur)
Administrative Member Judicial Member
am/-
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