Uttarakhand High Court
Ravindra Jugran vs State Of Uttarakhand And Others on 21 December, 2015
Bench: K.M. Joseph, V.K. Bist
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
WRIT PETITION (PIL) NO. 2 OF 2015
Ravindra Jugran .........Petitioner.
Versus
State of Uttarakhand and others ......... Respondents
Mr. M.C. Pant, Advocate for the petitioner.
Mr. U.K. Uniyal, Advocate General with Mr. Subhash Upadhyay, Chief Standing Counsel for the
State of Uttarakhand.
Coram : Hon'ble K.M. Joseph, C.J.
Hon'ble V.K. Bist, J.
JUDGMENT
Date: 21st December, 2015 K.M. Joseph, C.J. (Oral) Petitioner has approached this Court in this public interest litigation case. Originally, the reliefs sought were as follows:
"1. Issue a writ rule or direction in the nature of quo- warranto removing the private respondent from the post of DGP forthwith on the basis of his unsuitability after calling the entire records from the respondents.
2. Issue writ rule or direction in the nature of mandamus to inquire in the entire matter by the CBI or by constituting a SIT in respect of the facts as highlighted in the body of the petitioner and to monitor the aforesaid investigation by the Court itself so the erring persons be fixed to their appropriate place.
3. Issue a writ rule or direction appropriate in nature by directing the State government to stop such type of promotion and continuance of such persons on the post of Director General of Police, So the fair investigation in the matter of grabbing of forest land and illicit felling of trees and misuse of powers and corruption must be stopped and also direct to the state government to take appropriate steps against the erring officers in accordance with law to maintain rule of law."
2. Later on, on the basis of the amendment allowed on 16.04.2015, the writ petition was amended and further prayer was added in prayer no. 2, which reads as follows:
"or in alternate issue appropriate writ rule or direction in the nature of declaration to this effect that on the post of DGP such type of persons having their involvement in such type of illegal activities and having doubtful integrity should not be allowed to appoint or continue to hold the post and also to call the entire record of selection 2 of DGP Uttarakhand and to quash the entire selection process which is intransparent, unfair and based on suppression of some material due to the same the proper evaluation of suitability and integrity was not considered by the DPC who has selected the private respondent on the post of DGP."
3. Briefly put, the case of the petitioner is as follows:
The 8th respondent was appointed as a Director General of Police, Uttarakhand and the allegation is that he is officiating at a high government post with good political connections and he is in a position to manipulate the case related evidence in his favour. There is a sale deed allegedly executed by one Nathu Ram on 20.11.2012 on the basis of agreement dated 21.05.2012 regarding 0.7450 hectares i.e. 7450 square meter land comprising of one old house and 250 trees situated at Birgirwali Rajpur Road, Old Mussoorie Road, Dehradun. It is the case of the petitioner that Nathu Ram was the owner of the property upto 1969 and the same was ordered to be recorded as reserve forest in the name of Forest Department in revenue records, but due to reasons best known to the respondents, the same could not be recorded in the name of the Forest Department and it remained in the name of Nathu Ram in the revenue records. But in actual, the Forest Department has the land in its possession as reserve forest. Nathu Ram died in 1983, then, a question is posed, how the alleged agreement could be executed in favour of the 8th respondent, as aforesaid. It is further alleged that on 05.07.2012, the alleged impersonator of Nathu Ram, who has executed the sale deed and agreement in favour of the 8th respondent, with the connivance of local officers lodged an FIR under Sections 420, 467, 468 and 471 of IPC as Case Crime No. 219/2013 against Rahamuddin, a history sheeter and Sri Hazi Mohd. Rizwan. According to the petitioner, the selection of the 8th respondent as the Head of the Police in the State is clearly unsustainable. Petitioner has also got a case that in the selection procedure, the aspect of the case against the 8th respondent in regard to purchase of the forest land and felling of trees was not considered. In this regard, it is pointed out that the Forest Department has filed a case against the 8th respondent under Section 26 of the 3 Forest Act and, on the same, cognizance was also taken by the court and this fact did not receive attention of DPC. In this regard, he has produced the proceedings of DPC, which were obtained under the Right to Information Act. He would further submit that conspicuous by its absence is any reference to the case filed by the Forest Department against the 8th respondent, which shows that the selection is flawed. This further means that a person at the helm of affairs of the Police Department, is a tainted person and therefore, the petitioner has made out a case for issuance of a writ of quo warranto. Later on, the petitioner amended the writ petition, as already noted.
4. We heard learned counsel for the petitioner Sri M.C. Pant and also the learned Advocate General on behalf of the State.
5. Sri M.C Pant would also draw our attention to the fact that the former DPG has issued a letter, wherein there is a reference to the letter of Circle Officer. The said letter reads as follows:
"From Director General of Police, Uttarakhand "To The Chief Secretary Govt of Uttarakhand Dehradun Letter-C.A.-DG-4(20)/2013 Dated 4th April 2013 Sir, From some time the news regarding cutting of teak trees of village Bir girvali and Purchariya of Land Situated in the said Village by forged way, has been published in various news paper, wherein the complicity of senior police officer is also raised the allegation is also made regarding police aid in cutting of these trees.
In this matter a extensive enquiry is also conducted by Mr. Satwantra Kumar Singh C.O. Mussorie on the Direction of DIG Dehradun range/S.S.P. Dehradun which is being annexed enquiry officer, S.S.P. Dehradun and D.I.G. Dehradun Range found this matter very serious and expected that person have made found bying and selling of land by conspiracy on the basis of enquiry made till today. The FIR has been lodged by the land owner in the matter and recommendation is made for taking legal proceedings in the matter.4
The enquiry report of C.O. along with the recommendation of the S.S.P. Dehradun and DIG Dehradun range is enclosed this letter, with this request that after taking cognizance of the matter, further necessary action may be taken, I am satisfied with the conclusion of the enquiry officer and there is a grave probability that conspirators now may lodged a FIR in their defence. This matter may kindly be bring in the notice of the Hon'ble Chief Minister Enclosure as Above:
Yours Sincerely Satyavart D.G.P. Uttarakhand"
6. He also pointed out the letter from the Circle Officer would reveal the sorry state of affairs and would show how and why the 8th respondent should not have been appointed. He would further draw our attention to the proceedings before the National Green Tribunal, Delhi, wherein a counter affidavit was filed by the Chief Secretary in relation to the very same transactions made by the 8th respondent and the allegations of cutting of trees. The affidavit is dated 3rd May, 2014. He drew our attention to Paragraphs 8 and 9, which read as follows:
"8. It is stated that on 09.03.2013 and 18.3.2013 total 25 trees of Saal (Shorea robusta) were illegally felled in the impugned land of Reserve Forest area of Rajpur Compartment No. 4 and the case was registered by Forest Department, the copies of which are already annexed with earlier affidavit dated 6.12.2013. The material was seized on the spot by field staff of Mussoorie Forest Division and recovery memo was prepared and immediately higher authorities were informed and investigation was started by I.O.
9. It is pertinent to mention here that during enquiry by Forest Department as well as the Police Department it is reveal that the respondent no. 4 after taking undue advantage of his position and lacuna in revenue record illegally purchased forest land and illegally felled trees in forest area. The enquiry reports in this regard are also annexed with the earlier affidavit dated 6.12.2013.5
7. We also notice paragraph 11 of the said affidavit as follows:
"11. It is further pertinent to mention here that regarding illegal feeling of trees in forest area the forest department filed two Criminal Complaint Cases No. 1480 of 2013 and 1481 of 2013 before the Court of CJM, Dehradun in which the Court of CJM vide order dated 26.6.2013 took cognizance against the respondent no. 4, against which the respondent no. 4 filed two revision petitions no. 174 of 2013 and 175 of 2013 before the Court of Additional Session Judge, Dehradun; in which the Additional Session Judge, Dehradun vide order dated 4.9.2013 stayed the aforesaid order dated 26.6.2013 passed by the Ld. CJM, Dehradun and since then all the aforesaid matters are pending."
8. We further think that we must, at this juncture, notice paragraph 12 of the said affidavit as follows:
"12. It is further pertinent to mention here that by misusing his position the respondent no. 4 also registered an FIR/Case Crime No. 79 of 2013 dated 09.07.2013 against several officers of Forest Department including Divisional Forest Officer, Mussoorie in which the Forest Officers approached Hon'ble High Court of Uttarakhand for quashing of the same but all the aforesaid writ petitions filed by different Forest Officers for quashing of aforesaid FIR/Case Crime No. 79 of 2013 are still pending before the Hon'ble High Court."
9. Therefore, it is the case of the petitioner that the Court should exercise jurisdiction in this matter and grant relief sought for. Petitioner has also produced the documents showing that permission was sought under the Delhi Special Police Establishment Act for registration of the case against the 8th respondent and he has also produced the opinion of the Advocate General in this matter, besides of course the proceedings of the Selection Committee.
10. The learned Advocate General, on the other hand, would point out that no case is made out against the petitioner for issuance of a writ of quo warranto or for issuance of a writ of declaration in this matter. He would point out that there is no Court verdict against the 6 8th respondent finding him guilty of any offence involving moral turpitude. He would, in fact, draw our attention to the judgment of the Division Bench of the Punjab and Haryana High Court in the case of Voices for Freedom vs. Union of India and others (Civil Writ Petition No. 6359 of 2012 (O&M), decided on 11th April, 2013), which also incidentally related to a writ of quo warranto related to DGP, State of Punjab. He would point out, unless there is conviction, it cannot be found out that the person is actually involved in an offence, which involves moral turpitude. More importantly, he would submit that the case may not be entertained in this case as this is a public interest litigation, where the writ petitioner has not come with clean hands. He drew our attention to the fact that the petitioner had initially admittedly moved the Chief Justice on the administrative side and, thereafter, a perusal of the same would show that he was taking up cudgels on behalf of the Police Officer against whom the 8th respondent had proceeded against (Annexure 1). He would further point out that he is fortified in his submission that it is not a public interest litigation on the basis of the documents, which have been produced and he would submit as follows:
"2. That by means of this Supplementary Affidavit, the petitioner wants to bring certain letters issued by the Police Headquarters to the Principal Secretary, Home, State of Uttarakhand and there reply and Noting-sheet of the Govt. correspondence alongwith a letter of CBI by which the CBI has proposed the name of private respondent including other DGPs of other States for participation in the Interpol Meeting at Monaco (France) and also sought No Objection from the political angle. The aforesaid documents have been obtained under RTI by one Sri Nirvikar, S.I. and are very material to decide the controversy involved in this case."
11. In fact, we also notice, even in earlier documents, which have been produced, it is there.
12. The first question we have to consider is, whether the petitioner has made out a case for issuance of a writ of quo warranto. This is a public interest litigation. Public interest litigation is certainly 7 not maintained in a service matter. The only exception, which has been recognized, is that of a person who seeks a writ of quo warranto. It is settled law that the writ does not examine the suitability of a person in proceeding for issuance of a writ of quo warranto. The Court is only concerned with the question as to whether the appointment has been done in accordance with the relevant statute. In this connection, we notice paragraphs 70, 71 and 72 of the judgment of the Hon'ble Apex Court in the case of State of Punjab vs. Salil Sabhlok and others reported in (2013) 5 SCC 1, which is authored by His Lordship Justice Madan B. Lokur and extract the same:
"70. The learned counsel supporting Mr. Dhanda are right that there is no violation of any statutory requirement in the appointment of Mr. Dhanda. This is because no statutory criterion or parameters have been laid down for the appointment of the Chairperson of a Public Service Commission. Therefore, a petition for a writ of quo warranto would clearly not lie.
71. A couple of years ago, in Hari Bansh Lal v. Sahodar Prasad Mahto (2010) 9 SCC 655 this Court considered the position at law and, after referring to several earlier decisions, including R.K. Jain v. Union of India (1993) 4 SCC 119, more modern Coop. Transport Society v. Govt. of Haryana (2002) 6 SCC 269, High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat (2003) 4 SCC 712 and B. Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees' Assn. (2006) 11 SCC 731 held that: (Hari Bansh Lal Case (2010) 9 SCC 655) "19..... even for issuance of a writ of quo warranto, the High Court has to satisfy that the appointment is contrary to the statutory rules.".
72. This principle was framed positively in Mahesh Chandra Gupta v. Union of India (2009) 8 SCC 273 wherein it was said:
"71. ...In cases involving lack of 'eligibility' writ of quo warranto would certainly lie."."
13. Under the Uttarakhand Police Act, Section 20 provides for appointment of the Director General of Police. The same reads as follow:
"20. Director General of Police (1) For the overall control, direction and supervision of the Police Force, the 8 State Government shall appoint a Director General of Police.
(2) The Director General of police shall be appointed from a panel of officers, already working in the rank of Director General of Police, or the officers, who have been found suitable for promotion in the rank of Director General of Police, after screening by a Committee, as constituted by the Government;
Provided that the number of officers in the panel shall not exceed three times the number of cadre posts, sanctioned for the rank of Director General of Police in the State.
(3) The Director General of Police, so appointed, shall have a minimum tenure of two years subject to superannuation.
(4) The State Government may remove the Director General of Police from his/ her post before the expiry of the tenure, by a written order, specifying reasons, on the following grounds-
(i) on conviction by a court of law in a criminal offence or where charges have been framed by a court in a case involving corruption or moral turpitude; or
(ii) on becoming incapable to perform his/her functions as the Director General of Police due to physical or mental illness; or
(iii) on promotion or transfer to a higher or similar post under the Central or any other State Government; or
(iv) on his/her own request.
(5) In exceptional cases, the Director General of Police may be removed from his post by the State Government before the expiry of his/her tenure, for gross inefficiency and negligence, where a prima facie case of a serious nature has been established after a preliminary enquiry."
14. There is no case for the petitioner that the 8th respondent does not fulfill the requirement under sub-section (2) or that there is any violation of Section 20 of the Act. As already noticed, the question of suitability is not a matter, which is germane for consideration of the writ court in a proceeding for issuance of a writ of quo warranto. Therefore, it is clear that the writ of quo warranto will not lie. It is, thereafter, that the petitioner has sought to amend the writ petition seeking relief of declaration, as we have noticed.
915. It is true that the Hon'ble Apex Court has in certain cases issued writ of declaration. In (2013) 5 SCC 1, the Hon'ble Apex Court dealt with the appointment to the august position of Chairman of the Public Service Commission. It is in this context that it is relevant to notice the following observations of the learned Judges:
"47. Mr. Rao, however, relied on a decision of the Constitution bench of this Court in E.P. Royappa v. State of T.N. (1974) 4 SCC 3 in which it was held that the post of Chief Secretary is a highly sensitive post and the Chief Secretary is a lynchpin in the administration and for smooth functioning of the administration, there should be complete rapport and understanding between the Chief Secretary and the Chief Minister and, therefore, it is only the person in whom the Chief Minister has complete confidence who can be appointed as Chief Secretary of the State and hence the Chief Secretary of a State cannot be displaced from his post on the ground that his appointment was arbitrary and violative of Articles 14 and 16 of the Constitution.
48. Mr. Rao also relied on the decision of a two-Judge Bench of this Court in State of W.B. v. Manas Kumar Chakraborty (2003) 2 SCC 604 in which it was similarly observed that the post of DG and IG, Police was a selection post and it is not open to the courts to sit in appeal over the view taken by the appointment authority with regard to the choice of the officer to be appointed as DG and IG, Police and for such selection, the Government of the State must play a predominant role. I am of the considered opining that the Chairman of the Public Service Commission, who along with its other Members has to perform his duties under Article 320 of the Constitution with independence from the State Government cannot be equated with the Chief Secretary or the DG and IG, Police, who are concerned solely with the administrative functions and have to work under the State Government. To ensure this independence of the Chairman and Members of the Public Service Commission, clause (3) of Article 316 of the Constitution provides that a person shall, on expiration of his term of office be ineligible for reappointment to that office."
16. Justice Madan B. Lokur, the learned Judge, in his concurring judgment, also made the following observations:
"74. It cannot be said that the Chairperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State. He or she is not a Government servant, in the sense of there being a master and servant relationship between the Union or 10 the State and the Chairperson. In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and members of the Public Service Commission, it can only be concluded that he or she holds a constitutional post. In this context, in Reference under Article 317(1) of the Constitution of India, In re, (1990) 4 SCC 262 it was held:
"The case of a government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a constitutional post and is governed by the special provisions dealing with different aspects of his office as envisaged by Articles 315 to 323 of Chapter II of Part XIV of the Constitution."
87. However, as an aggrieved person he or she does have a public law remedy. But in a service matter the only available remedy is to ask for a writ of quo warranto. This is the opinion expressed by this Court in several cases. One of the more recent decisions in this context is Hari Bansh Lal wherein it was held that "...except for a writ of quo warranto, public interest litigation is not maintainable in service matters." This view was referred to (and not disagreed with) in Girjesh Shrivastava v. State of Madhya Pradesh, (2010) 10 SCC 707 after referring to and relying on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998) 7 SCC 273, B. Srinivasa Reddy, Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, Ashok Kumar Pandey v. State of W.B (2004) 3 SCC 349 and Hari Bansh Lal.
88. The significance of these decisions is that they prohibit a PIL in a service matter, except for the purposes of a writ of quo warranto. However, as I have concluded, the appointment of the Chairperson in a Public Service Commission does not fall in the category of a service matter. Therefore, a PIL for a writ of quo warranto in respect of an appointment to a constitutional position would not be barred on the basis of the judgments rendered by this Court and mentioned above.
89. However, in a unique situation like the present, where a writ of quo warranto may not be issued, it becomes necessary to mould the relief so that an aggrieved person is not left without any remedy, in the public interest. This Court has, therefore, fashioned a 11 writ of declaration to deal with such cases. Way back, in T. C. Basappa v. T. Nagappa AIR 1954 Sc 440 it was said:
"The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges".
90 More recently, such a writ was issued by this Court was in Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428 when this Court declared that Mr. K.N. Srivastava was not qualified to be appointed a Judge of the Gauhati High Court even after a warrant for his appointment was issued by the President under his hand and seal. This Court, therefore, directed:
"As a consequence, we quash his appointment as a Judge of the Gauhati High Court. We direct the Union of India and other respondents present before us not to administer oath or affirmation under Article 219 of the Constitution of India to K.N. Srivastava. We further restrain K.N. Srivastava from making and subscribing an oath or affirmation in terms of Article 219 of the Constitution of India and assuming office of the Judge of the High Court."
91. Similarly, in N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1 this Court held that Justice N. Kannadasan (retired) was ineligible to hold the post of the President of the State Consumer Redressal Forum. It was then concluded:
"The superior courts may not only issue a writ of quo warranto but also a writ in the nature of quo warranto. It is also entitled to issue a writ of declaration which would achieve the same purpose."
92. Finally and even more recently, in Centre for PIL v. Union of India, (2011) 4 SCC 1 the 12 recommendation of a High Powered Committee recommending the appointment of Mr. P.J. Thomas as the Central Vigilance Commissioner under the proviso to Section 4(1) of the Central Vigilance Commission Act, 2003 was held to be non est in law and his appointment as the Central Vigilance Commissioner was quashed. This Court opined:
"At the outset it may be stated that in the main writ petition the petitioner has prayed for issuance of any other writ, direction or order which this Court may deem fit and proper in the facts and circumstances of this case. Thus, nothing prevents this Court, if so satisfied, from issuing a writ of declaration."
17. Paragraphs 118.2 and 119.2 are very relevant in this context and we advert to the same:
"The second decision relied upon was State of W.B. v. Manas Kumar Chakraborty, (2003) 2 SCC 604. That case concerned itself with the post of the Director General and Inspector General of Police (DG&IP) in a State. This Court observed that the said post was of a very sensitive nature. It could only be filled up by a person in whom the State Government had confidence. Consequently, it was held that such a post need not be filled up only by seniority, but merit, credibility and confidence that the person can command with the State Government "must play a predominant role in selection of an incumbent to such a post."
Secondly, it may be necessary for a State Government or the Chief Minister of a State to appoint a "suitable" person as a Chief Secretary or the Director General of Police or perhaps to a statutory position, the connotation not being derogatory or disparaging, but because both the State Government or the Chief Minister and the appointee share a similar vision of the administrative goals and requirements of the State. The underlying premise also is that the State Government or the Chief Minister has confidence that the appointee will deliver the goods, as it were, and both are administratively quite compatible with each other. If there is a loss of confidence or the compatibility comes to an end, the appointee may simply be shifted out to some other assignment, provided no legal or constitutional right of the appointee is violated."
1318. No doubt, the Hon'ble Apex Court in Centre For PIL and another vs. Union of India and another reported in (2011) 4 SCC 1 proceeded with the appointment to the post of the Central Vigilance Commissioner and there, the Hon'ble Apex Court, no doubt, made the following observations:
"50. Shri K.K. Venugopal, learned senior counsel appearing on behalf of respondent No. 2, submitted that the present case is neither a case of infringement of the statutory provisions of the 2003 Act nor of the appointment being contrary to any procedure or rules. According to the learned counsel, it is well settled that a writ of quo warranto applies in a case when a person usurps an office and the allegation is that he has no title to it or a legal authority to hold it. According to the learned counsel for a writ of quo warranto to be issued there must be a clear infringement of the law. That, in the instant case there has been no infringement of any law in the matter of appointment of respondent No. 2. "
19. The case related to the very sensitive and important post of the Central Vigilance Commissioner and it had to be manned by a person, who had to be of the highest integrity.
20. In the judgment of the Division Bench of the Punjab and Haryana High Court, the DGP was facing trial before the CBI Court. Allegations were that a person was kept in illegal detention and, thereafter, in police custody illegally; there was harassment; CBI filed the charge sheet. By the judgment, rendered by the Chief Justice A.K. Sikri as his Lordship then was, the Court proceeded to issue notice to the DGP and also adverted to the historical perspective, which led to the enactment of the Police Act. The Court, no doubt, also found as follows:
"27. However, an exception to a limited extent is also carved out, namely quo-waranto in service matters in the form of Public Interest Litigation, can be entertained by the Courts. Therefore, no doubt, the present petition involves the service matter; the limited scrutiny in the nature of quo-waranto is still permissible. Further more, in the present case, we are concerned with the appointment of Number One position in the police 14 hierarchy in the State of Punjab, namely that of Director General of Police. The matter, to that extent, becomes that of public importance, though the scope of scrutiny would be limited. It is for this reason that even when this Court found bonafides of the petitioner in filing this petition some what questionable, this Court still decided to examine the issue after removing the petitioner and taking suo-motu cognizance."
21. It is apposite that we refer to Paragraphs 35 and 36 also:
"35. As already pointed out above, the respondent No.3 fulfills the conditions mentioned in sub sections (1) and (2) above. Thrust of Mr. Bal Gopal, however, was on Clause 6(a) to the proviso to sub section (2) of the Act which authorizes the State Government to transfer the Director General of Police before completion of two years of his tenure and clause (a) thereof stipulates that such a transfer would be permissible if he is convicted by the Court of law in a criminal case or where the charges have been framed against him by a Court in a case involving corruption or moral turpitude. Sub Section (2) of Section 6 assures minimum tenure of two years for Director General of Police on his appointment as such unless he attains the age of superannuation. Proviso caters to a situation where even before completion of two years of tenure, such Director General of Police can be transferred by the State Government. Therefore, in stricto-sensu this provision may not apply. We would still like to examine the case on the premise that spirit behind this provision gets attracted as it caters to the situation occurring after the appointment. The rationale behind this Section is not to continue a person who is already appointed as Director General of Police on his conviction in a criminal case or where the charges have been framed against him by the Court involving corruption or moral turpitude. Then such a consideration should weigh even at the time of appointment to the post in question.
However, we would hasten to add that the proviso is only an enabling provision which authorizes the State Government to transfer the Director General of Police even before completion of two years tenure if the charges framed against him or he is convicted in a case involving corruption or moral turpitude. This provision does not stipulate that in such a case the Director General of Police has to be necessarily transferred but the discretion is conferred upon the State Government to do so if it so want. Of course such a discretion has to be exercised objectively and there should be valid reasons on record 15 where the State Government still decided not to transfer such a Director General of Police on his conviction in a criminal case or where the charges have been framed against him by the Court involving corruption or moral turpitude. As a corollary, even at the time of appointment, if it is to be treated as relevant factor, discretion lies with the appointing authority to take a decision keeping in mind all other relevant factors as well, touching upon the competence integrity and service record etc. of the officer.
36. In this backdrop, it will have to be determined as to whether the offence for which the respondent No.3 is charged, involves moral turpitude, as these charges do not relate to corruption. Moral turpitude is not defined statutorily. The expression, however, is explained in various judgments of the Courts."
22. The Court proceeded to consider the meaning of the words 'moral turpitude', inter alia and, thereafter, the Court proceeded to hold as follows:
"41. Coming to the manner of selection, we find from the record that the entire material was placed before the Selection Committee and pendency of the criminal case was well within the knowledge of the Selection Committee. Not only it was apprised of the same, this aspect was specifically discussed and deliberated. Similar exercise was undertaken at every stage upto the highest authority. Notwithstanding, the pendency of this criminal case, the appointing authority choose to appoint the respondent No.3 as the Director General of Police. Thus, it is not a case where some material was suppressed from the Selection Committee or the Appointing Authority or they were kept in dark about this material. This factual position appearing on record even conceded by the learned Amicus.
42. In a matter like this, it was for the competent authority to take into consideration the factum of pendency of the aforesaid criminal proceedings against the respondent No.3. No doubt, it is a relevant factor which has to be given due weightage. On one hand, there are serious charges in the criminal case pending against the respondent No.3. Flip side of the case reflects that the alleged incident in which the respondent No.3 is involved is of the year 1994. The charges were framed against the respondent No.3 on 09.01.2007 by the Court of Addl. Sessions Judge, New Delhi, and against the order of framing of charge, criminal revision petition is filed which is pending consideration before the Delhi High Court. Though there is no stay of trial, the allegations of 16 the respondent-State as well as respondent No.3 is that the matter is getting delayed because of the conduct and attitude of the complainant. In such circumstances, it was for the competent authority to weigh these considerations on both sides and to take a decision as to whether the respondent No. 3 be appointed to the coveted post of Director General of Police or not. The Government/competent authority took into account all these factors. Once we find that there is no fault in the decision making process; the respondent No.3 is legally competent to hold the post; he was found eligible for the same; and that he was ranked most meritorious in competitive merit, the present petition of quo-warranto and that too in the nature of Public Interest Litigation, where the scope of enquiry is limited, it appears difficult for this Court to interfere with the decision of the Government in appointing the respondent No.3 as the Director General of Police."
23. Sri M.C. Pant, learned counsel for the petitioner would point out that a perusal of the proceedings of DPC would show that the case relating to illegal felling of trees or about land dealings did not receive attention of the Selecting Body unlike the aspect relating to the case relating to corruption. We notice, in fact, that regarding the CBI inquiry against the 8th respondent in regard to corruption, it is mentioned that no further action was taken and the matter has been closed at our end (which means at the end of the State Government), but he points out that in regard to the case relating to illegal land transactions and the case arising out of the same, it was not considered and it was a relevant aspect and, therefore, he would also submit that the position of DGP, though it is not a constitutional position, it can also be likened to an integrity Institution as he is heading the entire State Police Force.
24. We have already noted that a writ of quo warranto will not issue in this case. The only issue is, whether we should entertain this "Public Interest Litigation" for grant of a writ of declaration. We may notice that in the judgment of (2013) 5 SCC 1, the Court was dealing with the constitutional position of the Chairman of the Public Service Commission. The post of DGP is not a constitutional post. It 17 is a statutory post under the Police Act. Undoubtedly, it is a very sensitive post as already noticed in the judgment of the Hon'ble Apex Court, which we have adverted to. It is a post, like the post of Chief Secretary, where the Government would appoint a person, who is in sync with the Government in relation to the policy of the Government. There can be no doubt in our mind that not only the post of DGP, but the post held by every public servant must be manned by men of the highest integrity. Any slipping from the high moral ground, which must be occupied by every public servant, means the degeneration of the system, which is intended to work on the highest principles of honesty and integrity. We have also no doubt that the post of DGP must indeed be manned by a man of the highest character. This is for the reason that when the person occupies such a high, pivotal and responsible position, it would require of him that he takes various important decisions having far reaching repercussions, where his moral authority must be unquestionable.
25. Having said so, we must also consider whether it would be appropriate for us to grant relief in this case. A writ of declaration like any other writ is a discretionary writ. The only case, which is ultimately projected before us is related to non consideration of the aspects arising from the purchase of the land and the alleged felling of the trees by the 8th respondent, which was done illegally. In this connection, there are two aspects, we must notice. The purchase was effected on 20.11.2012 allegedly. According to the petitioner, Nathu the original owner of the property had passed away prior to the sale deed. In fact, there is a reference to the case filed against some land Mafia, on the basis that the power of attorney was forged. There is a case filed by the Forest Department. We posed the question, whether a charge sheet has been filed? What is filed is a complaint in June 2013. The appointment of the 8th respondent took place on 30th September, 2013. We perused the complaint, which is filed by the Forest Department. The complaint only speaks about the alleged violation of Section 26(f) and (g) of the Indian Forest Act. Sub section (f) and (g) of Section 26 read as under:-
18"(f) fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from, or otherwise damages, the same;
(g) quarries stone, burns lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce.
26. The 8th respondent has, in turn, filed an FIR against the forest officials, wherein he has invoked Section 420 of the Indian Penal Code. As far as the forest case is concerned, the 8th respondent has obtained order of stay from the Sessions Court. In the cases against forest officials launched by the DGP, interim relief has been granted. There is no charge sheet against the 8th respondent. There is also no dispute that on the basis of the complaint filed under the Forest Act, cognizance was taken by the Court on 04.09.2013. It is, thereafter, that the appointment takes place on 30.09.2013. In this connection, we also notice that unlike the situation in the Punjab Police Act, in the Uttarakhand Police Act, the words 'moral turpitude' have been defined under Section 2(k) as follows:
"Section 2(k) 'Moral turpitude' means involvement in any crime, which among other things, either pertains to cheating, forgery, drugs, intoxication, offending the modesty of a woman, or any offence against the State as mentioned in Chapter VI of the Indian Penal Code (Central Act 45 of 1860)."
27. The learned counsel for the petitioner earlier submitted that there is a case of cheating against the 8th respondent, but he clarified by saying that the 8th respondent has filed a complaint under Section 420 against the forest officers. As far as the offence under the Forest Act is concerned, at least, prima facie to us, we would not think they would make out a case of moral turpitude. As noted in the decision of the Division Bench of the Punjab and Haryana High Court, even a case of murder may not involve a case of moral turpitude, but no doubt, petitioner drew our attention to the report of the Circle Officer, which is adverted to by the former DGP. Petitioner also says that an FIR was lodged against the petitioner by the 8th respondent after filing of the writ petition. He would also say that the Circle Officer indeed 19 made a report, wherein he has made certain points. We may notice further even as regards the forest case, which is lodged against the 8th respondent, on which cognizance was taken on 04.09.2013, which we have ruled prima facie may not involve offence of moral turpitude, it is important to notice that the appointment took place on 30.09.2013. The learned Advocate General would ask us to proceed on the basis that it was not placed before the Selection Committee, but there must be deliberate concealment, and secondly, he would also point out that it is not the law even laid down by the Punjab and Haryana High Court that the matter relating to the pendency of the criminal case would be an absolute bar. It will be open to the body to still have considered and appointed the person.
28. Therefore, if the cognizance was taken on 04.09.2013 and the selection was concluded on 30.09.2013, we do not wish to proceed to take a view that there was a deliberate concealment as such. However, we would not like to rest our judgment on this as such. We pass on the consideration of the last aspect of the matter, which assumes the crucial importance. Should we go further at the instance of the petitioner? Public Interest Litigation today is a jurisdiction, which, in a manner of speaking, represents a seminal contribution by the Indian courts to world jurisprudence and it is continually expanding in one sense, but it is also important that the Court observes certain limits and restraints. Court must be weary of it being used as private interest litigation. In this case, we would think that this is a writ petition though in alleged public interest, but it is filed at the instance of a police officer against whom the 8th respondent has proceeded. We would think that we can safely arrive at this conclusion having regard to the following facts:
In the petition itself, the petitioner adverts to the fact that the petitioner had moved the Chief Justice on the administrative side and it is, thereafter, that the writ petition was filed. In the said Annexure, there is a reference to the police officer Sri Nirvikar, who was proceeded against by the 8th respondent. We are further fortified 20 in this view based on the fact that documents relating to this case were supplied by the said officer, as is very fairly admitted by the petitioner. But the learned counsel for the petitioner poses a question, as to what would be wrong if he takes up cudgels on behalf of the police officer. The ventilating of the private grievance through the medium of public interest litigation should not be countenanced. The person, who comes to the Court with public interest, must come with purest of motives. Public interest litigation cannot be used to get even with someone, to settle scores. It is undoubtedly true that the Hon'ble Apex Court in Guruvayoor Devaswom Managing Committee vs. C.K. Rajan reported in (2003) 7 SCC 546 has held that even if a person comes in private interest, if the cause is good, the fact that the person has come in private interest may not stand in the way of the Court granting relief, but the petitioner must also make out a case of a genuine public cause. It is here that we have referred to the facts in some detail and pointed out that the complaint of the petitioner is ultimately reduced to the non consideration of the forest case and the case arising from the dealing of the 8th respondent of the land. We have noticed that it is not a matter of such a nature that it will tilt the scales in favour of the petitioner, having regard to the undoubted facts as to how the public interest litigation evolved, namely, it appears to be at instance of an officer in the same police Department.
29. As far as the power of removal of the DGP is concerned, we must notice that Section 20(3) provides that the Director General is to have the minimum tenure of two years, subject to superannuation. There is power, no doubt, also to remove the Director General as provided in Sub-Section (4), but none of those conditions as such have arisen as such. No doubt, in exceptional cases, the Director General may also be removed for gross inefficiency and negligence, where a prima facie case of a serious nature has been established after a preliminary inquiry. Petitioner's case is not based on either gross inefficiency or negligence. At this juncture, we must however, notice what we consider to be great lacunae in the provision. It is provided in Sub-Section (5) that in exceptional cases, the Director General can 21 be removed for gross inefficiency or negligence, even before the expiry of his tenure, where a prima facie case of a serious nature has been established after a preliminary inquiry. It does not require much reflection to notice the conspicuous absence of words dealing with corruption. This Court cannot supply a casus omissus. But certainly, this is a matter, which, we would think, should engage the attention of the powers that be that if it is found that a Director General has prima facie committed an act of corruption, as long as there is no conviction or charge sheet filed, under the Act, it may be open to him to contend that he is entitled to security of tenure, which may hardly be conducive to the interest of fair, honest and good administration. We must also, at once, notice following the decision of the Hon'ble Apex Court and on the basis of the recommendations made, the whole idea was to secure a minimum tenure for the police officers as one of the main complaints was that the tenure of the police officers was being cut short by arbitrary and malafide interference by the political masters. It was for securing a reasonable tenure for the police officers, who are otherwise not in any manner disabled or disqualified, that the provisions appear to have been enacted. In that context also, therefore, we cannot possibly overlook the provisions of the Act, as it stands. The cases launched by the petitioner as against the 8th respondent as also the case launched by the 8th respondent against the forest officers are all pending consideration before courts and we do not wish to say anything further and we must not be treated as having said anything on the merits of the said cases. We would think that in the totality of the facts of this case, we need not interfere in the matter. Accordingly, the writ petition stands dismissed. No order as to costs.
(V.K. Bist, J.) (K.M. Joseph, C.J.)
21.12.2015
Rathour