Bombay High Court
R.R. Tripathi And Gaurang Dinesh Damani vs The Union Of India (Uoi) Through The ... on 14 February, 2008
Author: Swatanter Kumar
Bench: Swatanter Kumar, J.P. Devadhar
JUDGMENT Swatanter Kumar, C.J.
1. Rule. Rule made returnable forthwith. The petitioners, who claim to be public spirited persons and have taken up various issues of public importance in public interest, have filed this public interest litigation under Article 226 of the Constitution of India challenging the grant of extension of service to (i) Dr. P.S. Pasricha, Director General of Police, Maharashtra State (Respondent No. 6), and (ii) Shri D.N. Jadhav, Commissioner of Police, Mumbai (respondent No. 7) on the ground that it is contrary to the service Rules. The service profile of these officers, particularly of respondent No. 6, against whom incriminating documents have been found and an Inquiry Committee was constituted, do not deserve extension in such a high public office. Besides this, they have further prayed that respondent No. 3 be directed to comply with the directions of the Supreme Court in the case of Prakash Singh v. Union of India , and set up a Police Establishment Board and a State Security Commission. These prayers are founded on the averments that respondent Nos. 6 and 7 are Senior I.P.S. Officers and had been selected to the post of Director General of Police, State of Maharashtra and Commissioner of Police, Mumbai, respectively. Both these officers were to retire on or about 30th November, 2007 upon attaining the age of superannuation. The Home Department of the State of Maharashtra had sent a proposal to the Ministry of Home Affairs, New Delhi, for approval of the Central Government for extension of service to these two officers. The petitioners filed applications under the Right to Information Act, 2005, seeking copies of the relevant files. However, even before they could receive these papers, they have filed the present petition in this Court which, according to them, was of great urgency. According to the petitioners, they have come to know from the newspaper reports that the sixth Respondent's extension has been granted as he was concerned with handling of the 'Guru 'Ta' Gaddi', the tercentenary celebrations of the consecration of the Guru Granth Sahib, in Nanded and seventh respondent's extension is required on the ground that he was Commissioner of Police only for nine months and three months extension was requested and approved by the Central Government.
2. Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, requires to the effect that certain class of people under the said Rules can be granted extension limited to the extent of three months and that too limited to the conditions stated in the Rules. According to the petitioners, as on 30th November, 2007, these two officers had no such attributes of indispensability and that they were not involved in any budget work and also that they were not full time members of any Official Committee which was to be wound up in a short time and neither was the case that such officers were more competent than the other incumbent IPS Officers. Extension of tenure was an exception and was thus discriminatory in nature and violative of Article 14 of the Constitution. As already noticed, the proposal for extension which had been approved by the Central Government and orders of extension of three months issued in favour of both these respondents are vitiated and violative of Articles 14 and 16 of the Constitution of India. The petitioners have further pleaded that no credible mechanism to decide matters related to extension of the incumbents has been followed and their extensions are contrary to the All India Services (Death-cum-Retirement Benefits) Rules, 1958, and All India Services (Conditions of Service Residuary Matters) Rules, 1960, where they ought to have superannuated on attaining the age of superannuation. According to the notification dated 30th November, 2005, issued by the Central Government, the exception of this rule is only applicable to the Chief Secretaries and not the Director General of Police and the Commissioner of Police. None of the respondents satisfied the ingredients of the proviso to Rule 16(1) of the above Rules. In relation to respondent No. 6, it has been stated that since he was facing enquiries of serious allegations, he ought not to have been placed in such a sensitive position. The enquiry was instituted against this respondent on the basis of Tehelka report which was printed in the weekly magazine (Tehelka) and also aired on T.V. Channel "Aaj Tak". According to that article, the Enquiry Committee which was constituted against the said respondent did not even call the Tehelka reporter. They had serious incriminating materials against the said respondent in their possession. The question was even raised in the Maharashtra Legislative Assembly. In these circumstances, the said respondent ought not to have been granted any extension on such sensitive post which is bound to have adverse effect on the law and order situation as well as administration of criminal justice in the State.
3. As already noticed, two prayers were made in the writ petition. However, during the course of hearing, emphasis was laid only on the reliefs prayed for in relation to grant of extention to these respondents.
4. Separate reply-affidavits were filed on behalf of Union of India, State of Maharashtra and respondent Nos. 6 and 7 respectively. The private respondents have denied the allegations made against them and have stated that they were duly entitled to the extension prayed for.
5. In the counter affidavit filed on behalf of the State and the Union of India, they have stated that the proposal was received from the State Government praying for extension of these two Officers in the public interest. Specific grounds were given for submitting such a proposal. This proposal was examined at the highest levels and then it was decided to grant extension to these two officers for a period of three months. The action of the respondents is neither arbitrary nor is opposed to any rules. According to the official respondents, these are permissible and in fact are in accordance with the rules.
6. The relevant paragraph of the affidavit in reply filed on behalf of respondent No. 1 by Y.P. Dhingra, Under Secretary to the Government of India, Ministry of Home Affairs, reads thus:
The matter of grant of extension of service in the case of the officers of the All India Services, including the IPS Officers, is governed by Rule 16(1) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. As per the provisions of this rule, an All India Service Officer retires from service on attaining the age of 60 years. Under the proviso to this rule, an extension upto three months is, however, permissible, with the prior approval of the Central Government for officers who are dealing with budget work or as full time members of a Committee, which is to be wound up shortly, in the public interest. This rule has been further amended on 30th November, 2005 laying down that an IAS Officer holding the post of Chief Secretary to the State Government can be given extension for a period not exceeding six months on the recommendation of the concerned State Government with full justification, and in the public interest, with the prior approval of the Central Government.
10. In this context, it is submitted that in a matter relating to public interest the grounds cannot be confined to the narrow definition given in the proviso to a rule and has to be considered in the wider context. The grounds mentioned in the proviso can only be taken as a guiding principle. The request of the Government of Maharashtra in respect of the two officers was, therefore, examined keeping this position in view.
11. In so far as the grant of extension to Dr. Pasricha is concerned, apart from taking note of the position brought out in the letter of the Chief Minister, Maharashtra, the Central Government has also been receiving inputs from time to time about the sensitivities of the situation prevailing in the State and the necessity of handling the same with the utmost sensitivity and carefulness. This becomes further relevant in the light of the threats by terrorist elements adverted to in the letter of the Chief Minister, Maharashtra, which has been further dwelt upon in subsequent paras of this affidavit. As regards the involvement of Dr. Pasricha in the Committee related to Sachkhand Hazur Sahib Gurdwara, Nanded, it was also considered that the Tercentenary of Guru-ta-Gaddi was going to be celebrated later this year and lakhs of pilgrims from all over the world were expected to gather. Considering the importance of the event, the Government of India, Ministry of Culture, has constituted a National Committee under the chairmanship of the Union Home Minister for its commemoration. In this context, the appointment of Dr. Pasricha as the President of the Committee cannot be seen as a routine matter, and his role as the President of the Committee would be of considerable significance, particularly in the early phases of the planning process and preparation for this mega event. Keeping all these factors in view, a decision was taken by the Central Government, after due consideration and application of mind, to accede to the request of the Government of Maharashtra to grant extension of service by three months to Dr. Pasricha in exercise of the powers of Central Government in this regard.
12. As regards the request of the Chief Minister, Maharashtra for granting extension to Shri D.N. Jadhav, Commissioner of Police, Mumbai, it was noted that the Police Commissionerate of Greater Mumbai covers a population of over a crore and oversees the security of the financial capital of the country. There are also reports about possible threats and designs of the inimical forces to target Mumbai, inter alia, with the aim of destroying the confidence of the investors in the fast growing economy of the country, and creating serious tensions among the cosmopolitan citizenry of Mumbai. The State Government also informed about certain specific inputs on possible threats in Mumbai and that the police forces were busy in taking measurees to thwart the same. Thus the Mumbai Police had to not only handle the normal law and order but also the threats of terrorist elements. Shri D.N. Jadhav, according to the State Government, had successfully developed a good intelligence network and was capable of dealing with the threat of the likely terrorist attack in the near future.
13. The Central Government has also been receiving reliable inputs regarding possible terrorist threats and the designs of inimical forces in the State of Maharashtra, particularly in respect of Mumbai. A number of such inputs received in the recent months were communicated to the State Government for taking all precautionary measures to prevent any untoward incident. Taking into account the nature of these threats, the State Government was required to take steps to keep the Police Force of the state in the high alert and take all other necessary preventive measures, especially in the context of important events like major festivals, congregations, celebration of National Days, etc Inputs were also shared with the DGP, Maharashtra, and C.P., Mumbai from time to time with reference to the threats to innocent lives, prominent religious places, markets, public transport system and acts to incite communal passions, etc. Keeping in view that several important festivals and a National Day, etc,. would be occurring during this period, and the past history of incidents like the Mumbai train blasts, Malegaon blast, etc. it was considered appropriate, and expedient, in the public interest to agree to the request of the Chief Minister, Maharashtra, to grant short extension of service both to Dr. Pasricha and Shri Jadhav in the interest of continuity at this juncture. 15. The decision to accede to the request of the State Government to grant a short extension to Dr. Pasricha and Shri Jadhav was taken by the Central Government, after due deliberation and consideration and in the exercise of its powers in public interest, and after considering the position as elaborated in the preceding paras.
7. Mr. Kailas V. Bilonikar, Under Secretary to the Government of Maharashtra, Home Department , has filed affidavit in reply on behalf of the State Government. In paragraph 4 he has stated thus:
4. I say and submit that both the respondent Nos. 6 and 7 are IPS Officers belonging to the 1970 and 1973 batch respectively. I say that both the respondents were to superannuate on 30.11.2007 as per their date of birth which are 11.11.1947 and 12.11.1947 respectively. I say that the All India Services (Death-cum-Retirement Benefits) (DCRB) Rules, 1958, are applicable to both these respondents. I say that Rule 16, inter alia, stipulates that a Member of the All India Services shall retire from the afternoon of the last date of the month in which he attains the age of 60 years. I further submit that the respondent Nos. 6 and 7 have been granted extension of service pursuant to the powers vested in the respondent No. 1 i.e. The Central Government under the Rules known as The All India Services (DCRB) Rules, 1958. The decision to grant extension of service to the respondent Nos. 6 and 7 is an administrative decision of the respondent No. 1 and the said decision has been taken by the respondent No. 1 after considering the recommendation of the State Government. I say that the extension granted to the respondent Nos. 6 and 7 being in public interest, this Hon'ble Court would not interfere with the same in its extraordinary writ jurisdiction under Article 226 of the Constitution of India.
8. Besides taking up these pleas, all the respondents have also taken an objection that the present public interest litigation is not maintainable and in fact is an abuse of the process of law. It was also argued that the petitioners who are involved in some cases have filed the present petition only as a vengeance as at the relevant time, respondent Nos. 6 and 7 were holding responsible posts.
9. Before we proceed to examine the maintainability of the present writ petition, it will be important for the Court to examine the relevant Rules and the reasons stated by the competent authorities for grant of extension to these respondents. It cannot be disputed that the post of Director General of Police, Maharashtra State, and Commissioner of Police, Mumbai, are not only posts of status and stature but are, of course, of great public importance and certainly have an impact on the administration of criminal justice as well as the larger public interest in the entire State. These posts by their very nature contain the element of public confidence and the fairness in State action must be demonstrable in exercise of such discretionary powers. Whether the Government has any power to grant extention under the Rules:
10. The Central Government in exercise of its vested power had framed All India Services (Death-cum-Retirement Benefits) Rules, 1958. Rule 16 of these Rules has a substantial bearing on the matter in the controversy before us which reads as under:
16. Superannuation gratuity of pension.[(1) A member of the Service shall retire from the service with effect from the afternoon of the last day of the month in which he attains the age sixty years:
Provided that member of the Service whose date of birth is the first day of a month shall retire from service on the afternoon of the last of the preceding month of attaining the age of sixty years:
Provided further that a member of the Service dealing with budget work or working as a full-time member of a committee which is to be wind up within a short period may be given extension of service for a period not exceeding three months in public interest, with the prior approval of the Central Government.] [(a) for an aggregate period no exceeding six months
(i) by the State Government, if the officer is working in connection with the affairs of the State Government; and
(ii) by the Central Government, if the officer is working in connection with the affairs of the Union or a State other than the State on whose cadre he is borne;
(b) for any period beyond six months( i) by the State government with the prior sanction of the Central Government, if the officer is working in connection with the affairs of the State; and
(ii) by the Central Government, if the officer is working in connection with the affairs of the Union or a State other than the State on whose cadre he is borne.] Provided further that a member of the Service shall not be retained in service whose the age of 60 years except in very special circumstances.
Explanation. For the purpose of this sub-rule, a member of the Service whose date of birth falls on the 1st day of any month shall have attained the age of fifty-eight years on the afternoon of the last day of the preceding month.
Explanation.-For the purpose of this sub-rule, a member of the Service whose date of birth falls on the 1st day of May, 1998 and is on extension in service, shall retire from the service on the expiry of his extended period of service or on the expiry of any further extension granted by the Central Government in public interest, and that on such extension in service shall be granted beyond the age of sixty years.] (2) A member of the Service may, after giving at least three months previous notice in writing, to the State Government concerned, retire from service on the date on which such member completes thirty years of qualifying service on the date on which such member attains fifty years age or on any date thereafter to be specified in the notice;
Provided that no member of the Service under suspension shall retire from service except with the specific approval of the State Government concerned.
(2-A) A member of the service may, after giving three months previous notice in writing to the State Government concerned, retire from service on he date on which he complete 20 years of qualifying service or any day thereafter to be specified in the notice:
Provided that a notice of retirement given by a member of the service shall require acceptance by the State Government concerned if the date of retirement on the expiry of the period of notice would be earlier than the date o which the member of the Service could have retired from service under Sub-rule (2):
Provided further that a member of the Service who is on deputation, a corporation or company wholly or substantially owned or controlled by the Government or to a body controlled or financed by the Government, shall not be eligible to retire from Service under this rule for getting himself permanently absorbed in such corporation, company or body.
(3) The Central Government may, in consultation with the State Government concerned and after giving a member of the Service at least three months, previous notice in writing, [or three months pay and allowance in lieu of such notice] require that member to retire in public interest from service on the date on which such member completes thirty years of qualifying service or attains fifty years of age or on any date thereafter to be specified in the notice.
[Note 1. In computing the period of three months, notice referred to in Sub-rule (2) and (3) the date of service of the notice and the date of expiry shall be excluded.
Note 2. In the case of a member of the service, who retires under Sub-rule (2) or (2-A) or who has retired under Sub-rule (3), the date of retirement shall be treated as a non-working day].
[(4) A superannuation gratuity or pension shall be granted to a member of the service who is required to retire under Sub-rule (1) of this rule.
11. These rules were amended vide notification dated 30th November, 2005 issued by the Government of India, Ministry of Personal Public Grievances & Pension (Department of Personnel and Training) whereby extension of service for a period not exceeding six months to a member of the service holding post of Chief Secretary to a State Government was provided.
12. By notification dated 12th June, 2006, Sub-Rule (1A) has been inserted which reads thus (1-A) Notwithstanding anything contained in Sub-rule (1), the Central Government may, if it considers necessary in the public interest to do so, give extension in service-to the incumbents of the posts of the Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation for such period as it may deem proper:
Provided that the total term of the Cabinet Secretary who is granted such extensions of service shall not exceed three years;
Provided further that the total term of the other Secretaries and Directors who are granted such extensions of service under these Rules shall not exceed two years.
12A. Section 3 of the All India Services Act, 1951 also empowers the Central Government to make rules for regulation of recruitment and conditions of service of persons appointed in service after consultation with the Government of the State concerned. Sub-section (1A) further extends this power empowering the Government to give retrospective effect to the rules so framed from the date not earlier than the date of commencement of this Act. In exercise of the power vested by the Central Government under this provision, they had framed The All India Services (Conditions of Service-Residuary Matters) Rules, 1960. Rule 3 of the Rules, vested power to relax the rules and regulations in certain cases. In this provision, the satisfaction to be recorded is that of the Central Government in line with the principles enunciated in the rules. The Rule reads as under:
Power to relax rules and regulations in certain cases.-Where the Central Government is satisfied that the operation of
(i) any rule made or deemed to have been made under the All India Services Act, 1951 (61 of 1951), or
(ii) any regulation made under any such rule, regulating the conditions of service of persons appointed to an All India Service causes undue hardship in any particular case, it may, by order, dispense with or relax the requirements of that rule or regulation, as the case may be, to such extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner.
13. There is no provision specifically empowering the Central Government to grant extension to the members of the service. The Rules require that every employee shall superannuate at the age of sixty but Rule 16(1) of All India Services (Death-cum-Retirement Benefits) Rules, 1958 make an exception that the Government in public interest and limited to the grounds indicated in the proviso could grant extension of service and permit the employee to continue in service beyond the age of superannuation but for a limited period of three months. In the case of Chief Secretary, the extension could be granted in public interest for a period of six months while in the case of Cabinet Secretary, Defence Secretary, Home Secretary, Director, Intelligence Bureau, Secretary, Research and Analysis Wing and Director, Central Bureau of Investigation, covered under Sub-rule (1A) of Rule 16 of the 1958 Rules, extension could be for such period as the Central Government may deem proper. It is implicit from the language of these provisions that the Government has power to extend the tenure of the service of a person to whom these rules are applicable but not beyond the prescribed period specified under these rules.
14. Besides this specific provision, the Central Government has the power to relax the rigours of any rule or regulation in exercise of the powers vested in it under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960. The very heading and object of these rules is to deal with the residuary matter which are not specifically dealt with or provided for under other rules. Where the Central Government is satisfied that operation of any rule made or deemed to have been made in regulation causes undue hardship in any particular case, it may order to dispense with or relax the requirement of the rules or regulations to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. This rule on its plain reading is to receive a liberal construction. The rule has been worded so widely as to cover unspecified situations. It is a basic rule of service jurisprudence that no rule or provision may comprehend and contemplate all possible situations which may arise.
15. The Petitioners challenge is to the orders issued on 30th November, 2007 extending the period of superannuation for respondent Nos. 6 and 7 respectively. Rule 16(1) was framed earlier but was amended for the first time on 13th May, 1998, then on 30th November, 2005 and finally on 12th June, 2006. By virtue of these amendments, provisos were added and Rule 16(1A) was inserted but misdescribed in the amended notification as 'substituted'. This Rule provides power to the Central Government to grant extension of service after the date of superannuation on the recommendation of the State Government while under the fourth proviso, the term of Chief Secretary of the State could be extended in public interest for a period not exceeding six months. Under the second proviso, the services of a member of the service could be extended subject to the satisfaction of the conditions postulated therein i.e. he was dealing with the budget work or working as a full time member of a Committee which is to be wound up within a short period could be given extension for a period not exceeding three months in public interest and with prior approval of the Central Government. Rule 16(1A) contemplates grant of extension to the specified authorities in that Rule. Grant of extension to these designated authorities could be made but the proviso to Rule 16(1A) puts an embargo on grant of extension not to exceed three years in the case of a Cabinet Secretary and for others not in excess of two years.
16. Besides this, Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 empowers the Central Government to relax the operation of any rule or regulation under any of the Rules framed in furtherance to exercise of power of subordinate legislation. In other words, there is statutory power given to the Central Government which, as contemplated under Section 3 of the Act, is the rule framing authority to relax and/or to grant extension.
17. The contention raised on behalf of the petitioners is that firstly there is no power with the authorities to grant extension beyond the specified period and the Rule should be strictly construed in consonance with the language of the rule and secondly the grounds stated in the Rules have not been specified in the order granting extension. In fact, according to the counsel appearing for the petitioners, the Central Government hardly has the power to grant extension particularly in the facts of the present case. This contention is based upon misconception of the relevant rules and is opposed to the basic concept of service jurisprudence. The rules are to be framed by the Central Government. Thus, the Government, in any case, would have the powers to frame such rules or to pass such orders as may be called for in the facts and circumstances of a given case but certainly not contrary to the provisions of the Act or the Rules framed thereunder. The residuary powers vested to meet extraordinary situations which have not been specifically provided for in the Rules cannot be circumvented or limited and it must be left to the authorities to exercise their powers objectively and in consonance with the spirit of the Rules. Besides the power to extend, power to relax the rule in its absolute term to a given case and to remove hardship or otherwise is clear indication of the powers of the rule framing authority and there should not be unnecessary embargoes upon the exercise of such powers. We may refer to the language of Rule 3 which clearly says that the Rule could be relaxed to such an extent and subject to such exceptions and conditions as it may consider necessary for dealing with the case in a just and equitable manner. The expression "just and equitable manner" is a well known expression in the Administrative law and within the domain of service jurisprudence. The decision will have to be left to the discretion of the authority concerned and the Court would not sit as an appellate authority to examine the extent and degree of justness and equitability.
18. The Supreme Court enunciated the principles relating to grant of extension and relevant factors for taking any executive decision and that the executive must furnish reasons in support of their decision. Reference can be made to the cases of (i) State of Assam v. Basanta Kumar Das , (ii) Hochtief Gammon v. State of Orissa and Ors. and (iii) Star Enterprises and Ors. v. City and Industrial Development Corporation of Maharashtra Ltd. and Ors. . This clearly indicates that discretion is vested in the authorities, whether to grant or not extension to a particular member of the service but this has to be exercised within the framework of Rules and bona fidely in the public interest and in the interest of public service. In terms of the Rules, the Central Government has the power to grant extension and/or to relax the operation of any of the Rules applicable to the member of the service.
19. We may now deal with the argument that in absence of any specific Rules and strictly construing the relevant provisions, whether there is power with the Government to grant extension in service. This argument suffers from fallacy that in the absence of specific rules, the Government would not have discretion even to prepare guidelines or to issue administrative instructions. The competent rule making authority, and in the present case the Central Government, will have the power to issue appropriate orders even in individual cases in absence of any specific Rule. Issuance of executive instructions which are in conformity with the provisions of the Act and the Rules, can hardly be questioned on the ground of inherent jurisdiction. In the case of Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare and Ors. , the Supreme Court held as under.
It is, no doubt, true that under Section 21 of the Act, the State Government is required to make rules prescribing the conditions under which members of the staff requiring professional skill could be appointed by the Trust. But when the State Government has not made any such rules even if the rules can be held to be of mandatory nature as has been held by the High Court, then it is difficult to comprehend that the Board is denuded of its general power of appointing and promoting people to different posts as provided under Section 22 of the Act. If the view of the High Court under the impugned judgment is taken to be correct then all appointments to different posts ever since 1936 have to be held to be invalid inasmuch as no rules have been framed by the State Government in exercise of the power under Section 21 of the Act. While interpreting the provisions of Section 21 of the Act, the High Court has lost sight of the general principle of service jurisprudence that in the absence of any statutory rules governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate in the field and appointments/promotions can be made in accordance with such executive instructions/administrative directions. In this view of the matter and concededly, no rules having been framed by the State Government in exercise of power under Section 21 of the Act, the Trust/Board was fully empowered to take administrative decisions in the matter of appointments and promotions to different posts including the posts requiring professional skill and consequently the resolution of the Board taken in accordance with Sub-section (2) of Section 22 of the Act deciding to promote the employees to the post of Assistant Engineer cannot be said to be invalid or inoperative. The High Court, therefore, in our view fell in error in holding that the appointments made to the posts of Assistant Engineer are invalid in law.
20. It may also be noticed that extension of service would also squarely fall within the expression "condition of service" and would squarely bring within its ambit the power of the Government to issue appropriate directions even in this regard. A Bench of Kerala High Court in the case of Sajan Mannali v. Hon'ble Chief Justice and Ors. (1994) 2 LLJ 817 held as under.
9. The expression "conditions of service" is one of wide import. It means all those conditions which regulate the holding of a post by a person right from the time of his appointment, till his retirement and even beyond it, in matters like pension, etc. The dismissal of a Government servant or his compulsory retirement are all matters which fall within his conditions of service. North West Frontier Province v. Suraj Narain Anand ; State of Madhya Pradesh v. Shardul Singh . The expression would include age of superannuation as also the right to reduce it. State of Bihar v. Yogendra Singh ; Srinivasan v. State of Kerala AIR 1968 Ker. 158 (FB). Compulsory retirement, dismissal and reduction in age of retirement being part of conditions of service, extension of service is equally a condition of service. We are unable to find any difference in principle between the two.
10. We do not find any rhyme or reason to exclude extension of service alone from conditions of service. In fact, counsel for the petitioner frankly admitted (not that he can contend otherwise in the light of the binding authorities on the point) that conditions relating to age of retirement and retirement benefits pertain to the realm of conditions of service of a Government servant and cannot be disassociated therefrom. The only contention necessitated by exigencies of the case is that extension of service of a Government servant is not a condition of service.
21. The above Rules, and in any case, the Government's decision to grant extension or to relax the applicability of Rule 16(1) in favour of respondent Nos. 6 and 7 thus cannot be termed as one without authority of law. Of course, exercise of such power has to be for valid reasons in public interest and the proposal should satisfy the ingredients of the specified Rules. Therefore, we have no hesitation in answering this question against the petitioners. Whether the action of the official respondents can be termed arbitrary, unreasonable, violative of the Rules and in colourable exercise of power.
22. Having answered the question of law against the Petitioners, we shall now proceed to discuss certain aspects of this case as to whether the proposal of the State Government and its approval by the Central Government is violative of Rules, arbitrary, discriminatory and is in colourable exercise of power or not?.
23. As already noticed, respondent Nos. 6 and 7, after attaining the age of 60 years, would have superannuated on 30th November, 2007. A proposal was moved by the State Government on 31st October, 2007, requesting the Central Government to grant its approval for extension of service of at least three months until 29th February, 2008 under the first proviso of Rule 16(1) of the Rules. A similar request on identical terms was made even for respondent No. 7. Both these proposals were dealt with in the Ministry of Home Affairs, New Delhi.
24. While dealing with the State proposal, it was noticed that considering the proposal strictly in terms of the real position, the case of Dr. Pasricha is not covered as he is neither involved in any budget work nor is he a member of any Committee or Commission which is to be wound up shortly. However, with reference to the amendment issued by Department of Personnel and Training (DOPT) in November, 2005, the matter was placed for consideration of the higher authorities. Thereafter, the case was examined in the concerned quarters of the Ministry drawing an analogy between a Chief Secretary and the DGP of the State. After weighing various factors, a favourable recommendation was made which resulted in issuance of the order dated 30th November, 2007.
25. In the case of respondent No. 6, while invoking the provisions of Rule 16(1), the proposal indicated two grounds, (i) that Guru-ta-Gaddi of Guru Granth Sahib was to be held in October/November, 2008 in Nanded and he was appointed as Chair person of the Administrative Committee of Sachkhand Shri Hazur Sahib Gurudwara, Nanded and for smooth functioning of the agencies involved in the preparation for celebration and time bound completion of all activities, extension of service was necessary and that he was able to resolve certain issues and was a member of minority community himself and has the image of being secular. However, in the case of respondent No. 6, while invoking the same power, the proposal stated that he had succeeded in completing a good intelligence network and enjoys confidence of the force and he has been able to combat terrorism and curb activities of crime mafia. The argument raised on behalf of the petitioners is that none of these respondents satisfied the ingredients of proviso to Rule 16(1) as none of them was a full time Committee member of a Committee which was to conclude the work shortly and also were not doing the budget work. The first proviso to Rule 16(1) does not postulate any other grounds except these two grounds. If these grounds were satisfied, in that event, the period could be extended upto three months, that too in public interest. In other words, either of the specified grounds of this Rule were to be satisfied coupled with the authorities coming to the conclusion that it was in public interest to grant the limited extensions to a period of three months. Even the note put up before the Competent Authorities in the Ministry shows that both these respondents did not satisfy the criteria of Rule 16(1) of the Rules. The proposal of the State Government was for seeking extension under Rule 16(1) but the Central Government in its wisdom decided to grant extension despite noting to the contrary by the Under Secretary concerned. Of course, the higher authorities could differ and take a decision contrary to the note that was put up but for good, valid reasons and in public interest. If one was to examine the factual matrix of the case minutely, it was apparent that the function at Nanded was to be held in October/November, 2008 while even the extended term of Respondent No. 6 would come to an end in February 29, 2008. As already noticed, reasons of general nature were stated for grant of extension in favour of Respondent No. 7. It is not the pleaded case of the State Government that there was any hardship being created because of superannuation of these respondents and that the interest of the Government would be jeopardized, if they were not permitted to continue further in service more particularly in the light of the fact that it is neither averred before us nor records reflect that equally competent officers from the Force were not available to take over these assignments. The petitioners strongly emphasized this aspect of the matter and particularly that how would the state of affairs change after a short tenure of three months. Thus, according to them, the extension granted to these respondents is arbitrary, discriminatory and is opposed to the public policy. Reliance is placed upon the case of Center for Public Interest Litigation and Anr. v. Union of India and Anr. , where the Supreme Court while dealing with the case of Chief Secretary, Uttar Pradesh observed: " It is not the case of respondent No. 2 the State of U.P. that no other officer is suitable to hold that post or that the services of respondent No. 3 are so indispensable that none should be appointed as the Chief Secretary". It is often said that justice should not only be done, it should appear to have been done. The logic is equally applicable to the Government action. It is contended that both the respondents should satisfy the test of "not good but even seem to be good". It is argued that respondent No. 6 was not entitled to extension as there were enquiries pending against him and there were serious allegations made against him. The conclusions arrived at by the Enquiry Committee were biased and they had not even cared to collect proper evidence with regard to issues before them. The Tehelka reporter was not even called upon by the Committee. In response to this, the stand of the State is that the question was even raised in the Assembly and report of the Committee was filed wherein the Assembly was informed that nothing adverse was found against respondent No. 6.
26. In other words, there were some reasons given for seeking extension of Respondent No. 6 but his service record is alleged to be blotted for the above allegations while seventh Respondent's extension was requested for on general grounds of his efficient service. Whatever be the grounds, the approval of the Central Government has to be supported by some proper reasons and essentially has to be in the public interest. Reasons are the essence of any administrative or executive decision. Reasons may be, unlike judgments elaborate, but they must provide some grounds akin to good and valid reasons in support of the decision. Every decision making process is open to judicial review and the Courts normally would not substitute their view for the decision taken by the authorities. The reasoning given by the initiating authority in the Ministry of the Central Government was examined by us. However, in the absence of any reasons for exercise of power of relaxation by the concerned authority, the Courts would not be in a position to express any opinion as to whether such exercise of power is in public interest or not. Wherever the statutory provisions or the Rules confer wide power on an authority, greater is the obligation upon the authorities to act fairly and in adherence to the spirit of Article 14 of the Constitution of India. In the case of Consumer Action Group v. State of Tamil Nadu and Anr. , the Supreme Court held as under.
29. Whenever any statute confers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute confers and such exercise of power must stand the test of judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of such power.
30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. The public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act.
27. The public interest is a term of wide magnitude and covers within its ambit efficiency, exigencies of service and interest of the public at large. These are some of the relevant considerations which the executive authorities are required to take into consideration before arriving at a final decision. Absence of any reasons or valid reasons would be a ground which would attract the scrutiny by Courts. In the case of Hochtief Gammon v. State of Orissa , the Supreme Court held as under.
The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account wholly irrelevant or extraneous consideration. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The Courts have power to see that the Executive acts lawfully. It is no answer to the exercise of that power to say that the Executive acted bona fide nor that they have bestowed painstaking consideration. They cannot avoid scrutiny by Courts by failing to give reasons. If they give reasons and they are not good reasons, the Court can direct them to reconsider the matter in the light of relevant matters, though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.
28. It was not even seriously contended before us that the case of respondent Nos. 6 and 7 falls under second proviso to Rule 16(1). As far as the third proviso and Rule 16(1A) are concerned, these Rules are relatable to specific posts and obviously cannot be said to have any general application. An attempt was made on behalf of the State to contend that the posts of Director General of Police and the Commissioner of Police, Bombay, are the posts which will fall under Rule 16(1A) as they are kind of alike posts. This argument on the face of it is not maintainable. Once the provision is specific, it necessarily excludes general implication. In view of the maxim expressum facit cessare tactium, there is no scope for the Court to add words into the Rule. Furthermore, it has to be presumed that the Rule making authority was conscious of the existence of all posts in the hierarchy of various Departments of the State and Central Governments, still it choose to apply Rule 16(1A) and even the fourth proviso to Rule 16(1) to a limited and mentioned class of posts. The extension to other posts, in our opinion, would not be permissible and cannot be deemed to have been included in Rule 16(1A) on the premise that they can be treated or may be akin to those posts. In fact, it needs to be noticed that even the Ministry, while dealing with the case of Respondent No. 7, had noticed that the grounds indicated were very general in nature which can be given for every retiring Police Officer and his case was not covered under Rule 16(1) of the Rules. The case of this respondent was submitted to the higher authorities. Reference is also made that one of the suggestions was that even Respondent No. 7 could be given post retirement suitable appointment after superannuation. It was also said that the DGP of the State is holding an equally sensitive post as that of a Chief Secretary. This itself indicates that the authorities were uncertain about the reason for grant of extension of service and, in any case, were clear that the said post was not equivalent to that of the Chief Secretary or other designated authorities under Rule 16(1A).
29. Now, coming to the applicability of Rule 3 of the Rules, 1960, this Rule certainly vests the Central Government with the power to relax rules and regulations in certain cases. Exercise of such power to relax the requirement of the rule or regulation to such extent and to such exception and conditions as it may consider necessary for dealing with the case must be in a just and equitable manner. The essence of the Rule is the words "causes undue hardship in any particular case". The word "undue hardship" has to be given its literal meaning and should be understood on its plain language. The "undue hardship" is relatable to the persons appointed to all India service. It is hardship in relation to regulating the conditions of service of persons appointed to All India service. The hardship, therefore, should essentially have reference to the cadre of service, interest of the service and least individual interest. The State Government in its proposal had not made out any case of hardship either to the service or even to the individual respondents. While taking decision in exercise of its powers conferred under Rule (3) of Rule 1960, the Competent Authority is required to strike a balance between public interest/service interest and individual interest. To a private interest, interest of the service would be paramount while to the service interest, public interest would be paramount. The Government may be able to take recourse to power of relaxation or even to issue instructions to provide for a situation which is not dealt with specifically under the Rules. Even if that was the situation, still the reasons ought to be the ones which would tilt the balance of interest in favour of the order rather than against it. The Central Government or any competent authority granting approval and/or according its sanction for such purpose must do so for valid and proper reasons. The action of the State or its instrumentalities should be for reasons which are valid, just fair and reasonable. The fairplay and transparency in such an administrative or executive actions is the sine qua non to exercise of such power. Reference may be made to the judgement of the Apex Court in the case of M.J. Sivani and Ors. v. State of Karnataka . The Central Government, in the compilation filed before the Court, made a reference to the letter dated 1st January, 1966, where the Government clarified that benefit to be conferred in relaxation of any Rule or Rules must be of a nature already provided for in the Rules and Governments are not empowered by this Rule to confer benefits which are not contemplated in Rules. It also indicated that undue hardship signifies unforeseen hardship to an extent not contemplated in the Rule framed and not covered under any ordinary hardship or inconvenience.
30. Reliance is also placed upon the judgment of the Supreme Court in the case of Amrik Singh and Ors. v. Union of India 1980 Ind law SC 209, where the Court was concerned with the case of relaxation of the Rules to count the period of officiation against an ex- cadre post so as to give benefit of service rendered by the Junior Officers in the cadre post for the purpose of seniority. The Court held thus:
Government must be satisfied, not subjectively but objectively, that any rule or regulation affecting the conditions of service of a member of the All India Service causes undue hardship, then the inequitous consequence thereof may be relieved against by relaxation of the concerned Rule of Regulation. There must be undue hardship and, further the relaxation must promote the dealing with the case "in a just and equitable manner". These are perfectly sensible guidelines.
31. The reason reflects the cause or the grounds during the decision making process which led to ultimate decision. The discretion must be exercised reasonably. Reasonable and/or unreasonable, both are the terms of general description and indicate how things may or may not be done or not. The court essentially is concerned to find out if the concerned authorities left out relevant factors or had taken into account irrelevant factors and whether the decision was within the four corners of law. Whether the administrative decision is patently irrational or suffers from the defect of procedural impropriety would have to be examined. The most important principle of law dealing with fairness in State action under the administrative law is regulated by the Wednusbury's principle essential in English Law principle which has now been consistently applied by Indian Courts with approval. In the case of Union of India and Anr. v. G. Ganayutham (Dead) by Lrs. , it is held thus
11. The principles of judicial review of administrative action were further summarised in 1985 by Lord Diplock in CCSU v. Minister for Civil Services (1985) 1 AC 374 as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock' observed in that case as follows:
...Judicial review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by Judicial review. The first ground I would call `illegality', the second `irrationality' and the third `procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of `proportionality', which is recognised in the administrative law of several of our fellow members of the European Economic Community....
Lord Diplock explained `irrationality' as follows:
By irratiionality, I mean what can now be succinctly be referred to as `Wednesbury unreasonablness'.... It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards hat no sensible person who had applied his mind to the question to be decided could have arrived at.
32. Unreasonableness or arbitrariness in administrative action would be subject to judicial review. May be the respondents are not expected to give detailed reasons for their action but the decision making process should reflect application of mind and recording of some grounds which are valid and proper reasoning. In the case of Union of India and Ors. v. E.G. Nambudiri 1991(2) SLR 675 and Chabungbam Ibohal Singh v. Union of India , the Supreme Court stated that fairness in administrative action must not only be done but it must appear to have been done in consonance with the basic principle of law. Further, it enunciated and stressed the need for recording the reasons by administrative authorities while giving promotion to junior over his senior and if the process of selection is arbitrary and contrary to the criteria or suffers from element of bias, the same would liable to be set aside.
33. Another facet of powers of judicial review relates to the principle of proportionality where the court is called upon to examine that the concerned authority has placed its priorities during the decision making process. If the decision making process infringes the fundamental right, protection or the statutory rules, the decision would be liable to be interfered with. Another class of cases could be where the decision making process is contrary to basic rule of law and the relevant rules resulting in an unsustainable decision.
34. In a writ petition titled as Major General B.D. Wadhwa, AVSM v. Union of India and Ors. W.P. (C) No. 10630/2006 decided on 19th October, 2006, a Bench of Delhi High Court stated the importance of Wednusbury's principles in exercise of discretion in service cases and held as under:
...This doctrine covers various facets of arbitrariness, the Courts more than often have applied this principle to examine the merits or otherwise of such contentions. In the case titled as Dr. Sudha Suri v. Union of India and Ors. 2002 (1) SLR 665, a Bench of the Punjab and Haryana High Court had discussed at some length the applicability of this principle and had discussed various judgments of the Supreme Court and even the case of Wednesbury Corporation's (supra). The relevant conclusions of the Court can usefully be referred to at this stage:
42. Learned Counsel for both the parties heavily relied upon the Wednesbury's principle in support of their respective case. According to learned Counsel for the petitioner, the said principle is applicable as there has been patent unfairness in appointment of respondent No. 4 as the Dean while according to the learned Counsel for the respondents the principle has a very restricted application and scope. Once eligible persons have been considered and after looking into their service records, respondent No. 4 has been appointed, then such appointment cannot be subjected to judicial review on the strength of principles of Wednesbury.
43. In the case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1947 (vol.2) All England Law Reports 680, enunciating the aspects of unreasonableness in executive action of the public authorities, it was stated that if the power is exercised so as to give impression or interference to the Court that there has been unreasonableness in such action, it is taken in bad faith extraneous circumstances have been taken into consideration, there has been disregard of public policy and relevant consideration have been ignored then authorities would be said to have acted unreasonable. Lord Greene, M.R., expressing the unanimous view observed as under:
He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting "unreasonably". Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L.J. I think it was, gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters.
35. In the present case with some emphasis, it was contended on behalf of the petitioner on the one hand that the proposal of the State is not in confirmity with the rules while on the other, it had taken into consideration extraneous matters and the decision of the concerned Governments smacks of arbitrariness and discrimination. Of course, according to the respondent, neither the decision making process nor the decision of the competent authorities is based on the irrelevant consideration and is just and fair conduct in the public interest. We have already noticed that the State proposal which was made under Rule 16(1) of the All India Service (Death-cum-retirement) Benefits Rules, 1958 but did not satisfy its ingredients while hardly any grounds have been made out for invoking Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules 1960. Even if Rule 3 is treated as source of power, the competent authority can take such a view to relieve the hardship in a just and equitable manner in dealing with a case and such provision hardly appears to have been invoked from the record produced before the court.
36. During the course of hearing, we had directed the concerned Government to produce the original records relating to grant of extension to the two private respondents which was produced. We have already referred to the records but even at the cost of repeation, it can be noticed that no reasons appear to have been recorded by the concerned authorities while not adhering to the unfavourable note put up for their consideration. The records do not reflect that any reasons were provided or even considered by the Governments as to why the respondent No. 7 be not given reemployment and that the case of respondent No. 6 was not at all covered under Rule 16(1) though referred to in the letter issued by the State Government. Absence of such reasoning or rationality gives rise to the element to arbitrariness. The relevant considerations as emerged from the rules were not considered while irrelevant or extraneous considerations were taken into account during the decision making process. It needs to be noticed that all the officers who have reached such highest posts in the hierarchy of Indian Police Services are expected to have `very good' or `outstanding' service record and profile with distinguishing achievements to their career. Grant of extension at such high position which only carries one post, does have the effect on other members of the force. The obvious effect is that, grant of extension to one denies right of consideration to number of other senior officers who may be eligible to hold that post. It certainly hurts their legal expectancy to hold the post of Director General of Police/ Police Commissioner, Mumbai. The respondents are expected to take into consideration the consequences of their decision on interest of service and individual interest surely maintaining the public interest being of paramount relevancy. We are, in no way, commenting upon the service profile of either of these officers. We have preferred to restrict our findings with regard to the decision making process adopted by the respondents while granting extension. Objectivity in the administrative decision even if founded on subjective satisfaction will always require that ramification of such decision is a relevant factor to be borne in mind by the concerned authorities.
37. An inbuilt element of service is that one has to superannuate at the prescribed age or after the expiration of the extended period. This undisputably infers that nobody in the State administration is indispensable. Even the Supreme Court in the case of N.K. Singh v. Union of India and Ors. , where it was concerned with transfer of public servant and discussing the grounds of larger public interest and exigencies of administration clearly observed as under:
4. For a better appreciation of the question it becomes necessary to state few facts. The appellant was appointed initially as Inspector of Motor Vehicles and was promoted as Assistant Regional Transport Officer in the year 1976 in which year the Special Rules were framed. In the year 1981 the appellant was promoted as Regional Transport Officer. Some of the General Rules of 1977 were amended in the year 1982 and Sub-rule (2) of Rule 3 was inserted in the said Rules. In the year 1989 respondent 2 was promoted as Deputy Commissioner of Transport on seniority-cum-merit basis alone as purported to have been provided in new Rule 3(2) of General Rules. Being aggrieved by the same the appellant filed an Application No. 3155 of 1989 before the Karnataka Administrative Tribunal questioning the promotion of respondent 2 on the ground that the promotion to the post of Deputy Commissioner of Transport should be by selection from the cadre of Regional Transport Officers and not merely on seniority-cum-met it basis. His application was dismissed by the Tribunal holding that Rule 3(2) of General Rules which was introduced later overrides the earlier Special Rules. It is this order which is questioned in this appeal.
38. The State Government had submitted its proposal for grant of extension to these respondents under Rule 16(1) of All India Service (Death-cum-retirement) Benefit Rules, 1958. Usefully, reference can also be made to the copy of the Department of Personnel & A.R.O.M. No. 26011/1/77/Estt.B, dated 18th May, 1977 in which the criteria for extension and re-employment was discussed and circulated to various departments. Under Para 2(2), extension of service/re-employment could be justified only in very rare and exceptional circumstances. The overriding consideration is that it must be clearly in public interest and in addition satisfy one of the two conditions that other officers are not ripe enough to take over the job or that the retiring officer is of outstanding merit. It is also specified in the letter that while sending the proposal to the Ministry, the integrity certificate of the appropriate authority could be enclosed which was not done in the present case. This letter certainly places restriction on exercise of power in relation to grant of extension. The object obviously, is to consider various facets of the proposal and then objectively arrive at the decision by fair, just and reasonable decision making process. The Government is expected to take into consideration such relevant material and record the reasons which are in confirmity with the rules and satisfy the canon of larger public interest. Patently, the proposal did not satisfy the ingredients of the rule. Apparently, under the other proviso to Rule 16(1), the case of Director General of Police and the Commissioner of Police was not covered. If the Central Government has exercised its power of approval under its residuary power vested by virtue of Rule 3, then the decision is devoid of any reasoning much less appropriate reasons guided by any rule or policy of the Government. On the contrary, it appears to be in contradiction to the very spirit of the rule. In the decision making process by the respondents, no nexus is made out between the decision and the object of the relevant rules. Exercise of general discretion under a residuary power vests the Government with wide discretion but equally places a higher responsibility upon the concerned authorities to exercise such discretion cautiously for valid reasons and its decision making process should be free from element of arbitrariness and discrimination. It essentially must be in the larger public interest. One factor which normally would tilt the judicial review in favour of the authority would be the action being in the larger public interest as opposed to limited interest of one or the other. The records do not reflect that any case of larger public interest has been made out to the satisfaction of the concerned Government. In fact, there is hardly any reference to this aspect. Rule 16(1) as noticed, had been amended from time to time but all the amendements were part of the rule book prior to the Government taking decision in the present case. Even if we treat the decision as an independent one which the Government has the power to take under the garb of supplying lacunaes in the rules in absence of any specific rule, even then the decision must stand the test of judicial review.
39. It is obligatory upon the State to show that the decision is in larger public interest and it cannot take up the plea that it is not prejudicial to the public interest. The decision making process should ex-facie reflect the application of unbiased mind for some good reasons which are intended to achieve the larger public interest in contra-distinction to providing for limited interest. The decision making process in the orders dated 30th November, 2007 do not satisfy these basic requirements and, therefore, in law, are unsustainable. With reference to the prayer in relation to giving effect to the judgment of the Supreme Court in Prakash Singh's case (supra), we would only observe that every State and, in this case, the Maharashtra State Government would no doubt shall take appropriate steps in furtherence to the judgment of the highest court of the land and without any undue delay.
40. The respondents while relying upon the judgments of the Supreme Court in (i) Ashok Kumar Pandey v. State of West Bengal , (ii) Dr. B. Singh v. Union of India , and (iii) Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. had stated that the Public Interest Litigation in service matters is not maintainable. According to the respondents, the PIL in service matter does not lie and in any case, qua the petitioner. It is an abuse of process of law as the petitioners themselves are involved in some cases. On the other hand, the learned Counsel appearing for the petitioners relied upon several judgments of the Supreme Court to contend that the present petition is maintainable as it involves questions of larger public interest. The posts held by respondent Nos. 6 and 7 respectively are posts highest in the police hierarchy in the State of Maharashtra and they have a direct impact on the law and order, at least in the investigation of criminal cases in the State. According to them, the allegations against respondent No. 6 are of the nature which per se would disentitle him for grant of any extension, in view of the judgments of the Supreme Court in the cases of (i) Centre for Public Interest Litigation v. Union of India, University of Mysore v. Govind Rao , (iii) R.R. Verma v. Union of India and (iv) Amrik Singh v. Union of India .
41. This Court had an occasion to consider such a question in the case of Dr. M. Furquan v. Jet Airways Ltd. PIL Writ Petition No. 4 of 2007 decided on 21st August, 2007 and after discussing different judgments of this Court, the court held as under:
The Courts while exercising jurisdiction and deciding a public interest litigation have to take great care, primarily for the reason that this wide jurisdiction should not become a source of abuse of process of law by a disgruntled litigant. The Courts have also held that no efforts should be spared in fostering and developing the laudable concept of PIL and extending its long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental right are infringed and violated and whose grievances go unnoticed. It has to be a genuine litigation, ubnmotivated and imposes an obligation upon a litigant to come to the court with true facts and clean hands. Public interest litigations result in taking large court's time, which could not be used by the court for the benefit of common litigant. Thus it is more imperative that petitions which are bona fide and further the public cause alone should be entertained in this category.
42. We are of the view that it is difficult to hold that this petition is liable to be dismissed on the ground of locus or maintainability but we do not consider it necessary to discuss this issue and to deliberate this question any further, as we have already answered the various controversies arising on merits in the present case. Having dealt with such issues as the matter was argued for number of days, we even otherwise would find it unnecessary to go into the question as to whether the present petition needs to be dismissed on the ground of maintainability.
43. Now we may synthesize and state the conclusion of our above palaver. The proposal moved by the State Government supposedly under the second proviso to Rule 16(1) does not satisfy the basic ingredients of the provision. Both respondent Nos. 6 and 7 exfacie are not covered under the proviso to Rule 16(1) as well as Rule 16(1A). In fact, by necessary implication, they stand excluded. It is not possible for the Court to introduce the officers holding these posts by implication particularly when the language of the rule is unambiguous and certain. If the Central Government has exercised its residuary power under Rule 3 of the Residuary Rules and/or even under its general power, it being the rule making authority, the decision making process is devoid of any valid and proper reasoning. No case of larger public interest in preference to service interest has been made out in the records produced before us. The mere fact that the respondents Nos. 6 and 7 had contributed to maintain the law and order problems in the State and had a good service profile per se are not the grounds which will bring the case of these respondents within the ambit of the rules and the Government instructions afore-referred. Rudiments of service jurisprudence applicable to such cases would require the authorities concerned to act with greater rectitude and in larger public interest. It is neither pleaded nor argued before us that either respondent Nos. 6 or 7 are indispensable to the force and also that there are no officers in position who are eligible and capable of being selected to the post of Director General of Police, Maharashtra State and Commissioner of Police, Mumbai.
44. It is also not the case pleaded or argued before the court that any project or commission is likely to be concluded/wound up, within the extended period granted by the Central Government to these respondents.
45. Proper analysis of the factual matrix of the case and the principles of law stated supra, would lead us to only one conclusion that the orders dated 30th November, 2007 are not reasoned, rational and are also not in larger public interest. They do not satisfy the basic ingredients of the relevant provisions and instructions issued by the Government itself for grant of extension to the members of the All India Service. The action of the Government thus, suffers from vice of arbitrariness. Resultantly, these orders are quashed.
47. Before parting with the file we make it clear that we have neither dealt with nor recorded any findings with regard to competence, service profile and claim of desirability of respondent Nos. 6 and 7. We have also not dealt with or commented upon any individual involved in the decision making process as we have found fault with the very decision making process.
48. The Rule is made absolute to the limited extent afore indicated while leaving the parties to bear their own costs.