Allahabad High Court
Rakesh Katiyar vs State Of U.P. & Anr. on 24 October, 2019
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 11 Case :- U/S 482/378/407 No. - 106 of 2018 Applicant :- Rakesh Katiyar Opposite Party :- State Of U.P. & Anr. Counsel for Applicant :- I.M. Pandey Ist Counsel for Opposite Party :- Govt. Advocate Hon'ble Rajeev Singh,J.
This application has been filed for quashing of the order dated 01.04.2017 passed by Additional Chief Judicial Magistrate, Room No. 26, Lucknow in Case No. 17 of 2010 (State Vs. Rakesh Katiyar) arising out of Case Crime No. 396 of 2007, under Sections 467, 468, 471, 201 and 120B I.P.C., P.S. Mahanagar, District Lucknow as well as revisional order dated 28.11.2017 passed in Criminal Revision No. 230 of 2017.
The dispute involved in this application pertains to the recruitment on the post of Assistant Radio Operators in the Department of the Police U.P.(Radio) held in the year 2005-06. Along with this recruitment, recruitment was also made for the post of constables in other two wings of the police department, i.e., PAC and civil police.
Succinctly stated, the facts are that in the year 2005-06, the State Government initiated the process for recruitment of Constables in U.P. Police, in all the three wings including P.A.C., Wireless and Radio. In the Wireless/Radio wing, Assistant Radio Operators were to be appointed. For the said purpose, several recruitment boards were constituted at various places throughout the State of U.P. This recruitment took place in different phases. After conclusion of the first phase, unsuccessful candidates filed various writ petitions before this Court leading petition was Writ Petition No. 2809 (SS) of 2005. This Court while hearing the writ petitions summoned the record relating to the recruitment and vide judgment and order dated 23.8.2005, said writ petitions were dismissed holding that there was no arbitrariness, nepotism or favoritism or mal-practices in conducting the selection of the Police Constable in any of the district in which the vacancies were notified. After the conclusion of the second phase of recruitment in the year 2006, again several writ petitions were filed challenging the recruitment which were defended by the State Government and after summoning the relevant record, the said writ petitions were also dismissed.
In the month of May, 2007, there was change in the Government and new Government headed by Ms. Mayawati took over on 13.5.2007 and very soon thereafter three members of legislative assembly, in a very quick succession, made three different complaints against the aforementioned recruitment alleging therein, large scale corruption and bungling. Said complaints were marked to the Secretary, Home for necessary action, who, in his turn, marked the complaints to the Director General of Police and Director General of Police vide order dated 13.6.2007, constituted a committee of four members to enquire into the alleged complaints against the recruitment. The Committee constituted (1) Shri Shailja Kant Mishra, Chairman (ADGP), (2) Shri Javed Akhtar (DIG), (3) Shri Vijay Kumar (DIG), (4) Shri Avinash Chandra (DIG) as members. The Committee also requested for the assistance of some other high level Officers and the same was also made available to the committee. Thereafter, the Committee submitted detailed reports on different dates indicating therein that large scale mal-practice, corruption has taken place in the recruitment and thereafter the Government vide orders dated 11.9.2007, 18.9.2007 and 30.09.2007 cancelled the appointments of all the 18,700 selected candidates, who were selected through the selection process. On 02.10.2007, F.I.R. of this case was lodged against Shri B.K. Bhalla, ADGP (Telecom) and Shri K.K. Saxena (IG), which was registered at Case Crime No. 396 of 2007.
Orders of the Government cancelling the appointments were challenged by means of various writ petitions and the same were allowed by the learned Single Judge of this Court vide judgment and order dated 8.12.2008 against which Special Appeals were also preferred, which were also dismissed vide judgment and order dated 4.3.2009. Ultimately against the aforementioned judgments of this Court, Special Leave Petitions were filed and leading petition was registered as SLP (Civil) No. 12586 of 2009 (State of U.P. and others Vs. Pawan Kumar Singh and others). The aforesaid SLP came up for hearing before the Hon'ble Supreme Court on 18.5.2009 and notices were issued on 25.5.2009. The State of U.P. moved an interim application seeking stay of the judgments and order passed by this Court, which were taken up by the Apex Court on 25.5.2009 and Hon'ble Apex Court declined to grant any stay order. On the contrary, a direction was issued by the Hon'ble Supreme Court to reinstate the selected candidates provisionally. In compliance of which, the selected candidates were reinstated in service and they are continuously performing their duties. Thereafter, the matter was taken up before the Apex Court on 23.10.2009 and the interim protection vide order dated 25.5.2009, granted in favour of the selected candidates, was made absolute and leave was also granted in the matter. On 18.10.2012, State of U.P. took a decision to withdraw the aforementioned S.L.Ps. and the same were dismissed as withdrawn by the Apex Court on 18.10.2012.
On the basis of the report of the inquiry committee constituted by order of the Director General of Police, U.P. dated 13.6.2007, several F.I.Rs were lodged against the officers involved in the recruitment process. One such F.I.R. was registered at Case Crime No. 396 of 2007, which is under consideration in the instant petition. This F.I.R. was lodged against Shri B.K. Bhalla (ADGP) and K.K. Saxena (IG Telecom). After investigation, the police has submitted charge sheet against Rama Shankar Dwivedi, Anil Kumar, Syed Zia Abbas Rizvi, Nafees Ahmad Chaudhary, Ram Nivas Singh Yadav, Raghvendra Kumar Dwivedi, Jitendra Pandey, Chandra Shekhar, Rakesh katiyar-petitioner (Assistant Computer Operator in Cubetron Scanning Agency) and the learned Special Judge Prevention of Corruption Act, Lucknow in Case No. 17 of 2010 vide order dated 18.12.2010 took cognizance in the matter. Prior to it, the order of the Director General of Police dated 13.6.2007, whereby the Enquiry Committee was constituted, was challenged by means of Writ Petition No. 7740 (MB) of 2007. The matter was heard by this Court and vide judgment and order dated 14.1.2009 concluded in paragraph nos. 30, 31 and 32 as under:-
''30. Thus from the perusal of the aforesaid, it is abundantly clear that the selection process for appointment of Police Constables was challenged by the several unsuccessful candidates, but the grounds with regard to irregularity, illegality, nepotism and favoritism did not find favour with the Court. This being so, there was absolutely no occasion for the opposite parties to again enter into question, which already stood finally settled by this Court, by constituting a committee to probe into alleged irregularities. When various questions raised by unsuccessful candidates having not found favour and same having received judicial sanction that there was no element of irregularity or illegality, nepotism and favoritism in the selection process, it was only with an oblique motive that again the same exercise was intended and initiated by constituting a committee.
31. As would appear from the perusal of record of the writ petition, Sri Irshad Hussain one of the M.L.A., upon whose alleged complaint the enquiry is said to have been initiated was also sitting M.L.A., under previous Government, but he never raised any voice in assembly or by any other means about the alleged irregularities. Upon change of the Government the complaints followed. It is further apparent that all the three M.L.As., on whose complaint the committee has been constituted to conduct enquiry in respect of the recruitment, are of the Ruling party in the State. It is only with predetermined, intentional and with oblique motive to tarnish the image and lower the morale of police force that the committee was constituted.
32. In view of what has been discussed hereinabove, the writ petition deserves to succeed and the order dated 13.6.2007 is liable to set aside. In the circumstances the writ petition is allowed and the order dated 13.6.2007, as contained Annexure No. 1 to the writ petition, is hereby quashed."
It is pertinent to mention here that on the basis of finding of this Court in the aforementioned writ petitions, the Government of U.P. vide order dated 3.4.2013 has withdrawn the departmental proceedings against the Government officials (main accused). In the said order, paragraph no. 30 (quoted above) of judgment passed in W.P. No. 7740 (MB) of 2007 has been quoted. Government of U.P., vide order dated 4.12.2012 and 17.12.2012 has withdrawn the sanction granted for prosecution of Sri K.K. Saxena and Sri B.K. Bhalla and directed for further investigation. Government of U.P. vide order dated 3.4.2013 has also withdrawn departmental proceedings initiated against Raghvendra Kumar Dwivedi, Anil Kumar, Ram Shanker Dwivedi, in view of the pronouncement of this Court in Writ Petition No. 7740 (M.B.) 2007 and vide order dated 05.10.2012, further investigation in this matter was also directed.
The submission of learned counsel for the petitioner is that the very basis of the F.I.R. was the inquiry report, wherein there was allegation of corruption, nepotism and mal-practices in the selections so made, but this Court in its judgment, quoted above, has not found any substance in the aforesaid allegations. Accordingly, the order of constitution of the committee was quashed. Therefore, when no such allegation was found to be correct, even on the judicial side then there is no justification for the continuance of these proceedings.
It is submitted that the orders of cancellation of the appointments have already been quashed and all these orders have become final because the S.L.P. preferred against the said judgments has already been withdrawn. It is further submitted that in view of the aforesaid facts, the State Government vide order dated 05.10.2012 has directed further investigation in the matter against all the persons against whom, charge sheet in Case Crime Nos. 395 of 2007 and 397 of 2007 was filed. Similarly, vide order dated 03.12.2012, State Government has directed further investigation in Case Crime No. 396 of 2007.
In the aforesaid case crime number, charge sheet was not filed against Shri B.K. Bhalla and K.K. Saxena because the sanction for prosecution was not received against them from the Government of India and their matter was also referred for further investigation vide order dated 03.12.2012 and sanction to prosecute given against these officers under Section 197 Cr.P.C. by the State Government was also withdrawn, while no sanction to prosecute them under Prevention of Corruption Act was accorded by the Government of India. The submission of learned counsel for the applicant is that applicant was not involved in any manner, but charge sheet has been filed against him on the ground that he was involved in conspiracy with Shri B.K. Bhalla (ADGP Telecom).
Shri Aniruddh Singh, learned A.G.A., during the course of argument, has conceded to the aforementioned facts. He has fairly conceded that the order of constitution of the enquiry committee has been quashed by this Court, whereby no irregularity, corruption or nepotism in the selection process was found. It is an admitted fact that all the selected candidates are in service and performing their duties. It is also an admitted that in the charge sheet, which is under consideration of this Court, in the instant petitions, the Government has directed for further investigation. It is also admitted that on the identical set of facts, the proceedings of Case Crime No. 397 of 2007, P.S. Mahanagar, District Lucknow has been quashed by this Court in Criminal Case u/s 482 Cr.P.C. No. 2648 of 2011 along with other connected cases, vide order dated 8th May, 2013 and the proceedings of Case Crime No. 395 of 2007 is dropped in the light of aforesaid decision by the trial court against the accused persons, including the applicant.
Now the point to be considered is whether the prosecution on the basis of the F.I.R., which was lodged in pursuance of the report of the inquiry committee should be permitted to remain in existence while the constitution of the committee itself has been quashed by this Court holding that there was no illegality, nepotism, corruption or any other mal-practice requiring the interference in the recruitment process.
It is pertinent to mention here that the three Members of Legislative Assembly, who have made three different complaints belong to the political party, which came into power subsequent to the recruitment, one among them was also sitting M.L.A. at the time when the recruitment process was going on, but at that time, no complaint was made by any of the M.L.As nor any voice was raised at any other forum challenging the selection process and it is only after the change of the Government that such complaints were preferred in quick succession, action was taken, F.I.R.s were lodged, and appointments were cancelled. Admittedly the orders cancelling the appointments were set aside on judicial side. The order, constituting the committee for inquiry into the alleged irregularities, was also quashed. The ousted Constables were also directed to join their services. They are still performing their duties. S.L.P.s preferred against the said orders have been withdrawn by the Government and all theses orders have attained finality.
Submission of learned counsel for the applicant is that the basis of the F.I.R. of this case, was the report of the inquiry committee and when the basis of the F.I.R. goes, then the subsequent action taken in pursuance thereof also stands wiped out.
In support of this submission, learned counsel for the applicants has placed reliance on the pronouncement of Hon'ble the Apex Court in the case of Competent Authority Vs. Bamangore Factory reported in [2005 (13) SCC 477] wherein at page 498 Hon'ble the Apex Court has held that when the foundation goes, rest of the edifice falls. The invalid notification under Section 3 (A) renders all subsequent steps invalid. Therefore, vesting of land in the Central Government in the present case cannot be said to be lawful and it does not advance the case of competent authority of NHAI. Taking possession of the land is yet another step in the same sequence and is against subject to the initiation notification being held valid. The initial notification having not been invalidated, there can be no legal and valid vesting of the land in favour of the Central Government.
Similar view was taken by the Hon'ble Apex Court in the case of Hamid khan Vs. Asha bi & Ors. reported in [2008 (8) SC 730] wherein Hon'ble the Apex Court at page no. 738 has held that once the said order of charity commission was set aside, steps taken in pursuance thereof also become non-est in the eye of law.
So the ratio is that when very foundation of an action goes then further actions, in pursuance thereof also goes. The fact remains that in this case the F.I.R. was lodged only in pursuance of the inquiry report submitted by the Committee, constituted vide order dated 13.6.2007, wherein several irregularities and corruption were alleged. The constitution of the committee has been quashed by the Division Bench of this Court and the order so passed by this Court has attained finality. The order passed by the Division Bench of this Court quashing the constitution of the committee was never set aside or modified and the same remained effective and binding throughout and has attained finality. The judgment of aforementioned writ petition was also taken into consideration by the Government of India in letter dated 19.5.2010 issued by the Ministry of Home Affairs, Government of India addressed to Principal Secretary, Home, Government of U.P. in which it has been categorically mentioned that in view of the judgment and order dated 14.1.2009 passed by the Allahabad High Court, Lucknow Bench, Lucknow in Writ Petition No. 7740 (MB) of 2007, the charge sheets in disciplinary proceedings have become infructuous and accordingly the disciplinary proceedings against the Senior Officers were withdrawn. Likewise State of U.P. has also withdrawn the departmental proceedings against the present petitioners on the same ground.
It is also pertinent to mention here that after the conclusion of the first phase of recruitment, several writ petitions were filed challenging the recruitment process and the said bunch was heard together. The leading case was Harendra Singh Vs. State of U.P. in Writ Petition No. 2809 (SS) of 2005 and the said bunch of writ petitions were dismissed by this Court by judgment and order dated 23.8.2005 wherein it was held as under:-
"I do not find any arbitrariness, nepotism or favoritism or any mal-practice in conducting the selection of the police constables in any of the district in which the vacancies were notified. It is only unsuccessful candidates who have filed various writ petitions without impleading the successful candidates who have already joined after the declaration of the result under misconception that there was some bungling in the selection process after seeing the number of more Yadav candidates in OBC category candidates and after noting certain typographical error in preparation of the select list as discussed above. Since the arbitrariness, favoritism, and nepotism have not been proved, the writ petition for quashing the selection process or for giving appointment as prayed by the petitioners or for conducting CBI enquiry can not be entertained."
It is also necessary to point out that two other writ petitions nos 34375 of 2006 and 34445 of 2006 were filed by two unsuccessful candidates, challenging the same recruitment and both these writ petitions were dismissed with cost of Rs. 5000/- each, by separate orders dated 17.7.2006. In those cases also the Court passed the orders after perusal of the answer books and the grounds, challenging the selection process were found to be false.
In this case charge sheet was filed on 18.12.2010 while the constitution of the enquiry stood quashed much earlier on 14.1.2009 by this Court. The effect of the said judgment was not at all considered by the investigating agency, nor by any superior officer supervising the said investigation. The submission of the learned counsel has force that the said action was predetermined by the then Government and accordingly under the pressure and directions of Government the charge sheet was filed, while on judicial scrutiny, nothing wrong was found in the selection process.
This Court considers it necessary to quote last paragraph of the pronouncement of Hon'ble the Apex Court in the case of State of NCT of Delhi Vs. Ajay Kumar Tyagi in Criminal Appeal No. 1334 of 2012 (SLP (Crl.) No. 1383 of 2010) decided on 31.8.2012 wherein Hon'ble the Apex Court in last paragraph of the judgment held as under:-
"We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed."
Since in the facts of this case, in the same hierarchy, this Court held that no favoritism, nepotism corruption has taken place in the entire recruitment process and further the prayer to direct for investigation was also quashed which reflects that in the considered opinion of this Court, there was not even sufficient prima facie evidence of any corruption or illegality, as alleged in the recruitment process and therefore, prayer for directing investigation was also declined. The findings in the above mentioned writ petitions were recorded after perusal of the record, and no ground was found to direct CBI enquiry. It means that at that stage there was not even prima facie evidence before the Court to order any enquiry in the matter, but in spite of that enquiry committee was constituted and after receiving the report FIRs were lodged and also appointments were cancelled. All these action of the Government did not find favour by this Court.
In view of this, when the very basis for initiating the criminal prosecution did not find favour with the court then how the officers can be prosecuted when there is specific finding of the court that there was no irregularity, corruption or nepotism in the selection process. Not even a single allegation, challenging the selection process or cancelling the appointments find favour with the Court. All the selections were upheld and were found to be regular. Selected candidates joined the services and are performing their duties. So the prosecution of the officers who were involved in the selection process or who are alleged to have influenced the selection process would, in the considered opinion of this Court, be abuse of process of law.
Hence, the present application deserves to be allowed and is hereby allowed.
Order dated 01.04.2017 passed by Additional Chief Judicial Magistrate, Room No. 26, Lucknow in Case No. 17 of 2010 (State Vs. Rakesh Katiyar) arising out of Case Crime No. 396 of 2007, under Sections 467, 468, 471, 201 and 120B I.P.C., P.S. Mahanagar, District Lucknow as well as revisional order dated 28.11.2017 passed in Criminal Revision No. 230 of 2017 are hereby quashed. The matter is remanded back to the court below for passing fresh order in accordance with the discussions made hereinabove.
October 24, 2019 VKS