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Again when the question came for considering the petitioner for ex-cadre post in question, the meeting of DPC was convened on 26th April 1999. The minutes of the DPC held on 26/4/99 vis-a-vis the petitioner finds consideration in the following manner.

"[8] Shri B.B. Dwivedi :- The Committee was informed that Shri Dwivedi was caught red handed while accepting illegal gratification when he was functioning as Deputy District Development Officer. However, the then Government did not grant permission for prosecution. This decision of the Ex - Government is under review before the present Government. Moreover, there are Adverse Remarks in the ACR for the year 1996-97 of Shri Dwivedi. The Committee, therefore, decided to declare Shri Dwivedi UNFIT for inclusion in the select panel."

The question thus arise whether the material relied on by the DPC while considering the case of the petitioner for suitability to the ex-cadre appointment in question did exist when consideration took place or could have been considered.

The first material relied on is information that the petitioner was `caught red handed in anti corruption case' and the Government is considering to review its earlier decision not to sanction the prosecution of the petitioner.

7. In this connection, the facts which are not in dispute need be considered. A complaint was lodged against the petitioner and two other persons by one Ashwinkumar Ochchhavlal Sheth alleging that the petitioner has demanded a sum of Rs.51,000/- somewhere in March 1996. In the first instance, part payment was made of Rs.7,000/- and Rs.8,000/- and thereafter, on 18th March 1996, the petitioner again demanded balance of the amount, against which the complainant promised to pay Rs.30,000/on 21/3/1996, which offered on 22/3/1996 to the clerk of the petitioner - Mr. Kamlesh Narendrabhai Patel, who in turn directed the amount to be paid to one Harshad @ Tino Ratilal Thakkar, who is not a Government employee, sitting on the counter of Ambica Hotel. The complaint itself is suggestive of the fact that it was not a case of red handed apprehension of the petitioner demanding or receiving the illegal gratification. In pursuance of that complaint. In the first instance, the petitioner was suspended by order dated 12/8/1996 and by order dated 1/1/97, the petitioner was reinstated and no chargesheet was filed against the petitioner. While according to the petitioner, no case was made out, according to the respondents, merely because the State Government has refused to issue sanction for prosecution of the petitioner on political interference, the prosecution could not be launched against the petitioner as per the requirement of the Code of Criminal Procedure. According to the respondents, on 4/4/1998, the committee was constituted to reconsider the cases closed by the previous Government and take decision thereon. If the committee itself was constituted on 4/4/1998, there could not have been any question of reconsideration by the Government for sanctioning prosecution at least on 30/3/1998. In pursuance of the committee decision, the petitioner has been suspended once again, only on 7th June 1999 pending consideration whether to sanction the prosecution. Thus, decision for not prosecuting is yet to be reviewed. These facts emanate from the reply of the respondents. Therefore, neither on 30/3/1998 nor on 26/4/1999, there was any decision of the Government against the petitioner for initiating action in respect of the said complaint has come in existence. The primary fact relied on as per minutes of proceedings goes to show that it was the incident of being `caught red handed' while accepting the illegal gratification was the material that has gone in consideration which itself is admittedly not existing fact. Learned counsel for the respondents was given opportunity to show whether there is any material before the departmental promotion committee or with the State Government which could be fed to the DPC about the petitioner being caught red handed in an anti corruption case. The fact that case is being pending consideration for launching prosecution because of an allegations made against the incumbent is entirely different from the gravity of the cases of a person who is caught red handed accepting or demanding illegal gratification.

8. The Under Secretary to the Government of Gujarat has informed the learned Government Solicitor on this aspect for the purpose of informing the Court vide letter dated 16th September 1999 that the words "caught red-handed" have been used inadvertently while giving dictation for the minutes of the meeting. In fact, all the members of the D.P.C. were fully aware of the facts of the case including the fact that the petitioner was not caught red-handed while accepting bribe, but was involved in an ACB trap case wherein the charge is that three persons, including the petitioner, in collusion with each other, had accepted the illegal gratification. This information is clearly indicative of the fact that the impression about the fact that the petitioner was caught red handed founded on no existing material and the fact that this belated explanation of the Under Secretary that DPC members were fully aware of the facts of the case including the fact that the petitioner was not caught red handed while accepting the bribe, is to say the least is to cover up the case. It cannot be accepted that the top officials of the State Government and the DPC did not understand while dictating the minutes of the meeting as to what would be the implication of the words `caught red-handed' and what would it mean in ACB trap case. Nor did they care to read the minutes before signing the same as mark of approval, if they were aware about the fact that petitioner was not caught `red handed' in any anti corruption case, and have authenticated the incorrect minutes of proceedings. If that is so, there cannot be any authencity of minutes to examine what has gone into consideration and what has not gone into consideration. More over, this impression in the mind of the Under Secretary carries no meaning vis-a-vis expression given by members of DPC under their signatures. Under Secretary is no person to explain the mental state of members of DPC who considered the case of petitioner and approved the minutes of proceedings. Moreover, the letter even does not support that `caught red handed' was not the fact taken into consideration. If for the sake of argument, it is assumed that the members of DPC were aware about nonexistence of material and yet has chosen to express formation of their opinion on the basis of known nor existent material, the proceedings must be held to be vitiated by malafide. On the other hand, it appears more plausible from the expression used in the minutes that the DPC was acting on information supplied to them and used the same to lend support the then opinion and whosoever has fed this wrong information about pending consideration of Anti Corruption Case has deliberately planted to influence the mind of DPC. From the reply affidavit of Under Secretary, it is apparent that bureaucracy of State is not immune or insulated from political interference in the matter of operating service conditions. If the earlier decision of competent officer could be interfered with by then political forces, it cannot be assumed that on change of face of political forces that be in the power the very same machinery will not change its tune surrendering its objectivity in decision making.

9. What consideration has weighed with the DPC can be gathered from satisfaction recorded in the minutes and not by fathoming the minds of the officers manning the DPC on the basis of explanation furnished at a later stage by some officer of the State, when the question crops up what has gone into consideration and what has not gone into consideration. To countenance such a course would leave vast area open for embellishments by feeding the gaps and densify the myst clogging the transparency. It is well established that where there is documentation of any proceedings, no extraneous material can be considered for the purpose of finding what has weighed with the decision making authority, muchless any deposition by a third person about what was in the mind of the members of the DPC. It may be pertinent to notice that the DPC has merely recorded that they have been informed about the fact that the petitioner has been caught red handed. The explanation now furnished goes to show that either the DPC has been deliberately misled by giving the wrong information or something is being covered up under the guise of referring to nonexisting material.