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CASE NO.: Writ Petition (civil)  387 of 2005

PETITIONER: Center for Public Interest Litigation and Anr.                                                        

RESPONDENT: Union of India and Anr.                                  

DATE OF JUDGMENT: 06/10/2005

BENCH: RUMA PAL,ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T I.A. NO. 1 IN WP (C) NO.387/2005

ARIJIT PASASYAT, J.

       This writ petition is an offshoot of WP(C) No.150/1997.  The main grievance in the said writ petition related to  alleged irregularities and illegalities committed by  respondent No.3 in the present writ petition who is  respondent No.7 in the earlier writ petition. It is  unnecessary to go into the maze of factual controversies  involved in the earlier writ petition and the present writ  petition.  Challenge is essentially to the appointment of  Respondent No.3-Ms Neera Yadav as Chief Secretary of  Respondent No.2 i.e. State of Uttar Pradesh.  Interim prayer  in the I.A. is to stay functioning of Respondent No.3 in the  said post.      

       It would suffice to note that from 10.1.1994 to  8.11.1995 respondent No.3 was the Chairman and Chief  Executive Officer of New Okhla Industrial Development  Authority (in short ’Noida’). The then Director of Central  Bureau of Investigation (in short the ’CBI’) on 6.12.1995  wrote a letter to the then Cabinet Secretary, Government of  India seeking sanction for registering a preliminary inquiry  into certain allegations of corruption committed by the  Respondent No.3. The request was re-iterated by the then  Director of CBI on 16.12.1996.  

       It appears that at different stages allegations were  looked into by the CBI and one man Commission of Inquiry  under a retired Judge of the Allahabad High Court. According  to the petitioner, initially the State of U.P. took the  stand that on the basis of findings of the Commission of  Inquiry, prima facie case was made against respondent No.3  and disciplinary proceedings were intended to be initiated  under Rule 8 of the All India Service  (Discipline and  Appeal) Rules, 1969 (in short the ’Rules’). On 20.1.1998  this Court directed the CBI to conduct investigation in  respect of the alleged irregularities. It appears that on  8.11.2001 the respondent No.2-State of U.P. filed an  affidavit stating that since the CBI inquiry was under  progress into the allegations, it was decided by the State  Government to keep the disciplinary proceedings in abeyance  till the CBI inquiry was over.  Thereafter, the CBI obtained  sanction from the Central Government and filed charge sheets  before the Special Judge, CBI at Ghaziabad. After the charge

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sheets were filed respondent No.3 made an application for  discharge under the provisions of Code of Criminal  Procedure, 1973 (in short ’Code’) which was rejected. The  order of rejection has some significance in the present  dispute. While rejecting the prayer for discharge, learned  Special Judge directed framing of charges. The order  rejecting the prayer for discharge is currently under  challenge before the Allahabad High Court in Criminal  Revision No. 2284 of 2004. It appears from the order passed  by the High Court directing stay of further proceedings,  that the primary question before it related to absence of  sanction in terms of Section 197 of the Code. By order dated  11.1.2005 this Court appointed a Commission under Mr.  Justice K.T. Thomas, a retired Judge of this Court to go  into various questions relating to allotment of plots as  well as into the issue as to why the disciplinary action had  been dropped against several respondents in the writ  petition No.150/1997 including respondent No.3 who is  respondent No.7 in the said writ petition.  

       On 30.4.2005 respondent No.3 has been appointed as  Chief Secretary of the State of U.P. This appointment is the  subject matter of challenge in the writ petition. According  to the petitioner, the post of Chief Secretary is a key post  and in total violation of the norms fixed by the Government  of India, Department of Personnel and Training, O.M.  No.22011/4/91-Esttt. (A) dated 14th September, 1992 the  appointment of respondent No.3 was made as a Chief  Secretary. Though in the writ petition, averments were made  to the effect that such appointment was by way of promotion,  in the additional affidavit filed it has been clarified that  though it is not a promotion, yet it is a prestigious  appointment and looking into the tainted reputation and  doubtful integrity of respondent No.3, she should not have  been appointed as a Chief Secretary, particularly when  criminal cases are pending and a Commission has been  appointed to look into the various aspects including the  correctness of the decision to drop the disciplinary  proceedings. In this background, interim prayer has been  made to stay functioning of respondent No.3 as the Chief  Secretary. The State of U.P. (respondent No.2) and the  concerned officer, Ms. Neera Yadav (respondent No.3) have  filed counter affidavits. In essence, their stand is that  until a person is found guilty he should have been presumed  to be innocent. The writ petition at the most raises  question of morality. This is a broader issue and the  decision of the Government to appoint somebody as the Chief  Secretary is a policy decision which should not be  interfered with. Additionally, it has been submitted that a  public interest litigation cannot be entertained in relation  to service matters and in any event a writ of quo warranto  cannot be issued. It has been further submitted that paras 2  and 3 of the Office Memorandum on which strong reliance has  been placed by the petitioner has no application as  presently no prosecution for a criminal charge is pending.  In fact, the charges are yet to be framed. Respondent No.3  has functioned for nearly 5 months and there is no  allegation that she has in any manner attempted to interfere  with the functioning of the Commission. It has been  submitted that the Commission is required to give its report  by 15th December, 2005 and the last date is not far off.  At this juncture, it is submitted, it would not be proper  and desirable to interfere with the order of appointment of  respondent No.3 as the Chief Secretary. It is further  submitted that the decision is not bona fide particularly

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when some other persons against whom allegations have been  made are functioning on high posts. It is submitted that the  nature of allegations against respondent No.3 shows that  this is clearly a case where oblique motives are involved.  

       Learned Solicitor General for the opposite party No.1  submitted that the Union does not defend the action and it  is for this Court to decide whether the continuance of  respondent No.3 as Chief Secretary is desirable.  

       It is submitted by learned counsel for the petitioner  that the CBI has filed charge sheets after obtaining  sanction from the Central Government. The fact that the  State Government is not according sanction clearly shows  that it is trying its best to protect respondent No.3 and  that is why it did not pursue the departmental proceedings.   That is precisely the reason why this Court has appointed  the Commission under a retired Judge of this Court to find  out the legality of the action.  

       It is submitted that Section 197 of the Code has no  application to the facts of the case as the acts of  corruption are not protected by the said provision.   

       We do not intend to deal with the merits so far as the  issues in the revision petition before the Allahabad High  Court are concerned. This Court has in several cases laid  down parameters for application of Section 197 of the Code.  

The protection given under Section 197 is to protect  responsible public servants against the institution of  possibly vexatious criminal proceedings for offences alleged  to have been committed by them while they are acting or  purporting to act as public servants. The policy of the  legislature is to afford adequate protection to public  servants to ensure that they are not prosecuted for anything  done by them in the discharge of their official duties  without reasonable cause, and if sanction is granted, to  confer on the Government, if they choose to exercise it,  complete control of the prosecution. This protection has  certain limits and is available only when the alleged act  done by the public servant is reasonably connected with the  discharge of his official duty and is not merely a cloak for  doing the objectionable act. If in doing his official duty,  he acted in excess of his duty, but there is a reasonable  connection between the act and the performance of the  official duty, the excess will not be a sufficient ground to  deprive the public servant from the protection. The question  is not as to the nature of the offence such as whether the  alleged offence contained an element necessarily dependent  upon the offender being a public servant, but whether it was  committed by a public servant acting or purporting to act as  such in the discharge of his official capacity. Before  Section 197 can be invoked, it must be shown that the  official concerned was accused of an offence alleged to have  been committed by him while acting or purporting to act in  the discharge of his official duties. It is not the duty  which requires examination so much as the act, because the  official act can be performed both in the discharge of the  official duty as well as in dereliction of it.  The act must  fall within the scope and range of the official duties of  the public servant concerned. It is the quality of the act  which is important and the protection of this section is  available if the act falls within the scope and range of his

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official duty. There cannot be any universal rule to  determine whether there is a reasonable connection between  the act done and the official duty, nor is it possible to  lay down any such rule.  One safe and sure test in this  regard would be to consider if the omission or neglect on  the part of the public servant to commit the act complained  of could have made him answerable for a charge of  dereliction of his official duty, if the answer to this  question is in the affirmative, it may be said that such act  was committed by the public servant while acting in the  discharge of his official duty and there was every  connection with the act complained of and the official duty  of the public servant. This aspect makes it clear that the  concept of Section 197 does not get immediately attracted on  institution of the complaint case.          Use of the expression, ’official duty’ implies that the  act or omission must have been done by the public servant in  the course of his service and that it should have been in  discharge of his duty. The Section does not extend its  protective cover to every act or omission done by a public  servant in service but restricts its scope of operation to  only those acts or omissions which are done by a public  servant in discharge of official duty.  If on facts, therefore, it is prima facie found that  the act or omission for which the accused was charged had  reasonable connection with discharge of his duty then it  must be held to official to which applicability of Section  197 of the Code cannot be disputed.          Above position was highlighted in R. Balakrishna Pillai  v. State of Kerala (AIR 1996 SC 901), State of M.P.  v. M.P.  Gupta (2004 (2) SCC 349), State of Orissa through Kumar  Raghvendra Singh & Ors. v. Ganesh Chandra Jew (JT 2004 (4)  SC 52) and Shri S.K. Zutshi and Anr. v. Shri Bimal Debnath  and Anr. (2004 (8) SCC 31)   

       We think it appropriate that considering the passage of  time the matters should be decided as early as practicable.    The Allahabad High Court is requested to ensure that the  Criminal Revision No. 2284 of 2004 is disposed of within a  period of 3 months from the date of receipt of this order.  

       Learned counsel for respondent No.1 shall bring this  order to the notice of the High Court.  

       The other questions relating to legality of the action  of the State Government in not proceeding with the  departmental enquiries are being examined by the Commission.  We, therefore, did not think it appropriate to say anything  in that regard.

       The basic question is whether the appointment of  respondent No.3 as Chief Secretary is proper.  

       Learned counsel for respondent Nos. 2 and 3 have  submitted that as back as on 17.4.2004 the respondent No.3  was promoted to the Chief Secretary’s grade with a  particular scale of pay. Since the respondent No.3 belonged  to the said cadre and grade, one of the posts on which she  could be appointed is the post of Chief Secretary.  Therefore, there is nothing wrong in her appointment. Though  the post of Chief Secretary may belong to a particular  grade/cadre, it is certainly a key post. The importance of  this post was noted by this Court in E.P. Royyappa v. State  of Tamil Nadu and Anr. (AIR 1974 SC 555).

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       The argument presently advanced is that since  respondent No.3 has been continuing in the post for five  months, no orders should be passed regarding her appointment  till the Commission gives its report. Had this consideration  weighed with the State Government when it made the  appointment there may not have been any difficulty. It could  have, considering the importance of the post, awaited the  report of the Commission headed by Mr. Justice K.T. Thomas.  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  but she should be appointed as the Chief Secretary. This is  purely a case of justifying an action. Linked with it is the  question of transparency in action. It is true that the  allegations against respondent No.3 have to be established.  It is often said that justice should not only be done but it  should appear to have been done. Lord Denning in  Metropolitan Properties Ltd. v. Lannon (1968) 3 All E.R. 304  said "justice must be rooted in confidence, and confidence  is destroyed when right minded people go away thinking "The  Judge is biased".  The logic is equally applicable to  Governmental action and Government. The State Government  could have avoided the washing of dirty linen which as  contended by learned counsel for respondent Nos. 2 and 3 is  the sole object of the writ petition.  

       We do not think it necessary to delve into the question  of maintainability of the writ petition as the same, as  noted at the threshold appears to be an offshoot of the  earlier petition.   

       A time has come when the postings of officers holding  sensitive posts should be done in transparent manner giving  no scope for any grievance. It is true that grievances can  be made or allegations can be levelled for ulterior motive  or with the intention of damaging the reputation of an  officer who is likely to be appointed in a sensitive post,  very often at the behest of persons angling for the post. In  the peculiar background facts it was really desirable for  the State Government to steer clear of controversy and not  to post respondent No.3 as the Chief Secretary. By doing it,  it has unnecessarily created further complications and  invited criticism. We, therefore, direct the State  Government to transfer the respondent No.3 to some other  post in the cadre/grade to which she belonged. The question  of her suitability to be included in the cadre/grade, shall  be examined in the writ petition itself. For the present, we  do not express any opinion on that issue. The necessary  steps for effectuating our order shall be taken within seven  days. We make it clear that we have not expressed any  opinion on the merits of the allegations as the matter is  pending before the High Court and Justice Thomas Commission.  

       I.A. No.1 is disposed of accordingly.