Prakash Chand Srivastav Vs State of U.P.

1. Heard Sri Ashok Mehta, Senior Advocate, assisted by Sri Pankaj Kumar, for the petitioner and Advocate General, assisted by Chief Standing Counsel, for State of U.P. This writ petition, in the nature of Public Interest Litigation, has been filed seeking following reliefs:

(i) a writ, order or direction in the nature of mandamus restraining the respondent No. 1, representing the Government of U.P., from appointing respondent No. 3 to the post of Chief Secretary to the Government of Uttar Pradesh, pending trial of the case arising out of F.I.R. No. RCEOU-1-2007-E-0002 dated 25.5.2010 u/s 409/411/420/467/468/471 and 120-B IPC wherein charge-sheet dated 29.5.2010 has been field before the Chief Metropolitan Magistrate, Delhi and the F.I.R. No. RCBE/2006E 0007 dated 15.12.2008 u/s 409/411/420/467/468/471 and 120B IPC wherein charge-sheet dated 15.12.2008 has been filed before the Court of the Additional Chief Metropolitan Magistrate, Esplanade, Mumbai;

(ii) a writ order or direction in the nature of mandamus, restraining the respondent No. 3 from functioning as the Agricultural Production Commissioner of U.P. and Industrial Development Commissioner of U.P. or from being posted to any Key Administrative Post in the State of U.P., involving administrative and financial functions until conclusion of the two criminal trials pending before the said respondents before the Court at Delhi and Mumbai;

(iii) a writ, order or direction in the nature of mandamus, directing the respondent Government to initiate Departmental Proceedings and other consequential proceedings against the respondent Nos. 3 and 4 in view of the charges levelled against the respondent Nos. 3 and 4 in accordance with law; and

(iv) any other writ, order or direction as this Hon''ble Court may deem fit and proper considering the facts and circumstances of the case.

2. When writ petition came for hearing as fresh case on 3.6.2014, the petitioner filed an amendment application in the Court for amending the writ petition. Apart from other proposed amendment, the petitioner sought to add prayer (v) in the writ petition as follows:

(v) Issue an appropriate writ, order or direction to remove/transfer the respondent No. 3 from the post of Chief Secretary of State of U.P. and not to post or appoint the respondent No. 3 to any sensitive and key post in Government of Uttar Pradesh which involves administrative and financial decision making process.

3. In short, appointments of Sri Alok Ranjan (IAS) (respondent-3) on the posts of Chief Secretary, Government of Uttar Pradesh and/or Agricultural Production Commissioner of U.P. and Industrial Development Commissioner of U.P. are being challenged on the ground that during his tenure as Managing Director of National Agricultural Co-operative Marketing Federation of India (hereinafter referred to as the NAFED) an FIR No. RCBE/2006-E-0007 dated 15.12.2008, u/s 409, 411, 420, 467, 468, 471 and 120-B of IPC was registered against him and various other persons in respect of criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED. The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge-sheet dated 15.12.2008 was submitted against respondent-3 also, in the Court of Chief Metropolitan Magistrate Esplanade, Mumbai and criminal case against him is pending. Another FIR No. RCEOU-1-2007-E-0002 dated 25.5.2010, u/s 409, 411, 420, 467, 468, 471 and 120-B of IPC was also registered against him again in respect of criminal conspiracy to cheat the NAFED and misappropriate the funds of the NAFED. The FIR was investigated by CBI, Economic Offences Wing, New Delhi, wherein charge-sheet dated 29.5.2010 was submitted against respondent-3 also in the Court of Chief Metropolitan Magistrate, Delhi. Respondent-3 is facing criminal trail in the aforesaid cases. Chief Secretary of State Government heads many committees established under various Acts and discharges important role in decision making process in administrative, financial, economic, industrial, infrastructure and other policy matters of the State. Appointment of a person, who is facing criminal trail in economic offences will not be in the interest of State.

4. Chief Standing Counsel, on the basis of written instructions, informed that Sri Alok Ranjan, was selected and appointed in Indian Administrative Services (for short IAS) on 12.7.1978. In the Gradation List of IAS Officers of Uttar Pradesh Cadre, as published on 1.1.2014, he is at Serial No. 8. Officers from Serial No. 1 to 3 have retired, Officers at Serial Nos. 4, 5 and 7 are now posted in Central Cadre and Sri Javed Usmani, earlier Chief Secretary, Government of Uttar Pradesh has also now opted for Central Cadre. Thus at present Sri Alok Ranjan is senior most. After completion of 30 years continuous service, he was promoted in the Pay Scale of Chief Secretary in July, 2012. He was also elected as President of IAS Officers Association of Uttar Pradesh Cadre. Thus he has a good hold upon administrative wing of Uttar Pradesh and he is a most suitable candidate. As such on the recommendation of Cabinet of Ministers, Uttar Pradesh Government, Hon''ble Governor appointed him as Chief Secretary.

5. Learned Advocate General raised following preliminary objections regarding maintainability of the writ petitions;-

(i) The petitioner has not disclosed the facts as required under Chapter XXII Rule 1(3-A) of High Court Rules and the petition is liable to be dismissed on this ground alone as held by this Court in Sabhajeet Singh [ P.I.L. ] Criminal Vs. State of U.P. and Others, and Public Interest Litigation (PIL) No. 25243 of 2014 Gaurav Upadhyay v. State of U.P. (decided on 5.5.2014).

(ii) Appointment as Chief Secretary is an incidence of service and Public Interest Litigation is not maintainable in service matters as held by Supreme Court in Hari Bansh Lal Vs. Sahodar Prasad Mahto and Others,

6. We take up the second preliminary objection first i.e. as to whether Public Interest Litigation is maintainable in service matters? The phrase ''Public Interest'' is not defined in any statue. However, Black''s Law Dictionary (6th Edn.)) defines Public Interest Litigation as under:

Public interest.--Something in which the public, the community at large, has some pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, State or national Government.

Advanced Law Lexicon defines ''Public Interest Litigation'' as under:

...the expression ''PIL'' means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community has pecuniary interest or some interest by which their legal rights or liabilities are affected.

The Council for Public Interest Law set up by the Ford Foundation in USA defined "public interest litigation" in its Report of Public Interest Law, USA, 1976 as follows:

10....Public interest law is the name that has recently been given to efforts providing legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and others.

7. The Apex Court in the case of People''s Union for Democratic Rights and Others Vs. Union of India (UOI) and Others, has observed that the public interest litigation is a cooperative or collaborative effort by the petitioner, the State or public authority and the judiciary to secure observance of constitutional or basic human rights, benefits and privileges upon the poor, downtrodden and vulnerable sections of the society.

8. Public Interest Litigation means a litigation to espouse Public Interest. Hon''ble Supreme Court in Janata Dal Vs. H.S. Chowdhary and Others, held that ''Public Interest'' does not mean mere curiosity.

9. Public Interest Litigation was initially evolved as a tool to take care of the fundamental rights under Article 21 of the Constitution of the marginalised sections of the society who because of their poverty and illiteracy could not approach the Court. In quintessence it was initially evolved to benefit the have-nots and the handicapped for protection of their basic human rights and to see that the authorities carry out their constitutional obligations towards the marginalised sections of people who cannot stand up on their own and come to Court to put forth their grievances. Constitutional Courts gradually enhanced the scope of Public Interest Litigations. Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and Others, while dealing with the origin and development of PILs broadly categorized development of Public Interest Litigation in three phases:

I.--Phase I deals with cases where directions and orders were passed primarily to protect fundamental rights under Article 21 of the marginalised groups and sections of the society who because of extreme poverty, illiteracy and ignorance cannot approach this Court or the High Courts.

II.--Phase II deals with the cases relating to protection, preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. etc.

III.--Phase III deals with cases where directions have been issued by the Courts in maintaining the probity, transparency and integrity in governance.

10. With the origin and evolution of public interest litigation in the country, by judicial pronouncements, the ambit and scope of public interest litigation was expanded further by the Supreme Court and the High Courts also under Article 226 following the Supreme Court passed a number of judgments, orders, or directions to unearth corruption and maintain probity and morality in the governance of the State. The probity in governance is a sine qua non for an efficient system of administration and for the development of the country. The absence of corruption is an important requirement for ensuring probity in governance. The Courts took upon this burden to ensure transparency and probity in the governance and entertained petitions to ensure that in the governance by the State, there must be transparency and no extraneous consideration be taken into consideration, except the public interest.

11. Reference may be made to the case of Vineet Narain and Others Vs. Union of India (UOI) and Another, In the said case, the petitioner who as a Journalist, filed a public interest litigation alleging that the premier investigating agencies like the Central Bureau of Investigation and the Revenue Authorities failed to perform their legal obligations and take appropriate action even when they discovered during investigation with a terrorist, detailed accounts of vast payments, made to influential politicians and Bureaucrats. The Apex Court observing that ".......It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust of the people" issued various directions in the matter.

12. Again in the case of Rajiv Ranjan Singh ''Lalan'' and Another Vs. Union of India (UOI) and Others, relating to the large scale-defalcation of public funds and forging of accounts involving hundreds of crores of rupees in the Department of Animal Husbandry in the State of Bihar, the Court finding that the respondents had interfered with the appointment of Public Prosecutor, issued various directions. In yet another case of M.C. Mehta Vs. Union of India (UOI) and Others, a project, popularly known as Taj Heritage Corridor Project Case'', filed on the allegations of misuse of 75 acres of land reclaimed by diverting river Yamuna and misuse of the same for constructing Food Plazas, Shops and amusement activities, which was investigated by the Central Bureau of Investigation and on the basis of the report, the Court directed registration of an FIR and to make further investigation in the matter. By the intervention of the Court, the said project was stalled.

13. Again, in M.C. Mehta Vs. Union of India (UOI) and Others, the Apex Court held that the Judiciary can step in where it finds actions on the part of the legislature or the executive to be illegal or unconstitutional.

14. With the broadening of the scope of public interest litigations various litigations started coming before Courts wherein by means of public interest litigation appointments to high and important public and statutory offices, were being challenged on various grounds, existent and non-existent. The issue which arose for consideration before the Courts was whether a public interest litigation would be maintainable in service matters. This question was considered by the Apex Court in the case of R.K. Jain Vs. Union of India and Others, , wherein the appointment of President of Custom, Excise and Gold Control Appellate Tribunal was challenged. The Apex Court has observed that judicial review is concerned with whether the incumbent possessed of qualification for appointment and manner in which the appointment came to be made or the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to protect the citizen from the abuse of the power, etc. by an appropriate Government or department, etc. In Court''s considered view, granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice President or President of a Tribunal, then the Court cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf. In service jurisprudence, it is settled law that it is for the aggrieved person i.e. non-appointee to assail the legality of the offending action, third party has no locus standi to canvas the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person. Therefore, the contention that there was need to evaluate the comparative merits of respondents and senior most Member for appointment as President would not be gone into in a public interest litigation. Only the proceedings initiated by an aggrieved person, it may be open to be considered.

15. The issue involved in this petition, i.e. appointment of a Chief Secretary of any State Government directly came up for consideration before the Apex Court in the case of E.P. Royappa Vs. State of Tamil Nadu and Another, in which it was held that the post of Chief Secretary is a highly sensitive post. It is a post of great confidence -- a lynchpin in the administration -- and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. With the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration.

16. The issue with respect to the appointment on the post of Chief Secretary also came up for consideration before the Hon''ble Supreme Court in the case of Center for Public Interest Litigation and Another Vs. Union of India (UOI) and Another, relied upon by the counsel for the petitioner. After noting down the facts involved therein the Apex Court has observed as under:

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. Royappa Vs. State of Tamil Nadu and Another,

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 ER 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.

Thus, the Apex Court did not lay down any binding precedent in this regard and the issue was left open as matter was pending before the High Court and Mr. Justice Thomas Commission.

17. Supreme Court in Union of India (UOI) and Others Vs. B.V. Gopinath, held that the whole thing has to be scrutinised from the point of view of power. Suitability or eligibility of a candidate for appointment to a post is within the domain of the appointing authority. The only thing that can be scrutinised by the Court is whether the appointment is contrary to the statutory provisions/rules.

18. In the case of B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees'' Association and Others, , wherein appointment of Chief Engineer as Managing Director was challenged by Employees Union. It was held that it is settled law by a catena of decisions that the Court cannot sit in judgment over the wisdom of the Government in the choice of the person to be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. Similar view has been taken in Hari Bansh Lal Vs. Sahodar Prasad Mahto and Others,

19. Thus the issue as to whether Public Interest Litigation would be maintainable in service matters is no longer res integra and stands settled by a catena of decisions, some of which, have been noted hereinabove. We may also observe that right to be considered for promotion is the fundamental right of the public servant under Article 16 of the Constitution of India. As pointed out by the learned Chief Standing Counsel, on the basis of instructions, that respondent No. 3 was already promoted in the pay scale of Chief Secretary as long back as in July 2012 and only the Cabinet, in its wisdom, has taken a decision to post him to function as Chief Secretary of the State of U.P. Thus, the appointment as Chief Secretary is an incidence of service.

20. The judicial review of an appointment can be made in a writ of quo warranto and that too when the same has been made contrary to some statutory provisions or rules.

21. During the course of his arguments, the learned counsel for the petitioner heavily relied upon the judgment of the Apex Court in State of Punjab Vs. Salil Sabhlok and Others, The issue therein was in respect of the appointment of Chairperson of Public Service Commission. The reliance placed by learned counsel for the petitioner to support his arguments is totally misfounded. The Apex Court in the said case held that the appointment of the Chairperson of the Punjab Public Service Commission is an appointment to a constitutional position and is not a "service matter." A PIL challenging such an appointment is, therefore, maintainable both for the issuance of a writ of quo warranto and for a writ of declaration, as the case may be. A clear distinction has been drawn between Government servant and the constitutional appointment. In paragraph 74, it was observed as under:

74. It cannot be said that Chairperson of the Public Service Commission holds a post in connection with the affairs of the Union or the State. He or she is not a Government servant, in the sense of there being no master and servant relationship between the Union or the State and the Chairperson. In view of the constitutional provisions pertaining to the security of tenure and the removal procedure of the Chairperson and Members of Public Service Commission, it can only be concluded that he or she holds a constitutional post.

22. In In Re: Mehar Singh Saini, Chairman, HPSC and Others, while drawing a distinction between service under the Government of India or a State Government and a Constitutional body like a Public Service Commission, it was observed as under:

A clear distinction has been drawn by the Framers [of our Constitution] between service under the Centre or the States and services in the institutions which are creations of the Constitution itself. Article 315 of the Constitution commands that there shall be a Union Service Commission for the respective States. This is not, in any manner, linked with the All India Services contemplated in Article 312 of the Constitution to which, in fact, the selections are to be made by the Commission.

23. In the case in hand, since respondent No. 3 holds a statutory post, there exists relationship of servant and master between him and the Government and his placement to function as Chief Secretary after being promoted in pay scale of Chief Secretary is nothing but an incidence of service for which, no Public Interest Litigation is liable to be entertained. The question though could be examined in a writ of quo warranto. However, the learned counsel for the petitioner has conceded before us that this is not a writ of quo warranto.

24. Now we proceed to take up the first preliminary objection that the petitioner has not disclosed the facts as required under Chapter XXII Rule 1(3-A) of High Court Rules and the petition is liable to be dismissed on this ground alone. Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and Others, noticed the filing of mass of frivolous Public Interest Litigations and thereby ruining precious time of Constitutional Court. In order to preserve the purity and sanctity of the PIL, Supreme Court issued the following directions:

(1) The Courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

(2) Instead of every individual Judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

(3) The Courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

(4) The Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL.

(5) The Courts should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The Courts should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The Courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The Court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

(8) The Courts should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations.

25. In view of directions of Supreme Court, High Court Rules was amended and sub-rule 3-A was inserted in Chapter XXII Rule 1 as follows:

(3-A) In additions to satisfying the requirements of other rules in this Chapter, the petitioner seeking to file a Public Interest Litigation should precisely and specifically state, in the affidavit to be sworn by him giving his credentials, the public cause, he is seeking to spouse; that he has no personal or private interest in the matter; that there is no authoritative pronouncement by Supreme Court or High Court on the question raised and the result of litigation will not lead to any undue gain to himself or any one associated with him or any undue loss to any other person, body of persons or the State.

26. The petitioner has disclosed his credentials, the public cause and facts regarding authoritative pronouncement by Supreme Court or High Court on the question raised. It may be observed that requirement of disclosing about pronouncements of the judgment of Supreme Court or High Court on the question raised cannot be an Issue of preliminary objection. Even if disclosure in this respect is not found to be correct, the writ petition can be examined on merit. However the petitioner has not disclosed that "the result of litigation will not lead to any undue gain to himself or any one associated with him or any undue loss to any other person, body of persons or the State". Thus there is a defect in this respect in the writ petition. But the writ petition cannot be dismissed without giving an opportunity to the petitioner to remove defect in this respect.

27. It must not be forgotten that procedure is but a handmaiden of justice and cause of justice can never be allowed to be thwarted by any procedural technicalities. Procedural requirement is directory and not mandatory. Supreme Court in Mr. Shaikh Salim Haji Abdul Khayumsab Vs. Mr. Kumar and Others, , held that a procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.

28. Since in respect of the second preliminary objection raised with respect to maintainability of this Public Interest Litigation, we are of the view that in service matters, the Public Interest Litigation is not maintainable and the dispute relates to incidence of service, therefore, there is hardly any reason or occasion to give opportunity to the petitioner to remove defect.

29. In view of the aforesaid facts and discussions, we are of the considered view that this writ petition in the nature of a Public Interest Litigation, challenging appointment of respondent No. 3 as Chief Secretary of State of U.P. and his functioning as Agricultural Production Commissioner and Industrial Development Commissioner is not maintainable. The second preliminary objection raised by the learned Advocate General is upheld. The writ petition is, accordingly, dismissed.