ARVIND SINGH Vs. STATE OF U.P.

JUDGEMENT

(1.) This writ petition has been filed by the petitioner for following prayers: -

(2.) It has been mentioned in the writ petition that the petitioner was posted as a Additional Commissioner (Judicial) in Moradabad from July, 2006 to January, 2009. Sometimes in 2009, the then Commissioner Moradabad Division referred for initiation of a disciplinary proceeding against the petitioner in respect of 21 judicial pronouncements to the State Government. An enquiry of this nature cannot be resorted to, unless there are complaints of irregularities or malpractice by the officer concerned, or there is overwhelming evidence of any extraneous consideration in discharge of his duty. The petitioner was transferred in February, 2009 to the post of Municipal Commissioner, Nagar Nigam Moradabad, and thereafter, he was posted as Additional Commissioner (Judicial). Subsequently, the petitioner was transferred as Chief Development Officer District Bijnor. When the petitioner came to know about the above disciplinary proceedings, he submitted a representation to the Principal Secretary (Appointments). On 18 April 2011, a chargesheet was issued to the petitioner containing six charges and Commissioner, Bareilly Division was appointed the enquiry officer. The enquiry officer served a copy of the chargesheet to the petitioner. Petitioner wrote a letter dated 10 January, 2011 that he has already made a representation for dropping the enquiry, as the same was against law. The enquiry officer recommended for dropping of the enquiry. The enquiry officer submitted his report on 1.7.2012. Departmental promotion committee was held in the month of November, 2012 for appointment to IAS cadre. On 26th November, 2012, the minutes of the meeting of DPC was approved. On that, same day Principal Secretary (Appointments) issued a letter to Divisional Commissioner, Moradabad asking for updated status of the cases listed in the chargesheet. On 27.11.2012, a notification was issued by Department of Personnel and Training, Government of India in which petitioner was placed in provisional category. On 5th December, 2012 the Divisional Commissioner, Moradabad Division wrote about the status of the cases, which were subject matter of enquiry against the petitioner, along with the report of the District Government Council (Revenue). The District Government Council has, in his report, mentioned that the enquiry initiated against the petitioner is wrong. Between July, 2012 and December, 2012 the petitioner several times met with Principal Secretary (Appointments) and requested that the disciplinary proceedings, which has been initiated at the very inception, is without jurisdiction and against the law and the enquiry officer has already exonerated the petitioner, and disciplinary proceedings should not be made to stand in the way of the petitioner being appointed in IAS cadre. The petitioner, time and again, requested opposite party no.1 to drop the disciplinary proceeding so that the impediment against him for appointment to the IAS cadre is removed, but opposite party no.1 had not taken a decision on the enquiry report, and thus, the petitioner was placed in the provision of select list. Opposite party no.2 ought to have cleared the appointment of the petitioner considering the fact that the petitioner has been exonerated in the disciplinary enquiry. On 12th February, 2013, the petitioner received a communication dated 6th of February, 2013 from opposite party no.1 that re-enquiry has been ordered against the petitioner in respect of the charges levelled against him. This act is contrary to the principles of natural justice and settled law of the land. It was also submitted that the charge-sheet filed against him is liable to be quashed, as it is in violation of the law.

(3.) By filing counter affidavit opposite parties have stated that after the charge sheet was served on the petitioner, a representation of the petitioner was received on 11th of January, 2011, which was duly considered, and a decision was taken to initiate the formal departmental proceedings against the petitioner, and in accordance to which an enquiry officer was nominated on 18th of April, 2011, who is a Commissioner, Bareilly Division. The cases, referred in the representation earlier, are based on the decisions of Hon'ble Apex Court and of this Hon'ble Court and are of no help to the cause of the petitioner, and does not protect the petitioner because the protection is available only for the act, which are bona fide, and have not been performed illegally. Petitioner has acted contrary to the law and has passed the orders, which are not permissible in the eyes of law. After receiving the enquiry report on 5th of July, 2012 it was considered that the enquiry report was incomplete, against the rules of natural justice, hence after recommendation of competent authority, a re-enquiry was ordered on 6 February 2013. So far as the promotion from P.C.S cadre to I.A.S. cadre is concerned, the petitioner's case was considered in accordance with the relevant rules and regulations and the details of departmental enquiry and the proceedings against the petitioner was communicated to the Central Government, and that as per the provisions of law enshrined under rule 5 (5) of Indian Administrative Service (Appointment by Promotion) Regulations1995 (in short "The Regulations 1995") the petitioner was provisionally promoted. Since the departmental enquiry was not concluded, hence he could not get the regular promotion in the IAS cadre. An opinion from the Law Department was obtained and it was decided to enquire into the charges framed against the petitioner regarding loss of revenue/financial loss caused to the State Government, and only in order to mislead the enquiry, the petitioner has taken the plea of Judicial Protection Act. The petitioner is not co-operating in the enquiry, and has filed the present writ petition without any substance. It has also been mentioned in the counter affidavit that during his posting as Additional Commissioner, Moradabad Division, the petitioner has passed the several illegal orders, the details of which are mentioned in the charge, hence it was expedient in the interest of justice to enquire into the charges in detail, after providing due opportunity of hearing to the petitioner, In view of this, re-enquiry was ordered. In identical matters even the judicial officers, who have acted contrary to the law, have not been given the benefit of Judicial Protection Act. In all the cases mentioned in the chargesheet, the petitioner has given transferable bhumidhari and Assami rights were granted to private persons, which resulted in loss of revenue to the State Government. In the above decisions total 56. 405 hectare land was involved, which includes urban and rural area.