R R TRIPATHI Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petitioner, who is a Journalist, claiming to be more close to day to day life of a common man, has approached this Court by filing the above Public Interest Litigation in which he raises, according to him, an issue of public importance for quashing and setting aside the decision taken by the State of Maharashtra to appoint Respondent No.4 as Director General and Inspector General of Police in State of Maharashtra being arbitrary and illegal. In addition to this, the Petitioner further prays that an order or direction be also issued to the Respondents to follow the cadre rules while making appointments of non-cadre officers to the cadre post and vice versa, and to submit entire record/audit report for the period during which upgradation, de-gradation and creation of a post was done by the Respondents. The Director General of Police is the highest post in the Police Department in the State of Maharashtra. The Indian Police Services (Fixation of Cadre Strength) Regulations, 1955 were framed by the Union of India. The State cadres are fixed under these Regulations, and the strength of Maharashtra (IPS) cadre was fixed at 205 which was subsequently increased upto 236 after amendment to the said Regulations in the year 2003.

(2.) The State of Maharashtra has to appoint two officers to hold DG level posts, one of Director and Inspector General of Police and the other Director General of Police (Anti Corruption). In addition to these posts, the Government is also empowered under the cadre rules to appoint non cadre officers to hold the posts of Director General Home Guards and Director General Housing, respectively. These posts are termed as non cadre/ex cadre posts and it is the senior most officer who is expected to move to these posts. Respondent No.4 was holding the ex cadre post of Director General Housing, although Shri J D Virkar, DGP-Anti Corruption and Shri S Chakravorty, DGP-Home Guards were officers senior to him. Shri Chakravorty was promoted to the post of Director General in February 2005, Shri Virkar in May 2005 while Respondent No.4 was promoted in March 2007. The seniority of these officers is governed under Indian Police Service (Regulations of Seniority) Rules, 1988 read with Section 10 of Indian Police Service Probation Act, 1954. It is averred by the Petitioner that appointment of Respondent No.4 is the outcome of political jugglery and by ignoring senior officers and persons with higher merit. According to the Petitioner, if the Rules were followed and on proper appreciation of their record, Respondent No.4 could not have been given preference over other officers who are senior to him. The decision suffers from other legal infirmities and even appointment to cadre posts has to be effected through cadre officers. It is also averred that if an officer who serves the Department with utmost sincerity and devotion to duty for over 35 years and is also senior most amongst all is not permitted to hold that post, it would only suggest favouritism at the hands of the Government towards the one who is made to occupy the said post. To cast away this possibility, Respondent No.2 State should have followed the pattern of seniority that it has been following all these years. The Petitioner states that in the past, due to public accountability, the Government has appointed senior most officers to the said post ignoring the length of service they were left with. The Petitioner states that in or around 2001, in a similar case, the Respondent State had filed an affidavit solemnly assuring that it would appoint only the senior most officer as DGP and the next senior most as DGP ACB. It was stated in the said affidavit that the State had only two cadre posts at DG level so these postings were done only on seniority basis as can be seen from the fact that the senior most officer became DGP of the State Police and the next senior most was appointed as DG Anti Corruption. The Petitioner, therefore, states that the Respondent State has broken all standards expected of fair government, when it chose to appoint Respondent No.4 as State DGP. Proviso to sub-Rule (2) of Rule 4 of the Cadre Rules empowers the Government to create any post in addition to cadre post and are termed as ex cadre posts. A cadre officer can man such ex cadre post. Under the Cadre Rules, the State Government is entitled to have only four DGs. However, the creation inter change and appointment to the ex cadre post are being made in an arbitrary manner and in fact in violation to the Rules. The Petitioner states that though Shri S Chakravorty has served for about three years on ex cadre/non cadre post, he has been deprived of either of the two cadre posts only because he has no political godfather. It is an undeniable position that both the officers, namely, Shri Virkar and Shri Chakravorty are as meritorious and senior as Respondent No.4. The Petitioner therefore states that it was not open for the Respondent State to sidetrack meritorious and deserving officers. The Petitioner submits that if powers under second proviso to sub-rule 2 of Rule 4 are of emergent nature, then what justification State Government has to continue appointment of cadre officers to these ex cadre posts. It is also averred that with an intention only to guarantee upward movement of Respondent No.4, Respondent State kept Shri Virk on hold and did not allot any cadre or ex cadre post to him and an order has been issued by the Administrative Tribunal to pay wages to Shri Virk from 27th April 2007. In other words, the Petitioner questions the legality and correctness of the order of the State appointing Respondent No.4 as Director and Inspector General of Police, Maharashtra.

(3.) The Respondent State filed a detailed affidavit in reply to the Petition wherein serious objection was taken with regard to the maintainability of this Petition as a Public Interest Litigation and it was averred that the present Petition is nothing but an abuse of the process of the Court, and is not maintainable in view of the judgments of the Supreme Court. Further, Shri Chakravorty has filed an Original Application No. 389 of 2008 in the Central Administrative Tribunal, Mumbai Bench seeking, inter alia, to quash and set aside the appointment of Respondent No.4 as Director General of Police, which is stated to be pending. It is averred on behalf of the Respondent that the Petitioner had made an application dated 13th February 2008 to the State Information Officer through Chief Secretary, Government of Maharashtra and all the information required by him was provided to him. The present Petition is said to have been filed on behalf of and in connivance with Shri Chakravorty inasmuch as Shri Chakravorty did not make any application for asking for information under the Right to Information Act, but all the documents which had been received by the present Petitioner in furtherance to his application have been utilized by Shri Chakraborty in his case before the Central Administrative Tribunal. According to the State, this is an appointment on selection and the appointment has been made in accordance with law as stated by the Supreme Court of India in the case of Prakash Singh vs Union of India. (2006) 8 SCC 1. Mr Virk was stated to be on deputation to the Government of Punjab since 1984 and he was placed under suspension by the Government of Punjab vide order dated 4th April 2007 and repatriated by the Government of India vide order dated 10th April 2007. He joined the Maharashtra cadre on 27th April 2007. There were cases registered against him at Chandigarh and he was facing prosecution. The State Government could not have considered his appointment to the said highly coveted post. The three officers,namely, Shri S Chakravorty, Shri J D Virkar and Shri A N Roy were considered for the post and in terms of the letter of the Government dated 5th April 2006 Shri A N Roy was empanelled to be the Director General. It was also kept in mind that the incumbent has normally a minimum tenure of at least two years irrespective of his age of superannuation which none of other candidates had inasmuch as both the other officers would retire in June 2009 and July 2009, respectively. On the basis of the record and other relevant factors, Respondent No.4 has been appointed to this post. It is stated that the seniority was not the only criteria in relation to the appointment to the post of Commissioner of Police, Mumbai as well as Director General of Police, Maharashtra. In relation to cadre postings, it is stated that Government has appointed non cadre officer on cadre post officers and vice a versa. Recently, the Government of India has communicated to the State Government to take remedial measures to avoid filling up of IPS cadre posts by non cadre officers in furtherance to which Government is taking appropriate steps.