Center for Public Interest Litigation and Anr Vs. Union
of India and
Anr  Insc 551 (6
RUMA PAL,ARIJIT PASAYAT & C.K. THAKKER 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 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 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
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
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 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
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
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).
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.