1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PIL WRIT PETITION NO.7 OF 2006 Citizens For Just Society ....Petitioner versus State of Maharashtra and Ors ....Respondents Mr H.S.S. Murthy i/b Mr.P.M. Havnur for the petitioner. Mr.Ravi Kadam, Advocate General for respondent No.1 Mr. T.N.Subramanian i/b Ms Chandana Salgaonkar Radia for respondent No.3 Mr. Sangram Yadav i/b Mr.Makrand Adkar for respondent Nos. 4 to 6 Mr., S.R. Ganbavle for respondent No. 7 CORAM: H.S. BEDI, C.J., & V.M.KANADE, J. DATE: 11th December, 2006. Judgement (Per Chief Justice):- This petition filed in public interest is directed against the transfer of respondent No.7 Ms Seema Dhamdhere, Secretary of the Maharashtra Public Service Commission on the plea that the same was malafide and intended to side track the investigation in the criminal investigations that were going on in respect of the selections made by the Commission 2 to various posts. Brief facts, as given in the petition, are as under: 2. Respondent No.7 joined the Commission as its Secretary in February 2002. It appears that before she joined her duties, she received an anonymous letter highlighting the large scale corruption and bungling in the selection held by the Commission and in particular to the selection held in 1997 for the posts of Deputy Superintendent of Police in which three brothers Manoj, Sunil and Nitin, sons of P.T.Lohar, IPS, now Additional Director General of Police were selected. It appears that as of now several FIRs have been registered and after investigation many senior officials/public men including Dr.S.D.Karnik, Chairman of the Commission at the relevant time, Dr. Shivare and Smt Joshi former members of the Commission have been arrested and are facing other proceedings as well. It is alleged that in order to scuttle the investigation which had been initiated by respondent No. 7, an attempt was being made to transfer her to some other post and that this transfer should not be permitted as her continuance was essential in the public interest. 3 3. Affidavits in reply have been tendered by the respondents. On behalf of the State Government an affidavit has been filed by Ms Smita Sharad Ranade, Under Secretary, General Administration Department, pointing out that no public interest litigation should be entertained in service matters. On merits it has been pleaded that respondent No. 7 had been appointed as Secretary of the Commission on deputation under Regulation 21 of MPSC (Members and Staff) (Conditions of Service) Regulations, 1971 which provided that such appointment was to be made by the Governor after consultation with the Chairman and that prior to her appointment as Secretary, she had been working as Joint Secretary in the Public Health Department. It has also pleaded that the appointment was for a period of three years with effect from 28th January, 2002 which term had expired on 31st January 2005 and the Chairman had recommended an extension of deputation till 31st January, 2006, whereafter she was to be repatriated to her parent department. It has also been pointed out that in fact there was no transfer of respondent No. 7 but only a return to her parent department on the completion of the period of deputation. It has been admitted that a letter dated 23rd August, 2005 had been received from the earlier Chairman Shri A.M. Warty for 4 continuance of her deputation for another period of one year from 31st January, 2006 and this proposal had been endorsed by Shri V.N. Deshmukh, the present Chairman but had been subsequently withdrawn vide letter dated 19th December, 2005. It appears however that despite the fact that the deputation of respondent No.7 has come to an end, she continues to be in office as Secretary as a consequence of some order made by the Governor. 4. A separate reply affidavit has been filed by Shri V.N.Deshmukh, respondent No. 3 Chairman of the Commission and it has been pointed out that he had taken charge of the office on 2nd September, 2005 after having served 36 long years as a senior and distinguished member of the Indian Police Service. It has been admitted that in April 2002 on the basis of some anonymous letter received by the Commission with respect to the malpractices in the 1999 selection for the posts of Assistant, Sales Tax Inspectors and Sub-Inspectors of Police, criminal cases had been registered by respondent No. 7 as the Secretary of the Commission and that the malpractices in the Lohar brothers recruitment issue had been discussed in the Legislative Assembly in 2003 and on the basis of a confidential inquiry conducted in the matter 5 it had transpired that some of the answer papers had been destroyed with the result that no substantial action could be taken, but on the basis of an internal inquiry ordered by the then Chairman Mr. Warty, some serious malpractices had been revealed and accordingly show cause notices had been issued to the Lohar brothers and after perusing the replies, the recommendation for their appointment had been recalled. It has been pointed out that criminal cases started in 1999 had nothing to do with the inquiry pertaining to the Lohar brothers and that notwithstanding the fact that a detailed report had been submitted by the Deputy Secretary, Home Department as regards the 1997 examination, respondent No.8 continued to unnecessarily extend the ambit of the investigation despite orders to the contrary from his superiors. It has further been pleaded that respondent No. 7 had been specifically directed by the Commission to file an FIR with the Director General of the ACB in the matter of the Lohar brothers but despite this clear direction, she had desisted from doing so for some time but on the contrary had given all confidential information to respondent No.8. It has been pointed out that the conduct of respondent No.7 was a transgression of her duties and her conduct amounted to an act of indiscipline and as a cumulative result of all these factors he had withdrawn his 6 earlier recommendations for a further extension of one year beyond 2006. 5. Yet another reply affidavit has been filed by respondent No.7 herself in which she has high lighted her involvement with the on going investigation/ inquiry and in the proceeding pending before the Supreme Court with respect to the removal of some members of the Commission. She has however, admitted that despite certain directions issued to her by the Chairman of the Commission she had not honoured them as she felt that these were not be in accordance with law and she had accordingly given all the information to the investigating officer respondent No.8. An additional affidavit dated 7th February, 2006 has also been filed by her reiterating the above contentions as also giving some additional information. Yet another comprehensive affidavit has been filed by Shri S.B.Pujari, respondent No.8 putting on record details as regards the investigation that he had made in C.R.No.33 of 2002. Several additional affidavits have also been filed subsequently. 7 6. During the course of the hearing, the learned counsel for the petitioner argued that by transferring respondent No.7 from the post of Secretary of the Commission, the on going investigation into the selections made by the Commission would be frustrated and that an attempt was being made to remove her from the office for that purpose. It has been accordingly pleaded that it was in public interest that she be allowed to continue in her present position till such time the investigation was completed. It has also been high lighted that though she had been directed by the Commission not to give certain information to the Investigating Officer Shri Pujari – respondent No.8, she had done so which had annoyed the Chairman of the Commission and, he had, for this reason withdrawn his request for an extension in her term by a year to January 2007. 7. The learned Advocate General appearing on behalf of the State has, however, pointed out that at the very outset that the investigation into the matter had almost been completed and as many as 29 charge sheets had been filed and that a very large number of senior functionaries including the former Chairman of the Commission had been arrested 8 and removed from office and as such the very basis of the petitioner's claim that the transfer of respondent No.7, if effected would side track the investigation, was not correct. It has further been pleaded that no writ petition in public interest lay in service matters and for this purpose reliance has been placed on the Supreme Court decision in Dattaraj Nathuji Thaware vs State of Maharashtra, (2005) 1 Supreme Court Cases 590. It has further been pointed out that even assuming that respondent No.7 was a whistle blower and had given vital information on a matter of great public concern that situation too no longer existed as all possible and available information had been given by her to the Investigating Officer respondent No.8, or had been divulged in the copious affidavits filed by her in the present proceedings. 7. A reading of the record clearly reveals that the investigation in the matter is almost complete and respondent No.7 in her capacity as Secretary of the Commission had actively participated in providing the information to the investigating machinery. It is also clear that the present Chairman and members of the Commission were not in office during the period when the fraudulent 9 selections took place and as such cannot have any personal role to play in the alleged attempt to scuttle the investigation. It is also clear from the record that a large number of charge sheets have been filed against several senior officials as well as public functionaries and proceedings against the members of the Commission have been initiated which are pending in the Supreme Court. We therefore find it difficult to uphold the contention that the so called transfer of respondent No.7 would in any way prejudice the proceedings. We also find that the plea of the learned Advocate General that respondent No. 7 had been appointed as Secretary of the Commission on deputation and at the end of the deputation period, must return to her parent department must be accepted. In this background the learned Advocate General has also drawn our attention to the observations of the Supreme Court in Dattaraj Nathuji Thaware's case (supra). In this case it is observed as under: “---- a time has come to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to note that courts are flooded with a large number of so- 10 called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in a large number of cases, yet unmindful of the real intentions and objectives, courts are entertaining such petitions and wasting valuable judicial time which, as noted above, could be otherwise utilised for disposal of genuine cases. Though in Duryodhan Sahu (Dr) vs Jitendra Kumar Mishra AIR 1999 SCC 114 this court held that in service matters PILs should not be entertained, the inflow of so-called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was noticed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road 11 and when out of curiosity the petitioner opened it, he found copies of the official documents. Apart from the sinister manner, if any, of getting such copies, the real brain or force behind such cases would get exposed to find out the truth and motive behind the petition. Whenever such frivolous pleas, as noted, are taken to explain possession, the court should do well not only to dismiss the petitions but also to impose exemplary costs. It would be desirable for the courts to filter out the frivolous petitions and dismiss them with costs as afore stated so that the message goes in the right direction that petitions filed with oblique motive do not have the approval of the courts.” 8. We find that in the face of the aforesaid judgment respondent No.7 could perhaps approach this court by herself, but a petitioner other than the person affected is clearly precluded from filing such a petition. We also see that respondent No.7 is a senior officer and has fearlessly taken on the Chairman and other members of the Commission in the investigation / inquires referred to above. We are, 12 therefore of the view that she cannot be permitted to ride piggy back taking shelter behind a veneer of public interest. We also observe that continuance of respondent No.7 in office, would be against her interest and also clearly detrimental to the smooth functioning of the Commission. It must be emphasized that a Public Service Commission is a Constitutional body exercising very important functions, and a clash of personalities amongst those entrusted with its responsibility hamstringing its activities must be avoided. We are, therefore, of the opinion that respondent No.7 has outlived her utility and must return to her parent department. 9 We have also gone through the relevant prayer clauses of the petition, these are reproduced below: 13 “a) that this Hon`ble court be pleased to issue a writ of certiorari or any appropriate writ or direction calling upon respondent Nos.1 to 6 to produce all papers, documents covering the recommendation and transfer of respondent No.7 and after perusing the same be pleased to hold that the recommendation and transfer is malafide and made only to scuttle the on going investigation of MPSC scam. b) that pending this petition,to direct the respondent nos.1,2,3,4,5 and 6 not to transfer respondent No.7 and as per the decision and recommendation of the Maharashtra Public Service Commission (respondent No.2) communicated to respondent No. 1, extend the tenure of respondent No. 7 for a further period of one year, from 1.2.2006 to 31.1.2007 c) To pass appropriate orders to allow prosecution of respondent No.3 under section 193 IPC for offence under section 192 IPC and other offences under the Indian Penal Code. 14 d) to initiate proceedings against respondent No.3 for contempt of this Hon`ble court. e) to carry out a judicial examination of the contents of the letter written by respondent No. 8 to the Director General of Anti Corruption Bureau and to examine whether it is in public interest to allow the continuation of respondent No.3 as Chairman of Maharashtra Public Service Commission.” 9. Prayer clauses (a) and (b) fall within the constraints put by the Supreme Court in Dattaraj Nathuji Thaware (supra). The learned counsel for the petitioner himself has conceded during the course of arguments that prayers © and (d) should be deemed to be given up. As already mentioned above we find that prayer clause (e) cannot also be accepted in the facts and circumstances of the case. We accordingly dismiss this petition, but with a further direction that the proceedings with respect to the selection/ appointments which have been or are being investigated must be taken to their logical end. CHIEF JUSTICE 15 V.M.KANADE, J.