1 WP7026.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7026 OF 2011 The State of Maharashtra & anr. ... Petitioners v/s Mr.Sanjay Pandey, IPS & anr. ... Respondents Mr.S.K.Talsania, senior counsel with Mr.A.B.Vagyani, A.G.P. for the petitioners. Mr.N.H.Seervai, senior counsel with Mr.R.N.Kachare i/by Mr.Ameet Anand Palkar for respondent No.1. CORAM: B.H.MARLAPALLE & SMT.NISHITA MHATRE, JJ. DATED: 21ST NOVEMBER, 2011 P.C.: 1. Heard Mr.Talsania, the learned senior counsel with Mr.Vagyani, the learned A.G.P. for the petitioners and Mr.Seervai, senior counsel with Mr.Palkar for respondent No.1. Respondent No.2 is a formal party. 2. Rule. Respondents waive service. 3. The petition has been heard finally. 2 WP7026.11 4. The petition deals with the case of an I.P.S. officer of 1986 batch who has been running from pillar to post for the last more than 10 years for redressal of his grievances of appropriate posting as well as promotion and finally he had approached the Central Administrative Tribunal (for short, “the Tribunal”) in Original Application No.288 of 2010 and the same has been allowed by the impugned judgment and order dated 9.5.2011. The Tribunal has directed to convene a review D.P.C. to consider the promotion of the present respondent as Special Inspector General of Police from the date of his immediate junior promoted in the service, as per law, within a period of two months from the date of receipt of a copy of the order and to give a suitable posting to him at the level of Deputy Inspector General (for short, “D.I.G.”) within a period of one month. At the outset, Mr.Talsania, the learned senior counsel submitted that the main challenge is to the direction to give suitable posting to the respondent at the level of D.I.G. within a period of one month from the date of receipt of a copy of the order. He submitted that the State Government has not challenged the first direction to constitute a D.P.C. and to consider the promotion of the petitioner as Special Inspector General. As per him, the Tribunal committed a serious error in directing the petitioners to give a suitable posting to the respondent at the level of D.I.G. within a period of one month. It was 3 WP7026.11 pointed out that the respondent was never promoted to the post of D.I.G. of Police and unless he was so promoted, the Tribunal could not have directed to give such a posting to the officer. Before we consider the rival submissions of the parties, it would be necessary to deal with the relevant facts. 5. On being selected as an I.P.S. officer in the year 1986, the respondent opted for the Maharashtra Cadre and while he was holding the post of Deputy Commissioner of Police, Zone-8, Mumbai, he was posted with the S.P.G. with the Government of India in February, 1999 and he was relieved from the said deputation on 10.4.2000. He returned to the home cadre but was without a posting. He submitted his resignation on 4.12.2000 and requested to accept the same at the earliest. His resignation was not accepted till he submitted an application on 21.1.2002 withdrawing his resignation. However, on 22.4.2002, the Government of Maharashtra forwarded his resignation for the first time to the Government of India. The said letter reads as under :- “Subject:- Resignation. Shri Sanjay Pande, IPS (MH01986). Sir, I am directed to enclose letter dated 12.4.2000 from Shri Sanjay Pande, IPS (MH-1986) on the subject matter mentioned above. 4 WP7026.11 2. It is stated that Shri Sanjay Pande, IPS on his repatriation from central deputation with effect from 11.04.2000 (A.N.) reported to Director General of Police of this State on 20.4.2000 and proceeded to leave without submitting leave application and has submitted aforesaid application for resignation. He has been sanctioned House Building Advance of Rs. 2,77,500/- vide order dated 6.03.2000. He has been also granted study leave from 28th June, 1997 to 28th June, 1998 and the pay and allowance have been paid to him during the said period. The amounts due to him in this respect are to be recovered from him. The State Government has been informed about his following address:- Residence:- Shri Sanjay Pande, B-1, 1148, Vasant Kunj, New Delhi. Office: Tata Consultancy Security Services Ltd., Shivam Centre, 4, Sardar Azmi Road, New Delhi (Phone No.3317915 & 3329696). But it has been informed that he is in the United States since 9th September, 2001. It is thus clear that Shri Sanjay Pande joined private job and left the country without informing Government even before acceptance of his resignation which is contravention of conduct rules. 3. In the circumstances, this Government has decided to forward his resignation to you with a recommendation to accept it. So far as recovery of amount, necessary action needs to be taken by the Government including legal proceedings.” 6. On 4.7.2002, the State Government addressed a letter to the respondent stating that the Government of India had conveyed the approval of the competent authority for acceptance of the resignation with effect from 12.4.2000 as per the notification dated 21.5.2002. The respondent 5 WP7026.11 therefore submitted a representation to the President of India and alleged that his resignation was illegally accepted. He requested for withdrawal of the notification dated 21.5.2002 and consequently for the withdrawal of the communication dated 4.7.2002 from the Government of Maharashtra. This was turned down vide the order dated 30.1.2003 and therefore the respondent approached the Central Administrative Tribunal, Principal Bench, at New Delhi, by filing Original Application No.1470 of 2003 challenging the said order. He also prayed for setting aside the notification dated 21.5.2002 as well as the communication dated 4.7.2002. After hearing both parties, the Tribunal by its judgment and order dated 1.3.2005 allowed the application. The notification dated 21.5.2002 accepting the resignation of the respondent as well as the order dated 30.1.2003 rejecting his representation, were set aside. Consequently, the respondent was directed to be reinstated in service with effect from 12.4.2000 with all consequential benefits in accordance with the Rules and instructions on the subject. The present petitioners were directed to comply with the order of the Tribunal within a period of two months from the date of its receipt. 6 WP7026.11 7. The Tribunal relied upon the Constitutional Bench decision in the case of Union of India v/s Gopal Chandra Misra, reported in (1978) 2 SCC 301 and observed, “50. It will bear repetition that the general principle is that in the absence of a legal contractual or constitutional bar, a ‘prospective’ resignation can be withdrawn at any time before it becomes effective, and it becomes effective when it operates to terminate the employment or the office tenure of the resigner. This general rule is equally applicable to government servants and constitutional functionaries. In the case of a government servant/or functionary/who cannot, under the conditions of his service/or office, by his own unilateral act of tendering resignation, give up his service/or office, normally, the tender of resignation becomes effective and his service/or office tenure terminated, when it is accepted by the competent authority. In the case of a Judge of a High Court, who is a constitutional functionary and under Proviso (a) to Article 217(1) has a unilateral right or privilege to resign his office, his resignation becomes effective and tenure terminated on the date from which he, of his own volition, chooses to quit office. If in terms of the writing under his hand addressed to the President, he resigns in praesenti, the resignation terminates his office tenure forthwith and cannot therefore, be withdrawn or revoked thereafter. But, if he by such writing, chooses to resign from a future date, the act of resigning office is not complete because it does not terminate his tenure before such date and the Judge can at any time before the arrival of that prospective date on which it was intended to be effective, withdraw it, because the Constitution does not bar such withdrawal.” This order of the Tribunal was challenged before the Delhi High Court in Writ Petition (C) No.12804 of 2005. The Division Bench of the said High Court dismissed the petition 7 WP7026.11 by its judgment dated 15th December, 2005. The State of Maharashtra did not challenge the order of the Delhi High Court and, therefore, the relief granted by the Central Administrative Tribunal, Principal Bench, to the respondent, attained its finality. The respondent waited for some time for the State Government to comply with the order of the Tribunal and when he remained without posting even after succeeding before the Tribunal, he filed Contempt Petition No.78 of 2006 and consequently by its order dated 16.5.2006 he was reinstated with effect from 12.4.2000. On 17.5.2006, the Tribunal dismissed the contempt petition by noting that the original applicant was reinstated as per the order dated 16.5.2006 and that the learned counsel for the State Government had stated at the bar that the remaining order will be complied shortly. However, the respondent was granted liberty to approach the Tribunal, if necessary, after three months, in case the State Government did not implement the order fully. Misc. Application No.1649 of 2006 was filed by the State Government before the Tribunal seeking clarification in the order dated 1.3.2005 despite the fact that the challenge to the said order had failed before the Delhi High Court in Writ Petition (C) No.12804 of 2005. The Tribunal noted in its order dated 20.9.2006 while disposing off the said miscellaneous application that various 8 WP7026.11 communications right from 14.3.2005 to 2.8.2006 were addressed by the original applicant and whenever he had gone to report for duty, no consequential action was taken by the Government of Maharashtra. The Tribunal directed that in case the original applicant reported for duty to the Director General of Police, Maharashtra on 25.9.2006, he would be reinstated and posted in accordance with law. The Tribunal also directed to clear the back wages and all consequential benefits with an intimation to the Tribunal in writing. On 25.9.2006, the respondent was posted as Joint Commissioner (Vigilance), Food and Drugs Administration, in the grade of Superintendent of Police but his case for promotion was not considered. He again approached the Tribunal in Contempt Petition No.1 of 2007. On 16.1.2007, the State Government temporarily promoted him to the Selection Grade. On 23.5.2007, he was issued a memorandum of charges based on the preliminary enquiry report. On 26.3.2007, the respondent applied for voluntary retirement. The State Government retaliated issuing the memorandum of charges dated 23.5.2007 and proposed a departmental enquiry against him. However, by an order dated 28.2.2008, the charges were withdrawn by reprimanding the respondent. The review D.P.C. was constituted and it met on 9.4.2007. The D.P.C. recommended 9 WP7026.11 the respondent’s case for promotion but the State Government did not act upon it. By his letter dated 24.9.2008, the respondent applied for withdrawal of the voluntary retirement application. Even after the D.P.C. met, the applicant was kept on compulsory wait since 18.6.2007 and consequently he was not paid his salary. He submitted various representations to the competent authority from 30.9.2009 till 31.1.2010 and finally approached the Central Administrative Tribunal, Mumbai Bench, in Original Application No.288 of 2010. 8. The Maharashtra Cadre IPS officers of 1986 batch are in all four, including the respondent and their names, are Shri S.P. Yadav, Special I.G.P., (2) Shri Sanjay Pandey, the applicant/respondent, (3) Shri Jawahar Singh, Special I.G.P. and (4) Shri R.K.Sahay, Special I.G.P. It is thus clear that Shri Jawahar Singh and Shri R.K.Sahay who are from the same batch and junior to the respondent, have already been promoted as Special I.G.P. 9. While opposing the Original Application No.288 of 2010, the present petitioners in their reply had stated that the respondent was promoted to the Selection Grade, Superintendent of Police vide notification dated 16.1.2007 10 WP7026.11 and as per the order dated 15.2.2007 the period from 1.7.2002 to 25.9.2006 was treated as “duty period” and he was given the salary for the said period. The D.P.C. met to consider the respondent’s case for promotion to the post of D.I.G. on 9.4.2007 but in the meanwhile his application dated 26.7.2007 regarding voluntary retirement was received and it was forwarded by the letter dated 9.4.2007 from the office of the Food and Drugs Commissioner. Hence, the decision regarding his promotion to the grade of D.I.G. could not be taken. The Tribunal did not find any merit in these contentions. The file containing the D.P.C. recommendations was produced before the Tribunal and it observed in the impugned order, “However, we do not agree with the contention raised by the respondents in their reply dated 12.8.2010 at para 5(vi) that “Selection Committee meeting was held to consider the case of the applicant for promotion to the post of Deputy Inspector General of Police on 9.4.2007. However, in the meanwhile his application dated 26.3.2007 regarding voluntary retirement was received vide letter dated 9.4.2007 from the office of the Food and Drug Commissioner, Mumbai, Maharashtra State and, therefore, the decision regarding applicant’s promotion to the grade of Deputy Inspector General of Police cannot be accepted” as the applicant was to be promoted to the post of Deputy Inspector General of Police with retrospective effect from the date his immediate junior had been promoted in service in the State. However, the DPC meeting was held on 9.4.2007 to consider the case of the applicant for promotion as DIG at par with his immediate junior in the IPS cadre viz. Shri Jawahar Singh, who came to 11 WP7026.11 be promoted as DIG vide orders dated August/ September, 2003. Therefore, the contention of the respondents that voluntary retirement application of the applicant vide dated 26.3.2007 came in the way of grant of promotion to the applicant retrospectively cannot be accepted. Further, it is also noted that the applicant was eligible for promotion as DIG as the only ground of not considering him for the said promotion was that he had applied for voluntary retirement. Since the respondents have not been able to establish his ineligibility on any other ground and the DPC meeting has already been held for considering his promotion as DIG, the respondents do not have any case. In view of this, the applicant should be considered for grant of promotion as DIG with retrospective effect i.e. from the date his immediate junior has been promoted.” 10. We have considered the record and the arguments advanced by both parties before us. Mr.Seervai, the learned senior counsel supported the impugned order fully and urged that the attitude of the State Government while dealing with the case of the respondent requires to be deprecated and the officer has been victimized. It was also pointed out that from June, 2007 onwards i.e. for the last more than four years he has been kept without any posting and denied his regular salary and other benefits. By referring to the orders passed by the Central Administrative Tribunal, New Delhi (Delhi Bench) as well as the Division Bench of Delhi High Court, Mr.Seervai contended that the State Government on its own and having regard to the undertakings furnished in contempt petitions ought to have implemented the order dated 1.3.2005 in its entirety. He also pointed out that even 12 WP7026.11 posting order for the first time appointing the applicant as the Joint Commissioner, Food and Drugs was passed only after he moved Contempt Petition No.78 of 2006. No positive order was passed by the State Government on its own and only under the fear of contempt the State Government gave promotion to the post of Selection Grade and constituted the D.P.C. to consider his promotion as D.I.G. Mr.Seervai therefore urged to dismiss the petition with exemplary costs. 11. As noted earlier, the Tribunal, by the impugned order, has given two directions to the petitioners, namely, (a) to promote the petitioner to the post of Deputy Inspector General of Police (D.I.G.) within one month and (b) to convene review D.P.C. to consider the respondent’s promotion as Special Inspector General of Police from the date of his immediate junior was promoted to the said post. Unless the respondent is promoted as the Deputy Inspector General of Police, his case for further promotion as Special Inspector General of Police cannot be considered by the D.P.C. The D.P.C., in its meeting held on 9.4.2007 unanimously recommended, after considering his entire service record upto 1999-2000, the applicant’s name to be included in the select list prepared in the original S.E.M. held on 29.5.2002. It was submitted by Mr.Talsania that the recommendation of the review D.P.C. to promote the 13 WP7026.11 respondent to the post of Deputy Inspector General of Police was subject to the final decision of the State Government and the State Government was not bound by the said recommendation. It was open to the State Government either to accept or reject the recommendation of the review D.P.C. We do not find any force in these submissions. The fact remains that from 9.4.2007 the State Government did precious little to act upon the recommendations either way for more than three years and even before the Tribunal in its reply in Original Application No.288 of 2010 the State Government remained silent regarding the action taken on the said recommendations. The State Government only contended that because the respondent officer submitted his application for voluntary retirement, the recommendations of the D.P.C. were not acted upon. In our opinion, and as rightly noted by the Tribunal in the impugned order, this was a fallacious ground taken by the State Government. On 28.2.2008, the State Government had withdrawn the memorandum of charges after reprimanding the respondent and on 24.9.2008 the respondent had withdrawn his application for voluntary retirement. By its letter dated 18.8.2007 addressed to the Under Secretary, Government of Maharashtra (Home Department), the Government of India informed the State Government that the competent authority in the Home Ministry, Government of India, had taken a 14 WP7026.11 decision not to accept the notice of voluntary retirement of the respondent since the disciplinary proceedings were initiated against him. But these proceedings came to an end by the order dated 28.2.2008 passed by the Government of Maharashtra withdrawing the memorandum dated 23.5.2007. Thus, there was no impediment to consider the recommendations of the D.P.C. held on 9.4.2007 and there is nothing on record to show that these recommendations were placed before the Chief Minister and any adverse order was passed or any noting declining to accept the recommendations or even for reconsideration of the case by the D.P.C. was made. The review D.P.C. held on 9.4.2007 had already recommended unanimously the respondent’s case for promotion to the post of Deputy Inspector General of Police, and therefore, in our considered opinion, the Tribunal was fully justified in directing the present petitioners to promote the respondent to the said post. The second direction to convene a review D.P.C. to consider the respondent’s promotion as Special Inspector General is based on the fact that he was directed to be promoted as the Deputy Inspector General of Police on the basis of the recommendations of the D.P.C. held on 9.4.2007 and that his next junior officer of 1986 batch was already promoted to the said post of Special Inspector General of Police. The Tribunal has only directed to convene a review D.P.C. to consider the 15 WP7026.11 respondent’s case and we do not find any fault or any error apparent on the face of the record in so directing. Hence, tested on any count, the impugned order passed by the Tribunal does not suffer from any errors and, therefore, it does not call for any interference in this petition. 12. In the premises, the petition fails and the same is hereby dismissed. Needless to mention, the respondent officer shall be entitled for his salary as D.I.G. and his salary from the date he has been kept on compulsory wait list shall be paid along with arrears within two weeks from today. 13. Mr.Vagyani, the learned A.G.P. submitted an oral application to stay the operation of this order so as to enable the State Government to approach the Supreme Court. The oral application has been opposed by the respondent. The oral application is hereby rejected. (SMT.NISHITA MHATRE, J.) (B.H.MARLAPALLE, J.) 16 WP7026.11