1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION (LODGING) NO. 30 OF 2008 R.R. Tripathi, ) aged about 31 years, ) Occupation Journalist, ) r/o. D-18, Wadala Apartment, ) Ganesh Nagar, Thane (West), ).. Petitioner Versus 1. Union of India, ) Through the Secretary, ) Ministry of Home Affairs, ) North Block, New Delhi. ) 2. State of Maharashtra, ) through Secretary, ) Home Department, Mantralaya, ) Mumbai. ) 3. Comptroller and Auditor General ) on India, ) 10, Bahadur Shah, Jafar Marg, ) New Delhi – 2. ) 4. A.N. Roy, Director General of Police,) Maharashtra State, ) Police Head Quarters, ) Old Council Hall, Mumbai – 39. )... Respondents -- Shri J.P. Cama and Shri F.Fredrick i/by Smt.Neha Palshikar Bhide for the Petitioner. 2 Shri R.B. Raghuwanshi, Additional Solicitor General along with Shri G.S. Kulkarni along with Mrs. Rutuja Ambekar for the Union of India- Respondent No.1. Shri R.M. Kadam, Advocate General along with Shri D.A. Nalawade, GP for the State- Respondent No.2. -- CORAM: SWATANTER KUMAR, C.J.& A.P. DESHPANDE, J JUDGMENT RESERVED ON : 15TH SEPTEMBER, 2008. JUDGMENT PRONOUNCED ON : 8TH OCTOBER, 2008. JUDGMENT : ( PER SWATANTER KUMAR, C.J. ) 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- 3 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 4 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 5 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 6 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 7 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 8 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 9 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. 10 4. As far as the maintainability of the present Public Interest Litigation is concerned, the Petitioner has placed reliance upon a Division Bench judgment of this Court in the case of R R Tripathi and another vs The Union of India and others, 2008 (4) Bom. C.R. 688. It has been stated with some emphasis that keeping in view the importance of the post in question and the functions which are discharged by the Director and Inspector General of Police of Maharashtra, every citizen has a right to question the correctness thereof. 5. We are afraid, we cannot accept this contention. We may notice that in the case of R. R. Tripathi and another (supra), the challenge before the Court was to the grant of extension beyond the age of superannuation being in violation of the Rules and it questioned the authority of the concerned persons to hold the said posts. In the facts of that case, the Court had held that a Public Interest Litigation would be maintainable before the Court as therein it was not a mere question relating to a service matter. 11 6. It is not in dispute that it is a selection post and seniority alone is not the criteria. For every cause of action there is remedy available to the affected person and in fact one of the affected persons has already taken recourse towards the specific remedy i.e. filing of an application before the Central Administrative Tribunal, Mumbai Bench, being Original Application No.389 of 2008 which is stated to be pending. The controversy and the scope in the earlier Petition filed by the Petitioner was entirely different. Even if for the sake of arguments, it is accepted that even the present petition could be entertained by the Court on extended principles even then the factum of pendency of the application before the Central Administrative Tribunal shall render this Petition not tenable before this Court, particularly, in the facts and circumstances of the case. In the case of R.K. Jain vs Union of India, (1993) 4 SCC 119 and in the case of B. Srinivasa Reddy vs Karnataka Urban Water Supply & Drainage Board Employees' Association & Ors., (2006) 11 SCC 731 (II), the Supreme Court clearly stated the principle that it may not be appropriate for this Court to entertain such a Public Interest Litigation. Paragraphs 6, 73 12 and 74 of R.K. Jain' s case (supra) read as under: “6. ............... We, therefore, agree with our learned Brother that this Court cannot sit in judgment over the wisdom of the Central Government in the choice of the person to be appointed as a President so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. We, therefore, cannot interfere with the appointment of respondent 3 on the ground that his track record was poor or because of adverse reports on which account his appointment as a High Court Judge had not materialised. ,,,,, ,,,,, ..... 73. Judicial review is concerned with whether the incumbent possessed of qualification for appointment came to be made or the procedure adopted whether fair, just and reasonable. Exercise of judicial review is to protect the citizen from the abuse of the power etc. by an appropriate Government or department etc. In our considered view granting the compliance of the above power of appointment was conferred on the executive and confided to be exercised wisely. When a candidate was found qualified and eligible and was accordingly appointed by the executive to hold an office as a Member or Vice-President or President of a Tribunal, we cannot sit over the choice of the selection, but it be left to the executive to select the personnel as per law or procedure in this behalf. In Shrikumar Prasad case K.N. Srivastava, M.J. S., Legal Remembrancer, Secretary of Law and Justice, Government of Mizoram did not possess the requisite qualifications for 13 appointment as a Judge of the High Court prescribed under Article 217 of the Constitution, namely, that he was not a District Judge for 10 years in State Higher Judicial Service, which is a mandatory requirement for a valid appointment. Therefore, this Court declared that he was not qualified to be appointed as a Judge of the High Court and quashed his appointment accordingly. The facts therein are clearly glaring and so the ratio is distinguishable. 74. Shri Harish Chander, admittedly was the Senior vice-President at the relevant time. The contention of Shri Thakur of the need to evaluate the comparative merits of Mr. Harish Chander and Mr. Kalyansundaram a seniormost member for appointment as President would not be gone into in a public interest litigation. Only in a proceedings initiated by an aggrieved person it may be open to be considered. This writ petition is also not a writ of quo warranto. In service jurisprudence it is settled law that it is for the aggrieved person i.e. Non-appointee to assail the legality of the offending action. Third party has no locus standi to canvass the legality or correctness of the action. Only public law declaration would be made at the behest of the petitioner, a public spirited person.” Paragraph 51 of B. Srinivasa Reddy' s case (supra) reads as under:- “51. It is settled law by a catena of decisions that the court cannot sit in judgment over the wisdom of the Government in the choice of the person to 14 be appointed so long as the person chosen possesses the prescribed qualification and is otherwise eligible for appointment. This Court in R.K. Jain v. Union of India was pleased to hold that the evaluation of the comparative merits of the candidates would not be gone into a public interest litigation and only in a proceeding initiated by an aggrieved person, may it be open to be considered. It was also held that in service jurisprudence it is settled law that it is for th aggrieved person, that is, the non-appointee to assail the legality or correctness of the action and that a third party has no locus standi to canvass the legality or correctness of the action. Further, it was declared that public law declaration would only be made at the behest of a public-spirited person coming before the court as a petitioner. Having regard to the fact that neither Respondents 1 and 2 were or could have been candidates for the post of Managing Director of the Board and the High Court could not have gone beyond the limits of quo warranto so very well delineated by a catena of decisions of this Court and applied the test which could not have been applied even in a certiorari proceedings brought before the Court by an aggrieved party who was a candidate for the post.” 7. It is further to be noted that in the case of State of U.P. & Ors. Vs Sunanda Prasad & Anr., (1999) 6 SCC 34, the Supreme Court while dealing with the issue of order of transfer, expressed the view that where the order of transfer was a subject matter of a proceeding pending before the Central 15 Administrative Tribunal and where certain orders were passed by the Tribunal, the High Court normally should not entertain a Petition involving the same subject matter. 8. In the case of State of Punjab vs. V.K. Khanna, (2001) 2 SCC 330, Supreme Court also enunciated the principle that mere fact that there has been a supersession per se will not bring propriety of such an order within the ambit of judicial review. In that case, a person appointed to the post of Chief Secretary had superseded 10 officers senior to him and the Court took the view that such appointment could not be made subject matter of a judicial review. 9. Another aspect of the present case is that the Petitioner has primarily relied upon newspaper cuttings which itself can hardly form the basis of a Public Interest Litigation as held in the case of M/s.Holicow Pictures Pvt. Ltd. V. Prem Chandra Mishra & Ors. (AIR 2008 SC 913). In these circumstances and the fact that the petition basically lacks the essentials of a Public Interest Litigation and the appropriate 16 affected candidate having invoked the special jurisdiction of the Central Administrative Tribunal, the present Writ Petition is not maintainable. Furthermore, there is apparent link shown between the two Petitioners as all the documents placed before us, which were received by the Petitioner in furtherance to his application under Right to Information Act, have even been filed by the affected candidate before the Central Administrative Tribunal. We will leave the matter at that but are of the considered view that the present Public Interest Litigation is not maintainable. 10. Furthermore, in the case of Kushum Lata v. Union of India & Ors., (2006) 6 SCC 180 where a Public Interest Litigation had been filed challenging the auction of mining lease on the ground of public interest and government revenue by an intending bidder, who had been disallowed to participate therein, while upholding the view of the High Court which dismissed the PIL filed by the intending bidder, more so when another writ petition questioning legality of the auction was filed by the same petitioner together with certain others was at that 17 time pending before the High Court, the Supreme Court held as under: - “21. In the instant case, the appellant has sytled the petition as PIL though it relates to a tender where she herself claims to be a tenderer. In another petition, questioning the legality of the auction, she is a party. The High Court Court was perfectly justified in dismissing the writ petition styled as a PIL. We make it clear that Writ Petition No.349 of 2003 which is stated to be pending shall be considered in its own perspective in accordance with law. We express no opinion on the merits of the said writ petition.” 11. Now we come to the other aspect raised by the Petitioner in the present petition. Of course, the PIL even in that regard would hardly be maintainable. The Petitioner while referring to Rules 8 and 9 of the Indian Police Service (Cadre) Rules, 1954 had contended that the cadre post should only be filled up by cadre officer and even if a temporary arrangement has to be made of non-cadre officer, it must satisfy the exceptions carved out in Rule 9A. In terms of Rule 9(3), where cadre post is likely to be filled up by a person who is not a cadre officer for a period exceeding six months, the Central 18 Government shall report the full facts to the Union Public Service Commission with the reasons for holding that no suitable officer is available for filing the post and may in the light of the advice given by the Union Public Service Commission give suitable directions to the State Government concerned. It was pointed out that during the course of hearing on behalf of the State and in fact as has been specifically stated in the reply affidavit the Government of India has communicated to the State Government to take suitable measures to avoid filling up of cadre post by non cadre officer. This direction of the Government of India is in consonance with the spirit of Rules 8 and 9 of the said Rules. Since the State of Maharashtra is already looking into the matter, there is hardly any occasion for this Court to interfere at this stage, particularly, when it is a policy matter which squarely falls in the domain of the State Government. 12. For the reasons stated above, we find no merit in either of the contentions raised before us and would dispose of the Petition but with a further and clear direction to the State 19 Government to ensure that persisting grievance of the concerned police officers in relation to the posting of non-cadre officer against the cadre post should be looked into and appropriate measures be taken in terms of the Government of India's directives as well as Rules 8 and 9 of the Indian Police Service (Cadre) Rules, 1954 . 13. With the above directions, writ petition is disposed of. CHIEF JUSTICE A.P. DESHPANDE, J