IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 11-11-2009 CORAM: THE HONOURABLE MRS. JUSTICE PRABHA SRIDEVAN AND THE HONOURABLE MR. JUSTICE M. SATHYANARAYANAN W.P.No.22071 of 2008 S. Kannan Secretary, Tamil Nadu State Committee Democratic Youth Federation of India No.56/21, Arunothaya Complex, II Floor Poonamallee High Road Periyamet Chennai – 600 003 ... Petitioner Vs. 1. The Govt. of India Ministry of Railways Rep. By its Secretary New Delhi 2. The Chairman Railway Board Indian Railways New Delhi 3. The Director Central Bureau of Investigation New Delhi 4. The Superintendent of Police Central Bureau of Investigation Anti Corruption Branch Shastri Bhavan Chennai – 600 006 5. Mr. Thomas Varghese Member Railway Rates Tribunal No.5, P.V. Chriyan Road Chennai – 8 6. Central Vigilance Commission Satorkta Bhawan G.P.O. Complex New Delhi – 110 023. ... Respondents https://hcservices.ecourts.gov.in/hcservices/ R6 impleaded suomotu as per order dated 28-07-2009 by PSDJ & CTSJ in W.P.No.22071 of 2008 Prayer: Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the fourth respondent to register a case against 5th respondent under Prevention of Corruption Act and for other offences without getting previous approval as contemplated under Section 6A of the Delhi Special Police Establishment Act, 1946. For Petitioner :: Mr. M. Christopher For respondents :: Mr. R. Thiagarajan, Senior Counsel for RR1 & 2 Mr. N. Chandrasekaran, Spl.P.P. for RR3 & 4 Mr. K. Ramasamy, AAG for Ms.N. Kavitha for R5 Mr. M. Ravindran, Addl.Solicitor General for Mr. Vijayaraghavan for R6 ORDER (PRABHA SRIDEVAN,J.) This public interest litigation is filed on behalf of the Democratic Youth Federation of India alleging irregularity in the appointment of Substitutes by the fifth respondent, flouting all guidelines and recruitment norms. 2. According to the petitioner, the fifth respondent who retired on 17-07-2007 had made more than 80 appointments without complying with the guidelines issued by the Ministry of Railways in the Master Circular dated 27-01-1991 which was subsequently revised on 04-01-2001 which provided for some procedure to be followed in engaging Substitutes. It appears that the petitioner made a complaint to the fourth respondent on 24-07- 2007. The sixth respondent was impleaded suo motu on 14-08-2009. The sixth respondent forwarded the complaint to the Vigilance Cell of Southern Railways. Since there was no progress on the complaint, the petitioner filed W.P.No.34814 of 2000. When the writ petition came up for hearing the first respondent submitted that all the files were handed over to the third respondent for enquiry and based on this the writ petition was closed. Thereafter, an application was filed under the Right to Information Act on 15- 05-2008 regarding the stage of investigation. The fourth respondent replied to his application stating that a prima facie case was made out to register a case under the provision of Prevention of Corruption Act and the previous approval of the https://hcservices.ecourts.gov.in/hcservices/ Central Government under Section 6A of the Delhi Special Police Establishment Act, 1946 as amended by the Central Vigilance Commission Act, 2003 was sought for. Since the Railway Board, the second respondent herein had not granted approval they could not register a regular case. When W.P.No.34814 of 2007 came up for hearing on 12-03-2008, the first respondent did not disclose all the materials for reasons best known to them. Thereafter, another application was filed by the petitioner on 25-08-2008 to the second respondent under the Right to Information Act to furnish the grounds for rejection of previous approval. Till date, the second respondent has not furnished the information. In these circumstances, the writ petition was filed for a direction to the fourth respondent to register a case against the fifth respondent without getting previous approval. 3. When the matter came up for hearing we were informed that on 05-02-2009, the sixth respondent had decided to drop the matter and to withdraw the approval earlier granted and this was intimated by Office Memorandum dated 05-02-2009. Therefore, it was submitted that nothing further needed to be done in this writ petition. 4. Since we found that the communication dated 05-02- 2009 from the sixth respondent was contrary to their own earlier stand, we suo motu impleaded the sixth respondent by order dated 14-08-2009 so that the sixth respondent could place all the materials on record. 5. We have heard Mr. R. Thiagarajan, learned Senior Counsel for RR1 & 2 Mr. N. Chandrasekaran, learned Special Public Prosecutor for RR3 & 4, Mr. K. Ramasamy, learned Additional Advocate General for R5, Mr. M. Ravindran, learned Addl. Solicitor General for R6 and Mr. M. Christopher, learned counsel for the petitioner. 6. The learned counsel for the petitioner submitted that when there was enough material to justify a criminal investigation the dropping of the case by the sixth respondent is contrary to the principles based on which the Supreme Court in 1998 (1) Crimes 12 (SC) (Vineet Narain & Others Vs. Union of India & Another) brought the sixth respondent into existence. He also referred to the relevant paragraphs. He further submitted that there were enough materials to prima facie indicate R5's misconduct. Mr. M. Christopher, learned counsel submitted that since the fifth respondent has retired, the question of sanction for prosecution does not arise and the direction must be issued. 7. The learned Senior counsel appearing for the first and the second respondent submitted that the Railways is an Institution which works 24 hours a day, the movement of goods and passengers cannot stop for even one hour. There may be situations when 10 gang men may absent themselves and if the Officers have to wait for a Committee to properly recruit the substitutes, the entire working of the Railways will come to a standstill. It is https://hcservices.ecourts.gov.in/hcservices/ therefore, that the Indian Railways has for a long time adopted the practice of engaging substitutes to tide over such emergencies and moments of crisis. The learned Senior counsel submitted that for regular recruitment through the Railways Recruitment Cell, the time consumed is one to one and a half years for finalising the panel after processing the applications of lakhs of candidates. Therefore, the Railways divided the appointees into two categories, one, the Regular appointee from the Railway Recruitment Cell and the other, substitutes engaged by the General Manager. According to the learned Senior Counsel, it cannot be said that the fifth respondent has used unfettered discretion and it is not as if he is the only officer to engage substitutes in this manner. This is the practice adopted by the General Manager of all the zones and since such discretionary powers are being exercised by the General Managers, the Railway Board advised the fourth respondent that the action of the fifth respondent was in accordance with the accepted practice and in exercise of the powers given to him as a General Manager and therefore, registering a case against him for an administratively approved system, would be inappropriate and that, therefore, the Board had declined sanction for prosecution, after considering the entire facts and circumstances of the case. It appears that modified guidelines have been issued, after Central Vigilance Commission was seized of the matter and had advised that as a measure of social audit and in the interest of transparency, the usual method of ad hoc appointment is discontinued. 8. In the counter filed by the respondents 3 and 4, it is stated that a preliminary verification revealed that there was justification to take up investigation against fifth respondent, who is an Officer at the level of Joint Secretary to Government of India and therefore, approval was required for registration of a regular case. According to them, the submissions made in W.P.No.34814 of 2007 that all the files were handed over, were made in the absence of the respondents 3 and 4 and it is specifically denied that this submission was not correct and further, in Paragraph No.5 of the first affidavit it is stated that the fifth respondent after relinquishing his post as General Manager, Southern Railways, has been appointed as a Member, Railway Rates Tribunal, Chennai and continues to hold that post and therefore, approval of Central Government is mandatory to register a case. In a further affidavit filed by the respondents 3 and 4, it is averred that in July 2007, they received information that in the Southern Railways there was grievous irregularity in the matter of appointment of substitutes and there were allegation of even money changing hands and the Circular dated 29-01-1991 also shows the breach by the Railways themselves. The scrutiny of the limited files handed over to them showed that in the period about one month earlier to demitting the office, the fifth respondent had received 90 applications and that they were personally approved by him without asking for any details like non-availability of leave reserve, non-availability of the panel or vacancy position and there was no attempt made to satisfy himself whether there was any need for appointment of such persons as substituted Khalasis and it is also stated that on the last date of leaving office, 14 cases https://hcservices.ecourts.gov.in/hcservices/ were approved by him. According to the CBI, there was deliberate contravention of the Circular in the matter of discretionary appointment of the substitutes and blatant abuse of power and therefore, they have sought previous approval of registering a regular case and on the decline of prior approval, the respondents 3 and 4 referred to the matter to the sixth respondent on 07-05- 2008. On 30-06-2008, the sixth respondent had communicated to respondents 3 and 4 that merely because an Officer has the power to do certain acts, the sanction for registration of the case cannot be denied and by the same letter, the sixth respondent also indicated that they were prima facie satisfied that the fifth respondent has abused his powers to favour certain persons. Thereafter, since the respondents 3 and 4 did not receive any further communication from the second respondent, nothing further was done. 9. The fifth respondent has filed his counter stating that the writ petition has been filed only to tarnish his image. He had an unblemished record of service and it is unfortunate that such allegations are made against him after his retirement. According to him, there was no extraneous consideration for making the appointments and these appointments were made only in order to meet the minimum requirements and only to ensure smooth functioning of the establishment to suit the exigency of the situation. The learned Senior Counsel also submitted that he is absolutely blameless. 10. The sixth respondent has filed its counter referring to a letter dated 13-03-2008 addressed by the third and fourth respondents to the second respondent, copy marked to the sixth respondent. Based on the information contained therein, the original opinion of the sixth respondent was that the second respondent's rejection of the request of sanction needed to be re- examined. Thereafter, the sixth respondent appears to have held the meeting with the Chairman, Railway Board and other high level officials to discuss the system of appointment of substitutes and while the sixth respondent conceded that there was failure of the system, it would state that one individual cannot be held responsible for the same and it is therefore, they decided that the matter relating to grant of approval be dropped and the same was communicated to the second respondent by office memorandum dated 05-02-2009. According to the sixth respondent, it has not committed any illegality or irregularity and the files have also been produced before us. 11. The files of the sixth respondent shows that though the proposal for consideration relating to the irregularities alleged to have been committed by the fifth respondent was placed before them, the fourth respondent had expressed that the discretionary appointment of substitutes was in contravention of the repeated Circulars of Railway Board for the merit based competent recruitment. The CBI requested the Railway Board for the details of the system adopted by the General Managers in the appointment of Khalasis in the interest of probity. Originally, https://hcservices.ecourts.gov.in/hcservices/ the sixth respondent was of the view that the consent for registration of a case cannot be denied merely on the ground that the suspected officer had the powers to do certain acts like the appointment of private individuals as Railway Employees without going through the process of selection by abuse of powers as a General Manager. 12. This was the original stand of the sixth respondent. But, later, the stand appears to have been mellowed since the sixth respondent preferred that an approach should be made finding out the reason for not engaging the substitutes on a merit basis and for improving the system as a whole rather than chasing the individual officer against whom we have no personal opinion though we are unable to accept the wrong action. It appears that the Railway Authorities themselves admitted that depending only upon the exigencies of administrative circumstances and necessities, the General Managers of various Zonal Railways were engaging substitutes and had also admitted before the sixth respondent that "Railways had not taken any initiative to review the instructions/ order on the appointment of Substitutes for the past three years". It appears that only after the present proceedings when there was allegations of misfeasance/malfeasance, the Board had woken up and had appointed a Committee to review the guidelines. Therefore, the sixth respondent decided that the entire manner in which the discretionary appointments are made are not regular and not in conformity with the principles settled by the Supreme Court in Umarani (2004 (7) SCC 112) and Umadevi's case (2006 (4) SCC 1) and therefore, the existing system should be re- examined with the help of the situations given by the Supreme Court. Finally, they appear to have agreed with the Railway Board that further proceedings was not necessary and decided to drop the case. 13. The learned Additional Solicitor General also submitted that when the same practice had been followed by the General Managers' Panel all over India, the sixth respondent felt that it was not necessary to proceed against one Officer. 14. The files of the CBI have also been brought. There, we find that from the scrutiny of the records that CBI was of the opinion that there was blatant abuse of the official position by the fifth respondent and therefore, it definitely amounted to misconduct. Communications have been periodically sent on 12-09-2007, 26-11-2007 and 13-03-2008 to the Chairman, Railway Board. Copies have been marked to the sixth respondent also. In view of the stand of the Railway Board as well as the refusal to grant sanction, the CBI could not proceed in the matter after the stage of preliminary investigation. 15. The Circular of the Railway Board dated 29-01-1991 reads as follows: GOVERNMENT OF INDIA MINISTRY OF RAILWAYS (RAILWAY BOARD) https://hcservices.ecourts.gov.in/hcservices/ RB No.12/91 M.C.No.20/91 No.E(NG)II/90/SB/Master Circular New Delhi dt.29.1.91 The General Managers All Indian Railways, Production Units & Others. Sub: Substitutes. "Instructions on the subject "Substitutes" are contained in Chapter 23-A(ii) of IREM 1968 and also in various letters and circulars issued from time to time from Railway Board. The question of issue of a consolidated instructions has been engaging the attention of the Railway Board for quite some time. It has now been decided by them to issue a consolidated instructions is the form of a Master Circular on the subject "Substitutes" as below for the information and guidance of all concerned. 2. Definition: "Substitutes" refer to persons engaged in Indian Railway Establishments on regular scales of pay and allowances applicable to posts falling vacant because of absence on leave or otherwise of permanent or temporary Railway Servant and which cannot be kept vacant. (No.E(NG)65/LR 1/1dated 1.9.65) 3. Circumstances under which "Substitutes" can be appointed: Ordinarily, there should be no occasion to engage "Substitutes" having regard to the fact that practically in all categories of Railway Servants leave reserve has been provided for. Occasions may, however, arise when owing to an abnormally high rate of absentees, the leave reserve may become inadequate or ineffective, e.g., heavy sickness etc. or where leave reserve is available but it is not possible to provide the same, say, at a wayside station. On such occasions, it may become absolutely necessary to engage substitutes even in vacancies of short duration as otherwise the Railway service may be adversely affected. 3.1 Substitutes should, as far as possible, be drawn from a panel of suitable candidates selected for Group 'C' (Class III) and Group 'D' (Class IV) posts and should be engaged upto the age of 28 years only, subject to the observations made above, only in the following circumstances:- https://hcservices.ecourts.gov.in/hcservices/ i) Against regular vacancies of unskilled and other categories of Group 'C' (Class IV) staff requiring replacement for which arrangements cannot be made within the existing leave reserve; ii) Against a chain vacancy in the lower category of Group 'D' (Class IV) staff arising out of the incumbent in a higher Group 'C' (Class IV) category being on leave, where it is not possible to fill the post from within the existing leave reserve and when otherwise the Railway service will be affected; iii) Appointment of substitute school teachers on ad hoc basis on the Railways should normally be avoided and where it becomes inescapable, it should be for short periods and that too with the personal and prior approval of the General Managers. Adequate panel has to be maintained to fill regular vacancies of teachers and adequate waiting list for appointing substitute teachers therefrom so that the tail and of the panel can be treated as a waiting list for the purpose. Therefore, there should be no separate panel (waiting list) for substitute teachers. In cases where due to any compelling reasons a waiting list is not available or the wait listed candidate is not forthcoming and the post cannot be left unfilled till a regular incumbent is available, the post may be temporarily manned by recruiting a substitute, who should be selected through a procedure of calling of applications locally and making a selection from out of these applications. Such an arrangement should be extended beyond six months within which time a regular panel for appointing substitute teachers should be formed; iv) Substitutes in the lowest grade may be engaged to fill vacancies arising on account of the Railway Territorial Army Unit Personnel called up by the Army for training or for military duty in emergency of 30 days duration or more. v) Against vacancies in other circumstances specified by the Railway Board from time to time. NOTE: (1) The Phrase "as far as possible" occurring at the beginning of this para is not intended to confer unfettered discretion to appoint substitutes from outside. Substitutes should be appointed only from the panel. However, in special circumstances persons not in panel may be appointed but this should be for a very short period and only in urgent cases. [2] Persons proposed to be appointed as substitutes are to be clearly warned that their appointment is only as substitutes and services will be https://hcservices.ecourts.gov.in/hcservices/ terminated immediately on return of the persons on leave or regular selected candidates become available." It is clear from this that it is not intended to give the General Manager's "unfettered discretion". We also have to extract the tabular column regarding the break-up of engagement of fresh face substitutes on Indian Railways: Annexure-II to Board's letter No. E(NG)-II/2007/RR-1/63 dated.1.2009 BREAK-UP OF ENGAGEMENT OF FRESH FACE SUBSTITUTES ON INDIAN RAILWAYS Railways / PUs 2007-2008 2008-2009 Fresh Face Act. App. Others (CG, Blast, Accident , Land Losers etc. Fresh Face Act. App. Others (CG, Blast, Acciden t, Land Losers etc. Northern 326 0 0 262 0 0 Central 101 31 -150 0 0 2 Eastern 147 0 0 116 0 0 North Eastern 168 0 0 105 0 0 Southern 27 444 0 25 605 0 South Central 86 0 32 45 0 6 South Eastern 241 0 0 87 0 0 Northeast Frontier 61 0 0 51 0 0 Western 74 0 28 121 0 105 East Central 239 0 0 146 0 0 East Coast 174 0 0 79 0 0 North Central 154 0 0 139 0 0 North Western 105 0 0 80 0 0 South Western 86 0 0 43 0 0 West Central 81 47 0 100 41 0 South East Central 47 0 0 49 0 0 GRAND TOTAL 2117 522 61 1498 646 113 16. As regards the guidelines for appointment, it is clear that the fifth respondent is quite conscious of what should be done, since even the files have referred to the judgments of the Supreme Court. The Circulars have been given in 1991, 2001 and now in 2009. Therefore, it is not as if the guidelines to be followed in the recruitment of Substitutes were not before the Officers. The excuse is that other zonal managers also do the same. It is an https://hcservices.ecourts.gov.in/hcservices/ excuse that the ill behoves a Senior Officer. The aberration of a colleague cannot justify his own aberration. 17. In this context, we have to remember how the CVC came into existence and we only extract the following paragraphs from the Vineeth Narain case: "56. The adverse impact of lack of probity in public life leading to a high degree of corruption is manifold. It also has adverse effect on foreign investment and funding from the International Monetary Fund and the World Bank who have warned that future aid to underdeveloped countries may be subject to the requisite steps being taken to eradicate corruption, which prevents international aid from reaching those for whom it is meant. Increasing corruption has led to investigative journalism which is of value to a free society. The need to highlight corruption in public life through the medium of public interest litigation invoking judicial review may be frequent in India but is not unknown in other countries. 57. Of course, the necessity of desirable procedures evolved by court rules to ensure that such a litigation is properly conducted and confined only to matters of public interest is obvious. This is the effort made in these proceedings for the enforcement of fundamental rights guaranteed in the Constitution in exercise of powers conferred on this Court for doing complete justice in a cause. It cannot be doubted that there is a serious human rights aspect involved in such a proceeding because the prevailing corruption in public life, if permitted to continue unchecked, has ultimately the deleterious effect of eroding the Indian polity. 58. As a result of the aforesaid discussion, we hereby direct as under: I. CENTRAL BUREAU OF INVESTIGATION (CBI) AND CENTRAL VIGILANCE COMMISSION (CVC) 1. The Central Vigilance Commission (CVC) shall be given statutory status. 2. Selection for the post of Central Vigilance Commissioner shall be made by a Committee comprising the Prime Minister, Home Minister and the Leader of the Opposition from a panel of outstanding civil servants and others with impeccable integrity, to be furnished by the Cabinet Secretary. The appointment shall be made by the President on the basis of the recommendations made by the Committee. This shall be done immediately. https://hcservices.ecourts.gov.in/hcservices/ 3. The CVC shall be responsible for the efficient functioning of the CBI. While Government shall remain answerable for the CBI’s functioning, to introduce visible objectivity in the mechanism to be established for overviewing the CBI’s working, the CVC shall be entrusted with the responsibility of superintendence over the CBI’s functioning. The CBI shall report to the CVC about cases taken up by it for investigation; progress of investigations; cases in which charge-sheets are filed and their progress. The CVC shall review the progress of all cases moved by the CBI for sanction of prosecution of public servants which are pending with the competent authorities, specially those in which sanction has been delayed or refused. 4. The Central Government shall take all measures necessary to ensure that the CBI functions effectively and efficiently and is viewed as a non-partisan agency. 5. The CVC