Amitabh Thakur vs State Of U.P. Prin. Secy. Appt. & ...
2019 Latest Caselaw 4344 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 5								AFR
 

 
Case :- MISC. BENCH No. - 13435 of 2019
 
Petitioner :- Amitabh Thakur
 
Respondent :- State Of U.P.  thru Principal Secy Appt. & Personnel Deptt. & Ors.
 
Counsel for Petitioner :- Dr. Nutan Thakur
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Dr. Devendra Kumar Arora,J.

Hon'ble Alok Mathur,J.

1. By means of instant writ petition, the petitioner, who is presently occupying the office of Inspector General of Police has approached this Court feeling aggrieved by an order, whereby his application seeking sanction for prosecution of Mr. Arvind Kumar presently posted as Principal Secretary (Home) Government of U.P under Section 197 of the Criminal Procedure Code (in short ''Cr.P.C.) has been rejected.

2. Brief facts of this case are that the petitioner had filed a complaint under Section 190 Cr.P.C in the court of the Chief Judicial Magistrate, Lucknow, stating that his services are governed by THE ALL INDIA SERVICES (PERFORMANCE APPRAISAL REPORT) RULES, 2007 and in accordance with Rule 9 of the said Rules, the respondent no.2 reported on the petitioner's Performance Appraisal Report for the period 01.04.2017 to 26.10.2017 in his official capacity as Reviewing Authority. The Review Officer (opposite party no.2) while giving assessment on Performance Appraisal Report had made remarks that "In my view the reporting officer has been extremely liberal in writing his pen picture and in numerical assessment. A uniformed officer needs to follow certain norms and discipline of the service. The general impression about the officer is that he is extremely litigacious and on many occasions has created embarrassing situations for the government."

3. According to the petitioner, the allegations made in the aforesaid complaint comes under the category of offence of defamation and, therefore, in order to obtain prosecution sanction under Section 197 of Cr.P.C., the petitioner has moved an application on 10.01.2019 before the Principal Secretary (Appointments) along with the complaint preferred before the learned Chief Judicial Magistrate, Lucknow, which has been rejected by the State Government and the petitioner came to know about the said fact, when the aforesaid complaint was rejected by the learned Chief Judicial Magistrate, vide order dated 24.03.2019, solely on the ground that the application moved for prosecution sanction has been declined by the State Government.

4. Counsel for the petitioner has submitted that the Reviewing Officer has made certain unwarranted and defamatory statements against the petitioner without any evidence and merely on the basis of general impression. She has further stated that there is no basis for making such comment against the petitioner and as such, the comments have lowered his prestige and image which have been given in a total whimsical manner and therefore the said entry is an adverse entry and also a defamatory to the petitioner.

5. Counsel for the petitioner has further submitted that there is complete non-application of mind on the part of the respondent while passing the impugned order. It has further been submitted that the reasons stated in the impugned order for rejection of the prayer of the petitioner for grant of sanction for prosecution are factually incorrect and not tenable in the eyes of law. In the impugned order, three reasons have been stated while rejecting the application of the petitioner for grant of prosecution sanction, the first reason is that the appraisal of performance of the petitioner has been done by respondent no.2 in his official capacity and not in his private capacity and also that the respondent no.2 was holding the post of Principal Secretary (Appointments) from 01.01.2019 to 01.02.2019 and may have influenced the decision and, therefore, the rejection of the said sanction for prosecution is bad, the second reason is that the said comments in the Performance Appraisal Report have been endorsed by the accepting authority, and therefore the opposite party no.2 cannot be faulted for the said report, and lastly that the matter comes under the exceptions as provided in section 499 of the IPC, and therefore the sanction for prosecution has been declined. The aforesaid three reasons given by the State Government while rejecting the application for prosecution sanction is illegal and not tenable in the eyes of law.

6. We have considered the submissions advanced by Ms. Nutan Thakur, Counsel appearing for the petitioner, as well as Standing Counsel appearing on behalf of the respondents and perused the record and also the letter dated 22.02.2019.

7. To consider the grievance of the petitioner first, it has to be looked into from the point of fact that there are Rules in this regard, which provides for grant of Annual Entries to every Government Officers and in the present case is governed by THE ALL INDIA SERVICES (PERFORMANCE APPRAISAL REPORT) RULES, 2007. In exercise of the said Rules, the respondent no.2 had proceeded to review the report of the petitioner. This was an exercise which is mandated under law, and the same was being done in public interest, and unless shown to be otherwise, was bonafide exercise of power as provided for under the Rules. The purpose of giving Annual Confidential Remarks is to improve the performance of the public servants and to maintain a data had proceeded to which is used to determine the comparative merit when questions of promotion and confirmation arrive.

8. While exercising the power of reporting in the capacity of Reporting Officer, Reviewing Officer or Accepting Officer, the Government servant is exercising powers granted under the Rules, and the same has to be exercised in public interest in the bona fide manner. The aforesaid rules themselves provide that in case any officer, who is aggrieved by any of the reports, can make a memorial to the competent authority within the prescribed time. In the instant case, the Reviewing Officer has reported that "the general impression about the officer is that he is extremely litigatious and on many occasions has created a embarrassing situations for the Government". This sentence it seems has offended the petitioner who have resorted to initiating criminal proceedings against the reporting officer.

9. In the complaint it has been stated that there is no basis for such a comment to be made against the petitioner, and the said comments are totally unwarranted and uncalled for. He has stated that calling the petitioner "litigatious" is clearly defamatory as the said comments are clearly without any basis or proof and on the basis of whims and fancies of respondent no.2, and therefore, respondent no.2 is guilty of defaming the petitioner.

10. The Performance Appraisal Report is given to all the public servants, annually by the superiors in accordance to the various rules and regulations laid down in this regard, and provide a salutary purpose for enhancing the performance of the public servants, in as much as whenever the performance falls below par, the officer is cautioned and supposed to take effective steps to increase its performance. Failure to maintain efficiency of service can also lead to compulsory retirement, which is based on such Annual Confidential Reports. The purpose of the annual confidential report has been stated by the Hon'ble Supreme Court in various judgments.

11. In the case of State of Gujarat and another Vs. Suryakant Chunnilal Shah; (1991) 1 SCC 529. In paragraph 25, Hon'ble Supreme Court has held that the purpose of adverse entries is primarily to forewarn the Govt. servant to mend his ways and to improve his performance. That is why, it is required to communicate the adverse entries so that the Govt. servant, to whom the adverse entry is given, may have either opportunity to explain his conduct so as to show that the adverse entry was wholly uncalled for, or to silently brood over the matter and on being convinced that his previous conduct justified such an entry, to improve his performance.

12. Hon'ble Supreme Court in the case of R.L. Butail Vs. Union of India; (1970) 2 SCC 876, in paragraph 13 has held that a confidential report is intended to be a general assessment of work, performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merits when questions of promotion, confirmation etc. arise. They also show that such reports are not ordinarily to contain specific instances upon which assessments are made except in cases where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant. In such a case, an officer making the order- has to give reasonable opportunity to the Government servant to present his case. The contention, therefore, that the adverse remarks did not contain specific instances and were totally, contrary to the rules cannot be sustained. Equally unsustainable was the corollary that because of that omission the appellant could not make an adequate representation and that therefore the confidential reports were vitiated.

13. In paragraph 14 of R.L. Butail's case (Supra), the Apex Court has further held that the Rules do not provide for nor require an opportunity to be heard before any adverse entry is made. The contention that an enquiry would be necessary before an adverse entry is made suffers from a misapprehension that such an entry amounts to the penalty of censure set out in Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules. The entry is made under the Office Order of 1961 set out above by way of an annual assessment of the work done by the Government servant and not by way of a penalty under the said Central Civil Services Rules. True it is that such remarks would be, taken into consideration when a question such as that of promotion arises and when comparative merits of persons eligible for promotion are considered. But then, whenever a Government servant aggrieved by an adverse entry, has an opportunity of making a representation. Such a representation would be considered by a higher authority, who, if satisfied, would either amend, correct or even expunge a wrong entry, so that it is not as if an aggrieved Government servant is without remedy. Making of an adverse entry is thus not equivalent to imposition of a penalty which would necessitate an enquiry or the giving of a reasonable opportunity of being heard to the concerned Government servant. This part of the appellant's grievance, therefore, has to be rejected.

14. A perusal of the entry made by the reviewing authority clearly indicates that he has not accepted the assessment of the reporting officer in its entirety, and asserted that "a uniformed officer need to follow certain norms and discipline of the service". This is a statement which is widely accepted and followed by the officers of the uniformed service which maintain a high sense of discipline like the police, army and other paramilitary forces. A breach of discipline is construed a serious violation of the service code, and in most of the services, there is provision of punishment for breach of discipline, and therefore the Reviewing Officer cautioning the assessed officer with regard to discipline, cannot be said to be exceeding his brief, and certainly such a statement cannot be construed as a defamatory, and the Reviewing Officer was well within his sphere of jurisdiction to make such an remark. He has further stated that "the general impression about the officer is that he is extremely litigatious and on many occasions has created embarrassing situations for the government". This part of the report is based on certain facts, where it seems the petitioner has filed number of writ petitions before the High Court and other forums, and not all of them pertained to him individually, but were directed against the State Government, and whenever any order has been passed against the State Government in such a writ petitions, it is liable to embarrass the State Government inasmuch as such direction are being issued at the behest of one of very senior police officers of the State Government itself. Some of the matters decided by the Lucknow Bench of the Allahabad High Court at the behest of the petitioner, which are available on the website of the High Court, are as under"-

"Writ Petition No.10942 (MB) of 2013 (PIL); Amitabh Thakur and another Vs. Union of India. The said writ petition was filed purportedly in public interest with the prayer to quash award of 'Bharat Ratna' to Sri Sachin Tendulkar. The petitioners have also prayed that the office memorandum issued by the Government of India regarding bestowing of 'Bharat Ratna' as contained be also quashed. 

Writ Petition No.1034 (SB) of 2012; Amitabh Thakur Vs. Union of India was filed with a prayer to direct the concerned respondents to immediately frame proper Rules and/or Regulations as regards promotion related matters of the officers of the All India Services (including the Indian Police Service) in accordance with the provisions contained in Section 3 of the All India Services Act 1951.

Writ Petition No.1518 of 2014; Amitabh Thakur Vs. Union of India was filed with the prayer (a) to issue a writ of mandamus to the respondents to stop the misuse of the Intelligence organizations - the Intelligence Bureau under the Government of India and the Intelligence Department/ Intelligence Headquarters under the UP Government for any kind of political information and political intelligence, along with election related intelligence gather, as explained in the writ petition and/or otherwise, that is associated merely to political activities of various political organizations and does not have anything to do with law and order, public order, national security etc. which would warrant collection, analysis and dissemination of such information and (b) to issue a writ of Mandamus directing the concerned respondents to cancel/ quash all the promotions of the officers of the All India Services (including the Indian Police Service) made so far in the absence of such proper Rules and/or Regulations.

Writ Petition No.11917 (MB) of 2015 (Amitabh Thakur Vs. State of U.P. and others. The said writ petition was filed for a direction to the respondent Chief Secretary, Government of U.P. and the Principal Secretary (Law) for taking precautions in the exercise of appointment of special counsel, particularly in the cases which are filed by the petitioner in person or otherwise and also to disclose reasons for appointment of special counsel in order to ensure transparency as it involves huge State Exchequer. In the said writ petition, a direction was also sought for to the effect that an enquiry should be made as to why special counsel are engaged in the cases filed by the petitioner and to take care that any facts relating to the petitioner should be confidentially maintained so that the petitioner is not put to any disadvantaged position on account of such biased act on the part of the Government.

15. Similarly, there are number of other writ petitions, which have been filed by the petitioner before this court, and as per the details available, the particulars of writ petitions filed in the last five years are as under:-

" In the year 2015

(1) Contempt No.2614 of 2015; Amitabh Thakur Vs. Sri Alok Ranjan, Chief Secretary, U.P., Lucknow and others, (2) MB No.10054 of 2015; Amitabh Thakur Vs. State of U.P. and others, (3) MB No.10504 of 2015; Amitabh Thakur Vs. State of U.P. and others, (4) MB No.11917 of 2015; Amitabh Thakur Vs. State of U.P. and others, (5) MB No.3317 of 2015 (PIL); Amitabh Thakur and another Vs. State of U.P. and others, (6) MB No.5019 of 2015; Amitabh Thakur and another Vs. State of U.P. and others, (7) MB No.7778 of 2015; Amitabh Thakur Vs. Sri N.K. Mehrotra and others, (8) MB No.7964 of 2015; Amitabh Thakur Vs. Sri N.K. Mehrotra, (9) MB No.9020 of 2015; Amitabh Thakur Vs. State of U.P. and others, (10) MB No.9042 of 2015; Amitabh Thakur Vs. State of U.P. and others, (11) MB No.9426 of 2015; Amitabh Thakur Vs. State of U.P. and others, (12) SB No.1226 of 2015; Amitabh Thakur Vs. Union of India and others, (13) SB No.1516 of 2015; Amitabh Thakur Vs. State of U.P. and others, (14) SB No.1695 of 2015; Amitabh Thakur Vs. State of U.P. and others and (15) SB No.1926 of 2015; Amitabh Thakur Vs. State of U.P. and others

In the year 2016

(1) Criminal Misc. Application No.2772 of 2016 (U/s 482 Cr.P.C.); Amitabh Thakur Vs. State of U.P. and another, (2) Criminal Misc. Application No.7315 of 2016 (U/s 482 Cr.P.C.); Amitabh Thakur Vs. State of U.P. and another, (3) Contempt No.157 of 2016 (Amitabh Thakur Vs. Sri Rajiv Mehrishi, Secretary Ministry of Home Affairs, (4) Contempt No.612 of 2016; Amitabh Thakur Vs. Debashish Panda, Principal Secretary (Home) and another, (5) Contempt No.873 of 2016; Amitabh Thakur Vs. Debashish Panda, Principal Secretary (Home) and another, (6) MB No.14235 of 2016; Amitabh Thakur Vs. State of U.P. and others, (7) MB No.15330 of 2016; Amitabh Thakur Vs. State of U.P. and others, (8) MB No.17102 of 2016; Amitabh Thakur Vs. State of U.P. and others, (9) MB No.20222 of 2016; Amitabh Thakur Vs. State of U.P. and others, (10) MB No.23377 of 2016; Amitabh Thakur Vs. Union of India and others, (11) MB No.2585 of 2016; Amitabh Thakur Vs. Debashish Panda, Principal Secretary (Home) and others, (12) MB No.25920 of 2016; Amitabh Thakur Vs. Bar Council of India and another, (13) MB No.27009 of 2016; Amitabh Thakur Vs. State of U.P. and others, (14) MB No.27491 of 2016; Amitabh Thakur Vs. U.P. State Information Commission and others, (15) MB No.30265 of 2016; Amitabh Thakur Vs. U.P. State Human Rights Commission, (16) MB No.6539 of 2016; Amitabh Thakur Vs. State of U.P. and another (17) MB No.6613 of 2016; Amitabh Thakur Vs. State of U.P. and others, (18) MB No.8213 of 2016; Amitabh Thakur Vs. Union of India and others, (19) MB No.9082 of 2016; Amitabh Thakur Vs. State of U.P. and another, (20) SB No.14765 of 2016; Amitabh Thakur Vs. Union of India and others and (21) SB No.578 of 2016; Amitabh Thakur Vs. Union of India and others.

In the year 2017

(1) Criminal Misc. Application No.4317 of 2017 (U/s 482 Cr.P.C.); Amitabh Thakur Vs. State of U.P. and others, (2) Contempt No.113 of 2017; Amitabh Thakur Vs. Debashish Panda, Principal Secretary (Home), (3) Contempt No.392 of 2017; Amitabh Thakur Vs. Sri Subhash Babu, Public Information Officer/ Section Officer, (4) MB No.16177 of 2017; Amitabh Thakur Vs. Union of India and others, (5) MB No.16286 of 2017; Amitabh Thakur Vs. Hon'ble Supreme Court of India through its Registrar, (6) MB No.16375 of 2017; Amitabh Thakur Vs. State Information Commission and others, (7) MB No.17167 of 2017; Amitabh Thakur Vs. Uttar Pradesh Information Commission through its Secretary, (8) MB No.17172 of 2017; Amitabh Thakur Vs. State of U.P. and others, (9) MB No.19986 of 2017; Amitabh Thakur Vs. U.P. State Information Commission, (10) MB No.21609 of 2017; Amitabh Thakur Vs. State of U.P., (11) MB No.2586 of 2017; Amitabh Thakur Vs. U.P. State Information Commission, (12) MB No.3992 of 2017; Amitabh Thakur Vs. State of U.P., (13) MB No.4026 of 2017; Amitabh Thakur Vs. State of U.P., (14) MB No.4898 of 2017; Amitabh Thakur Vs. State of U.P., (15) MB No.9823 of 2017; Amitabh Thakur Vs. State of U.P., (16) SB No.141 of 2017; Amitabh Thakur Vs. Union of India and (17) SB No.30904 of 2017; Amitabh Thakur Vs. State of U.P.

In the year 2018

(1) Contempt No.1807 of 2018; Amitabh Thakur Vs. Arvind Kumar, Principal Secretary (Home), Lucknow, (2) Contempt No.2242 of 2018; Amitabh Thakur Vs. D.P.N. Pandey, S.P., (3) Contempt No.29 of 2018; Amitabh Thakur Vs. Rajiv Kumar, Chief Secretary, U.P. Civil Secretariat, (4) Contempt No.694 of 2018; Amitabh Thakur Vs. Rajiv Gauba Secretary Ministry of Home Affairs, (5) MB No.2718 of 2018; Amitabh Thakur Vs. Uttar Pradesh Information Commission, (6) MB No.34044 of 2018; Amitabh Thakur Vs. U.P. State Information Commission, (7) MB No.34721 of 2018; Amitabh Thakur Vs. Central Information Commission, (8) MB No.35461 of 2018; Amitabh Thakur Vs. State of U.P., (9) MB No.35490 of 2018; Amitabh Thakur Vs. State of U.P., (10) MB No.35862 of 2018; Amitabh Thakur Vs. State of U.P., (11) MB No.444 of 2018; Amitabh Thakur Vs. U.P. State Information Commission, (12) MB No.9595 of 2018; Amitabh Thakur Vs. State Information Commission and (13) MB No.9704 of 2018; Amitabh Thakur Vs. State of U.P.

In the year 2019

(1) Criminal Misc. Application No.2188 of 2019 (U/s 482 Cr.P.C.); Amitabh Thakur Vs. State of U.P. and another, (2) MB No.13435 of 2019; Amitabh Thakur Vs. State of U.P. and (3) MB No.8472 of 2019; Amitabh Thakur Vs. U.P. State Information Commission."

16. It is relevant to point out here that this Court while noticing the fact that the petitioner, who is a senior IPS officer, has filed numerous writ petition in this court, and looking into the entire circumstances, this Court was constrained to direct the Registry vide order dated 09.04.2014 passed in Writ Petition No.2761 (MB) of 2014 (PIL) (Amitabh Thakur and another Vs. Hon'ble Allahabad High Court through its Registrar General and others) not to accept any petition from the petitioner with regard to Public Interest. Considering the great relevancy to the issue involved in the instant writ petition, the order dated 09.04.2014 reads as under:

"1. We have heard Sri Amitabh Thakur - the petitioner No.1, appeared in person.

2. We are informed that the petitioner No.1 Sri Amitabh Thakur is a serving IPS Officer, holding a post of IG rank, and at present he is posted as Joint Director, Civil Defence. By this writ petition, he has prayed for following directions:-

"(a) to kindly issue a writ in the nature of mandamus thereby issuing certain directions to the concerned respondents, as suggested in Para 64 of this Petition or otherwise, as it deems fit by this Hon'ble Court in the interest of justice, so as to ensure that no further strike and/or work boycott and non-appearance by the advocates in their cases before the Hon'ble Courts in the State of Uttar Pradesh takes place and thus the fundamental right of speedy justice granted to the citizen of India gets ensured, as repeatedly stated in extremely forceful manner by the Hon'ble Supreme Court in various cases including Ramon Services Pvt Ltd Vs. Subhash Kapoor and Others [AIR 200 SC 207) and Ex-Capt. Harish Uppal Vs. Union of India and another (AIR 2003 SC 739).

(b). to pass any other order or directions for larger public interest to completely eliminate the current situation of frequent strikes and work boycotts of various kinds being witnessed in different parts of the State of U.P., which this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case."

3. We have enquired from the Registry of the Court, and find that Sri Amitabh Thakur- the petitioner No.1 serving and holding IG Rank post is regularly filing writ petitions in public interest for various causes which are not personal to him. A list of writ petitions filed by him from the year 2012 to 2014 (20 in numbers) is as follows:-

(1) Writ Petition (Misc. Bench) No. 985 of 2012 (Amitabh Thakur - In person); (2) Misc. Bench 987 of 2012 (Amitabh Thakur - In person); (3) Misc. Bench 2002 of 2012 (Amitabh Thakur - In person); (4) Misc. Bench 3153 of 2012 (Amitabh Thakur - In person); (5) Misc. Bench 3489 of 2012 (Amitabh Thakur); (6) Misc. Bench 9359 of 2012 (Amitabh Thakur - In person); (7) Misc. Bench 4055 of 2013 (Amitabh Thakur - In person); (8) Misc. Bench 4600 of 2013 (Amitabh Thakur - In person); (9) Misc. Bench 6801 of 2013 (Amitabh Thakur - In person); (10) Misc. Bench 7295 of 2013 (Amitabh Thakur - In person); (11) Misc. Bench 7955 of 2013 (Amitabh Thakur - In person); (12) Misc. Bench 9660 of 2013 (Amitabh Thakur - In person); (13) Misc. Bench 10662 of 2013 (Amitabh Thakur - In person); (14) Misc. Bench 1518 of 2014 (Amitabh Thakur - In person); (15) Misc. Bench 1554 of 2014 (Amitabh Thakur - In person); (16) Misc. Bench 1767 of 2014 (Amitabh Thakur - In person); (17) Misc. Bench 2008 of 2014 (Amitabh Thakur - In person); (18) Misc. Bench 2367 of 2014 (Amitabh Thakur - In person); (19) Misc. Bench 2761 of 2014 (Amitabh Thakur - In person); (20) Revision Petition 325 of 2014 (Amitabh Thakur - In person).

4. Apart from the above 20 writ petitions, the petitioner No.1 is a co-petitioner in many other cases and has also appeared in person as respondent in Writ Petition (MB) of 2009 and Writ Petition (Service Bench) No.2078 of 2011 filed by the State of U.P.

5. We take strong exception to the conduct of serving IPS Officer in filing writ petitions in Court on various matters in which he does not have personal interest, without obtaining permission from the State Government.

6. It is submitted by Sri Amitabh Thakur that the conduct rules applicable to Government servant including the All India Services (Conduct) Rules 1968, do not require him to obtain permission of the State Government, to file petition in public interest. According to him, he intimates the State Government about filing of the writ petition, and that such intimation is sufficient to exercise his rights in filing the writ petition as citizen of India.

7. He submits that in the present case, he has intimated the State Government of filing of the writ petition in public interest.

8. The petitioner, serving as IPS Officer, is not only bound by the rules of conduct, but should also act in a dignified manner. As a Police Officer, he must possess virtues of highest integrity, honesty and devotion to duty. As a serving IPS officer, he is on duty 24 hours in the day, and has to discharge such functions, and the directions of the State Government or the Central Government under which he is serving. He may not be allowed to take public causes, which do not concern him, and in which the State may be involved - directly or indirectly.

9. In State of Uttranchal Vs. Balwant Singh Chauval and others [2010 (3) SCC 402], the Supreme Court, after considering the right of public interest and after discussing the entire case law on the subject, has held as follows:-

"198. In order to preserve the purity and sanctity of the PIL, it has become imperative to issue the following directions:

(1) the courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations.

(2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this Court immediately thereafter.

(3) The courts should prima facie verify the credentials of the petitioner before entertaining a PIL.

(4) The court should be prima facie satisfied regarding the correctness of the contents of the petitioner before entertaining a PIL.

(5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition.

(6) The Court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions.

(7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation.

(8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations."

10. Rule 7 of the All India Services (Conduct) Rules 1968 provides as follows:-

"7. Criticism of Government.--No member of the Service shall, in any radio broadcast 14 or communication over any public media or in any document published anonymously, pseudonymously or in his own name or in the name of any other person or in any communication to the press or in any public utterance, make any statement of fact or opinion,--

i. Which has the effect of an adverse criticism of any current or recent policy or action of the Central Government or a State Government; or

ii. which is capable of embarrassing the relations between the Central Government and any State Government; or

iii. which is capable of embarrassing the relations between the Central Government and the Government of any Foreign State: Provided that nothing in this rule shall apply to any statement made or views expressed by a member of the Service in his official capacity and in the due performance of the duties assigned to him."

11. In Amitabh Thakur and another Vs. Union of India and others Misc. Bench No. 1518 of 2014, decided on 21.02.2014, a Division Bench of this Court presided by Hon'ble the Chief Justice, dismissed the writ petition filed by the petitioners. The Bench made the following observations:-

5. We are of the view that entertaining a broad and generalized grievance of this nature would clearly lie outside the jurisdiction of the Court under Article 226 of the Constitution. Public interest litigation involves a relaxation of the conventional standards of locus standi which are prescribed by the Court and which are that only a party which has a direct and substantive interest in the outcome of the proceedings should be allowed to present a grievance. Public interest litigation emerged as a vital instrument of promoting access to justice since in a country, such as ours, with a widespread prevalence of poverty, people are ignorant of their rights as a result of social disability and illiteracy among other reasons. Though their fundamental rights are violated they are, for reasons of social disability, unable to move the Court. The relaxation of rules of standing was intended to enure to the benefit of those who are unable to approach the Court for seeking wide-ranging remedies particularly for the protection of their social and economic rights. Victims of injustice often do not have the resources or ability to seek access to justice. While rules of locus standi have been relaxed for entertaining public interest petitions to achieve that object, petitions in public interest cannot result in a deviation from the basic parameters underlying the exercise of jurisdiction under Article 226 of the Constitution. One of the fundamental principles which governs judicial review is the separation of powers by which the power of legislation, administration and judicial review are vested in three separate wings of the State, namely, the legislature, the executive and the judiciary. The action of the legislature can be challenged when legislation is sought to be impugned on the ground that it violates constitutional prohibitions. Similarly, judicial review of administrative action extends to scrutinise whether administrative decisions violate fundamental rights or whether they are contrary to governing legislation whether of Parliament or a State legislature, or of subordinate legislation. As public interest litigation has expanded both in its reach and frequency, a large number of petitions are brought to Court, those which have been filed by the two petitioners being an illustration on point. It is necessary for the Court to continuously bear in mind the necessity to preserve the balance of constitutional powers which the constitution has carefully crafted.

12. A public interest litigation is ordinarily filed where the executive or any statutory body fails to take any action, or does not discharge its functions properly. In a public interest litigation, directions are invariably issued to the Government, to act in accordance with law in the matters, which may concern public interest. In such matters, the directions issued to Central or State Government are likely to cause embarrassment to the persons in powers or the officers who are required to comply with the directions.

13. The petitioner No.1, as a serving police officer, can, in discharge of his duty, serve the Society much better than in filing public interest litigation, seeking orders of the Court in the matters, which do not concern him in discharge of his duty.

14. We do not find that the petitioner No.1 is a busybody, or that any substantial public interest is not involved in this writ petition. The petitioner, however, is an inter-meddler, as he does not appear to have any concern with the cause, espoused in this writ petition. The strikes by advocates have become endemic, and have virtually plagued the judicial system in the State of U.P. The State judiciary looses thousands of working days in an year due to strikes by advocates on the causes, which have no concern with independence of judiciary. The Supreme Court had given several directions in this regard, which are being followed by the High Court and the sub-ordinate courts. The High Court/District Bar Associations and Bar Council of U.P have not responded to curb the strike, and to allow the judiciary to function with its capacity to decide the cases, and reduce pendency in Court.

15. The cause, however, does not concern the petitioner in any manner. One of the major issues concerning the State of U.P is the ineffective and captive police force. A number of writ petitions have been filed in public interest for improving the law and order situation in the State of U.P. The crime figures in the State are rising every year, causing concern of the state of the citizens. The petitioner No.1, as a police officer, instead of discharging his duties to serve the Society, appears to be more interested for issuing directions to the executive of State of which he is a part, in the public interest litigations filed by him.

16. We have strong doubt about the bonafide of the petitioner No.1 in filing so many writ petitions in public interest. He appears to be busy to popularize himself, and to see his name in the newspapers whenever an order is passed by the Court. The tendencies of seeking such popularity by serving police officer should not only be discouraged but should be treated as an act of misconduct on his part.

17. Let the petitioner No.1 produce the written permission of the State Government to file this writ petition, to proceed further in the matter.

18. We direct the Registry of the Court, not to entertain any writ petition in public interest by any serving public servant including the petitioner No.1 - Sri Amitabh Thakur in future - either in person or through counsel, without enclosing written permission given by the competent authority in the State Government.

19. The Registry will comply with the orders.

20. Let a copy of the order be sent to the Chief Secretary of the State Government through learned Chief Standing Counsel of the Court, and to the Central Government, who is the appointing authority of petitioner No.1 through the learned Assistant Solicitor General of India for the Union of India, for considering to issue appropriate directions that without obtaining permission from the competent authority in the State Government, the public servant in the State, will not be permitted to file any writ petition in public interest in which they are not seeking any relief personal to them.

21. The Chief Secretary and Central Government will also examine whether the petitioner Sri Amitabh Thakur, serving as police officer of IG Rank should be allowed to file writ petition in public interest and whether the Central Government and State Government in principle, as a matter of policy, should allow the serving senior officers to file writ petition in the High Court in public interest, in which they may seek directions either directly or indirectly affecting governance by executive in the State/Central Government.

22. Learned standing counsels appearing for the Union of India and State respondents will file reply within four weeks.

23. List on 21.07.2014.

24. Let a copy of this order be given to the learned Senior Registrar of the Court, learned Chief Standing Counsel for the State and learned Assistant Solicitor General of India for the Union of India, for compliance."

17. From the bare perusal of above, we are of the considered view that the performance appraisal report written by the Reviewing Authority with regard to the petitioner is certainly based on the facts and adequate material, and the contention of the petitioner that the said entry has been given without there being any material before the Reviewing Authority, on the face of it is false and is rejected at the very outset. The Reviewing Authority has in fact only followed and endorsed the comments made by the High Court with regard to the petitioner which in the present situation cannot, by any stretch of imagination be held to be either irrelevant or arbitrary or without any application of mind.

18. The petitioner, interpreting the aforesaid performance appraisal report and also by the Reviewing Authority, has tried to make out a case that the same is whimsical, without any material and has been written only to defame the petitioner, and is therefore in his wisdom, preferred a complaint before the Chief Judicial Magistrate, Lucknow against the respondent no.2 for proceeding against him for committing an offence under section 499 IPC. The Chief Judicial Magistrate, Lucknow by the order dated 24.03.2019 has dismissed the complaint only on the ground that the State Government has refused to accord sanction for prosecution of respondent no.2. The said order has not been annexed with the petition, but this fact has been mentioned in paragraph no.5 of the writ petition.

19. It has been consistently held by this Court as well as by the Apex Court that the entire material has to be considered by the competent authority, before forming an opinion whether or not to grant sanction for prosecution, the requirement of sanction for prosecution with regard to the public servants is to protect the public servants from unscrupulous persons who may tend to influence the functioning of the government by levelling false allegations against them.

20. The protection given under Section 197 Cr.P.C. 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. 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 done in discharge of his duty. The provisions of the said section do 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.

21. Hon'ble Supreme Court in the case of State of Bihar Vs. P.P. Sharma; (1992) 1 SCC 222 has observed that the sanction under Section 197 of Cr.P.C. is not an empty formality. It was essential that the provisions therein were observed with complete strictness. The object of obtaining sanction was that the authority concerned should be able to consider for itself the material before the investigating officer, before it came to the conclusion that the prosecution in the circumstances be sanctioned or forbidden. To comply with the provisions of Section 197, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It was desirable that the facts should be referred to on the face of the sanction. Section 197 did not require the sanction to be in any particular form. If the facts constituting the offence charged were not shown on the fact of the sanction, it was open to the prosecution, if challenged, to prove before court that those facts were placed before the sanctioning authority. It should be clear from the form of the sanction that the sanctioning authority considered the relevant material placed before it and after a consideration of all the circumstances of the case sanctioned the prosecution.

22. In the instant writ petition, the petitioner nowhere even states that any fact or any material, which was necessary to be considered by the Sanctioning Authority, was not considered and the said order is without application of mind with regard to the fact as mentioned in the report of

Reviewing Officer against which the petitioner is actually aggrieved is "The general impression about the officer is that he is extremely litigacious and on many occasions has created embarrassing situations for the government." It has specifically been asked from the petitioner whether there is any factual error in the statement made in the Annual Confidential Remarks. The Counsel for the petitioner has fairly submitted that the petitioner had approached the Court on various occasions mostly for his personal grievances as well as in the matter of general public but the period, which has been reported in the Performance Appraisal Report (PAR), the petitioner has neither filed any Public Interest Litigation nor any petition for his personal grievance.

23. In the case of Yogendra Kumar Jaiswal Vs. State of Bihar; (2016) 3 SCC 183, Hon'ble Supreme Court held as under:

"185. It is contended that the grant of sanction is not an empty formality and there has to be application of mind in support of the said sanction. We have been commended to Mansukhlal Vithaldas Chauhan v. State of Gujarat [(1997) 7 SCC 622: 1997 SCC (Cri) 1120: 1997 SCC (L&S) 1784] wherein a two Judge Bench while dealing with grant of sanction has observed:

"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority [See also Jaswant Singh v. State of Punjab; AIR 1958 SC 124: 1958 Cri LJ 265 and State of Bihar Vs. P.P. Sharma; 1992 Supp (1) SCC 222: 1992 SCC (Cri) 192].

19. Since the validity of ''sanction' depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority ''not to sanction' was taken away and it was compelled to act mechanically to sanction the prosecution."

186. In State of Karnataka v. Ameerjan [(2007) 11 SCC 273: (2008) 1 SCC (Cri) 130], while dealing with the grant of sanction, it has been held thus:

"9. We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.

10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie established existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced.""

24. On the basis of the submission made by the learned Counsel for the petitioner, it is clear that there is no factual error in the entry recorded by the Reviewing Officer as the petitioner had in fact approached this Court on numerous occasions. The second part of the statement whether such orders passed by this Court creates embarrassing situation for the Government, it is for the Government to consider and to take call on such a situation. It is not for the petitioner to make a statement that any order passed against the Government is not embarrassing. As to whether, the petitioner has filed cases and can be called extremely litigacious can be determined from the number of writ petitions filed by him, the detail of which is maintained by the Registry of this Court and is also available on the website of the High Court.

25. From the perusal of the aforesaid, it is clear that the petitioner had in fact approach this Court on numerous occasions and mere fact that this fact finds mention in his Annual Confidential Remarks cannot be said to be factually incorrect or defamatory in any view of the matter.

26. It has been stated that the said entry has been made in official capacity and there is no bias or any mala fide in writing the said report with regard to the petitioner and such an action taken by the opposite party no.2 is protected under the exceptions provided under Section 499 of IPC. It may be added that this report being a confidential report, it is not liable to be made public and in absence of any publication, the ingredients of Section 499 of IPC are not made out and, therefore, unless the material is published, there cannot be any charge of defamation. This aspect has been duly considered while rejecting the application of the petitioner.

27. Considering the entire argument of the petitioner as well as after perusal of the report, it is clear that the Government has passed a detailed order rejecting the application of the petitioner for prosecution sanction moved under Section 197 of Cr.P.C.

28. Learned Counsel for the petitioner could not factually assail the said entry as to whether the petitioner is not a litigacious person and whether his acts has not caused embarrassment to the Government. As averred above, the aforesaid entry has been made in pursuance to the statutory duties cast upon the opposite party no.2 to write the Annual Confidential Report of the Officers in pursuance to the statutory provisions.

29. It may further be added that the opposite party no.2 in exercise of his public function as a Government servant has made the said entry, which has already been discussed above, which is primarily to judge the performance of the Government servant and to enhance their performance in case, it is found wanting in any manner whatsoever. It is always open for the aggrieved person, who is adversely reported upon, to challenge the entries by means of representation as per provisions of the Service Rules. In the case at hand, the petitioner has already moved a representation against the said adverse entry, which is pending before the competent authority, and moving a criminal complaint would not be a proper remedy against an adverse entry. In case this is permitted it will have catastrophic effect on the functioning of the bureaucracy, and every senior officer would shudder in giving any adverse entry to any of the subordinates.

30. While concluding, we would like to record our displeasure with regard to the fact that the petitioner who is a very senior public servant, a member of the All India Service, and holding the post of Inspector General of police, would attempt to initiate criminal proceedings against the Principal Secretary (Home), Government Uttar Pradesh in a matter which on the face of it discloses the routine Annual Appraisal Report and truly reflects the manner and style of functioning of the petitioner. This, in our opinion, cannot form a basis for launching criminal proceedings. Instead of proceeding to amend himself in light of the report of the Reviewing Officer, the petitioner has over zealously attempted to initiate criminal proceedings against another senior member of the State Bureaucracy. These set of facts as brought forth in this petition do not disclose a healthy trend in the functioning of the state bureaucracy. This court on the earlier occasion has undoubtedly commented adversely on the litigatious behaviour of the petitioner, but it seems to have little effect on his persona. On examining the issue in its entirety and looking into the background of the petitioner, this Court would have dismissed the present writ petition with exemplary cost but we refrain ourselves from imposing the same with the hope that the petitioner would pious efforts to mend his ways.

31. In the light of the above, the writ petition lacks merit and is hereby dismissed.

Order Date :- 10.5.2019

akverma