S.K. Srivastava vs Uoi & Ors.
2011 Latest Caselaw 3049 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 15th June, 2011
+                                  W.P.(C) 4326/2011

         S.K. SRIVASTAVA                                      ..... Petitioner
                       Through:           Ms. Jyoti Singh, Sr. Advocate with
                                          Mr. S.K. Gupta & Mr. H.P. Singh,
                                          Advocates
                                   Versus
         UOI & ORS.                                          ..... Respondents
                            Through:      Ms. Preeti Dalal, Adv. for R-1.
                                          Mr. Saqib, Adv. for R-1&3.
                                          Mr. Vikas Singh, Sr. Advocate with
                                          Ms. Amrita Narayan, Adv. for R-4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may                     No
         be allowed to see the judgment?

2.       To be referred to the reporter or not?             No

3.       Whether the judgment should be reported            No
         in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition seeks setting aside / quashing of the recommendations

of the empowered Committee of Secretaries for appointment to the post of

Member, CBDT qua respondent no.4 Sh. S.S. Rana (IRS 75014) and

respondent no.6 Ms. Sudha Sharma (IRS 76007). The petition also seeks

setting aside and quashing of the Vigilance Clearance issued to the said Sh.

S.S. Rana and Ms. Sudha Sharma, on the ground of the same being

patently illegal.

2. The petitioner has pleaded:

         (i)       That the petitioner himself is an IRS officer;


         (ii)      That the respondent No.4 Sh. S.S. Rana had between the years

1988-1990 conducted search and seizure operations in the

premises and business of Sitani Group and detected and seized

documents and other evidences of large scale tax evasion and

money laundering;

(iii) That Sh. S.S. Rana however handed over the appraisal report

and seized material to the petitioner who was the Assessing

Officer, only on 23rd March, 1992 when the limitation for

passing assessment orders was to expire on 31st March, 1992;

leaving virtually no time with the petitioner to pass the

assessment order;

(iv) That even though the delay as aforesaid was attributable to Sh.

S.S. Rana but the petitioner was imputed with gross

negligence and unlawful conduct, for not passing the

assessment order in the case of Sitani Group by 31 st March,

1992;

(v) That the petitioner was made the scapegoat to protect and

cover up the corrupt practices of Sh. S.S. Rana, while no

action was taken against Sh. S.S. Rana;

(vi) That the petitioner was thereby implicated in false vigilance

cases;

(vii) That Sh. S.S. Rana and Ms. Sudha Sharma thus do not posses

high professional merit and excellence and cannot be called to

be persons of impeccable integrity;

(viii) "That serious allegations of corruption and gross misconduct

are pending against Sh. S.S. Rana and Ms. Sudha Sharma and

to inquire into those imputations of misconduct and

allegations, Government has set up inquiries by Inquiry

Committees comprising subordinate officers of CBDT

wherein Sh. S.S. Rana and Ms. Sudha Sharma are being

appointed and whereby they would be controlling those

inquiries". Reference is made to "one man Inquiry Committee

of Sh. Akhilesh Prasad, CCIT, Delhi III, New Delhi

(Annexure S-3) to enquire into allegations by petitioner

against other officers that include Sh. S.S. Rana and Ms.

Sudha Sharma" and to "Inquiry Committee headed by Smt.

Poonam Kishore Saxena, Member (A&J), CBDT (Annexure

S-4) and comprising of Ms. Pramila Bhardwaj, Commissioner

of Income Tax (CIT) and Sh. Virendra Singh, CIT to enquire

into allegations by petitioners and allegations against the

petitioner";

(ix) The petitioner has earlier filed Cr.W.P. No.876/2011 for

directing CBI to register FIR and investigate under Prevention

of Corruption Act, 1988 to determine illegal loss and likely

loss in excess of `100 crores to the Public Exchequer;

(x) That CAT Bar Association has also found gross misconduct

overreaching the process of administration of justice and

obstruction of justice delivery system by Sh. S.S. Rana and his

accomplices and have reported the same to the Chairman,

CAT etc.;

(xi) That mischief and manipulation of Sh. S.S. Rana and Ms.

Sudha Sharma stand judicially determined in judgment dated

28th April, 2011 in C.W.P. No.7880/2010, copy whereof is

filed as Annexure S-6 to the writ petition;

(xii) That Ms. Sudha Sharma as DGIT (Vig.) and as CVO, CBDT

protected and sheltered Sh. S.S. Rana and has colluded with

him;

(xiii) Reference is made to various judgments to contend that in

exercise of judicial review the Courts can determine whether

the incumbent possesses qualifications for appointment and

whether the manner of appointment was fair, just and

reasonable and on the proposition that the post of Member,

CBDT is a ex-cadre selection post;

(xiv) The petitioner has in the list of dates stated that on 23rd

November, 2010 "Government set up Inquiry Committee to

enquire into allegations by petitioner against officers like Sh.

S.S. Rana, etc." and that on 28th April, 2011 "Government set

up another Inquiry Committee under Smt. Poonam K. Saxena

to inquiry into allegations by petitioner against officers like

Sh. S.S. Rana, Ms. Sudha Sharma, Sh. Prakash Chandra etc."

3. The senior counsel for the petitioner has during the hearing stated

that the recommendations of the Committee of Secretaries for appointment

of Sh. S.S. Rana and Ms. Sudha Sharma as members CBDT are now

pending consideration before the Appointments Committee of the Cabinet.

She has further referred to the Central Board of Direct Taxes (Chairman

and Members) Recruitment Rules, 2006 which prescribe essential

qualification inter alia of " Having impeccable reputation of integrity" for

deputation/absorption as member of CBDT. She has vehemently argued

that once two inquiries as aforesaid are pending against Sh. S.S. Rana &

Ms. Sudha Sharma, they cannot be said to be having reputation of

impeccable integrity and there is obviously an error in the recommendation

of the Committee of Secretaries and in report of vigilance inquiry done qua

the said persons and which is required to be corrected by this Court in

exercise of judicial review. Reliance is placed on para 43 of judgment

dated 3rd March, 2011 of the Apex Court in W.P.(C) No.348/2010 titled

Centre for PIL Vs. Union of India and which in turn refers to Hari Bansh

Lal Vs. Sahodar Prasad Mahto (2010) 9 SCC 655 where the challenge

was made on the ground of the selectee being a person of "doubtful

integrity". The senior counsel has contended that even though the report of

the two inquiries aforesaid against Sh. S.S. Rana & Ms. Sudha Sharma has

not been submitted yet but the very pendency of inquiries against them

would make them persons of doubtful integrity and by no means can they

be said to be having impeccable reputation of integrity.

4. The Apex Court in the judgment dated 3rd March, 2011 (supra) also

held that a writ of quo warranto lies only when the appointment is contrary

to a statutory provision; else suitability of a candidate for appointment to a

post is to be judged by the Appointing Authority and not by the Court,

unless the appointment is contrary to the statutory rules / provisions.

5. It was thus enquired from the senior counsel, whether the Court can

interfere with the decision of the Committee of Secretaries and the

Vigilance Department, of Sh. S.S. Rana & Ms. Sudha Sharma having

impeccable reputation of integrity in as much as while this Court is not

equipped to know the reputation enjoyed by Sh. S.S. Rana & Ms. Sudha

Sharma, the Committee of Secretaries is expected to have, by making

inquiries and on the basis of record, reached a conclusion that they are

enjoying impeccable reputation of integrity.

6. The senior counsel however contends that owing to the pendency of

two inquiries aforesaid, the recommendation for appointment is in

violation of the Rules aforesaid and thus this Court ought to interfere.

7. I may mention that though the senior counsel in the list of cases

handed over has also mentioned Registrar, Cooperative Societies Vs. F.X.

Fernando (1994) 2 SCC 746 and to the judgment dated 20th July, 2010 of

this Court in W.P.(C) No.8216/2009 titled Raghubir Singh Vs. UOI but no

reference / reliance during hearing was placed on the two judgments

aforesaid.

8. The senior counsel for the respondent No.4 Sh. S.S. Rana appearing

on advance notice has vociferously contended that the petitioner has

blatantly misrepresented facts in the list of dates and in the writ petition

and sought to create an impression as if the two inquiries aforesaid are

against Sh. S.S. Rana. He contends that the counsel for the petitioner has

argued also on the same lines, when the documents filed as annexures to

the petition do not support the averments in the petition. It is further

contended that it has been mischievously stated in the list of dates that the

inquiries are against officers "like" Sh. S.S. Rana & Ms. Sudha Sharma.

The senior counsel has taken me to Annexure S-3 to the petition being the

letter dated 23rd November, 2010 of the Deputy Commissioner of Income

Tax (Vig.) to the petitioner. It is contended that the vital enclosure to the

said letter is intentionally suppressed. The senior counsel has handed over

the said enclosure being the Memorandum dated 9th November, 2010 of the

CBDT qua holding of preliminary confidential inquiry in respect of

allegations against officers made by the petitioner. With reference thereto,

it is shown that the same nowhere concerns Sh. S.S. Rana or Ms. Sudha

Sharma. Similarly with reference to Annexure S-4 being the Office

Memorandum dated 28th April, 2011 of CBDT, it is again shown that the

other inquiry is also not against Sh. S.S. Rana and Ms. Sudha Sharma. He

has thus contended that an entirely false case has been urged, of inquiries

pending against Sh. S.S. Rana & Ms. Sudha Sharma. It is further contended

that the petitioner is a highly litigious person who has filed as many as 31

cases against various officials of the department. A list of such cases is

handed over. It is thus contended that no case for judicial review is made

out and the petition ought to be dismissed with exemplary deterrent costs

on the petitioner.

9. Though the senior counsel for the petitioner in rejoinder attempted to

faintly urge that in the two inquiry proceedings aforesaid, inquiry is to be

made into allegations by the petitioner against all concerned but the said

argument cannot be accepted. The name of Sh. S.S. Rana & Ms. Sudha

Sharma does not find mention anywhere in the documents filed of the

inquiry. The argument that even though their names do not find mention,

but since the petitioner is making allegations against them also, the inquiry

would be against them also is preposterous and cannot be accepted.

Without the Inquiry Officer having been directed to look into the

allegations against Sh. S.S. Rana & Ms. Sudha Sharma, Inquiry Officer

would be incompetent to do so.

10. Similarly though reference to the judgment dated judgment dated

20th July, 2010 of this Court in W.P.(C) No.8216/2009 (supra) has been

made but it has not been shown as to how the same in any manner indicts

Sh. S.S. Rana & Ms. Sudha Sharma. The representation of CAT Bar

Association to Chairman CAT, cannot also be the basis for this Court to

interfere when that Bar Association is not even before this Court.

11. The senior counsel for the petitioner lastly falls back on W.P.(CRL)

No.876/2011 in which notice has been issued. However, no copy even of

the said writ petition has been filed for this Court to form an opinion as to

what are the allegations, if any, therein of the petitioner.

12. I am not willing to adjourn the matter on the said ground, without

the petitioner having been able to make out a case inspite of the petitioner

himself personally present in the Court and briefing the counsel and

without the petitioner having been able to place any material before the

Court. Keeping the writ petition, of the nature as the present one, pending

can play havoc with the careers of others under consideration for

appointment to high offices. The petitioner, admittedly entertaining a

personal grievance and vengeance against Sh. S.S. Rana & Ms. Sudha

Sharma, without making out a case against them, cannot interfere with the

process of their deputation/absorption/promotion/appointment by casting a

cloud as to their eligibility by merely keeping such petition pending.

13. The Supreme Court in Ashok Kumar Pandey v. State of West

Bengal (2004) 3 SCC 349 though in relation to PILs held that the same are

to be admitted with great care for redressal only of genuine public wrong

or public injury and not for the redressal of private, publicity oriented or

other disputes not genuinely concerned with public interest. It was further

held that Courts should be watchful that no one‟s character is besmirched

and that justifiable executive actions are not assailed for oblique motives;

the Court has to be extremely careful that it does not encroach upon the

sphere reserved by the Constitution to the executive and the legislature;

Court has to strike balance between two conflicting interests: (i) nobody

should be allowed to indulge in wild and reckless allegations besmirching

the character of others; and (ii) avoidance of public mischief and to avoid

mischievous petitions seeking to assail, for oblique motives, justifiable

executive actions. It was further held that the Court cannot afford to be

liberal. Similarly in Secretary, Minor Irrigation & Rural Engineering

Services, UP v. Sahngoo Ram Arya (2002) 5 SCC 521 it was held that the

High Court must reach a conclusion on the basis of pleadings and material

on record that a prima facie case has been made out against a person and

merely because a party has made allegations against a person, High Court

cannot direct investigation.

14. Even though the present is not a PIL but since the petitioner is

admittedly not competing with Sh. S.S.Rana and Ms. Sudha Sharma for the

post of Member, CBDT, and even though out of personal vendetta is

impugning the process of selection of Sh. S.S. Rana and Ms. Sudha

Sharma as contrary to public interest, the above principles would apply.

15. In this regard it may also be noticed that the senior counsel for the

petitioner has lastly urged that if all the records are summoned relating to

the Sitani Group, the petitioner would be able to demonstrate therefrom

that Sh. S.S. Rana has helped the Sitani Group to evade tax in excess of

`1000 crores and that Ms. Sudha Sharma protected Sh. S.S. Rana. It is

contended that the said records cannot be available with the petitioner.

16. However, a writ petition cannot be entertained to allow the petitioner

to commence a roving and fishing inquiry. Reference in this regard may

be made to a) Prakash Vir Shastri v. UOI AIR 1974 Delhi 1; b) AGR

Investment Ltd. v. Addl. Commr. of Income Tax 176 (2011) DLT 703; c)

A.Hamsaveni v. State of Tamil Nadu (1994) 6 SCC 51; d) N.K. Singh v.

UOI (1994) 6 SCC 98 & (e) Sadananda Halo v. Mumtaz Ali Sheikh

(2008) 4 SCC 619. Moreover, the petitioner himself is working in the same

department and from the documents annexed to the petition, appears to

have access to whatsoever documents he requires. Further in the present

day times of Right to Information, the failure of the petitioner to place any

material before this Court can lead to only one inference that the petitioner

is not possessed of any such material and had he been so possessed, he

would have placed the same before the Court in the first instance itself.

17. As aforesaid, it is not the job of this Court to determine whether Sh.

S.S. Rana & Ms. Sudha Sharma enjoy impeccable reputation of integrity.

The petitioner as aforesaid has failed to place any material before this

Court to show that they do not.

18. There is thus no merit in the petition; the same is dismissed. Though

the petitioner is found guilty of making a false façade of inquiries pending

against Sh. S.S. Rana & Ms. Sudha Sharma and of having gone to the

extent of pleading that appointment of Sh. S.S. Rana & Ms. Sudha Sharma

as members of the CBDT would place them above the Officers inquiring

against them and which pleas have turned out to be blatantly false but since

the writ petition is dismissed in limine, I refrain myself from imposing any

costs on the petitioner. The petitioner is however warned to be careful in

future of the pleas made and the arguments taken before the Court.

RAJIV SAHAI ENDLAW VACATION JUDGE JUNE 15, 2011 „gsr‟..