Delhi High Court
The State Of Bihar Through Its ... vs Dr. Jitendra Gupta & Anr. on 2 July, 2019
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 29th March, 2019
Pronounced on: 2nd July, 2019
+ W.P.(C) 5648/2018 & CM APPL 22046, 27458 & 32283/2018
THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY
..... Petitioner
Through: Mr. Devashish Bharukha, Addl.
Standing Counsel with Mr. Justine
George, Advocate
versus
DR. JITENDRA GUPTA & ANR. ..... Respondents
Through: Mr. Sachin Datta, Sr. Advocate with
Mr. Sourabh Ahuja, Advocate for R-1
Mr. Arun Bhardwaj, Advocate for R-2
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MS. JUSTICE JYOTI SINGH
JYOTI SINGH, J.
1. The present writ petition has been filed by the State of Bihar, assailing
the order passed by Central Administrative Tribunal, Principal Bench, New
Delhi, dated 22.3.2018, by which the learned Tribunal has allowed the O.A.
of respondent no. 1 herein and has directed respondent no. 2 herein/Union of
India to consider the case of the applicant/respondent no. 1 for inter-state
deputation to the State of Haryana under Rule 5(2) of IAS Cadre, Rules
1954, or for Central Government deputation under Rule 6 of the said Rules.
Vide the same order, respondent no. 2-who is the petitioner herein, has been
directed not to withhold its consent for the deputation, and to communicate
its consent to the Union of India, whereafter Union of India has to issue
appropriate orders for inter-state deputation to Haryana or Central
deputation, as deemed fit, after obtaining approval of the ACC.
2. The applicant in the O.A. (who is respondent no. 1 herein) is a 2013
Batch IAS Officer of Bihar Cadre. In December, 2015 he was posted as
Sub-Divisional Officer/Sub-Divisional Magistrate in Mohania Sub-Division
of Kainoor District of Bihar.
3. The case of Respondent No. 1 as pleaded in the O.A. was that the
State of Bihar was afflicted with the menace of overloading of heavy
vehicles. The transporters in connivance with some State Officials were
permitting overloaded vehicles to ply on roads and this was causing fatal
accidents leading to loss of human life, besides pollution, as well as damage
to roads, highways, bridges and other properties. Vide letter dated
23.10.2013, the Transport Department authorized the SDOs of the State to
take measures to curb the menace. Unfortunately, another illegal practice
rampant in the State was that the police officials were stopping the trucks
and heavy vehicles on NH-2 and unnecessarily challaning them. This
unauthorised seizure and parking of the trucks and other vehicles was
hindering the ongoing work of widening of NH-2, besides causing fatal
accidents on daily basis. In fact, NHAI had through several letters, brought
this to the notice of the concerned SPs and DSP, but police authorities chose
not to take any action.
4. Respondent no. 1 being a dutiful officer chose to carry out the
directives issued to him with all sincerity. In the lawful exercise of his
duties, he took stern action against the transport mafia and other wrong doers
and was successful to a large extent in controlling the menace of illegal
parking and overloading of the heavy vehicles.
5. This action by respondent no. 1 antagonised the transport mafia and
thus it was the case of the applicant in the OA, that this led to the mafia
hatching a conspiracy along with the Vigilance Bureau of the State Govt, to
get him out of their way. This led to a false complaint being made against
respondent no. 1 on 08.07.2016. The author of the complaint was a
notorious mafia called Arvind Kumar Singh, who is a known criminal of
Mohania and is a named accused in several FIRs, and has been in Jail for
serious socio-economic crimes.
6. It was the case of respondent no. 1 that without permission of the
competent authority, or a search warrant, the Vigilance Bureau searched his
official residence in the night of 12.07.2016 and arrested him in the
midnight. An FIR was lodged at Police Station, Patna, under Sections 7, 8,
13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
The sum and substance of the allegations in the FIR was that respondent no.
1 had demanded money for release of the seized vehicles and on search, in a
trap case, incriminating documents were found in his house. He suffered
incarceration for several days.
7. Following the arrest, respondent no. 1 was placed under suspension on
20.07.2016. Chargesheet was framed on 08.12.2016 in departmental
proceedings against him. However, the IAS Officers‟ Association, Bihar
Branch protested against the illegal arrest and the high-handed action of the
Vigilance Bureau, at the instance of the mafia, and a memorandum was
submitted in this regard to the State of Bihar.
8. The FIR was challenged by respondent no. 1 before the High Court of
Patna in Criminal Writ Jurisdiction Case No. 1000/2016, which was allowed
and vide judgment dated 28.10.2016, the FIR was quashed. Relevant
extracts of the judgment are as under:
"7. The petitioner's side has drawn my attention to certain
documents like gate receipts issued by the Government of
Jharkhand, which show that the truck, in question, could not
have been at the place alleged in the morning of 03.07.2016
and it has, therefore, been argued that the documents go to
show that the whole case of the prosecution is based on
falsehood and its continuance, therefore, so argued the
learned counsel, would amount to abuse of the process of the
court. As I proceed further, it would transpire that even the
State concedes no occurrence, as alleged in the FIR, had
taken place in the morning hours of 03.07.2016. The State,
thus, I must hasten to point out, admits that the alleged
occurrence of taking away of the document of the vehicle by
the petitioner or his associates is completely false.
xx xx xx xx
26. At this juncture, the ratio, laid down in the case of State
of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, may be
profitably invoked, wherein the Supreme Court while
summarizing the discussion in paragraph 102, held against
clause No. 5 that where the allegations made in the FIR or
complaint are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just conclusion
that there is sufficient ground for proceeding against the
accused, a case for quashing is made out. When the
improbability of events, taking place on 03.07.2016, was
brought to the notice of Court an attempt was made to change
the very date of occurrence of offence.
xx xx xx xx
31. Because of what has discussed and pointed out above,
this Court is clearly satisfied that the FIR and the
consequential investigation so far as the same relate to the
present petitioner are concerned, it would be nothing but
abuse of the process of Court. Necessarily, therefore, the FIR
and the investigation so far as the same relate to the present
petitioner need to be set aside and quashed.
32. In the result and for the foregoing reasons discussed
above, the writ petition succeeds and the FIR, along with its
consequential investigation, are hereby set aside and quashed."
(emphasis supplied)
9. This judgment was challenged by the State Government before the
Hon‟ble Supreme Court in Special Leave to Appeal (Crl.) No. 805/2017
which was dismissed at the admission stage, vide order dated 06.02.2017.
Pursuant to the orders of the Courts, the State of Bihar, vide order dated
21.04.2017, reinstated respondent no. 1 in service; withdrew the
departmental proceedings against him, and regularised the period of
suspension and incarceration as period "spent on duty".
10. Respondent no. 1 apprehended that there was a danger to his life and
liberty, as he had taken the mafia head on, and the Police machinery was
against him. He, therefore, made repeated requests to deploy a bodyguard to
protect him. The Principal Secretary and the District Collector wrote letters
recommending the deputation of a bodyguard, as the need to protect
respondent no. 1 was perceived. However, no protection was granted.
Faced with this situation, Respondent No. 1 made a representation dated
21.03.2017 to the Central Government, with copy to the State of Bihar,
seeking inter-cadre transfer from Bihar to Haryana cadre, under the
provisions of Rule 5(2) of the IAS (Cadre) Rules, 1954. This representation
also achieved no success and therefore, respondent no. 1 fearing danger to
his life and that of his family members, filed a petition under Article 32 of
the Constitution of India before the Supreme Court of India bearing W.P.(C)
338/2017. Vide order dated 09.05.2017, the Supreme Court directed the
Central Government to look into the grievances of Respondent No. 1 and
take appropriate action within three months from the date of the order.
Further time of three months was sought by the Government to take a
decision and the same was granted by the Supreme Court.
11. In order to process the matter further, the Central Government sought
the consent of the State of Haryana. Significantly, the State of Haryana
conveyed its „no objection‟, vide letter dated 07.08.2017 for inter-cadre
transfer to Haryana cadre.
12. However, the Central Government vide its order dated 06.12.2017,
declined to permit inter-cadre transfer of the Respondent No. 1. This led to
his filing an OA bearing No. 292/2018 before the learned Tribunal. The
following prayers were made in the OA:
"(i) quash and set aside the impugned order dated 6.12.2017
(Annexure A-1), as being unjust, arbitrary and unsustainable;
(ii) direct respondent no. 1 to forthwith approve the inter-cadre
transfer of the Applicant on a permanent basis to Haryana Cadre, in
view of the "extreme hardship" faced by the Applicant and the
concurrence accorded by the State Government of Haryana dated
7.8.2017."
13. Before the learned Tribunal, respondent no. 1 pleaded that in terms of
Rule 5(2) of the IAS (Cadre) Rules, 1954, inter-cadre transfer could be
permitted on grounds of „extreme hardship‟ and in his case, there was
persistent threat to his life, in the State of Bihar. He pleaded that on account
of having taken the mafias and the conniving officials of the State
Government head on, and curbing the menace that was going on, respondent
no. 1 had now become their target and that there was a serious apprehension
in his mind that his life and liberty was in danger. His family members,
according to him, were also not safe and this was resulting in a lot of mental
anguish to him, leading to health problems. The education of his children
was also suffering and thus he should be moved out of the State of Bihar.
14. As the facts go, the Central Government had sought opinion from the
Intelligence Bureau (IB) in regard to the threat perception of respondent no.
1 and was informed that no specific threat could be established during the
discreet inquiries. The State of Bihar withheld its concurrence for the inter-
cadre transfer of respondent no. 1. The contention of respondent no. 1,
before the Tribunal, thus was, that withholding of the consent, coupled with
the fact that while his reporting officer had given him 9.81 marks on a scale
of 10 in his APAR, the reviewing authority in Patna had downgraded it to 6,
reflected the extreme bias of the State against respondent no. 1. Another
argument was that despite the IB report, the Secretary, DoP&T found merit
in the grievance of respondent no. 1 and had recommended for approval of
his inter-cadre transfer by the competent authority. He also contended, that
the fact that the High Court of Patna had quashed the FIR, and the order was
upheld by the Supreme Court was a pointer to the fact that false and
frivolous allegations had been made against the applicant, to falsely
implicate him and he was now an eyesore to the mafia and the colluding
officers in the State. Article 14 of the Constitution of India, according to the
applicant, was violated in his case, inasmuch, as, while several other officers
had been allowed change of cadre on grounds which were of a lesser
„hardship‟, his case was being resisted out of sheer vendetta. He also pointed
out names of several such officers whose inter-cadre transfers were allowed.
15. The respondents had filed separate replies before the learned Tribunal
and had contested the case of the applicant. The stand of the State of Bihar
was that they had forwarded the case of the applicant to the Central
Government after offering their comments that there was no threat to
respondent no. 1 which, in-turn, were based on the report of the Home
Department of the State of Bihar, and it was the Central Government which
had rejected the request of respondent no. 1.
16. The Central Government contested the case by stating that the change
of cadre of an IAS officers is governed by Rule 5(2) of the IAS (Cadre)
Rules, 1954 and read with OM dated 08.11.2004. There were certain
parameters to assess the grounds of extreme hardship. The proposal was
placed before the Committee headed by Secretary (Personnel), and the
Committee had directed to seek an IB report regarding the threat perception.
Since the IB had reported on 15.05.2017 that there was no specific threat,
rather, there were doubts about the financial integrity of respondent no. 1, a
decision was taken to reject the request of respondent no. 1 for inter-cadre
transfer. It was submitted by the Central Government that, however, the
proposal was again placed before the Committee in its meeting held on
17.08.2017 and this time the Committee, after detailed deliberations,
recommended inter-cadre deputation from Bihar cadre to Haryana cadre for
a period of three years. The recommendation was, however, rejected by the
ACC vide the impugned order dated 06.12.2017. Justifying the decision, it
was submitted that cases have to be decided on a case to case basis and there
is no vested right in any officer to seek change of cadre.
17. The learned Tribunal, after going through the records and the
pleadings, came to the conclusion that the apprehension of respondent no. 1
that there was a threat to his life and liberty, was not unfounded. The IB
report was discarded by the learned Tribunal as the same appeared to be far
from the ground realities, and rather smacked of mere rumours. The
Tribunal took note of the recommendations for protection in favour of
respondent no. 1, made by the Principal Secretary, Department of
Environment and Forests, the District Collector, Patna, as also the fact that
the FIR against him was quashed by the Patna High Court and order was
upheld by the Apex Court. In fact, the Tribunal after narrating the chequered
history of the case, observed that if respondent no. 1 was not taken out of
Bihar, it could be a repeat of the Satyendra Dubey murder case, where a
young engineer serving the Government department had lost his life in
Bihar, on being murdered by the construction mafia. The Tribunal gave a
categorical finding that from the records, they were convinced that the
threats to respondent no. 1 warranted that he be pulled out of Bihar. The
Tribunal also commented on the special and extraordinary resistance shown
by the State of Bihar to let go respondent no. 1. In the special facts of the
case, the Tribunal directed the Central Government to consider the case of
respondent no. 1 for inter-state deputation to Haryana under Rule 5(2) of the
IAS (Cadre) Rules, or for Central Government deputation under Rule 6 of
the said Rules, with a further direction to the State of Bihar not to withhold
its consent and communicate the same to the Central Government.
18. Before we deal with the contentious issues in the present case, two
significant facts need to be noted at the outset. When the present writ
petition came up for admission on 25.05.2018, learned Senior Counsel
appearing for the State of Bihar stated that the grievance of the petitioner
was being confined to the directions issued in para 22(iii) of the impugned
order, which was to the effect that the State of Bihar shall not withhold its
consent and communicate the same to the Central Government. The counsel
for the Central Government on advance notice, on instructions, had
categorically stated that the Union of India did not propose to challenge the
impugned order and, instead, was willing to make compliances, upon the
State of Bihar communicating its consent. As a matter of record, Union of
India has not filed any writ petition to assail the impugned order of the
Tribunal, even though there are directions issued by the Tribunal against
UOI.
19. At the initial stage of these proceedings, the controversy that needed to
be adjudicated was whether the Tribunal could have directed the State of
Bihar to convey its consent to the Central Government for inter-cadre
transfer/deputation of respondent no. 1. However, with the passage of time
and the subsequent developments in this case, which we note hereinafter, this
controversy has, in fact, taken a backseat.
20. On 16.07.2018, this Court had directed the petitioner to produce the
relevant records, since it was stated by the learned Senior Counsel for the
petitioner that it was the IB report which had revealed that there was no
threat perception to respondent No.1 this had formed the basis of such a
decision. On 22.11.2018, the matter was heard for some time and the records
of the GAD, State of Bihar and IB of the Central Government were directed
to be kept available for perusal of the court, so as to see, how the exercise of
threat assessment had been undertaken. On 11.12.2018, after some hearing,
the records were retained by this Court, for a detailed perusal and the matter
was adjourned for further consideration.
21. On 18.01.2019, arguments were heard for some time but remained
inconclusive. However, counsel for respondent No. 1 pointed out that the
salary of respondent No. 1 has not been paid to him since July 2017 on the
ground that he has not reported for duty in the State of Bihar. He submitted
that there was no stay of the order of the learned Tribunal. Looking into the
facts of the case, this Court had directed that the salary and the allowances be
released to respondent No. 1 along with all arrears, and the petitioner was
directed to continue to pay the same in future as well. We had also observed
that it was open to the petitioner-State of Bihar, to avail his services in any
establishment at Delhi.
22. We must now refer to a significant development which took place on
22.02.2019, when the matter was listed for further arguments. The records
which had been perused by us revealed that, primarily, the conclusion of the
IB that there was no threat perception, was based on the fact that no
untoward incident had either occurred, or had been reported by respondent
No. 1. It was also noticed in the report that neither respondent No. 1, nor
any member of his family had filed any complaint, or an FIR, alleging any
incident having occurred, and so there was no cause for any apprehension in
the mind of Respondent No. 1 that his life was in danger. We found that the
whole premise of the IB report was flawed and, thus, the decision of the
State of Bihar to withhold its consent on such a report was arbitrary, as threat
perception is an apprehension that a particular event is likely to occur, based,
of course, on a certain foundation, and not, when the event actually happens.
The incident involving false implication of Respondent No. 1 in a corruption
case by the Mafia - with the active connivance of the Vigilance Branch of
the State of Bihar, was not even considered while assessing the threat
perceived qua respondent No. 1.
23. We had categorically asked the learned counsel for the petitioner to
address arguments on this aspect. Confronted with the findings in the report,
the counsel submitted that he would take up the matter with the Secretary,
Home Department, State of Bihar and hold consultations, in the hope that the
matter is resolved at their level. Reposing faith in the statement made by
learned counsel, we had adjourned the matter to report instructions.
24. On 29.03.2019, the learned counsel for the petitioner stated that he had
deliberated the matter with the petitioner‟s officers, and after a detailed
discussion, the State of Bihar had decided to convey its consent in favour of
respondent No. 1. He handed over a compilation of documents running into
12 pages. He first drew the attention of the Court to a letter dated
05.03.2019, whereby the State of Bihar has conveyed its consent to the
Under Secretary, DoP&T for three years central deputation of respondent
No. 1, as also to a letter written in response thereto by the DoP&T to their
Chief Secretary which is dated 26.03.2019. He also drew our attention to
another letter addressed to the DoP&T by the State of Bihar, as well as to the
guidelines enclosed in the compilation for central deputation. The
submission was that the State of Bihar has finally agreed and has conveyed
its consent for three years central deputation, but the Central Government
had, in turn, sought the reason for the petitioner‟s consent, since respondent
No. 1 had neither applied for central deputation, nor was he fulfilling the
eligibility conditions for the same. He submitted that after the receipt of this
letter, the State has rendered its explanation to the Central Government for
giving its no objection towards the central deputation of respondent No.1.
25. A copy of the compilation was handed over to the respective counsels
for the respondents. The learned counsel for the Union of India only
submitted that even assuming the respondent No. 1 was eligible for central
deputation, he could not insist on being sent only to the State of Haryana, as
it was the prerogative of the Central Government to decide the State to which
he could be deputed. Counsel for respondent No. 1, reacting to the letters in
the compilation, vehemently argued that this was yet another step which
showed complete malafide intent on the part of the petitioner. He submitted
that the State of Bihar was well aware of the Rules of central deputation and
the eligibility therefor viz. nine years‟ service in the Indian Administrative
Service, which the respondent did not meet and, yet, it chose to give its
consent for central deputation. He submitted that this was a deliberate act
and the consent was only a sham exercise, knowing very well that it was
futile. He, argued that the consent by the State of Bihar be treated as a
consent for inter-cadre transfer, since the same did not require nine years‟
service in the Indian Administrative Service, and the Central Government be
directed to issue an order for inter-cadre transfer of respondent No. 1 to the
State of Haryana, whose no objection has been received.
26. We have heard the learned counsels for the parties and also examined
the rival submissions.
27. Learned counsel for the petitioner only reiterated the contention that in
view of the stand taken by the petitioner before this Court on 25.05.2018, he
will confine his argument only to the legal issue as to whether the learned
Tribunal could have given the direction-as it did, in para 22(iii) in the
impugned order i.e. that the State of Bihar would not withhold its consent for
inter-state deputation/central deputation, and communicate its consent to the
Central Government. He argued that it is the prerogative and discretion of
the State Government to decide whether it wants to relieve its officer on
deputation, or otherwise, and it was neither in the domain nor the jurisdiction
of the learned Tribunal to have issued such a direction.
28. Per contra learned counsel for respondent No. 1 submits that looking
at the chequered history of the case, the threat perception, that there was
threat to the life and liberty of respondent No.1, was well founded. The
Tribunal after looking at the circumstances and the records had also found
that indeed there was threat and in these circumstances, the Tribunal was
justified in directing the State Government to give its consent, since the same
was unreasonably withheld. He submitted that the Court while undertaking
judicial review, would come to the rescue of a citizen, whose life is in
danger, since protection of life and liberty of the citizens is of the greatest
concern to the Court.
29. Next contention of the counsel for respondent no. 1 was that the
resistance offered by the State Government to give its consent, itself is
indicative of the fact that they do not want to lose their control over
respondent No. 1, so that he can remain in their domain and jurisdiction and
can be taken to task for challenging the prevalent and deeply entrenched
Mafia and the officers of the State of Bihar, who stand exposed. He
vehemently also argued that even during the pendency of the litigation, there
have been certain instances which have strengthened the belief of respondent
No. 1 that the intent of the State Government is malafide, and if he were to
return back to the State of Bihar, both his life and liberty were in complete
danger.
30. In furtherance of his aforesaid submission, learned counsel points out
that despite the Supreme Court having upheld the order of the Patna High
Court quashing the FIR against him, he is still being shown on the official
website of the Vigilance Department as a „corrupt officer who was caught
red-handed taking bribe'. His reporting officer had, in his APAR for 2015-
2016, graded him 9.8 on a scale of 10, but his reviewing officer downgraded
it to 6. His representation against this is still pending from 25.11.2016.
Though the period of suspension has been regularised, but no salary or
allowances have been released for the said period. In fact, he was not even
paid subsistence allowance for the period of suspension. He further points
out that, even though, with the intervention of this Court, by the order dated
18.01.2019, the salary of respondent No. 1 has been released, but that is only
for the post of Junior Time Scale. Respondent No. 1 has been promoted to
Senior Time Scale in the meantime, but no emoluments of Senior Time
Scale have been released. He further points out that the letter dated
25.03.2019 which has now been sent by the State of Bihar conveying their
consent is, in itself, a pointer to the fact that the malafide and vindictive
attitude of the State Government has not changed. The argument is that the
State of Bihar knew that respondent No.1 was not eligible for central
deputation on account of his not having qualifying service, yet it proceeded
to give its consent for the central deputation. If the petitioner had nothing
against respondent No.1, it would have conveyed its consent for inter-cadre
transfer, which would have showed their bonafide. The exercise undertaken
by the petitioner was only a sham, and an act of misguiding the Court.
31. The present is a classic case which presents the saga of an officer, who
in discharge of his duty decided to take the transport mafia head-on in the
State of Bihar. When the officer got posted as SDO/SDM in the State, he
was tasked with the difficult job of curbing the illegal practices rampant in
the State, where the transporters in connivance with the Authorities, were
overloading the heavy vehicles and this was resulting in fatal accidents on a
daily basis, apart from encouraging corruption. With the entire lobby of the
mafias and some part of the State machinery, being against him as a wall, he
decided not to give up his zeal to curb the menace. With all the resistance
and obstructions in his path, he managed to accomplish the task given to him
to a large extent. He succeeded in taking stern action against the transport
mafia and the other wrongdoers. Needless to state, this invited the wrath of
the lobby affected by the action and, subsequent thereto, the life of
Respondent No. 1 took a different course. He was sought to be implicated in
a false case of illegal gratification with the active involvement of the
Vigilance Branch of the State administration, but, fortunately for him,
unimpeachable evidence emerged to establish his false implication and,
consequently, the FIR was quashed by the Patna High Court and the order
was upheld by the Apex Court.
32. When notice was issued in the present writ petition, the grievance of
the petitioner was confined to the direction issued in para 22(iii) of the
impugned order, which is to the effect that the State of Bihar shall not
withhold its consent for inter-State deputation/central deputation of
Respondent No. 1 and communicate its consent to Respondent No. 2/UOI in
that regard within four weeks from the date of receipt of a copy of the order.
However, as narrated above, over a period of time, certain developments
took place and the petitioner has now conveyed its consent to the Central
Government for central deputation. Thus, the challenge raised by the
petitioner does not really survive. In our opinion, therefore, this Court need
not delve into the legal issue on the jurisdiction of the Tribunal to direct the
State Government to give its consent to deputation of an officer. However,
we may only observe, that it would be very difficult for us to accept - as a
broad legal proposition, that the Tribunals/Courts cannot issue such a
direction under any circumstance. At the highest, what may be questioned
by a party aggrieved with such quasi-judicial intervention, may be the
justification for issuance of such directions in the facts of a given case.
Since the Petitioner State has now, as a matter of fact, given its consent to
Respondent No. 1 for being sent on central deputation for three years, our
task is now confined to examining the action of the Petitioner in conveying
the said consent, particularly in the light of the fact that Respondent No. 1
does not have the requisite qualifying service for central deputation under the
Rules.
33. We have perused the letter dated 5.3.2019, addressed by the State of
Bihar to the Central Government. We are indeed pained to note the contents
of the said letter. Para 3 of the letter reads as under:
"3. In light of the above, consent of the Govt. of Bihar
in connection with 3 years central deputation of Dr.
Jitendra Gupta, IAS 9BH:2013) is hereby conveyed.
Encl.:- As above."
34. The consent given by the State of Bihar is for three years‟ central
deputation. As per the guidelines placed on record by the petitioner itself, in
order to be eligible for central deputation, an officer should have nine years‟
qualifying service in the IAS. Conscious of this eligibility condition, the
State Government chose to process his case for central deputation and not
inter-cadre transfer, for which such qualifying service is not a pre-requisite.
We cannot, but, agree with the counsel for respondent No. 1, that if this was
the eligibility condition, and respondent No. 1 did not fulfil the same, the
exercise of giving consent by the petitioner was only a sham. The State
Government knew very well that if this proposal was sent to the Central
Government, it would be naturally rejected in terms of the prevailing Rules.
It appears to us that this is nothing but yet another calculated act on the part
of the State Government to delay the matter.
35. At this stage, we may observe that even the proceedings and the orders
of this Court have been interpreted by the State Government to suit their own
convenience. On 22.02.2019, when the matter was being argued and learned
counsel for the petitioner was confronted with the contents of the IB report,
the Court had expressed its anguish and concern on the manner in which the
issue of threat perception had been looked at by the State Government. We
were about to pass an order against the State Government, whereupon the
counsel had himself offered to resolve the matter, in house, and advise the
petitioner appropriately. This Court had never directed the State
Government to give their consent for central deputation. However, the
contents of the letter dated 26.03.2019 indicate, as though this Court had
asked the State Government to process the case for central deputation and,
which is why, such a proposal was initiated, and consent given. While we
would not want to comment on this aspect and precipitate the issue,
however, we may like to add a word of caution that proceedings of the
Court, both oral and written, must not be misquoted by the parties, to suit
their convenience.
36. Having said that, we feel that respondent No. 1 has been able to
establish not only that the assessment of threat perception qua Respondent
No. 1 is flawed - since the same fails to take into account the glaring false
implication of Respondent No. 1 in a serious criminal case of corruption by
the Mafia in active collusion of the Vigilance Branch of the State, but also
the fact that there is real threat to his life and liberty in the State of Bihar, as
also that even today the actions of the State Governments are aimed at his
victimisation. We are constrained to come to this finding for more than one
reason. Even after two courts have found in favour of Respondent No. 1 that
he had been falsely implicated, the State Government chose to display on the
website of its Vigilance Department, that he was a corrupt officer. The
petitioner obviously chose to humiliate Respondent No.1 and, most
unjustifiably, according to us. There is also force in the submission of
counsel for respondent No. 1 that the witch hunt has continued, as is evident
from the fact that his salary was not paid on time; his subsistence allowance
was also not released; representation against his deliberate downgrading in
the APAR is still pending; salary for his Senior Time Scale has been
withheld and despite all this saga, there is pressure on him to go back and
join in the State of Bihar.
37. The resistance of the State Government, even today, to let go of
respondent No. 1 on an inter-cadre transfer is something that bewilders us.
While on one hand, according to them, he is one of the most corrupt and
tainted officers, yet every effort has been made to stall his movement out of
the State cadre. Learned counsel for the petitioner was unable to respond to
the query put by the Court, as to what is it, that the officer would gain by
change of his cadre, except to protect his life and dignity. Correspondingly,
what is it that the State would lose if Respondent No. 1 is allowed to go on
inter-State transfer. We are mindful of the fact that in normal circumstances,
such like requests may be declined and inter-cadre transfers cannot be
demanded by an officer, as a matter of right. However, as already noticed,
this is not an ordinary situation that we are dealing with.
38. We have carefully analysed all the facts and circumstances of this case
along with the records. We are of the considered view that, objectively
assessed, it is unsafe for respondent No.1 to return to the State of Bihar. The
decision of the State Government that there is no threat perception is based
on the fact that the investigation reports have not pointed out to the
happening of any untoward incident, and the failure of Respondent No. 1 to
lodge an FIR of any such untoward incident. We cannot appreciate this stand
of the State Government. Threat assessment has to be undertaken on the
basis of the recent past incidents, and its assessment has to be done by those
assigned that task on a rational basis, by taking into account all the relevant
and germane circumstances and past incidents. In the present case, the State
machinery - and that too its Vigilance Branch, was involved in falsely
implicating Respondent No. 1. The game plan was to "fix" him for his
misadventure of taking on the transport mafia. Thus, it is clear that the said
Mafia, as well as some senior officers of the Vigilance Branch were out to
get Respondent No. 1 because of the hinderances that he had caused in their
illegal activities. Unfortunately, in the assessment made by the Petitioner,
there is absolutely no mention of this aspect. The assessment has been made
mechanically and completely mindlessly, by observing that there had been
no incident of murderous attack on the Respondent No. 1 and he had not
reported any such incident to the Police. Thus, the petitioner expects
Respondent No. 1 to suffer such an attack on himself and his family, before
they will consider the threats to his and his family‟s lives to be serious
enough to act. What about the false implication in a corruption case and the
arrest of respondent No.1? Clearly the plan was to disable and neutralize
respondent No.1 and to ruin his life and career. This approach of the
petitioner is completely perverse, to say the least.
39. Despite several requests of respondent No. 1 to give him police
protection, the State Government did not come to his aid. It is the duty of
the High Court - which exercises extra ordinary writ jurisdiction, to protect
the fundamental rights of the citizens. The right to life and liberty is the
most precious of all the fundamental rights because, if this right is not
protected, all others will become meaningless. Can we shut our eyes to the
situation on hand, and let the situation come to a stage, when an untoward
incident actually occurs and, God forbid, harm is caused to the officer or to
his family? In our view, if we do not act in such a case where the facts cry
out for help, we would be failing in our constitutional duty. The learned
Tribunal in our view rightly observed that we cannot give rise to another
case of Satender Dubey. We must, therefore, come to the aid of an officer,
who showed courage in the discharge of his duty, and must protect his life
and liberty. If we fail in our duty to protect a man, who has had the nerve to
stand up against a mafia and the State machinery, we would be doing great
disservice to the system and setting a bad precedent, where no officer would
gather the courage to stand up against the wrongdoers.
40. We are confronted with a situation, where the consent of the State
Government has been given for central deputation, but the Rules do not
permit respondent No. 1 to go on central deputation, as he does not have nine
years‟ qualifying service. However, as noted above, there is no such
requirement for inter-cadre transfer. In order to do substantial justice and in
the exceptional and peculiar facts of this case, we direct that the consent of
the State Government be treated as consent for inter-cadre transfer. This
construction, we adopt, considering the fact than respondent No.1 had prayed
for inter-cadre transfer in his original application; the Tribunal had directed
the petitioner to give its consent/no objection, inter alia, to inter-cadre
transfer and the State of Bihar, in principal, is now willing to let go of
Respondent No. 1, at least for a period of three years on inter-State/central
deputation. The cause for the threat to respondent No.1 viz. the transport
mafia and the officers in the Vigilance department, who were gunning for
Respondent No. 1 are going nowhere. They are where they were.
Pertinently, there is nothing to show that the Petitioner-State of Bihar has
taken any action either against the transport mafia, or against the Vigilance
officers, involved in falsely implicating Respondent No. 1.
41. With the hope that a time never comes in our society where the honest
are hounded and the corrupt rewarded, we quote a few lines of poet Laureate,
Rabindra Nath Tagore, as under:
"1. Where the mind is without fear and the head is held
high Where knowledge is free Where the world has not
broken up into fragments By narrow domestic walls
Where words come out from the depth of truth Where
tireless striving stretches its arms towards perfection
Where the clear stream of reason has not lost its way
Onto the dreary desert sand of dead habit Where the
mind is led forward by thee Into ever-widening thought
and action Into that heaven of freedom, my Father, let my
country awake."
42. Since we have construed the consent of the State of Bihar as a consent
for inter-cadre transfer, we deem it fit to direct the Central Government to
act on the said consent as one for inter-cadre transfer, and initiate the process
for inter-cadre transfer of respondent no. 1 from the Bihar Cadre.
43. There is no doubt, that the decision on transfer of cadre falls in the
domain of the Central Government, and it is the prerogative of the Central
Government to examine the said issue. We have no intention, whatsoever, to
interfere with the same. We would thus leave it to the Central Government
to take a decision on the Cadre to which the respondent no. 1 should be
transferred. We may, however, add a caveat, that the State of Haryana is the
home State of respondent no. 1, and he had given a preference to be
transferred to the said State. It is also undisputed that the State of Haryana
has already conveyed its no-objection to such a transfer. Thus, while
considering the case of Respondent No. 1 for inter-cadre transfer, this aspect
may also be considered by the Central Government. The Central
Government must complete the process of inter-cadre transfer as soon as
possible, but not later than four weeks from the date of this judgment and till
then status quo on the respondent no. 1 being placed at Delhi would
continue. Needless to state that he would be paid his full salary including
any arrears, if outstanding.
44. Learned counsel for respondent no. 1 has contended that Respondent
No. 1 has suffered immense humiliation, loss of dignity, mental agony, and
his entire family has suffered for the last several months. He has also been a
victim of financial loss, social embarrassment, harassment and extreme
hardship. He thus submits that respondent no. 1 is entitled to exemplary
damages, not only in view of the victimization but also for malicious
prosecution. In support of his contention he has relied on the judgment of
the Apex Court in the case of Ram Lakhan Singh Vs. State of U.P. reported
as (2015) 6 SCC 715 and also the judgment in the case of S. Nambi
Narayanan Vs. Siby Mathews and Ors. in Civil Appeal Nos. 6637-38/2018
decided on 14.9.2018.
45. When the matter was listed on 8.2.2019 it was submitted by counsel
for respondent no. 1 that he had approached the Apex Court to claim
damages etc. on account of his false implication in a criminal case. Vide
Order dated 01.02.2019, the Hon‟ble Supreme Court has granted liberty to
him to place all his submissions before this Court in the present proceedings.
46. Having traversed ourselves through the chequered history of the
events and happenings in the life of Respondent no. 1 for several months -
for which the State of Bihar is squarely responsible, we have no doubt in our
mind that an IAS officer with courage and conviction, who in the discharge
of his duty took on the transport mafia, has been compelled to undergo
immense humiliation and harassment. Rather than rallying behind such an
officer and providing protection to him, the State of Bihar has not only
victimized him, but has treated him as persona non-grata. The actions of the
State Government have led to a situation where, for several months,
respondent no. 1 and his family members have undergone a huge turmoil.
He had to flee from the State for his safety and well-being as well as of his
family. In our view respondent no. 1 has been victimized without any rhyme
and reason and his dignity and self-respect has been badly dented. The facts
of this case thus warrant grant of adequate and commensurate
compensation/damages under the public law remedy. The Constitutional
Court is not debarred from exercising its extraordinary jurisdiction in
awarding compensation to a citizen, whose dignity and reputation has been
harmed and who has suffered immense mental agony. In fact, to do so, we
derive strength from the judgments of the Supreme Court in the case of S.
Nambi Narayanan (supra) and Ram Lakhan Singh (supra).
47. Right to life and liberty is the most sacred right enshrined in Article 21
of the Constitution of India. Thus, grant of compensation under Article 226
of the Constitution of India for violation of the fundamental right under
Article 21 is an exercise which the High Court can undertake under Public
Law jurisdiction, for penalizing the wrong doer and fixing the liability of a
State, which has failed to discharge its public duty to protect its
officer/citizen and his fundamental rights. Although, we cannot undo the
harm caused to respondent no. 1 and put the clock back, or roll back the
months that have been lost in his life under trauma, but we feel that awarding
reasonable compensation as damages would perhaps apply some balm to his
wounds, and would also uphold the rule of law. No amount of money would
be enough to compensate Respondent No. 1, more particularly, for the days
of his life when he was under incarceration, but if this Court were to grant
some damages to respondent no. 1, perhaps his faith in the rule of law and
virtues of honesty would be rekindled. If we do not compensate respondent
no.1, we would only be rendering lip service to his right of life and personal
liberty. We thus award a sum of Rs.5,00,000/- (Rupees Five Lacs) as
compensation/damages in favour of respondent no. 1. The said
compensation should be paid to him in a period of four weeks from today by
the State of Bihar.
48. We thus find that there is no merit in the present petition and the same
is dismissed with the following directions:-
(i) The consent communicated by the State of Bihar to the Central
Government vide letter dated 5.3.2019 for Central Deputation be
treated as a consent for inter-cadre transfer. The Central Government
is directed to initiate the process of inter-cadre transfer of the
petitioner forthwith and issue an order transferring respondent no. 1 to
a cadre outside the Bihar cadre. Needless to state that the
willingness/consent of respondent no. 1 would also be sought for the
inter-cadre transfer as per law. The entire process should be
completed within a period of four weeks from today.
(ii) The State of Bihar is directed to pay a sum of Rs.5,00,000/- (Rupees
Five Lacs) towards compensation/damages in favour of respondent no.
1 within a period of four weeks from today, and to pay all other
outstanding dues, which may not have been paid to him.
JYOTI SINGH, J
VIPIN SANGHI, J.
nd
JULY 2 , 2019AK/rd/s
