2017 (7) TMI 1244 - HC - Indian Laws

Appointment of fifth respondent as the Director General of Police in the State of Tamil Nadu - whether there were sufficient materials to deny appointment to the fifth respondent to the post of Director General of Police -cum- Head of Police Force in the State of Tamil Nadu? Held that - The Government has constituted the State Vigilance Commission headed by a Vigilance Commissioner. The Vigilance Commissioner has jurisdiction and power in respect of matters to which the executive power of the State extends. The Vigilance Commissioner is an independent authority vested with extensive powers to curb corruption and initiate action against the Government servants/servants of Public Sector Undertaking for acceptance of illegal gratification and matters incidental thereto. The Vigilance Commissioner must act as a watch-dog. The Vigilance Commissioner must be chosen in such a manner that he would be in a position to function independently and without any kind of Government control. The Chief Secretary the Home Secretary and the Director General of Police are members of the State Security Commission. Similarly the Home Secretary and the Director General of Police are the members of the Committee constituted to assess the threat perception and to provide security to those who are under threat. The Home Secretary and the Director General of Police are expected to function in a coordinated manner to maintain law and order in the State Since the present enquiry relates to the allegation of acceptance of illegal gratification by high ranking public servants we are of the view that the State must appoint a Vigilance Commissioner with independent charge. The State was correct in its decision selecting and appointing the fifth respondent as the Director General of Police - the entries made in the records seized from the Gutkha Manufacturer by the Income Tax Department are not sufficient to deny appointment to the fifth respondent as the Head of the Police Force - the case on hand does not warrant transfer of enquiry/investigation to the Central Bureau of Investigation. Petition disposed off.

Summary

Issues Involved:
1. Challenge to the appointment of the fifth respondent as Director General of Police.
2. Allegations of corruption and bribery involving the fifth respondent.
3. Request for investigation by the Central Bureau of Investigation (CBI).
4. Non-production of incriminating materials before the Union Public Service Commission (UPSC).
5. Maintainability of the Public Interest Litigation (PIL).
6. Role and independence of the Vigilance Commissioner and Directorate of Vigilance and Anti-Corruption.

Issue-wise Detailed Analysis:

1. Challenge to the Appointment of the Fifth Respondent as Director General of Police:
The challenge in this Writ Petition is to the Government Order in G.O.(2D)No.184, Home (SC) Department, dated 30 June, 2017, appointing the fifth respondent as the Director General of Police in the State of Tamil Nadu. The petitioner argued that the appointment was made despite the availability of several competent officers and was a result of a colorable and mala fide exercise of power. However, the court found that the appointment was made following the guidelines set by the Supreme Court in Prakash Singh vs. Union of India, which mandates a minimum tenure of two years for the appointed Director General of Police, irrespective of their date of superannuation. The court held that the appointment was not an extension of service but a new appointment effective from 01 July, 2017.

2. Allegations of Corruption and Bribery Involving the Fifth Respondent:
The petitioner contended that the fifth respondent was involved in accepting bribes from a Gutkha Manufacturer, as revealed by documents seized by the Income Tax Department. The court examined the materials produced, including the statement of a partner from the Gutkha firm and entries in account books. It was noted that the alleged payments were made through intermediaries, and there was no direct evidence of the fifth respondent receiving bribes. The court found that mere entries in the account books, without corroborative evidence, were insufficient to deny the appointment.

3. Request for Investigation by the Central Bureau of Investigation (CBI):
The petitioner sought a direction for a thorough investigation by the CBI, arguing that the Directorate of Vigilance and Anti-Corruption would not conduct a fair enquiry due to the involvement of high-ranking officials. The court noted that the Directorate of Vigilance and Anti-Corruption had already initiated a preliminary enquiry and recorded statements. The court found no basis for the apprehension that the Directorate would not conduct an impartial enquiry and declined to transfer the investigation to the CBI.

4. Non-production of Incriminating Materials Before the Union Public Service Commission (UPSC):
The petitioner argued that the State Government failed to forward incriminating materials to the UPSC, which would have impacted the empanelment decision. The court noted that there was no direct implication of the fifth respondent in the seized documents, and no case was registered against him at the time of empanelment. The court held that the State Government was not expected to forward uncorroborated allegations to the UPSC.

5. Maintainability of the Public Interest Litigation (PIL):
The court questioned the bona fides of the petitioner, suggesting that he was acting at the behest of others with personal interests. The court observed that the petitioner, a Trade Union Leader, had extensive knowledge of the case details, indicating that he was a mere name lender. The court referenced a previous PIL dismissed on similar grounds, emphasizing that the petitioner's attempt did not uphold institutional integrity.

6. Role and Independence of the Vigilance Commissioner and Directorate of Vigilance and Anti-Corruption:
The court directed the State to appoint a Vigilance Commissioner with independent charge to ensure an unbiased enquiry. The Vigilance Commissioner should not be associated with any department, particularly the Home Department, to avoid conflicts of interest. The court emphasized the need for the Directorate of Vigilance and Anti-Corruption to function independently and without interference from political executives or public servants.

Conclusion:
The court upheld the State's decision to appoint the fifth respondent as Director General of Police, finding no sufficient grounds to deny the appointment based on the available evidence. The court directed the State to appoint an independent Vigilance Commissioner and ensure a fair enquiry by the Directorate of Vigilance and Anti-Corruption. The petition was disposed of with specific directions to maintain the integrity and independence of the enquiry process.