TMI Blog2005 (10) TMI 530X X X X Extracts X X X X X X X X Extracts X X X X ..... airman and Chief Executive Officer of New Okhla Industrial Development Authority (in short 'Noida'). The then Director of Central Bureau of Investigation (in short the 'CBI') on 6.12.1995 wrote a letter to the then Cabinet Secretary, Government of India seeking sanction for registering a preliminary inquiry into certain allegations of corruption committed by the Respondent No.3. The request was re-iterated by the then Director of CBI on 16.12.1996. It appears that at different stages allegations were looked into by the CBI and one man Commission of Inquiry under a retired Judge of the Allahabad High Court. According to the petitioner, initially the State of U.P. took the stand that on the basis of findings of the Commission of Inquiry, prima facie case was made against respondent No.3 and disciplinary proceedings were intended to be initiated under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969 (in short the 'Rules'). On 20.1.1998 this Court directed the CBI to conduct investigation in respect of the alleged irregularities. It appears that on 8.11.2001 the respondent No.2-State of U.P. filed an affidavit stating that since the CBI inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... linary proceedings. In this background, interim prayer has been made to stay functioning of respondent No.3 as the Chief Secretary. The State of U.P. (respondent No.2) and the concerned officer, Ms. Neera Yadav (respondent No.3) have filed counter affidavits. In essence, their stand is that until a person is found guilty he should have been presumed to be innocent. The writ petition at the most raises question of morality. This is a broader issue and the decision of the Government to appoint somebody as the Chief Secretary is a policy decision which should not be interfered with. Additionally, it has been submitted that a public interest litigation cannot be entertained in relation to service matters and in any event a writ of quo warranto cannot be issued. It has been further submitted that paras 2 and 3 of the Office Memorandum on which strong reliance has been placed by the petitioner has no application as presently no prosecution for a criminal charge is pending. In fact, the charges are yet to be framed. Respondent No.3 has functioned for nearly 5 months and there is no allegation that she has in any manner attempted to interfere with the functioning of the Commission. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questions relating to legality of the action of the State Government in not proceeding with the departmental enquiries are being examined by the Commission. We, therefore, did not think it appropriate to say anything in that regard. The basic question is whether the appointment of respondent No.3 as Chief Secretary is proper. Learned counsel for respondent Nos. 2 and 3 have submitted that as back as on 17.4.2004 the respondent No.3 was promoted to the Chief Secretary's grade with a particular scale of pay. Since the respondent No.3 belonged to the said cadre and grade, one of the posts on which she could be appointed is the post of Chief Secretary. Therefore, there is nothing wrong in her appointment. Though the post of Chief Secretary may belong to a particular grade/cadre, it is certainly a key post. The importance of this post was noted by this Court in E.P. Royyappa v. State of Tamil Nadu and Anr. (AIR 1974 SC 555). The argument presently advanced is that since respondent No.3 has been continuing in the post for five months, no orders should be passed regarding her appointment till the Commission gives its report. Had this consideration weighed with the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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