TMI Blog2017 (7) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltifarious social activities. The petitioner is functioning at present as the Madurai Urban District Secretary of All India Trade Union Congress Construction Workers Wing. THE CASE OF THE PETITIONER: 4 (A). It is the contention of the petitioner that on the day of the super annuation of the fifth respondent, his service was extended by two years from 01 July, 2017. Even though there are several competent Officers belonging to Indian Police Service in the Tamil Nadu Police, the fifth respondent was given extension of service with a view to appoint him as Director General of Police. (B). The Income Tax Department in the year 2016 conducted search on the premises of a Gutkha Manufacturing Company at Chennai and seized several incriminating documents. Those materials revealed large scale payment of bribe to a Minister, Senior Officers of the State Police and other higher officials. The records also revealed that money was paid to the Commissioner of Police, Chennai. The fifth respondent was the Commissioner of Police during the relevant period. The Income Tax Department forwarded the incriminating materials to the Chief Secretary to the Government of Tamil Nadu for taking appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 06 July, 2017, reads thus: 1..................... 2....................... 3....................... 4. Though the petitioner in his affidavit filed in support of the Writ Petition made serious allegations against the fifth respondent, there are no materials before this Court to substantiate those contentions. Even then, taking into account the high office in which the appointment was made by the Government and the well recognized legal principle The Institution is more important than an individual , we consider it deem and fit to direct the respondents 2, 6 and 8 to produce the documents indicated below: (i) The Chief Secretary to Government, State of Tamil Nadu, the second respondent in the Writ Petition is directed to produce the entire records relating to the appointment of the fifth respondent. (ii) The Chief Commissioner of Income Tax, MG Road, Nungambakkam, Chennai, the sixth respondent herein is directed to produce the alleged incriminating documents containing the names of Government Officers and all the other public servants stated to have been forwarded to the Chief Secretary, Government of Tamil Nadu for appropriate action. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions: (i) The fifth respondent was selected by the State from the empaneled candidates, taking into account his length of service, good track record and range of experience. (ii) The entries made regarding payment of bribe to the Police Officers without any kind of corroboration would not amount to incriminating materials to deny appointment to the fifth respondent. (iii) The Government of Tamil Nadu strictly followed the judgment of the Supreme Court in Prakash Singh vs. Union of India [2006(8) SCC 1] and the provisions of the State Act 22 of 2013, while appointing the fifth respondent. (iv) The Writ Petition is not filed in public interest. It is a sponsored litigation. There is no element of public interest. (v) The Public Interest Writ Petition is not maintainable in service matters. (vi) The Vigilance and Anti-Corruption Department is seized of the matter. The case file produced by the Directorate of Vigilance and Anti-Corruption would show that the allegation against the fifth respondent is not correct. (vii) Since there was no pending proceeding registered against the fifth respondent or legally acceptable materials suggesting his mis-conduct, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of superannuation. Therefore, by virtue of his appointment as Director General of Police, the fifth respondent got the benefit of two years service. The period of such service commenced on 01July, 2017. In view of this, we reject the contention of the petitioner that the fifth respondent was given extension of service by the Government, notwithstanding the availability of competent IPS Officers for appointment to the post of Director General of Police. THE CORE ISSUE: 12. The moot point is as to 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. THE ALLEGED INCRIMINATING DOCUMENTS: 13(A). Since the petitioner himself has produced the documents, which were earlier produced by the Income Tax Department in a sealed cover, we are constrained to analyze those materials to arrive at a conclusion as to whether the entries made in the books of Gutkha Manufacturing Concern would be sufficient to deny appointment to the fifth respondent. (B) The entry relating to the payment of illegal gratification to the Commissioner of Police indicates that mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral of Police from amongst the five senior-most Police Officers of the Department empaneled by the Union Public Service Commission for the post of Director General of Police, having regard to the length of service, good record and range of experience for heading the Police Force. (B) The State Government forwarded the names of senior-most Police Officers to the Union Public Service Commission for appointment to the post of Director General of Police. The Union Public Service Commission considered the service records of all the officers and empaneled the fifth respondent and five other officers for appointment. (C) The Head of Police Force must be thorough with the functioning of all the Branches of the Force. Then only, he would be in a position to discharge the function efficiently and in a highly professional manner. The Supreme Court in Prakash Singh's case cited supra observed that the empanelment of officers for appointment to the post of Director General of Police shall be on the basis of length of service, good record and range of experience for heading the Police Force. It is clear from the selection file that the fifth respondent satisfied the eligibility criter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by the Income Tax Department. (v) There should be at least prima facie materials suggesting receipt of illegal gratification by the fifth respondent. Mere entries in the records regarding illegal gratification without any kind of supportive materials would not amount to legal evidence. Since the intermediary denied the allegations that payment was routed through him and that he paid money to the Police Officers, the appointment of fifth respondent is not vitiated on the ground of non-production of incriminating materials before UPSC by the State. RECORD OF SERVICE IN RESPECT OF FIFTH RESPONDENT: 16(A). We have perused the confidential records relating to the fifth respondent. There is not even a single adverse entry recorded in his Service book relating to his 32 years of police service. He was given Police Medal for meritorious service in 2001 and President's Police Medal for distinguished service in 2010. (B).The service records produced by the State shows that the fifth respondent functioned in different capacities, like Assistant Superintendent of Police (Law and Order), Deputy Commissioner of Police (Security and Anti-Hijacking), Deputy Commissioner of Police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64. .................................. We reiterate that the Government is not accountable to the courts for the choice made but the Government is accountable to the courts in respect of the lawfulness/legality of its decisions when impugned under the judicial review jurisdiction...................... (C) The Hon'ble Supreme Court in Citizens for justice Peace v. State of Gujarat [2009(11) SCC 213], made it clear that interference is very limited in sensitive matters, like appointment of Director General of Police. The Supreme Court said: 11. An appointment of a government servant is the prerogative of the particular Government, particularly, when it is a sensitive appointment of the Director General of Police. We, under the doctrine of judicial review ,would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today............ (D) The inter se merits of the empaneled Police Officers were considered by the State Government and a conscious decision was taken to appoint the fifth respondent. It is not within the province of this Court to upset the said decision by conducting a comparative merit review. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifth respondent. The background facts clearly reveals that the petitioner has taken up the cause of others who are personally interested in the subject matter. We have reasons to suspect the bona fides of the petitioner in filing this Writ Petition. The attempt of the petitioner does not appear to uphold the institutional integrity. In fact, there is no challenge to the appointment of fifth respondent at the instance of the other empaneled candidates. DISPUTE REGARDING NON-RECEIPT OF INCRIMINATING MATERIALS: 20 (A). The Chief Secretary, Government of Tamil Nadu, filed an affidavit dated 17 July, 2017 stating that there is nothing on record in her Office to indicate that the administration received the letter sent by the Principal Director of Income Tax (Investigation) Chennai, along with the annexures immediately after the raid. The learned counsel for the petitioner, by producing a copy of the letter sent by the Principal Director of Income Tax, contended that the documents were entrusted to the then Chief Secretary to the Government of Tamil Nadu on 12 August, 2016. However, action was not taken thereafter to conduct enquiry. (B). We have perused the documents produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension of service granted to a few police officers in violation of the statutory Rules and without considering the string of incriminating materials available on record and which was the subject matter of ongoing enquiry. The judgment has nothing to do with the extension of service based on Prakash Singh case. The State of Maharastra made a proposal to the Government of India for the extension of service of two tainted officers, working as Commissioner of Police and Director General of Police, during the verge of their retirement on 30 November, 2017. The Bombay High Court held that their appointment was contrary to Rules and against public interest. In short, the issue before the Bombay High Court was not in relation to the appointment of the Head of the Police Force in the State of Maharastra in accordance with the Direction in Prakash Singh. Since the facts are totally different, we reject the contention taken by the petitioner on the strength of the Division Bench judgment rendered by the Bombay High Court. THE PRECEDENT: 22(A). In Central Bureau of Investigation v. V.C.Shukla [1998(3) SCC410], which is otherwise called as JAIN HAWALA DIARY Case, the issue before the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue that came up for consideration before the Hon'ble Supreme Court was as to whether the entries made in the Books of the two Companies regarding illegal gratification paid to certain politicians would be sufficient to direct investigation against them. Before the Supreme Court, in answer to the contention taken by the learned counsel for the petitioner, by placing reliance on Lalita Kumari's case that such entries are sufficient for registering First Information Report and initiating investigation, the Attorney General submitted that in case cognizance is taken on the basis of such inadmissible evidence, it is open to any unscrupulous person to make an entry any time against anybody's name unilaterally on any sheet of paper or computer excel sheet. The Supreme Court, taking note of the said submission and placing reliance on V.C.Shukla's case, opined that to direct investigation in such cases, there must be some relevant and admissible evidence. The Supreme Court, while negativing the request for initiating investigation by CBI, observed thus: 21. We are constrained to observe that the Court has to be on guard while ordering investigation against any import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The intermediary has denied such payment to the Police. In case the yardstick adopted in V.C.Shukla and Sahara case is followed, it can very well be said that the alleged material against the fifth respondent is weak and inadmissible. The Vigilance enquiry is still pending. It is too premature to arrive at a definite conclusion on the basis of available materials that money was paid to the fifth respondent. In any case, the incriminating materials seized by the Income Tax Department would not be sufficient to declare that the fifth respondent is unfit to hold the post of Director General of Police. CBI INVESTIGATION: 25(A). The petitioner seeks a further direction to the CBI to constitute a special investigation team to investigate the case of corruption involving the public servants taking into account the materials seized by the Income Tax Department. In view of the said prayer, we have sent for the Case Diary from the Director of Vigilance and Anti-Corruption. It is found from the Case Diary that pursuant to the letter sent by the Commissioner of Police dated 22 December, 2016, the Principal Secretary to Government, Home Department, who is also the Vigilance Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under whom the Director General of Police is functioning and to conduct an impartial and fair enquiry, we are constrained to direct the State Government to streamline the functioning of the Vigilance Organization and to ensure that enquiry by the Vigilance and Anti-Corruption in the Gutkha Scam is conducted in an unbiased manner and without the intervention of those against whom allegations are made, besides others in power. APPOINTMENT OF VIGILANCE COMMISSIONER: 26. 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. It is the apprehension of the petitioner that it would not be possible for the Vigilance Commissioner to hold enquiry against high ranking police officers and other public servants including a Minister through the Directorate of Vig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order would not stand in the way of the Directorate of Vigilance and Anti-Corruption from conducting enquiry/investigation independently and to take appropriate action in accordance with law. 30. DIRECTION TO THE STATE: (i) We direct the second respondent to appoint a Vigilance Commissioner with independent charge and professional independence to head the State Vigilance Commission. The Vigilance Commissioner should be in a position to function without fear or favour and without answerable to the political executive. The Vigilance Commissioner must be an upright officer and a person of unimpeachable integrity and good track records. He should not be associated with any other department and in particular, the Home Department, under whom the Director General of Police and the Police Force in general, are functioning. The commitment, devotion and accountability of the Vigilance Commissioner must be to the rule of law and not to the executive Government. There should not be any kind of political interference in the discharge of lawful function by the Vigilance Commissioner. The appointment should be made as expeditiously as possible and in any case, within a period of two weeks ..... X X X X Extracts X X X X X X X X Extracts X X X X
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