Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1777 (ALL)

Vivek Ranjan Rai v. State of U. P. and Others

2011-07-22

SHISHIR KUMAR

body2011
Hon’ble Shishir Kumar,J.—Heard Sri R.M.Saggi, learned counsel appearing for petitioner and learned Standing Counsel. 2. Initially writ petition was filed for mandamus commanding respondent i.e. Inspector General of Police (Establishment) for sending name of petitioner for deputation in National Investigation Agency at New Delhi as recommended by the Senior Superintendent of Police, Ghaziabad as well as Inspector General of Police, Meerut Zone, Meerut. 3. Facts as stated in the writ petition are that petitioner who is working as Sub-Inspector (Civil Police) having outstanding record has been chosen by National Investigation Officer to join as Inspector. In this regard ‘No Objection Certificate’ is required by the Superintendent of Police, Ghaziabad. On 9th May, 2010, Superintendent of Police has given ‘No Objection Certificate’. From bare perusal of aforesaid letter, it has specifically been mentioned by the Senior Superintendent of Police, Ghaziabad to the Inspector General of Police Meerut Zone, Meerut that required information with regard to petitioner as demanded by National Investigation Agency are enclosed. The National Investigation Agency issued a letter on 14th May, 2010 in which they required that name of petitioner be sent to be posted as Inspector on deputation initially for a period of three years. Application was filled by petitioner and name of petitioner was recommended by Senior Superintendent of Police as well as the I.G. zone. In spite of aforesaid fact, no approval was granted by Inspector General of Police (Establishment) and he was informed that his claim has been rejected though no communication was given to petitioner. It has been submitted that sending and accepting agencies for the said purposes is Inspector General of Police, Meerut Zone, Meerut and Senior Superintendent of Police, Ghaziabad under whom petitioner is working as well as the authority of National Investigation Agency and they are willing to accept the candidature of petitioner but action of respondents in not sending the name of petitioner for joining on deputation is per-se illegal, arbitrary and cannot be sustained in the eye of law. 4. Writ petition was filed and notices were issued to file counter affidavit. In the meantime, petitioner has been communicated an order by which D.I.G. Establishment has rejected the claim by the order impugned dated 27th July,2010. 5. Amendment application was allowed and necessary incorporation was made. 6. Learned counsel for petitioner submits that an order impugned is a non-reasoned order without assigning any reason. In the meantime, petitioner has been communicated an order by which D.I.G. Establishment has rejected the claim by the order impugned dated 27th July,2010. 5. Amendment application was allowed and necessary incorporation was made. 6. Learned counsel for petitioner submits that an order impugned is a non-reasoned order without assigning any reason. The ground taken in the rejection order is that due to various vacancies in the Police Department for the post of Sub-Inspector it is not possible to send petitioner on deputation but no figure regarding vacancy and working of the person on the post of Sub-Inspector has been mentioned in the order impugned. In para 13 of the rejoinder affidavit, petitioner has stated that in spite of shortage of Inspectors of Police, as stated by respondents, the Inspectors of Police are being regularly sent and approved for the purposes of deputation to various Development Authorities like Noida, Greater Noida, Ghaziabad Development Authority and U.P. Power Corporation Ltd. as well as U.P. Vigilance Establishment as well as various persons are being sent on deputation in C.B.I and N.T.P.C. Petitioner has only been discriminated that too without recording any reason and giving figures. Respondents cannot reject claim of petitioner only on this ground when they are sending various persons on deputation in different departments. 7. Further submission has been made that in para 7 of the counter affidavit that they have given another reason that since out of 2260 Inspectors only 892 Inspectors are working and rest of the post are lying vacant, therefore, it is not possible to spare petitioner for the purposes of deputation for a period of three years. Further allegation has been made in the counter affidavit that respondent does not having any knowledge regarding the fact that whether petitioner has been selected by National Investigation Agency or not. Petitioner submits that there is no occasion for the agency to take any decision as stated. ‘No Objection Certificate’ to that effect has been given in favour of petitioner. DIG zone as well as Superintendent of Police is the authority to send on deputation. DIG (Establishment) is the only authority to approve the same. Further submission has been made that by way of filing counter affidavit respondents cannot substitute the reasons which is not mentioned in the order impugned. DIG zone as well as Superintendent of Police is the authority to send on deputation. DIG (Establishment) is the only authority to approve the same. Further submission has been made that by way of filing counter affidavit respondents cannot substitute the reasons which is not mentioned in the order impugned. There is nothing in the order impugned while rejecting the claim of petitioner that what are the reasons regarding rejecting claim of petitioner. Only it has been mentioned that there are various vacancies of Inspectors, therefore, petitioner cannot be sent on deputation but no detail has been given that how various persons in the different department are being sent on deputation. 8. On the other hand, learned Standing Counsel has submitted that as there are various vacancies, therefore, petitioner’s claim has been rejected. Further in para 9 it has been submitted that unless and until State Government provide ‘No Objection Certificate’ petitioner cannot be sent on deputation and no permission has been given by the State Government and Senior Superintendent of Police and I.G.Meerut Zone are not the competent authority. 9. I have considered the submissions of parties and perused the record. From the record it is clear that recommendation has been done by the competent authority regarding sending petitioner on deputation. An application form for the said purposes was also given to petitioner and that has been submitted by petitioner on 9.6.2010 but from the order impugned it appears that respondents while rejecting claim of petitioner has not mentioned the correct facts while rejecting claim of petitioner. Only it has been mentioned that as there are various vacancies of Sub-Inspector Police (Civil), therefore, petitioner cannot be sent on deputation, though in the counter affidavit a new plea has been taken that due to various vacancies for the post of Sub-Inspector, petitioner cannot be sent on deputation. Respondents have not brought anything on record to show that due to various vacancies for the post of Sub-Inspector they are not being sent to different departments though petitioner has brought on record a specific allegation in the rejoinder affidavit that various police personnels have been sent on deputation to various departments. A specific averment has been made in the rejoinder affidavit. A specific averment has been made in the rejoinder affidavit. Further it is settled in law that respondents cannot substitute the reasoning, which is not mentioned in the order impugned, they have to assail the order only on the ground mentioned in the order impugned. They cannot substitute the reasoning by way of filing the affidavit. In Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 Supreme Court, 851, the Apex Court has held that the order impugned passed against a person and the reasoning given, same has to be seen according to that. The authority concerned has got no right to substitute the reasoning by way of filing affidavit. From perusal of order impugned it does not appear that proper reasons have been recorded while rejecting claim of petitioner. 11. In such circumstances, the order impugned cannot be sustained. Therefore, order dated 27.7.2010 is hereby quashed. The writ petition is allowed. Respondent No.2 is directed to take appropriate decision regarding sending petitioner on deputation to the National Investigation Agency on the basis of recommendation and on the basis of ‘No Objection Certificate’ given by authority concerned. A detailed and specific order regarding consideration of claim of petitioner be taken by respondent Nos.1 and 2 within a period of two months from the date of production of certified copy of this order. 12. No order as to costs. _____________