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2017 DIGILAW 40 (MEG)

Rajnish Kumar Rai, Ips v. Union of India

2017-06-13

DINESH MAHESHWARI, VED PRAKASH VAISH

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JUDGMENT : Dinesh Maheshwari, J. By way of this writ petition, the petitioner, who has filed the Original Application ['O.A.'] No.43/129/2017 before the Central Administrative Tribunal ['CAT'], Guwahati Bench, seeks to question the order dated 22.05.2017 as passed in the said O.A. whereby, the CAT has declined the prayer for interim relief. 2. The impugned order dated 22.05.2017, a short one, is taken note of in extenso as under:- "Ms. M. Deb, learned counsel for the applicant submitted that she fled OA.043/00001/ 2017 for quashing APAR for the period 31.08.2014 to 31.03.2015, which was later on withdrawn with liberty to file afresh. Accordingly this OA. Learned counsel for the applicant submitted that while the court was seized with the earlier OA, the respondents have supplied the applicant the copy of the APAR for the period 31.08.2014 to 31.03.2015. Learned counsel pointed out the areas of illegality with regard to APAR supplied to him, like the APAR form being issued on 29.03.2017, while the reporting officer has written the comments on 18.04.2016 and the accepting officer accepts the APAR on 06.04.2017. Learned counsel emphazised that prima facie reporting officer s comments are manufactured as he could not have written his remarks on 18.04.2016 in the APAR form which was issued on 29.03.2017. In view of the above, learned counsel submitted that there is prima facie case for intervention of the court. Issue notice. Mr. R. Hazarika, learned Addl. C.G.S.C. accepts notices on behalf of respondent nos. 1 & 2. Notice to other respondents be issued under Rule 11(1)(i) of the CAT (Procedure) Rules, 1987. Learned counsel for the applicant vehemently argued that during the pendency of the OA the respondents be barred from taking cognizance of the said APAR in deciding the service benefits like promotion etc. as he is in the consideration zone. Learned counsel was specifically asked, suppose, during pendency of the OA the applicant is promoted because of exclusion of the said APAR from the materials available before the DPC and at the final disposal of the OA the applicant looses on merits after hearing both parties, then it will lead to a very unsustainable legal position and the effect of interim order it will be as if the court has decided the case in his favour. The learned counsel agitatedly responded that how can she loose the OA in the APAR as supplied to the applicant has been manufactured by the respondents. In view of the above query and the reply, the interim relief as requested, cannot be granted. This court, however, not to burden the applicant and subject him go through avoidable further litigation, directs the respondents that all decisions taken by the respondents on the basis of the impugned APAR and even those in which this APAR is placed along with other relevant service material before the DPC/ competent authority will be suo motu reviewed as per the outcome of this OA. List the matter on 11.07.2017 before the Joint Registrar s court for completion of pleadings." 3. Seeking to challenge the order aforesaid, learned counsel for the petitioner has extensively referred to the grounds urged in the O.A. and the All India Services (Performance Appraisal Report) Rules, 2007 [the Rules of 2007']. With reference to the several requirements of the said Rules of 2007 and facts of the present case, it is strenuously argued that the respondent authorities have neither complied with nor adhered to the requirements of the said Rules of 2007; and not only this, according to the petitioner, the APAR for the period 31.08.2014 to 31.03.2015 was manufactured by the authorities concerned for which, even the APAR form later on issued on 29.03.2017 was used. 4. Though while considering the matter, we have indicated to the learned counsel for the petitioner that even if we assume that the petitioner has a prima facie case in his favour, the Tribunal has declined the interim relief on other relevant considerations about the balance of convenience and irreparable injury while safeguarding his interest with the requisite directions and observations. However, learned counsel would refer to the grounds sought to be urged against the action of the respondents, particularly where the case of petitioner is that the APAR for the said period had been manufactured only in order to cause him prejudice. As regards our queries on the question of balance of convenience and irreparable injury, learned counsel would submit that if the petitioner is deprived of promotion on the basis of the questioned APAR, he would suffer irreparable injury and excessive convenience. As regards our queries on the question of balance of convenience and irreparable injury, learned counsel would submit that if the petitioner is deprived of promotion on the basis of the questioned APAR, he would suffer irreparable injury and excessive convenience. Learned counsel has particularly referred to the decision of the Hon'ble Supreme Court in the case of Deoraj v. State of Maharashtra, AIR 2004 SC 1975 . Learned counsel has further submitted that in a similar nature case, where the CAT, Ahmedabad Bench granted interim relief but later on vacated the same, the Gujarat High Court interfered in the matter; and has referred to the order dated 13.08.2014 as passed by the Hon'ble Gujarat High Court in the case of Rahul Sharma-IPS v. State of Gujarat & Ors: Special Civil Application No. 11060 of 2014. Yet further, learned counsel has referred to the decision of the Hon'ble Supreme Court in the case of Zen it Mataplast Private Limited v. State of Maharashtra and others, (2009) 10 SCC 388 . 5. Having given thoughtful consideration to the submissions made and having examined the record with reference to the law applicable, we are unable to find any reason to interfere with the impugned order 22.05.2017 where, in our view, the Tribunal has dealt with the prayer for interim relief in accordance with the applicable principles. 6. So far the decision cited by the learned counsel for the petitioner in the case of Zenit Mataplast Private Limited (supra) is concerned, there cannot be any quarrel about the principles that every action of the State and its instrumentalities should not only be fair, legitimate, above-board and objective but should also be without any aversion and ought to be bona fide. These principles are the very foundation of the rule of law w here equality remains a fundamental ingredient; and, as indicated by the Hon'ble Supreme Court, there can be no rule of law, if there is no equality before the law. The fairness with no impression of bias, favouritism and discrimination are the basic requirements for validity of the State action. The fairness with no impression of bias, favouritism and discrimination are the basic requirements for validity of the State action. However, so far the petitioner's case is concerned, these principles of lawr are relevant only to consider prima facie case at this stage or might be of bearing at the time of final hearing of the O.A. As observed hereinabove, we have indicated to the learned counsel for the petitioner at the very threshold that even if assume a prima facie case in favour of the petitioner, the question is as to whether the other necessary ingredients for interim relief i.e., balance of convenience and irreparable injury could be considered standing in favour of the petitioner? The aforesaid decision in Zenit Mataplast Private Limited case does not apply for an answer to this question. 7. So far the decision of the Hon'ble Gujarat High Court in Rahul Sharma's case (supra) is concerned, we are constrained to say that the said decision cannot, by any stretch of imagination, be cited as a precedent because, in fact, nothing has been decided by the Gujarat High Court therein. It is noticed that in O. A. No. 170 of 2014, the Tribunal had granted interim order on 06.03.2014 but the same was vacated on 06.08.2014. In the Special Civil Application against the said order dated 06.08.2014, the learned Additional Advocate General appearing for the State conceded that the impugned order of the Tribunal may be quashed and the application of the State (for vacation of the interim order) may be placed before the Tribunal for consideration afresh. A submission was made on behalf of the petitioner that he would be interested to go with the final hearing of the O.A. before the Tribunal on the date fixed by the Tribunal, but the Court declined to pass any such order for that being the matter of the discretion of Tribunal, looking to the availability of Bench. Nothing of any point of law has been decided by the Hon'ble Gujarat High Court in the said decision where the matter w as restored to the file of Tribunal for consideration afresh as per concession of the respondents. 8. Of course, in the case of Deoraj (supra), the Hon'ble Supreme Court disapproved an order of the High Court declining interim relief and granted interim relief while indicating the relevant considerations therefor. 8. Of course, in the case of Deoraj (supra), the Hon'ble Supreme Court disapproved an order of the High Court declining interim relief and granted interim relief while indicating the relevant considerations therefor. The relevant facts of the said case had been that the election of the Chairman of Co-operative Society for a term of one year was held on 11.12.2003 and the appellant was the only person w ho had filed the nomination; and the nomination had not been withdrawn. However, the Tehsildar-cum-Returning Officer recorded that the Board of Directors of the Society was consisting of eight Directors and coram for the special meeting was one half plus one Director; and because of availability of only four Directors, the coram for the meeting w as not complete. With these considerations, the Returning Officer stayed the special meeting and hence, the result was not declared though the appellant was the lone candidate with valid nomination. When the matter was taken up and decided by the Supreme Court on 06.04.2004, it was noticed that a little less than half of the term of one year had already gone by and in the peculiar and compelling circumstances of the case, if the interim relief was not granted, nothing would survive for being given by way of relief at the end of final hearing. The Hon'ble Supreme Court indicated the principles for grant of interim relief and found the particular case fit for grant of such relief while observing, inter alia, as under:- "12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case - of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilling the balance of case totally in favour of the applicant may persuade the Court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. Of course, such would be rare and exceptional cases. The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the Court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the Court would not be able to vindicate the cause of justice. Obviously such would be rare case accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the Court may put the parties on such terms as may be prudent. 13. The present one is a case where we are fully satisfied that a foolproof case for the grant of interim relief was made out in favour of the petitioner in the High Court on the basis of the material available before the Court. There was only one nomination filed which was found to be in order, and was not withdrawn. The time appointed for filing nominations, scrutiny and withdrawal was over. There was no contest. Nothing had remained to be done at the meeting of the Committee which was to be convened only for the purpose of declaring the result. Nothing was to be put to vote. Holding of a meeting was only for the purpose of performing the formality of declaring the appellant as elected. In fact the election programme, as notified, itself contemplated the meeting at 1400 hours for voting and counting 'if felt necessary'. The provision as to quorum lost all its significance. It did not make any difference whether there were eight Directors to hear the declaration of result or just four or even none. May be the Directors having learnt of there being a single valid nomination and that loo not withdrawn, also knew that the result of the election was a fait accompli, and therefore, did not want to take the trouble of even coming to the venue of the meeting. May be the Directors having learnt of there being a single valid nomination and that loo not withdrawn, also knew that the result of the election was a fait accompli, and therefore, did not want to take the trouble of even coming to the venue of the meeting. Unless something was brought to the notice of the Court either by way of material in the shape of documents or affidavits or even by way of a plea raised before the Court which could come in the way of the relief being granted to the writ petitioner, in the case of such a nature, the interim relief ought to have been granted. The writ petitioner-appellant is right in submitting that the election was for a period of one year out of which a little less than half of the time has already elapsed and in the absence of interim relief being granted to him there is nothing which would survive for being given to him by way of relief at the end of the final hearing." 9. Thus, in rare cases when there are compelling circumstances and where denial of interim relief is considered doing violence to the sense of justice and at the end, the Court might not be able to vindicate the cause of justice, the grant of interim relief may be considered justified. However, in the given fact situation, we are unable to find the present one to be such a rare case with compelling circumstances. 10. In the present case, during the course of consideration, we have posed a query as to whether the respondents have promoted anyone junior to the petitioner until now? Learned counsel for the petitioner could not answer in the affirmative to this query. Prima facie, it appears that the petitioner is an officer of 1992 batch in Gujarat cadre and the incumbents up to 1991 batch have been taken up for promotion. The Tribunal has very consciously taken note of the requirements of balance of convenience and in order to safeguard the interest of the petitioner, has specifically provided that all the decisions taken by the respondents on the basis of the impugned APAR and other decisions in which the said APAR is placed along with other relevant service material before the DPC or before any competent authority would be suo motu reviewed as per the outcome of O.A. 11. In the totality of circumstances of this case, the order as passed by the Tribunal appears to be a fairly balanced exercise of discretion and we are unable to find any case of jurisdictional error so as to consider interference in the writ jurisdiction. 12. In view of the above, this writ petition fails and is, therefore, dismissed.