- (1.) The petitioner is a registered society working as Non-Governmental Organization (NGO) rendering its services for the society at large and raising the different issues, which are adversely affecting common constitutional interest of the citizens of the country. It has filed the present writ petition in the form of public interest litigation praying inter alia for directing the State of Uttar Pradesh-respondent No. 1 to transfer Sri Rakesh Bahadur, I.A.S., Chairman, New Okhla Industrial Development Authority, Gautam Budh Nagar (in short called as the "NOIDA") and Sri Sanjeev Saran, I.A.S., Chief Executive Officer, NOIDA, the respondent Nos. 4 and 5 respectively in the present writ petition, and to issue suitable orders declaring all the orders and decisions taken by the said respondent Nos. 4 and 5 as non est and ineffective. Further directions have also been sought for upon the respondent No. 1 to initiate enquiry of the entire matter by an independent agency and to restrain the respondent Nos. 4 and 5 from holding the respective offices of NOIDA. It has also been prayed that the State of Uttar Pradesh be directed to formulate a scheme of posting of I.A.S. Officers over sensitive and important posts. Other incidental prayers have also been made. Learned Advocate General has contended before us that the petitioner society belongs to District Pratapgarh, Uttar Pradesh and is espousing the cause of the NOIDA. The tenure of such society has already expired. Learned Senior Counsel appearing for the respondent Nos. 4 and 5 has stated that this writ petition is virtually a proxy petition of the other interested persons, which he has categorically stated in Paragraph Nos. 8, 11 (h to j), 15 and 39 of the counter-affidavit. To that the writ petitioner has stated that every citizen has the right to raise the cause of public interest particularly if it appears that any action is causing harm to the public exchequer. He said that these officers have indulged corrupt practice and misused their position. Further, learned Advocate General has contended that the dispute is with regard to appointment of respondent Nos. 4 and 5 and not with regard to transfer or posting, therefore, in the service matter public interest litigation is not maintainable as per the ratio propounded by the Supreme Court in the judgments in Hari Bansh Lal v. Sahodar Prasad Mahto and others, 2010 9 SCC 655 relying upon the judgment in R.K. Jain v. Union of India, 1993 4 SCC 119 amongst others, which, according to us, is factually distinguishable herein. In any event, so far as locus is concerned, we find that much water has flown by the river Ganges as we come to know from the ratio of the judgment in Akhil Bhartiya Upbhokta Congress v. State of Madhya Pradesh, 2011 5 SCC 29.
(2.) As a first blush the writ petition appears to have been filed for intervention with the service i.e. posting, etc. of the respondent Nos. 4 and 5, which cannot be adjudicated in the public interest litigation, but when we entered into various aspects of the matter, we find that the element of "colourable exercise of power" is a prime cause behind initiation of this public interest litigation, wherein "lifting of veil" is far more required. In State of Uttaranchal v. Balwant Singh Chaufal, 2010 3 SCC 402; Delhi Airtech Services (P) Ltd. v. State of U.P., 2011 9 SCC 354 and Akhil Bhartiya Upbhokta Congress it has been categorically held by the Supreme Court that to unearth corruption and maintain probity and morality in the governance of the State there should not be any embargo in making public interest litigation. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Reasons become further cogent when we find that another Division Bench of this Court at the time of entertaining this writ petition made certain observations by an order dated 29th June, 2012, which are as follows: However, from the records of the present petition, we find that against respondent Nos. 4 and 5, departmental proceedings have been initiated by the State Government in respect of their acts and omissions, while discharging duties earlier, as Chairman and Chief Executive Officer of NOIDA respectively. The State Government is not only proceeding departmentally against these officers, it has also lodged a first information report in respect of their acts. The allegations in the first information report besides other are that because of deliberate acts of the said officers, which were motivated by other considerations, loss of more than 47,00 crores (sic.)(47 thousand crores) has been caused to the State Government. The Court has been informed that a final report has been submitted in the criminal case but the same has not been accepted by the Court concerned till date. Prima facie we are of the opinion that the State Government must examine for itself at the first instance as to whether it is appropriate that respondent Nos. 4 and 5, who are facing departmental disciplinary proceedings and are being investigated for criminal offence, for their acts and omissions pertaining to earlier posting at the same offices at NOIDA, be posted elsewhere till acquitted in the proceedings aforesaid or not. It is needless to emphasize that when there are serious allegations of loss being caused to the State Government because of alleged acts and omissions on the part of the officers, running into thousands of crores of rupees, it has to be considered as to whether for fair and impartial enquiry/investigation, such officers be kept away from the concerned offices or not. This Court may refer to the judgments of the Apex Court in the case of U.P. Rajya Krishi Utpadan Mandi Parishad and others v. Sanjeev Ranjan, 1993 2 JT 550 and in the case of Sri P.K. Dave v. Peoples Union of Civil Liberties (Delhi) and others, 1996 5 JT 381, wherein it has been laid down that ordinarily when there are allegations of defalcation of money against the head of the institution then such person should be kept out of office till the charges are finally disposed of. Any observations made herein above by this Court shall not prejudice the discretion of the State Government in any manner. It is open for the State Government to arrive at a fair and just decision on the material available with it. The exercise, as aforesaid, be completed by respondent No. 1 before the next date fixed in the matter. The decision be brought on record by the said date. On behalf of intervenor, Sri U.N. Sharma, learned Senior Advocate, it has been contended that if the Court is proceeding to entertain the present petition, it would be fair that an inquiry may also be directed to be conducted against the officers, who have been holding the offices concerned for last five years, inasmuch as there have been serious adverse observations of various Courts in the matter of lease/transfer of land within the jurisdiction of NOIDA. Petitioner as well as the State-respondents may file reply to the Intervention Application made by the intervenor by the next date. Sri U.N. Sharma, learned Senior Advocate on behalf of intervenor is permitted to file such further affidavit as may be necessary by the next date. List this matter on 31st July, 2012 before appropriate Bench.
(3.) However, neither any affidavit in compliance of the above mentioned order has been filed nor the directions made therein have been complied with. It appears to us that due to change of roaster the officials preferred to ignore the order of this Court dated 29th June, 2012. Thereafter time to time the matter came up before this Court. This Bench has also passed an order on 14th August, 2012 not only restricting itself to the cause of transfer of the respondent Nos. 4 and 5 but by appointing Special Officer/s with a limited purpose to visit the locale, collect the materials in connection with several allotments and submit a report before this Court. At the time of passing such order, though the learned Counsel appearing for the NOIDA had contended that they would supply all the materials but since the NOIDA is under the control and supervision of the respondent Nos. 4 and 5, we wanted an independent report of the Special Officer/s, which has been prepared and submitted before this Court under the sealed cover. As and when the order was passed by this Bench appointing Special Officer/s, surprisingly learned Senior Counsel appearing for the petitioner became little tilted being forgetful that the Court has intervened at his instance for the larger public interest, otherwise writ petition would have been treated to be simplicitor service dispute. He misunderstood the movement of the Court and took adjournment in a complaining mood. We are of the view that in a case of public interest litigation, it is duty of the petitioner to bring certain facts before the Court and thereafter it is a matter between the Court and wrongdoers, if any. Like other litigations, the Court cannot proceed on the fixed parameters. In any event, by an order dated 01st October, 2012 the Court was pleased to direct the petitioner to pay the remuneration as well as other expenses of the Special Officers. On 15th October, 2012 an application has been filed by the petitioner, being Civil Misc. Recall Application No. 315426 of 2012, for recalling the order dated 01st October, 2012 on the ground that the petitioner could not manage the amount payable to the Special Officers. We are of the view that the ground of lack of fund for the purpose of payment of remuneration and other incidentals to the Special Officers cannot be accepted from such type of petitioner who wanted to have luxury and has engaged very senior lawyers of this Court for espousing the cause of such sensitive issue and got the matter argued on day to day basis. Therefore, such recalling application is rejected, however, without imposing any cost. It is directed that the remuneration and other expenses, if not already paid, will be paid by the petitioner within a period of three weeks from this date, otherwise the same will be recovered by the concerned District Magistrate as arrears of land revenue and will be paid to them. Upon payment or recovery of remuneration, cost and expenses, etc., the Special Officers will be discharged from their duty as Special Officers and one of them Mr. Arnab Banerji, learned Advocate of this Court, will be treated to be amicus curiae to assist the Court for the future.;