LAW FOR ALL : July 2014

Thursday, July 31, 2014

Service matter - Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 - for promotion to the Indian Administrative Service - Dropping disciplinary proceedings against the 1st respondent was recommended for promotion and was selected pending case in Central Tribunal - Central Tribunal allowed the O.A. - High court reversed the same - Apex court held that the State Government misled the UPSC which resulted in wrong assessment of service records of 1st respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955. -The Tribunal noticed that the State Government dropped the charges against the 1st respondent without giving detailed reasons for such action. Considering the same the Tribunal held that the State Government failed to furnish the valid reasons for dropping charges and for subsequent issuance of integrity certificate to the 1st respondent. For the said reason theTribunal held that the action on the part of the State is a case of hasty decision.-The High Court failed to appreciate the guidelines dated 4th April, 2007 issued by the State Government with regard to the ACR and wrongly accepted the stand of the respondents that invalid ACRs were not to be considered. The High Court also exceeded its jurisdiction in discussing the charges framed against the 1st respondent and in justifying the grounds for dropping the charges, though it was not disclosed by the State Government. and set aside the impugned judgment and order dated 8th July, 2013 passed by the High Court in Writ Petition No.5508 of 2013, upheld the order passed by the Central Administrative Tribunal dated 18th February, 2013 with direction to the respondent(s) to reconsider the name of the appellant viz-a-viz 1st respondent for promotion to the post of Indian Administrative Service against the vacancies for the year 2009 = CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2014 (arising out of SLP(C)No.26223 of 2013) G. MOHANASUNDARAM … APPELLANT VERSUS R. NANTHAGOPAL AND ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41776

Service matter - Regulation 5(4) of the Indian Administrative Service (Appointment by Promotion) Regulations, 1955 - for promotion to the Indian Administrative Service - Dropping disciplinary proceedings against the 1st respondent was recommended for promotion and was selected pending case in Central Tribunal - Central Tribunal allowed the O.A. - High court reversed the same - Apex court held that the State Government misled the UPSC which resulted in wrong assessment of service records of 1st respondent in violation of Regulation 5(4) read with Regulation 6 of the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955. -The Tribunal noticed that the State Government dropped the charges against the 1st respondent without giving detailed reasons for such action. Considering the same the Tribunal held that the State Government failed to furnish the valid reasons for dropping charges and for subsequent issuance of integrity certificate to the 1st respondent. For the said reason theTribunal held that the action on the part of the State is a case of hasty
decision.-The High Court failed to appreciate the guidelines dated 4th April, 2007 issued by the State Government with regard to the ACR and wrongly accepted the stand of the respondents that invalid ACRs were not to be considered. The High Court also exceeded its jurisdiction in discussing the charges framed against the 1st respondent and in justifying the grounds for dropping the charges, though it was not disclosed by the State Government. and set aside the impugned judgment and order dated 8th July, 2013 passed by the High Court in Writ Petition No.5508 of 2013, upheld the order passed by the Central Administrative Tribunal dated 18th February, 2013 with direction to the respondent(s) to reconsider the name of the appellant viz-a-viz 1st respondent for promotion to the post of Indian Administrative Service against the vacancies for the year 2009=

The appellant and the 1st respondent are officers of Tamil Nadu State
Civil Services. They were considered for promotion to the Indian
Administrative Service (hereinafter referred to as the “IAS”) against
certain percentage of posts available for members of the State Civil
Service.
According to the appellant, though his ACRs
were far better than the ACRs of other candidates including 1st respondent,
he was not selected.
9. A notification dated 10th February, 2012 was issued by the Government
of India and the selected candidates were appointed to the IAS cadre for
the vacancies of 2009 and 2010.
10. The appellant having not selected/promoted filed Original Application
No.249 of 2012 before the Central Administrative Tribunal, Madras Bench
challenging the notification 10th February, 2012 passed by the Government
of India.=
When the matter was pending, on 15th March, 2012 the State
Government dropped the disciplinary proceedings against the 1st respondent
taking into consideration the enquiry report and reply filed by the 1st
respondent. =
By an amendment application filed in pending OA, the appellant
challenged the notification of 13th April, 2012, by which 1st respondent
was appointed to the Indian Administrative Service. =
Central Administrative Tribunal
The Central Administrative Tribunal, Madras Bench by its judgment and
order dated 18th February, 2013 allowed the Original Application filed by
the appellant, quashed the notification dated 10th February, 2012 in so far
as not including the name of the appellant herein and quashed the
notification dated 13th April, 2012 by which 1st respondent was appointed.=

High court

12. The High Court at the instance of the 1st respondent allowed the writ
petition and set aside the order passed by the Central Administrative
Tribunal, Madras Bench in OA No.249 of 2012.=

Apex court held that

we hold that in terms of Regulation
5(4) of the Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 it was incumbent upon State Government to forward
complete service records of all the eligible candidates including the 1st
respondent to the UPSC for considering them for promotion to IAS cadre.

Withholding of ACRs of the year 2003-2009 of the 1st respondent on a wrong
presumption that they were invalid, is illegal and fatal in the case of 1st
respondent towards his appointment to the post of Indian Administrative
Service.
The aforesaid fact though came to the notice of the UPSC which
sought clarification from the Government of Tamil Nadu, the State
Government misled the UPSC which resulted in wrong assessment of service
records of 1st respondent in violation of Regulation 5(4) read with
Regulation 6 of the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955.
28. The Central Administrative Tribunal by its judgment dated 18th
February, 2013 rightly held that the Selection Committee has not taken into
account all relevant facts and records to come to a conclusion that the 1st
respondent is superior to appellant.
29. The Central Administrative Tribunal also considered the issue of
departmental proceedings pending against the 1st respondent under Rule
17(b) of the Tamil Nadu Service (Discipline and Appeal) Rules, was noticed
by the Selection Committee as apparent from recommendation of the name of
1st respondent with a star mark shown against the same with a note that in
view of the pendency of the departmental proceedings inclusion of the name
of 1st respondent was provisional. In the said departmental proceedings
Enquiry Officer after going through the evidence and reply submitted by the
1st respondent held that the charge No.2 is proved against the 1st
respondent. In spite of the same, the State Government dropped the charges.

30. The Tribunal noticed that the State Government dropped the charges
against the 1st respondent without giving detailed reasons for such action.
Considering the same the Tribunal held that the State Government failed to
furnish the valid reasons for dropping charges and for subsequent issuance
of integrity certificate to the 1st respondent. For the said reason the
Tribunal held that the action on the part of the State is a case of hasty
decision.
31. The High Court failed to appreciate the guidelines dated 4th April,
2007 issued by the State Government with regard to the ACR and wrongly
accepted the stand of the respondents that invalid ACRs were not to be
considered. The High Court also exceeded its jurisdiction in discussing the
charges framed against the 1st respondent and in justifying the grounds for
dropping the charges, though it was not disclosed by the State Government.
32. For the reasons aforesaid, we set aside the impugned judgment and
order dated 8th July, 2013 passed by the High Court in Writ Petition
No.5508 of 2013, upheld the order passed by the Central Administrative
Tribunal dated 18th February, 2013 with direction to the respondent(s) to
reconsider the name of the appellant viz-a-viz 1st respondent for promotion
to the post of Indian Administrative Service against the vacancies for the
year 2009A. If necessary, a fresh Selection Committee or a Review Committee
shall be constituted and reconvened. The process of selection be completed
within three months. The order passed by the Tribunal stands modified to
the extent above.

33. The appeal is allowed with the aforesaid observations and directions.
No costs.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41776

SUDHANSU JYOTI MUKHOPADHAYA, V. GOPALA GOWDA

REPORTABLE
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2014
(arising out of SLP(C)No.26223 of 2013)

G. MOHANASUNDARAM … APPELLANT

VERSUS

R. NANTHAGOPAL AND ORS. … RESPONDENTS

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

Leave granted.
2. This appeal is directed against the judgment and order dated 8th
July, 2013 passed by the Division Bench of the High Court of Judicature at
Madras in Writ Petition No.5508 of 2013. Initially, the appellant herein
challenged the Government notifications dated 10th February, 2012 and 13th
April, 2012 whereby 1st respondent was promoted and appointed to the Indian
Administrative Service, before the Central Administrative Tribunal, Madras
Bench by filing OA No.249 of 2012 and the same was allowed by order dated
18th February, 2013. By the impugned judgment the High Court set aside the
said order dated 18th February, 2013 passed by the Central Administrative
Tribunal.
3. The factual matrix of the case is as follows:
The appellant and the 1st respondent are officers of Tamil Nadu State
Civil Services. They were considered for promotion to the Indian
Administrative Service (hereinafter referred to as the “IAS”) against
certain percentage of posts available for members of the State Civil
Service.
4. On 1st September, 2009, the State of Tamil Nadu prepared a list of 27
eligible candidates for consideration for appointment against 19 vacancies
of IAS for the year 2009. The list was sent to the Secretary, Union Public
Service Commission (hereinafter referred to as the “UPSC”). The name of the
appellant was included at serial No.26 and the name of the 1st respondent
was placed at serial No.16 of the said list prepared on the basis of
seniority list of the State Civil Service. In the seniority list of State
Civil Service the appellant was placed at serial No.59 and 1st respondent
at serial No.34.
5. On 4th November, 2009, the State Government issued a charge-sheet
against the 1st respondent under Rule 17(b) of the Tamil Nadu Civil Service
(Discipline and Appeal) Rules for certain irregularities committed by him
while working as Senior Regional Manager, Tamil Nadu State Marketing
Corporation Ltd. On 3rd February, 2011, the State Government prepared a
list of 10 eligible candidates for appointment to the IAS cadre against the
2009 vacancies. The appellant was shown at serial No.9 and 1st respondent
at serial No.4. The list was forwarded to the UPSC.
6. On 10th March, 2011, the UPSC sought for clarifications and some more
information from the State Government. By its letter dated 12th April,
2011, the State Government enclosed the Annual Character Rolls (ACRs) of
all the eligible candidates, which according to the State Government were
valid. The State Government withheld some of the ACRs of certain candidates
including the 1st respondent on the ground that the ACRs were not valid.
The ACRs of the 1st respondent pertaining to the period 27th July, 1998 to
10th June, 2002 i.e., for 5 years alone, were forwarded to the UPSC and the
ACRs of the 1st respondent for the period from 10th June, 2002 to 31st
March, 2009 were withheld by the State.
7. On 7th December, 2011, the State Government forwarded a list of 13
candidates for promotion to the IAS cadre against 2 vacancies for the year
2010. The appellant was shown at serial No.8 and the 1st respondent at
serial No.4. The ACRs of all the candidates including the 1st respondent
for the period 26th May, 2006 to 7th January, 2008 were forwarded.
8. The Selection Committee prepared a Select List of 2009 and 2010 on
27th December, 2011 against the respective vacancies of those years. The
appellant was not selected. According to the appellant, though his ACRs
were far better than the ACRs of other candidates including 1st respondent,
he was not selected.
9. A notification dated 10th February, 2012 was issued by the Government
of India and the selected candidates were appointed to the IAS cadre for
the vacancies of 2009 and 2010.
10. The appellant having not selected/promoted filed Original Application
No.249 of 2012 before the Central Administrative Tribunal, Madras Bench
challenging the notification 10th February, 2012 passed by the Government
of India. When the matter was pending, on 15th March, 2012 the State
Government dropped the disciplinary proceedings against the 1st respondent
taking into consideration the enquiry report and reply filed by the 1st
respondent. By an amendment application filed in pending OA, the appellant
challenged the notification of 13th April, 2012, by which 1st respondent
was appointed to the Indian Administrative Service. The UPSC, State
Government and 1st respondent filed their respective replies to which the
appellant filed a rejoinder. According to the UPSC, the selection was made
in accordance with the rules and the valid ACRs which were forwarded by the
State Government. The State Government in its reply justified its action in
sending only the valid ACRs and the 1st respondent disputed the allegation
made against him.
11. The Central Administrative Tribunal, Madras Bench by its judgment and
order dated 18th February, 2013 allowed the Original Application filed by
the appellant, quashed the notification dated 10th February, 2012 in so far
as not including the name of the appellant herein and quashed the
notification dated 13th April, 2012 by which 1st respondent was appointed.
12. The High Court at the instance of the 1st respondent allowed the writ
petition and set aside the order passed by the Central Administrative
Tribunal, Madras Bench in OA No.249 of 2012.
13. Learned counsel for the appellant submitted that the High Court by
the impugned judgment and order dated 8th July, 2013 reversed the well
reasoned judgment and order dated 18th February, 2013 of Central
Administrative Tribunal, Madras Bench, ignoring the fact that the 1st
respondent was facing major charges and had adverse entry in the ACRs at
the time of selection. It was contended that though ACRs for the period
from 1st October, 2002 to 31st March, 2009 of 1st respondent were available
they were not forwarded by the State Government to the UPSC. According to
him in the matter of promotion and compulsory retirement from service,
entire service record of the officer concerned should have been considered.

14. Learned senior counsel for the appellant further contended that
respondents acted arbitrarily in not taking into consideration the relevant
ACRs of the 1st respondent on the ground that they were written beyond the
time prescribed by the State Government.
15. Learned counsel for the UPSC contended that at time of holding
Selection Committee meeting for the Select List of 2009, the State
Government forwarded the ACRs stated to be valid and duly certified. The
meeting was then convened for 4th December 2009, however, when the
Committee met on 4th December, 2009, it was observed that certain issues
relating to the validity of the ACRs of officers in the zone of
consideration were required to be resolved by the State Government, and the
meeting was, therefore deferred. Subsequently, when the Select List for
2009 was to be drawn up, the State Government forwarded the ACRs vide its
letter dated 10th March, 2010 along with the validity certificate. The
meeting was convened on 26th May, 2010 and the Select List of 2009 for 19
vacancies was drawn up. The 1st respondent was considered at serial No.17
and his ACRs for the certain period were considered. But since his ACRs for
the period 2003-2004 to 2005-2006 were not available, the Committee in
accordance with the guidelines considered the ACRs for the period 1999 to
2002.
16. Learned counsel for UPSC further submitted that on 31st March, 2010,
the Government of India determined 7 vacancies for the year 2010. The
Select List of 2010 was renamed as 2009A in view of the judgment of the
High Court of Punjab and Haryana regarding overlapping Select List for a
particular year. The State Government forwarded the ACRS vide letter dated
3rd February, 2011. On the scrutiny of the ACRs, it was found that the ACRs
of some of the officers including 1st respondent which were furnished
during the last Selection Committee meeting were not furnished before the
present Selection Committee and the ACRs which were not furnished earlier
were furnished. The reason for this change was asked from the State
Government vide letter dated 10th March, 2011 to which the State Government
replied by letter dated 12th April, 2011 that the State Government had
considered the ACRs written by the Reporting Officer or Scrutinizing
Officer within a period of 9 months as valid for the Select List 2009 which
were forwarded to UPSC considering the fact the officers reported upon need
not be penalized for no fault of theirs. It was further contended that for
the Select List 2009A, the State Government considered that the ACRs
written by both the Reporting Officer and Scrutinising Officer within a
period of 6 months are valid, barring certain cases for which ACRs written
for the periods slightly exceeding six months. The matter was once again
taken up by UPSC with the State Government as the revision in the time
limit for writing of ACRs with reference to the earlier selection would
lead to anomalous situation. The State Government by its letter dated 1st
December, 2011 intimated the UPSC that with a view to maintain consistency
after obtaining orders of the competent authority it was decided that the
ACRs written within 9 months may be considered valid for preparation of
Select List of 2009A and the Officers need not be penalized for no fault of
theirs. The meeting of the Selection Committee was held on 27th December,
2011. In the Select List of 2009A, 1st respondent was considered at serial
No.4 and he was assessed for the period 2004 to 2009. However, in view of
the ACRs ‘not available’ for the period 2004 to 2006 and for the year 2008-
2009, the Committee considered the ACRs of preceding years 1999 to 2002. In
this regard the UPSC has also referred to the Government’s guidelines
issued from time to time.
17. It was further submitted on behalf of the UPSC that since the rule of
the State Government regarding the period of writing of ACRs remained the
same to the Select Lists of 2009 and 2009A, the Selection Committee as per
the internal guidelines adopted the assessment of previous Selection
Committee. Therefore, assessment of ACR of 1st respondent for the period
from 26th May, 2006 to 6th March, 2007 certified as valid by the State
Government for select list of 2009 was adopted by Selection Committee which
met to prepare the select list of 2009A. It was also submitted that the
State Government is required to place only valid ACRs in the Dossier of
officers under the zone of consideration for a particular Select List, as
was done in this case.
18. We have considered the rival submissions made on behalf of the
parties. After giving our careful consideration to the facts and
circumstances of the case, we are of the view that the High Court was not
justified in interfering with the well reasoned order passed by the Central
Administrative Tribunal.
19. Promotion and appointment of officers of State Civil Service to
Indian Administrative Service are governed by Indian Administrative Service
(Appointment by Promotion) Regulations, 1955. As per Regulation 5(4) of the
Indian Administrative Service (Appointment by Promotion) Regulations, 1955
it is mandatory for the Selection Committee to make an overall relative
assessment of ‘service records’ of the eligible candidates. The said
Regulation reads as follows:

“Regulation 5(4) - The Selection Committee shall classify the
eligible officers as ‘Outstanding’, ‘Very Good, ‘Good’ or
‘Unfit’, as the case may be, on an overall relative assessment
of their Service records.”

20. Under Regulation 5(5), the list shall be prepared first from amongst
the officers finally classified as ‘Outstanding’ and then from amongst
those similarly classified as ‘Very Good’ and so on. The said regulation
reads as follows:

“Regulation 5(5) – The list shall be prepared by including the
required number of names, first from amongst the officers
finally classified as ‘Outstanding’ then from amongst those
similarly classified as ‘Very Good’ and thereafter from amongst
those similarly classified as ‘Good’ and the order of names
inter-se within each category shall be in the order of their
seniority in the State Civil Service.

Provided that the name of any officer so included in the list,
shall be treated as provisional, if the State Government,
withholds the integrity certificate in respect of such an
officer or any proceedings, departmental or criminal, are
pending against him or anything adverse against him which
renders him unsuitable for appointment to the service has come
to the notice of the State Government.

Provided further that while preparing year-wise select lists
for more than one year pursuant to the second proviso to sub-
regulation (1), the officer included provisionally in any
of the select list so prepared, shall be considered for
inclusion in the select list of subsequent year in addition to
the normal consideration zone and in case he is found fit for
inclusion in the suitability list for that year on a provisional
basis, such inclusion shall be in addition to the normal size of
the select list determined by the Central Government for such
year.”

As per first proviso to Regulation 5(5) the name of such officer so
included in the Select List against whom departmental proceedings are
pending or anything adverse as has come to the notice of the State
Government which renders him unsuitable for appointment to the service is
provisional.
21. Regulation 6 relates to consultation with UPSC. As per the said
Regulation the list prepared in accordance with Regulation 5 is required to
be forwarded to the UPSC by the State Government along with records of all
members of the State Civil Service included in the list.
22. From the stand taken by the respondents, it is clear that the State
Government did not send all the service records of eligible candidates to
UPSC for consideration. Particularly, the relevant service records of 1st
respondent, for the preceding five years prior to selection were not
forwarded on the ground that they are not valid.
23. The minutes of the meeting of the Selection Committee dated 27th
December, 2011 as recorded at paragraph 5.3 and 5.4 of the proceedings
suggests that the service records of all the officers upto the year 2008-
2009 were considered and on that basis the 1st respondent was recommended
for promotion. But this is far from truth as apparent from paragraph 5.3,
5.4 and 5.5 of the proceedings as quoted hereunder:
“5.3. The Committee examined the service records of the
officers whose names are included in the Annexure and who
fulfilled the conditions of eligibility for promotion to the
IAS. The Committee took into consideration the ACRs of the
officers (certified as valid by the State Government vide letter
dated 07.12.2011) upto the year 2008-09. On an overall relative
assessment of their service records, the Committee assessed them
as indicated against their names in the Annexure. While
assessing their suitability, the Committee did not take into
consideration any adverse remarks in the ACRs of the officers
which were not communicated to them.

5.4 The Committee examined the records of the officers whose
names are included in Annexure-I and who fulfilled the
conditions of eligibility, up to the year 2008-09. On an overall
relative assessment of their service records, the Committee
assessed them as indicated against their names in Annexure-I.
while assessing their suitability, the Committee did not take
into consideration any adverse remarks in the ACRs of the
officers which were not communicated to them.

5.5 On the basis of the above assessment, the Committee
selected the officers whose names are mentioned below as
suitable for promotion to the Indian Administrative Service and
placed them in the following order:-

|Sl. No. |Name of the Officer |Date of Birth |
| |(Smt./Shri) | |
|1. |P. Senthilkumar (SC) |18.12.1957 |
|2. |V. Kalaiarasi |29.03.1969 |
|3. |G. Govindaraj (SC) |26.04.1960 |
|4. |V. Mohanraj (SC) |22.01.1957 |
|5.* |R. Nanthagopal |23.05.1964 |
|6. |N. Vankatachalam |29.04.1965 |
|7. |C. Manoharan (SC) |15.12.1955 |

*The names at S.No.5 has been included in the list
provisionally subject to clearance in the disciplinary
proceedings pending against him and grant of integrity
certificate by the State Government.”

The name of the 1st respondent was included provisionally subject to
clearance in the disciplinary proceedings pending against him and grant of
integrity certificate by the State Government.
24. The appellant had challenged the action of State Government declaring
an ACR invalid in absence of any valid reason. According to the learned
counsel for the appellant, merely because an ACR has been written beyond
the period of 9 months, it cannot be held to be invalid in absence of
limitation prescribed under any rule or guideline.
25. On behalf of the State Government reliance has been placed on
Government Order dated 4th April, 2007 issued by Personnel and
Administrative Reforms (K) Department of State of Tamil Nadu. The
Government issued guidelines with respect to writing of the Annual
Confidential Report by the said Government Order. The relevant portion of
the said order reads as follows:

“6.The Government have examined the above issue afresh and in
supersession of all the existing instructions the following
fresh instructions are issued in respect of writing of
confidential reports by the Reporting Officers whenever they are
demitting office either on transfer or for other reasons in the
middle of the year. The following instructions are to be
followed scrupulously.

“Whenever the Reporting Officers are to relinquish charge
on transfer or for other reasons, they should write the
confidential reports in respect of all his subordinate officers
and the handling over charge report should accompany a
certificate to his higher officer that he had completely written
the confidential reports on all his subordinate officers.
However, it it is not possible to adhere to the above procedure,
due to administrative reasons, he may take a reasonable time to
write confidential reports but this time limit should not
ordinarily exceed 90 days from the date of his demitting
office.”

26. In the guidelines issued by the State Government, there is nothing to
declare any Annual Confidential Report invalid. The period of 90 days
prescribed therein is not mandatory but directory. The 90 days period is
also to be counted from the date of demitting office by the officer who
writes the A.C.R.
27. In view of the discussion above, we hold that in terms of Regulation
5(4) of the Indian Administrative Service (Appointment by Promotion)
Regulations, 1955 it was incumbent upon State Government to forward
complete service records of all the eligible candidates including the 1st
respondent to the UPSC for considering them for promotion to IAS cadre.
Withholding of ACRs of the year 2003-2009 of the 1st respondent on a wrong
presumption that they were invalid, is illegal and fatal in the case of 1st
respondent towards his appointment to the post of Indian Administrative
Service. The aforesaid fact though came to the notice of the UPSC which
sought clarification from the Government of Tamil Nadu, the State
Government misled the UPSC which resulted in wrong assessment of service
records of 1st respondent in violation of Regulation 5(4) read with
Regulation 6 of the Indian Administrative Service (Appointment by
Promotion) Regulations, 1955.
28. The Central Administrative Tribunal by its judgment dated 18th
February, 2013 rightly held that the Selection Committee has not taken into
account all relevant facts and records to come to a conclusion that the 1st
respondent is superior to appellant.
29. The Central Administrative Tribunal also considered the issue of
departmental proceedings pending against the 1st respondent under Rule
17(b) of the Tamil Nadu Service (Discipline and Appeal) Rules, was noticed
by the Selection Committee as apparent from recommendation of the name of
1st respondent with a star mark shown against the same with a note that in
view of the pendency of the departmental proceedings inclusion of the name
of 1st respondent was provisional. In the said departmental proceedings
Enquiry Officer after going through the evidence and reply submitted by the
1st respondent held that the charge No.2 is proved against the 1st
respondent. In spite of the same, the State Government dropped the charges.

30. The Tribunal noticed that the State Government dropped the charges
against the 1st respondent without giving detailed reasons for such action.
Considering the same the Tribunal held that the State Government failed to
furnish the valid reasons for dropping charges and for subsequent issuance
of integrity certificate to the 1st respondent. For the said reason the
Tribunal held that the action on the part of the State is a case of hasty
decision.
31. The High Court failed to appreciate the guidelines dated 4th April,
2007 issued by the State Government with regard to the ACR and wrongly
accepted the stand of the respondents that invalid ACRs were not to be
considered. The High Court also exceeded its jurisdiction in discussing the
charges framed against the 1st respondent and in justifying the grounds for
dropping the charges, though it was not disclosed by the State Government.
32. For the reasons aforesaid, we set aside the impugned judgment and
order dated 8th July, 2013 passed by the High Court in Writ Petition
No.5508 of 2013, upheld the order passed by the Central Administrative
Tribunal dated 18th February, 2013 with direction to the respondent(s) to
reconsider the name of the appellant viz-a-viz 1st respondent for promotion
to the post of Indian Administrative Service against the vacancies for the
year 2009A. If necessary, a fresh Selection Committee or a Review Committee
shall be constituted and reconvened. The process of selection be completed
within three months. The order passed by the Tribunal stands modified to
the extent above.

33. The appeal is allowed with the aforesaid observations and directions.
No costs.
………………………………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

……………………………………………………………………J.
(V. GOPALA GOWDA)

NEW DELHI,
JULY 21, 2014.

Wednesday, July 30, 2014

Section 20-A of TADA -Mandatory - whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. - Apex court held that A careful reading of the section leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek. We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same - a course that is legally impermissible - Acquitted all accused as there was no evidence under penal laws apart from TADA = CRIMINAL APPEAL NO. 92 OF 2009 Hussein Ghadially @ M.H.G.A Shaikh & Ors. …Appellants Versus State of Gujarat …Respondent = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41775

Section 20-A of TADA - Mandatory - whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. - Apex court held that A careful reading of the section leaves no manner of doubt that the provision starts with a non obstante clause and is couched in negative phraseology. It forbids recording of information about the commission of offences under TADA by the Police without the prior approval of the District Superintendent of Police. The question is whether the power of approval vested in the District Superintendent of Police could be exercised by either the Government or the Additional Police Commissioner, Surat in the instant case. Our answer to that question is in the negative. The reasons are not far to seek. We say so firstly because the statute vests the grant approval in an authority specifically designated for the purpose. That being so, no one except the authority so designated, can exercise that power. Permitting exercise of the power by any other authority whether superior or inferior to the authority designated by the Statute will have the effect of re-writing the provision and defeating the legislature purpose behind the same - a course that is legally impermissible - Acquitted all accused as there was no evidence under penal laws apart from TADA =

In Criminal (TADA) case No.59 of 1995 and 2 of 2000 arising out of
C.R. No.32 of 1993 the Designated Court has similarly convicted some of the
accused persons who are (appellants before us in Criminal Appeals No.110 of
2009 and 659 of 2009). =

The State has also assailed in the appeals filed by
it the judgment of the Trial Court and sought enhancement of the sentence
awarded to those convicted by it in Criminal Appeals No.303-304 of 2009.=

It was contended that the conviction and sentence of the appellants
ought to be set aside not only because the provision of Section 20-A (1) is
mandatory but also because the power to grant approval for recording of
information about the commission of an offence under the Act could be
exercised only by the authority concerned under such provision and by
nobody else.
The designated authority could not, contended Mr. Kumar
abdicate the exercise of power in favour of any other authority, no matter
such other authority was higher in rank to the designated authority.
It was also contended that if the law prescribes a particular procedure for
doing a particular thing then any such thing could be done only in the
manner prescribed or not at all.
Inasmuch as the procedure prescribed by
law which required the approval of the competent authority to grant
approval for recording the information had not been followed, the trial and
conviction of the appellants in breach of a mandatory provision was legally
unsustainable.

Apex court held that

whether these approvals can be said
to be sufficient compliance with the provisions of Section 20-A of TADA
that reads as under:-

“20-A Cognizance of offence.

Notwithstanding anything contained in the Code, no information about the
commission of an offence under this Act shall be recorded by the police
without the prior approval of the District Superintendent of Police.

No court shall take cognizance of any offence under this Act without the
previous sanction of the Inspector-General of Police, or as the case may
be, the Commissioner of Police.”

17. A careful reading of the above leaves no manner of doubt that the
provision starts with a non obstante clause and is couched in negative
phraseology. It forbids recording of information about the commission of
offences under TADA by the Police without the prior approval of the
District Superintendent of Police. The question is whether the power of
approval vested in the District Superintendent of Police could be exercised
by either the Government or the Additional Police Commissioner, Surat in
the instant case. Our answer to that question is in the negative. The
reasons are not far to seek. We say so firstly because the statute vests
the grant approval in an authority specifically designated for the purpose.
That being so, no one except the authority so designated, can exercise
that power. Permitting exercise of the power by any other authority
whether superior or inferior to the authority designated by the Statute
will have the effect of re-writing the provision and defeating the
legislature purpose behind the same - a course that is legally
impermissible

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41775

T.S. THAKUR, C. NAGAPPAN
REPORTABLE

CRIMINAL APPELLATE JURISDICTION
IN THE SUPREME COURT OF INDIA
CRIMINAL APPEAL NO. 92 OF 2009

Hussein Ghadially @ M.H.G.A
Shaikh & Ors. …Appellants

Versus

State of Gujarat …Respondent

With

Criminal Appeals No.110 of 2009, 303-304 of 2009, 305 of 2009, 432-433 of
2009, 658-659 of 2009

J U D G M E N T

T.S. THAKUR, J.

1. Common questions of law arise for consideration in these appeals
which were heard together and shall stand disposed of by this common order.
The appeals arise out of two separate judgments delivered by the Designated
Court at Surat both dated 4th October, 2008 whereby the Designated Court
has while acquitting some of the accused persons convicted the rest and
sentenced them to imprisonment for different periods ranging between 10 to
20 years. In Criminal (TADA) case No.41 of 1995 disposed of with Criminal
(TADA) case No.1 of 2000 arising out of C.R. No.70 of 1993 relevant to
Criminal Appeals No.92 of 2009 and 658 of 2009, the Designated Court has
convicted the appellants in those appeals while respondents in Criminal
Appeal No.305 of 2009 filed by the State of Gujarat against the very same
judgment have been acquitted. In Criminal Appeals No.432-33 of 2009 the
State has sought enhancement of the sentence awarded to those convicted by
the Trial Court.

2. In Criminal (TADA) case No.59 of 1995 and 2 of 2000 arising out of
C.R. No.32 of 1993 the Designated Court has similarly convicted some of the
accused persons who are (appellants before us in Criminal Appeals No.110 of
2009 and 659 of 2009). The State has also assailed in the appeals filed by
it the judgment of the Trial Court and sought enhancement of the sentence
awarded to those convicted by it in Criminal Appeals No.303-304 of 2009.

3. The facts giving rise to the registration of I.C.Rs. No.32 and 70 of
1993 at Varccha and Surat Railway Police Stations in the State of Gujarat
respectively leading to the arrest of those accused of committing the
offences and their eventual conviction by the Trial Court have been set out
at great length by the said Court below in the two judgments and orders
impugned before us. We need not, therefore, recapitulate the entire factual
backdrop in which the appellants were tried, found guilty and sentenced
except to the extent it is absolutely necessary to do so. Suffice it to say
that the two blasts one at Mini Hira Bazar, Varccha Road, Surat and the
other at Platform 1, Surat Railway Station took place on 28th January, 1993
and 22nd April, 1993 respectively. In the incident that took place at Mini
Hira Bazar, Varccha Road, one minor girl barely 8 years old lost her life
while as many as 11 others were injured. The second incident at the Surat
Railway Station relevant to ICR No.70 of 1993 left as many as 38 persons
injured, some of them grievously. The prosecution case is that the genesis
of the two incidents mentioned above lay in the demolition of the Babri
Masjid on 6th December, 1992 at Ayodhaya which had led to wide-spread
communal riots in several parts of the country. These riots took place
even in the city of Surat causing damage to life and property to the Muslim
community. With a view to giving relief to those affected by such riots a
Relief Camp at Ranitalao area in the city of Surat was set up mainly by the
accused persons including Hussein Ghadially, Iqbal Wadiwala, Mohammad
Surti, Hanif Tiger and others. A makeshift office adjacent to the relief
camp provided to the accused persons space to hold their meetings.

4. The prosecution alleges that on account of riots and damage suffered
by the Muslims, the accused persons nurtured a feeling that the Government
and the police will not be able to protect their community. The
prosecution’s further case is that in order to protect the members of the
Muslim community and also to retaliate against the majority community the
accused persons initially decided to collect firearms, swords, spears, iron
rods, country made bombs and gelatin bombs etc. and to distribute the same
to those who had converged in the relief camp. It was also decided to
import firearms, bombs etc. from Abdul Latif, a notorious gangster of
Ahmedabad who was known to accused No.1 Hussain Ghadially. Abdul Latif was
then in Dubai but later arrested and produced before the Designated Court.
He was killed in a police encounter during the trial.

5. According to prosecution appellant-Hussein Ghadially and his wife
alongwith Iqbal Wadiwala (A-2) went to Ahmedabad in Maruti Van No. GJ 5A
5178 driven by one Bhupat Makwana. In order to carry arms and ammunition
including AK 47 rifles, cartridges and bomb etc. a concealed compartment
was created in the Maruti Van that was owned by appellant-Iqbal Wadiwala.
The arms and ammunition supplied by Abdul Latif (since deceased) were then
placed in the secret chamber of the vehicle and transported to Surat. The
prosecution alleges that the arms and ammunition to be used were kept at
different places for use to wreak vengeance against the majority community.
The blasts that took place on 28th January, 1993 at Mini Hira Bazar,
Varccha Road, Surat and at Surat Railway Station on 22nd April, 1993 were,
according to the prosecution, the culmination of the conspiracy hatched by
the accused and the efforts made by them including their active
participation in the sordid sequence leading up to grievous injuries to
several persons including the killing of an innocent child.

6. The prosecution further alleges that investigation into the crime by
the Surat Railway Police did not lead to the apprehension of the real
culprits. This forced the Director General of Police of the State of
Gujarat to constitute an Action Group for inquiry and investigation into
the crime. In the course of investigation by the Action Group, one Mushtaq
Patel was apprehended on 12th March, 1995 in connection with a case
registered in Umra Police Station under the Arms Act. In the course of
interrogation the said Mushtaq Patel revealed information relating to the
bomb blast at Platform No.1 at Surat Railway Station. This gave the Action
Group a break that led to a series of arrest of persons responsible for the
blasts and recovery of arms and ammunition comprising as many as 6 foreign
grenades, 2 AK 47 rifles and 199 live cartridges. The arrest of accused
persons and the seizure of arms and ammunition in turn led to invocation of
provisions of Terrorists and Disruptive Activities (Prevention) Act by
orders passed by the Additional Commissioner of Police, G Division, Surat
city and/or by the State Government.

7. Confessional statements of the accused persons were after the
application of the provisions of the said Act recorded by the Additional
Commissioner of Police and separate chargesheet in both FIRs filed before
the Designated Court in which accused Yusuf Dadu was shown as absconding.
Yusuf Dadu was subsequently apprehended and a supplementary chargesheet in
both the cases filed against him which came to be numbered as TADA cases
No.1 and 2 of 2000 in relation to the two incidents aforementioned. Before
the Designated Court the accused persons pleaded not guilty and claimed a
trial.

8. At the trial the prosecution examined as many as 120 witnesses in
TADA case No. 41 of 1995 with 1 of 2000 and 105 witnesses in TADA case No.
59 of 1995 with 2 of 2000. The accused did not lead any defence. The Trial
Court eventually found some of the accused persons guilty while some others
were acquitted giving them the benefit of doubt. Those found guilty were
sentenced to imprisonment ranging between 10 to 20 years details whereof
may be summarised as under:

|S. |Appella|Accused|Conviction by |Maximum |Conviction by |Maximum |
|No. |nt/Accu|-Appeal|Designated Court |Sentence |Designated Court |Sentence |
| |sed |No. |in TADA Case no. |awarded by |in TADA Case no. |awarded by |
| | | |41/1995 and |Designated |59/1995 and 2/2000|Designated |
| | | |1/2000 arising |Court in |arising out of |Court in TADA|
| | | |out of C.R. No. |TADA Case |C.R. No. 32/1993 |Case no. |
| | | |70/1993 |no. 41/1995|(Mini Hira Bazar) |59/1995 and |
| | | |(Railway Station)|and 1/2000 | |2/2000 |
|1 |Husein |92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |Ghadial|2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |ly A1 |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| | |of 2009|307, 326, 325 and| |120B IPC, s. | |
| | | |324 r/w 120B IPC,| |3,4,5 of Explosive| |
| | | |s. 3,4,5 of | |Substances Act and| |
| | | |Explosive | |25(1) A of Arms | |
| | | |Substances Act | |Act. | |
| | | |and 25(1) A of | | | |
| | | |Arms Act. | | | |
|2 |Iqbal |92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |Wadiwal|2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |a A2 |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| | |of 2009|307, 326, 325 and| |120B IPC, s. 3,4,5| |
| | | |324 r/w 120B IPC,| |of Explosive | |
| | | |s. 3,4,5 of | |Substances Act and| |
| | | |Explosive | |25(1) A of Arms | |
| | | |Substances Act | |Act. | |
| | | |and 25(1) A of | | | |
| | | |Arms Act. | | | |
|3 |Mohamma|92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |d Gulam|2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |@ |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| |Mohamma|of 2009|307, 326, 325 and| |120B IPC, s. 3,4,5| |
| |d Surti| |324 r/w 120B IPC,| |of Explosive | |
| | | |s. 3,4,5 of | |Substances Act and| |
| |A3 | |Explosive | |25(1) A of Arms | |
| | | |Substances Act | |Act. | |
| | | |and 25(1) A of | | | |
| | | |Arms Act. | | | |
|4 |Mustaq |92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |Ibrahim|2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |Patel |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| |A4 |of 2009|307, 326, 325 and| |120B IPC, s. 3,4,5| |
| | | |324 r/w 120B IPC,| |of Explosive | |
| | | |s. 3,4,5 of | |Substances Act and| |
| | | |Explosive | |25(1) A & 25(1)AA | |
| | | |Substances Act | |of Arms Act. | |
| | | |and 25(1) A & | | | |
| | | |25(1)AA of Arms | | | |
| | | |Act. | | | |
|5 |Salim |92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |Chawal/|2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |Manjro |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| |A5 |of 2009|307, 326, 325 and| |120B IPC, s. 3,4,5| |
| | | |324 r/w 120B IPC,| |of Explosive | |
| | | |s. 3(b) of | |Substances Act and| |
| | | |Explosive | |25(1) A &25(1)AA | |
| | | |Substances Act | |of Arms Act. | |
| | | |and 25 and 27 of | | | |
| | | |Arms Act. | | | |
|6 |Ahzaz |92 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|20 years RI |
| |Ahmed |2009 |TADA r/w 120B | |r/w 120B IPC, 5 of| |
| |Patel |and 110|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| |A6 |of 2009|307, 326, 325 and| |120B IPC, s. 3(B) | |
| | | |324 r/w 120B IPC,| |of Explosive | |
| | | |s. 3(b) of | |Substances Act and| |
| | | |Explosive | |25 & 27 of Arms | |
| | | |Substances Act | |Act. | |
| | | |and 25 & 27 of | | | |
| | | |Arms Act. | | | |
|7 |Aziz |110 of |Acquitted |___ |S. 201 R/W 120B |10 years RI |
| |Ibrahim|2009 |A7 | |IPC | |
| |Patel | | | |A8 | |
|8 |Mehmood|110 of |Acquitted |___ |s. 3(3) of TADA |10 years RI |
| |@ Baba |2009 |A8 | |r/w s. 120B IPC, | |
| |Ibrahim| | | |S. 5 of TADA, s. 5| |
| |Master | | | |of Explosives | |
| | | | | |Substances Act, | |
| | | | | |25(1)A of Arms Act| |
| | | | | |A10 | |
|9 |Fazal |110 of |Acquitted |___ |s. 3(3) of TADA |10 years RI |
| |Dawood |2009 |A9 | |r/w s. 120B IPC, | |
| |Nagori | | | |S. 5 of TADA, s. 5| |
| | | | | |of Explosives | |
| | | | | |Substances Act, | |
| | | | | |25(1)A of Arms Act| |
| | | | | |A11 | |
|10 |Saeed |110 of |Acquitted |___ |s. 3(3) of TADA |10 years RI |
| |Naadi @|2009 |A10 | |r/w s. 120B IPC, | |
| |Abdul | | | |S. 5 of TADA, s. 5| |
| |Saeed | | | |of Explosives | |
| |Abdul | | | |Substances Act, | |
| |Mazid | | | |25(1)A of Arms Act| |
| |Navdiwa| | | |A12 | |
| |la | | | | | |
|11 |Baba @ |110 of | | |S. 6 of TADA r/w |10 years RI |
| |Abdul |2009 | | |s. 120B IPC | |
| |Khalik | | | |A9 | |
| |Ali | | | | | |
| |Mohamma| | | | | |
| |d | | | | | |
| |Shaikh | | | | | |
|12 |Yusuf |658 of |s. 3(2)(ii) of |10 years RI|s. 3(2)(i) of TADA|LI for 20 |
| |Dadu @ |2009 |TADA r/w 120B | |r/w 120B IPC, 5 of|years |
| |Yusuf @|and 659|IPC, 5 of TADA, | |TADA, s. 302 r/w | |
| |Yaasin |of 2009|307, 326, 325 and| |120B IPC, s. 3(b) | |
| |@ | |324 r/w 120B IPC,| |& 5 of Explosive | |
| |Abdulla| |s. 3(b) & 5 of | |Substances Act and| |
| |Gulam | |Explosive | |25(1) A of Arms | |
| |husen | |Substances Act | |Act. | |
| |Nalband| |r/w s. 120B IPC | | | |
| | | |and 25(1) A of | | | |
| | | |Arms Act. | | | |
| | | |A11 | | | |

9. Appearing for the appellants Mr. Sushil Kumar, learned Senior
Counsel, strenuously argued that the trial and conviction of the appellants
for offences with which they were charged is vitiated for breach of the
mandatory provisions of Section 20-A (1) of The Terrorist and Disruptive
Activities Act (TADA). That provision it was contended required approval
of the District Superintendent of Police for recording of any information
about the commission of an offence punishable under the said Act. No such
approval was, however, either sought from or granted by the District
Superintendent of police concerned. Approval for recording of the
information was instead obtained from the Additional Chief Secretary, Home
Department, Government of Gujarat who had no power to grant the same under
the Act. So also the purported approval from the Additional Police
Commissioner, Surat was of no legal effect as the power to grant such
approval vested only in the District Superintendent of Police and could not
be exercised by the Additional Commissioner of Police or anyone holding an
equivalent rank. The power to grant approval being a sina qua non for
recording of any information about the commission of any offence under the
Act, absence of such approval was according to Mr. Sushil Kumar sufficient
by itself to vitiate any trial that was held in breach of the said
provision. Reliance in support of that submission was placed by Mr. Kumar
upon several decisions of this Court including one in Aniruddhsinhji Jadeja
& Anr. v. State of Gujarat (1995) 5 SCC 302 to which we shall presently
turn. It was contended that the conviction and sentence of the appellants
ought to be set aside not only because the provision of Section 20-A (1) is
mandatory but also because the power to grant approval for recording of
information about the commission of an offence under the Act could be
exercised only by the authority concerned under such provision and by
nobody else. The designated authority could not, contended Mr. Kumar
abdicate the exercise of power in favour of any other authority, no matter
such other authority was higher in rank to the designated authority. It
was also contended that if the law prescribes a particular procedure for
doing a particular thing then any such thing could be done only in the
manner prescribed or not at all. Inasmuch as the procedure prescribed by
law which required the approval of the competent authority to grant
approval for recording the information had not been followed, the trial and
conviction of the appellants in breach of a mandatory provision was legally
unsustainable.

10. Mr. Yashank Adhyaru, learned Counsel for the State of Gujarat, on the
other hand, contended that there was in the present cases no requirement of
prior approval for recording information about the commission of offences
under TADA inasmuch as the first information reports about the two
incidents were registered on 28th January, 1993 and 22nd April, 1993
whereas Section 20-A (1) was inserted in the Act subsequently on 22nd May,
1993. Alternatively it was contended by the learned counsel that the
approvals granted by the Government and the Additional Police Commissioner
were valid and substantially complied with the requirements prescribed
under Section 20-A (1).

11. Before we deal with the contentions urged at the bar we need to sail
smooth on the facts relevant to the registration of the two FIRs. The first
case relevant to the blast at Mini Hira Bazar, Varaccha Road, led to
registration of C.R. No.32 of 1993 not only for commission of offences
under the IPC and Explosive Substances Act but also under TADA. Almost one
year after the registration of the FIR, on 24th January, 1994 the Police
Commissioner, Surat instructed Varaccha Police Station to remove the TADA
provision from C.R. No.32 of 1993. These instructions came in the wake of
a decision taken by the TADA Review Committee in its meeting held on 24th
January, 1994. The instructions were carried out and TADA offences deleted
from the two cases in hand. Subsequent to the deletion of TADA from C.R.
No.32 of 1993, a request was made by P.C. Pandey Police Commissioner, Surat
to the Home Department, Government of Gujarat for re-application of the
provisions of TADA. The Police Commissioner pointed out that a Russian made
hand grenade was used in the blast. Approval for re-application of TADA
provisions was pursuant to the said request granted by the Additional Chief
Secretary, Home Department, Government of Gujarat on 12th May, 1995 and
intimated to the Additional Commissioner of Police, Surat. In his letter
dated 8th May, 1995, the Police Commissioner, Surat City sought approval
for reintroduction of TADA provisions in the following words:

“In the offence registered at Varacha Police Station, explosion was done by
a Russian made grenade which was revealed when accused were arrested in
Surat Railway P.St. O. Reg. No.I 60/93. Hence it is required that in
Varacha Police Station I O.Reg. No. 32/93 sections of 302, 307, 324, 326,
120(B) of I.P.C. and Sections 3,4,5 of Explosives Substances Act and
Sections 3 and 5 of Tada Act are required to be added. Hence sanction to
add Sections of Tada may be given.

Yours faithfully,

(P.C.Pande)
Police Commissioner
Surat City”

12. Approval dated 12-05-1995 granted by the Additional Chief Secretary,
Home Department was pursuant to the above request communicated to the
Police Commissioner, Surat City in the following words:

“To
Police Commissioner
Surat City,
Surat

Subject: Varacha P.St.I.O.Reg.No.32/93 Sanction of Tada

Sir,

This is to inform you with respect to above subject regarding your fax
message No. RB/100/1995 dt. 8.5.95 in the case registered at Varacha
P.St.(First) O.Reg. No.32/93:-

Additional Chief Secretary, Home Department has given sanction to apply the
Sections of Tada.

Yours faithfully,
Sd/- Illegible
(R.B.Thakkar)
Section Officer
Home Department (Special)”

13. Insofar as the second blast that took place on Platform No.1 Surat
Railway Station on 22nd April, 1993 is concerned, C.R. No.70 of 1993
registered in connection therewith was not only under the provisions of the
IPC and the Explosives Substances Act but also under Sections 3 and 7 of
TADA. The TADA provisions were, however, subsequently removed in this case
also pursuant to the decision taken by the Government on the basis of the
TADA Review Committee’s recommendations and the deletion intimated to the
competent Court at Surat. On 12th April, 1995, however, Additional Police
Commissioner Range 2, Surat City approved the re-introduction of Sections
3(1), 3 (2), 3(3), 3(4) and 5 of TADA Act to C.R. No.70 of 1993 registered
in connection with the said blast. The addition was accordingly made by the
investigating officer and intimated to the designated Judge appointed under
the TADA. This is evident from the following passage appearing in the
letter dated 13th April, 1995 addressed by the investigating officer to the
designated Court:

“ K.C. Parmar, P.S.I. of Action Group hereby reports that:-

Section 3(1)(2)(3)(4) and Section 5 of TADA Act have been added in Surat
Railway P.St. O.Reg. No. I 70/93 u/sec 307, 326, 324, 427, 120B of IPC and
U/sec 3,5,7 of Explosive Substances Act. According to the new provisions
of TADA Act, sanction of Additional Police Commissioner Range-2 Surat City
has been obtained which is enclosed herewith the case papers.

Hence this is to inform you that Sections 3(1)(2)(3)(4) and Section 5 of
TADA Act have been added in this offence which please note.

Date: 14.4.95 Sd/ - Illegible
(K.C.Parmar)
P.S.Inspector
Action Group, Surat City”

14. What is interesting is that even after the provisions of TADA had
already been introduced with the approval of the Additional Police
Commissioner, Range 2, Surat City, the Government appears to have been
approached for grant of approval for introduction of the TADA in C.R. No.70
of 1993 which approval was granted by the Additional Chief Secretary, Home
Department and conveyed to the designated court by the Assistant Police
Commissioner, G Division, Surat City in terms of his letter dated 12th May,
1995. The relevant portion of the letter conveys the Additional Chief
Secretary, Home Department’s approval for introduction of the TADA. It
reads as under:

“K.K. Chudasma (I.O) Assistant Police Commissioner Surat City “G” Division
reports that:-

Sanction of Additional Chief Secretary Home Department has been received
vide Fax Message No./ V2/ATK/2893/2768 Home Department, Block No.2, Sardar
Bhavan, Sachivalaya, Gandhinagar dt. 15.4.95 has been received with the
signature of Section Officer Home Department (Special) for application of
Sections of TADA Act in Surat Railway Police Station I.O. Reg. No.70/93
registered u/sec 307, 326, 324, 427, 120(B) of IPC and u/sec. 3, 4, 5 of
Explosive Substances Act. Sanction letter Fax message is enclosed along
with the case papers which please note.

Date:12.5.95 Sd/Illegible

Received Copy (K.K. Chaudasma)

Sd/- Illegible Assistant Police Commissioner

Jr. Clerk G. Division, Surat City”

15. It is in the light of the above evident that in C.R.No.32 of 1993
approval for recording of information regarding commission of offences
under the TADA came directly from the Home Department of the Government of
Gujarat. In C.R. No.70 of 1993 relating to the second blast that took
place at Surat Railway Station, the State Government and the Additional
Police Commissioner, Surat city approved the application of the provisions
of TADA.

16. What falls for determination is whether these approvals can be said
to be sufficient compliance with the provisions of Section 20-A of TADA
that reads as under:-

“20-A Cognizance of offence.

Notwithstanding anything contained in the Code, no information about the
commission of an offence under this Act shall be recorded by the police
without the prior approval of the District Superintendent of Police.

No court shall take cognizance of any offence under this Act without the
previous sanction of the Inspector-General of Police, or as the case may
be, the Commissioner of Police.”

17. A careful reading of the above leaves no manner of doubt that the
provision starts with a non obstante clause and is couched in negative
phraseology. It forbids recording of information about the commission of
offences under TADA by the Police without the prior approval of the
District Superintendent of Police. The question is whether the power of
approval vested in the District Superintendent of Police could be exercised
by either the Government or the Additional Police Commissioner, Surat in
the instant case. Our answer to that question is in the negative. The
reasons are not far to seek. We say so firstly because the statute vests
the grant approval in an authority specifically designated for the purpose.
That being so, no one except the authority so designated, can exercise
that power. Permitting exercise of the power by any other authority
whether superior or inferior to the authority designated by the Statute
will have the effect of re-writing the provision and defeating the
legislature purpose behind the same - a course that is legally
impermissible. In Joint Action Committee of Air Line Pilots’ Association of
India (ALPAI) and Ors. V. Director General of Civil Aviation and Ors.
(2011) 5 SCC 435, this Court declared that even senior officials cannot
provide any guidelines or direction to the authority under the statute to
act in a particular manner.

18. Secondly, because exercise of the power vested in the District
Superintendent of Police under Section 20-A (1) would involve application
of mind by the officer concerned to the material placed before him on the
basis whereof, alone a decision whether or not information regarding
commission of an offence under TADA should be recorded can be taken.
Exercise of the power granting or refusing approval under Section 20-A (1)
in its very nature casts a duty upon the officer concerned to evaluate the
information and determine having regard to all attendant circumstances
whether or not a case for invoking the provisions of TADA is made out.
Exercise of that power by anyone other than the designated authority viz.
the District Superintendent of Police would amount to such other authority
clutching at the jurisdiction of the designated officer, no matter such
officer or authority purporting to exercise that power is superior in rank
and position to the officer authorised by law to take the decision.

19. Thirdly, because if the Statute provides for a thing to be done in a
particular manner, then it must be done in that manner alone. All other
modes or methods of doing that thing must be deemed to have been
prohibited. That proposition of law first was stated in Taylor v. Taylor
(1876) 1 Ch. D426 and adopted later by the Judicial Committee in Nazir
Ahmed v. King Emperor AIR 1936 PC 253 and by this Court in a series of
judgments including those in Rao Shiv Bahadur Singh & Anr. v. State of
Vindhya Pradesh AIR 1954 SC 322, State of Uttar Pradesh v. Singhara Singh
and Ors. AIR 1964 SC 358, Chandra Kishore Jha v. Mahavir Prasad & Ors. 1999
(8) SC 266, Dhananjaya Reddy v. State of Karnataka 2001 (4) SCC 9 and
Gujarat Urja Vikas Nigam Ltd. V. Essar Power Ltld. 2008 (4) SCC 755. The
principle stated in the above decisions applies to the cases at hand not
because there is any specific procedure that is prescribed by the Statute
for grant of approval but because if the approval could be granted by
anyone in the police hierarchy the provision specifying the authority for
grant of such approval might as well not have been enacted.

20. In Anirudhsinhji & Anr. v. State of Gujarat (1995) 5 SCC 302 relied
upon by Mr. Sushil Kumar, this Court was dealing with a fact situation
where a case was registered initially under the Arms Act. The District
Superintendent of Police had instead of giving approval for recording
information himself made a report to the Additional Chief Secretary asking
for permission to proceed under TADA. The Deputy Director General and
Additional Director General of Police also sent fax messages to the Chief
Secretary requesting him to grant permission to proceed under TADA. It was
on that basis that the Additional Chief Secretary, Home Department gave
sanction/consent to proceed under the provisions of TADA. The question that
fell for consideration before this Court was whether Section 20-A (1) was
violated and, if so, whether the prosecution of the accused in that case
was legally valid. Repelling the contention that the approval was valid
this Court observed:

“11. The case against the appellants originally was registered on 19-3-1995
under the Arms Act. The DSP did not give any prior approval on his own to
record any information about the commission of an offence under TADA. On
the contrary, he made a report to the Additional Chief Secretary and asked
for permission to proceed under TADA. Why? Was it because he was reluctant
to exercise jurisdiction vested in him by the provision of Section 20-A(1)?
This is a case of power conferred upon one authority being really exercised
by another. If a statutory authority has been vested with jurisdiction, he
has to exercise it according to its own discretion. If the discretion is
exercised under the direction or in compliance with some higher authority’s
instruction, then it will be a case of failure to exercise discretion
altogether. In other words, the discretion vested in the DSP in this case
by Section 20-A(1) was not exercised by the DSP at all.”

21. This Court relied upon the decision in Commissioner of Police v.
Gordhandas Bhanji AIR 1952 SC 16 where the Commissioner of Police had at
the behest of the State Government cancelled the permission granted for
construction of a cinema in Greater Bombay. The order passed by the
Commissioner was quashed on the ground that the authorities concerned had
vested the power to cancel in the Commissioner alone who was bound to
exercise the same himself and bring to bear on the matter his own
independent and unfettered judgment instead of acting at the instance of,
any other party. This Court borrowed support for that view from the
following passage by Wade and Forsyth in ‘Administrative Law’, 7th Edition
Page Nos.358-359 under the heading ‘SURRENDER ABDICTION, DICTATION’ and sub-
heading ‘power in the wrong hands’:

“Closely akin to delegation, and scarcely distinguishable from it in some
cases, is any arrangement by which a power conferred upon one authority is
in substance exercised by another. The proper authority may share its
power with some one else, or may allow some one else to dictate to it by
declining to act without their consent or by submitting to their wishes or
instructions. The effect then is that the discretion conferred by
Parliament is exercised, at least in part, by the wrong authority, and the
resulting decision is ultra vires and void. So strict are the courts in
applying this principle that they condemn some administrative arrangements
which must seem quite natural and proper to those who make them....

Ministers and their departments have several times fallen foul of the same
rule, no doubt equally to their surprise...”

22. Anirudhsinhji (supra) was followed in Manohar Lall (dead) by Lrs.
V. Ugrasen (dead) by Lrs. and Ors. (2010) 11 SCC 557 where the question
that fell for consideration was whether the State Government, exercising
revisional power under U.P. Urban Planning and Development Act, 1973, could
take up the task of a lower statutory authority. Relying upon the view
taken in Anirudhsinhji case (supra) this Court observed:

“23. Therefore, the law on the question can be summarised to the effect
that no higher authority in the hierarchy or an appellate or revisional
authority can exercise the power of the statutory authority nor can the
superior authority mortgage its wisdom and direct the statutory authority
to act in a particular manner. If the appellate or revisional authority
takes upon itself the task of the statutory authority and passes an order,
it remains unenforceable for the reason that it cannot be termed to be an
order passed under the Act.”

23. That Section 20-A (1) is mandatory is also no longer res integra
having been settled by this Court in Rangku Dutta @ Ranjan Kumar Dutta v.
State of Assam (2011) 6 SCC 358. This Court in that case held that since
the provision was couched in negative terms, the same is mandatory in
nature no matter the statute does not provide any penalty for disobedience.
This Court observed:

“18. It is obvious that Section 20-A(1) is a mandatory requirement of law.
First, it starts with an overriding clause and, thereafter, to emphasise
its mandatory nature, it uses the expression “No” after the overriding
clause. Whenever the intent of a statute is mandatory, it is clothed with a
negative command. Reference in this connection can be made to G.P. Singh’s
Principles of Statutory Interpretation, 12th Edn.”

24. Relying upon Ahmad Umar Saeed Sheikh v. State of U.P. (1996) 11 SCC
61, this Court has in Ashrafkhan @ Babu Munnekhan Pathan and Anr. v. State
of Maharashtra (2012) 11 SCC 606 not only held that the approval given by
the Chief Secretary (Home Department) of the State Government was not a
sufficient compliance with Section 20-A (1) but also that the difficulty
arising out of it was not curable under Section 465 of the Code. This Court
observed:

“34. ……… Section 465 of the Code, which falls in Chapter 35, covers cases
triable by a Court of Session also. Hence, the prosecution can take shelter
behind Section 465 of the Code. But Section 465 of the Code shall not be a
panacea for all error, omission or irregularity. Omission to grant prior
approval for registration of the case under TADA by the Superintendent of
Police is not the kind of omission which is covered under Section 465 of
the Code. It is a defect which goes to the root of the matter and it is not
one of the curable defects.”

25. This Court also rejected the argument that grant of sanction in terms
of Section 20-A(2) of the Act rendered the infirmity in the approval under
Section 20-A(1) inconsequential. This Court held that the two provisions
operate in different and distinct stages and that both the requirements
have to be complied with for a successful prosecution. The following
passage is in this regard apposite:

“37. ……. Both operate in different and distinct stages and, therefore, for
successful prosecution both the requirements have to be complied with. We
have not come across any principle nor are we inclined to lay down that in
a case in which different safeguards have been provided at different
stages, the adherence to the last safeguard would only be relevant and
breach of other safeguards shall have no bearing on the trial. Therefore,
we reject the contention of the State that the accused cannot assail their
conviction on the ground of absence of approval under Section 20-A(1) of
TADA by the Deputy Commissioner, when the Commissioner of Police had
granted sanction under Section 20-A(2) of TADA.”

26. In two subsequent decisions rendered by this Court in Mohd. Iqbal M.
Shaikh & Ors. v. The State of Maharashtra (1998) 4 SCC 494 and Manjit Singh
@ Mange CBI, through its SP: (2011) 11 SCC 578 a slightly liberal view has
been taken but having regard to the fact that Anirudhsinhji’s case (supra)
was decided by a three-Judge Bench of this Court, we do not see any
compelling reason to depart from the ratio of that decision especially when
the view taken in that decision proceeds on sound and well settled legal
principles to which we have briefly adverted in the earlier part of this
judgment.

27. The upshot of the above discussion, therefore, is that the
requirement of a mandatory statutory provision having been violated, the
trial and conviction of the petitioners for offences under the TADA must be
held to have been vitiated on that account. The argument that the first
information report regarding the two incidents had been registered before
the introduction of Section 20-A (1) in the statute book making approval of
the competent authority unnecessary has not impressed us. It is true that
the two incidents had taken place and cases registered regarding the same
under TADA before Section 20-A (1) came on the statute book, but the fact
remains that the provisions of TADA were removed from the reports pursuant
to the recommendations of the Review Committee. By the time fresh evidence
came to light requiring re-introduction of the provisions of the Act
approval for recording information regarding commission of offences under
TADA, had become necessary. The fact that such approval was considered
necessary even by the investigating agency and was prayed for, only shows
that the authorities were aware of the requirement of law and had
consciously attempted to comply with the said requirement no matter by
applying for such approval to an authority not competent to grant the same.

28. Mr. Yashank Adhyaru next argued that even if the provisions of TADA
were not available against the appellants the prosecution could still
succeed in sustaining the conviction of the appellants under IPC and the
Explosive Substances Act. That would indeed be so, provided there is
enough evidence on record to support that course of action. When called
upon to show evidence that could warrant conviction of the appellants
independent of provisions of TADA and the confessional statements of the
accused allegedly recorded under the said provisions, Mr. Yashank Adhyaru
fairly conceded that while there may be evidence regarding recovery of some
of the weapons the same would not by itself be sufficient to justify the
conviction of the appellants. Even otherwise the recovery of the weapons is
also not satisfactorily proved by cogent and reliable evidence. Such being
the position, we have no manner of doubt left that the conviction of the
appellants cannot be sustained.

29. We accordingly allow Criminal Appeals No.92 of 2009, 110 of 2009 and
658-659 of 2009 and set aside the orders of conviction passed against the
appellants who shall be released from custody forthwith unless required in
any other case. Criminal Appeals No.303-304 of 2009, 305 of 2009 and 432-
433 of 2009 filed by the State of Gujarat shall, however, stand dismissed.

……………………………………….……….…..…J.
(T.S. THAKUR)

…………………………..…………………..…..…J.
New Delhi (C. NAGAPPAN)
July 18, 2014

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