Hon'ble Aditya Nath Mittal,J.
This petition has been filed for quashing the suspension order dated 09.06.2012, passed by the opposite party no.2.
The facts, in nut shell, are that petitioner while posted as District Health Education and Information Officer in the office of Chief Medical Officer, Lucknow, two First Information Reports were lodged at Police Station-Wazirganj, Lucknow on 05.04.2011 and 07.04.2011 alleging therein grass illegalities have been committed in implementation of National Rural Health Mission Schemes (for short 'N.R.H.M.'). In pursuance to the aforesaid F.I.Rs. investigation was carried out and charge-sheet was submitted in the aforesaid cases, but the name of the petitioner did not find mention either in the F.I.Rs or in the charge-sheet though her statement was recorded under Section 164 Cr.P.C. Subsequently, investigation of both cases was handed over to the Central Bureau of Investigation (in short 'C.B.I.') and only then name of the petitioner was included in the aforesaid cases on the allegation that she was co-signatory authority along with Chief Medical Officer of the cheques issued for hiring vehicles/ ambulances after verification by the Accountant and the authorities concerned, pursuant to which petitioner was suspended vide order dated 09.06.2012 without holding any preliminary inquiry on the ground that some departmental enquiry was contemplated against the petitioner in relation to the irregularities committed in the N.R.H.M. Scheme by appointing the Additional Director, Medical, Health & Family Welfare, Lucknow as Enquiry Officer. Hence, this petition.
Submission of learned counsel for the petitioner is that no charge-sheet has been served upon the petitioner though 22 months have lapsed after passing the suspension order. He has also taken shelter to the reinstatement of Dr. Chandra Jeet Yadav, who has been reinstated by the State Government in pursuance to the orders passed by this Court in Writ Petition No.564 (S/B) of 2013 on 17.04.2013, 24.04.2013, 02.05.2013 and 16.05.2013 on the ground that charge-sheet has not been issued to Dr. Chandra Jeet Yadav though much time has lapsed after passing the suspension order and the petitioner's case is similarly situated to the case of Dr. Chandra Jeet Yadav. He, therefore, submits that if Dr. Chandra Jeet Yadav has been reinstated, then the petitioner is also liable to be reinstated. He has also submitted that petitioner was not found involved in the scam at the time when investigation was made by the police and, therefore, her name has been excluded in the charge-sheet and when no serious charge has been levelled against the petitioner, then the suspension order of the petitioner is liable to be stayed. He further submits that uptil no charge-sheet has been issued though 22 months have lapsed and the case is pending in the C.B.I. Court and it will take a long time, therefore, there is a strong justification to reinstate the petitioner in service. Submission is that two FIRs were lodged, but name of the petitioner was not there in the FIRs and the investigation was made by the local police and thereafter the investigation was transferred to C.B.I. and in the charge-sheet which has been submitted by the C.B.I., the name of the petitioner appears.
Additional Chief Standing Counsel in pursuance of order of this Court dated 24.04.2014 has filed personal affidavit of Dr. Kailash Kushwaha, Director General, Family Welfare, U.P. Lucknow and Avinash Gaur, the Director, (Administration) office of the Director General, Medical & Health Services, U.P., Lucknow along with copy of the order passed by this Court dated 21.01.2014 in Writ Petition No.388 (SS) of 2014 annexing therewith the copy of reinstatement order dated 13.05.203 of Dr. Chandra Jeet Yadav. In the said two affidavits, specific reasons have been indicated for reinstating Dr. Chandra Jeet Yadav and Sanjay Anand. He has submitted that Sanjay Anand one of the accused has been reinstated in pursuance to the order of this Court passed in Writ Petition No.388 (S/B) of 2014,wherein this Court has passed an order directing the Appointing Authority to take decision in pursuance to Rule 3 (b) U.P. Government Servant (Discipline & Appeal) Rules, 1999 ( for short 'the Rules, 1999') after his release from the custody. It was also directed that representation of Sanjay Anand be disposed of by the Director (Administration), Medical, Health, pursuant to which reinstatement order was passed. Similarly, in the case of Dr. Chandra Jeet Yadav the Director General, Family Welfare has passed the reinstatement order in pursuance to the order of the State Government dated 09.04.2014.
Learned Additional Chief Standing Counsel has also submitted that earlier Dr. Chandra Jeet Yadav filed Writ Petition No.1190 (S/B) of 2012, which was disposed of by this Court by means of order dated 17.08.2012 with the direction to the Principal Secretary, Medical, Health & Family Welfare, Lucknow to consider the representation of Dr. Chandra Jeet Yadav and decide the same in accordance with law. In pursuance to the aforesaid direction, representation of Dr. Chandra Jeet Yadav was considered and rejected by means of order dated 19.11.2012 by a speaking and reasoned order by Director General, Family Welfare. Thereafter, Dr. Chandra Jeet Yadav preferred another Writ Petition No.564 (S/B) of 2013 and in pursuance to the order passed therein a Committee was constituted headed by Dr. Meenu Sagar, Officiating Director, Family Welfare, who rejected the claim of Dr. Chandra Jeet Yadav in the meeting dated 30.04.2013 by observing that as the representation of Dr. Chandra Jeet Yadav was rejected earlier and there was no competent authority on legal side, therefore, no definite opinion can be given and ultimately the case for reinstatement was rejected vide order dated 13.05.2013. It is to be noted that application was moved by wife of Dr. Chandra Jeet Yadav for reinstatement of his services to one Minister, namely, Mr. Durga Prasad Yadav on 03.12.2013, which was forwarded to the Chief Minister and the office of the Chief Minister wrote a letter on 11.12.2013 to the Director General concerned to take appropriate action in the matter, pursuant to which opinion was sought from the Law Department and thereafter the reinstatement order was passed by the competent authority as the State Government is competent authority to reinstate a person under the provisions of the Rules, 1999. Submission is that power of the State Government cannot be questioned irrespective of the fact that trial is pending with the CBI and names of Dr. Chandra Jeet Yadav, Sanjay Anand and the petitioner appear in the charge-sheet.
We have heard Shri H.G.S. Parihar, learned Sr. Advocate assisted by Shri Shashank Shekhar Parihar for the petitioner and learned Additional Chief Standing Counsel for the State and perused the record.
Earlier, Dr. Chandra Jeet Yadav filed Writ Petition No.1190 (S/B) of 2012 and this Court vide order dated 17.08.2012 without expressing any opinion on merits disposed of the writ petition with a direction to the Principal Secretary, Medical & Health to dispose of the representation of the petitioner. In pursuance to the order of this Court, the Director General, Medical & Health vide order dated 19.11.2012 took a decision and rejected the representation of Dr. Chandra Jeet Yadav. Feeling aggrieved with the aforesaid order, Dr. Chandra Jeet Yadav preferred another Writ Petition No.564 (S/B) of 2013, in which order was passed on 24.04.2013 directing the Director General, Family Welfare to appear along with record and explain as to why the charge-sheet has not been served upon Chandra Jeet Yadav. In pursuance to the said order, the Director General, Family Welfare appeared along with record and thereafter took decision on 13.05.2013 explaining the circumstances for not serving the charge-sheet to Dr. Chandra Jeet Yadav as the entire record was with the C.B.I. In the said order it was indicated that when Dr. Chandra Jeet Yadav was posted in district Raebareli, he fraudulently withdrew the salary of six doctors from 2000 to 2004 and in respect thereof a case was registered at Case Crime No.428 of 2005, under Sections 409, 420, 467,468, 471, 120-B I.P.C. and Section 13 (1) (d) of Prevention of Corruption Act, Police Station-Kotwali Raebareli, District-Raebareli. The said rejection order attained finality. Thereafter, it appears that representation was given by the wife of Dr. Chandra Jeet Yadav to one Mr. Durga Prasad Yadav, Minister, who wrote letter to the Chief Minister, who in turn directed to take necessary action in the matter and on that representation the Director General, Family Welfare specifically indicated that charge-sheet has been filed by the C.B.I. against Dr. Chandra Jeet Yadav and trial was pending before the competent court and the entire record was with the C.B.I. for the purposes of investigation and the department was having no documents, therefore, charge-sheet could not be prepared. The then Director General thereafter sought clarification from the government and the government thereafter on 09.04.2014 wrote a letter to the Director General that in view of the opinion given by the Law Department, Dr. Chandra Jeet Yadav may be reinstated in service and his suspension order be revoked. The aforesaid letter dated 09.04.2014 has been written on the basis of proceedings drawn at the government level, wherein the letter of the Director General dated 30.01.2014 was processed and the Administrative Department ultimately opined that opinion be sought from the Law Department regarding revocation of suspension order. The Law Department thereafter has given opinion on 28.03.2014, wherein it was opined that there was no legal hurdle in disposing of the representation of Dr. Chandra Jeet Yadav, but the Law Department did not give any opinion in regard to reinstatement or otherwise in respect of revocation of the suspension of Dr. Chandra Jeet Yadav. The opinion of the Law Department was confined only to the extent that representation of Dr. Chandra Jeet Yadav can be disposed of.
It is to be noted that while processing the matter, the Administrative Department considered the said representation mentioning therein the fact that representation of Dr. Chandra Jeet Yadav has already been considered and rejected by the Director General by means of order dated 19.11.2012 in pursuance to the order passed by this Court in Writ Petition No.1190 (SB) of 2012. A reference was also made of filing another writ petition bearing Writ Petition No.564 (SB) of 2013. The Director General specifically indicated that instead of Dr. Chandra Jeet Yadav at least two dozen more employees/officers are involved in this case and their suspension has not been revoked, therefore, suspension of Dr. Chandra Jeet cannot be revoked merely on the basis of fact that no charge-sheet has been issued to Dr. Chandra Jeet Yadav for two years and eleven months and on the basis of order passed by the Director (Administration), a decision was taken in respect of Sanjay Anand. In the opinion of Law Department a specific mention has been made about pendency of criminal case and involvement of Dr. Chandra Jeet Yadav in N.R.H.M. Scam and there was no legal hurdle in deciding the representation of Dr. Chandra Jeet Yadav subject to decision of the case pending before the C.B.I. If the government was having specific opinion that entire records are with the C.B.I. then under what circumstances, the said ground has been taken by the government to reinstate Dr. Chandra Jeet Yadav merely on the ground that charge-sheet has not been served upon him.
It is to be noted that one person,namely, Sanjay Anand filed Writ Petition No.388 (S/S) of 2014 before this court with the prayer that after being released from jail the Appointing Authority is required to consider the continuance of the suspension of the person afresh as contemplated under Rule 4 (3) (b) of U.P. Government Servant (Discipline & Appeal) Rules, 1999. This Court directed that representation of Sanjay Anand may be disposed of. The Director (Administration) while considering the said representation took opinion from the District Government Counsel (D.G.C. Crl.) and on the basis of said opinion Sanjay Anand was reinstated. What was the occasion of taking opinion from the D.G.C. (Crl.) when a large number of Government Lawyers in the High Court are available and if the matter is pending in High Court, then it was incumbent upon Director (Administration) to take opinion from the Chief Standing Counsel rather than going to take opinion from the D.G.C. (Crl.), which is a very emerging circumstances in the present case. The Administrative Department of the government also made the basis of Law Department's opinion for revocation of suspension of Dr. Chandra Jeet Yadav as the suspension of Sanjay Anand has been revoked.
We have failed to understand the argument raised by the learned Additional Chief Standing Counsel to justify the reinstatement order of Dr. Chandra Jeet Yadav. It is to be noted that earlier twice attempts were made by Dr. Chandra Jeet Yadav to get himself reinstated, but failed to succeed on account of order dated 19.11.2012 and 13.05.2013 and all the aforesaid facts were mentioned in the letter of Director General, Family Welfare dated 30.01.2014 and in the said letter, it has also been mentioned that office of the Chief Minister has asked to take necessary action in the matter.
The argument of learned Additional Chief Standing Counsel that Government has taken the decision on the basis of opinion of the Law Department, does not have any force on the ground that the Law Department has only opined that there was no legal impediment in disposing of the representation of Dr. Chandra Jeet Yadav, but it never raised any query as to whether Dr. Chandra Jeet Yadav should be reinstated or not. The limited query made to the Law Department, as appears from the record, is that Dr. Chandra Jeet Yadav could be reinstated in view of the fact that charge-sheet has not been served upon Dr. Chandra Jeet Yadav for two years and eleven months and, therefore, he could be reinstated subject to decision of writ petition pending in the High Court. The Law Department thereafter called the officer of Administrative Department for discussion. Ultimately, the Law Department gave opinion that in view of the order passed in Writ Petition Nos.1190 (S/B) of 2012 and 564 (S/B) of 2013 and in view of the pendency of the matter before the C.B.I. Court, the representation of Dr. Chandra Jeet Yadav could be considered and there was no legal impediment in the same. The Administrative Department thereafter appears to have taken shelter of the opinion of the Law Department and on that basis, proceeded to issue order dated 09.04.2013 by means of which the direction was given for reinstatement of Dr.Chandra Jeet Yadav. From the aforesaid facts, it is clear that the State Government was moved at the behest of wife of Dr. Chandra Jeet Yadav, namely, Shanti Yadav, who moved a representation on 03.12.2013 to one Minister, namely, Mr. Durga Prasad Yadav, which was sent to the Chief Minister and the office of the Chief Minister wrote a letter on 11.12.2013 to the Director concerned to take appropriate action in the matter, pursuant to which opinion was sought from the Law Department and thereafter the reinstatement order was passed by the competent authority. But it is to be noted that office of the Chief Minister never said that Dr. Chandra Jeet Yadav should be reinstated. The Minister, namely, Mr. Durga Prasad Yadav appears to be a person, who was interested in reinstatement of Dr.Chandra Jeet Yadav and that is why he wrote a letter to the Chief Minister ignoring all the relevant facts, which were required to be considered for the purposes of reinstatement. The Constitutional functionaries, who are at the helm of affairs, are supposed to discharge their duties in accordance with law and rather than safeguard such persons, who are involved in a large scale N.R.H.M. Scam on caste line. It is incumbent upon the Minister to proceed in accordance with law and to follow the law and make people to follow the law and set-up such an example in public life that others may also follow, but displaying such activity, which is against the law, will leave only confusion and chaos in the society. When earlier two representations of Dr. Chandra Jeet Yadav were rejected, then it was incumbent upon the Minister Mr. Durga Prasad Yadav to have refused to entertain his request and that too when the matter is pending in the High Court and the High Court has refused to give any relief in Writ Petition No.564 (S/B) of 2013 and called for a counter affidavit rather staying the suspension order. Dr. Chandra Jeet Yadav has adopted two fold method; one he has approached the Government Machinery through his wife and that too at the instance of Minister Mr. Durga Prasad Yadav and another by way of writ petition before this Court. It appears that even thereafter the then Director Shri B.L. Arora was not of the view that Dr. Chandra Jeet Yadav may be reinstated and he specifically indicated in his letter that on the same ground, two persons have been suspended and none of them have been reinstated. The Government has opened the Pandora Box by reinstating Dr. Chandra Jeet Yadav illegally, arbitrarily and with vested interest just to give favour to him. The non-est request of Dr. Chandra Jeet Yadav was considered by the State Government reinstating him particularly when the record is with the C.B.I, which is conducting the trial. It is incumbent upon the State Government to initiate the departmental proceedings or to wait for conclusion of the trial, rather to reinstate Dr. Chandra Jeet Yadav on the basis of representation moved by his wife. Apart from it, Dr. Chandra Jeet Yadav is facing trial in N.R.H.M. Scam in a case at Case Crime No.428 of 2005, under Sections 409, 420, 467, 468, 471 and 120-B I.P.C. and Section 13 (1)(d) of Prevention of Corruption Act, Police Station-Kotwali, Raebareli.
Now, we come to the question of reinstatement of Dr. Chandra Jeet Yadav. As stated above, there was no material except inordinate delay in issuing the charge-sheet, but it is to be noted that this Court after recording a finding that he was involved in N.R.H.M. Scam, refused to interfere with the suspension order and called for counter affidavit. When Dr. Chandra Jeet Yadav failed to get any relief from this Court, he adopted a bye-pass route to overcome the judicial proceedings and approached the State Government. The Secretary of the Department, namely, Shri D.S. Sharma, wrote a letter for reinstating Dr. Chandra Jeet Yadav, cannot be absolved of his liability for acting in such a manner so as to give undue benefit to Dr. Chandra Jeet Yadav. Whether he should have written such letter when he knew that entire records are with the C.B.I. and the criminal trial is pending against Dr. Chandra Jeet Yadav and the Government has to wait for outcome of the criminal trial. Such action of Shri D.S. Sharma cannot be appreciated under law and he should not have given any direction under law for reinstatement of Dr. Chandra Jeet Yadav ignoring the relevant facts, but ultimately he gave undue benefit to Dr. Chandra Jeet Yadav. The action of Shri D.S. Sharma in writing such letter is held to be illegal and misuse of power vested with him. We, therefore, direct that disciplinary action be initiated against him as well.
It is to be noted that many administrative decisions involve an element of discretion. Someone must be given the responsibility of applying the law to each situation as it arises. It is well settled that all power has its legal limits and that the Court should draw those limits in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizens. The Court cannot recognize or accept the existence of any arbitrary power and unfettered discretion. The Court laid down the principle which requires the statutory power as to be exercised reasonably and in good faith and for proper and authorized purpose only and that, too, in accordance with the spirit as well as letters of the empowering Act. The exercise of discretion involves choice from among options. It is also equally well settled that discretion is absolute or unfettered and the decision makers cannot simply do as they please. All discretionary powers must be exercised within certain basic parameters. The primary rule is that discretion should be used to promote the policies and objects of the governing Act. A discretionary power should not be used to achieve a purpose not contemplated by the Act that confers the power. There are various restrictions on discretion, such as one should not act in bad faith. No discrimination could be made while exercising discretion between persons on the basis of irrelevant criteria. Discretion once conferred cannot be restricted or fettered. When the discretion is conferred by statute, the authority cannot refuse to exercise discretion. While exercising discretion, the authority has to maintain independence and impartiality. The authority upon whom discretionary power has been conferred, cannot act at the dictates of higher and other authority. When the discretion is conferred upon the authority, it is that authority who has to exercise discretion by its own mind and after taking into consideration all relevant factors keeping in view the object of conferring such a discretion. It should not be influenced by improper motive or improper purpose. Another aspect of the matter is that the decision makers must not allow their personal interest and beliefs to influence them in the exercise of their statutory powers, but must exercise those powers impartially and should not pre-judge the case.
Lord Green M.R. in the case of Associated Provincial Picture House Limited vs. Wednesbury Corporation (1948) 1 KB 223 at 228-230, laid down that an authority exercising discretion must-
(a) take all relevant factors into account;
In the case of Congreve vs. Home Office, (1976) QB 629 Lord Denning MR said that licence can be revoked and the licensee's money can be forfeited as it is good reason to justify the action and the licensee can be punished for any wrong done by him. But when the licensee has not done any wrong authority cannot lawfully revoke the licence at any rate not without offering him money back and not even then except for good cause. If he should revoke it without giving reasons, or for no good reason, the Court can set aside his revocation and restore the license. It would be a misuse of the power conferred upon the authority by the Parliament and the Courts have the authority and duty to correct the misuse of power by minister or his department, no matter how much he may resent it or warn us of the consequences if it is done.
Exercise of all administrative powers vested for public authority must be structured within a system of controls informed by both relevance and reasons in relation to the object which it seeks to serve and reason in regard to the manner in which it attempts to do so. Article 14 is violated by powers and procedures which themselves result in unfairness and arbitrariness. Administrative powers should be exercised within definite limits in the reasonable discretion of the designated authority. Vesting of an absolute and uncontrolled power in such authority falls outside the Constitution altogether, vide Suman Gupta vs. State of Jammu & Kashmir, (1983) 4 SSC 339.
Lord Denning MR in the case of Breen vs. Amalgamated Engineering Union, (1971) 2 QB 175 said: The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That means at least this: the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous consideration which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith: nevertheless the decision will be set aside.
It is also well settled that while exercising its discretionary powers, the authority must apply its mind to relevant materials and exclude from consideration the matter which is extraneous and not germane to the object vide State of Bombay vs. K.P. Krishnan, AIR 1960 SC 1223; Hindustan Steels Ltd. vs. A.K. Roy, AIR 1970 SC 1407; Durgadas vs. Union of India, AIR 1966 SC 1078; Barium Chemicals Ltd. vs. Company Law Board, AIR 1967 SC 295; Rohtash Industries vs. Company Law Board, AIR 1969 SC 707; State of Assam vs. Bharat Kala Bhandar, AIR 1967 SC 1766; Ram Distillery vs. Company Law Board, AIR 1970 SC 1789; Khantomoni vs. I.T.O, AIR 1967 SC 587; CIT vs. Bhagwan Industries, AIR 1973 SC 370; Pratap Singh vs. State of Punjab, AIR 1964 SC 72.
Mode and method of exercising of discretionary power has been held by the Apex Court in the case of Express Newspapaers Pvt. Ltd. vs. Union of India, AIR 1986 SC 872 in para-118, the Apex Court held as under:-
"118. Fraud on power voids the order if it is not exercised bona-fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona-fide, and with best intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Pratap Singh v. State of Punjab [(1964) 4 SCR-733: AIR 1964 SC 733] . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala-fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtown, 1904 AC 515; 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona-fide for the purpose for which they are conferred'. It was said by Warrington, C.J. In Short v. Poole Corporation, (1926) 1 Ch 66 that:
"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative."
In Lazarus Estates Ltd. v. Beasley, (1956) 2 QB 702 at Pp. 712-13 Lord Denning, LJ. Said:
"No judgment of a Court, no order of Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
In Lazarus case at p. 722 per Lord Parker, C.J.:
"'Fraud' vitiates all transactions known to the law of however high a degree of solemnity."
All these three English decisions have been cited with approval by this Court in Pratap Singh's case."
Shri Avinash Gaur, the Director (Administration) while reinstating Sanjay Anand also crossed the limits and ignored the legal position and relevant facts, which were necessary for proper appreciation by seeking opinion from the D.G.C. (Crl.) in the service matters. Whether taking opinion from D.G.C. (Crl.) is necessary particularly when the order is to be passed in pursuance to the order of High Court dated 01.01.2014. The rule contemplates that decision has to be taken after a person is released from custody in regard to his suspension. Whether the suspension is to be continued or not, but the facts of this case are very alarming. Whether Sanjay Anand was arrested by the C.B.I. in N.R.H.M. Scam and there was adequate and sufficient material to continue him under suspension rather reinstate him. It appears that Shri Avinash Gaur, Director (Administration) has acted with malice and on extraneous consideration while reinstating Sanjay Anand just to give undue relief to a person, which is not otherwise available to him under the law. Therefore, he is liable for departmental action.
The question before this Court is whether the illegal parity can be granted to any person or any authority, who is holding a responsible post in the government and who is supposed to act in accordance with law. As argued by learned Additional Chief Standing Counsel, the discretion is vested with the Appointing Authority to reinstate any person at any point of time.
Looking to the facts and circumstances of the case, it is a very alarming situation which has come to the notice of the Court that where the C.B.I. enquiry has been completed and the charge-sheet has been filed against 23 persons and a high scale N.R.H.M Scam has taken place in the State to the tune of several thousand crores of Rupees. Whether such circumstances warranted and gave discretion to the Appointing Authority or to the Government to reinstate such persons. Consistently view has been expressed by the Administrative Department that records are not available and hence the charge-sheet could not be served. If the records are not available, then there was no occasion for completing the enquiry. The departmental enquiry could not have been resorted to, but looking to the very complicated questions of fact involved and a high scale scam the authorities should have waited for conclusion of the trial rather than reinstating Dr. Chandra Jeet Yadav and Sanjay Anand on the basis of irrelevant material, which was not otherwise available in the record. Shri D.S. Sharma, who happens to be the Secretary has rather twisted the facts which was there in the record and for what reasons he has done this, it is best known to him. Shri Sharma while acting as Secretary of the department and holding a responsible post is duty bound towards public as well as government both and is accountable to the acts which are done in the official capacity. If he is doing anything, which is not permitted under law and rather he does something to give undue benefit to any person, then whether such action of Secretary can be justified or can be appreciated by the Court. The Secretary ought to have taken into consideration the rejection of the claim of Dr. Chandra Jeet Yadav twice earlier by means of order dated 19.11.2012 and the order dated 13.05.2013 and the peculiar thing to note is that the rejection order dated 13.05.2013 has not been referred to by the Administrative Department while refering the case of Sanjay Anand. Why it was done and whether the officer who was dealing with the issue has taken care of all these things or not, or it was deliberately ignored only with a view to give undue favour to Dr.Chandra Jeet Yadav, who was otherwise not entitled under law to be reinstated in service and in this rejection order a reference has been made in respect of another case, which has been registered at Case Crime No.428 of 2005, under Sections 409, 420, 467, 468, 471, 120-B I.P.C. and Section 13 (1) (d) of Prevention of Corruption Act, Police Station-Kotwali Raebareli, District-Raebareli.
From the above principles of law, it is clear that in the present case power was exercised in bad faith and was not exercised in good faith and it appears to be in breach of law by ignoring relevant material and taking into consideration the irrelevant material. Exercise of power in bad faith renders the decision bad. The exercise of discretion by the aforesaid two authorities is wholly based on extraneous consideration. It is clear that the same was done deliberately and intentionally just to give undue favour to two persons, namely, Dr. Chandra Jeet Yadav and Sanjay Anand. If such decision is taken by the Administrative Authorities, then their actions are not in accordance with law and if the authorities are deliberately ignoring the relevant law on record to give undue benefit to a particular person, then such authorities are liable for disciplinary proceedings vide Union of India vs. Upendra Singh, 1994 (3) SCC 357; Union of India vs. K.K. Dhawan, 1993 (2) SCC 56 and Union of India vs. A.N. Saxena, 1992 (3) SCC 104.
On the aforesaid reasonings, we find that Shri Kailash Kushwaha, the Director General, Family Welfare, U.P.,Lucknow, Shri Avinash Gaur, the Director (Administration), office of the Director General, Medical and Health Services,U.P., Lucknow and Shri D.S. Sharma, Secretary of the Department are directed to be proceeded departmentally for passing such illegal orders thereby revoking the suspension order and reinstating two persons, namely, Dr. Chandra Jeet Yadav and Sanjay Anand, though they are wanted in thousands of crores of N.R.H.M. Scam, regarding which the trial is pending in the C.B.I. Court and the opposite parties have decided the representation of Dr. Chandra Jeet Yadav rather than to wait for result of trial or to initiate the departmental proceedings against those persons.
Apart from the aforesaid fact, we also find that case of the petitioner for reinstatement is not made out in the light of observations made herein-above. The illegal parity claimed by the petitioner and unfounded relief cannot be granted through a judicial order.
Subject to above directions, the writ petition is dismissed.
Let a copy of this order be sent to the Chief Secretary, Government of U.P. for compliance and necessary action.
Order Date :- 8.5.2014 Suresh/