Download - Pradeep Sharma Writ Petition
SYNOPSIS
This Hon’ble Court in a catena of decisions has held that
“Right to Free and Fair Trail ” is not only an important
fundamental right, emanating from Article 21 of the
Constitution, available to all citizens of this country, but also a
constitutional imperative which has to be enforced without
exceptions. In order to assure and protect this pre-eminent
fundamental right, this Hon’ble Court, in a number of
appropriate cases, deemed it necessary to have investigations
and trial conducted through the specialized agency like the CBI.
This Hon’ble Court In “R.S. Sodhi v. State of U.P” -
1994 (Suppl – I) SCC 142 observed:
“We have perused the events that have taken place since the
incidents but we are refraining from entering upon the details
thereof lest it may prejudice any party but we think that since the
accusations are directed against the local police personnel it
would be desirable to entrust the investigation to an independent
agency like the Central Bureau of Investigation so that all
concerned including the relatives of the deceased may feel
assured that an independent agency is looking into the matter
and that would lend the final outcome of the investigation
credibility. However faithfully the local police may carry out the
investigation, the same will lack credibility since the allegations
are against them. It is only with that in mind that we having
thought it both advisable and desirable as well as in the interest
of justice, to entrust the investigation to the Central Bureau of
Investigation.”
In (2010) 2 SCC 200- “Rubabuddin Sheikh V State of
Gujarat and Ors”, this Hon’ble Court observed
“…….. but on the other hand in order to make sure that justice is
not only done, but also is seen to be done and considering the
involvement of the State police authorities and particularly the
high officials of the State of Gujarat, we are compelled even at
this stage to direct the CBI Authorities to investigate into the
matter. Since the high police officials of the State of Gujarat are
involved and some of them had already been in custody, we are
also of the view that it would not be sufficient to instill confidence
in the minds of the victims as well as of the public that still the
State Police Authorities would be allowed to continue with the
investigation when allegations and offences were mostly against
them. In the present circumstances and in view of the involvement
of the police officials of the State in this crime, we cannot shut our
eyes and direct the State Police authorities to continue with the
investigation and the charge sheet and for a proper and fair
investigation, we also feel that the CBI should be requested to
take up the investigation and submit a report in this Court within
six months from the date of handing over a copy of this judgment
and the records relating to this crime to them.”
It is most humbly submitted that the law as laid down by
this Hon’ble Court in transfer of cases to the CBI would
squarely apply to the facts and circumstances of the present
case, which starkly depicts political victimization of an upright
senior IAS officer of impeccable credentials, at the hands of a
pliant administrative state machinery headed by a vindictive
Chief Minister of the State of Gujarat – Shri Narendra Modi.
BACKGROUND AND IMPECCABLE CREDENTIALS OF THE PETITONER HEREIN
The Petitioner is an IAS officer belonging to the Gujarat
cadre, with an unblemished record of outstanding performance
throughout his career. He has received numerous accolades for
his work including
(i) the Cavalier’s Cross from the President of the Republic of
Poland, for proactive international collaboration on joint
urban infrastructure development projects in Jamnagar,
Gujarat, between 2001 and 2003 when the Petitioner
served there as the Municipal Commissioner.
(ii) The Petitioner has earned two separate Master’s degrees
from abroad – a Master’s in Development Management
(1990) as an Asian Development Bank scholar in Manila,
Philippines; and a second Master’s in Economic Policy and
Planning (1994) from Boston, USA, as well as an Executive
Diploma in Rural Development Policy and Planning (1989)
from the Institute of Development Studies at the University
of Sussex in the U.K.
(iii) His seminal contribution to rebuilding Bhuj city and the rest
of Kutch district after the devastating 2001 earthquake in
that region has been applauded both nationally and
internationally, by the World Bank, the Asian Development
Bank, and the BBC as well as the domestic media
including India Today and Indian Express; as recently as
this past January 2011, in a 10-year anniversary
documentary entitled “Gujarat’s Astonishing Rise from
Rubble of 2001 Quake,”.
(iv) The Petitioner has also received complimentary citations
from senior State Government officials on numerous
occasions over the past 30 years in public service.
Despite such an impressive array of achievments and service
record, the Petitioner is currently languishing in jail due to his
implication in a number of criminal cases at the behest of the
Shri Modi-led State Government. A perusal of the relevant facts
which has led the Chief Minister and State Government to
implicate and victimize the present Petitioner will reveal that it is
impossible to hold an impartial investigation/trial as the Chief
Minister himself is personally or directly interested in the
outcome of the investigations which are more in the nature of a
witch-hunt launched against the present Petitioner.
At the outset, the Petitioner most respectfully submits that
vide the instant petition he is not seeking quashing of the false
cases foisted on him. He is also not seeking to escape nor
circumvent the legal process and procedure. However it is
respectfully submitted that as per the oft repeated legal maxim
– “Justice must not only be done but also appear to be done” –
the Petitioner prays that in view of the contents of the instant
petition and the allegations against the Chief Minister and the
State Machinery, it cannot be held, by any reasonable man,
that there would not be bias and prejudice against the Petitioner
herein in the cases fabricated against him by the state
machinery and, on this ground alone, the cases currently
investigate/tried by the State Police ought to be transferred to
the CBI.
The persecution personally unleashed by the State Chief
Minister, – Shri Narendra Modi, against the Petitioner herein is
due to two major reasons, apart from a host of other supporting
factors: -
I. Firstly, the Petitioner happens to be the younger brother of
Kuldip Sharma, a highly-decorated and currently the senior-
most IPS officer in the Gujarat state cadre, who has
unmasked many misdeeds of Narendra Modi since the 2002
Godhra riots and also of his henchman Shri Amit Shah, the
ex-Home Minister of State, Gujarat. The two siblings have
very close to each other right from childhood and share very
strong fraternal bonds.
II. Secondly, and more immediately, the Petitioner is suspected
of having stumbled upon some intimate secrets of Narendra
Modi’s illicit escapades with a woman named Ms. Mansi Soni.
Shri Modi verily believes that this information of his amorous
and illicit liaison with Ms. Soni, if revealed in the public
domain, will render incalculable and grave damage to his
public image and his future political prospects. Mr Modi
suspects that the information regarding his liason with Ms
Soni would be revealed in the public domain through the
petitioner herein and hence as a pre-emptive measure sought
to incarcerate the petitioner herein implicating him in false
cases. The peittoner, faced with siustaned nad constant
victimization is forced to disclose these facts, which were not
revealed earlier by him, as he is left nho other option.
I. VICTIMIZATION DUE TO THE PROXIMITY OF THE PETITONER WITH HIS BROTHER - SHRI KULDIP SHARMA, IPS:
Shri Kuldip Sharma, the brother of the Petitioner herein is
the senior most IPS officer of the State of Gujarat, belonging to
the 1976 batch. He has functioned as Additional Director
General of Police, CID (Crime) from 28.4.2003 to 01.8.2005.
Shri Kuldip Sharma, after taking over the above post, came
across various pending cases in which Shri Modi and the then
Home Minister of the State Shri. Amit Shah were interested.
(a) SOHRABUDDIN CASE:-
One of them was the Soharabuddin Case which is a
matter pertaining to death of one Shri Soharabuddin in a fake
police encounter. In the said case, the Petitioner’s brother
approved a report to be sent to this Hon’ble Court. Till that time,
only the file of the preliminary inquiry conducted by Police
Inspector, Shri Solanki of the State CID (Crime), had existed,
which prima facie established the fact that Soharabuddin was
killed in a fake encounter. Shri Narendra Modi held a grudge
against the Petitioner’s brother since he ordered the said
interim report to be sent to this Hon’ble Court, which ultimately
lead to the arrest of his confidante Shri. Amit Shah, causing
Shri Narendra Modi a tremendous loss of public face and
political embarrassment.
(b) MALLIKA SARABHAI CASE :-
In yet another incident, an offence was registered against
Ms. Mallika Sarabhai, which pertains to the danseuse’s plan to
take a troop to USA and South America and the allegation was
that she was using her organization to take people illegally to
USA and indulging in human trafficking. It is pertinent to note
here that Ms. Sarabhai was also a Petitioner before this Hon’ble
Court in a petition filed against the Chief Minister and others
with regard to post-Godhra communal riots in Gujarat during
2002. The CID (Crime) took over the case on 20.9.2004.
However, investigation by the State CID (Crime) revealed that
no offence as alleged could be made out against Ms. Sarabhai.
Despite this, Shri Amit Shah, the then MOS (Home), at the
behest of Shri Modi, was bringing pressure to arrest and
charge-sheet Ms. Sarabhai. However, Shri Kuldip Sharma
directed the closure of the case, as it was baseless. This also
angered Mr Modi.
(c) KAMLESH TRIPATHI EXTORTION CASE :-
In another instance, in a writ petition filed before the
Hon’ble High Court of Gujarat, allegation of extortion of money
was made against Shri Kamlesh Tripathi, a close associate and
a political ally of Shri Amit Shah, MOS (Home), Gujarat. The
Hon’ble High Court directed the DGP to have the matter
inquired into, who, in turn, entrusted the same to the State CID
(Crime). After perusal of the case, the Petitioner’s brother
directed the concerned Superintendent of Police in CID (Crime)
to get an offence registered as necessary and appropriate
under the law. Immense political pressure was brought on the
concerned SP, Shri Anil Pratham not to do so. Eventually the
complaint came to be registered much against the wishes of
Shri Amit Shah.
(d) MADHAVPURA (MMCB) FRAUD CASE :-
In yet another serious case, when Shri Kuldip Sharma
was up in arms against the personal interests of Shri Modi and
Shri Amit Shah upon an inquiry, in which allegations were made
that Amit Shah had received an amount of Rs. 2.5 crores,
through an intermediary Shri Girish Dani, in the matter of a case
about financial fraud in Madhavpura Mercantile Co-operative
Bank Limited, Ahmedabad, by Shri Ketan Parikh who was the
prime accused in this offence; the Rs. 2.5 crores was alleged
paid by Shri Girish Dani to Shri Amit Shah to intervene on
behalf of Shri Ketan Parikh and spare him any legal or criminal
action. Shri Kuldip Sharma felt that a proper investigation was
necessary in the interest of Shri Amit Shah, so as to clear Shri
Amit Shah’s name of any false allegations of having take the
Rs. 2.5 crores of bribe if he were indeed not involved, and had
recommended that since the original investigation pertaining to
Shri Ketan Parikh was done by CBI, the application leveling
charges against Shri Amit Shah also be sent to CBI. Meanwhile
Shri Kuldip Sharma went to attend a conference outside the
State and upon his return he was informed that he had been
transferred from CID (Crime).
(e) OTHER VINDICTIVE ACTS :-
The Petitioner’s brother, Shri Kuldip Sharma, too has
suffered at the hands of the CM Shri Modi. His ACR’s for last 5
years (2003-2004 to 2007-2008) were downgraded by Shri
Modi, without assigning any reasons and in brazen and direct
violation of the statutory rules and administrative instruction of
the Department of Personnel and Training (DoPT). The Chief
Minister downgraded the ACRs of Shri Kuldip Sharma with the
malafide intention of denying him promotion to the next higher
rank as at least three outstanding ACRs are required out of last
10 years to qualify for the next promotion. The Principal Bench
of the Hon’ble Central Administrative Tribunal (CAT) vide final
order and judgment dated 07.04.2011 has set aside the
downgrading of the ACR’s of Shri Kuldip Sharma on grounds of
it being arbitrary and illegal.
It is submitted that the Petitioner has been harassed by
the Chief Minister in order to settle personal scores with Shri
Kuldip Sharma, the brother of the Petitioner. The State
machinery is being abused by those at the helm of power,
primarily Shri Narendra Modi and Shri Amit Shah, for their
personal vendetta.
II. THE CHIEF MINISTER’S ILLICIT LIASON WITH MS
MANSI SONI:
It was in between 2003 to 2006 that the Petitioner, in the
capacity of District Collector of Kutch, commissioned a series of
projects toward the beautification of Bhuj city and overall
development of Kutch district. A site was selected for
developing a hill garden in 2005, for which Ms. Mansi Soni from
Bangalore was selected as the Landscape Architect. The Chief
Minister, Shri Narendra Modi, visited Kutch to inaugurate the hill
garden project upon its completion, and was at this time
introduced to Ms. Soni. Thereafter, Ms. Soni communicated to
the Petitioner her decision to return to Bangalore as well as
shared her ongoing interaction with the Chief Minister. The fact
of the intimacy between Shri Modi and Ms. Soni was confirmed
when the Petitioner was in close proximity of the two and
overheard their conversation during one of the official functions.
Subsequently, Ms. Soni further revealed to the Petitioner that
when she called Shri Modi in his office, he would freely interrupt
scheduled meetings, walking out of his office on senior officials
in order to speak to her privately.
During the second week of March 2006 at approximately
5:00 PM, Ms. Soni called the Petitioner and conveyed that she
had just landed in Ahmedabad city and was planning to visit
Bhuj. Shortly thereafter, when the Petitioner attempted to
telephone her, Ms. Soni’s cell phone was switched off and
remained so for the next 48 hours. Two days later at
approximately 11:00 AM, Ms. Soni called the Petitioner and
conveyed that she was at the residence of Shri Modi, and had
spent the duration of the previous two days at his residence.
Subsequently, she met the Petitioner in Bhuj and described in
detail her stay with Shri Modi.
Ms. Soni described that the next day being Holi, many
people visited Shri Modi for the festival and played with colour.
Shri Modi attended to them briefly and returned to his quarters.
In the meantime, Ms. Soni had developed fever and requested
a physician, but Shri Modi conveyed that calling a physician
was impossible, given the peculiarity of their situation. The
following morning she left for Vadodara in a car sent for by Shri
Modi.
In November 2008, while the Petitioner was posted as
Municipal Commissioner, Bhavnagar, Ms. Soni contacted the
Petitioner to inform him that Shri Modi had asked her to do a
project on Alang Shipyard for which she would like to come to
Bhavnagar. She came to Bhavnagar and, during that time, the
Petitioner observed that she was constantly in touch with Shri
Modi, who was abroad and probably in South Africa. She also
conveyed to the Petitioner that Shri Modi had asked her about
the Petitioner and whether the Petitioner knew about her
intimate relationship with Shri Modi. In one conversation, Ms.
Soni showed the Petitioner a text message that the Chief
Minister had sent to her from abroad. The Petitioner made a
note of the cell phone number from which it had originated. The
number was 9909923400.
It is submitted that the Petitioner had two cell phones at
the time, with Nos. 99251 99799 and 98240 01729. On one of
these, the Petitioner had saved the aforesaid number from
which Ms. Soni had received personal message from Shri Modi.
Once, the Petitioner accidentally dialed Shri Modi’s number,
thinking that he was actually calling someone else, but the
Petitioner got no reply on Shri Modi’s phone. The Petitioner
realized his mistake and promptly disconnected. The Petitioner
verily believes that Shri Modi must have found out the address
of the holder of the SIM card from which his personal number
was [accidentally] dialed, and placed it under observation either
with the help of State CID (Intelligence) or illegal phone tapping
methods involving the use of electronic equipment through
unauthorized collaboration. Shri Modi could then have found
that Ms. Soni was speaking to the Petitioner often over phone.
Around this time, the Petitioner received an anonymous
letter conveying that a video of sexual activity between Ms.
Soni and one person, was available on an internet website, and
the letter advised the Petitioner to desist from contacting Ms.
Soni, as her character and actions were not befitting of her
company with Gujarat State officials. The Petitioner did indeed
come across such a video clipping and it now appears to the
Petitioner that Shri Modi, who was monitoring the Petitioner’s
cell phone calls, started believing that videos involving Ms. Soni
perhaps included him i.e. Shri Modi.
DETAILS OF FALSE CASES FOISTED ON THE PETITONER HEREIN:-
It is submitted that the first case was registered against
the District Magistrate and Collector of Kutch District on
20.02.2008 in which the Petitioner was not named as the
accused but thereafter, in order to frame the Petitioner, various
cases were registered. The details of these cases are:
(i) M. Case no. 1/2008: registered on dated 20.2.2008 with the
CID (Crime) Rajkot zone.
(ii) CASE NO. 3/2010 registered with CID (CRIME) Rajkot Zone.
(iii) CASE NO. 9/2010 registered with CID (CRIME) Rajkot Zone.
(iv) CID (Crime) Rajkot Zone No. 1/2011 Offence registered
under section 217, 409, 120(B) of IPC, registered on
22.2.2011.
It is submitted that the aforesaid cases are being
investigated by the State CID (Crime) Branch and the
proceedings being orchestrated under keen personal
supervision of the Chief Minister of the State who, as narrated
above, has more than one reason to be prejudiced and biased
against the Petitioner. The said cases have been filed only to
malign and torture the Petitioner since he is the brother of Shri
Kuldip Sharma and because the Chief Minister is convinced
that the information of his liaisons with Ms. Soni in the
Petitioner’s possession is a potential threat to his image.
The Petitioner has addressed letters to the Chief
Secretary and the Investigating officers highlighting his fears
that the investigations will not be free and fair but to no avail, as
he has received no response yet to any of these letters. The
petitioner has also expressed his fears about danger to his
personal safety and life, publicly during recent district court
hearings.
In the light of the above, the Petitioner has filed the
present petition for enforcement and protection of his
fundamental right to life as enshrined in Article 21 of the
Constitution of India.
LIST OF DATES
28.05.2003 The Petitioner assumed charge as the District
Magistrate and Collector of Kutch, Gujarat. As
part of the rehabilitation of the traders of the area,
the Petitioner in his official capacity allotted land
under the State Government policy. In 2005, in
the capacity of District Collector of Kachchh, the
Petitioner commissioned a series of projects
toward the beautification of Bhuj city and overall
development of Kachchh district. A site was
selected developing a hill garden, for which Ms.
Mansi Soni was the Landscape Architect.
2004-2005 The Chief Minister, Shri Narendra Modi, visited
Kutch to inaugurate the hill garden project upon
its completion, and was at this time introduced to
Ms. Soni and thus their relationship and intimacy
begins to develop.
05.11.2007 Pursuant to an order of the Ld. Chief Judicial
Magistrate, the Ld. CJM directed investigation
under Section 156(3) of the Cr.P.C. to be
conducted by C.I.D. (Crime), Rajkot Zone. A First
Information Report being F.I.R. No.01/2008 (M.
Case No.1/2008) was registered under Section
200, 203, 217, 465, 466, 467, 468, 471, 472, 474,
457, 484 and 120-B of the Indian Penal Code.
The said case pertained to allotment of land in
Kutch. The Petitioner was not named in the FIR.
Nov., 2008 While the Petitioner was posted as Municipal
Commissioner, Bhavnagar, Ms. Mansi Soni
contacted the Petitioner to inform him that Shri
Modi had asked her to do a project on Alang
Shipyard for which she would like to come to
Bhavnagar.
Nov- Dec, 08 Ms. Soni came to Bhavnagar and, during that
time, the Petitioner found that she was constantly
in touch with Shri Modi, who was abroad and
probably in South Africa at the time. She also
conveyed to the Petitioner that Shri Modi asked
her about the Petitioner’s office routine and
habits, and whether the Petitioner knew about
their intimate relationship. In one conversation,
Ms. Soni showed the Petitioner a text message
that the Chief Minister had sent to her from
abroad. The Petitioner made a note of the cell
phone number from which it had originated. The
number was 9909923400.
06.01.2010 The Petitioner was illegally picked up by the
police from his house at about 5.30 a.m. in
connection with FIR No.1/2008.
31.03.2010 A second FIR being I-CR No.3/2010 was
registered against the Petitioner for the offences
under sections 7, 11, 13(1)(b) and 13(2) of the
Prevention of Corruption Act at State CID (Crime)
Rajkot Police Station which related to two SIM
cards which the Petitioner possessed but were
registered under the names of persons other than
the Petitioner.
25.09.2010 The same Investigating Agency registered a third
FIR vide I-CR No.9/2010 State CID Crime, Rajkot
Zone Police Station under sections 217, 409,
465, 467, 468, 471, 120-B etc. of IPC against the
Petitioner and others which related to the
allotment of land to the Welspun Group of
companies (Welspun).
11.12.2010 The Petitioner addressed a letter to Shri K.P.
Gajipara, the investigating officer of the I-Cr
No.09/2010, disclosing the facts as to the
circumstances under which the said land was
allotted to Welspun and that this allotment was
made on specific instructions from the Chief
Minister Shri Narendra Modi.
19.01.2011 The Petitioner addressed a communication to the
Chief Secretary, Govt. of Gujarat, stating that, in
view of the specific allegations against the Chief
Minister, the investigation may be transferred to
the CBI.
26.04.2011 Since no action has been taken and the
Petitioner apprehends that there will be no fair
and impartial investigation, the Petitioner prefers
the present petition.
IN THE SUPREME COURT OF INDIACRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (Crl) No. /2011
IN THE MATTER OF:-
Pradeep N. SharmaAged about 55 years,Plot No. 465/A-2,Sector 1-C, Gandhinagar, Gujarat.(Presently in Jail)Through his Pairokar Shri. Mukesh Sharma …Petitioner
Versus
1. The State of GujaratThrough its Secretary, Department of Home, Sachivalaya, Gandhinagar, Gujarat. Respondent No. 1
2. Additional DGP, CID Crime, Police Bhavan, Gandhinagar. Respondent No. 2
3. Shri Narendra Modi,Residing at Chief Minister Niwas,Sector-20, Gandhinagar, Gujarat. Respondent No. 3
4. Union of India,Through its Secretary,Ministry of Personnel, Pension and Public Grievances,Department of Personnel, New Delhi. Respondent No. 4
5. Central Bureau of Investigation,Through, its Director,Scope Complex,CGO, Lodhi Road,New Delhi Respondent No. 5
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
To
THE HON’BLE THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT
THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH: -
1. That the present petition has been filed by the Petitioner
seeking the transfer of the cases lodged against him with
the State Crime branch to an independent investigative
agency, Central Bureau of Investigation (CBI), since the
said cases have been lodged simply to falsely implicate
the Petitioner at the behest of the Chief Minister of the
State.
2. That the Petitioner is an IAS officer in the Gujarat cadre,
with an unblemished record of outstanding performance
throughout his career; has received numerous accolades
for his work including the Cavalier Cross from the
President of the Republic of Poland for proactive
collaboration on joint urban development projects in
Jamnagar, Gujarat, between 2001 and 2003 when the
Petitioner served there as the Municipal Commissioner.
3. That it would be pertinent to take note of the fact that the
Petitioner is the younger brother of Shri Kuldip Sharma,
presently the senior-most IPS Officer in the State and
functioned as Additional Director General of Police, CID
(Crime) from 28.4.2003 to 1.8.2005. On taking over the
charge, Shri. Kuldip Sharma (IPS) set about improving
the systems and making the process robust so that all
investigations pending with the State CID (Crime &
Railways) or received thereafter were attended to in an
impartial manner in which the high investigation
standards of propriety were followed.
4. That the Petitioner’s professional credentials as an urban
infrastructure development expert include two separate
Master’s degrees from abroad – a Master’s in
Development Management (1990) as an Asian
Development Bank scholar in Manila, Philippines; and a
Master’s in Economic Policy and Planning (1994) from
Boston, USA, as well as an Executive Diploma in Rural
Development Policy and Planning (1989) from the
Institute of Development Studies at the University of
Sussex in the U.K. His seminal contribution to rebuilding
Bhuj city and the rest of Kutch district after the
devastating 2001 earthquake in that region has been
applauded by international entities such as the World
Bank, the Asian Development Bank, and the BBC; as
recently as this past January 2011, in a 10-year
anniversary documentary entitled “Gujarat’s Astonishing
Rise from Rubble of 2001 Quake,” the BBC has
recognized the Petitioner as “the government official
widely credited at the time with pushing through the
radical plans” [for building a completely new city of Bhuj].
The Petitioner, on several occasions, has received
appreciations from the State Government for the
remarkable service rendered by the Petitioner during the
troubled times of earthquake towards the rehabilitation of
affected people of Kutch. Copies of letters of appreciation
and articles are annexed herewith and marked as
ANNEXURE P-1 (Colly). [Page Nos. 34 – 76]
5. That Shri G. C. Murmu, present Secretary to the CM
called Shri Chittaranjan Singh, then Director, ACB, to the
former’s office and gave him a bunch of
anonymous/pseudonymous applications and asked him
to use them to prosecute the petitioner. Shri Chittaranjan
Singh on return to his office consulted his deputy, one
Shri Tirth Raj, who opined that such anonymous
applications couldn’t be inquired into without Govt.
orders. Thereupon, a letter was issued to the GAD asking
them to issue specific orders if they require the ACB to
inquire into anonymous application. This will prove the
direct interest of the Chief Minister. However, copy of the
letter is unlikely to be obtained since under RTI, ACB is
exempted.
6. That the Petitioner by way of the present petition seeks
the indulgence of this Hon’ble Court to transfer the cases
to CBI as the cases have been registered at the behest of
the Chief Minister of the State in order to falsely implicate
the Petitioner and harass him and has thus deprived the
Petitioner of his personal life and liberty. The following
cases are registered against the Petitioner:
i. M. Case no. 1/2008: registered on dated 20.2.2008 with
the CID (Crime) Rajkot zone
ii. CASE NO. 3/2010 registered with CID (CRIME) Rajkot
Zone,
iii. CASE NO. 9/2010 registered with CID (CRIME) Rajkot
Zone,
iv. CID (Crime) Rajkot Zone No. 1/2011 Offence registered
under section 217, 409, 120(B) of IPC, registered on
22.2.2011.
7. That the Petitioner humbly submits that the these cases
are being registered and being investigated by the State
machinery at the behest of the Chief Minister of the State
who has a personal agenda to ensure that the Petitioner
is never able to work or lead a peaceful life. The
Petitioner levels allegations with full sense of
responsibility and the facts narrated hereinafter would
show that Shri Modi has been using the entire State
machinery for his personal advantage. The reasons for
this severe bias and prejudice are:
I. Firstly, the Petitioner happens to be the younger
brother of Kuldip Sharma, a highly-decorated and
currently the senior-most IPS officer in the Gujarat
state cadre, who has unmasked many misdeeds of
Narendra Modi since the 2002 Godhra riots and also of
his henchman Amit Shah,
II Secondly, the Petitioner is suspected of having
stumbled upon some intimate secrets of Narendra
Modi’s escapades with a woman named Ms. Mansi
Soni. Shri Modi’s paranoia about the potential grave
damage to his public image and political career.
FACTS IN BRIEF TO SHOW HOW SHRI KULDIP SHARMA DEFIED THE IILEGAL INSTRUCTIONS OF SHRI NARENDRA MODI AND HIS ASSOCIATES: -
8. That when Shri Kuldip Sharma took charge as Additional
Director General of Police, CID (Crime), set about
improving the systems and making the process robust so
that all investigations pending with the State CID (Crime
& Railways) or received thereafter were attended to in an
impartial manner in which the high investigation
standards of propriety were followed. In doing so, Shri
Kuldip Sharma also issued a manual of 340 pages, which
laid down the duties and work procedures for each rank
in the organization. Certain pending investigation with the
State CID (Crime & Railways) were such cases in which
Shri Narendra Modi and Shri Amit Shah were interested,
the details whereof are stated hereunder.
9. That one of such cases which was pending in the State
CID (Crime) was the Soharabuddin fake encounter case.
This was a reference from this Hon’ble Court, on a letter
sent by Soharabuddin’s brother and mother, which letter
had been referred to the DGP. The DGP had entrusted
the matter to the State CID (Crime). Shri Kuldip Sharma
had issued directions to submit an interim report to this
Hon’ble Court and to vigorously pursue the inquiry. It
appears that Shri Amit Shah and Shri Narendra Modi
hold it against Shri Kuldip Sharma that he ordered the
interim report to be sent to this Hon’ble Court, which
became the starting point of events that eventually not
only landed certain police officers in the jail on murder
charges but also resulted in the arrest of Shri Amit Shah,
a close associate of Shri Modi and the then MOS (Home)
on 25.7.2010 by the CBI on charges of murder and
extortion.
10. That, in another case relating to Ms. Mallika Sarabhai
also, Shri Kuldip Sharma did not accept the directions
issued by Shri Modi and conducted a free and fair
investigation that was not to the liking of Shri Modi. An
offence was registered vide Ahmedabad City Naranpura
Police Station CR No. 647/03 u/s 409, 420, 34, 114,
120B IPC against Ms. Mallika Sarabhai, which pertains to
the danseuse’s plan to take a troop to USA and South
America and the allegation was that she was using her
organization to take people illegally to USA. It is pertinent
to note here that Ms. Sarabhai was a Petitioner before
the Hon’ble Court against the Chief Minister and others
with regard to the post-Godhra communal riots in Gujarat
during 2002. The CID (Crime) took over the case on
20.9.2004. However, investigation by the State CID
(Crime) revealed that no offence was made out. Despite
this, Shri Amit Shah, the then MOS (Home) was bringing
pressure on CID (Crime) to arrest and charge-sheet Ms.
Sarabhai. However, Shri Kuldip Sharma, as per the
evidence, directed the closure of the case. By this action
of Shri Kuldip Sharma, not only was Shri Amit Shah
resentful, but even Shri Narendra Modi too expressed his
displeasure about it later on when Shri Kuldip Sharma
had an occasion to meet him in person on 18.8.2006.
11. That yet another serious case when Shri Kuldip Sharma
was up in arms, against the personal interests of Shri
Modi and Shri Amit Shah, was an inquiry in which
allegations were made that Amit Shah, had received an
amount of Rs. 2.5 crores through an intermediary Shri
Girish Dani, in the matter of a case about a fraud in
Madhavpura Mercantile Co-operative Bank Limited,
Ahmedabad. Shri Ketan Parikh was accused in this
offence, registered vide Ahmedabad City Madhavpura
Police Station CR No. 66/2001 u/s 120 (B), 405, 406,
408, 409, 420 of IPC and section 35 of Banking
Regulations Act, 1949. The investigation was being
conducted by the CBI. Since Shri Amit Shah’s name was
also associated, Shri Kuldip Sharma felt that it was also
necessary in the interest of Shri Amit Shah, that a proper
inquiry be conducted to clear his name, if he were not
involved and therefore recommended that since the
original investigation pertaining to Shri Ketan Parikh was
done by CBI, the application leveling charges against him
also be sent to CBI for further necessary investigation.
Therefore, a letter was addressed to the Chief Secretary
to bring the above facts to the notice of the Chief
Minister. Meanwhile, Shri Kuldip Sharma had to go to
Mussoorie to attend a National Conference on Women
Police. Upon his return, he was informed that the Home
Department had transferred Shri Kuldip Sharma from CID
(Crime).
12. That another such instance was during the tenure of Shri
Kuldip Sharma as ADGP, CID (Crime). One
Superintendent of Police, Ms. Nirja Gotru was deputed to
supervise cases involving atrocities against women,
including those killed or violated during the riots of 2002.
During her visit to Panchmahal District, she came across
a case wherein, during the fateful period from 28.2.2002
till the 1st week of March, 2002, human skeletons and
bones were discovered by the local SHO. In one case, a
total of 17 human skeletons and in another case 6
skeletons had been discovered. The then SHO, on the
pretext of determining whether they were human or
animal bones, had referred the medical examination of
the remains to SSG Hospital, Vadodara for confirmation.
The SP Ms. Gotru discovered the medical exam results
had been received at the relevant time in 2002 confirming
that these were human bone and yet no offence had
been registered. The SP, Vadodara (Rural), was
officiating as SP of Panchmahal District at this time. He
and Ms. Gotru both brought to the notice of the then
DGP, mentioning that an offence needs to be registered.
Since Shri Amit Shah and Shri Narendra Modi were also
made aware of the incident, there was reluctance at the
Police Head Quarters to proceed in the matter as per law.
The SP, Ms. Nirja Gotru as well as in-charge SP
Panchmahal brought to the notice of Shri Kuldip Sharma
that there is reluctance in registering an offence. In his
capacity as ADGP, CID (Crime), Shri Kuldip Sharma
directed that the offence be registered conveying that he
will take the responsibility regarding the same.
Subsequently, telephonically, he informed the DGP that
an offence will have to be registered and that he had
given instructions to lodge the complaint. The offence
came to be registered as Kalol Police Station CR No.
222/03 on 17.12.2003 u/s IPC 143, 147, 148, 149, 302,
201, 155 (A) more than one and a half year after the
gruesome incident. Later investigation of this offence had
resulted in arrest of people considered important to the
organization with which the Chief Minister had political
connection.
13. That in another incident an offence was registered vide
Himmatnagar Town Police Station Crime Register No.
336/2001 was pending investigation with the State CID
(Crime & Railways). In brief, it pertained to opening of an
account in a bank with the help of Shri Jayesh Joshi
under a false name and then siphoning off huge amounts
of money. It transpired during the course of investigation
that one Shri Jayesh Joshi introduced the person who
opened the bank account. Thus, this individual had
committed a fraud with the bank by introducing the
person under a different name. Shri Kuldip Sharma had
received a call from Shri Amrut Patel from the Chief
Minister’s office suggesting that Shri Jayesh Joshi was
innocent and he had known Shri Narendra Modi, Chief
Minister since their younger days for the last many years.
Upon investigation, Shri Jayesh Joshi’s culpability was
clear. Shri Kuldip Sharma had accordingly called up Shri
Patel in the Chief Minister’s office and requested him to
convey to the Chief Minister that his information about
Shri Jayesh Joshi being innocent was false. The said
individual was arrested on 14.2.2004.
14. That Shri Modi in complete violation of the prevailing
rules, tried to jeopardize the carrier of Shri Kuldip
Sharma. In the State of Gujarat, ACRs of officers of the
rank of ADGP are Reported upon by the DGP, Reviewed
by the Chief Secretary and Accepted by the Chief
Minister. Further in the case of officers of the rank of
IGP and ADGP, two ACRs have been initiated, one by
the DGP and another one by the ACS (Home). There is a
time bound frame work within which the Reporting,
Reviewing and Accepting Authorities have to complete
the remarks they have to enter into ACR. There is also a
mandatory statutory direction of the Department of
Personnel & Training, Govt. of India that no ACR should
be entered upon after 31st December of the previous
calendar year if the same has not done before that date.
It may be noted that the Chief Minister in brazen and
direct violation of the statutory rule as also administrative
instruction of the DoPT entered his remarks of four years
ACRs altogether on 20.12.2007 as per his own
admission, i.e. for the years 2003-2004, 2004-2005,
2005-2006 and 2006-2007, downgraded from
“Outstanding” to “Very Good” without assigning any
reasons. He also deliberately did not put a date. However
for the reasons given above wherein Shri Kuldip Sharma
did not agree to illegal instructions of the Chief Minister
and the MOS (Home), the Chief Minister downgraded the
ACRs with the malafide intention of denying him
promotion to the next higher rank as at least three
outstanding ACRs are required out of last 10 years to
qualify for the next promotion. The Chief Minister similarly
downgraded subsequent ACR for the year 2007-2008
from “Outstanding” to “Very Good”. The stand of Shri
Kuldip Sharma has been vindicated by the order of the
Central Administrative Tribunal in OA No. 49 of 2010
wherein the action of Shri Narendra Modi have been held
to be arbitrary and illegal. A copy of the order dated
07.04.2011 passed in OA. No. 49 of 2010 is annexed
herewith and marked as ANNEXURE P-2. [Page Nos. 77
– 130]
PETITIONER’s KNOWLEDGE ABOUT SHRI NARENDRA MODI AND MS MANSI SONI.
15. That two years after the earth quake in the entire district
of Bhuj in 2001, the Petitioner assumed charge as the
District Magistrate and Collector of Kutch on 28.05.2003.
As part of the rehabilitation of the traders of the area, the
Petitioner in his official capacity allotted land under the
State Government policy. In 2005, in the capacity of
District Collector of Kutch, the Petitioner commissioned a
series of projects toward the beautification of Bhuj city
and overall development of Kutch district. A site was
selected developing a hill garden, for which Ms. Mansi
Soni was the Landscape Architect.
16. That the Chief Minister, Shri Narendra Modi, visited
Kachchh to inaugurate the hill garden project upon its
completion, and was at this time introduced to Ms. Soni.
Shri Modi invited Ms. Soni to email any other suggestions
she might have, giving Ms. Soni his personal email
address. Ms. Soni subsequently wrote to Shri Modi
thanking him for the visit to hill garden. A series of emails
was exchanged until Sharad Utsav in October 2005. Ms.
Soni communicated to the Petitioner her decision to
return to Bangalore as well as shared her ongoing
interaction with the Chief Minister.
17. That at this time, Ms. Soni had approached the
Collectorate to participate in the event and had been
assigned a role of organizing reception of guests; she
was provided the appropriate monetary fees in exchange
for her services. Concurrently, Shri Modi and Ms. Soni
had begun to exchange text messages (SMS), which she
communicated to the Petitioner. She further mentioned
that she was planning to meet the Chief Minister.
Skeptical of her claims, and under the impression that
Ms. Soni was prevaricating to embellish her stature, the
Petitioner suggested to Ms. Soni that she contact the
Chief Minister’s security in this regard.
18. That the following morning at the site of Sharad Utsav at
approximately 7:00 AM, the Petitioner was in the
presence of Shri Modi when Ms. Soni arrived and the
conversation between them assured the Petitioner that
Shri Modi and Ms. Mansi Soni were in fact exchanging
personal text messages, e-mails, and/or direct
conversations. Subsequently, Ms. Soni further revealed
to the Petitioner that when she called Shri Modi in his
office, he would freely interrupt scheduled meetings,
walking out of his office on senior officials in order to
speak to her privately. Ms. Soni communicated that she
was pleased with the extent and promptness of attention
she received from Shri Modi.
19. That during the second week of March 2006, at
approximately 5:00 PM, Ms. Soni called the Petitioner
and conveyed that she had just landed in Ahmedabad
city and was planning to visit Bhuj. Shortly thereafter,
when the Petitioner attempted to telephone her, Ms.
Soni’s cell phone was switched off and remained so for
the next two days. Two days later, at approximately 11:00
AM, Ms. Soni called the Petitioner and conveyed that she
was at the residence of Shri Modi, and had spent the
duration of the previous two days at his residence.
Subsequently, she met the Petitioner in Bhuj and
described in detail her stay with Shri Modi. She narrated
that when she landed at the Ahmedabad airport, she was
received by Shri O. P. Singh, Shri Modi’s deputy, and
was escorted in a vehicle to the Chief Minister’s
residence. She was advised to switch off her cell phone
and entered the Chief Minister’s residence through rear
door. She was taken to first floor and given a room
across the Chief Minister’s bedroom.
20. That Ms. Mansi Soni also informed that the next day of
her stay at Shri Modi’s residence was the festival of Holi,
many people including Anandiben Patel visited Shri Modi
for the festival and played with colour. Shri Modi attended
to them briefly and returned to his quarters. In the
meantime, Ms. Soni had developed a fever and
requested a physician, but Shri Modi conveyed that
calling a physician was impossible, given the peculiarity
of their situation. According to Ms. Soni, Shri Modi spoke
about the philosophy and insisted she listen to the story
of his life. The following morning she left for Vadodara in
a car sent for by Shri Modi.
21. That on 05.11.2007 pursuant to an order of the Ld. Chief
Judicial Magistrate directed investigation under Section
156(3) of the Cr.P.C. to be conducted by C.I.D. (Crime),
Rajkot Zone. A First Information Report being F.I.R.
No.01/2008 (M. Case No.1/2008) was registered under
Section 200, 203, 217, 465, 466, 467, 468, 471, 472,
474, 457, 484 and 120-B of the Indian Penal Code. The
Petitioner is not named as an accused in the First
Information Report. The said FIR pertains to allotment of
land to certain wholesale grain merchants of Bhuj who
had lost their shops when the existing market in the old
city was destroyed beyond repair in the 2001 earthquake.
The said FIR alleges that certain members of the
wholesale grain merchants’ association were ineligible to
be allotted the shops and yet got away with allotments by
producing forged/false certificates issued in the name of
third persons; however, not a single forged certificate A
copy of the FIR No. 1/2008 is annexed herewith and
marked as ANNEXURE P-3. [Page Nos. 131 – 146]
22. That in November 2008, while the Petitioner was posted
as Municipal Commissioner, Bhavnagar, Ms. Soni
contacted the Petitioner to inform him that Shri Modi had
asked her to do a project on Alang Shipyard for which
she would like to come to Bhavnagar. She came to
Bhavnagar and during that time, the Petitioner found that
she was constantly in touch with Shri Modi, who was
abroad and probably in South Africa at the time. She also
conveyed to the Petitioner that Shri Modi asked her about
the Petitioner’s office routine and habits, and whether the
Petitioner knew about the relationship they shared. In one
conversation, Ms. Soni showed the Petitioner a text
message that the Chief Minister had sent to her from
abroad. The Petitioner made a note of the cell phone
number from which it had originated. This number was
9909923400.
23. That the Petitioner submits that there exists in the State
of Gujarat a general impression amongst civil servants,
top industrialists and senior leaders of political parties
that an unprecedented degree of illegal telephone
interceptions is being conducted in the upper echelons of
the State Government. This may be why nearly everyone
keeps in addition to an official or known mobile number
one or more alternate cell phones. The Petitioner had two
cell phones, with Nos. 99251 99799 and 98240 01729.
On one of these, the Petitioner saved the cell phone
number from which Shri Modi had sent a text message to
Ms. Soni. The Petitioner further submits that he once
accidentally dialed Shri Modi’s number, thinking that he
was calling someone else. When there was no reply on
Shri Modi’s phone, the Petitioner realized his mistake and
disconnected. The Petitioner submits his strong belief
that Shri Modi must have found out the address of the
holder of the SIM card from which the call to his personal
number had originated, and placed it under observation
either with the help of State CID (Intelligence) or illegal
phone tapping methods involving the electronic
equipment through unauthorized collaboration. Shri Modi
could then have found out that Ms. Soni was speaking to
the Petitioner often over the phone.
24. That the Petitioner received an anonymous letter around
this time conveying that a video of sexual activity
between Ms. Soni and one person was available on an
internet website, and the letter advised the Petitioner to
desist from contacting Ms. Soni, as her character and
actions were not befitting of her company with Gujarat
State officials. The veracity of the letter’s allegations was
subsequently established since the Petitioner did indeed
come across such a video clipping. Ms. Soni’s previous
contact with the Petitioner, in conjunction with Ms. Soni’s
indiscretions, came to be discussed by the Petitioner on
both of his two phones mentioned above. It now appears
to the Petitioner that Shri Modi started believing that the
videos involving Ms. Soni perhaps included Shri Modi
himself.
25. That on 06.01.2010 the Petitioner was illegally picked up
by the police from his house at about 5.30 a.m. in
connection with FIR No.1/2008. It is submitted that
appropriate state authorities had neither issued any
show-cause nor sought any explanation from him, nor
was he even summoned by CID (Crime) in the said case
and suddenly on 06.01.2010 morning he was illegally
arrested.
26. That on 31.03.2010 second FIR being I-CR No.3/2010
was registered against the Petitioner for the offences
under sections 7, 11, 13(1)(b) and 13(2) of the Prevention
of Corruption Act at State CID (Crime) Rajkot Police
Station. The allegation pertains to the use of two mobile
telephones by the Petitioner belonging to third parties. It
is pertinent to note that neither the cellular telephones nor
the SIM cards have been recovered from the Petitioner in
the said case. The Petitioner is a Senior IAS Officer who
was entitled to official telephones from the Government
for making even personal phone calls within reasonable
limits. In the said matter, the Petitioner is currently
protected after an interim order granting anticipatory bail
was passed by the Hon’ble High Court of Gujarat. A copy
of the FIR being I-CR No.3/2010 dated 31.03.2010 is
being annexed herewith and marked as ANNEXURE-P4.
[Page Nos. 147 – 151]
27. That on 25.09.2010 the same Investigating Agency
registered a third FIR vide I-CR No.9/2010 State CID
Crime, Rajkot Zone Police Station under sections 217,
409, 465, 467, 468, 471, 120-B etc. of IPC against the
Petitioner and others. This case pertains to allotment of
land to Welspun, a known public limited company. The
allotments to Welspun and other eligible business entities
were made at the time when it was a declared state
government policy to allot land to industrial houses willing
to set up industrial units especially within the a Special
Economic Zones (SEZ) with incentives that included tax
holiday, the policy aim being rapid reconstruction and
industrial development of Kachchh that had historically
been a less-developed, remote region of the state and, in
addition, had suffered catastrophic damage during the
2001 earthquake. A copy of the said FIR being I-CR
No.9/2010 is being annexed herewith and marked as
ANNEXURE-P5. [Page Nos. 152 – 162]
28. That on 11.12.2010 the Petitioner addressed a letter to
Shri K.P. Gajipara, the investigating officer of the I-Cr
No.09/2010 disclosing the facts about the circumstances
under which and on the instructions of the Chief Minister
Shri Narendra Modi himself that the allotments were
made to the Welspun. A copy of the said letter dated
11.12.2010, addressed to Shri K.P. Gajipara, the
investigating officer is being annexed herewith and
marked as ANNEXURE-P6. [Page Nos. 162 – 174]
29. That on 19.01.2011, the Petitioner addressed a
communication to the Chief Secretary, Govt. of Gujarat,
stating that, in view of the specific allegations against the
Chief Minister, the investigation may be transferred to the
CBI. A copy of said letter dated 19.01.11 addressed to
the Chief Secretary, Govt. of Gujarat is being annexed
herewith and marked as ANNEXURE-P7. [Page Nos.
175 – 180]
30. That when the Petitioner was in Delhi on his way to Bhuj,
he was arrested on 14.2.2011 by the State CID (Crime) in
FIR No. 9 of 2010. Thereafter on 22.2.2011 the State CID
(Crime) registered a fourth case being CID Crime No. 1
of 2011 under section 409, 217, 120 B IPC which is
regarding allotment of land in Mundra Taluka of Kachchh
District. FIR was registered on 22.02.2011 as Rajkot
Zone, CID Crime No.1/2011 under Sections 409, 217,
120B of the IPC. Like in the previous case, there are
similar allegations of allotment of land by the Petitioner to
one Saw Pipes Ltd. in Mundra in excess of his powers
and without obtaining requisite approval. In this FIR also,
wrongly characterized lapses if any, on part of the lower
functionaries, have been sought to be imposed on the
Petitioner. A copy of the said FIR being CID Crime No. 1
of 2011, is being annexed here with and marked as
ANNEXURE: P8. [Page Nos. 181 – 190] While the
Petitioner was in judicial custody in connection with FIR
No. 9 of 2010, he was taken on transfer warrant and
arrested in connection with FIR No. 1 of 2011 on
03.03.2011.
31. That the aforesaid facts and circumstances would go to
show that the Petitioner is a victim of the personal
vendetta of Shri Narendra Modi and there is remote
chance of the investigation being conducted in a fair and
transparent manner since the Petitioner feels that the
cases have been lodged at the behest of Shri Modi. In
this backdrop of circumstances the Petitioner seeks the
indulgence of this Hon’ble Court to transfer the cases to
an independently investigative agency, CBI.
32. That the present petition is preferred amongst others on
the following grounds:
GROUNDS
a. Because there is a reasonable apprehension on the part
of the Petitioner in view of the circumstances narrated in
the petition that justice will not be done. It is submitted
that a Petitioner is not required to demonstrate that
justice will inevitably fail. The circumstances very clearly
demonstrate that apprehension is reasonable and there
is all likelihood that the Petitioner will be embroiled in
rigmarole of false charges and inquiries.
b. Because the brother of the Petitioner has refused to
buckle down under the pressure of those in power and
invited the wrath of the Shri Narendra Modi and the
Petitioner is also being targeted so as to create
circumstances wherein Shri Kuldip Sharma breaks down.
It is submitted that this is a case where the Petitioner has
reasonable apprehension that justice will not be done.
c. Because assurance of a fair trial is the first imperative of
the dispensation of justice and the central criterion for the
court to consider before transferring a case to an
independent investigative agency. In the present case
since the cases have been registered at the behest of
those in power and the State machinery is being used to
settle personal vendetta, the Petitioner will never be
assured of a fair investigation at the hands of State
machinery.
d. Because the confidence of the Petitioner in the fairness
of a trial is seriously undermined since the State
investigative machinery takes instructions from those at
whose behest the false cases and charges have been
leveled against the Petitioner.
e. Because the apprehension of not getting a fair and
impartial inquiry or trial is not imaginary, based upon
conjectures and surmises but is reasonable. It is
submitted that Shri Narendra Modi is aware that the
Petitioner has knowledge of his secret liaisons with Ms.
Mansi Soni and if the same comes to public knowledge it
would seriously hamper his political aspirations. Thus it
appears that the dispensation of criminal justice is not
possible impartially and objectively and without any bias.
f. Because all these FIRs and complaints against the
Petitioner which have been made ostensibly for alleged
acts of the Petitioner long before 2008 are solely for the
purpose of the personal vendetta of the respondent No.1
against the Petitioner herein for the suspicion that the
Petitioner is having direct knowledge of the personal life
of Shri Narendra Modi which has, till date, been hidden
from the public. It is respectfully submitted that for the
same reason there has been a sudden spurt of
cases/complaints being filed against the Petitioner’s
brother also who is an IPS Officer and against whom till
about the same time there was no complaint.
g. Because, the present case discloses a situation where it
cannot be expected of either the CID Crime Branch or
any other State investigating agency to arrive at, or
conduct an impartial investigation, because the Chief
Minister of the State is personally hell-bent in having the
investigation carrying out in a manner that suits him and
suits his ends of destroying the Petitioner’s credibility as
well as his professional career. It is respectfully
submitted that the facts and circumstances of the present
case fall within the rarest of the rare cases, where it can
be safely presumed that the Petitioner will not get any
justice within the State of Gujarat and therefore, the
entire investigation and/or the trial if so required deserves
to be shifted out of the State of Gujarat, the failure so to
do would result in the gravest travesty of justice.
h. Because the accusations leveled in the present Petition
which are substantiated in the “Grounds” unequivocally
point towards menace in law and in fact of the
respondent State led by the Chief Minister. Given the
nature of the controversies, it is impossible to hold
otherwise that after the investigation of the F.I.R.s in
question against the Petitioner are allowed to be
conducted by either the State Police or even the CID
Crime of the Gujarat State, it is impossible that an
impartial investigation would result therein inasmuch as
the Supreme Commander of the investigating agencies
and the State Police is personally or directly interested in
the outcome of the investigations which are more in the
nature of witch-hunt launched against the present Writ
Petitioner.
i. Thus, when cogent allegations have been made against
high officials and the Chief Minister of the State in his
personal capacity, this Hon’ble Court, following the
decision in Rubabuddin’s case, reported in (2010) 2 SCC
200, ought to hand over the investigation of the four
F.I.R.s referred to in this petition, to the CBI since the
allegations leveled against Shri Modi are not based upon
conjectures and surmises but upon substantial facts
which led to reasonable apprehension that the
investigative machinery is bound to be prejudiced and
biased.
j. Because it is respectfully submitted the facts of the FIR
itself will reveal that (1) the FIR is misconceived, (2) a
matter specific to revenue has been inexplicably
converted into a criminal case, and (3) the registration of
the FIR is motivated by malice at the behest of the Chief
Minister, Shri Narendra Modi, for the aforementioned
reasons.
k. Because the Petitioner’s brother, currently the senior-
most IPS Officer in the State Government, has also
become a victim of the wrath of the Chief Minister and he
has also been sought to be arrested and prosecuted. The
Annual Confidential Reports of the Petitioner's brother
have been illegally downgraded from 'outstanding' to
'very good' at the behest of the Chief Minister for which
the Petitioner's brother has filed an application before the
Central Administrative Tribunal (CAT) and the stand of
the Petitioner stands vindicated by the findings arrived at
by this CAT wherein the actions of Shri Narendra Modi
have been held to be arbitrary and illegal.
l. Because the Petitioner’s fundamental right to liberty has
been repeatedly and comprehensively violated time and
again, without the due process of law, by the persecution
launched against the Petitioner and his family, by the
most powerful man in the recent history of the State.
m. Because the Petitioner is in judicial custody since
06.01.2010 except for a few months between September
2010 and January 2011, during which time he was on bail
and charge-sheet has already been filed. There are
about 400 witnesses cited in the charge-sheet and further
investigation is still going on with respect to other
accused persons. The charge for offence under the
Prevention of Corruption Act has been dropped and all
other offences are triable by Magistrate. The Petitioner
has been an outstanding Administrative Officer with
unblemished career in the past 30 years since
15.01.1981 when he joined the Services as probationer.
His arrest is actuated with malice in law as well as malice
in fact.
n. Because in an appropriate case, particularly when the
Court feels that the investigation by the State police
authorities is not in the proper direction as the high police
officials are involved, in order to do complete justice, it is
always open to the Court to hand over the investigation to
an independent and specialized agency like the CBI.
33. Because of paucity of time the present petition has been
filed in a great hurry and thus the Petitioner seeks leave of this
Hon’ble Court to place on record additional documents and also
for adding facts and grounds in the present petition.
34. That the Petitioner has not filed any other petition before
this Hon’ble Court or any other court for the same purpose.
PRAYER
In view of the submissions made hereinabove, the Petitioner
most respectfully prays that this Hon’ble Court may graciously
be pleased to:
A) an appropriate writ of madamus or any other appropriate
writ order or direction to the respondents herein allowing
the present petition and directing the transfer of the
following four cases from the State CID to the CBI :-
(i) M. Case no. 1/2008: registered on dated 20.2.2008 with the CID (Crime) Rajkot zone,
(ii) CASE NO. 3/2010 registered with CID (CRIME) Rajkot Zone,
(iii) CASE NO. 9/2010 registered with CID (CRIME) Rajkot Zone
(iv) CID (Crime) Rajkot Zone No. 1/2011 Offence registered under section 217, 409, 120(B) of IPC;
C). Pass any other order as this Hon’ble Court may deem fit
and appropriate in the facts and circumstances of the
present case.
AND FOR THIS ACT OF KINDNESS YOUR HUMBLE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.
DRAWN & FILED BY
(SUNIL FERNANDES) Advocate for the PetitionerNEW DELHIDRAWN ON: 21.04.2011FILED ON: 26.04.2011
ANNEXURE P-1
SURAT URBAN DEVELOMENT AUTHORITY
N. Bijlani, IAS Multistoreyed BuildingChairman ‘A’ block, 5th Floor
Nanpur, SURAT 395001
D.O. No. SUDA/Election/5807 Dt 21.03.1985
My dear Pradip Sharma
As an observer of the Election Commission of India I had
an opportunity to visit the 164-vyara (S.T.) Assembly
Constituency (for which you were appointed as Returning
Officer) and to see the arrangements made for conduct of poll
as also for counting of votes. In this regard I would like to keep
on record my appreciations of the excellent arrangements
made by you for conduct poll and for continuing of votes in
accordance with instructions and guidelines of the election
commission of India. This was mainly due to the interest and
care taken by you personally at all stages.
I hope you will endeavour to keep up the level of
performance in your future career.
With best wishes.
Yours SincerelyN.M. Bijlani
Shri Pradip SharmaPrant OfficerVyara, Taluka: vyaraDistrict: Suratcc. collector, surat for information.
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From: P. N. Roychowdhary No. SSS/Target/ 84-85 Office of the Collector
Nanpura, SuratCollector andDistrict Magistrate Dt. 22.04. 1985Surat
Dear Shri Sharma
I take great pleasure in placing on record my appreciation of the
excellent work you have done during the crash drive for net
small savings collection by the end of March 1985. I am happy
to inform you that due to your all out efforts our district has
been able to collect Rs. 28.36 crores. Although we could not
achieve the target of Rs. 32.20 crores, none the less fact that
we had collected such a huge amount inspite of two general
elections have been conducted during the period indicates the
tremendous efforts you and your staff have made.
Accept my congratulations and please convey my
congratulations to your staff also.
Yours sincerely
(P.N. Roychowudhury)ToShri Pradeep SharmaDy. Collector, Vyara PrantVyara
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V.R.S Cowlagi, I.A.SSecretary to GovernmentD.O. No. CRO/LORS/34/3883/88
May 5, 1988
Dear Shri Pradip Sharma
1. I write to convey my appreciation for excellent work done
by you in various programmes relating to rural development. I
find that you have exceeded the target in two or more
programmes under implementation in your district.
2. This has been possible due to very competent planning,
hard work and the inspiration you have provided to all the
functionaries working under your charge.
3. Please accept my good wishes on this account for
continued success of your efforts in the coming year also.
Yours Sincerely
(VRS Cowlagi)
Sri Pradip SharmaDirector,District Rural Development Agency.
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BAIFBAIF DEVELOPMENT RESEARCH FOUNDATION,
KAMDHENUSENAPATI BAPAT MARG, PUNE- 411016
INDIA
TELE: 52621, TELEX: 0145-283 GRAM: BATFON
REF NO BARF/89/T2 DATE 18 th May, 1989
Dear Mr . Pradeep Sharma,
This is to appreciate with sense of gratitude your valuable co-
operation and administrative support to BAIF in executing
Socio-economic Rehabilitation programme of Tribals in Vansda
and Dharampur talukas of Valsad District. The Government of
India channalises development funds to district rural
development agencies in India through the Department of Rural
Development, New Delhi. Under this system the programme of
the rural poor can be successful only if the DRDA comes
forward whole heartedly with co-operation and support to the
operating agency, such as BAIF. As a project Director of
Valsad, DRDA your spontaneous co-operation has proved to be
most valuable. I can say you have set a good example how a
committed administrator can play the key role in development
programme specially designed for the upliftment of the rural
poor in India.
Young, enthusiastic, committed and qualified
administrator like you should try to join training programmes
which are conducted outside India to get wider vision, exposure
and proper perspective of wholestic approach which can help in
keeping the focus of the programme on the rural family.
I wish you a successful career and in getting support for training
abroad.
With Best Wishes
Yours Sincerely
MANIBHAI DESAI
PRESIDENT
Mr. Pradeep Sharma, I.A.S., D.R.D.ASurat
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Gram:URBANDEV
PROFESSIONAL DYNAMICS IN HEALTH CARE
A TERM PAPER IN GRADUATE LEVEL CORE COURSE AT NORTHEASTERN UNIVERSITY
(BOSTON, USA)
APRIL, 1994By: Sharma Shyamal
Imagine in your mind's eye a swamp-v ery murlcy,d ark, dank,
and unstable, full of mud, water, weeds, even quicksand. You
see insects skidding about on the surface of the swamp. You
also see crocodiles, alligators, bugs, spiders, snakes, and other
animals suited to that environment. The water is stagnant; no
fresh water is coming in or going out. You can see the fungus
growth and moss, and the stench is very offensive. The water is
putrid , stale, filled with disease and decaying vegetation.
Now imagine the gradual transformation of that murlq
swamp into a magnificent oasis. See the swamp being drained
of the old water. The swamp begins to dry up; fresh water is
introduced with inlets and outlets, so that the water is gradually
purified. The ground becomes more stable; the stench is gone;
vegetation begins to grow again; lovely blossoms and flowers
create an entirely new fragrance, the aroma of which is
soothing and satisfying. You see beautiful vegetation, trees ,
Iagoons.
Finally the swamp becomes a true oasis- one that has
shade under beautiful trees from the sun and pooling areas and
clear, pure water.You could even drink the water, it is so clean.
The oasis is now an attractive place to rest and to work and to
relate with others. If you were to describe it in quality terms, you
would say that it was beautiful, lovely, excellent, attractive,
enchanting , resplendent, magnificent, peaceful.1
Stephen Covey, in his book "Principle-Centered
Leadership" presents this metaphor to demonstrate how he
visualizes the concept of Transformational Leadership. The
goal of transformational leadership is to " transform" people and
organizations in a literal sense-t o change them in mind and
heart; enlarge vision, insight, and understanding; clarify
purposes; make behavior congruent with beliefs, principles, or
values; and bring about changes that are permanent, self-
perpetuating, and momentum building.
Dr. Covey goes on to add: “I am personally convinced
that one person can be a change catalyst, a " transformer," in
any situation, any organization. Such an individual is yeast that
can leaven an entire loaf. It requires vision, initiative, patience,
respect, persistence, courage and faith to be a transforming
leader."1
Reflecting on my association with such a leader and
having seen him so perform over past several years, I can very
1
vividly relate to Dr. Covey's metaphor, of ' a swamp being
turned into an oasis', for transformative leadership. I shall take
you several thousand miles across from here to the Indian
subcontinent to elaborate my claim.
India, the world's most populous democracy, espouses the
philosophy of welfare state for domestic economic policy and
administers a broad range of poverty alleviation programs for
the deprived and the downtrodden at the grassroots level. The
target population is defined as people who reside in rural areas
and whose per capita incomes fall below the official poverty
line. District Rural Development Agencies in every state are the
government's vehicles for implementing poverty alleviation and
rural development programs.
The DRDAs are headed by senior (normally so by virtue
of official rank rather than length of service) civil servants,
designated as Project Directors of the respective DRDAs. The
Project Director is assisted by several assistant project officers
(APOs) responsible for different specialty divisions such as
agriculture, animal husbandry, irrigation, social forestry, rural
housing, rural youth training, cooperatives finance, and
banking; as well as a network of about 300 employees and
village-level workers.
Funds are allocated to every DRDA annually to correspond with
the district's physical size and degree of economic
backwardness, the latter computed on the basis of the
percentage of the district's population living below the poverty
line. The project director and his team are responsible for
investing these resources in a myriad of developmental projects
so as to generate employment among eligible target population
and initiate sustained economic growth of the rural
communities.
Although the agencies generally manage to meet their
annual targets for subsidy disbursements, they often fail to
generate sustainable employment and growth; and end up
being massive charity institutions at the expense of the public
exchequer rather than playing their part as change agents in
the country's economic turnaround. This failure is largely
attributable to the failure of the project directors as leaders of
their organizations. Pradeep, already recognized by his peers
and his superiors in the government as a dynamic executive
and an outstanding team leader, was barely thirty when he took
office as Project Director, DRDA of Valsad in the state of
Gujarat in Western India. Valsad district is spread over
approximately 2100 sq. miles, and has a predominantly tribal
population of l.I2 millions out of a total rural population of 1.64
millions. I do not have the statistics for the magnitude of rural
people
eligible to receive aid from the DRDA. The district's total urban
and rural population is 2.I7 millions.3 In the year when Pradeep
took office, his DRDA had an annual budget of about 120
million Indian rupees, or about 8 million U.S. dollars at that
time; this allocation is subject to revision, normally in the
upward direction, every year.
I would like to put Pradeep's leadership behavior into
perspective for the reader, by employing some characteristics
of transformational leaders derived from " The Transformational
Leader " by Noel Tichy and Mary Anne Devanna.2
They identifv themselves as Change Agents: Pradeep's
professional and personal image has always been to make a
difference and transform the organization that he has assumed
responsibility for. He clearly identifies himself as the change
agent. His zeal to transform is manifest in his actions from the
day he assumes office; in his immaculate attire, in his brisk
manners, in the immediate physical changes he brings about in
his office premises as well as in his residential quarters, in
expressing to his team certain basic minimum standards of
decency and discipline he expects of them before they get
down to more serious business.
His office staff perceived these initial changes as
precursors to more important, impending changes in their
organization. They were excited at the prospect of working
under a progressive executive who would rise above the
mundane and bring essentially new order to their organization.
Little had they realized then, however, that they would not be
"working under" him; rather he would be "working with" them to
give a new meaning to their collective efforts.
They believe in people: According to Abraham Maslow, all of
us have basic kinds of needs: physiological, safety, social, ego,
and what he calls self-actualization. These needs are in a
hierarchy from lower needs; physiological - to the highest and
the most complex- self-actualization. Some people never have
a chance to fulfil their higher needs, such as, relating to others,
having satisfying, meaningful contact with others, having a
sense of inclusion and affection and response. We never allow
these needs to be satisfied because we deal situationally with
needs at the lowest level possible. In our motivation system, we
often create conditions that satisfy one level and never allow
people to move on up. We create work that does not allow
people to satisfy ego needs, to feel that "I'm doing something
worthwhile" or that "I have the esteem of people". We do not
create conditions wherein people achieve the best that is
possible for them to achieve (self-actualization).3
Transformational leaders are not dictators. They are
powerful yet sensitive of other people, and ultimately they work
toward the empowerment of others. In a feudal culture like
India's, Pradeep could easily have assumed dictatorial attitude
toward his staff. However, he believes that ordinary people
have a lot more to offer than they are usually either allowed or
encouraged to offer. Having redefined the DRDA's goal of
creating viable means of livelihood for the target population and
having communicated the same to his team, Pradeep
encouraged them to share with him information about the local
population and their culture, so vital for him to understand the
social and economic needs of the people he intended to serve.
He consulted with his APOs and immediate office staff about
what changes/improvements they considered desirable, based
on their experiences and/or frustrations within the organization
as well as with the State Secretariat.
He toured extensively throughout the district and met with
village-level workers and other stakeholders to reinforce their
morale and communicate his vision. In this process of self
education, he toured the remotest areas of his jurisdiction,
some accessible only on foot during monsoon season, and
listened to the tribals. He talked with them overnight in their
humble dwellings, shared their meagre meals and reassured
them that he and his team were there not to deprive them of
their cultural heritage, but to understand their needs and enable
them to fulfil those needs. He aroused people's interest in
special programs for rural youth, and women and children. He
enlisted the support of bankers, Non Governmental
Organizations (NGOs) and Spanish missionaries operating in
the district toward a concerted effort for achieving sustained,
self perpetuating economic growth in the area.
An essential ingredient in organizational leadership is
pulling rather than pushing people toward a goal. A "pull" style
of influence attracts and energizes people to enroll in an
exciting vision of the future. It motivates through identification,
rather than through rewards and punishments. Leaders
articulate and embody the ideals toward which the organization
strives.4
Pradeep's enthusiasm spread like contagion and radiated
in his surroundings. His genuine involvement with his
organization's goals provided a great impetus to his staff. They
felt motivated to go "the extra mile". Employee morale ran high
at all levels; people found themselves significant and
empowered, and their work stimulating, challenging, fascinating
and fun. They rose up to meet continuous challenges of
excellence and even higher standards of excellence provided
by their leader.
Pradeep planned beach-side gatherings and informal
cricket matches for his staff. This enhanced the process of
breaking down barriers and promoted a sense of community
among the people. At such times and at times when he and his
staff worked long unscheduled hours on a project, they were
treated with refreshments from his private kitchen.
The leader maintained excellent communications with the
Department of Agriculture & Rural Development, and invited the
top bosses in the department to periodically visit the district. His
team won state honor for excellent, outstanding performance in
the first year after he took office. It was a victory for the perfect
harmony of vision and purpose between the leader and his
extended team.
They are Life Long Learners: All transformational leaders
how an amazing appetite for continuous self-learning and
development. Pradeep did not hesitate from admitting his
mistakes, and could barely forgive those who refused to do so.
He viewed his mistakes as learning opportunities. He treated
his staff similarly and encouraged them to learn from their
mistakes.
Pradeep has been a life long learner in another sense,
too; i.e., in his continuous commitment to learning and
intellectual enrichment. During his tenure in the DRDA, he took
a 12-week course in Rural Research & Rural Planning at the
Institute of Developmental Studies,
University of Sussex in United Kingdom. While in the same
office, he initiated, of his own accord, a process that won him
Asian Development Bank-Japan Scholarship to study for
Masters in Development Management at the Asian Institute of
Management in Manila, Philippines. A couple of years after he
graduated from there and while he was Comptroller to the
Governor of Gujarat state, he again took time and personal
initiative to earn Masters in Economic Policy & Planning at
Northeastern University in the U.S.
These periodic "escapades” in to the world of learning, by
themselves do not promote his rank in the Indian bureaucratic
setup. He undertakes these adventures driven by his
commitment to continuous learning. He provides his staff with
similar learning opportunities by enrolling them in programs on
local self-government, administrative law, computers in public
sector, and other relevant issues.
They are value-Drive: Transformational leaders are able to
articulate a set of core values and exhibit behavior that is quite
congruent with their value positions.5
Pradeep believed that one person with commitment can
transform any situation or organization. He also believed, not
unlike the moth 9, that it is better to be a part of beauty for one
instant and then cease to exist, than to exist forever and never
be a part of beauty. His idea of beauty was professional
excellence and personal integrity, and exhibited ample
evidence of both.
His professional and personal character were crystal-clear
which continued to reinforce his pride and convictions. He did
not buckle under pressure from local political leaders to favor
them with undeserved funds spent on their constituencies. He
did not fear political transfers, since he did not have vested
interest in any office except for giving his best, and was
prepared to step down any time with pride and grace.
Pradeep ensured that the Accounts branch in his office
deduct at source from his private purse any personal use of
telephone and/or vehicles by him or his family. The household
staff at his residence was treated by even the youngest
member of his family with dignity, respect and compassion due
to every human being.
They are Visionaries: Pradeep has been my closest friend for
over fifteen years, and my husband of twelve years. Let me
assure the reader, however, that there is no personal bias or
exaggeration in whatever I have related so far. Rather, I have
been unable to paint the full richness of his performances in
different offices. Since he is a public servant and not a
corporate executive, I am unable to quantify his achievements
in terms of multiple increases in gross/net profit ratios and
financial turnarounds. He deals with people and their lives;
teamwork inspired by his leadership has catapulted into
prominence offices considered the least lucrative by his peers.
His achievements are on record in his dossier maintained by
the state government.
Like every true visionary, Pradeep is never content with what is
already accomplished, or even with what is about to be
accomplished. He always has his eyes on the horizons, on the
thousand opportunities awaiting his action, on the portents of
events to come but unthinkable yet in present times. He is
forever searching for stones hitherto unturned; for roads not
taken.
REFERENCES
1. Stephen Covey, Principle-Centered Leadership ( New York:
Fireside, Igg2),p.27g.
2. Stephen Covey, Principle-Centered Leadership ( New York:
Fireside, IggZ ), p. 2g7.
3 . Population Census, Government of India. 1991.
4. District Rural Development Agency, valsad (India), Financial
year 19g6-g7.
5. Noel M. Tichy and Mary Anne Devanna, The
Transformational Leader ( New york: John Wiley & Sons, 1990).
6.Abraham Maslow, A Theory of Human Motivation
(Psychology Review,1943); so quoted by William G. Dyer in "
The Sensitive Manipulator ", ( Utah: Brigham young Univ.
Press,1 972),p . 96.
7. Warren G. Bennis, An Invented Life ( Reading, MA: Addison-
wesley, 1993 ), p.g4.
8. Noel M. Tichy and Mary Anne Devanna, The
Transformational Leader( New york: John Wiley & Sons, 1990 ),
p.274.
9 . Don Marquis, The Lesson of the Moth ( New York: Pushcart
press, 1976 ),pp.167-6g; so quoted by Warren Bennis and Burt
Nanus in "Leaders: The Strategies for Taking Charge ( New
York: Harper Perennial, 1985 ), pp.53-4.
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THREE YEARS LATER, BHUJ IS ON THE ROAD TO PROGRESS
INDIAN EXPRESS JANUARY 26, 2004
MILIND GHATWAJBHUJ, JANUARY 25
BUT for the remnants of Debris on the roadside and a couple of
stones they use as stumps, a group of boys playing cricket in
the middle of the road near Nagar Chakla, a walled city area of
this quake-hit town, would not catch anyone’s attention on a
lazy Sunday afternoon.
Their only worry, vehicular movement that forces them to take
unscheduled, irritating breaks. This, when the broad road
doubles up as their pitch did not exist till a few days ago.
A narrow lane passed from near it till January 26, 2001 when
houses collapsed blocking movement of rescuers and victims.
“We are happy with this inner ring road, Bhuj will develop into a
big planned city.” Says Gunit Parmar, a 19 year old student of
government polytechnic as he fetches the ball from behind the
mound of rubble that is taken as part of land scape in this
headquarters of kutch, the second largest district in the country.
Like the young cricketers, others too have put the past behind
them, relegating bad memories of the quake to the inner layers
of consciousness, and are finding solace in the fast pace of
construction and reconstruction that is taking place around
them.
The bad vibes generated by the Town Planning Schemes still
rankle, but the administration has gone the extra mile, bothering
to lend a patient hearing. Till a few days ago, it seemed
impossible that the TP scheme could be implemented in the
walled city, caught up as it was in legalities interests, both
genuine and vested and disputes like those between tenants
and landlords or simply among brothers.
“Not that problems don’t exist, but we have found ways to get
around them”, says District Collector Pradeep Sharma, whom
most people credit for successful implementation of the
scheme, that seemed etched only on paper till he took over in
May last year.
The local were hostile in the beginning, often petitioned that the
authorities were not ready to sacrifice even an inch of land.
Frustrated by miseries brought about by the quake and angered
by corruption at lower levels of administration, they blocked
every move to implement the scheme, and in return delayed the
reconstruction of the town.
But given the quick developments in the last few months, the
town already looks so different from what it was on January 26,
2001 or even before that. “Their initial resistance has been
replaced by the famed kutchi resillence and spirit of
cooperation” sharma says, confident that, ‘Bhuj will be clean
and breathe free by june.”
An outer ring road, a middle ring road and inner roads have
changed the towns profile. The whole town looks like a large
construction site, debris, both due to the quake and demolition
no more incongruous in the setting.
“It will be fun living in the town when all developmental activities
are over”, says Mahendra Mehta, a 41 year old owner of shop
in Saraf Bazaar, that itself has transformed into an orderly
trading centre. “We are happy with god”, we lived by the rules
and did not suffer in the quake.” Mehta says philosophically,
“we never expected this big roads” he says “we started to agree
for sacrifice only when we found administration willing and
considerate to our demands”, Earlier we thought Bhuj may take
atleast 10 years to get back on its feet, now I see it happening
sooner, says Hasmukh Soni, who is not complaining much
about the loss of Rs. 15, 000 when his cable got disconnected
on Sunday.
Even outside the bazaar and walled city, the town has changed
a lot. Some of the victims have already moved to three
relocation sites in Rawalwadi near ITO office and on Mundhra
road where more than 3500 houses will come up.
The town already boasts of a Super Speciality quake- recintant
hospital funded entirely from the Prime Ministers fund, a 19 km
long outer ring road and an airport. Kutch University will take
shape over 165 acres of land, while a beautiful Hill garden is
emerging on a hillock near Rawalwadi. That’s my dream project
says Sharma. One of the few officers who have managed to
convince people on either side of the calamity. Spread over 22
acres, the garden will have among other attractions, an
amphitheatre, a children’s park, a nursery, a meditation centre.
Rotary has already picked up 70 percent expenditure of the Rs.
1 crore project. Chief Minister Narendra Modi will inaugurate
both the garden and the bazaar on Tuesday.
Sharma has got the backing of his subordinates who are still
smarting under the Rs. 11.50 crore debris scam spread over
five talukas. As many as 727 people, including government
officials like deputy Collector, Vidya shayaks, talatis, have been
booked so far and more are expected to face the heat.
The district jail which collapsed allowing 179 prisoners to
escape- but for seven all have returned – is yet to come up.
Given the large quantity of debris lying inside its premises, it will
be a miracle if the administration is able to meet its targeting of
reopening it in couple of months.
The Kutch museum, Oldest in Gujarat , Aina Mahal, famous
Chattedis (Memorials) are among the important buildings where
construction will take a long time, but residents are not
complaining.
They say their first priority is to have a roof over their heads and
get business moving.
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TOWARDS A BETTER TOMMORROWMonday 26, 2004
Bhuj: We have heard the tale of Raja Bhoj, who is
known to go out in changed dress to inspect personally
what has been going on in his kingdom. The Kutch
District Collector is a person with a difference. People
of Bhuj have seen this man almost everywhere,
instructing officials and communicating with people. The
Town Planning process has been sped, thanks to the
personal interest and motivation of some of the top civic
officers like Pradip Sharma.
This confident man has won the hearts of people
of Kutch. Pradip Sharma is keen over a mission to
make Bhuj Green in next Twelve months. “I am a very
small man nothing could have happen without the
support and co-operation of the people of Bhuj.” He
modestly explains. The State Chief Minister and other
ministers have been taking interest in rebuilding Kutch
and the other earthquake effected areas. The
government has spent over Rs. 366.06 Crore on as
many as 56 works of infrastructure development in this
district. The support of various NGOs is also
impressive. “Our thrust will now also be on
beautification of town. Two decorated traffic circles
have been constructed while a musical fountain will be
placed near the Hamirsar talao of Bhuj. One more circle
will be constructed near the RTO”, he explains. Parking
zones will also be developed at various places.
Pradip Sharma also said that various plots have
been allotted to various NGOs at three relocation sites
of Bhuj, namely the Rawalwadi, Mundra relocation site
and the RTO relocation for beautification and
community purpose. Sharma said that 147 kms long
new roads will be constructed in Bhuj out of which
48kms road has been completed.
Pipe line of over 100 kms have been installed for
water supply. It is to recall here that Sharma has been
awarded by a prestigious Commanders Cross of the
Order of Merit of the Republic of Poland for his
outstanding contribution in Indo Poland relationship.
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Making Fair ProgressINDIA TODAY 07 NOVEMBER, 2005
Tradition meets modernity in a cultural extravaganza in arid
Kutch as Gujarat packages the region as a tourism hot spot
By Uday Mahurkar
There is a new buzz on the Indian tourist circuit, and it
originates from the unlikeliest of destinations. Kutch in Gujarat
is a flat, endless desert that has, till now, been largely known
for its population of wild asses and, of course, the earthquake
that devastated the region in 2001. Out of the desert, however,
emerges a mirage, but one that is very real. Finally, the state
Government has woken up to the region's
tourism potential and if the Sharad Utsav held from October 16
to 18 is any indication, the Rann of Kutch could soon rival
Jaisalmer and Pushkar in neighbouring Rajasthan.
For all its perceived desolation, Kutch has some obvious
advantages. The salt desert is unique, woven as it is into an
ecosystem comprising creeks and mangroves and pristine
beaches. Equally saleable are the exquisite handicrafts made
by local tribes which have a heritage going back centuries. If
ecotourism should be the buzzword, then there are rare wildlife
species like the wild ass and the Great Indian Bustard.
What Kutch lacked till now was promotion as a tourist haven by
the government as well as travel operators. Last week's festival,
organised jointly by the state Government and local citizens,
was staged under the light of the full moon on the occasion of
Sharad Purnima and represented the biggest attempt as yet to
sell the myriad attractions of Kutch to the tourist.
Travel operators, including those who regularly participate in
the Jaisalmer and Pushkar festivals, and the large number of
foreign tourists present at the occasion were charmed by the
sheer colour of the event and the zeal of the people -25,000
came for the fair every day-in the middle of nowhere. Thirty
kilometres from Bhuj, the festival venue, spread over an
expanse of 4 sq km of desert, comprised 400 luxury tents, 150
of them air-conditioned, a typical Kutchi village of 25 huts
housing five local tribes and two big exhibitions, a handicraft
bazaar and a village fest with 200 stalls showcasing everything
from the region's crafts to cuisine. Old-timers say that on
Sharad Purnima, Goddess Lakshmi flits across the night sky,
showering gifts to those who are not asleep. This time, though,
it was the pyrotechnics in the amphitheatre that made sure that
many stayed up all night.
Kutch Collector Pradip Sharma, one of the architects of the
event, offered a potpourri of local ingredients for the novelty-
seeking globetrotter. In a faint replica of the Pushkar mela,
there were camel races and horse races. Chief Minister
Narendra Modi himself went around in a camel safari and his
dream project was well on its way. A show of Mal Kushti, a form
of wrestling known as bakh malakho in Kutchi and which is
nearly extinct today, was part of the attractions. The wrestling
show, jokingly called rural WWF, was staged to the beats of the
dholak. The ethnic flavours were matched by a good dose of
modern elements: hot-air ballooning and a captivating air show
by the Surya Kiran team of the Indian Air Force. While tourists
shopped for knick-knacks at the Bhujodi crafts village, a fashion
show by young designers of the National Institute of Fashion
Technology, Gandhinagar, displayed the best of Kutchi textiles
and embroidery.
Says Ranjit Singh Muli, a Mumbai-based travel operator, who
has done the round of the top tourist festivals in the country:
"The Sharad Utsav has the right mix to attract the international
tourist. It has the potential to emerge as a popular event on the
festival calendar." This year, the event was organised with the
help of corporate houses which chipped in Rs 2 crore.
However, organisers are optimistic that the event will cut even
soon. The feel-good factor has spread to Kutchi artists. Double
flute player Musa Ghulam Jat, who has performed in shows
abroad, finally got a chance to display his art before an
appreciative home crowd. Says the grateful Jat: "I never
imagined that such a show could be organised in this remote
area. It can go a long way in helping artists."
If the sword dance of the Sodha Rajputs along the Indo-Pak
border in Kutch and Rajasthan was novel, the garba dance of
the Mer community of Porbandar brought the best of dandiya
raas to town. The piece de resistance was 2,000 dancers
playing garba under the full moon. As Michelle Decamoncle, a
travel writer from Belgium, says, "The Sharad Utsav will give
many festivals a run for their money." Mahendra Singh
Vaghela, the only travel operator who runs an ethnic Kutchi
lodge in the area, agrees. "If this festival is made a regular
feature, it will change the face of Kutch," he says.
Kutch had never been packaged like this.The team of
craftsmen which erected a Kutchi village for Aamir Khan's
Lagaan raised a similar one showcasing the lifestyle of five
tribes of Kutch in 25 huts. The Kumbhars, Muslim Jats, Ahirs,
Rabaris and the Sodha Rajputs lived here for three nights,
carrying on the activities for which they are known-from
embroidery to pottery-making. For the Kutchis, it has been a
moonlit sonata. Now only if it would translate into hard cash
from tourism.
//TRUE TYPED COPY//
Rising from the RuinsINDIA TODAY ON NET 05 June, 2006
Rs 11,000 crore in investments and over a hundred new
industrial outfits have resurrected Kutch from the debris of the
2000 earthquake
-By Uday Mahurkar
Construction that follows destruction is always creative and
solid." So goes a Gujarati saying. In case of Kutch, the
resurgence following the devastating earthquake of January 26,
2000 has indeed been remarkably extensive, bolstered by
investments of Rs 11,000 crore in 150 new industrial ventures.
There's more money expected in the coming months. Another
Rs 8,000 crore, to be exact.
For Kutchi Nensi Shah, chairman of the Mumbai-based Euro
Group, the dramatic makeover is nothing short of a miracle.
Once a small trader in Bhachau, Shah had moved to Mumbai in
1987. The second
morning after the tremors rocked the region, he had flown over
his hometown, one of the worst-hit areas, leading a fleet of six
choppers carrying relief material.
Overcome with grief and despair as hesurveyed the ravaged
terrain, he felt certain that the quintessentially decrepit,
desolate town would never be able to tide over this mammoth
tragedy that had claimed more than 15,000 lives.
Today, Kutch's kaleidoscopically changing skyline never ceases
to surprise him.
Mushrooming across the once-barren land are giant factories,
linked with gleaming, smooth stretches of concrete trafficways.
The picture of development and growth makes it almost
impossible to believe that a little over six years ago, the place
had been all but destroyed by the killer quake.
Needless to say, the booming industrial scenario has generated
employment opportunities for locals, boosting income and
providing a fillip to lifestyles. That real estate is growing
proportionately is evident from a huge housing colony, City
Square Township, coming up on the outskirts of Bhuj. Opulent
bungalows dotting the 100-acre landscape are but one sign of
the economic surge. Around 11,000 people have
found jobs in new establishments, whose founders were
incentivised to set up shop by the excise exemption policy of
the Union government and the sales tax exemption policy of the
Gujarat government that came into effect in 2001, augmenting
the efforts of local Kutch leaders. Among the investors are
leading corporates like Essar, Parle, LG, Adani Anchor and
Euro Ceramics. Their areas are as diverse as edible oil
processing, steel, ceramics, automobiles, consumer and
electronic products,cement, fabric and coke-processing.
A part from the tax incentives, the credit for the boom goes
largely to the Narmada dam waters being channeled to the
region. Of the 200 million litres made available to Kutch daily,
nearly one-fourth goes to the industrial outfits. That figure is
expected to shoot up once the height of the dam is raised. "The
change is going to be more pronounced in the days to come,"
promises Paresh Shah, a director
at Euro Ceramics which has set up a Rs 200-crore luxury tile
manufacturing enterprise. "The Kutch era has just begun."
Nensi Shah agrees. "After the industrial revolution in Kutch, I
expect a green revolution in the next five years," he enthuses.
//TRUE TYPED COPY//
THE HIGH ROAD TO RECOVERY
The 2001 earthquake in Gujarat reduced human habitations to
rubble. But with efficient planning and implementation of the
reconstruction, ravaged towns like Bhuj, are springing back to
life.
By Uday Mahurkar
Just three years ago, it seemed like a giant bulldozer had come
and razed cities in Gujarat to the ground. In the eerie silence
amid the tumbled walls and cruelly disrupted lives, there was
only one thought. Would the cities rise again? Today, the
question has an answer. The cities have arisen. And Bhuj leads
the way. On January 26, 2001, 6,356 houses in Bhuj were
flattened by the quake. Now, people have already moved into
2,000 new houses and another 1,800 will be completed in the
next two months. In Anjar town, where 1,771 houses were
destroyed, 629 houses have come up and construction of 550
is under way. In Bhachau town, where 5,820 houses had
collapsed, 1,430 houses have been built and 950 are coming
up.
Bhuj has a new look about it. Just 18 months ago there was
nothing but fields in areas like Ravalwadi, RTO, Mundra Road
and Swaminarayannagar. Today houses have sprung up. Small
but planned houses are being made by the quake-affected on
their own but these follow the Government's development plan.
As a result an altogether new city is coming up on the outskirts
of Bhuj, with wide roads and other facilities like gardens, a town
hall and hospitals. Bhuj is set to emerge as a modern town.
People, of course, have conflicting views about the priorities of
the rehabilitation schemes. Parvatiben Jani, who lived in a
rented house before the earthquake, has just moved with her
three-member family into a new, 35 sq m house in a colony of
200 houses built for the quake affected by the Kutch Mahila
Vikas Sangathan, an NGO, in Bhuj's gidc Nagar. Says Jani: "As
somebody who lived in rented quarters, I had a dream of
building a house of my own one day. Ironically, the killer quake
made it possible." Her happiness is contrasted with the
comments of Sunil Anam, a bank official who has moved into a
new house in Swaminarayannagar. "Housing and housing-
related infrastructural problems should have taken priority over
roads and gardens," he says. "What good are roads if the
quake -affected continue to face problems on the housing
front?"
Yet, the model of rehabilitation in Kutch has won praise from
experts who have worked in restoring quake-affected
settlements in Japan, the US, Turkey and Iran. M. Greene, a
rehabilitation expert with the Earthquake Engineering Research
Institute, US, says the Bhuj reconstruction is commendable.
"Even a country like America would have had problems with
rehabilitation given the magnitude of the challenge," he says.
If an entirely new Bhuj has come up on the outskirts of the
town, old Bhuj, a congested, 450-year-old township with narrow
lanes and dense population, too has undergone a change.
Take, for example, the Saraf Bazaar area where the lane was
so narrow that it was difficult for two cycles to cross each other.
The authorities convinced 500 odd shop owners that it was
necessary to widen the lane keeping in mind the possibility of a
quake in the future and they should, therefore, allow their shops
to be sliced off. Today the road has been widened.
The Gujarat State Disaster Management Authority (GSDMA)
has emerged as the key body in the rehabilitation of Kutch. It
involved leading NGOs and reputed bodies like the IITs and the
Centre for Environment Planning in the process of
rehabilitation. As a result the approach to rehabilitation, unlike
at many other places, was systematic and scientific. It was also
people-focused, unlike in Latur, where people refused to move
into houses built by government contractors. The GSDMA also
opted for a public-private partnership. Thanks to this approach,
85 per cent of rural Kutch has got rehabilitated.
However, the task for the urban model was Herculean by any
yardstick. Over 17,000 families had to be rehabilitated in the
four towns of Bhuj, Anjar, Bhachau and Rapar, which had
suffered the maximum damage in the quake. Plus, there was
the problem of tenants who had no documents to support their
claim for housing compensation. Victims used various pretexts
to escape moving to areas demarcated by the Government for
rehabilitation.
But the Government's organised approach yielded quick
results. While it takes 10 years to finalise a town planning
scheme in the Indian environment, the blueprint for Bhuj was
ready in three years. What helped the rehabilitation process
was the posting last year of two official to implement the plans-
Collector Pradip Sharma, who is concentrating on
infrastructure, and Bhuj Area Development Authority (BHADA)
Chief Executive K.B. Thanki, who is focusing on housing, a
segment which is still posing some problems. A sum of Rs
4,070 crore has been spent on the rehabilitation of Kutch with
over Rs 400 crore going to Bhuj alone.
Appreciation of the rehabilitation work is accompanied by
criticism. Many quake victims say that the Government's
priorities are wrong and that it should have concentrated on
housing first and then on infrastructure. But as V. Tiruppugazh,
joint CEO, GSDMA, puts it, "On the housing front too we have
done well, given the magnitude of the challenge. We made the
township plans and development plan for Bhuj in a record time.
A people-driven approach invariably takes time to fall into place
but it is always lasting."
Another problem is how the Bhuj civic body will maintain this
huge, almost five-star infrastructure in a two-star city once the
Government withdraws. One way of tackling the problem is to
generate revenue from some of the infrastructure projects
through prudent taxation. The income of Bhuj's post-quake Hill
Garden, an extremely popular hill-top haunt where BHADA
charges Rs 2 per person as entry fee does hold out this
promise. Another approach is to create a reserve maintenance
fund. Then there are cases of wasteful expenditure like the Rs
132 crore hospital in Bhuj which is too big not just for the town
but for entire Kutch.
Yet there is a flip side to all this. Former prime minister Rajiv
Gandhi famously said that only Rs 15 of any Rs 100 allocated
by the government for development reached the people. But
looking at Bhuj, one could just this once smile off the prime
ministerial remark as irrelevant.
//TRUE TYPED COPY//
BBC NEWS
SOUTH ASIA
29 January 2011 Last updated at 20:12 ET
Gujarat's astonishing rise from rubble of 2001 quake
Ten years on from the huge earthquake that razed swathes of
India's western state of Gujarat, the BBC finds the place
transformed from a pile of rubble in a neglected backwater into
an economic powerhouse. How?
Kutch is a remote region in the arid borderlands of north-west
India. For centuries life was brutally tough - rains often failed,
there were few jobs and the enterprising would emigrate.
Then in January 2001 a magnitude seven earthquake struck,
devastating a huge area, flattening cities including the district
capital, Bhuj, and wrecking over 8,000 villages. Twenty
thousand people were killed and more than a million others
made homeless.
Those who witnessed the devastation at the time must have
thought this would set back development by decades.
There was an outpouring of sympathy from around the world,
much of it from Gujaratis living abroad. Some $130m (£80m) of
aid poured in.
The Indian government was spurred into focusing on this much-
ignored region in a way it had never done before.
The army was sent in to help with the emergency and $2bn of
reconstruction money was allocated to the region.
Contrary to what many feared, aid and government grants were
put to good use. In the first two years after the quake, nearly all
the damaged villages were rebuilt.
Mithapashvaria, near Bhuj, is a small village that was
completely destroyed. It was re-built with donations from the
UK.
Families showed us the ruins of their old dark two-room house,
and then took us to the new village.
Houses there were light and airy, with four rooms, running
water and a toilet.
The village also had a medical centre, a temple and communal
areas it hadn't enjoyed before.
Navin Prasad, of Sewa International, a non-governmental
organisation, said that in village after village the reconstruction
had produced a leap forward in development.
"We have taken people out of the Middle Ages and into
the modern world," he said.
This progress was repeated all over Kutch, and it is most
noticeable in Bhuj.
After the earthquake it was a sea of rubble.
Radical plans
Shocked and traumatised, residents fled, with many living in
temporary accommodation for months.
It took several years to implement plans for a completely new
city.
Houses had to be destroyed to make way for wider roads.
Ten years on Bhuj has been reborn.
It has two new ring-roads, an airport, parks and thriving
shops.Pradeep Sharma was the government official widely
credited at the time with pushing through the radical plans.
"What you see is a new Bhuj," he says. "We have widened the
roads, laid down water supply systems and underground
drainage systems."
The success of the reconstruction effort could never have been
sustained without economic recovery.
This was triggered by the Indian government creating new tax-
free zones, which sparked a boom in private investment.
It is thought $10bn has come into the region, with £7bn more to
come.
Business boom
Some 300 companies have established their businesses in
Kutch and many more are queuing up to follow suit.
Mundra is a microcosm of the scale of development.
It was a small fishing port in the middle of a salt marsh before
the earthquake.
Now it's an industrial hub, handling hundreds of tonnes of
goods every day.
The Adani group which owns the port is now worth $7bn.
They've also bought a coal mine in Australia and container
ships to bring the coal back to India to feed the country's
biggest power station.
Mundra is expected soon to be bigger than the port at Mumbai.
They are drawing on the ample supply of land and cheap
labour.
In nearby villages, the only work used to be in traditional crafts.
Now there are thousands of new jobs and Adani is taking over
the work of aid agencies.
Sushma Oza is a former aid worker who now heads the Adani
Foundation.
Jobs revolution
"Our own budget for social development in this region is $6m a
year, so you can imagine how we are trying to change the lives
of people to live in better way," she says.
Near Anjar, a city that was devastated by the earthquake, the
biggest towel factory in the world was set up by Welspun in just
nine months.
Its vast mechanised looms weave 250,000 towels a day.
It has taken over the British company, Christy's, the official
towel-maker of the Wimbledon Lawn Tennis Championship.
The chairman of Welspun, Balkrishan Goenka, says good local
governance was key in choosing Kutch.
"There were no local taxes for the first five years and no excise
duties. Nor were there indirect taxes to government - they were
exempted for five years," he says.
"Those were the primary benefits. More than that there was
huge support from the local government so industry can come
faster."
Beside the towel factory, the jaws of the Welspun steel plant's
furnace spit out great slabs of metal.
Since the earthquake, over 110,000 new jobs have been
created in Kutch, and there are thought to be hundred of
thousands more on the way.
With two years of good rainfall and with the 400-km (250-mile)
water pipeline from the Narmada River, the population is now
increasing as the job opportunities increase.
The region is now a cornerstone of the Indian economy, a fact
almost unthinkable 10 years ago.
//TRUE TYPED COPY//
ANNEXURE P-2
CENTRAL ADMINISTRATIVE TRIBUNALPRINCIPAL BENCH, NEW DELHI
Original Application No.49/2011
This the 7th day of April, 2011
HONBLE SHRI JUSTICE V. K. BALI, CHAIRMANHONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A)
Dr. Kuldip N. Sharma, IPS,Managing Director,Gujarat Sheep and Wool DevelopmentCorporation Limited,Block No.18, 5th Floor,Udyog Bhawan,Gandhinagar-382011. Applicant
( By Shri I. H. Syed with Shri Varinder Kumar Sharma,
Advocates )
Versus
1. State of Gujarat throughAdditional Chief Secretary,Government of Gujarat,Home Department, Sachivalaya,Gandhinagar-382010.
2. Shri Amit Anilchandra Shah,Minister of State (Home),Government of Gujarat,Home Department, Sachivalaya,Gandhinagar-382010.
3. Shri Narendra Damordas Modi,Chief Minister, Government of Gujarat,Sachivalaya,Gandhinagar-382010.
4. Director General of Police,
Gujarat State, Police Bhawan,Gandhinagar-382010.
5. The Union of India throughSecretary, Government of India,Ministry of Home Affairs, North Block,New Delhi-110001. Respondents
(By Shri Tushar Mehta, Additional Advocate General with Shri
Arun Bhardwah for Respondents 1 & 4; Shri Bhupender Yadav
for Respondents 2 & 3, Advocates)
O R D E R
Justice V. K. Bali, Chairman:
Dr. Kuldip N. Sharma, an officer of the Indian Police Service of
Gujarat Cadre (1976 batch), the applicant herein, through
present Original Application filed by him takes strong exception
to downgrading of his Annual Confidential Reports (ACRs) for
consecutive four years from 2003-04 to 2007-08 from
outstanding to very goodon one single day by his accepting
authority, who happens to be the Chief Minister of the State.
Before we may advert to the pleadings made by the parties in
the Original Application and the counter replies filed on behalf
of the respondents, we may briefly mention the background of
the case and the reason why it came to be transferred from the
Bench in Gujarat at Ahmedabad to the Principal Bench.
2. The applicant filed Original Application No.45 of 2010 in
the Bench at Ahmedabad seeking multifarious reliefs. He
complained of his posting as Managing Director, Gujarat Sheep
and Wool Development Corporation Limited, Gandhi Nagar,
taking him from the main stream and posting him out of his
cadre. He also called in question the departmental enquiry
initiated against him vide memorandum dated 14.12.2009, and
in the process denying him vigilance clearance for Central
deputation. He also challenged the downgrading of the overall
assessment in his ACRs for the period from 2003-04 to 2007-
08. An objection came to be raised by the respondents as
regards maintainability of one petition with multifarious reliefs
unconnected with each other. This objection prevailed with the
Tribunal. Aggrieved, the applicant filed a writ petition, which
was dismissed with the observation that the OA could be
confined to one relief, whereas, as regards other reliefs, he
could file separate OAs. That being so, the applicant confined
OA No.45/2010 to challenge to the charge memo dated
14.12.2009, whereas with regard to downgrading of his ACRs
for the period aforesaid he filed OA No.331/2010 in the bench
at Ahmedabad. One of the Members, i.e., Administrative
Member, and there being only one at the relevant time
available, recused himself from dealing with the cases filed by
the applicant. Justice Wajahat Ali Shah, Honble Judicial
Member presiding over the Bench, vide order dated 24.11.2010
referred the matter to the Chairman for constituting a Bench.
Meanwhile, the counsel representing the applicant, Shri I. H.
Syed, addressed a letter to one of us (V. K. Bali, Chairman) to
hear the matter in the Principal Bench at Delhi, as the only
Administrative Member available in the Bench at Ahmedabad
had expressed his inability to hear the matter. The letter was
taken on judicial side as a misc. application seeking transfer of
the matter from Ahmedabad to the Principal Bench, and after
issuing notice to the respondents, an order dated 10.12.2010
came to be passed transferring both the Original Applications
from the Bench at Ahmedabad to the Principal Bench.
Whereas OA No.45/2010 after transfer to the Principal Bench
came to be re-numbered as OA No.48/2011, OA No.331/2010
on such transfer has been re-numbered as OA No.49/2011.
Against the order transferring the OAs to the Principal Bench, a
writ came to be filed by the respondent State of Gujarat, which
was dismissed as withdrawn, with liberty to the State to file
representation on administrative side. Such representation was
indeed filed but was rejected as an order passed on judicial
side could not be changed on administrative side. The
respondent State thereafter filed an application seeking review
of the order transferring the matter to the Principal Bench,
which, vide detailed order dated 2.2.2011, came to be
dismissed.
3. The applicant in OA No.49/2011 pleads that he is a
decorated officer of the Indian Police Service of the Gujarat
cadre, and for his meritorious and distinguished services, the
Government of India has awarded him the Police medal and
Presidents Medal. It is his case that he has an overall
outstanding service record. A summary of his overall ACR
gradings from 1995-96 to 2007-08 has been placed on records
as Annexure A-2, from which it would be seen that almost all
his reporting, reviewing and accepting authorities have
consistently rated the applicant as an outstanding officer in the
overall grading, and since 1995, all his ACRs have been put up
to the Chief Minister for assessment. It would be seen that all
the Chief Ministers till 2002-03 have rated the applicant as
outstanding. We may not reproduce Annexure A-2 in the
judgment, but would only say that we have gone through the
same and that does show that the applicant has been graded
as outstanding by all reporting, reviewing and accepting
authorities, except for the ACR of 1998-99 wherein he has been
assessed as good by the reporting officer, but that was
upgraded to outstanding by the reviewing authority, which
upgradation was accepted by the Chief Minister, i.e., the
accepting authority. The applicant was assessed as very good
in 2000-01, but this report could not be assessed by the
reviewing and accepting authorities, inasmuch as, whereas the
reviewing authority had retired, the accepting authority had
demitted the office. All other ACRs of the applicant are indeed
outstanding, of course, except those downgraded in respect of
which present OA has been filed.
4. While giving the background of the case, the applicant
pleads that he found from the website of the Ministry of Home
Affairs in September, 2007 that his ACRs for the years 2003-
04, 2004-05 and 2004-06 had not been forwarded, as per rules,
to the Government of India by the State Government. He
addressed a letter dated 19.9.2007 to the Principal Secretary
(Home), requesting him to expedite the same. He also
enclosed a copy of the website of the Ministry, which revealed
the status of his pending ACRs. It is pleaded that since the
work pertaining to writing of ACRs for the years 2003-04, 2004-
05 and 2005-06 had to be completed as per rules by
31.12.2004, 31.12.2005 and 31.12.2006 respectively, the time-
limit stood grossly violated in the case of the applicant, and,
therefore, vide letter dated 22.10.2007 the applicant drew
attention of the 1st respondent to the directions of the
Government of India, Department of Personnel & Training
(DOP&T), requesting that his ACRs for the aforesaid years be
retrieved from the office of the Chief Minister without his making
any remarks as the accepting authority, and the same be
forwarded to the Government of India at the earliest. It is the
case of the applicant that he was given to understand that the
ACRs of three years mentioned above along with the ACR for
the year 2006-07, were all finally received in the Home
Department from the CMs office on or about 30/31.12.2007.
This was after the previous Government had demitted the office
and the new one was sworn in on 25.12.2007. The ACRs were
sent to the Government of India in January, 2008 in one bunch.
The applicant applied to the State Government under the Right
to Information Act asking for copies of his ACRs for the last
twelve years. On perusal of the information so received, the
applicant found that the 3rd respondent, in one go, had
downgraded his overall grading in four ACRs pertaining to the
period from 2003-04 to 2007-08 from outstanding to very good.
The applicant submitted a representation dated 12.3.2008 to
the Chief Secretary, Government of Gujarat, pointing out that
the downgrading of ACRs by the 3rd respondent was in
violation of the All India Services (Confidential Rolls) Rules,
1970 (hereinafter to be referred as the Rules of 1970), as also
the directives issued by the DOP&T. In the said representation,
the applicant inter alia pointed out that the action of the Chief
Minister in downgrading his ACRs would be improper and
would deserve to be set aside for the reasons mentioned
therein. The representation of the applicant was rejected after
keeping the same pending for one year and nine months by the
1st respondent, vide letter/order dated 11.12.2009. The
applicant had applied on 12.11.2009 under RTI Act to Home
Department, Government of Gujarat for information in respect
of the timing and the channel of submission of the above
mentioned ACRs, besides copies of noting section of the files
on which his ACRs were submitted to the Chief Minister, as
also the noting section of the file on which his representation
dated 12.3.2008 was dealt with. The Public Information Officer
(PIO) of the Home Department provided information vide letter
dated 11.12.2009. As per the reply of the PIO, the ACRs in
question were, in chronological order, put up to the Chief
Ministers office on 24.5.2005, 22.8.2005, 27.9.2007 and
11.10.2007. The PIO, however, did not supply to the applicant
copy of the note sheet on which his ACRs were submitted to
the CMs office, on the ground that ACRs of other officers were
also submitted on the same file. It is the case of the applicant
that this was not a valid reason for denying to him copies of
note sheets because gradings are not recorded on the note
sheet, and thus no other officersinterest would be involved, and
that it was very important for him for verifying the date of CMs
signature on it in view of the rule about demitting office, as well
as for checking on discriminatory treatment meted out to him,
and this was because (i) the date on which the CM signed the
ACRs was not recorded by the CM on the body of the ACRs; (ii)
the information given to the applicant by the PIO that the ACRs
were received in the Home Department from the CMs office on
20.12.2007, was found suspicious by the applicant, as no basis
for that had been provided; and (iii) the note sheets should
have the stamp of the CMs office as to when they had sent it to
the Home Department, which would also show whether the CM
kept all ACRs put up on the file inordinately pending or the
applicant was singled out for it. The applicant again wrote to
the 1st respondent vide letter dated 5.1.2010 for providing the
above and other relevant information. He, however, received
no reply. It is the case of the applicant that copies of note sheet
received from the PIO would show that the PS (Home) initiated
the note on 2.4.2008 on his representation dated 12.3.2008. It
is pleaded that normally, notes are initiated not by the Head of
the Department but by the subordinate officers in-charge of the
concerned branch, which is the depository of the relevant rules
and records in the department, and further in his note the PS
(Home) negated the grounds of the applicants representation,
viz., that inordinate delay in the CMs office, and no specific fact
or reason cited by the CM for downgrading, were such as could
be explained or remarked upon by the CM himself. However,
the PS (Home) did that by ex post facto applying his mind on
behalf of the CM. After a query dated 9.4.2008 of the MoS (H)
was answered by the GAD, the Chief Secretary had put up the
file of the applicants representation to the MoS (Home) on
18.4.2008, and the MoS (Home) wrote on the file on 21.4.2008
for discussion with the ACS (GAD) and PS (H). Thereafter, the
next note on the file is only after one and a half year on
12.10.2009 by MoS (H) himself, the 2nd respondent, wherein
he has recorded that let us agree with the GAD, with nothing
else about the discussion that he wanted to hold. The CM had
only signed below this note in the month of November, 2009,
whereupon the applicants representation was rejected on
grounds provided by the PS (H). It is pleaded that this ex post
facto justification by the PS(H) of the delay in the CMs office
and of the downgrading done by the CM is not permissible, and
moreover, it is clear that for no stated reason, on account of
motives best known to him, the MoS(H) kept the representation
pending for 18 months and activated it only in October, 2009.
The timing of it around the applicants posting as MD, GSSWCL
and thereafter issuing him with the charge memo would be
difficult to brush aside as a mere coincidence because the
growing unhappiness of the 2nd and 3rd respondents, is
unmistakably palpable in it, further avers the applicant. The
applicant sent a memorial dated 20.11.2009 to the President of
India through the 1st respondent, with a request to set aside the
remarks and grading of the 3rd respondent in his ACRs for the
four years as mentioned above. He would not know as to what
has happened to the memorial and believes that the same may
still be pending.
5. The applicant avers that downgrading of his four years
ACRs would deserve to be declared as illegal, arbitrary and
mala fide for the reason that the ACRs were remarked upon by
the Chief Minister after the prescribed time limit was over, which
would be against the mandatory provisions contained in rule 6A
of the Rules of 1970, whereby the accepting authority is
required to record its remarks within one month of the review of
the ACR. The Cabinet Secretary, Government of India, vide his
DO letter dated 21.6.2005 addressed to the Chief Secretary,
Government of Gujarat, had enclosed instructions regarding
completion of the ACRs of All India Service officers, which
contain a time schedule and the downgrading of ACRs is far
beyond the period mentioned in the letter aforesaid, and that
the downgrading of ACRs from outstanding to very good was
done in violation of DOP&T letter dated 19.4.2005, which states
that In any case where an entry is downgraded or upgraded,
the authority downgrading or upgrading the remarks and overall
grading should state, as part of the entry, the reasons for
downgrading or upgrading with adequate justification in
accordance with the instructions on writing of the ACR. There
also have to be specific reasons for downgrading of the ACRs
of the applicant from outstanding to very good. All that has
been mentioned while downgrading the ACRs of the applicant
is that In view of the overall performance of the officer, he may
be graded Very Good. It is the case of the applicant that for
four years his reporting and reviewing authorities were different
and all of them have graded him as outstanding and there were
no reasons at all to downgrade him to very good, and if that
was to be done, there ought to have been reasons for the
same. It is also his case that he has reasons to apprehend that
the Chief Minister had made the remarks on his ACRs for the
four years mentioned above not on 20.12.2007, as informed by
the 1st respondent, but has made the same after he demitted
the office on 24.12.2007, a function which he could not perform
as per rule 6A of the Rules of 1970, vide which he would not be
competent as the accepting authority to accept and countersign
any such confidential report, and where the accepting authority
is a Government servant, after he retires from service, and in
other cases, after he demits office. It is the case of the
applicant that Assembly election results were declared on
23.12.2007. The following day the Chief Minister demitted the
office and the Government led by the same very Chief Minister
was sworn in on 25.12.2007. The Council of Ministers was
formed on 4.1.2008. It is pleaded that the ACRs in question
reasonably seem to have been written after the Chief Minister
had demitted the office. The reasons as to why the applicant
apprehends as mentioned above, have been given by him as
follows:
(a) The ACRs in question were, the applicant believes,
received in the Home Department on or around
30/31.12.2007.
(b) Copies of these ACRs were sent to the Government of
India in January, 2008.
(c) In none of the Annual Confidential Reports the Chief
Minister put a date indicating when he accepted them.
(d) If the Annual Confidential Reports in question were
indeed accepted on 20.12.2007, they would have
certainly been sent to the Home Department, as the latter
had sent several reminders to the Chief Ministers office.
Normally files which have been dealt with, are never kept
pending in the Chief Ministers office, especially when the
tenure of the Government is ending. Well before the
election, the same are returned to the concerned
department. The applicant also finds it odd that
Respondent No.3, had the time or the mindset to accept
ACRs on 20.12.2007 in the atmosphere of general
election and forthcoming results. In any case, the
information and records sought by the applicant vide his
letter dated 5.1.2010 will make the things clear. This
Honble Tribunal may also call for the files and records
from Respondent No.1.
6. From the facts as mentioned above, the applicant pleads
that the same would disclose abuse of power by the 3rd
respondent, assisted by the 1st and 2nd respondents, in the
manner and substance of the disposal of the representation of
the applicant. It is further the case of the applicant that it is
quite obvious that the CM could not have reasonably
remembered the objective facts of his performance during the
last four years when he made his remarks en bloc on his ACRs
in the month of December 2007. The applicant also reasonably
believes that the CM singled him out by sitting on his ACRs
during the entire tenure of the previous Government headed by
him, and that he did so to compel the applicant to accept his
and 2nd respondents dictates, rather than to follow the law as a
senior police officer. The applicant has given details of some
investigations made by him, and it is pleaded that as he was
not conducting investigations in the criminal matters as per the
desires of the respondents, he was victimized. There would be
no need to give details of the instances given by the applicant,
as during the course of arguments Shri I. H. Syed, learned
counsel representing the applicant, states that the applicant
would not press at this stage personal mala fides of the
respondents in downgrading his ACRs, even though he would
press for legal mala fides.
7. Pursuant to notice issued by this Tribunal, the
respondents have entered appearance and filed separate
replies. Initially, the reply came to be filed on behalf of the
respondents in the OA filed by the applicant containing all
reliefs, but after the applicant filed a separate OA calling in
question downgrading of his ACRs, separate replies have been
filed by the respondents.
8. In the reply filed on behalf of the 1st respondent, a
preliminary objection has been raised. It is pleaded that the
applicant has invoked jurisdiction of this Tribunal under the
provisions of the Act of 1985, and that this Tribunal is yet to
adjudicate, inquire into and take a decision as to whether the
Application contains issues fit for either adjudication or trial, and
is yet to admit the same. The Tribunal, it is further pleaded,
would have jurisdiction to summarily reject the Application filed
under the Act, and that the affidavit in reply is being filed
praying for exercise of powers by the Tribunal to summarily
reject this Application. Maintainability of the Application is also
questioned on the ground that the applicant has filed a statutory
memorial before Her Excellency the President of India, and if
the OA is admitted, such proceedings would abate. The
learned Additional Advocate General representing the
respondents would contend that when the applicant has filed a
memorial, on which comments of the State Government has
also been called for, the present OA would not be maintainable,
and it would be premature and, therefore, needs to be
dismissed. There are objections with regard to maintainability
of the OA on the ground of personal mala fides the pleadings
having not been supported by proper affidavit, but inasmuch as
the applicant has not pressed mala fides in seeking the relief,
there would be no need to make any mention of such
averments made in the counter reply. On merits, after
reproducing the grounds pleaded by the applicant in
challenging the downgrading of his ACRs, it is inter alia pleaded
that the main contention of the applicant on interpretation of
statutory rules is with regard to alleged non-compliance with
rule 6A of the Rules of 1970. The time limit mentioned in the
rule, it is stated, is not mandatory, and that the very object and
purpose for which the concept of writing, reviewing and
accepting ACRs is evolved, is to ensure that irrespective of the
cadre, the performance of each officer is evaluated at three
different levels, and that depending upon the remarks made in
the ACRs, an officer can take the satisfaction of his good work
appreciated or can get an opportunity to improve his
performance and can utilize his full potential which is necessary
for efficient governance and administration. It is pleaded that
considering the object and purpose for which the ACRs are
framed, the time limit stipulated not only in rule 6A of the Rules
aforesaid, but the time limit in other rules is more directory than
mandatory in nature. Even though, the term used in the rule is
shall, but the same would not be mandatory as the
consequences of not adhering to the time schedule have not
been provided in the rules. It is pleaded that the expression
shall by the rule making authority exercising the delegated
powers would not, per se, make the provision mandatory,
violation whereof renders the proceedings, actions or orders
passed non est, and that whenever either a competent
legislature or a rule making statutory authority intends to
provide for a mandatory provision, with the clear intention for
compliance mandatorily and intends the term shall to be
interpreted in the mandatory form, such piece of legislation or
subordinate legislation provides for consequence of non-
compliance of the said provision. The term shall as used in rule
6A, is intended to be understood as a guiding principle and
requires to be read as may, not capable of being given a
mandatory character resulting into a situation where a delay of
one day after thirty days, as stipulated in rule 6A, disentitles the
accepting authority to look into the confidential remarks of the
reporting authority and the reviewing authority. It is pleaded
that it is an experience not only with respect to the State of
Gujarat, but with respect to other State Governments as well as
Central Government also that rule 6A, insofar as the
prescription of time limit is concerned, has been understood,
interpreted, implemented and applied as a directory provision,
and in most of the cases the reporting, reviewing and accepting
authorities have recorded their respective remarks after the
time limit stipulated in the aforesaid rules, and that the delay
which has occasioned in the case of the applicant is neither an
isolated case nor an action of discrimination even as per the
case of the applicant, in view of the fact that along with him, 77
ACRs of other 23 IPS officers were also pending before the
accepting authority, i.e., the 3rd respondent, with respect to
different years, which were decided after the prescribed period
stipulated in the aforesaid provision. As regards demitting of
the office by the Chief Minister on 24.12.2007, it is pleaded that
77 ACRs of 23 IPS officers were received from the office of CM
in the Home Department on 20.12.2007, including that of the
applicant, which fact is contemporaneously recorded in the
official records of the State Government. The remarks of the
accepting authority in the aforesaid ACRs were, therefore,
clearly recorded/made by the 3rd respondent prior to
20.12.2007. The Chief Minister, it is pleaded, after declaration
of the results of the elections to the Legislative Assembly, on
23.12.2007 submitted his resignation on 24.12.2007 and
formed new Government as per the new mandate and took
oath of the office of Chief Minister on 25.12.2007, and,
therefore, it would be factually incorrect to contend that the
remarks of the accepting authority are made after he demitted
the office. A copy of the contemporaneous endorsement made
at the time of receiving the ACRs from the office of the Chief
Minister on 20.12.2007 has been placed on record and marked
as Annexure R-2 to the reply. It is further pleaded that on the
same very day and simultaneously, the office of the 1st
respondent received ACRs of other 22 senior level IPS officers,
and, therefore, the allegations made with reference to the 3rd
respondent having made the remarks under rule 6A of the
Rules of 1970 after demitting the office, are based on mere
surmises and conjectures and would be thus incorrect and false
as per the record of the State Government. It is further pleaded
that even if the case of the applicant is examined hypothetically
accepting it to be true for the sake of argument to the effect that
the Chief Minister gave accepting remarks after he demitted
office, then also the action would not be contrary to rules,
inasmuch as, as per explanation under rule 6A(2) of the Rules
of 1970 he cannot be treated as having demitted the office if he
continues to be a minister in the council of ministers within a
different portfolio or in the council of ministers immediately
reconstituted after the previous council of ministers of which he
was minister with the same or a different portfolio. As regards
the downgrading of the ACRs and there being no reasons
therefor, it is the case of the respondent that it is a question of
law, and there is no statutory or other provision which requires
the accepting authority to record elaborate reasons; what is
statutorily required of the accepting authority is to record its
remarks on the confidential reports; and in case of All India
Service officers holding senior positions, when the
administrative elected head of the State viz. Chief Minister
himself is the accepting authority, he may make his assessment
based upon his personal experience and objective overall
assessment of the concerned officer and may not give
elaborate reasons which may have the potential effect of
demoralizing an officer. Secondly, D.O. letter dated 29.4.2005
is neither a statutory provision, being part of any Act of
competent legislature, nor is a piece of delegated legislation
being part of the Rules. Nonetheless, the said D.O. letter also
merely says that the respective authorities should not merely
write I agree or I disagree. The accepting authority in the
instant case, it is pleaded, has considered the overall
performance of the applicant based upon which the said
authority has recorded its remarks as required under rule 6A(1)
of the Rules of 1970, and, therefore, it would not be correct to
contend that no reasons are assigned. It is then pleaded that
by changing the remarks from outstanding to very good would
not make any difference to the case of the applicant, as for
promotion the benchmark is very good. Receipt of the
representation made by the applicant against the downgrading
of his ACRs is accepted, and in that regard, it is pleaded that
the same was put up before the 1st respondent who put up a
note dated 2.4.2008. After perusing the said note, the Joint
Secretary, GAD, made his observations. The MoS (Home) also
sought further clarification from the GAD (General
Administration Department), the department which deals with
service matters of AIS officers. GAD thereafter clarified the
points vide its note dated 10.2.2008, and ultimately both 2nd
and 3rd respondents, considering the views expressed by the
concerned department, concurred with the view of the GAD. As
per the Gujarat Government Rules of Business, 1990 and
orders of channel of submissions, all matters thereunder
affecting the All India Services and posts have to be put up
before the Chief Minister through GAD, and the representation
of the applicant had to be decided by the Chief Minister as per
the doctrine of necessity. The allegation of personal mala fides
said to be entertained by respondents 2 and 3 have been
denied, but there would be no need to make a mention of the
same.
9. Respondents 2, 3 and 4 have filed separate replies, but
as nothing based thereon has been urged during the course of
arguments, there would be no need to make a reference of the
pleadings made therein.
10. We have heard the learned counsel representing the
parties and with their assistance examined the records of the
case. Even though, it has been pleaded that the Tribunal would
have jurisdiction to summarily reject the Application filed under
the Act of 1985, and the same needs to be summarily rejected,
no arguments in that regard have been raised during the course
of hearing. The preliminary objection as regards maintainability
of the present OA, the same being premature, as the memorial
filed by the applicant, for which provision exists in the Rules, to
the President of India, is yet to be decided, is, however,
seriously pressed. Shri Tushar Mehta, learned Addl. Advocate
General would contend that this Tribunal may dismiss this OA
as the applicant under the statutory rules has availed the
remedy of filing memorial against the downgrading of his ACRs,
which is pending. It is urged that this Tribunal may not
entertain the OA and rather dismiss the same for the applicant
having exhausted the alternative remedy which has not
culminated into any order as yet, and as such the OA would be
premature.
11. We have given our anxious thoughts to the contention
raised by the learned Addl. Advocate General, but find no
substance therein. In view of provisions contained in Section
19 of the Act of 1985, a person aggrieved by any order
pertaining to any matter within the jurisdiction of the Tribunal
may make an application to the Tribunal as to redressal of his
grievances. As per sub-section (4) of Section 19, when the
application is admitted by the Tribunal, all proceedings under
the relevant service rules as to redressal of grievances in
relation to the subject-matter of such application pending
immediately before such admission shall abate, and save as
otherwise directed by the Tribunal, no appeal or representation
in relation to such matter shall thereafter be entertained under
such rules. Even though, technically, the OA may not have
been admitted by specifically so saying, but once the same has
not been summarily rejected and notice has been issued, it
shall be deemed to have been admitted. The Tribunal has
jurisdiction to summarily reject an application after recording its
reasons, in view of sub-section (3) of Section 19. Surely, the
Tribunal has not dismissed the OA summarily and has rather
issued notice, which would be admission of the OA, even
though not so specifically stated. Lengthy arguments have
been heard from both sides. The proceedings initiated or taken
by the applicant under the relevant service rules as to redressal
of his grievances in relation to subject-matter of the present OA,
which would include, memorial to the President as well,
immediately pending before the admission, shall, therefore,
abate in view of provision contained in sub-section (4). No
doubt, the Tribunal could direct disposal of the memorial, but it
is not necessary to do so. Pendency of the memorial would be
of no meaning and consequence, as on admission of the OA,
the same shall abate. In view of provisions contained in
Section 20 of the Act, the Tribunal is not to ordinarily admit an
application unless it is satisfied that the applicant had availed of
all the remedies available to him under the relevant service
rules as to redressal of grievances. There is no bar as such so
as not to entertain an application if the applicant may not have
exhausted the remedy provided to him under service rules as to
redressal of grievances. The word used in the statute is
ordinarily. That apart, the downgrading of the ACRs of the
applicant was done on 24.12.2007. The applicant filed the
memorial on 20.11.2009, which has not been decided till date.
In view of provisions contained in Section 20(2)(b), a person
shall be deemed to have availed all remedies available to him
under the relevant service rules as to redressal of his
grievances, if he has filed an appeal or made a representation
and the same has not been decided for a period of six months.
Indeed, the memorial filed by the applicant has not been
decided for a period of six months and, therefore, he can well
be said to have exhausted all alternative remedies before
approaching this Tribunal by filing the OA. In view of provisions
contained in Section 21, if the applicant was not to prefer the
present OA within a year of expiry of six months from the date
he made the memorial, the same would have been barred by
limitation. The memorial, as mentioned above was preferred by
the applicant on 20.11.2009. The same, as mentioned above,
has not been decided till date. If the applicant was to await the
decision of the memorial and then to file the OA, the
respondents would have raised an objection that the same
would be barred by time. In view of provisions contained in the
Act of 1985, as mentioned above, and in the facts and
circumstances of the case, present OA cannot be dismissed for
the applicant not to have exhausted alternative remedies
available to him, or for the reason that it is premature.
12. Before we may touch upon the core controversy in issue,
we may mention that Shri Mehta, the learned Addl. Advocate
General, urged that the applicant cannot be an aggrieved
person so as to knock at the doors of this Tribunal, as, at the
most, his ACRs have been downgraded from outstanding to
very good, and inasmuch as, there cannot be any embargo for
the applicant in the matter of his further promotion, as even the
very good ACRs would entitle him to any promotion, and,
therefore, he is not adversely affected, the OA needs to be
summarily rejected. The fact that the ACRs of the applicant
have been downgraded from outstanding to very good is not in
dispute. Learned counsel representing the applicant would
dispute the benchmark for promotion as only very good. In that
regard, reference is made to a representation dated 29.7.2009
made by one Vinod K. Mall, Secretary, IPS Association, which
is addressed to the Additional Chief Secretary, Home
Department, Government of Gujarat, wherein it is inter alia
mentioned that by convention, the requirement has now
become to obtain at least three outstanding ACRs for promotion
of IPS officers. On the basis of the representation aforesaid, it
is said that the requirement for promotion of IPS officers is now
to obtain at least three outstanding ACRs, whereas others may
be only very good. We would not like to go into this question
for lack of adequate material before us. However, the
contention of Shri Mehta as noted above, in our considered
view, has no merit. It is indeed true that the first anxiety of
every Government employee is to get promotions in time and
supersession by junior becomes a matter of great heart
burning, the pangs of which may not go for the rest of the life of
the employee. However, promotion is not the only desire of a
Government servant. Since we are dealing with the case of an
IPS officer, we will make a mention of avenues open to them, in
addition to their promotion in the ordinary channel. Before we
may, however, do that, we may mention that in the case of the
applicant himself, the Central Government had informed the
State Government that he was being considered for
appointment at the level of Joint Secretary in the Government
of India. If the applicant was to go to the Centre, he would have
gone on deputation. The state Government wrote a letter to the
applicant on 17.3.2008 informing him that he was being
considered for Central deputation and asked for his willingness.
The applicant intimated to the State Government his willingness
to be appointed at the level of Joint Secretary on 13.4.2008.
The Principal Secretary (Home) endorsed that the applicant
may be considered for Central deputation on 24.4.2008. A
similar endorsement was made by the Chief Secretary when
the file was put up to the MoS(Home) on 30.4.2008. The
applicant was called by the Principal Secretary (Home) and the
then DGP, who, it is the case of the applicant, persuaded him to
decline Central deputation, on 10.6.2008. The applicant,
however, sent a reminder on 16.6.2008 to the State
Government to convey his consent to the Central Government.
It is thereafter that the applicant received a show cause notice
proposing to chargesheet him on 16.6.2008 itself. These facts
we have picked up from OA No.48/2011. We may now proceed
to mention that an IPS officer may be desirous, and in fact and
indeed, the applicant was desirous of going on Central
deputation at Joint Secretary level. That is not the only avenue
open to an IPS officer. He can be deputed to organizations
like, IB, CBI, RAW etc. as well. Number of IPS officers would
desire their deputation in these organizations. Such officers
who may come on deputation to RAW are also considered and
deputed even against some foreign assignments. Those who
come to RAW are even eligible to become First and Second
Secretaries in Indian Missions abroad. There are number of
assignments within and out of the country where an IPS officer
may be eligible and where be may be desirous to go. For
Central deputation, the same benchmark as may be applicable
for promotion, is not the criteria. As per convention in vogue,
we are given to understand that out of ten, nine ACRs have to
be outstanding. Further, it is the comparative merit of a
candidate vying for such posts which becomes the deciding
factor. Surely and definitely, one with the outstanding record
would be preferred over those who may have only very good or
good record. The applicant with downgraded ACRs would not
be preferred over those who may have better record than him,
thus impeding his deputation to these prestigious
institutions/organizations, or to the Centre. An overall
outstanding record would be relevant even after retirement of
an IPS officer. We would not know as to in what Commissions
or Tribunals IPS officers are eligible for appointment during or
after their retirement. What immediately comes to our notice is
that a high ranking IPS officer who may come at the level of
Secretary or Additional Secretary would be eligible to be an
Administrative Member of the Central Administrative Tribunal.
Selection in such Commissions or Tribunals goes by merit by
considering the comparative merits of the candidates and not
by the benchmark of very good as may be required for
promotion in the hierarchy of the posts in the service.
Downward service graph of the applicant would be an
impediment in his way for Central deputation as also deputation
in organizations as mentioned above, as also for foreign
assignments, and for selection on prestigious posts in
Commissions and Tribunals. It cannot, therefore, be said that
the applicant is not aggrieved from downgrading of his ACRs
from outstanding to very good.
13. Downgrading of the ACRs of the applicant for the years
2003-04 to 2007-08 has admittedly been done on the same
day, i.e., 24.12.2007. It is not in dispute that the applicant has
outstanding service credentials. All his ACRs from 1995-96
onwards are outstanding, except only one which is very good,
recorded only by the reporting officer. The said report never
came to be assessed by the reviewing and accepting
authorities as already mentioned above. The ACRs of the
applicant for consecutive four years as mentioned above have
been downgraded on the same day, i.e., 24.12.2007. The main
plea raised in support of the OA is that the accepting authority
as regards the ACRs has necessarily to review and record its
remarks on the confidential report, which may be
accepted/modified, as is considered necessary, and the report
has to be countersigned within one month. Rule 6A(1) of the
Rules of 1970 reads as follows:
6A. Acceptance of the confidential report-
(1) The accepting authority shall within one month of the
review, record his remarks on the confidential report and may
accept it, with such modifications as may be considered
necessary, and countersign the report.
Provided that this requirement may be dispensed with in such
cases as may be specified by the Government, by general or
special order:
Provided further that where the accepting authority has not
seen the performance of any member of the Service for at least
three months during the period for which the confidential report
has been written, it shall not be necessary for the accepting
authority to accept any such report.
NOTE.An entry to this effect shall be made in the confidential
report.
The applicant, in addition to rule 6A of the Rules of 1970, also
places reliance upon a letter dated 21.6.2005 written by the
Cabinet Secretary, Government of India to the Chief Secretary,
Government of Gujarat, accompanied by instructions for
completion of ACRs of All India Service officers. In the letter
aforesaid, it has been mentioned that DOP&T had prescribed a
time schedule for furnishing the ACR forms to the members of
the Service reported upon, completion of self-assessment and
writing of report by the reporting/reviewing and accepting
authorities, vide letter dated 26.5.1988, but the ACRs are
frequently received considerably late. It is mentioned that there
is need for timely completion of ACRs of members of the
Services in order to streamline the process of recording of the
ACRs, and that the existing instructions have suitably been
revised. We would make a mention of the instructions
hereinafter.
14. Whereas, the learned counsel representing the applicant
would contend that the provisions contained in rule 6A of the
Rules of 1970 followed by instructions dated 26.5.1988
conveyed vide letter dated 21.6.2005 are mandatory, Shri
Mehta, the learned Addl. Advocate General representing the
respondents, would contend that even though the word
shallmay have been used in the rule, and the instructions may
also suggest a time limit, the same would be directory.
15. The All India Services (Confidential Rolls) Rules, 1970,
came into being in exercise of the powers conferred by sub-
section (1) of Section 3 of the All India Services Act, 1951.
Member of the Servicemeans a member of an All India Service
as defined in Section 2 of the Act of 1951, in view of rule 2(d) of
the Rules aforesaid. Admittedly, the applicant is a member of
an All India Service as defined in Section 2 of the Act of 1951,
and, therefore, the Rules of 1970 are applicable to him. These
Rules are exclusively as regards maintenance, custody and
recording of confidential reports by different authorities. In view
of provisions contained in rule 5(1), a confidential report
assessing the performances, character, conduct and qualities
of every member of the Service shall be written for each
financial year, or calendar year, as may be specified by the
Central Government ordinarily within two months of the close of
the said year. Proviso to the said sub-rule may not be relevant
as the same deals with such members of the Service whose
confidential reports may not be recorded for the time being.
Even in case of a member of the Service who may relinquish
the charge of the post, his ACR has to be recorded ordinarily
within one month thereafter, as per provisions contained in rule
5(2). In view of rule 5(5), where the authority writing the
confidential report under sub-rule (2) or sub-rule (4) of rule 5,
retires from service, the confidential report shall be written not
later than one month of the date of such retirement. In view of
provisions contained in rule 6, the reviewing authority shall,
within one month of the receipt of the confidential report, record
his remarks on the said report. Sub-rules (1), (2) and (5) of rule
5 and rule 6, are reproduced below:
5. Confidential reports
(1) A confidential report assessing the performances, character,
conduct and qualities of every member of the Service shall be
written for each financial year, or calendar year, as may be
specified by the Government ordinarily (emphasis supplied)
within two months of the close of the said year.
5(2) A confidential report shall also be written when either
the reporting authority or the member of the Service reported
upon relinquishes charge of the post, and, in such a case, it
shall be written at the time of the relinquishment of his charge
of the post or ordinarily (emphasis supplied) within one month
thereafter:
Provided that a confidential report may not be written in such
cases as may be specified by the Central Government, by
general or special order.
5 (5) Where the authority writing the confidential report under
sub-rule (2) or sub-rule (4) of this rule retires from service, the
confidential report shall (emphasis supplied) be written not later
than one month of the date of such retirement.
6. Review of the confidential report
6(1) The reviewing authority shall (emphasis supplied), within
one month of the receipt of the Confidential Report, record his
remarks on the said report.
Provided that this requirement may be dispensed with in such
cases as may be specified by the Government, by general or
special order.
6(2) Where the report is written by the reviewing authority under
sub-rule (4) of rule 5, or where the reviewing authority has not
seen, and the accepting authority has seen, the performance of
a member of the Service for at least three months during the
period for which the confidential report is written, the
confidential report of any such member for any such period
shall be reviewed by the accepting authority, ordinarily
(emphasis supplied) within one month of its being written.
6(3) It shall not be competent for the reviewing authority, or the
accepting authority, as the case may be, to review any such
confidential report unless it has seen the performance of the
member of the Service for at least three months during the
period for which the report has been written, and in every such
case an entry to that effect shall be made in the confidential
report.
6(4) Notwithstanding anything contained in sub-rules (1) and
(2), it shall not be competent for the reviewing authority or the
accepting authority, as the case may be, to review any such
confidential report-
(a) where the authority reviewing the confidential report is a
Government servant, after one month of his retirement from
service, and
(b) in other cases, after one month of date on which he
demits office.
Explanation:For the purpose of this rule, a Minister shall not be
treated as having demitted office if he continues to be a
Minister in the council of Ministers with a different portfolio or in
the Council of Ministers immediately reconstituted after the
previous Council of Ministers of which he was Minister with the
same or a different portfolio.
16. The instructions issued by the Cabinet Secretary vide his
covering letter dated 21.6.2005, which have been sent to all
Chief Secretaries, including Chief Secretary of Government of
Gujarat, prescribe a time schedule for furnishing ACR forms to
the members of the Service reported upon, completion of self-
assessment and writing of report by the reporting/reviewing and
accepting authorities. The revised instructions accompanying
the letter aforesaid clearly stipulate that if an ACR relating to a
financial year is not recorded by 31st December of the following
year, no remarks shall be recorded thereafter, and the member
of the Service will be assessed based on the overall record and
self-assessment of the year concerned, if he had given his self-
assessment in time. Suffice it to say at this stage that a time-
schedule for self-assessment, reporting, reviewing and
acceptance has been specified.
17. From the provisions of rules it would be made out that
there is a clear distinction in the rules as regards the time-
schedule for everything. Different language has been used in
different rules as reproduced above. Whereas, with regard to
some areas, adherence to the time-schedule is ordinarily, as
regards others it is not later than the specified time or have to
be or shall be within the prescribed time. Prima facie it may
appear from reading of different rules that wherever there is
scope for going beyond the stipulated period, the same is
mentioned, and that being so, it would appear that wherever the
words shall or not later than have been used, there would be no
scope to go beyond the stipulated period. However, the
contention raised by Shri Mehta may yet have merit inasmuch
as, there are no consequences provided for not sticking to the
time-schedule mentioned in the rules, and, therefore, use of
words like shall or not later than may not be treated as
mandatory and be treated as directory. We may also accept
the contention of Shri Mehta that the use of words may and
shall to be directory or mandatory, is not conclusive, and in the
context of the facts and circumstances of the case, the word
may may be read as shall and shall may be read as may. In
that regard, Shri Mehta places reliance upon some judicial
precedents, which may need reference.
18. The Honble Supreme Court in Madhya Pradesh State
Electricity Board & another v S. K. Yadav [(2009) 1 SCC (L&S)
353] held that it is well settled principle of law that where a
public authority is required to pass an order in terms of the
statute within a period stipulated therefor, non-compliance
would not vitiate the ultimate order. The facts of the case
reveal that the workman had gone on leave. Para 8(b) of the
standing order required order to be passed as regards grant or
refusal of leave, which was required to be communicated
without delay. Para 8(b) of the standing order reads as follows:
8. (b) An employee who desires to obtain leave of absence
shall apply to the manager or the officer authorized by him. It
shall be duty of the manager or the officer to pass orders
thereon on two days in a week fixed for the purpose; provided
that, if the leave asked for is of an urgent nature i.e.
commences on the date of the application or within three days
thereof, orders for the grant or refusal of leave shall be
communicated without delay.
While dealing with para 8(b) of the standing order, it was
observed that the application filed by the workman was required
to be considered and order thereon should have been passed
within the period specified therein. There were no
consequences provided in the standing order if the order was
not to be passed within the stipulated time, and that being so,
the time stipulated would be only directory and not mandatory.
We may quote the relevant observations made by the Honble
Supreme Court, which read as follows:
19. It is now a well-settled principle of law that where a public
authority is required to pass an order in terms of the statute
within a period stipulated therefor, non-compliance wherewith
would not vitiate the ultimate order, must be held to be directory
in nature and not imperative.
In Dinesh Chandra Pandey v High Court of Madhya Pradesh &
another [(2010) 11 SCC 500], it was held that the use of the
words shall and may not always be decisive; it would depend
upon facts of the case, conjunctive reading of the provision with
other provisions, purpose sought to be achieved and object
behind implementation of the provision. The facts of the case
reveal that it was a case of departmental enquiry, where in view
of rule 14(8) of M.P. Civil Services (Classification, Control and
Appeal) Rules, 1966, a government servant could take the
assistance of any other government servant to present the case
on his behalf, but may not engage a legal practitioner for the
purpose unless the presenting officer appointed by the
disciplinary authority was to be a legal practitioner. The
expression may, it was held, could not be read as shall. While
dealing with the issue, it was observed as follows:
15. The courts have taken a view that where the expression
shall has been used it would not necessarily mean that it is
mandatory. It will always depend upon the facts of a given
case, the conjunctive reading of the relevant provisions along
with other provisions of the Rules, the purpose sought to be
achieved, and the object behind implementation of such a
provision. This Court in Sarla Goel v Kishan Chand (2009) 7
SCC 658, took the view that where the word may shall be read
as shall would depend upon the intention of the legislature and
it is not to be taken that once the word mayis used, it per se
would be directory. In other words, it is not merely the use of a
particular expression that would render a provision directory or
mandatory. It would have to be interpreted in the light of the
settled principles, and while ensuring that intent of the Rules is
not frustrated.
The Supreme Court while holding so, also took into
consideration its judgment in Malaysian Airlines Systems BHD
(III) v Stic Travels (P) Ltd. [(2001) 1 SCC 509].
19. We have given our thoughtful consideration to the rival
contentions raised by the learned counsel representing the
parties. It appears to us that depending upon the facts and
circumstances of the case, the language of the statute and the
purpose of legislation, whereas, the word may used in the
statute may be mandatory, the use of the word shall may be
directory. Normally, when consequences of non-compliance
are not provided in the statute, the word shallmay not be
interpreted as mandatory. Further, as mentioned above, as
also held by the Honble Supreme Court in Dinesh Chandra
Pandey (supra), as to whether the use of the word shall in the
statute may be directory or not, would depend upon the facts of
a given case, conjunctive reading of the provision with other
provisions, purpose sought to be achieved and the object
behind implementation of the provision. Insofar as, the rules
are concerned, the consequences of not adhering to the time
schedule for reporting, reviewing and accepting the ACRs have
not been provided. In view of the instructions that have,
however, been issued, adverted to above, CR form is to be
given to the officer reported upon by 1st April. The time
schedule for the officer reported upon for completing part-II of
the CR form has been fixed as 30th April, whereas the said
schedule for the reporting officer to complete the CR is 31st
May. The time schedule for the reviewing authority to complete
the CR is within one month of receipt, whereas the same for the
accepting authority is also within one month of its receipt. The
completed ACRs have to reach the cadre controlling authority
by 31st August. If the same are not received, the said authority
would prepare a list of ACRs not received and follow up the
matter with the Secretaries of the concerned Ministers and the
Chief Secretaries of the respective States. Nodal officers have
to be appointed to ensure that the ACRs of the members of
Service, duly completed, are sent to the cadre controlling
authority within the stipulated time, i.e., 31st August every year.
The State Governments are to designate Principal
Secretary/Secretary in charge of Personnel/General
Administration Department as nodal officers. They shall send a
list each of the members of Service whose ACRs are to be
written/reviewed and accepted to the concerned
reporting/reviewing/accepting authorities by 15th April every
year to enable them to ensure completion of ACRs within the
time schedule. Nodal officers have to also ensure that ACRs of
the earlier years, which are presently pending with the
reporting/reviewing/accepting authorities, are completed and
sent to the cadre controlling authorities by 30th June, 2005
positively. This part of the instructions, i.e., pertaining to earlier
ACRs which may not have been completed, would exhaust in
the year 2005, as the instructions came into being in the said
year. Insofar as the ACRs for the years subsequent to 2005
are concerned, the time schedule has been prescribed as
mentioned above. If an ACR relating to a financial year is not
recorded by 31st December of the following year, no remarks
shall be recorded thereafter, and the member of the Service will
be assessed based on the overall record and self-assessment
of the year concerned, if he had given his self-assessment in
time. The reporting officer has to record his comments in the
ACR of the officer reported upon within the stipulated time and
send it to the reviewing officer, and in case the reporting officer
fails to submit the ACR to the reviewing officer within the
stipulated period, the nodal officer shall send a copy of the self-
appraisal direct to the reviewing officer authorizing him to
initiate the ACR, and shall also keep a note of the failure of the
reporting officer to submit the ACR of his subordinate in time for
an appropriate entry in the ACR of such reporting officer. If the
reviewing officer may also fail to submit the ACR to the next
higher authority within the stipulated period, the nodal officer
shall send a copy of the self-appraisal alone or the self-
appraisal along with the assessment of the reporting officer, as
the case may be, to the accepting authority, and will also keep
a note of the failure of the reviewing officer to record his entries
in time for the purpose of recording the same in the ACR of the
reviewing officer. The nodal officer has to evolve a suitable
mechanism to ensure that the remarks of the reporting,
reviewing and accepting authorities are recorded without fail by
the 31st December of the year following the year of
assessment. If an ACR relating to a financial year is not
recorded by 31st December of the following year, no remarks
shall be recorded thereafter, and the member of the Service will
be assessed based on the overall record and self-assessment
of the year concerned, if he had given his self-assessment in
time.
20. Purposes of recording the ACRs are manifold. Surely,
the first and the most important purpose of recording ACRs is to
afford an opportunity to the government servant concerned to
make amends to his remissness if any; to reform himself; to
mend his conduct and to be disciplined, to do hard work, to
bring home the lapses in his integrity and character so that he
corrects himself and improves the efficiency in public service.
The entries, therefore, require an objective assessment of the
work and conduct of a government servant reflecting as
accurately as possible his sagging inefficiency and
incompetence. The defects and deficiencies brought home to
the officer are means to the end of correcting himself and to
show improvement towards excellence. The confidential report,
therefore, would contain the assessment of the work, devotion
to duty and integrity of the officer concerned. This is the basic
purpose of recording ACRs of an officer. However, the purpose
of adhering to the time-schedule would be different. The main
purpose of making timely assessment of an officer, as appears
to us, would be that if there are some adverse remarks as
regards integrity and efficiency of the officer, he must be
informed of the same in time so that he may start improving
immediately. The other object of recording timely ACRs would
be that if there are some adverse remarks or even the overall
grading is below benchmark as required for promotion, the
officer, if he may be of the view that the same are not justified,
may by representation seek expunction of the adverse remarks
or upgradation of his ACR, as the case may be. If the ACRs
are recorded after years and years, it may not be possible for
the officer to make a meaningful representation, nor for the
concerned authorities, like reporting, reviewing and accepting
authorities, to even remember as to why there were adverse
remarks recorded in the ACR of the officer, or why they had
assessed his overall grading below benchmark. Yet another,
purpose of recording timely ACRs is that the superior officer
may not hold his subordinate to ransom by keeping the
Democles sword hanging over his head for years to come.
There are indeed some unscrupulous officers who may want
their subordinates to dance to their tunes and thus misuse them
for their ulterior motives till such time they record their ACRs.
Cases are not lacking where this has actually happened.
Further, if timely ACRs are not recorded in time or in
reasonable time, it may create administrative chaos; timely
promotions of officers may become a distant dream, thus
thwarting the rightful claim of the employees to go to higher
echelons; DPCs may not be able to function for making
promotions of the officers to higher echelons without knowledge
as to work and performance of the officers; promotions may
come about after years, resulting into non manning of the
promotional posts.
21. In consideration of the Rules of 1970, instructions dated
21.6.2005, as also the purpose of recording timely ACRs, we
are of the considered view that non-recording of the ACRs by
reporting, reviewing and accepting authorities within the time
schedule, as mentioned in the rules, may not be fatal, inasmuch
as the self-assessment of the applicant shall have to be taken
as correct. If, however, the time stipulated for the authorities
mentioned in the instructions may travel beyond 31st December
of the following year, and there be no reasonable explanation
for delaying the matter beyond 31st December, the self-
appraisal of the officer shall have to be accepted. Likewise, if
the reviewing officer may not be able to do the duty enjoined
upon it under the statutory rules and instructions by 31st
December, the ACR recorded by the reporting officer shall have
to be accepted, and so shall be true if the accepting authority
may not do its part of the duty by 31st December of the
following year. The CR form has to be given to the officer
reported upon by 1st April, and he has to complete part-II by
30th April. Whereas, the reporting authority has to complete his
part of duty by 31st May, the reviewing and accepting
authorities have to do their duty within a month from receipt of
the ACR from reporting and reviewing authorities respectively.
If the ACR is recorded by all the authorities within the stipulated
time, one months margin thereafter has been given for receipt
of the ACR by the cadre controlling authority, the stipulated
time being 31st August every year. The instructions clearly
stipulate that if the ACR relating to a financial year is not
recorded by 31st December of the following year, no remarks
shall be recorded thereafter. If for instance, therefore, the ACR
for the year 2006-07, which is required to be sent to the cadre
controlling authority by 31st August, 2007, is not even received
by 31st December, 2007, no remarks are to be recorded
thereafter. The play in time for the upper limit is provided under
instructions itself, and the consequences of the same are also
provided. Despite this, considering the purpose of recording
the ACRs, as mentioned above, one may still say that
consequences of not adhering strictly to the instructions may
not be fatal, but surely and definitely, if there be a delay beyond
31st December of the following year, there has to be cause for
the same, and if there be no reasonable explanation, the
consequences mentioned in the instructions shall have to
follow. If the respondents may be unable to state reasons what
caused the delay in finalizing the ACRs despite the time
stipulated under the instructions, they must come up with
causes of the delay, and such causes have to be made
justiciable.
22. If the stand taken by the learned Addl. Advocate General
is to be accepted, reporting, reviewing and acceptance may be
done at any time, like in the present case, for four years, three
years and two years respectively, then the Rules of 1970 and
instructions issued thereunder shall become nugatory, as if they
do not exist at all. In the present case, no reason other than
that the Chief Minister being a busy person, has been given.
We appreciate that the Chief Minister of a State is indeed a
busy person, but once, statutory duty has been enjoined upon
him, he cannot abdicate it for years to come, and that he is a
busy person would also not be a ground to clothe him with the
power to report an officer at his discretion and will. On facts,
we may only mention that we required the learned Addl.
Advocate General representing the State of Gujarat to state as
to when the applicant was reported upon by the Chief Minister,
whether other officers were also reported by him on the same
day as regards their ACRs for more than a year. The learned
counsel sought adjournment, and in all fairness, stated on the
basis of a chart prepared by him that 21 officers were reported
by the learned Chief Minister on the same day when the
applicant was reported upon, but their ACRs were of the year
concerned, or, at the most, a year earlier. There was no officer
out of the 21 whose ACRs may have been reported upon after
four years. Inasmuch as, the delay in the present case in
reporting upon the applicant is wholly reasonably, downgrading
done by the Chief Minister shall have to be ignored, and the
ACRs of the applicant for the concerned years shall have to be
termed as outstandingas reported both by the reporting and
reviewing authorities.
23. The applicant has yet another grievance. It is his case
that once, downgrading is done, it must contain reasons.
Reference in this connection by the learned counsel
representing the applicant has been made to instructions dated
19.4.2005 issued by DOP&T. These instructions have been
specifically issued under the Rules of 1970 with the caption,
AIS (CR) Rules-1970 Instructions under Rule 8(2) of AIS (CR)
Rules, 1970 regarding adverse remarks. After making a
mention of rules 8, 9 and 10 of the Rules of 1970, and keeping
in view the suggestions and representations received by
DOP&T from members of the Service, the Government took a
decision to lay down the criteria in regard to writing of
confidential reports and communication of adverse remarks
under proviso below rule 8(2). The criteria that may be relevant
for the purpose of deciding the controversy in issue, as
enumerated in clauses (iii) and (iv) of para 2 of the instructions
aforesaid, read as follows:
(iii) In any case where an entry is downgraded or upgraded,
the authority downgrading or upgrading the remark and overall
grading should state, as part of the entry, the reasons for
downgrading or upgrading with adequate justification in
accordance with the instructions on the writing of the ACR.
(iv) Where the authority has upgraded/ downgraded the
overall grading without giving sufficient reasons, the
Government shall treat such an exercise as non-est/invalid.
General terms, such as I agree or disagree with the Reporting
Officer/Reviewing Officerused by the Reviewing/Accepting
Authority shall not be construed as sufficient reason for
upgrading/downgrading the overall grading given by the
Reporting Authority/Reviewing Authority.
These instructions are now being followed even by the DPCs
while evaluating ACRs of the officers for finding that they are fit
or otherwise for promotion. Wherever the reporting and the
reviewing officers may have downgraded ACR of an officer
without describing any reasons, the same are being ignored.
Number of such cases have come before us from time to time,
but we may make a mention of a recent decision recorded by
us in OA No.2833/2009 in the matter of Mrs. Parminder v Union
of India & Others, decided on 8.3.2011. We observed in the
order aforesaid that despite the fact that the reviewing officer in
the case of one Shri Sugar Lal Meena had downgraded him,
but since there were no reasons for doing so, the DPC had
ignored such downgrading and found the officer fit for
promotion, and the ACC accepted the recommendation of the
DPC. We were dealing with the case of Mrs. Parminder, an
Additional Commissioner of Income Tax, in whose case the
DPC had found her fit for promotion to the post of
Commissioner of Income Tax, but the ACC did not accept the
recommendation of the DPC as the DPC had not specifically, in
her case, ignored the below benchmark grading given by the
reviewing officer. We need not mention as to why relief was
given to the applicant as that may not be relevant, but suffice it
may to say that the DPC had not gone by the downgrading
done by the reviewing officer, which was sans any reasons.
24. Downgrading has to contain adequate justification and
when the downgrading is done without giving sufficient reasons,
the Government shall treat such exercise as non est/invalid.
The alleged justification in the present case is that the overall
performance was reviewed by the Chief Minister. The remarks
contained in all four ACRs of the applicant while downgrading
them from outstanding to very good, read as follows:
In view of the overall performance of the officer, he may be
graded Very Good.
This is too general and cannot be called an adequate
justification for downgrading the ACRs of the applicant. If what
the Chief Minister has observed is to be accepted as adequate
justification for downgrading an officer, then in every case, what
has been mentioned with regard to the applicant, would be
mentioned. This general assessment would be against the
instructions as sufficient reasons have to be recorded. Before
we may part with this aspect of the case, we may mention that
Shri Tushar Mehta has cited some judicial precedents in his
endeavour to show that when the grading of an officer may be
very good, the same may not be communicated only because
other officers may have better gradings. We need not refer to
any such judgment because the question that is raised by the
applicant is that downgrading of his ACRs is without reasons
and for that reason as well it needs to be set aside. Learned
counsel representing the applicant has also urged that the
Chief Minister downgraded the ACRs of the applicant after
demitting office, but it appears that inasmuch as, from the
records the respondents have established that the downgrading
was done before the Chief Minister demitted office, and, in any
case, once he again came back as Chief Minister after
Assembly elections, therefore, he could do it after demitting the
office as well, no serious arguments have been raised on this
issue.
25. The applicant, even though has given up, for the time
being and has not pressed factual mala fides, he still insists, for
the desired relief, on legal mala fides and arbitrariness. Legal
malice, as defined in the Blacks Law Dictionary (Fifth Edition,
p.806), would mean, thus:
Such consists of either an express intent to kill or inflict bodily
harm, or of a wickedness of disposition, hardness of heart
(emphasis supplied), cruelty, recklessness of consequences
and a mind regardless of social duty which indicates an
unjustified disregard or for the likelihood of death or great bodily
harm and an extreme indifference to the value of human life
(emphasis supplied).
Arbitraryhas been defined therein (p.96) to mean as follows:
Means in an arbitrarymanner, as fixed or done capriciously or at
pleasure. Without adequate determining principle; not founded
in the nature of things; non-rational; not done or acting
according to reason or judgment; depending on the will alone;
absolutely in power; capriciously; tyrannical; despotic; Corneil v.
Swisher County, Tex.Civ.App., 78 S.W.2d 1072, 1074. Without
fair, solid, and substantial cause; that is, without cause based
upon the law, U.S. v. Lotempio, D.C.N.Y., 58 F.2d 358, 359; not
governed by any fixed rules or standard. Ordinarily, arbitraryis
synonymous with bad faith or failure to exercise honest
judgment and an arbitrary act would be one performed without
adequate determination of principle and one not founded in
nature of things (emphasis supplied). Huey v. Davis, Tex. Civ.
App., 556 S.W. 2d 860, 865.
The delay, of course, which in the present case is massive,
would still not come within the definition of legal maliceas per
Blacks Law Dictionary reproduced above. The same may,
however, come within the definition of arbitrary, as the
accepting authority has to do the exercise as enjoined upon him
statutorily within the stipulated time and not at his pleasure. We
may not delve on this issue any more and would rather leave it
at that, as the applicant would succeed on other grounds raised
by him, mentioned above.
26. For the reasons as mentioned above, downgrading done
by the Chief Minister of the ACRs of the applicant for the years
2003-04 to 2007-08 from outstanding to very good is set aside.
All the ACRs of the applicant, as mentioned above, shall be
treated to have graded the applicant as outstanding, and the
present Original Application would thus be allowed accordingly.
There shall, however, be no order as to costs.
( L. K. Joshi ) ( V. K. Bali )Vice-Chairman (A) Chairman
//TRUE COPY//
ANNEXURE P-3
FIRST INFORMATION OF COGNIZABLE OFFENCEUnder Section 154 of the Criminal Procedure Code given at the
Police Station.
M.Case No. 1/2008 F.I.R. No. 01/2008Sub-district: Rajkot Zone, C.I.D., Crime, RajkotDistrict: Bhuj
Date and Time of Crime: From 19/06/2001 to 05/11/2007
1. Date & time of giving information: On 05/11/2007 Court
of the Hounourable Chief Judicial Magistrate, Bhuj,
Rajkot Police Station 20/02/2008 at 20:00 hours.
2. Place of Offence Direction & distance from the Police
Station: In Bhuj City
3. Date of sending to the Police Station: On 20/02/2008
4. Name & residential Address of the Complainant: Tensi
James, Principal of All India Anti Corruption and Crime
Prevention Council, Gujarat State, Residing at Vikas
Enterprise, Opposite to Kalpataru Apartment, Hospital
Road, Bhuj
5. Name and address of the 1) Earth quake affected
Bhuj persons against whom the Bazaar Navnirman
charges are levied Charitable Trust, Bhuj.
Address: Navi Janthabandi Bazaar, Bhujiya Taleti, Bhuj
Madhapar road, Bhuj.
2) Along with the president of earth quake affected Bhuj
Bazaar Navnirman Charitable Trust, its present as well as
previous Officers, members of executive committee as well as
general members.
3) New and old officers and responsible members of the
Janthabandi Bazaar Construction Committee made by the
members of the above trust very itself for the construction of
shops.
4) The then District Collector, Kutch.
5) All those persons that emerges out during the investigation
of this case.
6. Brief description of the offence Offence Under Section
200,
Along with Sections, muddamal 203, 217, 465, 466, 467, 468
Articles seized if any. 471, 472, 474, 475, 484
and 120(B) of the IPC committed
by the accused of this by planning a conspiracy had made false
certificate and in such certificate had placed seal and
signatures of fake government officers that does not exist at all
case had obtain valuable government land for residential
purpose by governmental assistance for the beneficiaries of
such G-5 categorized commercial properties owners for which
the government had declared the package amounting to Rs.
1,20,000/- for businessmen for obtaining illegal advantage of
the same and in spite of knowing the same the government
officers had by not giving complain in this regard had hidden
the illegal act and thereby have committed offence and etc.
7. Explanation in respect of delay in registering information,
investigation etc. and procedure conducted regarding the
investigation.
8. Disposal of the Muddamal
Sd/- Illegible, Designation, PSO, K.G. MajiparaIn charge D.Police Inspector
Kutch- Bhuj
NOTE: Registered under first Information and signature or thumb
impression shall be taken below it in respect of its correctness
besides upon the same the officer registering the complaints
shall place his signature.
As I was in charge of D. Police Inspector, Kutch-Bhuj
besides, today with regard to the investigation of this case
hearing ahs been fixed in the court of the Honourable Chief
Judicial Magistrate’s Court, Bhuj I have remain present today
and accordingly had met A.P.P. Shri Bhuj and on informing the
A.P.P. that presently the complaint of this case was received
with the D. Police Inspector, Bhuj and the complaint was lodged
with Rajkot Zone Police Station hence, after registering the
office as the investigation of this case was to be carried out by
D. Police Inspector Bhuj etc. information was given to the
A.P.P. accordingly he had informed the Honourable Court
besides, in this regard the Honourable Director General of
Police, Gujarat State had also sent a fax message vide
Outward No. 166/2008 and in this regard also discussion were
held with the A.P.P. and necessary understanding in that
regard has been given to him besides, the order dated
05/11/2007 passed by the Honourable Chief Judicial Magistrate
First Class in this regard to the P.I., C.I.D., Bhuj for carrying out
investigation under the provisions of Sec. Sec. 156-3 fo Cr.P.C.
Order dated 05/11/2007 and all complaints related to this case
were obtained from Mr. Govindbhai, A.S.I., Bhuj Office and
thereafter had returned back to Rajkot Office and taken over
the charge of the investigation of the complaints and thereafter
offence in this case was registered besides, the written
complaint has also been given by the complainant of this case
details thereof are as herein under.
In the aforesaid case the facts of the complaint of me the
complainant are as herein under, it is humbly requested to take
the same for kind consideration.
1) I the complainant is residing in the midst of city of
Bhuj and I am giving honorary services as Secretary of All
Indian Anti Corruption and Crime Preventive Council, Gujarat
State, Kutch Unit and have authority to file the present5
complaint a copy of the writ file before the Honourable High
Court of Gujarat is enclosed herewith it is humbly requested to
take the same for your kind consideration, the registration of my
above mentioned institute is F. 4282 GUJ-4422.
2) One Narendra Mansukhlal Resident of Bhuj had
given a complaint to the me the complainant herein above vide
his letters dated 19/01/2006 and 07/05/2007 that a huge
misappropriation has been adopted by the Bhuj Bazaar
Navnirman Charitable Trust and the area that have been
declared as prohibited areas by the Army officers in that area
even without obtaining N.O.C. from the army officials
construction of Bazaar has been carried out and by violating the
conditions imposed in the order of the Honourable Collector a
huge misappropriation ahs been adopted but in this whole
chapter fraudulent pertaining to valuable land of the
government, government funds and government subsidy of
crores of rupees has been carried stated to have been carried
out.
3) In this regard, I the complainant has obtained
information from the Collector Officer under the Right to
Information Act and according to this information, a person
whose business-profession ahs been completely destroyed in
earthquake in i.e., a person who ahs been categorized under
G-5 category shall only be given benefit of such scheme and in
this regard the government ahs also passed a resolution and
the category of the loss and damage has been prescribed by
the General Administration Department of the Government of
Gujarat in its book of September, 2001 copy of the same is
enclosed herewith, it is humbly requested to take the same for
kind consideration.
Besides as per the above mentioned facts and details, a
fitness for availing benefit of this scheme was only for those
who have been categorized under G-5 category of earth quake
hit persons and except them any one was not entitled to avail
benefit of this scheme in any way.
Further, the certificates pertaining to the damaged and
destroyed commercial properties under G-5 category were
produced by the trust before the Collector and after due
verification of these certificates produced before the Additional
Collector only and according to condition No. 5 and 8 the
collector was compulsory suppose to issue certificate to the
beneficiaries of the same and thereafter only the beneficiaries
were supposed to be fit to posses a qualification for certified
member and this responsibility was to be performed only by the
then Prevailing District Collector in his capacity of being
competent authority but he has failed in doing so.
Besides, land admeasuring Acre 16 out fo land bearing
Survey No. 363 wherein the construction work of the shops
have been done was under the prohibited area as declared by
the army the above place (Bhujiya Dungar) was reserved as
prohibited by the army for storing its arms and ammunitions
hence, before starting the construction work N.O.C. was require
to be obtained from army authorities by the trust, but till date
any N.O.C. has not been obtained by the trust from the army
authorities, such kind of crystal clear conditions have been
imposed by the Revenue department, Government of Gujarat in
its order dated 03/09/2009 wherein it has been clearly
mentioned regarding obtaining of N.O.C and in letter dated
06/03/2009 of the then Collector addressed to the trust that
without obtaining N.O.C form the military authorities any kind of
construction cannot be carried out and in spite of the same
without following such important procedures the Construction
committee of the Bhuj Jaththabandi trust has done construction
work about 400 shops and has started the market thereof.
4) Over and above the details as mentioned herein
above, we have also come to know during our investigation that
in this regard on 02/08/2002 the District Collector had after the
certificates of the beneficiaries being checked out for the
purpose of construction of Jaththabandhi Market regard called
for a special report from Deputy Collector (Earth Quake) Bhuj
and with regard to that report on 10/10/2006 under the
confidential letter of the Deputy Collector Bhuj had submitted a
detailed report to the Collector, Bhuj and in that it was
mentioned that below mentioned offence has been committed.
In that report list of total 401 names has been examined
and in that condition of case wise remarks and defect was
mentioned in detailed in that out of all the cases in 22 cases
residential houses have been handed over. The letters that
have been written upon the letter pad of the earthquake
affected Navnirma Charitable trust addressed to the Collector
are all related to the earth quake affected but in all the them
dates have not been mentioned and any signature of any
authorized office is also not found in the same. Besides, during
the month of April, 2006 with regard to the same question
necessary registers were handed over to the Collector and
during that time as the aforesaid registers were frequently
required by this office (Deputy Collector, earthquake Bhuj) the
staff had visited the collector office and at that time it was
experienced that the registers were utilized by the non
government officials and persons over and above the
government staff, these persons could possibly be
direct/indirect legal/illegal beneficiaries of Navnirman Charitable
Trust. Besides, out of the above cases in some of the case it
was found that some of the beneficiaries were other than those
of G-5 category.
Thus, in this way as per the details mentioned therein
above, it was informed by the Deputy Collector (Earthquake)
Bhuj through his confidential letter that a huge misappropriate is
being played. I have obtained copies of this letter of the
Collector as well as the confidential letter of the Deputy
Collector along with the copy of the statement enclosed with it
legally under the right to information act and the same is hereby
produced along with its relevant supportive evidences vide list.
Thus, as mentioned herein above the Deputy Collector
had crystal clear informed the Collector vide his confidential
letter dated 10/10/2006 that a huge misappropriation is being
played and in spite of the same in spite of the collector being
very well versed that the criminal offence has been committed
and in spite of it being his foremost duty to take legal steps
against the same he has not done so and by doing so he has
tried to inspire the accused persons and for the reasons best
known to him he ahs tried to hide the whole chapter and
thereby has helped the accused in committed offence against
the government.
5) In the aforesaid case I the complainant institute
has obtained the certificates produced by the beneficiaries the
Jaththabandhi Bazaar of the Bhuj Bazaar Navnirman Charitable
trust and the other documentary evidence under the right to
information act and looking tot eh same in this case any
beneficiary has not been certified by the collector, Bhuj- Kutch
and out of the conditions of the construction of the market it
was one of the first and foremost condition that, the certificate
should only be issued by the Collector very itself, but hi this
whole case any thing like that has not happened. The
certificates that have been stated to be issued to the
beneficiaries in those certificates the signatures of the officers
are found missing in some of the cases the designations that
have been mentioned under the certificate such designations
does not exists at all in such departments and in past also any
such kind of designations were not existing at all and thus, in
this way by mentioning totally fake and implanted designations
by impaling false members and offices of the Navnirman
Charitable Trust by false beneficiaries being involved with the
government officials valuable government land have been
illegally obtained.
During the investigation carried out by me the
complainant institute it has also come to know that not only this
but, the signatures placed in these fake certificates it has been
found that one signature has been scanned and thereafter
properly arranging it on the papers its prints have been taken
out.
Further in this whole chapter, the Deputy Collector, Bhuj
City has vive his letter dated 27/07/2006 addressed to the
collector, Bhus-Kutch clearly informed him that, “the
Jaththabandhi bazaar being constructed in government land
admeasuring 17 acres of land bearing Survey No. 363 made by
the officers of the Earth Quake affected Bhuj Bazaar Navnirman
Charitable trust was illegal, bogus and attempt has been make
to transfer the shops in the names of fake beneficiaries of the
hence, immediately a “no entry” order shall be passed and
before the trustees succeed in their such malicious intention in
order to illegal grab over the government land such malicious
intention on their part shall be restricted” in spite of such
information being given and the collector having all authorities
to take legal steps in this regard in this whole chapter the
collector has remain dormant spectator, such an act on his part
is intentional hence, the same is an offence.
Over and above this, during the investigation carried out
by me the complainant institute, the list of the beneficiaries
taking benefit of this jaththabandhi market along with the list
with the confidential letter dated 10/10/2006 has been obtained
by me the complainant from the deputy Collector under the right
to information act the same is produced with a separate list.
The persons who are included in that list and accused amongst
the beneficiaries of the charitable trust are
Sr.No.
Report No.
Name of the Firm Category
1 114 Gayatri Trading Co. G-5
2 127 Vinodchandra Mohanlal G-5
3 136 Th. Chhaganlal Madhavji G-5
4 141 Harsha Traders G-5
5 154 Savan Trading Co. G-5
6 246 Nitinkumar &Co. G-5
7 249 Atul Trading Co. G-5
8 277 Shah Ravilal Hathibhai G-5
9 284 Th. Chaganlal Madhavji & Sons G-5
10 295 Jitendera Maganlal Sheth G-5
11 298 Kantilal L. Gaur G-5
The certificates with respect to the above names and the
names as mentioned in the list are proper and as per the belief
of the institute and as per the documents produced by them
they can be really believed to be beneficiaries and this institute
does not have any complaint against them.
6) Names mentioned over and above the above
names are the offices and members of the earth quake affected
Bhjuj Bazaar Navnirman Charitable trust are fake beneficiaries
and by making false representations they have entered the
valuable government land situated in the area prohibited by the
army, besides, the affirmations and affidavits produced by them
are also misleading and this whole scandal ahs been raised
and implanted by the members and officers of the earth quake
affected Bhuj Bazaar Navnirman Charitable trust and in this
whole chapter misuse of government fund and subsidy of
crores of rupees of government has been shaped up.
7) On us coming up to know in this regard, we had informed the
head of police department vide our letter dated 30/05/2007 and
had informed him that as an offence is being committed
complaint shall be lodged by them but the District
Superintendent of Police had handed over the investigation of
our letter along with the documentary evidences enclosed
therewith to the Economy Cell and this Economy Cell had also
examined the evidences and has also found that in this case
prima facie an offence has been committed.
Further with reference to my letter the Economic cell had
carried out a detailed investigation and had submitted detailed
report to the Police Office, the P.S.I. of the Economic Cell who
had carried out the whole investigation in this regard as such
Shri S.J. Chudasama had informed us vide his letter dated
25/07/2007 that, in this case it seems at the end of the
investigation that in the report false certificates have been
issued and false signatures have also been placed hence,
further proceedings are liable to be carried out by his office or
by the Collector office and if his office will file a criminal
complaint to the police or before the Hounourable Court then
further proceedings can be carried out by the police, the said
letter is produced with a separate list it is humbly request to
take the same for kind consideration.
8) In this case as the then Collector is an accused, the police,
Collector and Deputy Collector etc. are not filing any complaint
agsint him as he is under government administration and are
also making excuses to file the complain hence, in this case the
damage has been directly caused to the government, and
because we the complainant institute are working for prevention
of crime and corruption this present complaint has been
produced herewith.
9) In this case necessary court fees stamp has been produced
on the complaint.
10) The Honourable court has the appropriate jurisdiction to
take the cognizance of the offence in this case.
11) It is therefore humbly requested that,
The accused of this case have being falsely and illegally
involved with each other with the help of each other had formed
a conspiracy and as a part thereof had implant fake
documentary evidences for valuable government land and had
obtained the same at a nominal price; inspite of the accused
not having fitness for being beneficiary as prescribed by the
government funds and for that had placed seals of the
government officers that does not have any existence at all
besides, in order to obtain advantage illegally had raised earth
quake affected Bhuj Navnirman Charitable Trust and had
produced false certificates before the government besides, by
producing false affidavits, affirmations and on the basis of the
misrepresentations before the government had obtained
subsidy from the government for obtaining the valuable
government land on nominal prices from the government and
thereby have illegally grabbed the government land. By
violating the terms and conditions places by the government for
obtaining such land the name of the accused no. 1 institute by
the accused no. 2 had for his personal interest and use utilized
the government funds and subsidy and all the members and
officers of the accused no. 2 under the name of accused no. 1
institute had by misusing crores of rupees of government,
according to circular dated 19/06/2001 of the Industries
department of the government, the businessmen whose
business place has been destructed during the earth quake and
is possessing certificate for damage under the G-5 category
such beneficiaries businessmen shall be given direct financial
assistance of Rs. 1,20,000/- through the District Industry center
and the same have been obtained by doing such kind of forgery
and act on the part of the accused no. 1 and accused no. 2
being illegal any kind of legal complaint have not been filed
against them or any legal steps have also not been taken
against them on the contrary the accused no. 4 had provided
them help, besides, there are very high possibilities that during
the investigation involvement of the other accused can also
emerged out hence, against all the above mentioned accused it
is our humble request to carry out investigation and file
complaint against the provisions of Sec. 200, 203, 217, 465,
466, 467, 468, 471, 472, 474, 475, 484 and 120-B of the Indian
Penal Code and to impose punishment upon them setting an
example in the society.
Date: Place: Bhuj-Kutch Sd/- illegible
Principal SecretaryAll India Anti Corruption & Crime
Prevention Council, Gujarat StateKutch Unit
IDENTIFIED BY MESd/- illegible
AdvocateDt: 20/02/2008
COPY FORWARDED WITH COMPLIMENTS TO
The Honourable Chief Judicial Magistrate, Court, Kutch-Bhuj
Sd/- illegibleD.Police Inspector,
Kutch- Bhuj
ANNEXURE P-4
FIRST INFORMATION REPORT OF COGNIZABLE OFFENCE(Under Section 154 of the code of criminal procedure)
Received dt. 01-04-2010 at 12-05 PM.
Sd/-Special JudgeKachchh-Bhuj
District Bhuj Po. Station CID Crime, Rajkot zone Po.Sta.
Year 2010
First Information No. 3/10Date 31-3-10
2 Act Sections
(1) Prevention of corruption sections
Sections 7,11,13(1) (b) and 13(2)
(2) Act 1988 sd/-Special JudgeKachchh-Bhuj
(3) Other Acts and Sections
(A) Date and time of commission of an offence
From dt. 2004 to 2009From hrs. to hrs.
(B) Offence declared (in Po.Sta.) Date 31-3-2010 Time 21-00 hrs.
(C) Stations Diary Entry(Registration No. 2010 Time 21-00 hrs.
(4) How the information was received
written
(5) Scien of offence (A) Distance and direction of scene of offence from Po.Sta
At a distance of 260 K.M. on North Bhuj Custom Collector office Bhuj (Kachchh) unit
Name of Beat No/O.P./Choaky
(B) Address
(C) Name of that Po.Sta. if offence is out of the Po.sta areaDistrcit?City
State
(6) Complainant/informant
(A) Name Shri V.M. Gohil, D.P.I. Jamnagar for Governemnt Investigation Cell, CID Crime
(B) Father’s/Husbands Name
C) Date of Birth/Year (D) Nationality
(E) Passport No..............Date of Please/address of office issuing passport...
(F) Occupation D.Po.Insp.
(G) Address CID Crime, Jamnagar, Investigatin Unit.
(7) Names, addresses full details of accused (Information with all details of identified/ suspect/unidentified accused)
1. Pradipkumar Narenkarnath Sharma2.
3.
(8) Reason of late receipt of information
Fact of crime was declared during investigation of Rajkot Zone M Case No. 1/08.
(9) If that is committed, description of the property stolen
(10) Total value of property stolen
(11) Accidental death No. (if any)
FIR page No. 2 of Rajkot Zone Po.sta. C.R.No. 29 2/10 u/s 7,
11, 13 (1)B, 13(2) of the prevention of corruption Act.
30Page No. 3
12. Details of First Information Dt. 31-3-2010
I, V.M. Gohil, Detective Police Inspector, CID Crime, Jamnagar,
Investigation Cell, Jamnagar.
The fact of my complaint for the government is such as in my
area of operation I ahve to do work relating to CID Crime within
the limits of the whole of District Jamnagar. Besides that the
head office of the CID crime is situated at Gandhinagar, the
work is to be carriedout as per legal orders that may be given
by high officials.
I have been making investigation of CID Crime Zone, Rajkot
Zone Police Station M Case No. 1/08 u/s 200, 203, 217, 465,
466, 467, 471, 468, 484, 406, 409, 120-B of I.P.C. and sections
7,11,13 of the prevention of corruption Act.
Shri A.H.Jadeja, D.Po.I, Bhuj, Investigation Cell was
investigation the said case previously, on his transfer to
investigation cell, additional charge of Bhuj was entrusted to
me, meanwhile, on 19/8/09, I had taken over the said
investigation from Shri A.H.Jadeja, meanwhile on 12-11-09
appointment of Shri N.C. Chauhan, D.Po. Ins. made was in
Investigation cell, Bhuj, but I am conversant with the said
investigation, therefore, it was ordered under the Additional
Director Generla of Police CID, Crime, and Railways Guj. State,
Gandhinagar to maintain this investigation.
Out of accused in the said case, Shri Pradipkumar Nirankarnath
Sharma, accused, who was performing duty a district collector
and District Magistrate, Bhuj when the offence took place. The
Government had granted land under Resolution dated 3-9-01 to
Nav Nirman Charitable Trust, Bhuj, for constructing wholesale
market, in which the government had made conditions, he and
other accused gathered together, in collusion with the President
and other trustees of the said Trust made scheme to violate
conditions and to grab government land and as per scheme, to
grab the Government land and to mark available illegal benefit
to this Trust, made phasewise illegal orders and took actions in
its interest, took actions against the interest of the Government,
allegations are of cheating.
During investigation of crime, evidence of such fact is found
that Shri Pradip Sharma was performing duty as a District
Collector and District Magistrate, Bhuj (Kachchh) in the year
2004 and 2005 and in this way he was a public servant, he was
taking care of charge of Administrative Officer of the whole of
Kachchh district and in this way, the geographical area of the
whole of Kachchh district was under his area of operation.
During the duty wellspun company which is situated in Varsha
Medi Village, Taluka Anjar, Dist. Kachchh, Bhuj, Shri Pradip
Sharma secured our mobile SIM card No. 99251 99799 from
Shri Asim Niranjanbhai Chakravati, Director, without making
payment of any type of money of consideration for his personal
use misusing his official position of his duty get paid all bills
about that totaling amount of Rs. 2,24,036/- by the wellspun
company and it is established that as a public servant he has
committed an offence of criminal misconduct. In that way in the
year 2005, Ratan Enterprise which is situated in Gandhidham
and it is a transport company procured mobile SIM card from
Shri Ranjitsinh Lakhtavarsinh Bhat, mobile SIM card Number
98240 01729 without making payment of consideration of any
kind or price, misusing his official position, used for his personal
work bill the year 2009, get paid the money of bill of utilization
amounting to Rs. 46, 554/- by Ratan Enterprise under his
jurisdiction, It is established that he has committed an offence
of serious criminal misconduct.
sd/- Signature of Po.Sta. Officer
//TRUE TYPED COPY//
ANNEXURE P-5
FIRST INFORMATION REPORT OF COGNIZABLE OFFENCE(Under section 154 of the code of criminal procedure)
1. Distrcit: Bhuj Po.Sta. CID Crime, Rajkot Zone, Rajkot Year
2010
First Information No. 9/10 at 25-9-10.
2. Act Section
1) I.P.C. Sections 217, 409, 465, 467, 468, 471, 120B,
2)
3)
4)
3. A) Date and time of commission of an offence
: from date to dt. 3-3-2004 from December 2004
to
B) Offence declared (in Po.sta.) date 24-9-2010 time :
23.00
C) Station Diary Entry (Registration) No......... Time
23.05
4. How the information was received written or oral.
5. Scene of offence. Distance and direction of scene of
offence Moje Varsamedi, Village Anjar and the office of the
District Collector, Bhuj. Name Beat number/O.P./chawky.
B) Address: Bhuj
C) Name of that Po.Sta.of Offence is out of that
Po.Sta. area. Disrcit, City State.
6. Complainant, informant:
A) Name: Smt. Parikshita V. Rathod, Deputy
Superintendent of Police, Gandhinagar Zone.
B) Name of father, husband: Vijaykumar Devantbhai
Rathod
C) Date of birth: year 22-2-19
D) Nationality: Indian
E) Passport No. Date of issue of passport.
Place/address of office issuing passport
Ahmedabad
F) Occupation: Deputy Superintendent of Police,
Gandhinagar
G) Address:
7. Full details of name, address of the accused.
(Information with all details of identified/suspect/
unidentified)
1) Pradipkumar Nirankarnath, I.A.S. the then Collector,
Bhuj,
2) The Then Town Planner, Bhuj.
8) Reason of giving the information late.
9) If theft is committed, full description of the property
stolen.
10) Total value of the stolen property
11) Accidental death number (if any)
12) Details of First Information
Date 25-9-2010
I, Smt. Parikshita V. Rathod, Deputy Superintendent of Police,
D. Crime, Gandhinagar zone, age: 41 years residing at D/27
Government Colony, Vastrapur, Gurukul.
My complaint for government is this that I have been
discharging duty as a Deputy Superintendent of Police, C.I.D.
Crime Branch, Gandhinagar since 26-2-2008. In my area of
operation of Gandhinagar zone there are investigation cells
C.I.D. crime of Mahesana, Patan, Palanpur and Sabarkantha.
Districts. I have to exercise supervision of these cells. Besides
this, I have to make investigation of crimes that may be
entrusted to me by the D.G.P., C.I.D. crime and Railways,
Gujarat State, Gandhinagar and the preliminary inquiry and
also includes legal functions that may be entrusted as per order
of the superior officer.
On the basis of the Home Department order no.
V.1/PRCH/102010/16 dated 16-8-10 the hon’ble D..P., CID
crime had entrusted preliminary inquiry to me on 4-9-2010. The
inquiry report thereof was sent to the Deputy Director General
of Police Cr. 2 CID crime under this office letter No.
Ga/zone/Ja-No.719/10 dated 23-9-2010. On the strength of that
the ADGP, Crime has, under his letter No. TRB/PT 13-10-749
dated 25-9-10, authorised me to tile complaint.
Shri Pradipkumar Nirankarnath Sharma, I.A.S. was performing
duty as the Collector and District Magistrate, Bhuj from 2-5-03
to 3-7-2006 and during the tenure of his duty applications were
made by 1) M/.s Welspun India Ltd., 2) M/s. Welspun Power
and Steel Ltd.,. M/s. Welspun Gujarat Style Rohran Co.Ltd., for
establishment of their textile industry at Varsamedi village of
Taluka Anjar, District Bhuj for allotment of lands of survey Nos.
890, 652, 692, 665, 667, 670, 671, 668, 680, 684, etc. for
industrial purpose. In pursuance thereof meetings of the Bhuj
District Land Valuation Committee was held on dt. 19-5-2003,
dt. 20-7-2003, dt. 10-8-2004, dt. 10-8-2004, 1-10-2004 and 21-
12-2004 under the chairmanship of Shri Sharma, Collector. As
members of that committee the Distrcit Development Officer,
Bhuj, the Town Planning Officr, Bhuj and a member secretary
the Resident Deputy Collector, Bhuj remained present of that
on the agenda sr. no. 54 of the Distrcit Valuation Committee
held on 20-7-04, the land admeasuring 20,234 sq. mtrs. of
s.No.890 of Varsamedi village of Taluka Anjar, was allotted to
Welspun India Co. Ltd. Thus, only one application of Welspun
India Co.Ltd. was included in the agenda dated 20-7-04 after
determing price, were as on inspecting the orders of allotment
of made by the office of the Collector, Bhuj for alloting lands at
at Varsamedi village of Taluka Anjar, for industrial purpose to
M/s. Welspun India Co.Ltd. and M/s. Welspun Power and Steel
Ltd. and Welspun Style and Rohran Ltd. It is found that total 9
orders were made in the meeting of the District Land Valuation
Committee dated 30-7-2004, which are of 20234 sq. mtr. out of
survey no. 890, 2) 20234 sq, mtrs. out of s. No. 890 4) 234
sq. mtrs. out of s. No. 880 5) 12141 sq. mtrs. out of s. No. 652
6) 20234 sq. mtrs. of land out of s. No. 692 respectively. Thus,
approval was accorded to the application in the agenda
(minitues) of the District Land Valuation Committee held on 20-
7-04, whereas, in total order of land allotted to various branches
of Welspun company for industrial purpose there was mention
of the District Land Valuation Committee, in order to obviate
that discrepancy, on seeing the agenda file of the meeting of
the District Land Valuation Committee held on 20-7-2004,
which is prepared by the Town Planner. On ante page of serial
number 53, only one application of Welspun India Company
Ltd. for total 20234 sq. mtrs. of land of s.no. 890 of Varsamedi
is included, wereas on overleaf on serial no. 53, total; 2
applications of 20234 sq. mtrs. of s.no. 890 of village
Varsamedi are included and proposal of Rs. 15/- is sanctioned
by the Collector. In fact, in point No. 1(B) of the Government
Resolution, Revenue Department, No. JMN-392009/kth/M
dated 6-6-2003, Sachivalaya, Gandhinagar, limit of 2 hectares,
15 lakh is prescribed for the Collector for allotment for industrial
purpose. 2 heactares means 20000 sq. mtrs. According to the
provision of the abovesaid resolution as the allotment of land
more than two hectores is beyound the powers of the Collector,
he should send proposal to the Government for determining its
price, instead, he determined the price of Rs. 15/- per sq. mtr.
in the District Land Valuation Committee and made allotment
orders of land at district level. On the basis of the statement of
Shri Kodarbhai Shanabhai Prajapati, Section Officer, Revenue
Department it has become clear that where one applicant had
made application, after process of the price etc. of land final
orders of allotment of land to him are made, and meanwhile,
when the same applicant makes demand for any land for new
additional land for the same purpose, action has to be taken
connecting both the matters. And on doing so, the case in
which the are of land exceeds 2 hectors (20000 sq. mtrs) as
well as the price of the land exceeds Rs. 15 lakh, in such case
also, the Collector has to send the proposal to the government
and when the government takes the decision of allotment of
that land government has to allot that land. First, in the agenda
of the District Land Valuation Committee held on 20-7-2004
disposed of one application of allotment of land admeasuring
20234 bearing s.no. 890, whereas in the agenda fild of the
Deputy Twon Planner on sr. no. 53, he, has determind price of
Rs. 15/- per sq. mtr. in total 4 applications of 20234 sq.mtrs. of
s.no. 89 and accorded approval to allotment of land. In fact, all
the four applications are beyound his powers, it was necessary
for him to send for sanction of the government. If this
applications had been send to the government, because of
proper fixation of price by the government, government would
not have suffered economic loss. Therefore, in the agenda file
of the Town dated 20-7-2004, disposing total 4 applications
each of 2034 sq. mtrs. showing only one applicationof 20234
sq. mtrs. of s.no. 890 in minutes of the District Land Valuation
Committee, criminal intention of the Collector to help illegally to
Welspun Company becomes clear.
Moreover, out of 12 orders, made by him for allotment of lands
to Welspun Company, orders at sr. no.s 5 to 8 are shown in the
District Land Valuation Committee dated 20-7-2004 and the
procedure of payment of the amount prescribed is stated on the
basis of letter dated 21-9-2004 by the company for that In fact,
in the agenda of the District Land Valuation Committee dated 1-
10-04, prices of applications of abovesaid serial numbers 5 to 8
have been fixed. Thereupon, instead of initiating process to be
carried out with regard to payment after 1-10-2004 by the
company, initiated from 21-9-2004, made bogus documents,
showed mollified intention of giving economic benefit to
Welspun company.
The District Collector had made proposal to the government on
13-8-2004 on the basis no. Land/51/udyog/ws/1400/04 on total
12 applications of Welspun company for getting total 242808
sq. mtrs. of s.no. 890, but showing information regarding the
orders of land sanctioned in 1) sr. No. 1222/04 dated 10-8-04,
2) 1223/04 dated 13-8-04 respectively by him prior to that,
supressing the fact of the order made by him in the proposal
sent for determining the price of the land allotted to Welspun
company on 13-8-04, not bringing to the notice of the
government he has indulged in criminal act. In the proposal
sent to the government, the government had fixed price of land
at Rs. 78 per sq. mtr. on the basis of Govt. Resolution Revenue
Department No. JMN/Ihdustries/56040/837/M dated 6-8-05.
Shri Pradipkumar Sharma, the then Collector, Bhuj had
misused his office during his duty made orders of allotment of
lands of different numbers shown in the statement produced by
Mahendrasinh Fatesinh Sodha, Officer of Welspun company in
the case of preliminary inquiry, which were beyound the limits of
his powers, however, going against the policy and rules, in total
11 cases, not sending proposal to the government which was
required to be sent and without taking sanction of the
government, gave to the private company, calculating price of
Rs. 15/- instead of Rs. 78/- per sq. mtrs. causing monetary loss
approximately of total Rs. 1,04,61,622/- stamp duty of Rs.
15,69,240/- in all Rs. 1,20,30,842/- and intentionally committed
criminal breach of trust.
In order to make economic gain available to Welspun company,
Pradip Sharma, Collector, had secured mobile card No. 99257
99799 in 2004 from the company without paying any
consideration, used for his personal work got the bill of total Rs.
224036 upto 2009 paid by the company, misused his poer and
secured economic gain. As regards this crime is registered with
Rajkot zone police station I.C.R. No. 9/10 under sections 7, 11,
13(1)(B), 13(2) of the prevention of corruption Act. His intention
hereby becomes clear to provide monetary benefit to the
company securing economic gain from the Welspun company.
Thus, the Welspun company had to pay more money to the
government as per law, Pradipkumar Sharma, Collector, saved
the company and in collusion with the then Town Planner, Bhuj
and the government officer (employee) hatched criminal
conspiracy, made bogus documents for company beyound his
powers, caused loss of about Rs. 1,20,30,842 to the
government, committed criminal breach of trust in respect of
property entrusted to him by the government, my complaint is to
conduct inquiry against him as per law u/s 267, 409, 465, 468,
471, 120-B of I.P.C.
My witnesses are Prajapati, Sodha who were examined in the
aforesaid inquiry and that may be found during investigation.
This is the fact of my complaint.
sd/-illegible
Parikshita V. Rathod
Before mesd/- Parikshita V. RathodDeputy Superintendent of Police,C.I.D. Crime, Gandhiangar,Gandhinagar.
Copy forwarded toThe hon’ble Judicial Magistrate,Bhuj Court, Bhuj
sd/- H.P. AgravatDy. Suptd. of Police,
C.I.D., Crime,Rajkot Zone,
Rajkot
13) Details of process after the crime is registered
A) Registered crime and investigation commenced.
B) Investigation entrusted to H.P.Agravat, designation “B”
No. Dy. Suptd. of Police.
C) Reasons of non-investigation of crime.
D) Name of Po.Sta. to which investigation of crime is
transferred
District City
on reading over the complaint of the complainant, having
understood signed and received copy free of charge.
Signature/thumb impression of the sd/- illegible complainant.
14) Signature/thumb impression of informant
sd/- illegibleSignature of Po.Sta. Official
Name: H.P. AgravatDesignation: Dy. Suptd. of Police,
C.I.D. Crime,Rajkot
15) Date of the respective honourable court:
dated 25-9-10 time 23.00 hrs.
Jawak No. 579/2010
Office of the Dy. Suptd. of Police, C.I.D. Crime, Rajkot zone,
Dt. 25-9-2010
//TRUE TYPED COPY//
ANNEXURE P-6
From:Pradip N. Sharma,Plot No. 465/A-2,Sector – 1,Gandhinagar – 15.
Date 11-12-2010.ToShri K. P. Gajipara,Deputy Superintendent of Police andInvestigation Officer C.I.D. Crime,Rajkot.
Sub: Inclusion of Shri Narendra Modi, Chief Minister, Gujarat State,
also as an accused in the crime as per C.I.D. Crime Rajkot
Zone-I Cr. No.9/10 u/s 217, 409, 465, 467, 468, 471, 120-B of
IPC.
I have come to know from reliable sources that the crime shown
in the above subject is registered against me.
This crime is registered against me with false facts and malice.
The explanation of that is as under:
1) This crime is registered against me by malice for simple and
straight procedure of the Revenue Department.
2) Generally, for alleged malpractices relating to the Revenue
Department, on getting preliminary inquiry through any officer of
the Revenue Department, Mamlatdar or the Deputy Collector of
this department, if criminal fact is found for getting criminal
proceeding initiated, the preliminary inquiry officer of the
Revenue Department gets complaint filed. In this case.
Parikshita Rathod of CID Crime has given complaint, which is
an action contrary to rule.
3) As per F.I.R. admission of Parikshita Rathod this offence has
taken place in Kachchh district, however, preliminary inquiry
was entrusted for the offence occurred outside of her area of
operation. And she has raised the question that the work of
getting F.I.R. registered was entrusted to her and she has
expressed suspicion as to whether offence has taken place in
this case or not?
4) Parikshita Rathod says that such type of inquiry regarding
revenue procedure is completed within a short duration of
5(five) weeks, which manifests unnecessary haste and malice.
5) As directed mandatorily in Sr.No.5 of Appendix-B of chapter-1
of the CID crime manual it is inevitable to take statement of the
accused. In this case, my statement is not recorded. And efforts
are not made to know true facts and false F.I.R. is registered.
6) There is an allegation in F.I.R. that I had got made applications
through Welspun Company for enquiring land for organization
of my private textile business. But there is no mention or any
clarification in remaining paras of F.I.R.
7) As an Investigation Officer you may see that as per para 1(B) of
the Government Resolution, Revenue Department, dated 6-6-
2003 that the Collector has power to given any party even
without public auction, the land up to 2 hectors if the value is
not above Rs. 15,00,000/-.
8) In this case all conditions of the aforesaid resolution are
observed. The Government has also given the land
admeasuring 48 acres to this company i.e. Welspun. It is
requested to see as to whether the land granted by this
Government is as per rules?
9) During preliminary inquiry, Parikshita Rathod recorded
statement of Kodarbhai Shantibhai Prajapati, Section Officer
and considered this statement the order of the Government.
And it is not taken on record that as to whether any
Government Resolution supports his statement. Collector has
power to grant 2 hectors of land and 2 hectors are considered 5
hectors in F.I.R. conversion of 1 acre is 4047 sq.mtrs. and in
this way conversion of 5 acres is 0.235 sq.mtrs. without seeing
the table generally being used in the Revenue Department, the
Police Officer giving F.I.R. adhered hector based yard stick.
The word hector is used w.e.f. 1998 in Government Resolution.
Prior to that acre was being used and in Kachchh district the
table which is available as per old practice, in that I hector is
considered equal to 5 acres. Allotment of land is made as per
acre. It is good, if 20,000 sq. mtrs. are now considered fro 2
hectors, but as per Kachchh district method, land is considered
five acres, which becomes 20,235 sq.mtrs. asper metric
systems. I have not done any criminal proceeding, but I have
done work as per practice, as per method which has been in
vagne. As per metric system. I hector is equal to 10 thousand
sq.mtrs. and 1 acre equal to 4747 sq.mtrs. is the measurement
in metric system, because of that wrong meaning of so called
discrepancies is construed and complaint is filed.
10) As mentioned in F.I.R. for land allotment in district. District
land Valuation Committee was constituted in which Collector,
District Development Officer and Town Planner were members,
whereas the Resident Deputy Collector was member secretary.
In this F.I.R. my name and designation are shown as an
accused whereas names of the District Development Officer
and the Resident Deputy Collector are intentionally not written,
whereas only the designation of the Town Planner is shown as
an accused. This kind of method of writing F.I.R. shows
prejudice towards me.
11) As per condition 5 of the above said Resolution the
responsibility of determining the price of land is of the Town
Planner. Drawing attention towards para-25 of this Resolution I
say that as per condition-8 the District Valuation Committee has
to depend only on the opinion of the Town Planner, therefore,
no responsibility can be fixed individually on the Collector.
12) In this case, the District Valuation Committee had fixed
the rate at Rs. 15 (Fifteen), whereas as shown in F.I.R. as per
Resolution of Revenue Department dated 6-8-2005, the rate of
land is shown at Rs.78/- (seventy eight). It is shown in F.I.R.
that the District Valuation Committee was held on 20-4-2004.
How the Government Resolution dated 6-8-2006 can be made
applicable to the District Valuation Committee dated 20-7-2004
in this way? In this way, grave serious mistake has been
committed in F.I.R. During this time I have time and again
shown the rate of Rs. 15/- in the Government. But no
interference was made by the Government. Had the
Government found these rate less at the relevant time, it could
have made interference as per section 211 of the Land
Revenue Code.
13) I have to further state that generally as per price
determined by every District Land Valuation Committee, Orders
regarding land allotted by the Collector are placed before the
Government and such orders are sanctioned by the
Government or changes are effected if required, but the
decisions to file criminal complaint were never taken. I hope
that as Investigation Officer, you would inquire such
precedents. Therefore, you could know that in my case, this
F.I.R. is registered exceptionally. In my case, the CID Crime
inspected such types of files made interpretation capriciously as
per their will, though it does not amount offence, the fact of this
allotment of land is given criminal form. Against me, it is alleged
in this F.I.R. that the orders of allotment of land dated 10-8-
2004 and 13-8-2004 are not intimated to the Government and
committed criminal offence. The complainant of this case is
not conversant with the procedure of the Revenue Department.
In such case, the Collector directly does not write letters to the
Revenue Department, but the subordinate in officers perform
duties. In whole of India any Collector does not prepare drafts
of the letter of such type alleged in F.I.R.
14) In this F.I.R. it is mentioned that Rajkot Zone, CID Crime
C.R.No.3/2010 which is registered under the Prevention of
Corruption Act. As per allegation leveled therein that someone
gives SIM Card only to the District Collector so, the allotment of
land is made to such party giving SIM Card. Is that idea
understandable? As mentioned in the above said F.I.R.
09/2010 in Rajkot Zone, F.I.R. No.3/2010 it is shown that due to
receipt of SIM Card by me, this disputed land is allotted. In
F.I.R. 03/2010 which is registered on 31-3-2010, motive of this
offence is not shown therein thus, fact of both the F.I.R.
interlinks each other and though they are of same duration and
of the same place, yet F.I.R. is registered with malice to
implicate me wrongfully. In fact, obviating intentionally to show
the fact of F.I.R. 09/2010 in F.I.R. 03/2010, separate crime is
registered.
15) F.I.R. 09/2010 that is to say in F.I.R. sections of making
forged documents and their use are applied whereas in detail of
F.I.R. there is no clarification or mention as to which document
is forged, in which manner or used. Besides these sections
other sections are applied to increase gravity of fact.
16) After horrible earthquake of the year 2000, my
appointment was made as a District Collector, Kachchh. In
which industrial units were to be welcomed with the main goal
of reconstruction and rehabilitation of the district. The project of
Welspun Group was of Rupees Eight thousand Crores and on
commencement of this project in Kachchh district soon the
prices of land increased very much, when land was given to
Welspun in 2004, the rate of that was Rs. 15/- and after one
year become Rs. 78/-.
17) Points behind inclusion of the Chief Minister Shri
Narendra Modi as an accused in conspiracy.
i) When Shri Narendra Modi and Shri B. K. Goyenka owner
of Welspun Company were going to Singapore in a
Private Chartered Flight, the Chief Minister gave
invitation to Shri B. K. Goyenka for establishment of
industry in Kachchh and gave undertaking that all
possible assistance would be given.
ii) Shri B. K. Goyenka had spoken the above said fact, in
public on dais is at the time of inauguration of Welspan
Company and expressed thank of the Chief Minister, Shri
Narendra Modi was also present in this inaugural
ceremony.
iii) The State Government also has allotted 48 acres of land
to Welspun Company. You are well aware that big
industrialists have direct intimacy with the Chief Minister,
Narendra Modi. During foreign tours he goes
accompanied with him in chartered plane. If one thinks
with ordinary intelligence, it will become clear that what
kind of instructions might have been given by him for
mobilizing such industries?
As per Indian Evidence Act this is one of the related facts which
can be accepted.
iv) It becomes legally necessary to take note that the Chief
Minister attends, in presence of the owner of that
company for which crime is registered with regard to grant
of land to Welspun Company.
v) During the process of allotment of land, the Chief Minister
would time and again give instructions through Video
Conference to complete the work of granting land to
Welspun Company. Particularly, in January, 2005, he had
given instruction that it was necessary to complete all
work before Vibrant Gujarat Global Summit.
vi) Pressure was put by the office of the Chief Minister as well
as from the Revenue Department with the object that
Welspun Company may get land speedily. Shri Mukesh
Modi under Secretary, Revenue Department many times
phoned me and the R.D.C. and inquired also about this
matter. Barring the above said weekly reports and reports
from time to time were called for from our Collectorate,
Kachchh such as show much land is given to Welspun
Company? What progress is made therein?
vii) In 2005, the Chief Minister had organized Sharatultsav in
Kachchh district. As per instruction of Shri Modi, during my
tenure, the company had first deposited a cheque of Rs.
50.00 lakh with the Colletorate for celebration of Kachchh
Sharad Utsav. Thereafter, for the arrangement to be made
as per expectation of the Chief Minister as this amount fell
short for expenditure, another cheque of Rs. 25.00 was
given by them. As per my memory, this cheque was given
in the name of any Trust I was present with the Chief
Minister at the time of Sharadultsav and I had apprised
him about the cheque given by Welspan Company. I know
that even after transfer from Kachchh district next year
that is to say in 2006, when Sharad Utsav was celebrated,
in the time of my successor, the Welspun Company had
given a cheque of Rs. 35.00 lakhs to the Collectorate as
per the demand of Shri Narendra Modi.
Because of the aforesaid reasons it will be clear to you
that during my tenure and thereafter the Chief Minister
has, though he is a public servant, not only took interest
personally for granting land to Welspun Company, but
also he accepted money by cheque for spending for his
work. The personal motive Shri Modi for doing this was to
get advantage by individual and political publicity. I believe
that you have applied section 120B in F.I.R. taking that
into account the main accused and wire-puller is Shri
Narendra Modi.
In order to be helpful in investigation by you, I am ready to
bear witness as per section 164 of the Cr. P.C. on the
above said fact. I will give detailed information at that time.
I firmly believe that in this case, as shown above, though
there was much pressure by the Chief Minister, I have
done work as per rules and law. The matters on which you
have registered crime, if you inquire in any district of
Gujarat, lands are granted to industrialist for such
purpose. I reiterate that the responsibility of fixing price
was solely of the town planner, which becomes clear from
para 10 and 25 of the Resolution dated 6-6-2003.
However, deciding this work as criminal one sections of
Indian Penal Code are applied against me. According to
that the main culprit is Shri Narendra Modi and it is your
duty to take legal actions against him.
viii) As stated in Rule 137, Part III of the Gujarat Police Manual
the Police inquiry should be always impartial and the
investigation officer has to make all out possible efforts to
find out truth evidence which is shown as an accused has
to be taken into account carefully and decision has not to
be taken with unnecessary haste on any point.
I hope that as an Investigation Officer, you will make impartial
investigation taking my above said submission into account.
(Pradip Sharma)
Copy forwarded w/c:
1) The Director, Anti-Corruption Bureau, Shahibaug, Dafnala,
Ahmedabad.
As per provision of the theory laid down by the Hon’ble
Supreme Court in case of Shri Abdul Raheman Antule, former
Chief Minister of Maharashtra, 1992-SCC-225 and other
judgments on the same case along-with that, though Shri Modi
is a public servant, it is requested to conduct preliminary inquiry
in respect of malpractice committed by him.
2) The Additional Director General of Police, C.I.D. Crime, Police
Bhavan, Gandhinagar.
//TRUE COPY//
ANNEXURE P-7
PRADEEP SHARMA, IASPlot 465 A/2, Sector 1Gandhinagar, Gujarat
19.1.2011To
Shri A K Joti, IAS,Chief Secretary,Govt. of Gujarat,SchivalayaGandhinagar, Gujarat.
Sub: Request to transfer Investigation to CBI to Prevent Grave Bias
in Rajkot Zone CID(Crime) CR No. 9 of 2010.
Sir,
I am writing to register an urgent request for transferring
to the Central Bureau of Investigation (CBI) the ongoing
criminal investigation against me, to prevent what has by now
been undoubtedly a prolonged exercise of wanton persecuton
by the highest political leadership, i.e., Mr. Narendra Modi, the
current Chief Minister (CM) of the state of Gujarat. The
following facts may help you understand my claim as to why the
CM would continue to jeopardize due process, as he has over
the past one year, in order to inflict grave damage to both my
professional career and my fundamental rights. It may also
shed light on reasons why the criminal case was framed
against me in the first place.
You are aware that I was arrested on 6.1.2000 in
connection with M Case No. 1/2008. Despite being a senior IAS
Officer, having served as the District Magistrate of two districts
in the past, I was summarily arrested from my official residence
in Bhavnagar at 05.30 hours in the early morning, in a manner
of surprise, without any prior intimation of cause or explanation
and without affording me a single opportunity to convey my
defense in the matter.
The Government opposed my bail plea in the Sessions
Court, the Hon. High Court and the Hon. Supreme Court. In the
Hon. High Court, the state Advocate General and the Additional
Advocate General appeared for the State and in the Hon.
Supreme Court, a senior Supreme Court advocate charging
hefty legal fees was engaged by the state Government to
oppose my bail. My bail pleas were denied repeatedly by the
courts within the state system over an extended period of eight
months. Such was the intensity of personal interest taken by
the CM, abusing the powers entrusted to him in his official
capacity. Finally, however, the Hon. Supreme Court of India
was pleased to allow my Special Leave Petition in the said case
on 6.9.2010.
Also as you are aware, the initial case has since been
unbundled into an ongoing series of individual cases and arrest
warrants. While I was in judicial custody, in violation of all legal
norms and judicial propriety, a second case was filed against
me under the Prevention of Corruption Act. This pertains to use
of mobile phone SIM cards allegedly given to me. On this
matter, I am before the Hon. High Court and the Ho. Supreme
Court.
While the intention of keeping me behind bards
indefinitely, undoubtedly at the behest of the CM for reasons
given in the succeeding paragraph/s, the State CID(Crine) has
imposed a third case, on 25.9.2010, that being Rajkot Zone
CID(Crime) CR No. 9 of 2010 and pertaining to land allotment
to the Welspun Group of companies within the SEZ in Kachchh
in my capacity as the Collector and District Magistrate at the
time. I have since addressed a communication to the
Investigating Officer, Dy. S.P. Shri K.P. Gajipara, placing on
record facts about two cheques worth Rs. 50.00 lakhs and Rs.
25.00 lakhs from the same Welspun Group, given for use
toward the Shared Utsav organized in 2005 in Kachchh at the
behest of and for personal and political gain of the CM. The
letter goes on to mention that, even after I was transferred out
of Kachchh district, sum of Rs. 35.00 lakhs from Welspun was
received by my successor in office, Shri Dhananjay Dwivedi
towards the same cause the following year. Thus, Welspun was
a major donor toward the CM’s political propaganda at the time
and has remained so over the years. While these checks were
received initially in the Kachchh Collector Office, a Kachchh
Sharad Utsav Trust was set up; through the medium of this
Trust, the CM accepted pecuniary befits for his own personal,
political advantages. I am enclosing a copy fo the said letter for
your ready reference. A plain reading of the enclosed letter will
reveal to you that no offence has been committed by me and
yet an FIR has been lodged specifically against me in this
matter although, in light of the facts mentioned in the enclosed
letter, it should be the CM who should be tried as the Chief
conspirator and the main accused.
In the representations that I have made before various
judicial forms and in the petitions filed before the Hon. High
Court and the Hon. Supreme Court, I have given plausible
explanations for the grievous persecuation by the state
authorities, but have refrained from divulging one important
reason for the Chief Minister’s desperate attempts to keep me
behind bars. The cause of the Chief Minister’s malicious and
vindictive actions against me stem from his special interest in a
woman and that I had stumbled upon certain facts about his
relationship with her. With the objective of not washing dirty
linen in public and as an aspect of civilized behavior, keeping in
mind a lady’s reputation and the sanctity of high offices, I have
refrained from mentioning any detail about this sordid episode
in any of my petitions and kept it out of the public domain.
However, if you so desire, I can convey the details to an
appropriate statutory authority, provided a formal inquiry is
ordered in this regard and provided further that such statutory
authority is not constituted or controlled by the State
Government, it will now b e clear to you that the arrival of police
at my residence at 05.30 hours in the morning on 6.1.2000 was
with the intention of seizing laptop, computers and mobile
phones not only those belonging to me but also of the staff
available at the bungalow. I believe that the motivation behind
and the execution of the arrest are consistent with confirming
the fears of Shri Narendra Modi that I may be in possession of
incriminating evidence against the Chief Minister. My arrest was
a manifestation of Mr. Narender Modi’s personal and political
agenda.
In view of the above, no policy agency in the state og
Gujarat will investigate the above-mentioned offence registered
against me in a fair and free manner. It is therefore requested
that the offence registered against me vide Rajkot Zone
CID(CRIME) CR No. 9/2010 be transferred without delay to the
Central Bureau of Investigation (CBI) for further investigation.
In view of the grave bias on the part of the CM and inv
ie3w of the specific allegation contained in my enclosed letter to
the Investigating Officer and having regard to his questionable
relationship with a certain woman referred to above, it is
requested that this matter may not be placed before the Chief
Minister or any member of his Council of Ministers, but may be
put up to any other Constitutional authority for orders.
Thanking you,
Yours sincerely,
Sd/-
(Pradeep Sharma, IAS)
Encl: Copy of Letter dated 11.12.2010 to Dy. S.P. Shri K.P.
Gajipara
Copy with compliments to:
1. Director General of Police, Gujarat State, Police Bhavan,
Gandhinagar
2. The additional Director General of Police, CID(Crime),
Gujarat State, Police Bhavan, Gandhinagar.
//TRUE TYPED COPY//
ANNEXURE P-8
FIRST INFORMATION REPORT OF THE COGNIZABLE OFFENCE
(under section 154 of the code of criminal procedure)
1. District Po.Station Year: 2011 First Information No. 1/11
Bhuj CID crime date: 22/02/2011
Rajkot
2 Act Sections
(1) IPC Sections 217, 409, 120-B
(2) ...... ..............
(3) ..... ..............
(4) Other Acts and sections
3 (A) Date and time of From date 21/01/2004 to date April, 2005
commission of an offence from hrs. to hrs.
(B) Offence declared (in Po.sta.) Date 22/02/2011 Time: 23/00
(C) Station Diary Entry
(Registration) No. 2 Time: 23/05
4. How the information was
received: written or oral : complaint is received in writing
in person.
5. Scene of offence : (A) Distance and direction of
scene of offence from Po.sta. Moje Samaghogha, Tal. Mundra
and office of the District Collector, Bhuj (Kachchh)
Name of Beat Number/O.Po./chawky
(B) Address
(C) Name of that po.sta. if offence is out of .............
that po.sta. District/city ....................... State ...........
6. Complainant/Informant: Investigation cell, Bhavnagar
(A) Name: K.M. Raval, Detective Police Inspector, CID
crime
(B) Name of father: Dr. Markandray Bhalchandra Raval
(C) Date of birth/year17/07/1974 (D) Nationality: India
(E) Passport number........... Date of Issue of
passport Place/address of office issuing passport ...............
(F) Occupation: Detective Police Inspector
(G) Address: Plot No. 773/B, “Triveni”, In Khancha of Dr. Nilu
Vaishnav, Tilaknagar, Bhavnagar
7. Name, address, full details of accused/information with all
details of indentified/suspect/unidentified accused)
1. Shri Pradipkumar Nirankarnath Sharma, IAS, the then
Collector, Kachchh-Bhuj.
2. The then Town Planner, Kachchh-Bhuj etc.
8. Reason of giving information late
9. If theft is committed full description of the property
stolen......................................................................
10. Total value of the property stolen
11. Accidental death number (if any).
Date 22/02/2011
I, K.M. Raval, Detective Police Inspector, CID Crime,
Investigation Cell, Bhavnagar, age: 36 years residence Plot No.
773/B, “Triveni”, In Khancha of Dr. Nilu Vaishnav, Tilaknagar,
Bhavnagar, Mobile No. 9714146000.
The fact of my complaint for the government is such as I have
been performing duty from 22/9/2010 as a Detective Police
Inspector, CID Crime, Investigation Cell, Bhavnagar, duties of
my function includes investigations of crimes and preliminary
investigations/investigation of application that may be entrusted
to me by the A.D.G.P. C.I.D. Crime and Railways, Gujarat
State, Gandhinagar and legal work that may be entrusted as
per orders of the superior officers.
On the strength of the Government order, Home Department
No. V-i/KSV/ 102010/11811 dated 4-9-10 and under his office
letter No. Te-2B/pra.t./ja-No.767/10 dated 29-9-2010, the
hon’ble A.D.G.P. C.I.D. Crime and Railways, Gujarat State, had
entrusted investigation of preliminary inquiry No. 15/2010. On
the basis of this preliminary report under Government letter,
Home Department No. V-i/KAV/ 102010/11811 dated
22/2/2011, the Adal. D.G.P. C.I.D. crime and Railways, Gujarat
state, Gandhinagar has authorised me to file this complaint
under his letter No. Te.2/B/Inqu/108/2011 dated 22/2/2011.
Shri Pradipkumar Nirankarnath Sharma, IAS, had been
performing duty from 2/05/2003 to dt. 3/6/2006 as a Collector
and District Magistrate Kachchh-Bhuj. During his tenure of duty
applications were made by Shri SOW pipes Limited company to
allot lands abutting survey Nos. 336/3, 336/2, 326, 300, 301
and 377/294/3 etc. as well as waste lands at moje
Samaghogha, Taluka Mundra, Distt. Kachchh-Bhuj, for
industrial purpose. In persuance thereof the meeting of the
District level district land valuation committee of Kachchh-Bhuj
was held on 5/3/2004 under the chairmanship of Shri Pradip
Sharma, Collector, the Deputy Resident Collector was as a
member secretary of the committee and Shri N.M. Desai, Town
Planner remained present as a member. In the agenda of the
said District Land Valuation Committee held on 5/3/2004, total
33 chapters were included. In which from Sr. Nos. 11 to 14, out
of survey nos. (1) 336/3 (2) 336/2 (3) out of 326 (4) out of
tra.No. 326 (out of road) of moje Samaghogha Tal. Mundra total
4 chapters of lands demanded by sow pipes limited company
were taken on agenda, price of total 46,098 sq. mtrs. of lands
was determined. At the relevant time, on clarification that
instead of 7855 sq. mtrs. out of S.No. 326 mentioned in the
abovesaid Sr. No. 4 it was the land of 8,930 sq. mtrs. out of
Tra. s. No. 369, order was made accordingly, and in this way,
the price of total 47,173 sq. mtrs. of lands was determined in
the District Valuation Committee dated 5/3/04 and total 4
separate orders relating to this were made for allotment of
government waste land and to the Sow Pipes Limited company
and allotment orders of lands out of road were made. On
studying the certified files of original chapters of these orders
during preliminary inquiry, it was found that in the application dt.
21/1/2004 for demand of land, demand of land of total 6
government survey numbers was made by Shri Sow Pipes
Limited, applicant. Getting three photo copies of that application
made, making three chapters, keeping one copy each in all the
three chapters, showing different in word numbers on the same
day that is to say on 23/1/2004 making different orders for
3,854 sq. mtrs. out of survey Nos. 336/3, 13,860 sq. mtrs. out of
survey No. 336/2, 20538 sq. mtrs. out of survey no. 326, thus in
total three cases, made different orders on the same day i.e. on
25/3/04, total 38,243 sq. mtrs. of land was allotted by Shri
Pradipkumar Sharma, the then Collector, to Shri Sow Pipes
Limited.
Looking to the orders made to Shri Sow Pipes company out of
survey no. 369, the application dated 22/1/2004 of the
company, is found to have been presented also in the District
Land Valuation Committee on the same date 5/3/04. In the
case of allotment of land for industrial purpose as directed
under Government Resolution, Revenue Department,
Resolution No. JMN/392-003/454/A dated 6-6-03, the limit of
the power of the Collector is two hectares upto market price of
Rupees 15 lakh for allotment of land for industrial purpose.
Thus presenting as different chapters in the District Land
Valuation Committee dated 5/3/04, the proposal of demand of
waste land by Shri Sow Pipes Limited company overriding the
limit of power delegated under Government Resolution,
Revenue Department, Resolution No. JMN/392-003/454/A
dated 6-6-03,alloted total 47,103 sq. mtrs. of land to Shri Sow
Pipes Limited company, not sending these proposals to the
Government for approval, it is found that Shri Pradipkumar
Sharma, the then Collector, caused economic loss to the
Government, committed criminal breach of trust in respect of
property entrusted to him.
During preliminary inquiry it is found that in the said chapters
the opinion showing consent of the commissioner of
Industries/Industry officer was not secured as per condition
specified in the Government Resolution, No. JMN/392-
003/454/A dated 6-6-03.
Shri N.M. Desai, the then Town Planner had presented, in the
District Land Valuation Committee dated 5-3-04, the valuation
report of survey numbers demanded by the applicant in the said
chapter. In which it is found during preliminary inquiry that
process was not carried out as per procedure or guide lines for
valuation of land mentioned in the Government circular,
planning and valuation department, No. valuation/circular/5114
dated 23-9-2002.
Thus, Shri Pradipkumar Sharma, the then Collector, Kachchh-
Bhuj and Shri N.M. Desai, the then Town Planner, Bhuj with the
intention to save company, Sow Pipes Limited company moje
Samaghogha, Tal. Mundra, which was under encumbrance as
per rules, however, disregarding the legal directions as to how
he should behave in the capacity of a public servant, in
collusion with the company and other officers/ employees of the
government, causing economic loss to the government,
committing criminal breach of trust in respect of property
entrusted to him, as the said company was liable for
encumbrance, however, the order of the law was disregarded,
my complaint is for taking action as per rules, as per sections
217, 409, 120-B of IPC against him.
My witnesses are Shri K.L. Makwana, Chitnis to Collector, Shri
Haroon Sama, T.C. Mantri, Samahogha, Shri S.V. Dave who
were examined during preliminary inquiry and other witnessees
evidence etc. that may be found during investigation.
This is fact of my complaint
13. Details of process after the crime is registered.
(A) Crime registered and investigation started
(B) Investigation entrusted to Shri ..............designation/B.No.
(C) Reasons of not investigating the crime ......
(D) Name of Po.sta. .......... district ......... (city) to which
investigation of crime is transferred on reading over the
complaint of the complainant having understood the
same, signed and received copy free of charge
Signature/thumb impression of the complainant
14. Signature/thumb impression of the information
Signature of the Po.Sta. Officer
Name
Designation ............... B.No.
15. Date of sending to the hon’ble court concerned
date ............... time
This is fact of my complaint.
sd/- Before mesd/- Raval(K.M. Raval)
Detective Police InspectorCID crime,Investigation Cell,
Bhavnagar
Copy forwarded with complimentTo The hon’ble Judicial Magistrate,Bhuj Corutm,Bhuj
Raval(K.M. Raval)
Detective Police InspectorCID crime,Investigation Cell,
BhavnagarJawak Number 1226/2011
Office of the Dy. Superintendent of Police
C.I.D. crime, Rajkot,
Dt. 23/2/2011.
B. Details of process after crime is registered.
(A) Crime registered and investigation started
(B) (Investigation entrusted to Shri V.K.
Pandya......Designation/B.No. D.Pl Ins.
(C) Reasons of not investigating the crime
(D) Name of Po.sta........... District ................ city ..........
on reading over the complaint of the complainant, hav ing
understood the same, signed and received copy free of
charge.
Signature of the complainant sd/Raval
14. Signature of the informant sd/Raval
sd/Raval
Signature of the Po.Sta. OfficerName : K.M. RavalDesignation : D.Po.Ins.
15. Date of sending to the Hon’ble court concerned
date : 22/02/2011 Time : 23.00
//TRUE TYPED COPY//
IN THE SUPREME COURT OF INDIA(Criminal Original Jurisdiction)
Crl. M. P. No. of 2011IN
W.P. (Crl.) No.________ of 2011
IN THE MATTER OF
Pradeep N. Sharma …Petitioner
Vs.
State of Gujarat & Ors. …Respondents
APPLICATION SEEKING EXEMPTION FROM FILING THE OFFICIAL TRANSLATION OF THE ANNEXURE P3 – P6 & P8
ToTHE CHIEF JUSTICE OF INDIAHIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA
THE HUMBLE APPLICATION OF THE PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHEWETH: -
1. That the present petition has been filed by the Petitioner
seeking the transfer of the cases lodged against him with the
State Crime branch to an independent investigative agency,
Central Bureau of Investigation (CBI), since the said cases
have been lodged simply to falsely implicate the Petitioner at
the behest of the Chief Minister of the State.
2. The facts and circumstances giving rise to the
accompanying Petition are set out therein in detail and are not
repeated here for the sake of brevity. The Petitioner craves
leave of this Hon’ble Court to treat the same as an integral part
of the present application as well.
3. That the documents/Annexures P3 - P6 & P8 filed by the
applicants along with the Writ Petition are in Gujarati language
and could not be officially translated due to paucity of time. The
Applicant herein craves leave of this Hon’ble Court to be
exempted from filing official translations of the same and to file
the English translation of the said documents.
4. That the Applicants have a prima facie case in his favour
and the balance of convenience is in favour of the applicants
and against the Respondents. That the applicants would be
greatly prejudiced if the present application is not allowed.
P R A Y E R
In the facts and circumstances the Applicants above
named most respectfully prays that this Hon’ble Court may be
graciously pleased to: -
(a) exempt the Petitioner from filing the official
translation of Hindi Annexure P3 to P6 & P8
(b) pass such other and further order(s) as may deem
fit in the circumstances of the case.
AND FOR THIS ACT OF KINDNESS THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY
FILED BY
NEW DELHI (SUNIL FERNANDES)DATE: 26.4.2011 Advocate for the Applicant
IN THE SUPREME COURT OF INDIA(Criminal Original Jurisdiction)
Crl. M. P. No. of 2011IN
W.P. (Crl.) No.________ of 2011
IN THE MATTER OF
Pradeep N. Sharma …Petitioner
Vs.
State of Gujarat & Ors. …Respondents
APPLICATION FOR EX-PARTE INTERIM DIRECTIONS
TO,
THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREMECOURT OF INDIA.
THE HUMBLE PETITION OF THE ABOVE NAMED PETITIONER.
MOST RESPECTFULLY SHOWETH:
1. That the present petition has been filed by the Petitioner
seeking the transfer of the cases lodged against him with
the State Crime branch to an independent investigative
agency, Central Bureau of Investigation (CBI), since the
said cases have been lodged simply to falsely implicate
the Petitioner at the behest of the Chief Minister of the
State.
1. The facts of the case have been stated in detail in the
accompanying petition and the same are not repeated
herein for the sake of brevity and may be treated as part
and parcel of this application for directions.
2. The Petitioner is an IAS officer belonging to the Gujarat
cadre, with an unblemished record of outstanding
performance throughout his career. He has received
numerous accolades for his work for proactive
international collaboration on joint urban infrastructure
development projects in Jamnagar, Gujarat, between
2001 and 2003 when the Petitioner served there as the
Municipal Commissioner and has been applauded for his
efforts in rebuilding Kutch after the earthquake.
3. Despite such an impressive array of achievments and
service record, the Petitioner is currently languishing in
jail due to his implication in a number of criminal cases at
the behest of the Shri Modi-led State Government. A
perusal of the relevant facts which has led the Chief
Minister and State Government to implicate and victimize
the present Petitioner will reveal that it is impossible to
hold an impartial investigation/trial as the Chief Minister
himself is personally or directly interested in the outcome
of the investigations which are more in the nature of a
witch-hunt launched against the present Petitioner.
4. This Hon’ble Court in a catena of decisions has held that
“Right to Free and Fair Trail ” is not only an important
fundamental right, emanating from Article 21 of the
Constitution, available to all citizens of this country, but
also a constitutional imperative which has to be enforced
without exceptions. In order to assure and protect this
pre-eminent fundamental right, this Hon’ble Court, in a
number of appropriate cases, deemed it necessary to
have investigations and trial conducted through the
specialized agency like the CBI.
5. It is most humbly submitted that the law as laid down by
this Hon’ble Court in transfer of cases to the CBI would
squarely apply to the facts and circumstances of the
present case, which starkly depicts political victimization
of an upright senior IAS officer of impeccable credentials,
at the hands of a pliant administrative state machinery
headed by a vindictive Chief Minister of the State of
Gujarat – Shri Narendra Modi.
6. At the outset, the Petitioner most respectfully submits
that vide the instant petition he is not seeking quashing of
the false cases foisted on him. He is also not seeking to
escape nor circumvent the legal process and procedure.
However it is respectfully submitted that as per the oft
repeated legal maxim – “Justice must not only be done
but also appear to be done” – the Petitioner prays that in
view of the contents of the instant petition and the
allegations against the Chief Minister and the State
Machinery, it cannot be held, by any reasonable man,
that there would not be bias and prejudice against the
Petitioner herein in the cases fabricated against him by
the state machinery and, on this ground alone, the cases
currently investigate/tried by the State Police ought to be
transferred to the CBI.
7. The persecution personally unleashed by the State Chief
Minister, – Shri Narendra Modi, against the Petitioner
herein is due to two major reasons, apart from a host of
other supporting factors: -
(i). Firstly, the Petitioner happens to be the younger brother of
Kuldip Sharma, a highly-decorated and currently the
senior-most IPS officer in the Gujarat state cadre, who
has unmasked many misdeeds of Narendra Modi since
the 2002 Godhra riots and also of his henchman Shri
Amit Shah, the ex-Home Minister of State, Gujarat. The
two siblings have very close to each other right from
childhood and share very strong fraternal bonds.
(ii). Secondly, and more immediately, the Petitioner is
suspected of having stumbled upon some intimate
secrets of Narendra Modi’s illicit escapades with a
woman named Ms. Mansi Soni. Shri Modi verily believes
that this information of his amorous and illicit liaison with
Ms. Soni, if revealed in the public domain, will render
incalculable and grave damage to his public image and
his future political prospects. Mr Modi suspects that the
information regarding his liason with Ms Soni would be
revealed in the public domain through the petitioner
herein and hence as a pre-emptive measure sought to
incarcerate the petitioner herein implicating him in false
cases. The petitioner, faced with sustained and constant
victimization is forced to disclose these facts, which were
not revealed earlier by him, as he is left nho other option.
I. VICTIMIZATION DUE TO THE PROXIMITY OF THE PETITONER WITH HIS BROTHER - SHRI KULDIP SHARMA, IPS:
8. Shri Kuldip Sharma, the brother of the Petitioner herein is
the senior most IPS officer of the State of Gujarat,
belonging to the 1976 batch. He has functioned as
Additional Director General of Police, CID (Crime) from
28.4.2003 to 01.8.2005. Shri Kuldip Sharma, after taking
over the above post, came across various pending cases
in which Shri Modi and the then Home Minister of the
State Shri. Amit Shah were interested.
9. One of them was the Soharabuddin Case which is a matter
pertaining to death of one Shri Soharabuddin in a fake
police encounter. In the said case, the Petitioner’s brother
approved a report to be sent to this Hon’ble Court. Till
that time, only the file of the preliminary inquiry conducted
by Police Inspector, Shri Solanki of the State CID
(Crime), had existed, which prima facie established the
fact that Soharabuddin was killed in a fake encounter.
Shri Narendra Modi held a grudge against the Petitioner’s
brother since he ordered the said interim report to be sent
to this Hon’ble Court, which ultimately lead to the arrest
of his confidante Shri. Amit Shah, causing Shri Narendra
Modi a tremendous loss of public face and political
embarrassment.
10. In yet another incident, an offence was registered against
Ms. Mallika Sarabhai, which pertains to the danseuse’s
plan to take a troop to USA and South America and the
allegation was that she was using her organization to
take people illegally to USA and indulging in human
trafficking. It is pertinent to note here that Ms. Sarabhai
was also a Petitioner before this Hon’ble Court in a
petition filed against the Chief Minister and others with
regard to post-Godhra communal riots in Gujarat during
2002. The CID (Crime) took over the case on 20.9.2004.
However, investigation by the State CID (Crime) revealed
that no offence as alleged could be made out against Ms.
Sarabhai. Despite this, Shri Amit Shah, the then MOS
(Home), at the behest of Shri Modi, was bringing
pressure to arrest and charge-sheet Ms. Sarabhai.
However, Shri Kuldip Sharma directed the closure of the
case, as it was baseless. This also angered Mr Modi.
11. In another instance, in a writ petition filed before the
Hon’ble High Court of Gujarat, allegation of extortion of
money was made against Shri Kamlesh Tripathi, a close
associate and a political ally of Shri Amit Shah, MOS
(Home), Gujarat. The Hon’ble High Court directed the
DGP to have the matter inquired into, who, in turn,
entrusted the same to the State CID (Crime). After
perusal of the case, the Petitioner’s brother directed the
concerned Superintendent of Police in CID (Crime) to get
an offence registered as necessary and appropriate
under the law. Immense political pressure was brought
on the concerned SP, Shri Anil Pratham not to do so.
Eventually the complaint came to be registered much
against the wishes of Shri Amit Shah.
12. In yet another serious case, when Shri Kuldip
Sharma was up in arms against the personal interests of
Shri Modi and Shri Amit Shah upon an inquiry, in which
allegations were made that Amit Shah had received an
amount of Rs. 2.5 crores, through an intermediary Shri
Girish Dani, in the matter of a case about financial fraud
in Madhavpura Mercantile Co-operative Bank Limited,
Ahmedabad, by Shri Ketan Parikh who was the prime
accused in this offence; the Rs. 2.5 crores was alleged
paid by Shri Girish Dani to Shri Amit Shah to intervene on
behalf of Shri Ketan Parikh and spare him any legal or
criminal action. Shri Kuldip Sharma felt that a proper
investigation was necessary in the interest of Shri Amit
Shah, so as to clear Shri Amit Shah’s name of any false
allegations of having take the Rs. 2.5 crores of bribe if he
were indeed not involved, and had recommended that
since the original investigation pertaining to Shri Ketan
Parikh was done by CBI, the application leveling charges
against Shri Amit Shah also be sent to CBI. Meanwhile
Shri Kuldip Sharma went to attend a conference outside
the State and upon his return he was informed that he
had been transferred from CID (Crime).
13. The Petitioner’s brother, Shri Kuldip Sharma, too has
suffered at the hands of the CM Shri Modi. His ACR’s for
last 5 years (2003-2004 to 2007-2008) were downgraded
by Shri Modi, without assigning any reasons and in
brazen and direct violation of the statutory rules and
administrative instruction of the Department of Personnel
and Training (DoPT). The Chief Minister downgraded the
ACRs of Shri Kuldip Sharma with the malafide intention
of denying him promotion to the next higher rank as at
least three outstanding ACRs are required out of last 10
years to qualify for the next promotion. The Principal
Bench of the Hon’ble Central Administrative Tribunal
(CAT) vide final order and judgment dated 07.04.2011
has set aside the downgrading of the ACR’s of Shri
Kuldip Sharma on grounds of it being arbitrary and illegal.
14. It is submitted that the Petitioner has been harassed by
the Chief Minister in order to settle personal scores with
Shri Kuldip Sharma, the brother of the Petitioner. The
State machinery is being abused by those at the helm of
power, primarily Shri Narendra Modi and Shri Amit Shah,
for their personal vendetta.
II. THE CHIEF MINISTER’S ILLICIT LIASON WITH MS
MANSI SONI:
15. It was in between 2003 to 2006 that the Petitioner, in the
capacity of District Collector of Kutch, commissioned a
series of projects toward the beautification of Bhuj city
and overall development of Kutch district. A site was
selected for developing a hill garden in 2005, for which
Ms. Mansi Soni from Bangalore was selected as the
Landscape Architect. The Chief Minister, Shri Narendra
Modi, visited Kutch to inaugurate the hill garden project
upon its completion, and was at this time introduced to
Ms. Soni. Thereafter, Ms. Soni communicated to the
Petitioner her decision to return to Bangalore as well as
shared her ongoing interaction with the Chief Minister.
The fact of the intimacy between Shri Modi and Ms. Soni
was confirmed when the Petitioner was in close proximity
of the two and overheard their conversation during one of
the official functions. Subsequently, Ms. Soni further
revealed to the Petitioner that when she called Shri Modi
in his office, he would freely interrupt scheduled
meetings, walking out of his office on senior officials in
order to speak to her privately.
16. During the second week of March 2006 at approximately
5:00 PM, Ms. Soni called the Petitioner and conveyed
that she had just landed in Ahmedabad city and was
planning to visit Bhuj. Shortly thereafter, when the
Petitioner attempted to telephone her, Ms. Soni’s cell
phone was switched off and remained so for the next 48
hours. Two days later at approximately 11:00 AM, Ms.
Soni called the Petitioner and conveyed that she was at
the residence of Shri Modi, and had spent the duration of
the previous two days at his residence. Subsequently,
she met the Petitioner in Bhuj and described in detail her
stay with Shri Modi.
17. Thereafter, Ms. Soni described that the next day being
Holi, many people visited Shri Modi for the festival and
played with colour. Shri Modi attended to them briefly and
returned to his quarters. In the meantime, Ms. Soni had
developed fever and requested a physician, but Shri Modi
conveyed that calling a physician was impossible, given
the peculiarity of their situation. The following morning
she left for Vadodara in a car sent for by Shri Modi.
18. In November 2008, while the Petitioner was posted as
Municipal Commissioner, Bhavnagar, Ms. Soni contacted
the Petitioner to inform him that Shri Modi had asked her
to do a project on Alang Shipyard for which she would
like to come to Bhavnagar. She came to Bhavnagar and,
during that time, the Petitioner observed that she was
constantly in touch with Shri Modi, who was abroad and
probably in South Africa. She also conveyed to the
Petitioner that Shri Modi had asked her about the
Petitioner and whether the Petitioner knew about her
intimate relationship with Shri Modi. In one conversation,
Ms. Soni showed the Petitioner a text message that the
Chief Minister had sent to her from abroad. The Petitioner
made a note of the cell phone number from which it had
originated. The number was 9909923400.
19. It is submitted that the Petitioner had two cell phones at
the time, with Nos. 99251 99799 and 98240 01729. On
one of these, the Petitioner had saved the aforesaid
number from which Ms. Soni had received personal
message from Shri Modi. Once, the Petitioner
accidentally dialed Shri Modi’s number, thinking that he
was actually calling someone else, but the Petitioner got
no reply on Shri Modi’s phone. The Petitioner realized his
mistake and promptly disconnected. The Petitioner verily
believes that Shri Modi must have found out the address
of the holder of the SIM card from which his personal
number was [accidentally] dialed, and placed it under
observation either with the help of State CID
(Intelligence) or illegal phone tapping methods involving
the use of electronic equipment through unauthorized
collaboration. Shri Modi could then have found that Ms.
Soni was speaking to the Petitioner often over phone.
20. Around this time, the Petitioner received an anonymous
letter conveying that a video of sexual activity between
Ms. Soni and one person, was available on an internet
website, and the letter advised the Petitioner to desist
from contacting Ms. Soni, as her character and actions
were not befitting of her company with Gujarat State
officials. The Petitioner did indeed come across such a
video clipping and it now appears to the Petitioner that
Shri Modi, who was monitoring the Petitioner’s cell phone
calls, started believing that videos involving Ms. Soni
perhaps included him i.e. Shri Modi.
21. It is submitted that the first case was registered against the
District Magistrate and Collector of Kutch District on
20.02.2008 in which the Petitioner was not named as the
accused but thereafter, in order to frame the Petitioner,
various cases were registered. The details of these cases
are:
(v) M. Case no. 1/2008: registered on dated
20.2.2008 with the CID (Crime) Rajkot zone.
(vi) CASE NO. 3/2010 registered with CID
(CRIME) Rajkot Zone.
(vii) CASE NO. 9/2010 registered with CID
(CRIME) Rajkot Zone.
(viii) CID (Crime) Rajkot Zone No. 1/2011
Offence registered under section 217, 409, 120(B)
of IPC, registered on 22.2.2011.
22. It is submitted that the aforesaid cases are being
investigated by the State CID (Crime) Branch and the
proceedings being orchestrated under keen personal
supervision of the Chief Minister of the State who, as
narrated above, has more than one reason to be
prejudiced and biased against the Petitioner. The said
cases have been filed only to malign and torture the
Petitioner since he is the brother of Shri Kuldip Sharma
and because the Chief Minister is convinced that the
information of his liaisons with Ms. Soni in the Petitioner’s
possession is a potential threat to his image.
23. It is, therefore, submitted that it would be in the interest of
justice that this Hon’ble Court be pleased to direct the
State CID to restrain from going ahead with the
investigation being conducted in the aforementioned FIRs
pending the hearing of the present petition.
PRAYER
In the premises, it is most respectfully prayed that this Hon’ble
Court may graciously be pleased to:-
(a) Pass suitable orders/directions to the State of Gujarat
and/or its instrumentalities including the State CID
restraining from conducting further investigation/trial in
the following FIRs namely :-
(i). M. Case no. 1/2008: registered on dated
20.2.2008 with the CID (Crime) Rajkot zone.
(ii). CASE NO. 3/2010 registered with CID (CRIME)
Rajkot Zone.
(iii). CASE NO. 9/2010 registered with CID (CRIME)
Rajkot Zone.
(iv). CID (Crime) Rajkot Zone No. 1/2011 Offence
registered under section 217, 409, 120(B) of IPC,
registered on 22.2.2011.
(b) pass such further order or orders as this Hon’ble Court
may deem fit and proper in the facts and circumstances
of the case.
AND FOR THIS ACT OF KINDNESS THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY
FILED BY
NEW DELHI (SUNIL FERNANDES)DATE: 26.4.2011 Advocate for the Applicant
IN THE SUPREME COURT OF INDIA(Criminal Original Jurisdiction)
W.P. (Crl.) No.________ of 2011
(Writ Petition Under Article 32 of the Constitution of India)
IN THE MATTER OF
Pradeep N. Sharma …Petitioner
Vs.
State of Gujarat & Ors. …Respondents
Crl. M. P. No. /2011 An Application for Exemption from filing Official Translation ofAnnexure P3 – P6 & P8
Crl. M. P. No. /2011 An Application for Ad Interim Ex-Parte Directions.
PAPER-BOOK
(For Index, please see inside)
ADVOCATE FOR THE PETITIONER : SUNIL FERNANDES
I N D E X
Sl. No.
PARTICULARS Page No.
1. Listing Proforma A
2. Synopsis and List of Dates
3. Writ Petition with Affidavit 1 - 33
4. ANNEXURE P – 1 (Colly):
i) Copy of the letter dated 21.3.1985
ii) Copy of the letter dated 22.4.1985
iii) Copy of the letter dated 5.5.1988
iv) Copy of the letter dated 18.5.1989
v) Copy of the Professional Dynamics in
Health Care dated April, 1994
vi) Copy of the Indian Express Portion dated 26.1.2004
vii) Copy of the Towards a Better Tomorrow dated 26.3.2004
viii) Copy of the India Today Portion dated 7.11.2005
ix) Copy of the India Today Portion dated 5.06.2006
x) Copy of the Article
xi) Copy of the BBC News Portion
34
35
36
37 - 38
39 - 51
52 - 56
57 - 58
59 – 62
63 – 65
66 – 70
71 – 76
5. ANNEXURE P – 2Copy of the order dated 07.04.2011 passed by the Central Administrative Tribunal Gujarat in OA. No. 49 of 2010
77 – 130
6. ANNEXURE P - 3:Copy of the FIR No. 1/2008 dated 20.2.2008 District-Bhuj, Rajkot, Gujarat.
131 - 146
7. ANNEXURE P - 4:Copy of the FIR being I-CR No.3/2010 dated 31.03.2010 istrict-Bhuj, Rajkot, Gujarat.
147 - 151
8. ANNEXURE P - 5:Copy of the said FIR being I-CR No.9/2010 dated 25.9.2010, istrict-Bhuj, Rajkot, Gujarat.
152 - 162
9. ANNEXURE P - 6:Copy of the said letter dated 11.12.2010, addressed to Shri K.P. Gajipara, the investigating officer.
163 – 174
10. ANNEXURE P - 7:Copy of said letter dated 19.01.11 addressed to the Chief Secretary, Govt. of Gujarat
175 – 180
11. ANNEXURE P - 8:Copy of the said FIR being CID Crime No. 1 of 2011 dated 22.2.2011, istrict-Bhuj, Rajkot, Gujarat.
181 – 190
12. Application for exemption from filing the official translations.
191 - 192
13. Application for Direction. 193 - 207