In the Central
Administrative Tribunal, Lucknow Bench, Lucknow
Original Application
No- 311 of 2013
Application under section 19 of the Administrative Tribunal Act 1985
Amitabh Thakur Applicant/
Petitioner
Versus
Union of India and
others Respondents
Index
S No
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Description of documents relied upon
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Page No
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From
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To
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1.
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List of Dates and Events (separate)
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2.
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Application
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Separate
|
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3
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Annexure No A1
Copy of DGP Office letter dated 17/01/2013 |
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4.
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Annexure No A2
Copy of applicant’s letter dated 28/09/2012 |
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5.
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Annexure No A3
Copy of DGP office letter dated 11/10/2012 |
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6.
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Annexure No A4
Copy of applicant’s letter dated 15/10/2012 |
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7.
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Annexure No A5
Copy of applicant’s letter dated 14/01/2013 |
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8.
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Annexure No A6
Copy of applicant’s letter dated 18/01/2013 |
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9.
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Annexure No A7
Copy of DGP office letter dated 25/02/2013 |
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10.
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Annexure No A8
RTI Reply |
Lucknow (Amitabh
Thakur)
Dated-15/07/2013 Applicant
in Person
For use in Tribunal
office
Date of filing
Or Date of receipt
by post
Registration No-
Signature
For
Registrar
In the Central Administrative Tribunal, Lucknow Bench, Lucknow
Amitabh Thakur Petitioner
Versus
Union of India and
others Respondents
LIST OF DATES AND EVENTS
S No Date Event
1.
2003-04 Applicant posted as SP Gonda
2.
28/07/2005 Enquiry Report by Sri A K Bishnoi
3.
28/09/2012 Applicant sends his representation
4.
11/10/2012 Applicant asked certain query
5.
15/10/2012 Applicant replies about the query
6.
14/01/2013 Applicant intimates about Press Meet
7.
17/01/2013 Applicant restrained from Press Meet
8.
18/01/2013 Applicant objects to asks for reasons
for
the
illegal restraint imposed
The Respondents, the State of Uttar
Pradesh and the Director General of Police, UP have illegally restrained the
applicant from vindicating his act and character as per the legal provisions
prescribed under Rule 17 of the All India Services (Conduct) Rules 1968 as
shall be explained in details in the OA. This restrain is all the more serious
because it is curbing of the Fundamental Right of Freedom of speech and
expression guaranteed to the citizen through Article 19(1)(a) of the
Constitution read along with the reasonable restraints imposed through Article
19(2).
This this matter is related not only
with the infringement of legal rights provided to the applicant as a member of
the All India Services but is also associated with the blatant and abject
violation of his Fundamental Rights.
Hence this Original Application.
Lucknow (Amitabh
Thakur)
Dated-15/07/2013 Applicant
in Person
In the Central
Administrative Tribunal, Lucknow Bench, Lucknow
Original Application No- of 2013
Application under
section 19 of the Administrative Tribunal Act 1985
Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan Thakur,
resident of 5/426, Viram Khand, Gomti Nagar, Lucknow (presently posted as SP,
Rules and Manuals, Lucknow)
---------- Applicant/ Petitioner
Versus
1.
Union of India through Secretary, Home,
Government of India, New Delhi
2.
State of UP, through the Principal
Secretary (Home), Civil secretariat, Lucknow
3.
Director General of Police, Uttar
Pradesh, DGP Head quarters, Lucknow
----------- Respondents
Detail of Application
1. Particulars
of the order against which the application is made
The original Application (OA, for short) is being filed for quashing the
inappropriate and illegal order dated 17/01/2013 (Annexure No A1) passed by
Respondent No 3, Director General of Police, Uttar Pradesh (DGP, UP for short) restraining the applicant
from exercising his legal right enshrined in Rule 17 of the All India Services
(Conduct) Rules 1968 (Conduct Rules, for short) of vindicating his acts and
characters through Press as regards certain matter where the applicant had to
face adverse criticism in the course of his official duty, possibly and
allegedly at the instance of Respondent No 2, the State of Uttar Pradesh and
thus in the process violating and curbing his fundamental right of freedom of
speech and expression provided in Article 19(1)(a) of the Constitution of
India. This OA is also being filed to accordingly permit the applicant to avail
his legal right stated in Rule 17 of the Conduct Rules, particularly in
reference to the law enunciated in the Proviso to this Rule as regards the
representation presented by the applicant on 28/09/2012. This OA is also being
filed to pray for enquiry and subsequent suitable action against all those
officers who went beyond the clear cut provisions of law, firstly to direct, suggest
and pass the illegal order dated 17/01/2013 and secondly to keep on denying the
applicant his above-mentioned legal and constitutional rights. Finally this OA
is being filed to ask for suitable compensation as regards the blatantly
illegal act of the respondents whereby they curbed the legal and (more
importnatly) Fundamental Rights of the applicant, without any rhyme or reason,
despite repeated prayers and efforts made by the applicant in bringing the
legal facts before them.
2.
Jurisdiction
of the Hon’ble Tribunal
The applicant declares that the subject matter regarding which he wants
redressal is within the jurisdiction of the Hon’ble Tribunal as it is
associated with the Conduct Rules of the applicant and comes very much under
the realm of the Hon’ble Tribunal
3.
Limitation
The applicant further declares that the application is within the
limitation period of one year of passing of an order prescribed in section 21
of the Administrative Tribunals Act 1985.
4.
Facts of the
case
The facts of the case are given below
4.01
That the applicant is an officer of the
Indian Police Service (UP Cadre) belonging to the 1992 batch, presently posted
as SP (Rules and Manuals) at Lucknow.
4.02
That the applicant would like to humbly
pray in the beginning itself that the matter being presented in this OA is not
one which affects him materially or as regards any material benefit like pay,
promotion, increment etc but is possibly much more serious than these material
benefits because it is related with the Fundamental Right of the applicant
associated with freedom of speech and expression, which has been deliberately,
intentionally and illegally curbed and restrained by the respondents No 2 and 3
despite repeated efforts of the applicant in bringing the legal situation
before them. Thus, the applicant is no less effected by the illegal act of the
respondents, forcing him to file this OA where he prays not only for quashing
of the illegal order passed by respondent No 3, presumably at the instance of
respondent No 2 but also seeks enquiry into the entire matter and fixing of
definite roles of officers found responsible for this illegal restrain and
violation of the Fundamental rights of the applicant. Finally the applicant
also prays for definite compensation in the matter for illegal and arbitrary
restrain of his Fundamental Rights.
4.03
That the facts presented in the OA would
make it very clear that from the beginning the respondents have been playing a
callous and improper role as regards the applicant’s representation and the
legal responsibility bestowed to them through Rule 17 of the Conduct Rules.
This matter also shows the kind of high handedness often displayed by the
superior authorities in dealing with the genuine and legal, though
uncomfortable demands of the subordinate officers. This matter shows the scant
respect for constitutional and legal mandates often shown by many senior
officials, completely forgetting in their course of duty that they are also
governed by rules and regulations and are not above law.
4.04
That the seriousness of the matter lies
in the above-mentioned facts and it is these that forced the applicant to bring
this issue, which many might consider trivial, non-materialist and
non-beneficial, before this Hon’ble Tribunal because to the applicant this is a
classic example of certain authorities making a mockery of law and he wants to
present the case even while facing all the discomforts, efforts and pains
associated with this process and also because the matter is related with one of
the most precious gifts bestowed to all of us by the Constitution of India- the
freedom of speech and expression, which has been illegal curtailed and violated
in this particular case in an uncouth manner, through brazen callousness.
4.05
That this matter began on 28/09/2012
when the applicant sent a representation to the Principal Secretary (Home)
through proper channel where he asked for permission to present certain facts before
public through the use of Press/Media related with his posting as
Superintendent of Police, Gonda in the year 2003-04 where he felt that his
immediate superior officer the DIG of Devipatan Range got tried to frame him in
false criminal case through an improper, incorrect and completely one-sided
enquiry conducted by the then Additional SP, Gonda regarding alleged grant of
Arms licence to criminal, anti-national and anti-social elements and where the
applicant was completely exonerated in a further High-level enquiry conducted
by Sri A K Bishnoi, IAS, Secretary, Technical Education Department, UP Government
through his report dated 28/07/2005 where he had specially said that - ‘‘ इस सम्पूर्ण
प्रकरण की छान-बीन के बाद यह तथ्य परिलक्षित होता है कि सभी मामलों में पुलिस
अधीक्षक की संस्तुति उनके अधीनस्थ कर्मियों की संस्तुति पर आधारित थी तथा स्वयं
अपने स्तर से उन्होंने कोई ऐसी संस्तुति नहीं की थी जो कि निचले स्तर से प्रस्तुत
संस्तुति के विपरीत हो.” (i.e. after the entire enquiry, it gets
concluded that the SP made all the recommendations only on the basis of the
report that he had got from his subordinates and there was not a single case
where his recommendation was different from that of the report presented by
subordinate officers) , पुलिस अधीक्षक स्तर पर कदाचित ऐसा कोई माध्यम
नहीं होता जिससे वह अलग से तथ्यों की जानकारी कर सके. अतः ऐसे मामलों में जिनमें
आवेइक के आपराधिक इतिहास होने के बावजूद पुलिस द्वारा शस्त्र लाइसेंस स्वीकृत करने
हेतु संस्तुति की गयी है, उनमें भी श्री अमिताभ ठाकुर तत्कालीन पुलिस अधीक्षक को दोषी
माना जाना उचित नहीं होगा.’(i.e. there is possibly no medium or instrumentality with the SP
from where he might obtain facts independent from his subordinate police
officers. Hence, even in those cases where Sri Amitabh Thakur recommended
sanction of Arms licence to applicants with criminal antecedents, he shall be
considered to be at fault) and even that- ‘‘ डा0 बी एन तिवारी
द्वारा अपनी आख्या तथ्यों के आधार पर नहीं दी गयी और गैर-जिम्मेदाराना तरीके से
निष्कर्ष निकाले गये.’ (Dr B N Tiwari, the enquiry officer did not present his report
based on facts and he made his conclusions in an irresponsible manner). A copy
of this representation dated 28/09/2012 is being attached as Annexure No A2.
4.06
That in this representation dated 28/09/2012, the applicant said
that since the enquiry report of Sri A K Bishnoi had completely exonerated him
and even the State government only warned him for administrative negligence
through its order dated 16/05/2006 and did not agree with the recommendations
of the DIG and the enquiry report of the Additional SP which had declared the
applicant to be criminally liable for his acts and had tried to frame him in
serious criminal cases, he had been seeking enquiry into the roles of the DIG
and the Additional SP in presenting their false report with the ill-intent of
framing the applicant in a very serious criminal case but the State government
was not heeding to his prayers.
4.07
That the representation also said that the enquiry report of the
DIG and Additional SP had found their way in many newspapers and magazines,
resulting in serious indictment of the applicant’s character and personality and
huge personal, emotional, social and administrative loss to him, hence he
sought vindication of his character through the provisions given in Rule 17 of
the All India Services (Conduct ) Rules, 1968 (Conduct Rules, for short)
4.08
That Rule of the Conduct Rules says –“17. Vindication of acts and character of members of the
Service:—No member of the Service shall, except with the previous sanction of
the Government have recourse to any court or to the press for the vindication
of official act which has been the subject matter of adverse criticism or
attack of a defamatory character.
Provided
that if no such sanction is conveyed to by the Government within 12 weeks from
the date of receipt of the request, the member of the service shall be free to
assume that the sanction sought for has been granted to him.
Explanation.—Nothing in this rule shall be deemed to prohibit a member of
the Service from vindicating his private character or any act done by him in
his private capacity. Provided that he shall submit a report to the Government
regarding such action.
4.09
That what the above Rule says is that every member of the All India Service (like the applicant)
has the right to take recourse to the Press for the vindication of official act
which has been the subject matter of adverse criticism or attack of a
defamatory character if he gets the previous sanction of the Government have
recourse to any court or to the press
4.10
That it also says that if the Government
fails to convey its decision (including its sanction) within a period of 12
weeks from the date of receipt of the request, then this sanction
shall be deemed to be granted.
4.11
That the applicant
presented his representation on 28/09/2012 to the proper channel, viz. the
Director General of Police Office, Uttar Pradesh, through which, as an IPS
officer, he has been directed to make all his correspondence with the State
government. Since the DGP office is the only designated medium for the
applicant for any correspondence with the Government, thus the moment the
applicant produced his representation on 28/09/2012, the letter would suo-motu
be presumed to have been received by the State Government because the applicant
cannot correspond directly with the State government and need necessarily
correspond with the State government through his Directorate or the Head of his
Office (if directed to correspond through the Head of the Office) and thus for
him the date of receipt of the representation begins on the date his
representation under Rule 17 is received by the Directorate or the Head of his
Office.
4.12
That thus after the receipt
of the representation on 28/09/2012, the State government had 12 weeks to
decide over it and to grant sanction or to refuse the request.
4.13
That from the date of
receipt on 28/09/212 this period of 12 weeks ended on 21/12/2012
4.14
That thus the State
government lost any authority to have any say in this matter after the lapse of
12 weeks on 21/12/2012.
4.15
That but in this case, the
DGP Office instead of immediately forwarding and placing the matter before the
State government, as was expected from it, made a completely unwarranted move.
Through its letter dated 11/10/2012 (i.e. almost after 2 weeks) it sent a
letter to the IG (Rules and Manuals), UP who is presently the Head of the
office in Rules and Manual Wing where the applicant is posted, making a very
unusual query- “Kindly ask Sri Thakur under which provisions of the All India
Services (Conduct) Rules of 1968 is he seeking permission to vindicate his
position?” This letter also asked the applicant to provide a copy of the Rule
or the Government order. A copy of this letter dated 11/10/2012 is being
attached as Annexure No A3.
4.16
That this certainly was a
completely unwarranted query because being the Police Headquarters and being
the repository of all service related matters, rules and regulations for IPS
officers, the DGP office was presumed to have known about the concerned Rule
and should not be expected to ask the applicant himself what the Rule was.
Hence, among other things, it also needs to be kindly enquired why and by whom
was such an unwarranted and improper query made and the officers responsible
for this impropeity need to be penalized for their lack of knowledge of law and
their lack of common sense because the letter clearly mentioned that permission
was being sought under Rule 17 of the Conduct Rules.
4.17
That the applicant, immediately
through his letter dated 15/10/2012, stated once again that he was seeking
vindication of his act and character under Rule 17 of the Conduct Rules, a fact
which had very clearly stated in his original representation dated 28/09/2012
itself. A copy of the applicant’s letter dated 15/10/2012 is being attached as
Annexure No A4.
4.18
That when the
required/mandated 12 weeks in Rule 17 of the Conduct Rules from the date of
submission on 28/09/2012 (and even after 15/10/2012) was over, the applicant
sent a letter dated 14/01/2013 stating that since the 12 weeks period is over,
hence the required sanction is deem to have been granted and thus the applicant
can presume the grant of the sanction. Hence he would present his facts/views
through a proposed Press Meet on 18/01/20013 as per the provisions of Rule 17.
A copy of the applicant’s letter dated 14/01/2013 is being attached as Annexure
No A5.
4.19
That to this the applicant
got the impugned letter/order dated 17/01/2013 from the DGP office which said
that the matter was under consideration before the State government and hence
he was directed not to organize the proposed Press Meet on 18/01/2013.
(Annexure No A1).
4.20
That this was certainly a
legally incorrect order. This is because the State Government has right to
decline permission under Rule 17 of the Conduct Rules or to restrain
interaction with Press only within the period of 12 weeks after the receipt of
the application. Here, the mandated 12 weeks period had already passed much
earlier on 21/12/2012. Thus, after the passing of this period, the respondents
had no right to make any further instruction in this case because the Rule is
very clear when it says-“Provided that if no such sanction is conveyed to by
the Government within 12 weeks from the date of receipt of the request, the
member of the service shall be free to assume that the sanction sought for has
been granted to him.”
4.21
That it may kindly be seen
that this Proviso was Inserted vide Notification No.11017/27/93—AIS(III) dated
13.01.1995 (GSR No. 52 dt. 04.02.1995).
4.22
That it seems quite
probable that such a Proviso needed to be introduced to save the All India
Service officers from a precarious position in which the Government would
prefer to take no decision on the application for ever and would just sit idle
over it. In such conditions, the applicant would be left with no legal remedy
and he would have to wait for eternity without getting any response from the
concerned Government.
4.23
That with the introduction
of the mandatory 12 weeks period, now the officer’s interests have been duly
safeguarded so that either the government refutes such permission by stating
certain reasons or it grants permission but whatever decision the Government
wants to take, it has to be taken within the prescribed 12 weeks. The wordings of Rule 17 are very clear and
leave no one in doubt that once this 12 week period is over, the Government
loses any right to stop an officer in his endeavour to vindicate his acts or
character.
4.24
That yet despite this clear
provision of law, the Respondents No 2 and 3 stopped the applicant from
vindicating his position after the passing of the 12 weeks period.
4.25
That this act of the
respondents is blatantly against the statutory provision under Rule 17 of the
Conduct Rules as well as the Constitutional provision as granted under Article
19(1)(a) regarding freedom of speech and expression.
4.26
That this freedom of speech and expression has been
moderated/regulated in clause (2) of Article 19 which says- “Nothing in
sub-clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub-clause in
the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence.”
4.27
That the restrictions imposed by the State on the All India
Service Officers through various Rules like Rule 6 (Connection with Press and
Radio), 7 (Criticism of Government) and Rule 17 (Vindication of acts and
character) etc of the Conduct Rules are the laws framed for reasonable restrictions
on the freedom of speech and expression.
4.28
That but going beyond the laws framed in this behalf to stop the
freedom of speech and expression of an individual (including a member of the
All India Services like the applicant) is certainly completely unconstitutional
and is the denial of Fundamental Rights.
4.29
That there cannot be a more serious impropriety that denial of
Fundamental Right to an individual as is happening in this particular case
4.30
That the applicant immediately wrote to Ms Tanuja Srivastava, IG
(Karmik) a letter dated 18/01/2013 where he stated that the 12 months period
stated in Rule 17 has already elapsed and hence he seems to have a legal right
to present his facts through the Media. Hence, the applicant prayed Ms
Srivastava to intimate him about the legal provisions based on which she had
restricted him from vindicating his position, after the passing of the required
12 weeks. A copy of the letter dated 18/01/2013 is being attached as Annexure
No A6.
4.31
That the applicant sent reminder letters on 20/02/2013,
28/02/2013, 05/03/2013 and 15/05/2013.
4.32
That the applicant has so far got only a letter dated 25/02/2013
from the DGP office saying that his letters had been forwarded to the State
government and the moment the State government takes any decision in this
matter, it will be intimated to him. A copy of this letter from the State
Government dated 25/02/2013 is being attached as Annexure No A7.
4.33
That thus as things stand today, despite
having presented the representation under Rule 17 of the Conduct Rules on
28/09/2012 and responding to the query (though irrelevant, improper and
unwarranted) on 15/10/2012, the respondents have not only kept the matter
pending, what is worse is that they have even illegally superseded the provisions
of law as prescribed in the Proviso to Rule 17 by stopping the applicant from
interacting with Press even after the strictly mandated period of 12 weeks.
4.34
That even after the IG (Karmik) letter
dated 17/01/2013 restraining the applicant from the Press Meet, around six
months have passed and the State government is yet to take any decision in the
applicant’s representation submitted on 28/09/2012. Thus, while the Rule 17
says that whatever decision has to be taken by the State government within 12
weeks, here on the one hand the applicant has been illegally stopped by the
respondents from using his legal right granted under Rule 17 of the Conduct
Rules after the mandated period of 12 weeks, on the other the State government
has not taken any decision in the matter even after a passage of many more
weeks than the stipulated 12 weeks.
4.35
That a few facts that the applicant
obtained from the Right to Information state that the impugned order dated 17/01/2013
came after the alleged telephonic conversation between Ms Tanuja Srivastava, IG
(Karmik), DGP Office and Sri J P Gupta, Secretary (Home), UP Government. As per
this RTI information, keeping the sensitivity of the matter in mind, Ms Tanuja
Sriuvastava called Sri J P Gupta on phone where Sri J P Gupta “expressed his
view” that the applicant be directed at the level of the Director General
office not to hold the Press Meeting on 18/01/2013. A copy of the Notesheet
presenting these facts is being attached as Annexure No A8.
4.36
That based on this “advice” or “view” of
Sri Gupta, Ms Srivastava immediately took the sanction of the Director General
of Police after recommendation of the ADG (Karmik), who without going into the
legality of the entire matter and without taking into consideration the
complete facts approved the recommendation of Ms Srivastava that the applicant
be directed not to hold the Press Meeting.
4.37
That during this process Sri J P Gupta,
Ms Tanuja Srivastava, ADG (Karmik) and the DGP, UP never for once tried to
understand the nuances involved in the matter and the fact that the matter was
cioncerned with Fundamental Right of speech and expression of an individual,
who other than being a member of the All India Service, is also a citizen of
this Nation, enjoying the right bestowed under Article 19(1)(a) of the
Constitution as much as any one else.
4.38
That as regards Fundamental Rights
including Right to freedom of speech and expression, the Hon’ble Supreme Court
has been very sensitive from the very beginning. As early as in 1951, in Ram Singh vs
The State Of Delhi And others (Equivalent citations: 1951 AIR 270, 1951 SCR
451), the Hon’ble Supreme Court said- “But in every case it is the rights which
are fundamental, not the limitations; and 'it is the duty of this Court and of
all courts in the land to guard and defend these rights jealously. It is our
duty and privilege to see that rights which were intended to be fundamental are
kept fundamental and to see that neither Parliament nor the executive exceed
the bounds within which they are confined by the Constitution when given the
power to impose a restricted set of fetters on these freedoms; and in the case
of the executive, to see further that it does not travel beyond the powers
conferred by Parliament. We are here to preserve intact for the peoples of
India the freedoms which have now been guaranteed to them and which they have
learned through the years to cherish, to the very fullest extent of the
guarantee, and to ensure that they are not whittled away or brought to nought
either by Parliamentary legislation or by executive action.”
4.39
That in Dharam Dutt & Ors vs Union Of
India & Ors ( (2004) 1 SCC 712), the Hon’ble Court clearly stated- “Article
19 confers fundamental rights on citizens. The rights conferred by Article
19(1) are not available to and cannot be claimed by any person who is not and
cannot be a citizen of India. A statutory right __ as distinguished from a
fundamental right __ conferred on persons or citizens is capable of being
deprived of or taken away by legislation. The fundamental rights cannot be
taken away by any legislation; a legislation can only impose reasonable
restrictions on the exercise of the right.” It also said-“Out of the several
rights enumerated in clause (1) of Article 19, the right at sub-clause (a) is
not merely a right of speech and expression but a right to freedom of speech
and expression.”
4.40
That In
re Arundhati Roy (AIR 2002 SC 1375),
the Hon’ble Supreme Court said- “Freedom of speech and expression, so far as
they do not contravene the statutory limits as contained in the Contempt of
Courts Act, are to prevail without any hindrance” while in Union Of India &
Ors. vs The Motion Picture Association & others ( AIR 1999 SC 2334) it said-
“Undoubtedly, free speech is the foundation of a democratic society. A free
exchange of ideas, dissemination of information without restraints,
dissemination of knowledge, airing of differing view points, debating and
forming one shown views and expressing them, are the basic indicia of a free
society. This freedom alone makes it possible for people to formulate their own
views and opinions on a proper basis and to exercise their social, economic and
political rights in a free society in an informed manner. Restraints on this
right, therefore, have been jealously watched by the courts."
4.41
That award of compensation in violation of Fundamental Rights was
widely discussed by the Hon’ble Supreme Court in Smt. Nilabati Behera
Aliaslalit vs State Of Orissa And Ors (Equivalent citations: 1993 AIR 1960,
1993 SCR (2) 581) as-“2.01. Award of compensation in a proceeding under Article
32 by this Court or by the High Court under Article 226 of the Constitution is
a remedy available in public law, based on strict liability for contravention
of fundamental rights to which the principle of sovereign immunity does not
apply, even though it may be available as a defence in private law in an action
based on tort. This is a distinction between the two remedies to be borne in
mind which also indicates the basis on which compensation is awarded in such
proceedings. 2.02. Enforcement of the constitutional right and grant of redress
embraces award of compensation as part of the legal consequences of its
contravention. 2.03.. A claim in public law for compensation for contravention
of human rights and fundamental freedoms, the protection of which is guaranteed
in the Constitution, is an acknowledged remedy for enforcement and protection,
of such rights, and such a claim based on strict liability made by resorting to
a constitutional remedy provided for the enforcement of a fundamental right is
distinct from, and in addition to, the remedy in private law for damages for
the tort resulting from the contravention of the fundamental right. The defence
of sovereign immunity being inapplicable, and alien to the concept of guarantee
of fundamental rights, there can be no question of such a defence being
available in the constitutional remedy. It is this principle which justifies
award of monetary compensation for contravention of fundamental rights
guaranteed by the Constitution, when that is the only practicable mode of
redress available for the contravention made by the State or its servants in
the purported exercise of their powers, and enforcement of the fundamental
right is claimed by resort to the remedy in public law under the Constitution
by recourse to Articles 32 and 226 of the Constitution against the applicant regarding his alleged role in facilitating grant of
Arms licence to criminal and anti-social elements.
4.42
That this is one of those cases where
the Fundamental Right of Freedom of speech and expression has been taken away
illegally and improperly and hence the applicant deserves to be suitably
compensated for it.
4.43
That thus left with no other officious
remedy available to him, the applicant is left with no other option than to
approach the Hon’ble Tribunal
5.
Grounds for
relief with legal provisions
a. Because
Rule 17 of the All India Services (Conduct) Rules 1968 related
with Vindication of acts and character of members of the Service clearly states:—“No
member of the Service shall, except with the previous sanction of the
Government have recourse to any court or to the press for the vindication of
official act which has been the subject matter of adverse criticism or attack
of a defamatory character.”
b. Because the above Rule also says- “Provided that if no such
sanction is conveyed to by the Government within 12 weeks from the date of
receipt of the request, the member of the service shall be free to assume that
the sanction sought for has been granted to him”
c. Because
the applicant presented his application under Rule 17 on 28/09/2012
c. Because the
stipulated 12 weeks period ended on 21/12/2012
d. Because after this 12 weeks period, the
respondents had no right to restrain the applicant from exercising his legal
and constitutional right
e. Because Right to freedom of expression
and speech is a much cherished right and the Hon’ble Courts have jealously and
vigorously guarded these rights
f. Because in this case through the
impugned order dated 17/01/2013, the respondents have restrained and curbed the
legal and fundamental rights of the applicant in an illegal manner
6.
Details of
the remedies exhausted
The applicant declares that there are no methods devised in the service
laws to get the impugned order dated 17/01/2013 corrected and the illegality
done through this impugned order is already done, with no other alternate
remedy of any nature available other than approaching this Hon’ble Tribunal or
the Hon’ble High Court under Article 226 of the Constitution.
7.
Matter not
previously filed or pending with any other court
The applicant further declares that he had not filed any other
application, writ petition or suit, regarding the matter in respect of which
this application has been made, before any Court or any other authority or any
other Bench of the Tribunal nor any such application, writ petition or suit is
pending before any of them.
8. Relief (s)
sought
In view of the facts mentioned in paragraph 4 above, the applicant prays
for the following relief(s)—
(a)
to kindly quash the impugned illegal
order dated 17/01/2013 (Annexure No A1) passed by respondent No 3, presumably
at the instance of respondent No 2 as being against the provisions of Rule 17
of the All India Services (Conduct) Rules 1968 and Article 19(1)(a) and 19(2)
of the Constitution of India
(b)
to kindly direct the respondents to
permit the applicant to avail his legal rights under Rule 17 of the All India
Services (Conduct) Rules 1968 as regards the representation dated 28/09/2012
(Annexure No A2), particularly in compliance of the Proviso enumerated in this
Rule regarding presumption of deemed permission after passage of 12 weeks from
the date of receipt of representation
(c)
to kindly direct the respondents to
conduct an enquiry into the entire matter, right from the presentation of the
representation on 28/09/2012 to returning back the letter with unwarranted
query on 11/10/2012 to passing of impugned order dated 17/01/2013 to complete
inaction till date as regards the applicant’s representation dated 28/09/2012
so as to fix definite roles of officers found responsible for their
unwarranted, improper and illegal roles in this process which resulted in illegal
restrain and violation of the Fundamental rights of the applicant.
(d)
to kindly direct the respondents to
grant a definite compensation in the matter for illegal and arbitrary restrain
of his Fundamental Rights
9. Interim order, if any, prayed
None
10. In
the event of application being sent by registered post, it may be stated
whether the applicant desires to have oral hearing at the admission stage and
if so, he shall attach a self-addressed Postcard or Inland letter, at which
intimation regarding the date of hearing could be sent to him Not Applicable
11.
Particulars of the Bank Draft/ Postal
Order filed in respect of the application fee
a.
Name of the Bank/ Post Office ,
b.
Bank draft/ Postal Order No
c.
Date
d.
Amount Rs.
fifty only
(Rs. 50/-)
12. List of enclosures Annexure Nos
A-1 to A-8
Lucknow
Dated- 15/07/2012 Signature
of the Applicant
VERIFICATION
I, Amitabh Thakur, aged about 45 years, son of Sri Tapeshwar Narayan
Thakur, resident of 5/426, Viram Khand, Gomti Nagar, Lucknow [presently posted
as SP, Rules and Manuals, Lucknow], do hereby verify that contents of
paragraphs 1, 4 and 6 to 12 are true to my personal knowledge and paragraphs 2,
3 and 5 are believed to be true on legal advice and that I have not suppressed
any material fact.
Lucknow
Dated -15/07/2012 Signature of the applicant
Dated -15/07/2012 Signature of the applicant
