Full Judgment
W.A.No.1326/2012 Arvind Kumar Joshi State of M.P.& others 19.12.2012 Shri Nidhesh Gupta, learned Senior Advocate with Shri M.K.Verma, counsel for appellant.
Shri Vivek Agarwal, G.A., for respondent/State.
This appeal is directed against an order dated 29.10.2012 passed in W.P.No.17811/2012, by which the writ Court though admitted the petition, but declined to issue ad-interim writ in the matter.
The learned Single Judge has also expressed an opinion that the appointment of respondent no.3 dated 20.9.2012 is in consonance with the provisions of Rule 6(4) of the M.P.Police Executive (Gazetted) Services and Recruitment Rules, 2000 (hereinafter referred to as 'Rules' for short) and the instructions issued by the State Government dated 3.9.2011 Annexure P-2 in the writ petition.
This order has been assailed by the learned counsel for appellant on following grounds :- (i) That the respondent no.3, who before attaining the age of superannuation was investigating the matter with appellant and the State Government with a specific motive has appointed respondent no.3 on contract basis vide Annexure P-3 dated 18.5.2012.
The learned counsel has also referred two lines of 2nd para of this order, in which it has been mentioned that this is a very important case, which is attracting the attention of all the concerned and investigation of this case deserves to be done competently without any error expeditiously, so that as per the intention of M.P.Government the case can be filed before the Special Court.
It was submitted by Shri Gupta, learned Senior Advocate that when the State Government has already expressed its intention for filing a W.A.No.1326/2012 Arvind Kumar Joshi State of M.P.& others challan before the Court, then that there would not be a fair investigation.
(ii) That the appointment of respondent no.3 was contrary to the provisions as contained in Rule 6(4) of the Rules and until and unless the M.P.Public Service Commission is consulted, his appointment cannot be approved even on contract basis.
It was further submitted that till the decision of the writ petition before the Single Bench, further investigation by respondent no.3 may be stayed or the State Government may be restrained to pass any consequential order, even after the investigation by respondent no.3.
Reliance is placed to the judgment of the Apex Court in Dinkar Anna Patil and another versus State of Maharashtra and others [(1999) 1 SCC 354].in particular para 26 of the judgment.
Stating aforesaid it was submitted by Shri Gupta, that this appeal may be allowed and ad-interim writ, as prayed in the appeal may be granted.
Shri Vivek Agarwal, learned G.A., opposed the aforesaid contention and submitted that the appointment of respondent no.3 was in accordance with sub-rule (4) of Rule 6 of the Rules and the learned Single Judge has rightly declined the relief.
It was further submitted that in this case no interim order may be passed.
In reply to it, learned counsel for appellant reiterated his contention.
From the perusal of the record, it appears that the writ petition preferred by the appellant has already been entertained and as per the statement made by Shri Agarwal the State is willing to file reply within a period of 10 days from today.
So far as the W.A.No.1326/2012 Arvind Kumar Joshi State of M.P.& others appointment of respondent no.3 is concerned, it is subject matter of writ petition.
Though the learned Single Judge while deciding the prayer of ad-interim writ, recorded a tentative finding that his appointment is in accordance with sub-rule (4) or Rule 6 of the Rules, but it is always subject to hearing the parties at the time of hearing of the petition.
At the time of hearing, learned Single Judge can decide it on its own merit and on earlier occasion while deciding ad-interim writ if any observation of finding has been recorded, it is settled law that it will not come in the way of writ Court to take a different view because the finding recorded in the interim order are not binding and it can be changed at the time of final hearing of the petition.
So far as appointment of respondent no.3 is concerned, it is to be examined by the writ Court and at present we are of the view that the investigation should not be stayed as it is at the advance stage.
However it shall be subject to the decision as may be passed by the learned Single Judge.
In view of aforesaid, we dispose of this appeal with following directions :- 1.
The State may file reply on merits of the case before the writ Court within a period of 10 days as stated by Shri Agarwal, learned G.A.2.
We request the learned Single Judge to take up the matter as per the convenience, as far as possible immediately after filing of the reply and to hear and decide the matter expeditiously.
So far as investigation or any consequential action thereafter is concerned, it shall be subject to the decision as may be passed by the writ Court.
It is made clear that we have not expressed any opinion on the merits of the case and the learned Single Judge is free to deal W.A.No.1326/2012 Arvind Kumar Joshi State of M.P.& others and decide the matter on its own merits, after hearing both the parties at the time of hearing.
C.C., as per rules.
(Krishn Kumar Lahoti) (Smt.Vimla Jain) Judge Judge M.