JUDGMENT :

(C.M. Application No. 1 of 2022)

1. Having heard the learned counsel for the appellant-petitioner, learned State Counsel and having gone through the averments made in the application seeking condonation of delay, we find that the delay in filing this Special Appeal has sufficiently been explained.

2. Accordingly, application is allowed and the delay in preferring the Special Appeal is hereby condoned.

(Order on memo of Appeal)

3. Heard the learned counsel for the appellant-petitioner and learned counsel representing the State-respondents.

4. We have also perused the record available on this Special Appeal.

5. By instituting the proceedings of this intra-court appeal under Chapter VIII Rule 5 of the Rules of the Court, the appellant-petitioner has questioned the order dated 18.05.2022, passed by the learned Single Judge in Writ Appeal No. 2894 of 2022, whereby the said writ petition has been dismissed.

6. At this juncture itself, we may note that by instituting Writ Appeal No. 2894 of 2022, the appellant-petitioner had challenged the validity of the order dated 16.03.2022, passed by the State Government in the Vigilance Department whereby the representation made by the appellant-petitioner, dated 16.08.2021 pursuant to an order passed by this Court on 08.01.2020 in an earlier Writ Petition No. 32018(MB) of 2019, was rejected. The prayer made in the said representation dated 16.08.2022, which has been rejected by the State Government by means of order dated 16.03.2022, was that the open vigilance enquiry conducted against him by the Vigilance Establishment and consequently the decision to initiate the criminal proceedings against him be set aside.

7. The State Government considered the said representation in compliance of the order dated 08.01.2020 passed by this Court in Writ Petition No. 32018(MB) of 2019 and rejected the same. It is this order, as observed above, which was challenged by the appellant-petitioner before the learned Single Judge.

8. Before delving into the submissions made by the learned counsel for the respective parties, we may note that one complaint against the appellant-petitioner was made while he was posted as District Magistrate, Moradabad. The preliminary enquiry into the said complaint was conducted by the Senior Superintendent of Police, Moradabad which was made available to the State Government, vide his letter dated 27.04.2017. In the said enquiry report, dated 27.04.2017 submitted by the Senior Superintendent of Police, Moradabad, a recommendation was made to get an open enquiry conducted and accordingly direction was issued to the U.P. Vigilance Establishment for conducting an open enquiry. The U.P. Vigilance Establishment, having been so directed, conducted the open enquiry into the allegations against the appellant-petitioner and submitted its report on 11.05.2018 which was considered and accordingly, Vigilance Establishment recommended for instituting a criminal case against the appellant-petitioner and its investigation.

9. The recommendation made by the U.P. Vigilance Establishment was considered and accordingly the State Government at the appropriate level took a decision on 17.07.2018 for criminal investigation into the allegations against the appellant-petitioner.

10. The appellant-petitioner before filing Writ Appeal No. 2894 of 2022 had instituted a writ petition bearing No. 32018 of 2019(MB) before this Court with the prayer for quashing the open enquiry report conducted by the Vigilance Establishment. Further prayer made by the appellant-petitioner in the said writ petition was that the State Government may be directed not to initiate criminal prosecution/proceeding against him on the basis of the said open vigilance enquiry conducted on the complaint made by the complainant-Dushyant Raj Chaudhary. It was further prayed in the said writ petition that direction be issued to the State Government to first comply with the provisions of the Government Orders dated 09.05.1997, 01.08.1997 and