Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No.6905 of 2021
(Arising out of SLP (C) No. 14623 of 2020)
Mohd. Mustafa .... Appellant(s)
Versus
Union of India & Ors. …. Respondent(s)
W I T H
Civil Appeal Nos. 6906-6909 of 2021
(Arising out of SLP (C) Nos. 14982-14985 of 2020)
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
1. Aggrieved by the order dated 07.02.2019 passed by the
Governor of Punjab by which Mr. Dinkar Gupta was appointed as
Director General of Police (Head of Police Force) (hereinafter
referred to "DGP (HoPF)”), the Appellants filed original
applications before the Central Administrative Tribunal,
Chandigarh Bench, Chandigarh. By an order dated 17.01.2020,
the Tribunal set aside the order dated 07.02.2019 on the ground
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that preparation of the panel for selection of DGP (HoPF) for the
State of Punjab was in contravention of a judgement of this
1
Court in Prakash Singh v. Union of India apart from others.
Further, a direction was given to the Union Public Service
Commission (hereinafter referred to as “UPSC”) and the State of
Punjab to conduct selection for the post of DGP (HoPF), State of
Punjab afresh. The judgement of the Central Administrative
Tribunal was challenged in the High Court of Punjab and Haryana
by the UPSC, the State of Punjab and Mr. Dinkar Gupta. Mr.
Siddharth Chattopadhyaya, the Appellant in Civil Appeal arising
out of SLP (Civil) No.14982-14985 of 2020, also filed a Writ
Petition aggrieved by the rejection of the plea of bias. Writ
Petitions filed by UPSC, the State of Punjab and Mr. Dinkar Gupta
were allowed by the High Court and the judgement of the
Tribunal was set aside. Writ Petition filed by Mr. Siddharth
Chattopadhyaya (hereinafter referred to as “the Appellant”) was
dismissed. These appeals are filed assailing the legality and
validity of the judgement of the High Court dated 06.11.2020.
2. Mohd. Mustafa, the Appellant in Civil Appeal arising out of
SLP (C) No.14623 of 2020, retired on attaining the age of
superannuation during the pendency of these appeals. As the
1 (2006) 8 SCC 1
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contentions raised by Appellants in both the civil appeals are
similar, we shall refer to the facts of Civil Appeal arising out of
SLP (C) Nos. 14982-14985 of 2020. Mr. Siddharth
Chattopadhyaya was inducted to Indian Police Service in 1986
and allocated to Punjab cadre. The post of DGP (HoPF), State of
Punjab was required to be filled up due to the ensuing
retirement of Mr. Suresh Arora. A letter was written by the
Union of India on 19.01.2019 to Respondent No.1-UPSC to
initiate the process for appointment to the post of DGP (HoPF)
for the State of Punjab. A list of 12 officers who were working in
the rank of DGP/additional DGP and who had completed thirty
years of service was forwarded by the State of Punjab. The
Appellant was included in the said list.
3. The Empanelment Committee constituted by the UPSC
finalised a panel consisting of Mr. Dinkar Gupta-Respondent No.
4, Mr. M.K. Tiwari- Respondent No.6 and Mr. V.K. Bhawra
Respondent No.7. The State Government selected and
appointed Respondent No.4 as DGP (HoPF) from the said panel.
Challenging the selection and appointment of Respondent No.4
as DGP (HoPF), the Appellant and Mohd. Mustafa filed Original
Applications in the Central Administrative Tribunal. The
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Tribunal, by its order dated 17.01.2020, allowed the Original
Applications and set aside the panel prepared by the
Empanelment Committee on 04.02.2019. Consequently, the
selection and appointment of Respondent No.4 as DGP (HoPF)
was set aside. The Tribunal directed preparation of a panel of
three senior-most officers afresh strictly in accordance with the
judgment of this Court in Prakash Singh’s case (supra).
4. The Tribunal was of the opinion that this Court in Prakash
Singh’s case settled the parameters to be followed for selection
of the Director Generals of Police. UPSC deviated from the
procedure prescribed by this Court, rendering the selection
invalid. The Tribunal held that this Court specified three factors
which have to be followed for selection of DGP. Seniority, being
one of the factors, along with good record of service and range
of experience to head a police force was not given due
importance by the Empanelment Committee in finalising the
panel. Draft Guidelines 2009 framed by UPSC (hereinafter
referred to as “Draft Guidelines”) have no authenticity or
legality, according to the Tribunal. Identification of five core
policing areas from the domain of twenty policing areas is
without any basis. In addition, the Tribunal held that the
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identification of the core policing areas was to suit the selected
candidate. Preparation of the panel consisting three persons
was also found fault with due to no reasons being assigned.
5. Aggrieved by the judgment of the Tribunal, Writ Petitions
were filed in the High Court of Punjab and Haryana. The High
Court framed the following questions for determination:
1) What is the scope of judicial review/interference by the
High Court under Article 226 of the Constitution of India,
1950 against the decision of the Administrative Tribunal (in
short "Tribunal"}?
2) (a) Whether the Draft Guidelines 2009 issued by the UPSC
detailing the procedure and modalities for selection of
panel for DGP (HoPF} are patently opposed and violative
of the directions issued in Prakash Singh's case (supra}
and the findings of the Tribunal contrary to the same are
sustainable?
(b) Whether the Core Policing Areas being adopted by the
Empanelment Committee for assessment on the aspect of
'range of experience' State wise on cases to case basis are
in contravention of the Supreme Court directions in
Prakash Singh's case (supra} and whether the 5 Core
Policing Areas chosen in the present case are is legal and
valid? \
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(c) Whether in view of the findings of this Court to the
issues at (a} and (b} above, the findings of the Tribunal
are sustainable?
3) (a) What is the scope of judicial review in matter of the
empanelment and selection by the Selection/Empanelment
Committee?
(b) Whether the Tribunal exceeded the said power of
judicial review in selection of DGP (HoPF} by the UPSC in
February 2019?
4) Whether the impugned order dated 17.01.2020 of the
Tribunal is liable to be set aside and the consequential
relief?
6. The High Court held that this Court in Prakash Singh’s
case has laid down broad guidelines for selection to the post of
DGP on the basis of assessment of officers by considering length
of service, very good record and range of experience for
heading the police force. The Draft Guidelines were framed by
UPSC for implementation of directions issued by this Court in
Prakash Singh’s case. The conclusion of the Tribunal that the
Draft Guidelines have no authenticity was set aside by the High
Court on the ground that the Draft Guidelines have been
approved by this Court. The jurisdiction of UPSC in formulating
Draft Guidelines and giving discretion to the Empanelment
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Committee to follow its own procedure was upheld by the High
Court. Selection of five core policing areas for assessment of
the officers from the State of Punjab was approved by the High
Court. Relying upon judgments of this Court, the High Court
observed that there was no requirement for recording reasons
while finalising the selection of DGPs. The High Court held that
the Tribunal encroached into the domain of the experts in
setting aside the selection made by UPSC. The High Court was
in agreement with the Tribunal that the Appellant failed to make
out a case of bias. Finally, the High Court set aside the
judgment of the Tribunal and upheld the selection and
appointment of Respondent No.4 as DGP (HoPF).
7. We have heard Mr. Krishnan Venugopal, learned Senior
Counsel for the Appellant in Civil Appeal arising out of SLP (C)
Nos. 14982-14985 of 2020, Mr. P.S. Patwalia, learned Senior
Counsel for the Appellant in Civil Appeal arising out of SLP (C)
No.14623 of 2020, Mr. Aman Lekhi, learned Additional Solicitor
General for the Respondent No.1-UPSC, Mr. Mukul Rohatgi,
learned Senior Counsel for the State of Punjab, Mr. Maninder
Singh, learned Senior Counsel for Respondent No.4 and Mr.
Shyam Divan, learned Senior Counsel for Respondent No.5.
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8. Mr. Krishnan Venugopal, learned Senior Counsel appearing
for the Appellant in Civil Appeal arising out of SLP (C) Nos.
14982-14985 of 2020, argued that the empanelment and
appointment of Respondent No. 4 as DGP (HoPF) is vitiated by
bias. Respondent No.5 who was a member of the Empanelment
Committee was prejudiced against the Appellant due to the
report filed by the Appellant before the Punjab and Haryana
High Court in Civil Writ Petition No. 20359 of 2013 titled as
‘ Court on its own motion v. State of Punjab and
Another’ in which Respondent No.5 was found to be involved in
criminal activities. On earlier occasions Respondent No. 5
recused himself in matters relating to the Appellant and,
therefore, Respondent No.5 ought not to have participated in the
selection process. Accordingly, the decision of the
Empanelment Committee of which Respondent No.5 was a
member is not bona fide and is liable to be set aside. The
Appellant contended that the Draft Guidelines have no legal
sanctity. The criteria laid down by the Draft Guidelines is
contrary to the judgement of this Court in Prakash Singh’s
case. The Draft Guidelines cannot be considered as statutory
rules or regulations. It was further submitted on behalf of the
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Appellant that the five core policing areas that were identified
by the Empanelment Committee out of twenty policing areas as
criteria for assessment of officers’ range of experience to head a
police force were tailor-made to suit Respondent No. 4. Due
weightage has not been accorded to seniority as laid down by
this Court in Prakash Singh’s case. Admittedly, the Appellant
is senior to Respondent No.4 and could not have been
overlooked unless there are justifiable reasons for his
supersession. According to the Appellant, the list of 12 officers
working as additional DGP/DGP could not have been forwarded
by the State of Punjab for selection and appointment to one post
of DGP. Mr. P. S. Patwalia, learned Senior Counsel appearing for
the Appellant in Civil Appeal arising out of SLP (C) No.14623 of
2020, submitted that Mr. Mohd. Mustafa has maximum gallantry
awards and has a meritorious record of service. He was not
empanelled due to faulty selection procedure adopted by UPSC.
9. Mr. Aman Lekhi, learned Additional Solicitor General,
countered the submissions made on behalf of the Appellants by
arguing that the Draft Guidelines were approved by this Court.
He submitted that the Draft Guidelines were framed by the
UPSC to give effect to the judgement of this Court in Prakash
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Singh’s case. The five core policing areas that were identified
for empanelment out of twenty domain assignments usually
allocated to police officers was done after taking into account
the peculiar situation and requirement of the State of Punjab.
The criteria laid down by this Court in Prakash Singh’s case is
part of the Draft Guidelines and the Tribunal committed an error
in holding the Guidelines to be contrary to the said judgement.
Respondent No.5, being the then DGP (HoPF), was included as a
member of the Empanelment Committee and the Appellants did
not raise any objection to his participation in the deliberations of
the Empanelment Committee. It was contended that the
assessment by the Empanelment Committee being strictly in
accordance with the Draft Guidelines and the judgement of this
Court in Prakash Singh’s case, the selection and appointment
of Respondent No.4 as DGP (HoPF) is valid. The Empanelment
Committee is not required to record any reasons.
10. Mr. Mukul Rohatgi, learned Senior Counsel appearing for
the State of Punjab, contended that the zone of consideration
according to clause 2 of Draft Guidelines is restricted to the
cadre of ADGP/DGP to officers who have completed 30 years of
service. The Draft Guidelines contained three requirements,
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namely (i) length of service (ii) very good record and (iii) range
of experience. Identification of five core policing areas from
amongst twenty policing areas for assessment of merit of
officers was done by the Empanelment Committee by taking
into account the special needs of the State of Punjab. Courts
should show deference to the decision of experts in the matter
of selections. The State raised serious objection to the
allegation of bias made by the Appellants against Respondent
No.4 and 5. Mr. Rohatgi stated that the Appellant abused his
position as the head of a special investigation team by filing a
report which was not signed by the other members of the team
to tarnish the reputation of Respondent No. 4 and 5. Mr. Rohatgi
stated that the report filed by the Appellant without the
signatures of the other members of the Committee is still lying
in a sealed cover before the High Court. It was submitted on
behalf of the State that the Appellant was fully aware of
initiation of the process for appointment of DGP and the
presence of Respondent No.5 in the Committee but did not raise
any objection to his continuance in the Empanelment
Committee. The Appellant cannot be permitted to raise a bogey
of bias at this late hour. In any event, Respondent No.5 was
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required to continue in the Empanelment Committee as per the
doctrine of necessity. The State Government refuted the
contention of the Appellant that there was suppression of
relevant record. It was argued that the relevant record was sent
to the Public Service Commission. The State Government
cannot be accused of favouring Respondent No.4 by not sending
the said report to the Public Service Commission. Mr. Rohatgi
submitted that the Draft Guidelines have been followed for
empanelment and selection of a number of DGPs in several
States. The Empanelment Committee comprises of senior
officers of which Respondent No.5 is one member. The
selection cannot be said to be biased when the allegation of
prejudice is against one member of a multi-member Committee.
11. Mr. Maninder Singh, learned Senior Counsel, stated that
Respondent No.4 has an exemplary record of service and is a
highly decorated officer with more medals than the Appellant.
Responding to submissions of the Appellant pertaining to the
report filed in the High Court, Respondent No.4 contended that
there is a sinister motive on the part of the Appellant in trying to
mislead this Court that the said report was filed by the special
investigation team. In fact, two reports were filed by the
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special investigation team on 01.02.2018 and 15.03.2018. The
said reports were signed by all the members of the Committee
in which no allegations were made against Respondent No.4.
Later, another report was filed by the Appellant alleging that
Respondent No.4 was involved in certain criminal activities.
The said report was given in a sealed cover to the Court. The
other members of the Committee have gone on record to state
that they were not consulted before the said report was filed
before the Court nor do they have any knowledge about the
contents of the report. The Appellant was facing a criminal
charge in a case registered under Section 306 IPC and had
engineered the report only for the purpose of maligning
Respondent No.4 to steal a march over him for selection and
appointment as DGP. Mr. Maninder Singh argued that the Draft
Guidelines which are strictly in conformity with the directions
issued by this Court in Prakash Singh’s case have not been
challenged in spite of which the Tribunal held them to be in
contravention of the directions in Prakash Singh’s case. He
further submitted that Mr. Mustafa has retired on attaining the
age of superannuation and the Appellant has service of less
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than six months left and cannot be considered for appointment
as DGP even if he succeeds in this appeal.
12. Mr. Shyam Divan, learned Senior Counsel for Respondent
No.5, submitted that the plea of bias as alleged by the Appellant
was rejected by both the Tribunal and the High Court which does
not warrant any interference by this Court. As the Director
General of Police, Respondent No.5 was duty bound to be a
member of the Empanelment Committee. The allegation of bias
is baseless and created only for the purpose of succeeding in
the challenge to the selection and appointment of Respondent
No.4 as DGP (HoPF). Moreover, no objection was raised by the
Appellants for the participation of Respondent No.5 in the
Empanelment Committee.
13. Judicial review may be defined as a Court's power to
review the actions of other branches or levels of government;
especially the Court's power to invalidate legislative and
2
executive actions as being unconstitutional . Power of judicial
review is within the domain of the judiciary to determine the
legality of administrative action and the validity of legislations
and it aims to protect citizens from abuse and misuse of power
2 Black's Law Dictionary
14 | P a g e
3
by any branch of the State . The power of judicial review is a
4
basic feature of the Constitution of India . Judicial review has
certain inherent limitations. However, it is suited more for
adjudication of disputes other than for performing administrative
functions. It is for the executive to administer law and the
function of the judiciary is to ensure that the Government carries
out its duties in accordance with the provisions of the
5
Constitution .
14. The grounds on which administrative action is subject to
judicial review are illegality, irrationality and procedural
impropriety. The following observations made by Lord Diplock in
Council of Civil Service Unions and others v. Minister for
6
Civil Service are apt:
“By ‘illegality’ as a ground for judicial review I mean that
the decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to
it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those
3 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
4 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
5 S.R. Bommai v. Union of India (1994) 3 SCC 1
6 [1985] AC 374
15 | P a g e
persons, the judges, by whom the judicial power of the
state is exercisable.
By ‘irrationality’ I mean what can by now be succinctly
referred to as ‘Wednesbury unreasonableness’. It applies to a
decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have
arrived at it. Whether a decision falls within this category is a
question that judges by their training and experience should be
well equipped to answer, or else there would be something badly
wrong with our judicial system. To justify the Court’s exercise of
this role, resort I think is today no longer needed to Viscount
Radcliff’s ingenious explanation in Edwards (Inspector of Taxes)
v. Bairstow, of irrationality as a ground for a court’s reversal of a
decision by ascribing it to an inferred though unidentifiable
mistake of law by the decision makers. “Irrationality” by now
can stand on its own feet as an accepted ground on which a
decision may be attacked by judicial review.
I have described the third head as “procedural
impropriety” rather than failure to observe basic rules of natural
justice or failure to act with procedural fairness towards the
person who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also
failure by an administrative tribunal to observe procedural rules
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that are expressly laid down in the legislative instrument by
which its jurisdiction is conferred, even where such failure does
not involve any denial of natural justice. But the instant case is
not concerned with the proceedings of an administrative tribunal
at all”.
15. The discretionary power vested in an administrative
authority is not absolute and unfettered. In Wednesbury , Lord
Greene was of the opinion that discretion must be exercised
reasonably. Explaining the concept of unreasonableness, Lord
Greene stated that a person entrusted with discretion must
direct himself properly in law and that he must call his own
attention to the matter which he is bound to consider. He
observed that the authority must exclude from his consideration
matters which are irrelevant to the matter he is to consider. Lord
Greene concluded that if an authority does not obey
aforementioned rules, he may truly be said, and often is said, to
7
be acting unreasonably.
16. Conditions prompted by extraneous or irrelevant
considerations are unreasonable and liable to be set aside by
8
Courts in exercise of its power under judicial review . (See:
7 Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680
8 Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189
17 | P a g e
9
State of U.P. v. Raja Ram Jaiswal , Sheonandan Paswan v.
10 11
State of Bihar & Others , Sant Raj v. O.P. Singla ,
12
Padfield v. Minister of Agriculture ). A decision can be
13
arrived at by an authority after considering all relevant factors .
If the discretionary power has been exercised in disregard of
relevant consideration, the Court will normally hold the action
14
bad in law . Relevant, germane and valid considerations
cannot be ignored or overlooked by an executive authority while
15
taking a decision . It is trite law that Courts in exercise of power
under judicial review do not interfere with selections made by
expert bodies by reassessing comparative merits of the
candidates. Interference with selections is restricted to
decisions vitiated by bias, mala fides and contrary to statutory
provisions. (See: Dalpat Abasaheb Solunke v. Dr. B.S.
16 17
Mahajan , Badrinath v. State of T.N. , National Institute
of Mental Health and Neuro Sciences v. Dr. K. Kalyana
18
Raman , Major General I. P. S Dewan v. Union of
9 (1985) 3 SCC 131
10 (1983) 1 SCC 438
11 (1985) 2 SCC 349
12 [1968] 1 All ER 694
13 Sachidanand Pandey v. State of WB, (1987) 2 SCC 295
14 H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009)
15 C.K. Thakker Administrative Law, Second Edition page 801
16 (1990) 1 SCC 305
17 (2000) 8 SCC 395
18 1992 Supp (2) SCC 481
18 | P a g e
19
India , Union Public Service Commission v. Hiranyalal
20 21
Dev , M. V. Thimmaiah v. UPSC and UPSC v.
22
Sathiyapriya ).
17. Keeping in mind the aforestated principles of law, we
proceed to examine whether the selection and appointment of
Respondent No.4 as DGP (HoPF) on the basis of the Draft
Guidelines is contrary to the judgment of this Court in Prakash
Singh’s case, suffers from the vice of irrationality and is vitiated
due to malice and bias.
18. The Government of India appointed a National Police
Commission on 15.11.1977 for reviewing the role and
performance of the police as well as law enforcement agencies
and as an institution to protect the rights of the citizens
enshrined under the Constitution. Recommendations made by
the Commission were not implemented giving rise to a writ
petition under Article 32 of the Constitution of India filed by a
retired Director General of Police, Prakash Singh in which
directions were sought for framing a new Police Act on the lines
of Model Act drafted by the Commission. The writ petition was
19 (1995) 3 SCC 383
20 (1988) 2 SCC 242
21 (2008) 2 SCC 119
22 (2018) 15 SCC 796
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disposed of by this Court on 22.09.2006 by its judgment in
Prakash Singh’s case in which several directions pertaining to
the State Security Commission, selection and minimum tenure
of the Director General of Police, minimum tenure of the
Inspector General of Police and other officers, separation of
investigation, police establishment board, police complaining
authority and National Security Commission were given. The
said directions were issued under Article 32, read with Article
142, of the Constitution of India which were directed to be
implemented till the legislature passes the appropriate
legislations. In so far as the selection and minimum tenure of
DGP is concerned, this Court directed that the UPSC shall
empanel three senior-most officers of the Department for
promotion to the rank of DGP on the basis of their length of
service, very good record and range of experience for heading
the police force. The State Government shall select the DGP
from amongst the three senior-most officers empanelled by the
UPSC. A minimum tenure of at least two years, irrespective of
the date of superannuation, has been fixed by this Court.
19. By way of implementation of the directions issued by this
Court in Prakash Singh’s case, UPSC framed Draft Guidelines
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for empanelling officers for appointment as DGP (Chief of
Police). The composition of the Empanelment Committee is as
under: -
a) Chairman, or in his absence, Member, UPSC – President.
b) Home Secretary to the Government of India or his
nominee not below the rank of Special Secretary to the
Government of India.
c) Chief Secretary of the State Government concerned.
d) Director General of Police of the State Government
concerned.
e) An officer from amongst the head of CPOs/CPMFs not
belonging to the cadre for which selection is being made,
nominated by the Government of India, Ministry of Home
Affairs.
20. Officers belonging to the Indian Police Service of the
concerned cadre, not below the rank of ADG, and who have
completed at least 30 years of service as on the date of
occurrence of vacancy for which the panel is prepared, are
eligible for being considered for selection and appointment as
DGP. Selection, according to the Guidelines, shall be merit-
based and inclusion in the panel shall be adjudged on the basis
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of ‘very good’ record and range of experience for heading the
police force. The Draft Guidelines empowered the Committee to
adopt its own methods and procedure for objective assessment
of the suitability of officers to the zone of consideration. The
Committee was obligated to make assessment of the annual
confidential reports of the officers with reference to the last ten
years preceding the date of meeting of the Committee. Only
those officers assessed by the Committee as at least ‘very good’
for each of the preceding 10 years shall be considered for
inclusion in the panel. According to the Guidelines, the
Committee shall also take into account the range of experience,
relevant for heading the police force as reflected in the bio-data
of the officers for determining their suitability for inclusion in the
panel. The Guidelines stipulated that the State Government
shall appoint DGP from amongst the three senior-most officers
included in the panel.
21. On 03.07.2018, this Court disposed of an application filed
for modification of the judgment in Prakash Singh’s case by
giving the following directions: -
6.1. All the States shall send their proposals in anticipation of
the vacancies to the Union Public Service Commission, well in
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time at least three months prior to the date of retirement of the
incumbent on the post of Director General of Police;
6.2 The Union Public Service Commission shall prepare the
panel as per the directions of this Court in the judgment in
Prakash Singh’s case(supra) and intimate to the States;
6.3 The State shall immediately appoint one of the persons
from the panel prepared by the Union Public Service
Commission;
6.4 None of the States shall ever conceive of the idea of
appointing any person on the post of Director General of Police
on acting basis for there is no concept of acting Director
General of Police as per the decision in Prakash Singh’s
case(supra);
6.5 An endeavour has to be made by all concerned to see that
the person who was selected and appointed as the Director
General of Police continues despite his date of superannuation.
However, the extended term beyond the date of
superannuation should be a reasonable period. We say so as it
has been brought to our notice that some of the States have
adopted a practice to appoint the Director General of Police on
the last date of retirement as a consequence of which the
person continues for two years after his date of
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superannuation. Such a practice will not be in conformity with
the spirit of the direction.
6.6 Our direction No.(c) should be considered by the Union
Public Service Commission to mean that the persons are to be
empanelled, as far as practicable, from amongst the people
within the zone of consideration who have got clear two years
of service. Merit and seniority should be given due weightage.
6.7 Any legislation/rule framed by any of the States or the
Central Government running counter to the direction shall
remain in abeyance to the aforesaid extent.
22. It is relevant to note that the State of Punjab enacted
Punjab Police Act, 2007, subsequent to the decision of this Court
in Prakash Singh’s case. According to Section 6 of the said
Act, the DGP shall be selected by the State Government from
amongst the Indian Police Service officers and on appointment,
the DGP shall have a tenure of not less than two years. The
validity of the said Act was challenged in Writ Petition No.286 of
2013. The State of Punjab filed I.A. No. 144172 of 2018 for
modification of the order dated 03.07.2018, seeking liberty to
appoint DGP in accordance with the Punjab Police Act, 2007.
While examining the contention of the State of Punjab, this
Court summoned Mr. Rakesh Kumar Gupta, Secretary, UPSC to
24 | P a g e
appear on 15.01.2019. Mr. Gupta submitted before this Court
that committees have been constituted by the UPSC for
selection of DGPs and panels have been drawn by the
Committees in respect of 12 States. This Court refused to
modify the order dated 03.07.2018 after being satisfied with the
procedure adopted by UPSC to carry out the directions of this
Court. As some State Governments were appointing DGP on the
last date of service of the incumbent to enable the officer to get
an extendable term of two years, this Court by an order dated
13.03.2019 clarified that empanelment of an officer for
consideration for appointment to the post of DGP should be only
in case of a minimum residual tenure of six months. In other
words, only those officers who have at least six months of
service prior to their retirement shall be considered for
appointment to the post of DGP.
23. The contention of the Appellant is that the criteria fixed by
this Court in Prakash Singh’s case was not followed in letter
and spirit by the Empanelment Committee of UPSC while
conducting selection to the post of DGP (HoPF). The Draft
Guidelines are contrary to the directions given by this Court in
Prakash Singh ’s case and therefore, the selection of
25 | P a g e
Respondent No.4 is liable to be set aside. Selection of five core
policing areas for evaluation of merit of the officers in respect of
range of experience is arbitrary and is tailor-made to suit
Respondent No.4. Admittedly, appellant is senior to respondent
No.4 and could not have been superseded by the Empanelment
Committee of the UPSC.
24. According to UPSC, the Draft Guidelines were made to give
effect to the directions issued by this Court in Prakash Singh’s
case. The Draft Guidelines were placed before this Court when
the interlocutory application filed by the Government of India for
modification of the judgment dated 22.09.2006 in Prakash
Singh’s case was being considered. This Court expressed its
satisfaction regarding the procedure and practice followed by
UPSC in the matter of selection to the post of DGP. The Draft
Guidelines referred to the factors to be taken into consideration
by the Empanelment Committee for selection of DGP as per the
directions issued by this Court in Prakash Singh’s case.
Length of service, very good record and range of experience for
heading the police force are factors to be considered by the
Empanelment Committee. According to UPSC, the range of
experience is a constituent part of the component of merit. In
26 | P a g e
respect of selection to the post of DGP (HoPF) for the State of
Punjab, five core policing areas have been identified to assess
the range of experience of the officers concerned for the last 10
years, which are:-
A. Intelligence
B. Law and order
C. Administration
D. Investigation
E. Security
The selection based on the Draft Guidelines was defended
by UPSC on the ground that the Guidelines are in conformity
with the directions issued by this Court in Prakash Singh’s
case.
25. This Court in Prakash Singh’s case directed
empanelment of officers for appointment to the post of DGP by
UPSC by laying down broad criteria. The implementation of the
directions issued by this Court has to be on objective basis for
which reason the UPSC has framed Draft Guidelines, which are
being followed uniformly since 2009 for selection of DGPs in
several States. Keeping in mind, the seniority of the officers
under consideration, selection is conducted on the basis of very
good record and range of experience for heading the police
force. Assessment of very good record of service is on the basis
of annual confidential reports for the last 10 years. Range of
27 | P a g e
experience for heading the police force assessed by the
empanelment committee is done by assessing the performance
of officers in five core police areas out of 20 policing areas.
Discretion was given to the empanelment committees to select
the core policing areas by taking into account the prevailing
situation in the States. Considering the peculiar situation of the
State of Punjab, intelligence, law and order, administration,
investigation and security were identified as the core policing
areas to ascertain range of experience of an officer to head the
police force.
26. The Draft Guidelines cannot be said to be contrary to the
criteria laid down by this Court in Prakash Singh’s case. The
Guidelines carry forward the directions given by this Court by
stipulating the objective criteria for guidance of the
empanelment committees. The preparation of a panel on the
basis of the Draft Guidelines after taking into account the core
policing areas cannot be said to be arbitrary. We are not
impressed with the submission of the Appellant that the core
policing areas were identified only to suit Respondent No. 4.
Assessment of relative merit of the officers under consideration
is within the domain of the Empanelment Committee, which is
28 | P a g e
given liberty to adopt its own procedure. Merit of the officers in
the zone of consideration is evaluated on the basis of their
record of service and range of experience. A panel of three
officers has been prepared in the order of seniority. The
Appellant was found to be inadequate for inclusion in the panel
in the range of experience for core policing areas. The Tribunal
committed an error in recording the finding that the
Empanelment Committee deviated from the procedure
prescribed by this Court in Prakash Singh’s case. There is no
basis for the conclusion of the Tribunal that the Draft Guidelines
are contrary to the directions given by this Court in Prakash
Singh’s case. The broad criteria mentioned in the said case are
seniority, very good record of service and range of experience to
head a police force. The Draft Guidelines which have to be
scrupulously followed by empanelment committees stipulate
that a selection should be on the same criteria. In the instant
case, Empanelment Committee decided to assess the range of
experience of officers to head the police force in the State of
Punjab after considering the peculiarities of the State.
Identification of five core policing areas out of a domain of
twenty policing areas cannot be said to be an arbitrary exercise
29 | P a g e
of power. The Tribunal committed an error in accepting the
submission of the Appellant that the core policing areas,
identified by the Empanelment Committee was only to favour
Respondent No.4 on the basis of unsubstantiated allegations.
Empanelment was directed to be done by UPSC on the basis of
length of service, very good record and range of experience for
heading the police force in Prakash Singh’s case (supra).
Later, in the order dated 13.03.2019, this Court clarified its
earlier order dated 03.07.2018 and directed UPSC to prepare the
panel purely on the basis of merit. Be that as it may, the
recommendation of the names of 12 officers for consideration is
on the basis of completion of thirty years’ service in the cadre of
ADGP. Length of service as mentioned in Prakash Singh’s
case (supra) is taken into account for determination of zone of
consideration. The other two factors namely, good record of
service and range of experience of all the 12 officers
recommended on the basis of length of service are assessed by
the Empanelment Committee. Inter se merit of the candidates
was evaluated according to the objective criteria followed by the
Empanelment Committee. The preparation of panel for
appointment as DGP (HoPF) for the State of Punjab, by the
30 | P a g e
Empanelment Committee is in compliance of the Draft
Guidelines, which are in conformity with the directions issued by
this Court in Prakash Singh’s case as the panel was prepared
after taking into account the relevant considerations as directed
by this Court in Prakash Singh's case and stipulated in the
Draft Guidelines. As no irrelevant consideration prompted the
decision, the preparation of the panel by the Empanelment
Committee cannot be said to be irrational. Having regard to
the nature of the function and the power confided to the
Selection Committee, it is not a legal requirement that reasons
should be recorded for its conclusion [See: UPSC v. K. Rajaiah
23
& Ors. , Union Public Service Commission v. Arun Kumar
24
Sharma & Ors. and Baidyanath Yadav v. Aditya Narayan
25
Roy & Ors ]. The Tribunal committed an error in holding the
decision of the Committee as arbitrary in the absence of
reasons. Therefore, the preparation of the panel by the
Empanelment Committee cannot be said to be suffering from
unreasonableness.
27. The Appellant contended that Respondent No. 5 ought to
have recused himself from the Empanelment Committee as he is
23 (2005) 10 SCC 15
24 (2015) 12 SCC 600
25 2020 (16) SCC 799
31 | P a g e
inimically disposed of towards him. The Appellant argued that
he was appointed to head a special investigation team by the
High Court of Punjab and Haryana to investigate the
involvement of law enforcement authorities in drug trafficking
and he unearthed material against senior police officers. He
was falsely implicated in a criminal case involving the suicide of
Inderpreet Singh Chadha. It is the case of the Appellant that he
submitted a status report to the High Court on 18.05.2018 in a
sealed cover in which he has mentioned about the involvement
of Respondent No.4 and Respondent No.5 in drug trafficking.
The Appellant referred to the recusal of Respondent No.5 earlier
when he was asked to write his performance appraisal report.
Finally, the Appellant submitted that the preparation of panel is
vitiated due to bias of the Respondent No.5. On the other hand,
it was submitted by the Respondents that the Appellant was
involved in the suicide of Inderpreet Singh Chadha. The special
investigation team headed by the Appellant submitted two
reports on 01.02.2018 and 15.03.2018 before the High Court in
which there is no mention of either Respondent No.4 or
Respondent No. 5. The sealed cover submitted by the Appellant
before the High Court was without consulting the other two
32 | P a g e
members of the special investigation team. It was further
submitted that Respondent No. 5, being the DGP of a State,
could not have recused himself from being a member of the
Empanelment Committee. It is also argued that the Appellant
has not raised any objection regarding the participation of
Respondent No.5 in the selection proceedings. Doctrine of
necessity was pressed into service by the Respondents to
submit that Respondent No.5 could not have recused himself
from the Empanelment Committee.
28. It is relevant to note that the plea of bias did not find
favour with the Tribunal or the High Court. Before us, the learned
counsel for the Appellant, relying upon Badrinath (supra), has
submitted that even if one person of the multi-member
committee is biased, the decision of the committee shall be
rendered invalid. Further, this decision holds that doctrine of
necessity applies only in case a committee is constituted by a
statute or a statutory rule. In other words, if the committee is
constituted under an administrative order there can be no
difficulty in an officer recusing himself and requesting another
officer to be substituted in his place. Even if a plea of bias is not
raised earlier, it can be raised during the proceedings in judicial
33 | P a g e
review. Further, even if bias is not a direct cause of the decision,
the test is one of mere likelihood of bias, which means a
26
substantial possibility of bias.
29. In exercise of its power under Articles 32 and 142 of the
Constitution of India, this Court directed UPSC to constitute an
empanelment committee to recommend three senior-most
officers with good record of service and range of experience, and
meeting other parameters, from whom the DGP shall be
selected and appointed by the State Government. The
incumbent DGP of the State is a member of the empanelment
committee according to the Draft Guidelines issued by the UPSC.
These Guidelines issued in compliance with the directions given
by this Court under Article 142 of the Constitution of India, we
would accept, are well-known and in public domain. Therefore,
the position that Respondent No.5, being the DGP, would be a
member of the Empanelment Committee was within the
knowledge of the Appellant. Ignorance of this factum when
pretended must be rejected as a mere pretence. The two
Appellants are not laymen, but senior police officers aspiring for
the appointment to the top police position in the State. In
26 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher
Secondary School and Others, (1993) 4 SCC 10
34 | P a g e
endorsement of our reasoning, we have on record a news article
th
published in the Hindustan Times, dated 30 January 2019, titled
“DGP’s appointment – All eyes on UPSC’s February 4 meet”.
The article states that as per the information gathered from
officials privy to the development, the UPSC meeting will be held
in Delhi and would be attended by the Punjab Chief Secretary
Mr. Karan Avtar Singh and the incumbent DGP Mr. Suresh Arora,
i.e., Respondent No.5. In the given facts and considering the
position and status of the Appellant, we would not accept the
plea that participation of Respondent No.5 in the Empanelment
Committee was unknown or a secret for the Appellants.
30. It is in this context, we have to examine whether the
Appellants are estopped from challenging the recommendations
made by the Empanelment Committee, given the fact that they
had taken a calculated chance, and not protested till the
selection panel was made public. In our opinion, the ratio in
Madan Lal and Others v. State of Jammu and Kashmir and
27
Others , would apply in the present case as when a person
takes a chance and participates, thereafter he cannot, because
the result is unpalatable, turn around to contend that the
process was unfair or the selection committee was not properly
27 (1995) 3 SCC 486
35 | P a g e
constituted. This decision, no doubt, pertains to a case where
the petitioner had appeared at an open interview, however, the
ratio would apply to the present case as the Appellant too had
taken a calculated chance in spite of the stakes, that too without
protest, and then has belatedly raised the plea of bias and
prejudice only when he was not recommended. The judgment in
Madanlal (supra) refers to an earlier decision of this Court in
Om Prakash Shukla v. Akhilesh Kumar Shukla and
28
Others , wherein the petitioner who had appeared at an
examination without protest was not granted any relief, as he
had filed the petition when he could not succeed afterwards in
the examination. This principle has been reiterated in Manish
29
Kumar Shahi v. State of Bihar and Others , and Ramesh
30
Chandra Shah and Others v. Anil Joshi and Others .
31. More appropriate for our case would be an earlier decision
31
in Dr. G. Sarana v. University of Lucknow and Others,
wherein a similar question had come up for consideration before
a three-judge bench of this Court as the petitioner, after having
appeared before the selection committee and on his failure to
28 (1986) Supp. SCC 285
29 (2010) 12 SCC 576
30 (2013) 11 SCC 309
31 (1976) 3 SCC 585
36 | P a g e
get appointed, had challenged the selection result pleading bias
against him by three out of five members of the selection
committee. He also challenged constitution of the committee.
Rejecting the challenge, this Court had held:
“15. We do not, however, consider it necessary in the
present case to go into the question of the
reasonableness of bias or real likelihood of bias as
despite the fact that the appellant knew all the relevant
facts, he did not before appearing for the interview or at
the time of the interview raise even his little finger
against the constitution of the Selection Committee. He
seems to have voluntarily appeared before the
committee and taken a chance of having a favourable
recommendation from it. Having done so, it is not now
open to him to turn round and question the constitution
of the committee. This view gains strength from a
decision of this Court in Manak Lal's case where in
more or less similar circumstances, it was held that the
failure of the appellant to take the identical plea at the
earlier stage of the proceedings created an effective bar
37 | P a g e
of waiver against him. The following observations made
therein are worth quoting:
“ It seems clear that the appellant wanted to take a
chance to secure a favourable report from the
tribunal which was constituted and when he found
that he was confronted with an unfavourable report,
he adopted the device of raising the present
technical point.””
32. The aforesaid judgment in Dr. G. Sarana (supra) was
referred in Madras Institute of Development Studies and
32
Another v. K. Sivasubramaniyan and Others , in which
selection to the post of Assistant Professor was challenged on
the ground that shortlisting of candidates was contrary to the
Faculty Recruitment Rules. The challenge was declined on the
ground of estoppel as the respondent, without raising any
objection to the alleged variations in the contents of the
advertisement and the Rules, had submitted his application and
participated in the selection process by appearing before the
committee of experts.
32 (2016) 1 SCC 454
38 | P a g e
33. Equally appropriate would be a reference to the decision of
this Court in P.D. Dinakaran (1) v. Judges Inquiry
33
Committee and Others , in which the allegation was that one
of the members of the committee constituted by the Chairman
of the Council of States (Rajya Sabha) under Section 3(2) of the
Judges (Inquiry) Act, 1968 was biased. This judgment
extensively recites and assimilates from both domestic and
foreign judgments on the question of bias and prejudice and
quotes the following observations in Dr. G. Sarana’s (supra)
case:
“11… the real question is not whether a member of an
administrative board while exercising quasi-judicial
powers or discharging quasi-judicial functions was
biased, for it is difficult to probe the mind of a person.
What has to be seen is whether there is a reasonable
ground for believing that he was likely to have been
biased. In deciding the question of bias, human
probabilities and ordinary course of human conduct
have to be taken into consideration.”
33 (2011) 8 SCC 380
39 | P a g e
34. Thereafter, reference is made to Ashok Kumar Yadav
34
and Others v. State of Haryana and Others , which refers
to the Constitutional Bench judgment in A.K. Kraipak and
35
Others v. Union of India and Others . Ashok Kumar Yadav
(supra) was a case of selection by UPSC and following extract
from this judgment is of some significance:
“ 18. We must straightaway point out that A.K. Kraipak
case is a landmark in the development of
administrative law and it has contributed in a large
measure to the strengthening of the rule of law in this
country. We would not like to whittle down in the
slightest measure the vital principle laid down in this
decision which has nourished the roots of the rule of
law and injected justice and fair play into legality.
There can be no doubt that if a Selection Committee is
constituted for the purpose of selecting candidates on
merits and one of the members of the Selection
Committee is closely related to a candidate appearing
for the selection, it would not be enough for such
member merely to withdraw from participation in the
34 (1985) 4 SCC 417
35 (1969) 2 SCC 262
40 | P a g e
interview of the candidate related to him but he must
withdraw altogether from the entire selection process
and ask the authorities to nominate another person in
his place on the Selection Committee, because
otherwise all the selections made would be vitiated on
account of reasonable likelihood of bias affecting the
process of selection. But the situation here is a little
different because the selection of candidates to the
Haryana Civil Service (Executive) and Allied Services is
being made not by any Selection Committee
constituted for that purpose but it is being done by the
Haryana Public Service Commission which is a
Commission set up under Article 316 of the
Constitution. It is a Commission which consists of a
Chairman and a specified number of members and is a
constitutional authority. We do not think that the
principle which requires that a member of a Selection
Committee whose close relative is appearing for
selection should decline to become a member of the
Selection Committee or withdraw from it leaving it to
the appointing authority to nominate another person in
41 | P a g e
his place, need be applied in case of a constitutional
authority like the Public Service Commission, whether
Central or State. If a member of a Public Service
Commission were to withdraw altogether from the
selection process on the ground that a close relative of
his is appearing for selection, no other person save a
member can be substituted in his place. And it may
sometimes happen that no other member is available
to take the place of such member and the functioning
of the Public Service Commission may be affected.
When two or more members of a Public Service
Commission are holding a viva voce examination, they
are functioning not as individuals but as the Public
Service Commission. Of course, we must make it clear
that when a close relative of a member of a Public
Service Commission is appearing for interview, such
member must withdraw from participation in the
interview of that candidate and must not take part in
any discussion in regard to the merits of that candidate
and even the marks or credits given to that candidate
should not be disclosed to him.”
42 | P a g e
35. ‘Real likelihood test’ applied in Ranjit Thakur v. Union of
36
India and Others , is elucidated in the following words:
“ 15...The test of real likelihood of bias is whether a
reasonable person, in possession of relevant
information, would have thought that bias was likely
and whether Respondent 4 was likely to be disposed to
decide the matter only in a particular way.
16. It is the essence of a judgment that it is made after
due observance of the judicial process; that the court
or tribunal passing it observes, at least the minimal
requirements of natural justice; is composed of
impartial persons acting fairly and without bias and in
good faith. A judgment which is the result of bias or
want of impartiality is a nullity and the trial ‘coram non
judice’.
17. As to the tests of the likelihood of bias what is
relevant is the reasonableness of the apprehension in
that regard in the mind of the party. The proper
approach for the Judge is not to look at his own mind
36 (1987) 4 SCC 611
43 | P a g e
and ask himself, however, honestly, ‘Am I biased?’; but
to look at the mind of the party before him.”
36. In P.D. Dinakaran (1) (supra), this Court held that the
member in question had during a seminar spoken against the
proposed elevation of the petitioner as a Judge of the Supreme
Court and, therefore, the apprehension of likelihood of bias is
reasonable and not fanciful, though in fact, the member may not
be biased. Nevertheless, the writ petition was dismissed on the
ground that the petitioner was not a lay person and being well-
versed in law should have objected to the constitution of
committee when notified in the Official Gazette, which factum
was highly publicised in almost all newspapers. Notwithstanding
the awareness and knowledge, the petitioner did not object,
which indicates that he was satisfied that the member had
nothing against him. Therefore, belated plea taken by the
petitioner did not merit acceptance and mitigates against bona
fides of the objection to the appointment of the person as a
member of the committee. In its support, reference was made to
several decisions of this Court, including Shri Lachoo Mal v.
37
Shri Radhey Shyam , which acknowledges the general
37 (1971) 1 SCC 619
44 | P a g e
principle that everyone has a right to waive and agree to waive
the advantage of a law or rule made solely for his benefit and
protection of the individual in his private capacity which may be
dispensed with without infringing any public right or public
policy. In Manak Lal (Shri), Advocate v. Prem Chand
38
Singhvi and Others , this Court had declined to nullify an
action made on the recommendation of the Tribunal though the
chairman of the Tribunal had appeared before the appellant in
the case. The reason was that the appellant had never raised a
point before the Tribunal, which with the other factors reflected
waiver. In conclusion, the Court in P.D. Dinakaran (1) (supra)
held:
“86. In conclusion, we hold that the belated raising of
objection against the inclusion of Respondent 3 in the
Committee under Section 3(2) appears to be a
calculated move on the petitioner's part. He is an
intelligent person and knows that in terms of Rule 9(2)
(c) of the Judges (Inquiry) Rules, 1969, the Presiding
Officer of the Committee is required to forward the
report to the Chairman within a period of three months
from the date the charges framed under Section 3(3)
38 AIR 1957 SC 425
45 | P a g e
of the Act were served upon him. Therefore, he wants
to adopt every possible tactic to delay the submission
of report which may in all probability compel the
Committee to make a request to the Chairman to
extend the time in terms of the proviso to Rule 9(2)(c).
This Court or, for that reason, no court can render
assistance to the petitioner in a petition filed with the
sole object of delaying finalisation of the inquiry.”
Nevertheless, the Court in P.D. Dinakaran (1) (supra) had
requested the Chairman to nominate another distinguished jurist
in place of the person in question, duly noticing that the
proceedings initiated had progressed only to the stage of
framing of charges and nomination of another jurist would not
hamper the proceedings. The reconstituted committee would be
entitled to proceed on the charges already framed.
37. In view of the above ratio, which is applicable, it is not
necessary for this Court to delve further into the allegations and
submissions based on assertion of bias and prejudice.
38. For the aforementioned reasons, we do not find any error
committed by the High Court in setting aside the judgment of
46 | P a g e
the Tribunal and upholding the selection and appointment of
Respondent No.4 as DGP (HoPF), State of Punjab.
39. The appeals are dismissed.
……...............................................J.
[ L. NAGESWARA RAO ]
……...............................................J.
[ SANJIV KHANNA ]
……...............................................J.
[ B.R. GAVAI ]
New Delhi,
November 16, 2021.
47 | P a g e