Indian Kanoon - Search engine for Indian Law

Karnataka High Court

C. Dinakar vs Government Of Karnataka And Others on 23 October, 1998

Bench: R.P. Sethi, K.R. Prasad Rao

ORDER

1. Alleging mala fides attributed to the second respondent and violation of all norms and rules pertaining to service jurisprudence, the senior-most IPS Officer in the State has sought justice to vindicate his position, which is alleged to have been lowered down by reducing him in status and subjecting him to humiliation by placing him virtually under subordination of respondent 4, admittedly much junior Police Officer in the IPS Cadre. Court has been moved to protect the interests of the higher Police Officers and other civil servants by relieving them from the alleged clutches of the politicians by providing a credible mechanism for their promotion, particularly the selection of the Police Chief in the State. Effective measures are prayed to be provided to give credibility to the services by providing them security of tenure by protecting their status under the rules keeping in view their seniority, performance, merit and reputation.

Relying upon the judgment of the Apex Court in Vineet Narain and Others v Union of India and Another, it is prayed that the Police Officers, particularly the appointment of Police Chief of a State should not be left at the mercy of the Ministers. Reliance is also placed upon the judgment of the Supreme Court in Union of India and Others v Sushil Kumar Modi and Others , wherein it was cautioned that the executive Government should not be allowed to interfere with the performance of the statutory duties of the investigating agencies. No doubt, the executive have the general power to review the working of the agencies under him, but the officers employed in the departments and the agencies under the control of a Minister cannot be permitted to be treated as serfs. The executive State is expected not to create circumstances by resort to dubious actions which may give a general expression of bias or vindictiveness, with the result that the faith of the common man is shaken in general and the confidence of the aggrieved Government Official shattered in particular resulting in the weakening of bureaucracy, which if continuously perpetuated would result in the collapse of the administrative edifice, upon which the political executive of the State rests. Personal bias, likes or dislikes and considerations not connected with the post sought to be filled should not be permitted to influence the decision making process while making selections and promotions, particularly of high officials and especially the Heads of the Departments as in the present case, the Chief of the Police Force in the State of Karnataka.

2. The admitted position is that the petitioner is the senior-most Director General of Police in the State. Undisputedly, respondent 4 is junior to him as Director General of Police and was not even a Director General before 10-1-1997. His alleged promotion as Director General on 10-1-1997 is also disputed by the petitioner. The services of respondent 4, who was Special Director, Intelligence Bureau, New Delhi, were placed at the disposal of the State Government by the Government of India and he is shown to have been simultaneously promoted to the cadre of Director General and Inspector General of Police (DG and IGP) in the pay scale of Rs. 7,600-8,000 as is evident from 6th of March, 1997 (Annexure-A). He was simultaneously appointed with immediate effect as DG and IGP, Bangalore vice Shri A.P. Durai, whose services were placed at the disposal of the Union Government, for being appointed as the Director General, Railway Protection Force, New Delhi, on central deputation basis.

3. In order to appreciate the controversy involved in the present case, it is necessary to have a resume of the facts as narrated in the pleadings of the parties.

According to the petitioner, he was appointed to the Indian Police Service (IPS) in the year 1963 and was allotted to Karnataka State. He states to have served in various capacities in different parts of Karnataka State and for a tenure under the Government of India. He has claimed that throughout his career he rendered highly meritorious service discharging his duties most efficiently by exhibiting the highest degree of integrity in his personal and official conduct. In recognition of his outstanding merit, the Government of India is stated to have selected and deputed him as the sole representative of the country to attend the INTERPOL Conference at Paris in the year 1972. He was awarded Police Medal in 1994 and President's Police Medal for distinguished service in 1996. The post of DG and IGP, which is a cadre post can be filled up by appointing an officer belonging to the IPS on the basis of seniority-cum-merit. It is submitted that there are in all 4 posts of Director General of Police in the State of Karnataka, which are designated as:

(i) Director General and Inspector General of Police;

(ii) Director General of Police, Commandant General, Home-guards and Director of Civil Defence and Fire Services;

(iii) Director General of Police, COD, Training Special Units and Economic Offence;

(iv) Chairman and Managing Director of Police Housing Corporation.

Subsequent to the judgment of this Court in Vijayadevaraj Urs, D. v G. V. Rao and Another, the Government of Karnataka is stated to have issued Order No. DPAR 72 SPS 94, dated 20th of March, 1995 constituting a Committee consisting of the Chief Minister as Chairman, the concerned Minister as Member and the Chief Secretary as its Secretary to consider and process officers for elevation to the posts of the Head of the Department. The aforesaid order is stated to have been subsequently superseded by another Government Order No. DPAR 70 SENENI 96, dated 23rd of December, 1996, by which a Committee of 5 officers with Chief Secretary to the Government as Chairman was constituted to examine the suitability of the officers for recommending them to be appointed, upon elevation to the post of the Head of the Department and equivalent grade additional heads of the Government. It is submitted by the petitioner that since DG and IGP is the Head of the Department, the designated Committee should have processed the cases of eligible officers and recommended the deserving to be appointed to the aforesaid post. It is alleged by the petitioner and not denied by the respondents that the appointment of respondent 4 as DG and IGP was neither considered nor recommended by the Committee. It is further alleged that violating the Government Order, the then Chief Secretary put up a note directly to the Chief Minister, who passed the order in the file appointing respondent 4 to the Caveat post of DG and IGP. Such order of appointment is alleged to be against the mandate of this Court and in violation of the Government Order. The petitioner submitted that the appointment of respondent 4 to the post of DG and IGP was actuated by extraneous considerations and mala fides attributed to respondent 2, for which the petitioner has referred to 7 cases investigated by him, in which respondent 2 is alleged to have interfered at different times in his capacity as Home Minister of the State Government. As the petitioner claims to have not succumbed to the pressure of respondent 2 in the investigation of the aforesaid cases, the respondent 2 conceived ill-will against him, which is alleged to have been reflected in making the appointment of respondent 4 as DG and IGP. The petitioner has alleged the violation of the Indian Police Service (Pay) Rules, 1954 (hereinafter called the 'Pay Rules'), particularly, Rule 3(2-A). The petitioner challenged the selection and appointment of respondent 4 by way of filing O.A. No. 200 of 1997 before the Central Administrative Tribunal, Bangalore Bench, which was dismissed vide order dated 15th of January, 1998, impugned in this petition.

4. Respondent 1 in its reply filed before the Tribunal submitted that no Government servant had a right to be appointed to a particular post and that he had only a right to be considered for appointment to such of the post, if he otherwise possessed the requisite qualifications. While making the appointment of respondent 4 as DG and IGP the appointing Authority claimed to had due regard to the seniority of all the eligible candidates. It was submitted that there was no tradition to appoint the senior-most IPS Officer only as DG and IGP.

5. Respondent 2 in his reply denied the allegations of mala fides attributed to him and contended that the selection to the post of DG and IGP had been made on the basis of objective assessment of merit of all the eligible candidates including the petitioner and respondent 4.

6. In reply, respondent 4 had submitted that while he was given the meritorious service medal in January 1984, the petitioner was given the said medal only in January 1994. Similarly, while he was awarded distinguished service medal in January 1994, the petitioner was awarded the same medal in August 1996 only.

7. During the arguments before the Tribunal, the respondents submitted that except the post of Director General of Police, Commandant General, Home-guards and Director of Civil Defence and Fire Services, the post held by the applicant, the other two posts in the grade of Rs. 7,600-8,000 were amenable to the supervisory jurisdiction of the DG and IGP. It is worth noting at this stage that the other two posts claimed to be under the supervisory jurisdiction of the DG and IGP were the post of Director General of Police, COD, Training Special Units and Economic Offences and the Chairman and Managing Director of Police Housing Corporation. It is further worth noticing that during the pendency of this litigation, the petitioner has been appointed as Chairman and Managing Director of Police Housing Corporation, which according to the respondents, as submitted before the Tribunal, was a post amenable to the supervisory jurisdiction of respondent 4. Finding no substance in any of the pleas raised by the petitioner before the Tribunal, it rejected his petition.

8. In the statement of objections filed in this Court, it has been submitted on behalf of respondent 1 that the action in appointing respondent 4 to the post of DG and IGP was legal, valid and according to law. Statement of Objections filed before the Tribunal in petitioner's O.A. No. 200 of 1997 has been relied upon. The petitioner is alleged to have urged erroneous interpretations of law and the Court rulings to suit his convenience. It is contended that promotions to various cadres of IPS are effected in terms of the provisions contained in the Pay Rules. Likewise, promotions of officers of the Indian Administrative Service and Indian Forest Service are governed by the provisions of the Pay Rules applicable to the aforesaid services. Officers belonging to State cadre, who are not governed by the Pay Rules applicable to Indian Police Service, Indian Administrative Service and Indian Forest Service are governed by the Karnataka Civil Services (General Recruitment) Rules, 1977, which provide for promotion to various cadres including Heads of Departments. The Government Orders relied upon by the petitioner were not applicable in the case of promotion and appointment to the post of DG and IGP. It is submitted that an appointment to the post of DG and IGP being an appointment of the Head of the Police Department, under Rule 36, read with Item 11(b) of the Second Schedule to the Karnataka Government (Transaction of Business) Rules, 1977, is in the exclusive prerogative of the Chief Minister, who is not expected to seek the recommendation of any Committee for selecting/appointing the Head of the Police Department. It is contended that "the selection from among the officers in the zone of consideration is made mainly on the basis of suitability, which involves the consideration of merit, experience and seniority of the officers in question as also all other relevant matters". The appointment and posting of an officer in the Police Department as the Head of the Department is stated to be a transfer to a particular post, which could not be construed as promotion as claimed by the petitioner. It is further submitted that selection and appointment of the DG and IGP is made from among 4 officers in the highest cadre in the Police Department. In the instant case, when the appointment of DG and IGP was to be made in early March 1997, there were only three incumbent officers in the cadre on account of the vacancy caused by the transfer of Sri A.P. Durai, as noted earlier. At that time, the 4th respondent was first in the empanelled list of officers eligible for and awaiting promotion to the rank of Director General of Police. He is stated to have been empanelled on the basis of the recommendation made on 12-2-1996 by a duly constituted Departmental Promotion Committee. It is worth noticing that at that time, he was not posted in the State of Karnataka. It is claimed that promotion of 4th respondent to the Director General cadre had to take place in the normal course on account of the vacancy caused by the transfer of Sri A.P. Durai. The promotion of respondent 4 is claimed to have been effected strictly in accordance with the Pay Rules, which was not challenged or called in question either by the petitioner or by any one else. It is contended that "having once become an officer in the highest cadre in the Police Department along with the 3 other officers already serving in that cadre, the choice of the 4th respondent by the Hon'ble Chief Minister for appointment as DG and IGP was purely a matter of deployment and posting of an officer, in the nature of a transfer and not any further promotion to any cadre or post higher than Director General of Police. The mere fact that the promotion and appointment of respondent 4 was made and gazetted as a single order and by one Notification did not affect his appointment as such. The composite manner of promotion and posting is claimed to be a recognised mode of appointment and posting under the service law. The seniority and merit had no importance or relevance in the matter of appointment as DG and IGP. Suitability of the officer to deal with particular requirement of a given post, being the only criterion, which is claimed to have been objectively applied. The order of the Tribunal is claimed to be legal, valid and according to law. It is claimed that there is no illegality in the appointment of respondent 4 as DG and IGP, which is stated to be legal, valid and not open to question.

9. In his reply filed in this Court, respondent 2 has submitted that he was the person authorised in law to make the appointment. After perusing the file with the notings and service records of the 4 DGs; on basis of his objective assessment of the requirements of the post of DG and IGP keeping in view the suitability of the 4 officers he objectively selected the 4th respondent and posted him to the aforesaid post. The selection is claimed to have been made on the basis of the aforesaid respondent's perception of the matter. The decision was made in the best interests of the administration of the State. He has denied the allegations of prejudice, malice or ill-will towards the writ petitioner and claimed that he did not allow any extraneous considerations to effect his decision. The allegation of the petitioner that he had incurred the wrath of respondent 2 on account of his alleged opposing views has been termed to be incorrect and imaginary. He has further submitted that as the Tribunal has correctly and conclusively decided in favour of respondent 1, it is proper for this Court to uphold the same in the best interest of all concerned.

10. In his statement of objections, respondent 4 has submitted that he belongs to 1964 batch of IPS. He worked as Deputy Commissioner of Police, Law and Order upto 3rd of June, 1977 and thereafter he was on central deputation on being selected and appointed as Assistant Director (Intelligence Bureau), New Delhi. On his promotion to super timescale of IPS, he returned to Karnataka and worked as Deputy Inspector General of Police, Intelligence and Railways from 10-11-1980 to 22-7-1981 and Deputy Inspector General of Police, Northern Range, Belgaum from 13-6-1983 to 10-11-1983. Between November 1982 and June 1983, he was deputed to Scotland Yard to undergo specialised training. He was again selected for Central deputation and posted as Chief of Security and Vigilance in the HAL Corporate Office, where he remained from 28th of April, 1984 to 2nd of May, 1989. After completing deputation, he was posted as Deputy Inspector General of Police (Intelligence) in Karnataka and was promoted as Inspector General of Police (Intelligence). He claims to have been promoted as Additional Director General of Police on 20th of September, 1992. He worked as Additional DGP (Prisons), Additional DGP (Administration) and Commissioner of Police, Bangalore City. He has claimed that in view of his suitability, he was selected as Special Director, Intelligence Bureau, New Delhi, by Government of India, where he reported on 30th of January, 1997. On his selection and posting as DG and IGP, Karnataka State, by the Government of Karnataka, he got relieved from Government of India and reported as DG and IGP, Karnataka, on 6-3-1997. During September 1996, he claims to have participated as a delegate from India to Asia Pacific Conference of Correctional Administrators at Christ Church, New-zealand. He claims to be possessing the experience in all branches and areas of Police work not only at gross-root level, but also at State and National level. Awards known as President's Police Medal for meritorious service and the President's Police Medal for distinguished service were conferred upon him as noticed earlier. Various Governments are stated to have entrusted him with sensitive and important jobs, which demonstrate his suitability. The All India seniority as claimed by the petitioner depicted only the relevant merit of individual candidates in the examination conducted during the year by the UPSC for the selection to the service, which did not disclose any merit of the officers in their career after joining service. The aforesaid list could not be termed as seniority-cum-merit list as pleaded by the petitioner. He claims to have been selected and posted as DG and IGP of Karnataka on the basis of his honest, efficient and blemishless record of service. The order of the Tribunal has been claimed to be strictly according to law and there was no circumstance justifying of taking a different view by this Court.

11. We have heard the learned Counsel, who initially appeared for the petitioner and thereafter the petitioner himself at length. We also heard the learned Counsel appearing for the respondents. Record of the Administrative Tribunal and other connected records made available to us have been perused.

12. It has been argued on behalf of the petitioner that the Tribunal was not justified in rejecting his application filed against the appointment of respondent 4 as DG and IGP. It is contended that appointment to the aforesaid post, which is the Head of the Police Department is required to be made by selection from amongst the officers in the grade of DGP. Such selection is required to be made on merit with due regard to seniority as stipulated under Rule 3(2-A) of Pay Rules. Non-compliance of the Government Order dated 23rd of December, 1996, is stated to have led to arbitrary appointment of respondent 4 ignoring the merit and seniority of the petitioner. Serious allegations of mala fides and extraneous considerations have been attributed to respondent 2 in making the appointment of respondent 4, which have been prayed to be accepted for granting to the petitioner the reliefs prayed for by him.

13. The submissions of the petitioner have vehemently been denied on behalf of the respondents, who have submitted that the appointment to the post of DG and IGP was neither a promotion nor a selection. It is contended that such an appointment is a simpliciter the assignment of duties to one of the Director Generals. No rule, much less the Pay Rules are claimed to have been violated. The principles of selection through Committee as contemplated vide Government Order dated 23rd of December, 1996 is claimed to be not applicable insofar as the Police Service is concerned. Seniority alone cannot be made a basis for preferring the claim for appointment as DG and IGP. It is claimed that the best amongst the available DGP has been appointed to the post, which has not in any way adversely affected the interests of the petitioner. His plea of being reduced in status has been seriously contested. The appointment to the post is claimed to have been made on very objective criteria and after a comparative assessment of the service records of all the eligible officers including the petitioner.

14. The learned Counsel appearing for the respondents has raised a preliminary point of law submitting that while exercising writ jurisdiction under Article 226 of the Constitution of India in a matter where the impugned order of the Government has been examined by the Tribunal, this Court has no power to examine and determine the legality of the Government action, but the Court is only concerned with the decision making process of the Tribunal, If the Tribunal is shown to have acted in accordance with the provisions of the Administrative Tribunals Act and the Rules made thereunder, this Court cannot substitute its opinion for the opinion of the Tribunal with respect to the impugned action of the respondent-State.

15. Such a plea cannot be accepted as it is opposed to the rule of law and impliedly restricts the power conferred upon this Court by Articles 226 and 227 of the Constitution of India. The Supreme Court in L. Chandra Kumar v Union of India and Others , examined this aspect of the matter and held that the creation of the Tribunals did not in any way affect the power vesting in the High Court under Article 226 of the Constitution. It was noticed that the Administrative Tribunals were constituted under Articles 323A and 323B of the Constitution with authority to hear matters where the vires of statutory provisions are questioned and that did not exclude the jurisdiction of the High Court to have the judicial review of the action impugned. There was no constitutional prohibition against the High Court performing a supplemental as opposed to the substantive role in that regard. The Tribunals were primarily created to deal with the problem of backlogs of High Courts, which were noticed to have reached colossal proportions. The Supreme Court held:

"We may first address the issue of exclusion of the power of judicial review of the High Courts. We have already held that in respect of the power of judicial review, the jurisdiction of the High Courts under Article 226/227 cannot be excluded. It has been contended before us that the Tribunals should not be allowed to adjudicate upon matters where the vires of legislations is questioned, and that they should restrict themselves to handling matters where constitutional issues are not raised. We cannot bring ourselves to agree to this proposition as that may result in splitting up proceedings and may cause avoidable delay. If such a view were to be adopted, it would be open for litigants to raise constitutional issues, many of which may be quite frivolous, to directly approach the High Court and thus subvert the jurisdiction of the Tribunals. Moreover, even in these special branches of law, some areas do involve the consideration of constitutional questions on a regular basis; for instance, in service law matters, a large majority of cases involve an interpretation of Articles 14, 15 and 16 of the Constitution. To hold that the Tribunals have no power to handle matters involving constitutional issues would not serve the purpose for which they were constituted. On the other hand, to hold that all such decisions will be subject to the jurisdiction of the High Courts under Article 226/227 of the Constitution before a Division Bench of the High Court within whose territorial jurisdiction the Tribunal concerned falls will serve two purposes. While saving the power of judicial review of legislative action vested in the High Courts under Article 226/227 of the Constitution, it will ensure that frivolous claims are filtered out through the process of adjudication in the Tribunal. The High Court will also have the benefit of a reasoned decision on merits which will be of use to it in finally deciding the matter.

It further held:

In view of the reasoning adopted by us, we hold that clause (2)(d) of Article 323A and clause (3)(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the "exclusion of jurisdiction" clauses in. all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The" jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other Courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Articles 323A and 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the concerned Tribunal falls. The Tribunals will, nevertheless, continue to act like Courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated".

16. There is therefore no substance in the objection raised on behalf of the respondents and it is held that this Court is competent to examine the constitutionality and legality of the executive action complained of before the Tribunal, besides the decision of the Tribunal itself. The submission is also contradictory in terms because without examining the constitutionality or legality of the action complained, it is not possible to appreciate the order of the Tribunal. Accepting the submission of the learned Counsel for the respondents in this behalf would amount to clogging the powers of the judicial review vested in this Court under the Constitution.

17. The controversy raised in this petition, which is required to be resolved revolves around the legality and interpretation of Annexure-A, dated 6th of March, 1997. Whereas the petitioner contends that the impugned Notification Annexure-A is actuated by extraneous considerations, which adversely affects his service rights and the appointment to the post of DG and IGP is required to be made by selection from amongst the officers in the grade of DGP. According to him, the selection must be made upon reasonable criterion keeping in view the seniority and merit of the persons eligible to be appointed to the aforesaid post. Mandate of Pay Rules cannot be ignored and unguided power/discretion cannot be held to be vested in any of the respondents, howsoever high he may be, to make the appointment to the Police Chief of the State merely according to his whims, caprice and desire. On the other hand, the respondents have contended before us that such appointment is a simpliciter case of assignment of duties to one of the Director Generals. Applicability of the rules and the process of selections through Committee is stated to be not applicable. Seniority alone has never been made the basis for the appointment of one of the Director Generals to DG and IGP.

The notification in controversy reads as:

"The services of Shri A.P. Durai, IPS (RR 62), Director General and Inspector General of Police, Bangalore are placed at the disposal of the Government of India, with immediate effect, for being appointed as the Director General, Railway Protection Force, New Delhi, on Central Deputation basis.

Shri T. Srinivasulu, IPS (RR 64), Special Director, Intelligence Bureau, New Delhi, whose services have been replaced at the disposal of the State Government by the Government of India, is promoted to the cadre of DG and IGP carrying the pay scale of Rs. 7,600-8,000 p.m. and is appointed with immediate effect and until further orders as the Director General and Inspector General of Police, Bangalore vice Shri A.P. Durai".

It is conceded that the promotion of respondent 4 as Director General and his appointment as DG and IGP was simultaneously made by the notification extracted hereinabove. It follows therefore that prior to 6th of March, 1997, the respondent 4 had not been promoted to the selection grade conferred upon the Director General of Police. It is therefore argued that as at the time of his substantive promotion to the cadre of DG and IGP, the post of DG and IPG of the State was lying vacant consequent upon the placement of the services of Sri A.P. Durai at the disposal of the Government of India, the State Government without disturbing the Director Generals already posted in the State, issued the Notification of assigning respondent 4 the duties of DG and IGP. Such an argument addressed on behalf of the respondents appears to be contradictory in terms inasmuch as no such plea is shown to have been raised before the Tribunal or specifically contended in the statement of objections filed in this Court. In the statement of objections filed before the Administrative Tribunal by the first respondent, it was contended:

"The applicant is not entitled to all or any of the reliefs set out in the application. It is settled law that a Government servant has no right to be appointed to a particular post and the right, if any, is to be considered for promotion or for selection for appointment, depending on the applicable rules. Rule 3(2-A) of the Indian Police Service (Pay) Rules, 1954 ('the Rules' for brevity) states that appointment to the Selection Grade and posts carrying pay above the timescale of pay in the Indian Police Service shall be made by selection on merit with due regard to seniority. Inasmuch as appointment is by selection, the officers eligible have a right to be considered for selection and have no right to appointment. That a particular officer is senior to another in the same grade confers no right on the senior officer for the Rule in terms says that due regard shall be had to seniority. In the present case while exercising the discretion of selection, the appointing authority has had due regard to seniority of the eligible candidates. No right of the applicant has therefore been infringed and consequently the applicant has no right to question the selection and appointment of the 4th respondent. On this threshold issue the application is liable to be rejected".

(emphasis supplied) In para 2 of the statement of objections it was submitted:

"From among the officers in that grade, the officer considered as most suitable is appointed by selection".

Again, in para 8 it was contended:

"The appointment to the post of DG and IGP has been done on very objective criteria and after a comparative assessment of the Service records of all the eligible officers including the applicant".

While replying grounds in para 5, the respondent 1 further submitted:

"Comparative merit has been assessed and reasons recorded for selecting respondent 4 as DG and IGP".

Similarly, respondent 2 in his statement of objections submitted:

"The selection to the post of Director General and Inspector General of Police of Karnataka State has been made on the basis of objective assessment of merit of all the eligible candidates. Respondent 4 was found to be most suitable officer to hold the post of Director General and Inspector General of Police".

He further submitted:

"The appointment of the fourth respondent, which is by selection is free from arbitrariness in that the decision to appoint the fourth respondent is based on the relevant records including the Annual Confidential Reports of the fourth respondent and the applicant which this respondent has considered objectively before selecting respondent 4".

In the summary of the written arguments submitted before the Tribunal, the respondents had contended that the appointment of DG and IGP was only an appointment of one to be the first among the equals, who functions as the head of the Police Force in the State. Rule 36 of the Karnataka Government (Transaction of Business) Rules, 1977 (hereinafter called the 'Business Rules') was relied upon to show that respondent 2 had the jurisdiction to make the appointment of DG and IGP. It was contended that the second respondent-Chief Minister had taken into account the factual note of the Chief Secretary and after scrutinising the service records and confidential reports of the four incumbent Director General of Police Officers made an objective assessment of their relative merit by taking into account their seniority and came to the conclusion that 4th respondent was most suitable officer to be appointed as DG and IGP. While dealing with the arguments of the parties in this behalf, the Tribunal has held:

"Regarding the first contention of the applicant that there are no rules or guidelines it has to be stated that the respondents have produced the Karnataka Government (Transaction of Business) Rules, 1977. These rules were framed under clauses (2) and (3) of Article 166 of the Constitution of India. According to Rule 36 of these Rules all cases of the nature specified in the Second Schedule to these Rules shall, before the issue of orders thereon, be submitted to the Chief Minister by the Secretary of the Department concerned. According to the Second Schedule, Item 11(p) proposals for the appointment and posting of Heads of Departments are required to be submitted to the Chief Minister. This would clearly show that it is the Chief Minister who is the final authority in the matter of appointment of Heads of Departments which includes the DG and IGP who is the Head of the Police Department. The respondents have also produced G.O. No. DPAR 89 AAR 95, dated 15-5-1996 according to which regarding appointment, transfers and postings of AIS/JAS/HODs the Under Secretary is shown as officer, who prepares and submits the papers, the Deputy Secretary/Joint Secretary/Additional Secretary scrutinises and passes on the same to the Secretary and the Secretary is shown as passing them on to the Additional Chief Secretary/Chief Secretary for submission and the Additional Chief Secretary/Chief Secretary submits them to the Chief Minister. Therefore, it cannot be said that there are no rules framed by the State Government as regards appointment of the DG and IGP of the State. At this stage the learned Counsel for the applicant argued that in the case of Vijayadevaraj Urs, supra, His Lordship in para 60 at page 304 has held: "So far I have dealt with the merits and regarding my findings and conclusion holding that the matter requires a re-examination by Government. In order to enable Government to satisfactorily re-examine the matter I consider it proper to refer to a ruling of the Supreme Court on the meaning of the term 'merit' and on the desirability of constituting a Screening Committee to examine the records of all the eligible officers and submit its report to the concerned Minister to take a proper decision". His argument is that in spite of this observation the State Government has not framed any rules for the formation of a Screening Committee. As can be seen from the orders passed by His Lordship in this reported decision, there is no direction to the Government to frame rules but the observation is only an advice to the Government to take a proper decision. At para 64 His Lordship has observed: "An examination of the service records by a high level expert committee would be of great assistance to the concerned Minister to take a decision. In my view, the constitution of such a Committee by Government is highly desirable. But whether Government constitute such a Screening Committee or not and have its assistance or not is a matter for it to decide". If the Screening Committee is not constituted according to that decision that will not give a right to the applicant to contend that because of non-framing of rules for Screening Committee his interests were affected. Even in this reported decision His Lordship has referred to the notings made by the Deputy Secretary and Chief Secretary and the minutes recorded by the Chief Minister which His Lordship had considered. Therefore, there is a prescribed procedure that is being followed by the State Government".

18. The appointment of DG and IGP of respondent 4 was also tried to be justified on the basis of the comparison of the service record of the petitioner and respondent 4. Dealing with the arguments of the learned Counsel for the parties in that regard, the Tribunal held:

"Learned Counsel for the applicant contended that according to para 7 of the reply of statement of respondent 1, respondent 3 had indicated in his note to respondent 2 that the records of the applicant as well Dr. Srinivasan were extremely good but respondent 4 was graded as outstanding by respondent 2 on the basis of his records during the last five years of service totally ignoring the 'extremely good' records of the applicant. According to the Counsel, 'extremely good' should amount to 'outstanding'. We do not agree with this view. In Vijayadevaraj Urs' case, supra, His Lordship has observed at para 55 on page 303: "The term 'outstanding' employed by the Chief Minister is not capable of any easy and precise definition. In matters of promotion, that is also an aspect of merit or the highest grading of merit". Though the learned Counsel for the applicant wanted to make out that 'extremely good' can be equated to 'outstanding' but the decision relied upon would show that 'extremely good' does not indicate that it is the highest grading in merit assessment".

The Tribunal further held:

"As already stated above in this order, respondent 2, who was the ultimate authority in taking the decision to appoint suitable person to the post of DG and IGP, had gone by the ACRS of the officers considered and found respondent 4 to be more meritorious and therefore suitable on appointment to the post of DG and IGP. In Union of India v M.L. Capoor and Others, the Apex Court has observed at para 17, page 94: "Merit is certainly an elusive factor capable of being judged very differently from different angles, or, by applications of varying tests of it by different persons, or, by the same persons, at different times". However, in the matter of selection for appointment to the post of DG and IGP respondent 2 had taken into account the records as stated above".

19. To justify their action, the respondents had alleged that the impugned notification did not in any way adversely affect the service rights of the petitioner. It was submitted that except the post of Director General of Police, Home-guards, which the petitioner was holding at that time, the other two posts in grade of Rs. 7,600-8,000 including the post of Chairman and Managing Director of Police Housing Corporation, the post presently held by the petitioner "are amenable to the supervisory jurisdiction of DG and IGP and keeping the seniority of the applicant in consideration the applicant was not continued in the position he wag holding, so that he might not feel humiliated to report to his junior, that is respondent 4". In view of what has been noticed hereinabove it can safely be concluded that the contention of the respondents that such an appointment is a simpliciter assignment of duties to one of the Director Generals has to be noticed only to be rejected being contradictory in terms and devoid of any legal substance.

20. Even the record produced by the respondents does not justify their contentions raised before us. Note prepared by the Deputy Secretary, DPAR (Services) dated 1-3-1997 shows that after Sri A.P. Durai was approved for appointment as Director General of Railway Protection Force in the Central Government, the Ministry of Home Affairs, Government of India, had requested the State Government to relieve the officer immediately. As the post of DG and IGP held by Sri A.P. Durai was likely to fall vacant consequent upon his deputation to Government of India, proposal was made for filling up the same by appointing one of the officers in the grade of DGP by selection. The names including the name of the petitioner and respondent 4 were submitted for consideration. It was specifically mentioned that respondent 4 was in the rank of Additional Director General of Police when he was in the State Government. However, the Government of India was reported to have appointed him as Special Director, IB in the pay scale of Rs. 7,600-8,000, which was the pay scale of DGP. The Secretary, DPAR in that behalf noted: "Normally the DG and IGP, Karnataka is selected by the Government from among the eligible officers. The selection is done by the Chief Minister who, incidentally, is the Home Minister also". The papers were thereafter submitted to the Chief Secretary, who on 3rd of March, 1997 further submitted the papers to the Chief Minister for his perusal with request to make selection after an overall assessment of the officers eligible to be appointed to the post of DG and IGP. The consultation with the Minister of State for Home was recommended to be dispensed with on the ground of his being away abroad. The Chief Minister is shown to have considered the cases of all the eligible officers. On the basis of the performance of respondent 4, which was shown to him to have been graded as outstanding in his ACR for the last 5 years continuously, the Chief Minister opined that Sri T. Srinivasulu was the most suitable officer for the post of DG and IGP. After ordering his appointment to the aforesaid post, he directed for sending message to the Government of India to place the services of respondent 4 at the disposal of the State Government. The petitioner was directed to be transferred and appointed as Director General of Police and Commandant General, Home-guards and Ex Officio Director, Civil Defence and Director Fire Force, Bangalore. Strangely enough a letter dated 5th of March, 1997 issued by the Ministry of Home Affairs indicates the repatriation of respondent 4 to his parent cadre in the State of Karnataka. This letter apparently shows that the Chief Minister was misled to believe on 6th of March, 1997 that respondent 4 was still on deputation with the Government of India, which persuaded him to request the Central Government for placing the services of respondent 4 at the disposal of the State Government. Certificate of transfer of charge shows that respondent 4 had in fact made over charge of his office as Special Director at IB Headquarters, New Delhi on the afternoon of 5th of March, 1997. The services of respondent 4 are shown to have been placed at the disposal of the State Government by Order No. I(4)/97(16)-1119, dated 5th of March, 1997.

21. From the pleadings of the parties, the submissions made before the Tribunal and the findings returned by it in this behalf it cannot be said that the appointment of respondent 4 as DG and IGP was an order of simpliciter assignment of duties of DG and IGP to him in his capacity as DGP. The respondents 1 and 2 are shown and proved to have appointed respondent 4 by selection purportedly after perusal of the comparative service record of all concerned. The plea of mere assignment of duties of DG and IGP to respondent 4 appears to have been carved out purposely perhaps upon conceiving a doubt that such a selection could not be justified before a Court of law, as selection is admittedly distinct from nomination. We shall therefore assume that the appointment of respondent 4 has been made on the basis of the selection and determine the legality of Annexure-A in that context.

22. Selection does not mean only the final act of selecting, which as already noticed has to be distinguished from nomination. The selection of a person requires the initiation of a process for the purpose which by itself envisages some standard or guideline. The word 'selection' means and includes the act of process of selecting, a range from which to select, process by which some individuals contribute more offspring than others to the intended objective. The source of power to make selection in the service is generally the rules and if such rules are not strictly complied with, the exercise of the power of selection stands vitiated. In the absence of rules, some criterion or guideline is required to be spelt out showing that the process of selection had been fair and reasonable. The selection itself envisages the determination of the better right of the person selected, which in other words would mean that non-selected were not upto the marks expected by the selecting Authority. The selection in the services cannot be left at the mercy or caprice or whims of an individual. For claiming and assuming the power of selection, such individual is also required to show that he had acted bona fidely in fair, legal and proper manner without being influenced by extraneous considerations and obviously not in a mechanical manner. More care is cautioned when appointment by selection is sought to be made to the post of the Heads of the Department or Police Chief in the State. The bureaucracy and the administration which has acquired permanency is required to be assured the performance of their duties in accordance with law without being influenced by the political executive, which in a democracy comes and goes according to the will of the people expressed through election process. In the present political set up prevalent in the country the service rights of the persons running the administration cannot and should not be left at the mercy of casual visitors to the political executive. This does not mean that the political executive has no power to run the administration and make appointments according to its convenience for the purposes of giving effect to its policies and commitments made during the election. However, such assurances and promises made during the election have to be implemented within the administrative apparatus provided under the system. Keeping the services at the mercy of the political executive would lead to anarchy, which if not checked or controlled would demolish the democratic set up established in the country under the Constitution.

23. After referring to the 7 principles of public life as stated in the report by Lord Noln and the report of the National Police Commission, the Supreme Court in Vineet Narain's case, supra,observed:

"In view of the problem in the States being even more acute, as elaborately discussed in the Report of the National Police Commission (1979), there is urgent need for the State Governments also to set up credible mechanism for selection of the Police Chief in the States. The Central Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all Police officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of Superintendent of Police is on an average only a few months and transfers are made or whimsical reasons. Apart from demoralising the Police Force, it has also the adverse effect of politicising the personnel. It is therefore, essential that prompt measures are taken by the Central Government within the ambit of their constitutional powers in the federation to impress upon the State Governments that such a practice is alien to the envisaged constitutional machinery. The situation described in the National Police Commission's Report (1979) was alarming and it has become much worse by now. The desperation of the Union Home Minister in his letters to the State Governments, placed before us at the hearing, reveal a distressing situation which must be cured, if the rule of law is to prevail. No action within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances".

The Apex Court had earlier in Sushil Kumar Modi's case, supra, observed that the Minister in the Government had general power to review the working of the police official (in that case the CBI Agency) and to give broad policy directions regarding their functioning and to appraise the quality of the work of the head of the agency and other officers as the executive head is in no way to be diluted. However, all the powers of the Minister are subject to the condition that none of them would extend to permit the Minister to interfere with the course of investigation and prosecution in any individual case and in that respect the concerned officers are to be governed by the mandate of law and the statutory duty cast upon them. The Court referred in detail to the nature of duty and function of the Police Officer in the investigation of an offence. On the basis of its earlier judgment, the Supreme Court in Vineet Narain's case, supra, concluded: "The Ministers concerned in these matters to be understood as circumscribed by these limitations under the law". If the unbridled or unguided powers are conferred upon the Minister in the matter of appointment of the Police Chief in the State, there is no surety of such Police Chief to be fair and impartial or act according to law for which he is appointed and conferred powers for the purpose.

The views of Lord Denning in R. v Metropolitan Police Commissioner , were approved, wherein he had held:

"I have no hesitation, however, in holding that, like every constable in the land, he should be, and is, independent of the executive. He is not subject to the orders of the Secretary of State,. I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone". '

24. Selection of respondent 4 has been tried to be justified on the ground that "the second respondent, the Hon'ble Chief Minister was required to post the four Director Generals of Police to the 4 posts then available in that cadre. He selected the 4th respondent to be posted as DG and IGP. This posting was done having regard to the letter's being the most suitable candidate to be so appointed, according to the decision of the Hon'ble Chief Minister". To justify the action of respondent 2 in making the appointment of respondent 4 by selection, the respondents have relied upon Rule 36 of the Business Rules read with Item No. 11(b) of the Second Schedule thereto. It is contended that as the selection of respondent 4 was made in accordance with the aforesaid rule, the same could not be questioned and that this Court has no jurisdiction to substitute its opinion for the opinion of respondent 2. The assertions made regarding selection and reliance placed on Rule 36 of the Business Rules is presumably under the guise of the Doctrine of Pleasure vesting the powers upon respondent 2 to make the selection. The extended meaning of the Doctrine of Pleasure impliedly relied upon by the respondents is misconceived in law and apparently faulty on facts. The Doctrine of Pleasure or exercise of the discretion under the service jurisprudence has been held to be subject to the fetters imposed on it under the Constitution particularly under Article 311 and various service rules, regulations and orders besides the judgments of constitutional Courts enacted, made and pronounced with the object to ensure security of tenure to civil servants. A civil servant under our constitutional scheme is not at the mercy of the executive Government as his rights stand well-protected, which no doubt are required to be regulated by the Government of the time. Strictly speaking, the guarantee provided under Article 311 of the Constitution may be available for the limited purpose of not imposing the penalty of removal, dismissal or reduction in rank, but under the circumstances be assumed to be applicable atleast to the extent of fairness even with respect to the matters where the action of the executive is likely to affect the service career of a civil servant or the action complained of is intended to result for insecurity of tenure of such civil servant.

Dealing with the Doctrine of Pleasure the Supreme Court in Union of India and Another v Tulsiram Patel, it observed:

"The position that the pleasure doctrine is not based upon any special prerogative of the Crown but upon public policy has been accepted by this Court in State of Uttar Pradesh and Others v Babu Ram Upadhya and Moti Ram Deka v General Manager, North East Frontier Railway . This Court has also accepted the principle that society has an interest in the due discharge of their duties by Government servants. In Roshan Lal Tandon v Union of India and Another, Ramaswami, J., speaking for the Court, said-

"It is true that the origin of Government service is contractual. There is an offer and acceptance in every case. But once appointed to his post or office the Government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the Government. In other words, the legal position of a Government servant is more one of status than of contract. The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties. The emolument of the Government servant and his terms of service are governed by statute or statutory rules which may be unilaterally altered by the Government without the consent of the employee. It is true that Article 311 imposed constitutional restrictions upon the power of removal granted to the President and the Governor under Article 310. But it is obvious that the relationship between the Government and its servant is not like an ordinary contract of service between a master and servant. The legal relationship is something entirely different, something in the nature of status. It is much more than a purely contractual relationship voluntarily entered into between the parties. The duties of status are fixed by the law and in the endorsement of these duties society has an interest. In the language of jurisprudence status is a condition of membership of a group of which powers and duties are exclusively determined by law and not by agreement between the parties concerned.

Ministers frame policies and legislatures enact laws and lay down the mode in which such policies are to be carried out and the object of the legislation achieved. In many cases, in a Welfare State such as ours, such policies and statutes are intended to bring about socio-economic reforms and the uplift of the poor and disadvantaged classes. From the nature of things the task of efficiently and effectively implementing these policies and enactments, hqwever, rests with the civil services. The public is, therefore, vitally interested in the efficiency and integrity of such services. Government servants are after all paid from the public exchequer to which everyone contributes either by way of direct or indirect taxes. Those who are paid by the public and are charged with public administration for public good must, therefore in their turn bring to the discharge of their duties a sense of responsibility. The efficiency of public administration does not depend only upon the top echelons of these services. It depends as much upon all the other members of such services, even on those in the most subordinate posts. For instance, railways do not run because of the members of the Railway Board or the General Managers of different railways or the heads of different departments of the railway administration. They run also because of engine drivers, firemen, signalmen, booking clerks and those holding hundred other similar posts. Similarly, it is not the administrative heads who alone can see to the proper functioning of the post and telegraph service. For a service to run efficiently there must, therefore, be a collective sense of responsibility. But for a Government servant to discharge his duties faithfully and conscientiously, he must have a feeling of security of tenure. Under our Constitution, this is provided for by the Acts and Rules made under Article 309 as also by the safeguards in respect of the publishments of dismissal, removal or reduction in rank provided in clauses (1) and (2) of Article 311. It is, however, as much in public interest and for public good that Government servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service and that the protection afforded to them by the Acts and Rules made under Article 309 and by Article 311 be not abused by them to the detriment of public interest and public good. When a situation as envisaged in one of the three clauses of the second proviso to clause (2) of Article 311 arises and the relevant clause is properly applied and the disciplinary inquiry dispensed with, the concerned Government servant cannot be heard to complain that he is deprived of his livelihood. The livelihood of an individual is a matter of great concern to him and his family but his livelihood is a matter of his private interest and where such livelihood is provided by the public exchequer and the taking away of such livelihood is in the public interest and for public good, the former must yield to the latter. These consequences follow not because the pleasure doctrine is a special prerogative of the British Crown which has been inherited by India and transposed into our Constitution adapted to suit the constitutional set up of our Republic but because public policy requires, public interest needs and public good demands that there should be such a doctrine".

It is thus clear that the pleasure doctrine embodied in Article 310(1), the protection afforded to civil servants by clauses (1) and (2) of Article 311 and the withdrawal of the protection under clause (2) of Article 311 by the second proviso thereto are all provided in the Constitution on the ground of public policy and in the public interest and are for public good".

To the same effect are the judgments of the Supreme Court in State of Uttar Pradesh v Chandra Mohan Nigam and Others, Union of India v J.N. Sinha and Another and Babu Ram Upadhya's case, supra.

25. It is evident, therefore, that the appointment of respondent 4 to the post of DG and IGP is shown and claimed to have been made on the basis of the selection out of the four Director Generals eligible to be appointed to the said post. If the selection is made fairly and upon consideration of the service record of the persons eligible for appointment by selection to the post, this Court has no jurisdiction to either interfere with the order of appointment or substitute its own opinion for the opinion of the appointing authority. If the selection is however found to be not made objectively upon consideration of the relevant record and appears to be made mechanically, the interference of the Court becomes necessary for the purpose of protecting the rights of the civil servant ensuring the prevalence of the rule of law. It is worth noting at this stage that the selection contemplated for the post of Police Chief is required to be made keeping in view the observations made by the Supreme Court in Vineet Narain's case, supra. Some mechanism is required to be set up for making the selection/appointment, tenure, transfer and posting of the Chief of the Police in the State. In the instant case, the selection is shown to have been made only by the Chief Minister on the basis of the information furnished to him. The Chief Minister is claimed to have perused the service record of all the eligible Director Generals for making appointment to the post of DG and IGP. As noticed and elaborately dealt with hereinabove, it is evident that respondent 4 was not a Director General on any date prior to 6th of March, 1997. He is shown to have been promoted and appointed as DG and IGP vide Annexure-A, dated 6th March, 1997. The respondents have specifically submitted that making composite order of promotion and appointment was permissible. Such a course is shown to have been resorted to in the instant case as well. If respondent 4 was not a Director General prior to 6th of March, 1997, then there was no material before respondent 2 to consider him for appointment by selection to the post of DG and IGP because admittedly only a person substantively holding the cadre of Director General of Police could be considered for appointment to the post of DG and IGP. The petitioner, therefore, appears to be genuine in complaining that as unequals were treated alike, the action of respondent 2 in appointing respondent 4 as DG and IGP in the State of Kar-nataka was discriminatory and thus unconstitutional. The respondent-Tribunal in this behalf found that according to the fax message dated 10-1-1997, stated to be available on the record, indicated that respondent 4 had been appointed in the pay scale of Rs. 7,600-8,000, which was permissible only to the Director General of Police under the Pay Rules applicable in the case. The fax message relied upon by the respondent-Tribunal only indicated that the Central Government had approved the appointment of respondent 4 as a Special Director in the pay scale of Rs. 7,600-8,000 as an interim measure because the said order granting the aforesaid pay scale was to remain in force till further orders. In other words, it meant the grant of pay scale to respondent 4 at best for the time he remained posted as Special Director in the Intelligence Bureau with the Central Government. The fax message cannot be stretched to mean that respondent 4 had substantively been promoted to the post of Director General. If that was so, there was no cause or occasion for the official respondents to again propose respondent 4 to be promoted "to the cadre of DG and IGP carrying the pay scale of Rs. 7,600-8,000 per month" as was done vide impugned Notification Annexure-A. Even assuming that respondent 4 was repatriated to the State on 5th of March, 1997 and was likely to be promoted on the basis of the empanelment already made, there was no occasion for the respondent 2 to appoint him by selection allegedly on the basis of merit as was done by him on 3rd March, 1997. The action of the respondents apparently appears to be unconstitutional, as admittedly respondent 4 being not a Director General of Police on 3rd of March, 1997 was not eligible to be considered for such appointment by selection.

Respondent 2 has also tried to justify the selection of respondent 4 on the basis of the merit allegedly noticed from the service record of the claimants. Admittedly, the process of selection of respondent 4 had been completed by respondent 2 on 3rd of March, 1997 concededly when respondent 4 was not in the State service. The latest performance of respondent 4 apparently not being in the knowledge of respondent 2 could not be considered a circumstance in his favour. It appears, that respondent 2 had made up his mind to select respondent 4 as DG and IGP in pursuance of which action was taken for repatriation of his services to the State even though respondent 4 was not eligible to be considered as at that time he was not a Director General being in the selection grade as mandated by Rule 3 of the Pay Rules. It further appears that after making up the mind to appoint respondent 4 as DG and IGP by ignoring the claim of the petitioner and others, the respondents tailored the grounds to suit their jackets. The contradictory objections filed and pleas raised by the respondents clearly demonstrate that the proclaimed selection process was merely a hoax and not actually resorted to or adopted.

26. It has been further claimed by respondent 2 that the selection was made on the basis of relevant records including the annual confidential reports of the petitioner and respondent 4, which are claimed to have been considered objectively before arriving at the conclusion of appointing respondent 4 as DG and IGP. The record produced before us, which is stated to be made the basis of making the selection reflects that only the brief summary of gradings obtained by the officers eligible for selection during the last 5 years were taken into account by respondent 2. According to the aforesaid summary, the service of the petitioner had been adjudged as 'outstanding' for the years 1991-92, 1994-95 and 1995-96. He was adjudged as 'very good' for the years 1992-93 and 1993-94. Similarly, respondent 4 was adjudged as 'outstanding' for the years 1991-92, 1993-94 and 1994-95. He was adjudged as Very good' for the years 1992-93 and 1995-96. Both the claimants were, therefore, having similar ACRs with three 'outstandings' and two 'very goods'. There was nothing on record to show that respondent 4 was in any way better adjudged than the petitioner. It is not the case of the respondents that any other record of the claimants was taken into account while making the appointment by selection. Merit being equal between the rival claimants, the seniority of the petitioner could not have been ignored by respondent 2. It is further evident that the selection of respondent 4 was the result of non-application of mind and the decision was arrived at in a casual manner. No record has been shown to us on the basis of which it could be prima facie assumed that respondent 4 had any better merit than the petitioner. We are aware of the limitation of not substituting our opinion for the opinion of respondent 2 in making the selection, but as respondent 2 has relied only upon the record referred to hereinabove, we have no hesitation to hold that either respondent 2 was misled by his subordinate staff or he had casually dealt with the matter without noticing the fact as pointed out by us.

The respondent 4 having not been appointed by proper application of mind and apparently the decision arrived at in a causal manner cannot be allowed to be sustained when it admittedly affects tbe rights of the petitioner, who is much senior than respondent 4. As the decision making process by which respondent 4 was selected for appointment as DG and IGP by respondent 2 has been found to be not fair and arrived at in a most causal manner ignoring all the settled norms pertaining to the appointment by selection, we feel no fetter on our power to declare such process and consequent decision to be unconstitutional and illegal.

27. The petitioner has contended that as his merit is similar as that of respondent 4 who is not even in the timescale of pay and Director General of Police, a direction be issued to the respondents for appointing him alone to the post of DG and IGP. We have not been persuaded by such a submission, inasmuch as the settled position of law is that though seniority in service is a relevant factor for conferment of additional duties and better status, yet the seniority by itself cannot be made a basis for conferment of such benefit despite the merit of the senior being equal with others. However, in such a case, if the appointing authority acts in its discretion to ignore the seniority of a civil servant, it is legally bound to assign reasons for ignoring the seniority. The reasons assigned, if apparently not mala fide or contrary to the rules cannot be interfered by any Court of law. However, in the absence of cogent and valid reasons, this Court has no option, but to strike down the action taken by completely ignoring the seniority of a person who is otherwise found to be possessing better merit or atleast merit equivalent to that of the person who has been conferred the additional service benefit. What is required in the matter of appointments by selection is that the appointing authority must at least show that what had weighed with it in appointing a junior ignoring the claim of the senior. Considerations which weighed in making the appointments must be shown to be present in the mind of the appointing authority at the time of making selection and appointment of junior by ignoring the seniority. In such an event, the appointment of a junior may be made on the basis of merit and ability for reasons specifically assigned by the appointing authority. A junior person may be promoted to higher post by superseding a senior person though otherwise equal, if it is shown that such senior was guilty of negligence or other latches as a result of which he was deemed not suitable to be appointed while making the selection. The reasons for ignoring the claim of the senior in the matter of appointment by selection or in the matter of promotion should be reflected in the order or atleast be shown to be present in the record perused by the appointing/promoting authority. Completely ignoring the claim of the senior without assigning any reasons is likely to result in demoralisation in the services, which if not checked would adversely affect the administrative set up, upon which rests the edifice of a good, responsive and efficient Government. The impugned order and the record produced before us does not show or even indicate any ground or circumstance justifying in ignoring the claim of the petitioner based upon seniority to be appointed to the post of Police Chief in the State. The Pay Rules provide that a Member of the Indian Police Service can be appointed by promotion to the timescale of pay upon satisfaction of the conditions specified under Rule 3 of the said Rules. According to these Rules, supertime scale is provided to the DIG and IG and above supertime scale is provided to the Director General of Police. According to Rule 3(2-A) appointment to the Selection Grade and posts carrying pay above the timescate of pay in the Indian Police Service can be made by selection on merit with due regard to seniority. The Pay Rules clearly and unambiguously refer to and highlight the appointment by selection on the basis of merit with due regard to seniority. Though the Pay Rules do not deal with the appointment of DG and IGP, yet the principles incorporated therein have to be kept in mind and for the said post, appointment should be made by selection on merit with due regard to seniority.

It has further to be noticed that for determining the merit All India Services (Confidential Rolls) Rules, 1970 may be taken into consideration. According to Rule 2(b) of the said Rules 'confidential roll' means the compilation of the confidential reports written on a member of the Service and includes such other documents as may he specified by the Central Government, by general or special order, in that behalf. In pursuance of clause (b) of Rule 2 of the Confidential Rules, the Central Government has specified the following documents to be included in the confidential roll, as defined in that clause, namely:--

(i) Letters of appreciation/resolution issued by the Government to a member of the All India Service; record about any medals, award etc., awarded to him in recognition of his services.

(ii) Copy of order imposing on the member of the Service any of the penalties specified in the All India Services (Discipline and Appeal) Rules, 1969.

(a) Copy of the communications addressed to a member of the Service warning him or conveying the displeasure or reprimand by the Reporting Authority/Receiving Authority/Accepting Authority to which a reference is made in the Confidential Report for the relevant period.

(b) Copy of the communication addressed to a member of the Service conveying warning, or displeasure, or reprimand of the Government.

(iii) Record of final result of the inquiry into the charges or allegations against a member of the Service, mentioned in his confidential report.

(iv) Copies of certificates regarding languages by the member of the Service.

(v) Copies of certificates regarding educational qualifications acquired by the member of the service after entering the service.

(vi) Copies of:

(a) Certificates and marksheets regarding training (excluding certificates for one week training programmes) received by a member of the service; and

(b) Evaluation Sheets in respect of training programmes sponsored by Government of India or duration of four weeks or more.

(vii) Record about any books, articles and other publications brought out by a member of the Service or for the publication of which he may be responsible.

Note 1.--Mention of items (v) and (vi) may also be made on the first page of the C.R. Dossier in the columns "Languages Known" and "Educational Qualifications" respectively.

Note 2.--Details of the training under item (vii) may also be mentioned on the first page of the C.R. Dossier below the column "Educational Qualifications".

Note 3.--Information relating to item (viii) may be entered in a separate list to be kept in the C.R. Dossier. Copies of the articles, books and other publications need not be kept in the C.R. Dossier. No distinction is to be made between articles, books and other publications of a professional and those of a non-professional nature".

28. Both the petitioner and respondent 4 have claimed to be in possession of various letters of appreciations, medals and awards, which according to them make the one meritorious than the other. Admittedly, such letters of appreciation, the record about medals, awards, etc., as noticed hereinabove were not placed before respondent 2 for his consideration at the time of making the selection of respondent 4 as DG and IGP, which makes his selection illegal on the ground of non-consideration of the material record while making the selection for appointment to the post of Police Chief of the State, It is also worth noticing that while making the appointment of respondent 4 to the post of DG and IGP, the official respondents were aware of the fact that it was likely to create embarrassing position so far as the petitioner was concerned because the post of Director General of Police, COD, Training Special Units and Economic Offence and Chairman and Managing Director of Police Housing Corporation was considered to be amenable to the supervisory jurisdiction of DG and IGP. The only post treated as not amenable to supervisory jurisdiction of respondent 4 was the post of Director General of Police, Commandant General, Home-guards and Director of Civil Defence and Fire Services. To save the petitioner from the humiliation of subordination the Chief Minister himself directed his transfer and appointment as Director General of Police and Commandant General, Home-guards and Ex Officio Director, Civil Defence and Director, Fire Force, Bangalore. Continuance of the petitioner as DGP, COD Training, Special Units and Economic Offences was considered to be derogatory to him. Despite holding that the post of DGP, COD Training, Special Units and Economic Offences and Chairman and Managing Director of Police Housing Corporation was subject to the supervisory control of respondent 4, the petitioner has admittedly been transferred to one of the aforesaid post during the pendency of this litigation. What necessitated his transfer and posting as Chairman and Managing Director of the Police Housing Corporation is a mystery shrouded with doubts and not explained by the respondents. The peti-

tioner has referred to a number of documents, which are stated to have been addressed by respondent 4 to him allegedly with the motive of humiliating him despite his seniority in the service.

29. We are of the opinion that the Tribunal did not take into account the circumstances noticed by us hereinabove while dismissing the application filed by the petitioner. The order of the respondent-Tribunal is therefore not sustainable, as it has failed to take note of the position of law applicable in the case and arrived at the conclusion by reference to circumstances, which were not warranted. The Tribunal also did not notice the contradictory pleas raised by the respondents and the fact that the impugned order had been passed in a causal manner and without application of mind by keeping into account the various considerations requisite for making appointment by selection. The casual manner in which the fate of a senior-most Police Officer in the State was decided appears to have not been properly presented before the Tribunal and appreciated by it. The impugned Notification Annexure-A which has been found by us to be against all the Service Rules and ethics despite being illegal and unconstitutional could not be upheld as was done by the Tribunal. The impugned Notification Annexure-A and the order of the respondent-Tribunal is therefore liable to be set aside and the petitioner held entitled to grant of appropriate relief.

30. In view of the fact that we have found Notification Annexure-A to be unconstitutional and illegal and the Order of the respondent-Tribunal liable to be quashed for the reasons detailed hereinabove we do not propose to decide the allegations of mala fides levelled by the petitioner against respondent 2. We hope and trust that the appointment by selection to the post of DG and IGP shall be made afresh by keeping in view the relevant provisions of law, the observations of the Supreme Court in Vineet Narain's case, supra, and the findings returned by us in this writ petition. It would be appreciated that pending the setting up of a credible mechanism for selection of the Police Chief in the State, the respondent-State would as an interim measure direct the selection to the post of DG and IGP to be made in terms of its Order No. DPAR 72 SPS 94, dated 20th of March, 1995.

31. Under the circumstances, the writ petition is allowed by setting aside the order of the 6th respondent-Central Administrative Tribunal. Consequently, the impugned Notification Annexure-A of the first respondent-State, by which respondent 4 was appointed as DG and IGP of State of Karnataka is set aside and the post declared held vacant with immediate effect. A command is issued to the respondent-State to make afresh the appointment by selection to the aforesaid post by considering the cases of all eligible Director Generals and keeping in view the observations made hereinabove. The selection may be made without delay and by a Committee constituted vide Government Order No. DPAR 72 SPS 94, dated 20th of March, 1995. It is needless to say that as by this time respondent 4 has admittedly been promoted as Director General, he has acquired a right to be considered along with other eligible candidates. Petitioner is held to costs assessed at Rs. 10,000/-.