Central Administrative Tribunal - Ahmedabad
Rajanikant Dattatraya Tamhane vs State Of Gujarat And Ors. on 10 September, 1999
JUDGMENT
V. Ramakrishnan, Vice Chairman
1. The applicant a senior officer of the I.P.S. cadre of Gujarat State holding the post of Commandant General Home Guards and Director--Civil Defence Gujarat had challenged the State Government's order dated 30.5.98 as at Annexure A which appoints Shri C.P. Singh. Respondent No. 4 as Director General and Inspector General of Police, Gujarat.
2. The applicant is an I.P.S. Officer of 1964 batch. He is senior to Mr. C.P. Singh, He has held various posts during his service career. Apart from the posts generally held by IPS officers, he has also functioned as Deputy General Manager (Administration) of Gujarat State Road Transport Corporation and as Joint Secretary in the Home Department of the State Government. He says that he has got a very good service record and was awarded President's medal for distinguished services. He was promoted to the level of Director General of Police and appointed as Director General Computer Centre cum State Crime Record Bureau in December 1997 when Respondent No. 4 was appointed as D.G.P. and Director of ACB. When the post of Director-General and Inspector General of Police fell vacant on the retirement of the previous incumbent who was given short extension, the State Government preferred Respondent No. 4 to that post and the applicant was posted as Commandant General Home Guards and Director General of Civil Defence. The applicant alleges that this post is inferior the post of D.G. and I.G.P. and the appointment of Respondent No. 4 who is junior to him, as D.G. and I.G.P. has amounted to his virtual supersession. The applicant contends that when he was functioning as Inspector General of Prisons he had recruited a number of persons in accordance with rules on merit and he did not yield to the pressure brought on him by the then Minister of Jail to appoint his own nominees irrespective of merit and he fell foul of the authorities. He alleges that Shri Ramrakhiani the former Principal Secretary-Home Department Respondent No. 3 who was part of the Selection Committee to recommend the names for promotion to the post of Director General of Police is biased against him. Respondent No. 4 is less meritorious as he has not received the President's Medal for distinguished services and was involved in some dubious transactions. The applicant was empanelled for the post of I.G.P. by the Central Government for Central posts unlike the respondent-4. He has contended that the posting of Respondent No. 4 as D.G. and I.G.P. was done not on merit but on extraneous considerations and without following the statutory requirements and it is against the law laid down by the Supreme Court in the case of Vineet Narayan v. Union of India, 1998 (1) SCC 226.
2. The applicant submitted a representation dated 15.5.98 when the post of D.G. and I.G.P. was to fall vacant from 31.5.1998 requesting that he should be posted as D.G. and I.G.P. as he is the seniormost and that if Respondent No.4 who is junior to him is posted to that post it would amount to his supersession for all practical purposes but despite his representation the State Govt. proceeded to appoint Respondent No. 4 as D.G. and I.G..P. by its order dated 30.5.98 which is the impugned order.
3. The official respondents in their reply have denied the various allegations. They bring out that there is a selection committee to consider the suitability of eligible officers for the grade of D.G. and I.G.P. which had in its meeting held on December 1997 held that both the applicant and Respondent No. 4 were eligible for promotion to the grade. When the post of D.G. and I.G.P. which is one of the posts at the D.G.. level fell vacant, the State Government decided on the basis of field experience and aptitude that Respondent No. 4 should be given that job. The applicant was posted as Commandant General Home Guards which is one of the cadre posts at the level of DGP for IPS in Gujarat which carries the same scale. They do not agree that the post held by the applicant is in any way subordinate to the post of D.G. and I.G.P. According to them the posts in the grade of DGP are interchangeable. They refer to Rule 3 (2A) of the I.P.S. (Pay) Rules which provides that appointment to Selection Grade and above shall be made by Selection on merit with due regard to seniority. The selection process has been undertaken objectively by the Selection Committee consisting of the Chief Secretary and very senior officers who made the assessment of the eligible persons to be promoted to the D.G.'s grade and prepared the panel. The Government had accepted the recommendations of the Selection Committee and promoted the applicant and also Respondent No. 4 to the grade of the Director General in December 1997. The State Govt. submit that for appointment to the post of DG and IGP seniority is not the criterion as all those who are eligible for DGP's post are holding independent charge and none of the incumbents is subordinate to the D.G. and I.G.P. as they are directly responsible to the State Govt.
They submit that the representation of the applicant dated 15.5.98 was duly considered by concerned authorities but having regard to the overall consideration of service, Respondent No. 4 was given the appointment as D.G. and I.G.P. It is also their stand that Respondent No. 4 has been continuously holding important and sensitive posts involving field duties for a number of years whereas the present applicant had performed field duties only for a period of fifteen months during the last twenty years. They also deny the allegation that the former Jail Minister Shri Chaudhary had interfered in the selection or that Shri Ramrakhiani Respondent No. 3 tried to victimise the applicant. While the applicant might have been empanelled for IG level post by the Central Government he has never been selected for the same during his whole career whereas Respondent No. 4 was selected for Central Deputation at N.P.A. and had functioned satisfactorily there. They deny the contention that the appointment of C.P. Singh as D.G. and I.G.P. is in violation of the rules or against law laid down by the Supreme Court in Vineet Narayan 's case.
4. Respondent No. 4 in his reply has contended that he is also very senior and as he is an I.P.S. officer given the year of allotment in 1964 and the insinuation that he is much junior to the applicant is baseless. He says that Vipul Chaudhary former Jail Minister ceased to be a Minister in March 1998 whereas the orders posting Respondent No. 4 as D.G. and I.G.P. were issued on 30th May 1998 on the basis of the decision taken a few days earlier.
Respondent No. 4 says that he had wide field experience and is more suitable for the post of D.G. and I.G.P. whereas the applicant had been holding non-sensitive posts in his career and was not suitable for the post of D.G. and I.G.P. as he was keeping indifferent health. (This contention that the applicant was not appointed as D.G. and I.G.P. on account of his health is however denied by the official respondents). In the reply and rejoinder affidavit filed by C.P. Singh Respondent No. 4 he has given in detail his experience and background. Regretably however, he has chosen to make some disparaging observations on the personality trait of the applicant and of some political personalities. He has also made some allegations against the former D.G. and I.G.P. who is not a party to the O.A. when the same is not relevant and do not advance the case of Respondent No. 4. We have disregarded such irrelevant observations while considering the present application.
5. We have heard Shri Raju for the applicant Shri S.N. Shelat the learned additional Advocate General for the State Government and Shri S. Tripathy for Shri C.P. Singh Respondent No. 4. We have also gone through the concerned files of the State Government. Shri Raju and Shri Tripathy were permitted to inspect these files. They have done so and have also extensively quoted from the notings in the file while making their submissions during the hearing.
6. Mr. Raju submits that the applicant is the senior-most officer in the IPS cadre of Gujarat. The learned counsel for the applicant refers to Rule 3 (2A) of the Indian Police Service (Pay) Rules which requires that appointment to the selection grade and above in the IPS shall be made by selection on merit with due regard to seniority. He goes on to submit that all the eligible persons should be considered for the post and if the officers are of equivalent merit then the senior-most should be appointed. In the present case, the applicant is the senior-most but he was not considered while making the appointment.
The post of D.G. and I.G.P. is the highest and most prestigious post in the IPS cadre and the applicant who has got a clean record and has received the President's Medal for distinguished services had a legitimate expectation for being appointed as D.G. and I.G.P. Mr. Raju says that due consideration of every legitimate expectation in the decision making process is a requirement of the rule of non-arbitrariness and this norm has to be observed by the respondents while making appointment to the post of D.G. and I.G.P. The present applicant is otherwise suitable and is not less meritorious than Respondent No. 4 and as he is the senior-most, he has a legitimate expectation to be appointed as D.G. and I.G.P. The learned counsel relies in this connection on the decision of the Hon'ble Supreme Court in the case of Supreme Court Advocates on Record Association v. Union of India, 1993(4) SCC 441 particularly paragraph 478 (4) of the Judgment. He also relies on the decision of the Apex Court in the case of Food Corporation of India v. Kamdhenu Cattle-Feed Industries, 1993 (1)SCC71 and submits that consideration of legitimate expectation forms part of principle of non-arbitrariness as well as rule of law. It becomes an enforceable right in case of failure of State to give due weight to it and the decision of the State in the matter is open to judicial review. The present applicant is admittedly found suitable for holding the grade of D.G.P. and there are four such posts in the State carrying the same grade. According to Mr. Raju, the D.G. and I.G.P. is superior to the other three and is of paramount importance. When the earlier incumbent was due to retire, the applicant submitted a representation to the authorities bringing out that he is the seniormost in the cadre and has put in distinguished service in Gujarat Police and that the Denial of an opportunity to him to serve as D.G. and I.G..P. by preferring his junior--Respondent Number 4 would be unjust and discriminatory. He had also given the gist of his service career and his varied experience and the fact that he has been awarded the President's Gold Medal for distinguished services in 1992 apart from Indian Police Medal for meritorious service in 1984 whereas the Respondent No. 4 was awarded only the Indian Police Medal for meritorious service and that too in 1994, and has not been awarded the President's Medal for distinguished services. The applicant has also referred to the fact that even though he has under-gone a by-pass surgery it has not affected his physical health and work efficiency and he has been given field work and has successfully discharged his duties. He had specifically brought out that he has a legitimate claim to the appointment to the post of D.G. and I.G.P. of Gujarat after superannuation of the then incumbent. Mr. Raju says that this representation did not receive proper consideration at the level of State Government. There is a note from Shri Ramrakhiani Respondent No. 3 that the applicant had met the Chief Minister and had made oral representation and that the Government's intention is that C.P. Singh should be posted as DG and IGP on the retirement of the earlier incumbent. According to the learned Counsel, this is not due consideration of the applicant's representation based on the legitimate expectation. The note says that Government's intention is that Respondent No, 4 should be posted as D.G. and I.G.P. but it does not bring out as to why a junior should be preferred over the senior. This note was put up to the Chief Secretary and Minister of State-Home who minuted that Shri C.P. Singh should be posted as DGP which was approved by the Chief Minister, No reasons have been given for this decision and Mr. Raju says that their decision making process disregards the legitimate expectation of the applicant and as such it is vitiated. The learned counsel also relies on the direction of the Supreme Court in the case of Vineet Narayan v. Union of India (supra) decided on December 18, 1997. The Supreme Court had given certain directions regarding Central Bureau of Investigation and also the Enforcement Directorate besides the nodal agency and prosecution agency. It has also observed that there is urgent need for the State Government also to set up a credible mechanism for selection of the Police Chief in the State and that a similar mechanism as for C.B.I. etc. should be set up in each State for the selection/appointment not merely of Chief of the State Police but also of all senior officers. Mr. Raju says that a credible mechanism should be set up for selection of the Chief of Police in the State whereas in the present case, the respondents have not brought out that they have established any worthwhile mechanism while selecting and appointing persons to the level of the Chief of State Police. There has been no objective consideration of the relative merits of the various contenders. According to Mr. Raju, this would show that the appointment of Respondent No. 4 has been done not on merit but owing to extraneous considerations. He also refers to para 59 of the judgment of the Supreme Court in Vineet Narayan's case and says that Director General has to play a crucial role in the matter of investigating charges in politically sensitive matters and for the prosecution of these cases. He states that the law laid down by the Supreme Court in Vineet Narayan's case particularly in the context of paras 59 and 60 of the judgment would necessitate setting up of a credible mechanism for selection of the Police Chief. The State Government has failed to do so in the present case and the impugned order should be set aside and a direction may be given to the respondents to consider objectively the case of the applicant and others who are eligible for the post D.G, and I.G.P. and then to take a decision.
Mr. Raju also relics on the decision of the Karnataka High Court in the case of C. Dinkar v. Govt. of Karnataka and Anr. in writ petition No. 4264 of 1998 decided on 23rd October, 1998. He submits that the High Court had held that where the selection is found to be not made objectively after consideration of the relevant records, the Court can interfere for the purpose of protecting the rights of the Civil Servants ensuring the prevalence of the rule of law. The Hon'ble High Court had further observed 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 Narayan's case and some mechanism is required to be set up for making selection for appointment. Mr. Raju says that in the case before the Hon'ble High Court and also in the present case, the selection is shown to have been made by the Chief Minister and the Chief Minister had not been furnished any relevant information which would enable him to make a comparative assessment of the merit of the applicant and Respondent No. 4, on the basis of the service records, award of medals etc. The Karnataka High Court in that case held that the absence of valid reasons for the action taken by the State Government in ignoring the seniority of the person who is otherwise found to possess better or atleast equivalent merit to that of the person who has been conferred additional service benefits, would justify quashing and setting aside such order.
Mr. Raju says that the State Government had taken up the matter before the Supreme Court which had upheld the decision of the Karnataka High Court. According to the learned counsel, the ratio of the decision in this case would squarely apply to the present case.
Mr. Raju forcibly submits that the post of Director General and I.G. of Police is superior to the other posts of D.Gs. In particular he contends that D.G. and I.G.P. has power to control and supervise the functioning of the other posts including that of Commandant General Home Guards and Director Civil Defence held by the applicant. He states that the D.G. and I.G.P. can transfer officials serving in Civil Defence Organisation and shows a copy of an order dated 27.5.98 where inter alia a police Inspector in the Civil Defence Organisation has been transferred as Police Inspector in Porbandar. He also has furnished copy of another order dated 16.6.98. All these orders by the D.G. and I.G.P. would show that the Commandant General Home Guards does not have control over his own staff and the same is controlled by D.G. and I.G.P. He also refers to the provisions of the Bombay Police Act and contends that the D.G. and I.G.P. is a superior post and other posts even if they are in the same pay scale are subordinate. This amounts to the applicants virtual supersession when his junior is holding the post of the D.G. and I.G.P. Mr. Raju states that the appointment of Respondent-4 as D.G. and I.G.P. has been done on extraneous considerations. He refers in this connection to the allegations which have been made against Shri Ramrakhiani who was then the Principal Secretary-Home. Shri Ramrakhiani Respondent No, 3 has however chosen not to file any affidavit rebutting the allegations. He says that in the absence of such an affidavit, the averments made in the petition alleging mala fides must be accepted. Mr. Raju relies in this connection on the decision of the Hon'ble Supreme Court in the case of State of Punjab v. Gurdial Singh, AIR 1980 SC 319.
The order of the Chief Minister appointing Respondent No. 4 as D.G. and I.G.P. has been passed without considering the question of seniority merits, ACRs and service records; on the basis of a note put up by Respondent No. 3 and without taking into account the issues raised in the applicant's representation. Mr. Raju says that such an order has been passed accepting the suggestion of Respondent No. 3 whose views are tainted with mala fides. He states that the appointment of Respondent No. 4 as D.G. and I.G.P. was done without objective assessment and for extraneous considerations and the same should be quashed.
7. The learned Additional Advocate General Mr. S.N. Shelat resists the application. He contends that Sub rule 2A of Rule 3 of the IPS (Pay) Rules requires that appointment to Selection Grade and above has to be done by selection on merit. There are four posts in Gujarat in the IPS cadre which carry the grade of DG, the scale of Rs. 24050-650-26000. Of these four, the posts of D.G. and I.G.P. and Commandant General Home Guards are cadre posts. The applicant alongwith others was duly considered for promotion to this guard by a High level Selection Committee consisting of the Chief Secretary and senior officers. The Committee assessed the applicant and also Respondent No. 4 and found them fit for the grade. The recommendation of the Selection Committee was processed by the Government and was approved by the Chief Minister. The learned Additional Advocate General states that the constitution of the Selection Committee was done as per the guidelines issued by the Government of India dated 4th September, 1989. The applicant was promoted as D.G. Computer and State Crime Records Bureau in December, 1997 in the respective grade and the Respondent No. 4 was promoted and posted as DG and Director of ACB. The learned additional Advocate General contends that once such a promotion is made to the grade, the assumption of a particular post whether as D.G. and I.G.P. or as Commandant General Home Guards and Civil Defence is not a further promotion which would attract the provisions of Sub-rule 2A of Rule 3. Appointment to individual posts is made by the State Government keeping in view administrative exigencies and even by interchange as may be considered necessary. The learned Additional Advocate General does not agree that the applicant has not at all been considered for the DGP's position. He was in fact considered and was appointed as Commandant General Home Guards. The learned Addl. Advocate General submits that the representation of the applicant was considered at the officers' level. He says that the relevant file shows that the representation was put up by the Addl. Chief Secretary to the Chief Secretary, Minister of State-Home and the Chief Minister. The applicant was also given a personal hearing by the Chief Minister. Taking into account all relevant aspects it was decided to post Respondent No. 4 as D.G. and I.G.P. The learned Addl. Advocate General denies that the post held by the applicant is in any way subordinate to that of D.G. and I.G.P. The applicant enjoys the status, pay and rank as Respondent No. 4.
As regards the reliance on the various judgments, the learned Additional Advocate General says that Vineet Narayan's case was in respect of Director C.B.I. and Director Enforcement of Union of India. In para 60 of the judgment the Supreme Court had directed the Central Government to pursue the matter with the State Governments to set up some credible mechanism in each State for the selection and appointment of not merely the Chief of the State Police but also of officers of the rank of Superintendent of Police. He says that Government of India had issued instructions regarding the procedure for selection to the grade of D.G. of Police. No further guidelines had been received. In any case a mechanism exists for assessing persons regarding their suitability for holding the post in the grade of D.G.P. and once that selection is made for promotion to the grade of the D.G.P., no further selection as envisaged under Rule 3 (2A) of the I.P.S. (Pay) Rules for appointment to a particular post in the grade of D.G. The learned Addl. Advocate General also refers to the directions of the Hon'ble Supreme Court in the case of E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 particularly to paras 87 and 88 of the judgment. The Supreme Court had accepted the position in law that the Chief Minister has the freedom to choose a person as Chief Secretary on whom there is absolute confidence, if the decision is arrived at in a bonafide manner. He further states that in AIR 1993 SC 763, M. Sankaranarayanan v. State of Karnataka, the Supreme Court had reiterated the position in Royappa's case and did not upset the order of transferring of the Chief Secretary to another equivalent post in the same cadre. According to him this principle would squarely apply to the present case which involves appointment to the post of D.G. and I.G.P. The learned Additional Advocate General also distinguishes the case decided by the Karnataka High Court and upheld by the Supreme Court from that of the present applicant. He contends that the Supreme Court had not laid down any new principle over and above that in Royappa 's case. The Karnataka High Court noted that the Respondent No. 4 was not holding the grade of Director General of Police and was not eligible to be considered for appointment or selection as D.G. and I.G.P. He says that Karnataka High Court and the Supreme Court were examining the appointment of Respondent No. 4 in the context of State Government order dated 28th March, 1995 constituting a Committee consisting of Chief Minister as the Chairman, the concerned Minister as a Member and the Chief Secretary as its Secretary to consider and process officers for elevation to the post of Head of the Department. That order was subsequently superseded by an order dated 23rd December 1996, where constitution of the Committee was further enlarged. The Hon'ble High Court and the Supreme Court came to the conclusion that the procedure indicated in the Government Resolutions was not fulfilled and there was total non-application of mind on the part of the authorities, since the Respondent No. 4 therein was not in the cadre of D.G. of Police on the particular day when the Committee met for consideration. He submits that this judgment does not deal with the question about the interpretation of Rule 3 (2A) of the Indian Police Service (Pay) Rules. The facts in the present case are clearly distinguishable.
The learned Additional Advocate General says further that the allegation of mala fides or malice on the part of Respondent No. 3 is not supported by any acceptable evidence. It is alleged that Respondent No. 3 had tried to block the selection of the petitioner to the level of D.G. in the meeting of the D.P.C. held on 24.12.1997. From the minutes it is clear that Respondent No. 3 had participated in the D.P.C. and was a party to the recommendation for the applicant to be appointed as DG. The Minister for Jail was not a Minister at the time when Respondent No. 4 was appointed to the post of D.G. and I.G.P. The other averment that Respondent No. 3 was prejudiced against him merely because the applicant held certain posts which normally would have been held by the IAS officers is baseless. Such appointments would not have in any way affected the career prospects of Respondent No. 3 who is a very senior IAS Officer. No personal malice or animosity is alleged against Shri Ramrakhiani and the allegations are in the nature of discrimination (sic). The learned Additional Advocate General relies on the decision of the Supreme Court in the case of Hemlall Bhandari, AIR 1987 SC 762 and says that merely because Shri Ramrakhiani has not filed any affidavit, it cannot be taken that the allegations of mala fides are established and that the appointment of Respondent No. 4 was made on extraneous consideration.
8. Shri Tripathi for Respondent No. 4 refers to the affidavit and rejoinder of Respondent No. 4. He submits that Rule 3 (2A) does not call for a selection for filling up the post of D.G. and I.G.P, from among persons who are in the DGP's grade. He brings out by way of illustration that there are large number of posts of the Dy. Inspector General of Police and Government can appoint individuals to particular posts in that grade without further selection once they are found fit for that grade. He says that any contrary interpretation of Rule 3 (2A) of the IPS (Pay ) Rules would not be practicable.
9. We have carefully considered the submissions of all the counsel and have also gone through the pleadings and the State Govt. files which have been made available to us. As has been brought out earlier Mr. Raju contends that appointment of Respondent No. 4 as DG and IGP should be quashed and set aside for the following reasons:
(a) The same is in contravention of the provisions of Rule 3(2A) of the IPS (Pay) Rules.
(b) The applicant who is the senior-most IPS officer had a legitimate expectation for appointment as DG and IGP. This was not given due consideration but instead he was given a post which is subordinate to that of the D.G. and I.G.P.
(c) The appointment of Respondent No. 4 as D.G. and I.G.P goes against the law laid down by the Supreme Court in Vineet Narayan 's case.
(d) The ratio of the judgment of the Karnataka High Court in Dinkar's case as upheld by the Supreme Court referred to supra will squarely apply to the facts of the present case and to calls for issue of identical direction to the respondents.
We proceed to examine these grounds.
10. According to Mr. Raju the post of D.G. and I.G.P is a selection post and selection process requires consideration of all eligible candidates objectively and not an arbitrary preference of one person. He further argues that the applicant has been adjudged fit for holding the post in the DG's grade alongwith Respondent No. 4. He says that the said selection process is only for the grade and there has to be an independent selection while filling up the particular post of DG and IGP. The State Government have not been able to bring out that they considered objectively the claims of the applicant, and other eligible candidates alongwith Respondent No. 4 when the vacancy for the post of D.G. and I.G.P arose, by an independent body and have only referred to the intention of the Govt. to give the post to Respondent.
Rule 3 (2A) of the IPS (Pay) Rules (excluding the proviso which is not relevant) reads as follows:
"3 (2A): Appointment to the selection Grade and posts carrying pay above time scale of pay in the Indian Police Service shall be made by selection on merit with due regard to the seniority."
Rule 3(i) states that selection grade shall be Rs. 4500-150-5700 w.e.f. 1st of January, 1986 (super time scale there are two scales Rs. 5100-6150 and 5900-6700 and above super time scale is DG Rs. 7300-100-7600-100-8000 w.e.f. 1stday of January, 1986. (Pay scales have been revised in all cases w.e.f. 1st January, 1996 and the pay scale applicable to Director General of Police will be Rs. 24050-650-26000). Rule 8 of the Pay Rules provides that any person appointed to hold a post specified in Schedule III would draw pay indicated for that post in that schedule. The IPS (Fixation of Cadre Strength) Regulations, 1955 gives the total authorised strength for different cadres.
We are informed that in Gujarat the post of DG and IGP as also the post of Commandant General--Home Guards are cadre posts carrying the pay scale of Rs. 24050-650-26000. There are two other posts in the grade, namely, Director ACB and DG of Police Intelligence which also carry the same pay scale as they have been declared by State Govt. that these posts are equated in status and responsibility to the post of DGP specified in Schedule III of the Pay Rules, and such a declaration has been given by the Government under Rule 9 of the I.P.S. (Pay) Rules.
From the plain reading of Rule 3 (2A) read with provisions of Rule 3(1) and Schedule to the Pay Rules as also the IPS (Fixation of Cadre Strength Regulations), it is clear that Rule 3 (2A) envisages a selection to the Selection Grade and posts carrying pay above time scale including the post of DGP in the scale of Rs. 24050-26000. It does not stipulate that after such a selection is made to the grade there has to be a further selection to fill up each and every post in that pay scale which may fall vacant from time to time. Rule 12 of the Pay Rules states that if any question arises as to the interpretation of these rules the Central Government shall decide the same.
The Government of India have laid down some guidelines regarding the constitution of the Committee to assess the fitness of officers to hold a post carrying pay above the time scale of pay including the grade of DGP and not for individual posts in the particular pay scale.
In accordance with such guidelines, the State Chief Secretary, the senior-most officer at the level of the Principal Secretary, the Addl. C.S. Home Department and the serving Director General and I.G. of Police. The Committee met in 16.12.97 and it recommended that the applicant and respondent No. 4 are fit to hold the DGP's grade. This was processed and the panel was approved at the level of the Chief Minister. The concerned officers were posted to different positions in DG' s grade soon thereafter. Subsequently when the DG and IGP's post fell vacant Respondent No. 4 who was functioning as Director in ACB in the DG's grade was posted as DG and IGP w.e.f, 31.5.98 AN.
We do not agree with the contention of the applicant that Rule 3 (2A) of Pay Rules contemplates a further selection to individual posts, in the grade after a selection has been made regarding suitability to hold position in the concerned grade. In the present case, the action of the State Government has not contravened the requirement of this rule.
11. Mr. Raju has contended that the post of DG and IGP is the most important and most prestigious post in the IPS cadre and is vested with administrative control and supervisory powers over all the other posts in the Police Organisation including those in the grade of DGP. He says that the applicant being the seniormost IPS Officer in the State of Gujarat had a legitimate expectation for holding that post and this was not given due consideration during the decision making process.
We shall first examine the contention of the applicant that the post held by him namely Commandant General Home Guards and Director of Civil Defence is subordinate to that of DG and IGP. In support thereof the officer refers to some orders where the DG and IGP had transferred officers of Civil Defence Organisation. According to him this would show that CG HG has no control over his own staff. Besides the post of Commandant General Home Guards cum Director of Civil Defence was sometimes held by the officers of the rank of IG which is well below that of DGP whereas the post of DG and IGP has always carried the DGP's scale. This contention of subordination is forcefully rebutted by the official respondents. They have categorically stated that Director General and IGP does not exercise any control over the Commandant General Home Guards and that the C.G.H.G. is a separate Head of Department and is directly under the control of Home Department, They also submit that for administrative exigencies certain posts are upgraded or downgraded as per the rank of the officer posted in that post, but that does not amount to subordination of the C.G. to that of DG and IGP.
We find force in this contention of the official respondents. As regards transfer of some officials of C.D.O. by DG and IGP we enquired of the applicant's counsel as to whether they were officers of State Police on deputation. It transpires such is the position. If so, the parent department can re-deploy the staff on completion of deputation. The fact that the DG and IGP has co-ordinated the police function for Republic Day and could select the personnel who would participate in the function does not mean that he exercises control over the Civil Defence and Home Guards Organisation. We see no reason to disregard the stand of the official respondents that the post of C.G.H.G. is in no way under the administrative control of the DG and IGP. Incidentally, we notice that while dealing with Dinakar's case the Karnataka High Court also had referred to the fact that in that State the only post treated as not amenable to the supervisory jurisdiction of D.G. and I.G.P was the post of Commandant General Home Guards and Director of Civil Defence. The contention that the post of CGHG is under the administrative control of Respondent No. 4 and this virtually amounts to the applicant's supersession is therefore baseless, and is rejected.
12. Mr. Raju says due consideration was not given to the legitimate expectation of the applicant for appointment as DG and IGP which is the most prestigious post in the Police Organisation. He refers to the note of Ramrakhiani Respondent No. 3 dated 25.5.98 stating the Government's intention is that C.P. Singh should take over as DG and IGP. Mr. Raju submits that the claim of the applicant who is the senior-most and who had received the President's Medal for distinguished services was not considered at all and the Government merely acted on the proposal of Ramrakhiani who is allegedly biased against the applicant.
13. We shall consider [he charge of mala fides levelled against Ramrakhiani. The allegations are contained in paras 4.6 and 4.7 of the O.A. It says that Ramrakhiani had resisted the case of the applicant for promotion to the grade of DGP contending that a CBI inquiry was pending against him on allegations made by Mr. Kannu Pillai. The applicant says that he has not given any information against Mr. Kannu Pillai. He also submits that the fact that the applicant was posted as Dy. G.M. (Admn.) in GSRTC and also held the post of Joint Secretary (Home) which was previously held by officers of the IAS cadre prejudiced Ramrakhiani (who is an IAS Officer) against him. Separately he has alleged that the then Minister of Jails had brought pressure on him to recruit his nominees irrespective of merit to the level of constables when the applicant was working as IG (Prisons). He says that he did not yield to the pressure and made recruitment on merits which had upset the Minister. As regards the allegation against the then Minister of Jails Shri Vipul Chaudhary it is seen that he was not in Government when a decision was taken to appoint Respondent No. 4 as D.G. and I.G.P. No nexus is established or even alleged between Shri Chaudhary and Respondent No. 3. There is also nothing to show that Respondent-3 had in any way tried to block the promotion of the applicant to the grade of DG. The official respondents have denied the allegation that Respondent 3 had made any prejudicial remarks against the applicant during the course of the DPC's deliberations. They submit that since a CBI reference had been made against the applicant the Committee was appraised of the same. The Committee consists of senior officers including the Chief Secretary and would have pursued the overall record of the eligible officers and made its recommendation. The Committee found both the applicant and Respondent 4 to be fit to be appointed to the grade of DGP.
As regards the other contention that the applicant held post, which were earlier held by IAS Officers and this prejudiced Ramrakhiani against him, the same is totally unconvincing. Ramrakhiani is a very senior IAS Officer and not on competition with the applicant for any post. In any case the post of D.G. and I.G.P is to be held by an IPS Officer. The Honourable Supreme Court has laid down in a number of cases that while it may not always be possible to deministrale malice with full and elaborate particulars and it may be permissible in appropriate cases to draw reasonable inference of mala fides from the facts pleaded and established. Such an inference must be based on factual matrix and such factual matrix can not remain in the realm of insinuation, surmises or conjucture. In the present case, no foundation whatsoever has been laid to warrant a reasonable inference of mala-fides against Ramrakhiani. The fact that Respondent 3 has not filed a separate affidavit controverting the allegations does not by itself constitute sufficient ground to accept the charge of mala fides. Mr. Raju has referred to the observations of the Supreme Court in the case of State of Punjab v. Gurdayal Singh and Ors. (supra). In that case involving acquisition of land an allegation was made against a particular person R 22 therein and he did not choose to deny the turptitude imputed to him. The Supreme Court came to the conclusion that there was reason to believe that the statutory power to acquire land has been misused to satisfy the personal ends of the Respondent No. 22 who was politically well connected. An opportunity was given to him to controvert the allegation made but he did not do so. The Supreme Court held that only Respondent No. 22 had personal and direct knowledge in the matter in the context of the allegation of vendatta levelled against him and having regard to the entire history of the case accepted the allegation of mala fides. The facts in the present case are quite different. We find force in the submission of the learned Addl. Advocate General who relies on the Supreme Court decision in the case of Hemlall Bhandari v. State of Sikkim, AIR 1987 SC 762 and contends that it is not necessary to call upon persons placed in high position to controvert allegations when they are not specific or pointed or in any way convincing. We therefore reject the contention of mala fides alleged against respondent - 3.
14. Mr. Raju's stand is that there was no consideration at all of the applicant before Respondent 4 was appointed as D.G. and I.G.P. The note of Ramrakhiani had referred to Govt.'s intention to appoint C.P. Singh. According to Mr. Raju such a decision was taken in a casual manner ignoring the seniority and the award of medals etc. to the applicant who prima facie had a better claim. The applicant has contended in his further affidavit dated 31.5.1989 that when the representation was put up, the Section Officer had brought out the points in his favour but the authorities did not consider the ACRs, the overall record of performance of the officer and Respondent No. 4 was appointed to the post irrespective of seniority, irrespective of merits, irrespective of ACRs and irrespective of service records. He contends that his case was not at all given due consideration.
The post of D.G. and I.G.P. was to fall vacant when the incumbent was retiring on 31.5.98. In respect of such a post, obviously the Government would have initiated some action in time for filling up the vacancy. We do not agree that the final decision in this regard is taken solely at the instance of Principal Secretary (Home) and that he managed to sway the decision in favour of C.P. Singh and the Chief Secretary, Home Minister and Chief Minister merely acted on the recommendations. Apart from Ramrakhiani the matter was also considered by the Chief Secretary and the Minister of State (Home) who gave recommendations to the Chief Minister. There is no basis for holding that they did so without any application of mind merely because of the note given by Ramrakhiani which again refers to the intention of the Government. C.P. Singh was appointed to hold additional charge of D.G. and I.G.P. When the regular incumbent had gone on a few days leave in May 1998. This would show the mind of the State Govt. for filling up the regular vacancy. The presumption is that the senior officers including Chief Secretary would have brought to the notice of the Chief Minister all relevant particulars of the eligible candidates including the applicant and Respondent-4. There is a clear averment of the State Govt. that the applicant was in fact considered but C.P. Singh was preferred for that post. However if there was any such consideration of the applicant prior to his representation dated 15.5.98 it has not been reduced to writing. It is seen that after he gave his representation dt. 15.5.98, the applicant was given a personal hearing by the Chief Minister. In the representation the applicant has highlighted his service background. The award of medals and also that there is no impediment by way of health for him to hold the post of D.G. and I.G.P. The Section Officer has only referred to the contents of the representation and has not offered any comments and Ramrakhiani has referred to the Government's intention. Even if it is alleged that the points brought out in the representation were not within the knowledge of the Chief Minister earlier, the Chief Minister would have now become aware of the same after he gave a personal hearing to the applicant before he passed orders on the file on applicant's representation. If he felt that the representation of the applicant warranted reconsideration of the earlier decision, he could have done so after consulting Minister of State (Home), Chief Secretary etc. We note that the applicant had not alleged malafides against Chief Secretary or the Chief Minister. The official respondents have taken the stand that C.P. Singh had substantial field experience and that was the reason why he was preferred. Mr. Raju has contended that this has not been brought out in the notes and seems to be an after thought. The State Government in their reply statement have highlighted the relative field experience of C.P. Singh vis-a-vis the applicant and have argued that this factor weighed with them. There is no reason to disregard this clear averment. It would seem that what weighed with the State Govt. was the wide field experience and holding of sensitive posts for long periods by C.P. Singh. It is for the State Govt. to decide what importance to attach to different facets in the service record of the officer and so long as their assessment is not perverse, it is not for the others to substitute their judgment to that of the State Government. The applicant has contended that in some other cases namely that of Shri Namboothiri, field experience was not given much importance while making the appointment. We find that the earlier appointment was for a short period and in any case if the Govt. now chooses to give weightage to field experience rather than to the receipt of Medals while making appointment to the post of D.G. and I.G.P., it cannot be contended that they acted on an irrelevant consideration and that the decision to appoint C.P. Singh on that ground amounts to arbitrary exercise of power. The omission to record reason in the file for preferring Respondent 4 to the applicant in our view does not vitiate the decision as in any case the representation of the applicant was considered by the authorities.
As brought out by the learned Additional Advocate General in the case of Royappa referred to supra the Hon'ble Supreme Court had observed in para 87 as follows:
"87. Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief Secretary is highly sensitive post. It is a post of great confidence - a linchpin in the administration- and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interest of administration, shift the Chief Secretary to another post provided of course that does not involve violation of any of his legal or constitutional rights. There can be no question in such a case as to who is right and who is wrong. The displacement of the Chief Secretary from his post in such a case would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without proper justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants."
Mr. Raju has argued that the post of D.G. and I.G.P. has an important role to play with regard to investigation of charges in politically sensitive matters and for the prosecution of those cases and stands on a different footing from that of the Chief Secretary. We do not agree that the post of Chief Secretary is less sensitive than that of the D.G. and I.G.P. or the degree of objectivity required of a Chief Secretary and his ability to withstand political pressure is in any way less than that of D.G. and I.G.P. The principle laid down in Royappa's case would equally apply to the present case. There is nothing to show that the Chief Minister was influenced by extraneous considerations. The applicant does not have a legal right to be appointed to a particular post when he is holding a post in the same grade which is not in any way subordinate to the post of D.G. and I.G.P. Even if it is contended that the doctrine of legitimate expectation would apply, he only has a right to be considered for the post of D.G. and I.G.P. From the materials on record, particularly, the fact that he was given a personal hearing by the Chief Minister and his representation was dealt with and disposed of in the file, his case was in fact given due consideration but the Government preferred another officer with larger field experience.
The principle laid down in para 88 in Royappa's case is also relevant in the present case. The Govt. has to make a choice keeping in view what it regards as the larger interest of the administration. In the process an officer may be posted to a position which does not give him the same amplitude of powers as in another post. However, it does not make the choice or the posting arbitrary so long as the appointment is made on account of the exigencies of administration and it is not from a higher post to a lower post with discriminatory preference of a junior.
15. We therefore hold that the argument that the applicant's legitimate expectation was not given due consideration in the decision making process is without any substance.
16. Mr. Raju forcefully argued that the Supreme Court in Vineet Narayan 's case has observed that there is need for the State Govt. to set a credible mechanism for selection of Police Chief in the State. He submits that the Police Chief in this context would refer only to the D.G. and I.G.P. He also contends that the applicant is the seniormost. IPS officer who has a very good record of service and has been found fit for holding post in GD' s grade but in selection process for D.G. and I.G.P. there was no credible mechanism for selection of Police Chief in the State and even though the applicant submitted a representation he was not considered for this post. He says that this is against the direction of the Supreme Court.
We have gone through the directions and observations of the Hon'ble Supreme Court in Vineet Narayan's case. This issue considered by the Supreme Court was in the context of considering and ensuring the independence of the Central Bureau of Investigation and also the Enforcement Directorate. The Court also gave some directions regarding constitution of nodal agencies for co-ordinated action in cases having political--bureaucrat--criminal nexus and the need for constitution of a panel of competent officers to function as prosecution counsel.
Para 60 reads as follows:
"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 Govts. 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 in the directions, 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 of 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 a Superintendent of Police is on an average only a few months and transfers are made for 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 Govt. within the ambit of their constitutional powers in the federation to impress upon the State Govts. 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, 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.
It is clear that while specific and detailed directions have been given in respect of C.B.I. Enforcement Directorate etc., the Supreme Court has asked the Central Government to ensure setting up of a credible mechanism in each State not only for the selection/ appointment but also for the tenure, transfer and posting not merely of State Police Chief but also of Officers of Superintendent of Police rank and above. The present mechanism is that as per the Central Government guidelines, a high power Committee is constituted to assess the suitability of the IPS Officers to hold posts in the grade of DG of Police. In the present case, such a panel has been prepared and the applicant and C.P Singh were promoted to the grade in December, 1997. The appointment to the post of D.G. and I.G.P. has been made with the approval of the Chief Minister and the file was put up to him by the officers of Home Department including the ACS (Home). The file was routed through the Minister of State (Home) and the Chief Secretary.
The Supreme Court had referred to the report of National Police Commission. It would be ideal if the recommendations of the National Police Commission are effectively implemented but this is an all India problem and not restricted to Gujarat alone.
The State Govt. in the present case had acted on the guidelines given by the Govt. of India regarding constitution of a committee to consider persons for selection to higher posts in the Police cadre including posts in the scale of pay of DGP. In the absence of any other guidelines, they have not set up any formal mechanism for selection to the post of the State Police Chief. We find from the Karnataka High Court's judgment in Dinakar's case that in Karnataka, pursuant to the High Court's directions, the State Govt. had issued an order dated 20th March, 1995 constituting a Committee. Consisting of the Chief Minister as Chairman, the Minister as Member and the Chief Secretary as its Secretary to consider and process officers for elevation to the posts of Head of the Department. This seems to have been superseded by a subsequent Govt. order dated 23.12.96 which has enlarged the constitution of the Committee. We also note from the Supreme Court's observation that Karnataka Government had framed new guidelines for filling up of the post of D.G. and I.G.P. The Govt.' of Gujarat has not set up a formal institutional mechanism for selection to the post of D.G. and I.G.P. as distinct from selection to posts in the scale of Director General of Police. Any such mechanism even if formally set up would involve senior officers of the State Govt. and the final approval for appointment to the post of DG and IGP would be taken at the level of the Chief Minister through the Home Minister. In the present case, we find that Principal Secretary (Home) and the Chief Secretary were party to the decision making process and they had dealt with the representation of the applicant. The decision to make C.P. Singh as D.G. and I.G.P. was approved by the Minister of State (Home) and the Chief Minister. The State Govt. have stated that there are no further guidelines regarding the mechanism to be set up in each State for the selection/appointment of Chief of the State Police and also other senior Police Officers of the rank of Superintendent of Police and above. In the absence of such guidelines from the Central Government, the State Government seems to have followed the practice adopted in such cases in the past. The procedure followed and the mechanism adopted while making selection to the post of D.G. and I.G.P., in the present case cannot be considered as improper or lacking in credibility. In the facts and circumstances of the case we hold that appointment of Respondent No. 4 as D.G. and I.G.P. cannot be set aside only on the ground that the State Government has not formally established an institutional mechanism for selection to the post of D.G. and I.G.P.
17. Mr. Raju has argued that the ratio of the Karnataka High Court's decision as upheld by the Hon'ble Supreme Court in the case of Dinakar would squarely apply to the present case calling for issue of identical direction.
We have gone through the judgment of Karnataka High Court dated 23.10.98. While disposing of the writ petition No. 4264 of 1998 and the Supreme Court's order dated 14.6.1999 while disposing of Civil Appeal No. 3116 of 99 arising out of SLP No. 17842 of 1998. In its judgment the Hon'ble Supreme Court had highlighted certain observations of the High Court while rendering its decision. High Court had noted that the Karnataka Chief Minister was given an impression that on 6th March, 1997 Respondent No. 4 Srinivasalu was still on deputation to Govt. of India, which was factually not correct as the officer had already been relieved on 5th of March 1997. The High Court also has noted and negatived the contention of the State Government that the appointment of Respondent 4 as D.G. and I.G.P. was an order simplicitor of assumption of duties of D.G. and I.G.P. in his capacity as DGP and observed that the plea of mere assignment of duties as D.G. and I.G.P. to Respondent - 4 therein appears to have been carved out purposely perhaps upon conceiving the doubt that such a selection could not be justified in the Court of Law, as selection is admittedly distinct from nomination. The Supreme Court in its judgment had observed inter alia.
"It is also stated that except the post of Director General of Police, Commandant General, Home Guards and Director of Civil Defence and Fire Services, which post the first respondent was holding at the relevant time the other two posts were amenable to the supervisory jurisdiction of the D.G. and I.G.P. to sustain the promotion and appointment of fourth respondent, the stand taken by the appellant before the Tribunal was that inasmuch as the appointment is by selection, the officers eligible have only right to be considered and have no right to appointment. It is further stated by the appellant before the Tribunal that while exercising the discretion of selection the Appointing Authority has had due regard to the seniority of all the eligible candidates. It was further claimed by the appellant before the Tribunal that the appointment to the post of D.G. and I.G.P. has been done on very objective criteria and after a comparative assessment of the service records of all the eligible officers While so, before the High Court a different stand was taken contending that the appointment of respondent No. 4 as D.G. and I.G.P. was an order of simliciter assignment of duties of D.G. and I.G.P. to the fourth respondent in his capacity as DGP. This vital deviation in the stand was taken note of by the High Court and it came to the conclusion that the contention of the respondents (appellant herein) 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."
The Supreme Court also referred to the finding of the High Court which had noted that Respondent - 4 was not DGP on any date prior to 6th March, 1997. If he was not DGP prior to that date then there was no material before the Chief Minister to consider him for appointment by selection to the post of D.G. and I.G.P. because admittedly only persons substantively holding the cadre of D.G. of Police could be considered for appointment to the post of D.G. and I.G.P., and that in such situation the applicant who was already holding the grade of DG appears to be justified in complaining that unequals were treated alike. The High Court further held that appointment of Srinivasalu as a Special Director in I.B. by the Union Government in the scale of Rs. 7600-8000 did not amount to his substantive appointment to the post of DGP as such an appointment by the Government of India was an interim measure till only further orders. Since Respondent No. 4 was holding only the post of Addl. D.G. of Police when he left State Government to join I.B. on deputation on 3.1.97 and he got relieved by the Government of India on 5th March 1997, Respondent 4 being not DG on the relevant date was not eligible to be considered for the post of DG and IGP. The High Court had further observed that the official Respondents after having decided to appoint Respondent - 4 to the post of D.G. and I.G.P. to which he was not eligible had tailored the grounds to suit their jackets and the contradictory objections filed and raised by the respondents clearly demonstrate that the proclaimed selection process was merely a hoax and not actually resorted to or adopted. The High Court and Supreme Court also examined the appointment in the context of the State Govt. orders dated 20th March, 1995 constituting a Committee consisting of the Chief Minister as Chairman the concerned Minister as a Member and the Chief Secretary as its Secretary to consider and process the cases of officers for elevation to the post of Head of the Department. The constitution of the Committee was further enlarged by an order dated 23rd December, 1996. This was made on the basis of the direction of the High Court in another case and there were Government Resolutions regarding the procedure to be adopted by the said Committee. The High Court had held that this procedure was not followed while appointing the Respondent - 4 as D.G. and I.G.P. The above narration of the background in Dinakar's case would show that the facts in this case are clearly distinct. Unlike Srinivasalu Respondent No. 4 in Karnataka case Shri C.P. Singh Respondent No. 4 in this O.A. has been assessed by a Committee constituted in accordance with the Government of India guidelines for promotion to the level of DGP alongwith the applicant. He was found fit and was posted as DG and Director and ACB in Dec. 1997. It is not the position that when he was appointed as D.G. and I.G.P. he was only holding the post of Addl. DG. as was the position in Karnataka case and there is no question of unequals being treated alike. In Dinakar's case, the Court held that Srinivasalu was not a regular DGP and was not eligible to hold the post of D.G. and I.G.P. till he was made a substantive DGP and that the stand of the State Govt. that his posting as D.G. and I.G.P, amounted to mere assignment of duties was untenable. Again a procedure has been laid down in Karnataka on the basis of the High Court's direction for appointment to the level of Heads of Department and this was not followed while appointing Srinivasalu as D.G. and I.G.P. So far as Gujarat is concerned, there are guidelines as conveyed by the Government of India to assess the suitability of the officers to hold the grade of D.G. of Police. After a person is found fit he is given promotion to the grade. Government can appoint one of them as D.G. and I.G.P., as they are all eligible and if warranted can interchange officers in the same level. The learned Additional Advocate General has contended that the observations of Supreme Court in Dinakar's case does not lay down any new principle different from that in Royappa's case, and that the decision therein turned on the facts of that case. We find merit in this contention. We, therefore, hold that the present case is clearly distinguishable from the case of Dinakar relied upon by Mr. Raju and identical direction as in Dinakar's case is not warranted in the present case.
18. In the light of the foregoing discussion we hold that it is not a fit case for the Tribunal to interfere with the decision of the State Govt. leading to appointment of Shri C.P. Singh as D.G. and I.G.P. The O.A. is dismissed with no orders as to costs. The State Govt. files may be returned to the Counsel for respondent No. 1.