Mohd. Mustafa vs Union Of India

referred to "DGP (HoPF)”), the Appellants filed original

applications before the Central Administrative Tribunal,

Chandigarh Bench, Chandigarh. By an order dated 17.01.2020,

the Tribunal set aside the order dated 07.02.2019 on the ground

1 | Page that preparation of the panel for selection of DGP (HoPF) for the

State of Punjab was in contravention of a judgement of this

Court in Prakash Singh v. Union of India1 apart from others.

Further, a direction was given to the Union Public Service

Commission (hereinafter referred to as “UPSC”) and the State of

Punjab to conduct selection for the post of DGP (HoPF), State of

Punjab afresh. The judgement of the Central Administrative

Tribunal was challenged in the High Court of Punjab and Haryana

by the UPSC, the State of Punjab and Mr. Dinkar Gupta. Mr.

Siddharth Chattopadhyaya, the Appellant in Civil Appeal arising

out of SLP (Civil) No.14982-14985 of 2020, also filed a Writ

Petition aggrieved by the rejection of the plea of bias. Writ

Petitions filed by UPSC, the State of Punjab and Mr. Dinkar Gupta

were allowed by the High Court and the judgement of the

Tribunal was set aside. Writ Petition filed by Mr. Siddharth

Chattopadhyaya (hereinafter referred to as “the Appellant”) was

dismissed. These appeals are filed assailing the legality and

validity of the judgement of the High Court dated 06.11.2020.

2. Mohd. Mustafa, the Appellant in Civil Appeal arising out of

SLP (C) No.14623 of 2020, retired on attaining the age of

superannuation during the pendency of these appeals. As the 1 (2006) 8 SCC 1

2 | Page contentions raised by Appellants in both the civil appeals are

similar, we shall refer to the facts of Civil Appeal arising out of

SLP (C) Nos. 14982-14985 of 2020. Mr. Siddharth

Chattopadhyaya was inducted to Indian Police Service in 1986

and allocated to Punjab cadre. The post of DGP (HoPF), State of

Punjab was required to be filled up due to the ensuing

retirement of Mr. Suresh Arora. A letter was written by the

Union of India on 19.01.2019 to Respondent No.1-UPSC to

initiate the process for appointment to the post of DGP (HoPF)

for the State of Punjab. A list of 12 officers who were working in

the rank of DGP/additional DGP and who had completed thirty

years of service was forwarded by the State of Punjab. The

Appellant was included in the said list.

3. The Empanelment Committee constituted by the UPSC

finalised a panel consisting of Mr. Dinkar Gupta-Respondent No.

4, Mr. M.K. Tiwari- Respondent No.6 and Mr. V.K. Bhawra

Respondent No.7. The State Government selected and

appointed Respondent No.4 as DGP (HoPF) from the said panel.

Challenging the selection and appointment of Respondent No.4

as DGP (HoPF), the Appellant and Mohd. Mustafa filed Original

Applications in the Central Administrative Tribunal. The

3 | Page Tribunal, by its order dated 17.01.2020, allowed the Original

Applications and set aside the panel prepared by the

Empanelment Committee on 04.02.2019. Consequently, the

selection and appointment of Respondent No.4 as DGP (HoPF)

was set aside. The Tribunal directed preparation of a panel of

three senior-most officers afresh strictly in accordance with the

judgment of this Court in Prakash Singh’s case (supra).

4. The Tribunal was of the opinion that this Court in Prakash

Singh’s case settled the parameters to be followed for selection

of the Director Generals of Police. UPSC deviated from the

procedure prescribed by this Court, rendering the selection

invalid. The Tribunal held that this Court specified three factors

which have to be followed for selection of DGP. Seniority, being

one of the factors, along with good record of service and range

of experience to head a police force was not given due

importance by the Empanelment Committee in finalising the

panel. Draft Guidelines 2009 framed by UPSC (hereinafter

referred to as “Draft Guidelines”) have no authenticity or

legality, according to the Tribunal. Identification of five core

policing areas from the domain of twenty policing areas is

without any basis. In addition, the Tribunal held that the

4 | Page identification of the core policing areas was to suit the selected

candidate. Preparation of the panel consisting three persons

was also found fault with due to no reasons being assigned.

5. Aggrieved by the judgment of the Tribunal, Writ Petitions

were filed in the High Court of Punjab and Haryana. The High

Court framed the following questions for determination:

1) What is the scope of judicial review/interference by the High Court under Article 226 of the Constitution of India, 1950 against the decision of the Administrative Tribunal (in short "Tribunal"}?

2) (a) Whether the Draft Guidelines 2009 issued by the UPSC detailing the procedure and modalities for selection of panel for DGP (HoPF} are patently opposed and violative of the directions issued in Prakash Singh's case (supra} and the findings of the Tribunal contrary to the same are sustainable?

(b) Whether the Core Policing Areas being adopted by the Empanelment Committee for assessment on the aspect of 'range of experience' State wise on cases to case basis are in contravention of the Supreme Court directions in Prakash Singh's case (supra} and whether the 5 Core Policing Areas chosen in the present case are is legal and valid? \

5 | Page

(c) Whether in view of the findings of this Court to the issues at (a} and (b} above, the findings of the Tribunal are sustainable?

3) (a) What is the scope of judicial review in matter of the empanelment and selection by the Selection/Empanelment Committee?

(b) Whether the Tribunal exceeded the said power of judicial review in selection of DGP (HoPF} by the UPSC in February 2019?

4) Whether the impugned order dated 17.01.2020 of the Tribunal is liable to be set aside and the consequential relief?

6. The High Court held that this Court in Prakash Singh’s

case has laid down broad guidelines for selection to the post of

DGP on the basis of assessment of officers by considering length

of service, very good record and range of experience for

heading the police force. The Draft Guidelines were framed by

UPSC for implementation of directions issued by this Court in

Prakash Singh’s case. The conclusion of the Tribunal that the

Draft Guidelines have no authenticity was set aside by the High

Court on the ground that the Draft Guidelines have been

approved by this Court. The jurisdiction of UPSC in formulating

Draft Guidelines and giving discretion to the Empanelment

6 | Page Committee to follow its own procedure was upheld by the High

Court. Selection of five core policing areas for assessment of

the officers from the State of Punjab was approved by the High

Court. Relying upon judgments of this Court, the High Court

observed that there was no requirement for recording reasons

while finalising the selection of DGPs. The High Court held that

the Tribunal encroached into the domain of the experts in

setting aside the selection made by UPSC. The High Court was

in agreement with the Tribunal that the Appellant failed to make

out a case of bias. Finally, the High Court set aside the

judgment of the Tribunal and upheld the selection and

appointment of Respondent No.4 as DGP (HoPF).

7. We have heard Mr. Krishnan Venugopal, learned Senior

Counsel for the Appellant in Civil Appeal arising out of SLP (C)

Nos. 14982-14985 of 2020, Mr. P.S. Patwalia, learned Senior

Counsel for the Appellant in Civil Appeal arising out of SLP (C)

No.14623 of 2020, Mr. Aman Lekhi, learned Additional Solicitor

General for the Respondent No.1-UPSC, Mr. Mukul Rohatgi,

learned Senior Counsel for the State of Punjab, Mr. Maninder

Singh, learned Senior Counsel for Respondent No.4 and Mr.

Shyam Divan, learned Senior Counsel for Respondent No.5.

7 | Page

8. Mr. Krishnan Venugopal, learned Senior Counsel appearing

for the Appellant in Civil Appeal arising out of SLP (C) Nos.

14982-14985 of 2020, argued that the empanelment and

appointment of Respondent No. 4 as DGP (HoPF) is vitiated by

bias. Respondent No.5 who was a member of the Empanelment

Committee was prejudiced against the Appellant due to the

report filed by the Appellant before the Punjab and Haryana

High Court in Civil Writ Petition No. 20359 of 2013 titled as

‘Court on its own motion v. State of Punjab and

Another’ in which Respondent No.5 was found to be involved in

criminal activities. On earlier occasions Respondent No. 5

recused himself in matters relating to the Appellant and,

therefore, Respondent No.5 ought not to have participated in the

selection process. Accordingly, the decision of the

Empanelment Committee of which Respondent No.5 was a

member is not bona fide and is liable to be set aside. The

Appellant contended that the Draft Guidelines have no legal

sanctity. The criteria laid down by the Draft Guidelines is

contrary to the judgement of this Court in Prakash Singh’s

case. The Draft Guidelines cannot be considered as statutory

rules or regulations. It was further submitted on behalf of the

8 | Page Appellant that the five core policing areas that were identified

by the Empanelment Committee out of twenty policing areas as

criteria for assessment of officers’ range of experience to head a

police force were tailor-made to suit Respondent No. 4. Due

weightage has not been accorded to seniority as laid down by

this Court in Prakash Singh’s case. Admittedly, the Appellant

is senior to Respondent No.4 and could not have been

overlooked unless there are justifiable reasons for his

supersession. According to the Appellant, the list of 12 officers

working as additional DGP/DGP could not have been forwarded

by the State of Punjab for selection and appointment to one post

of DGP. Mr. P. S. Patwalia, learned Senior Counsel appearing for

the Appellant in Civil Appeal arising out of SLP (C) No.14623 of

2020, submitted that Mr. Mohd. Mustafa has maximum gallantry

awards and has a meritorious record of service. He was not

empanelled due to faulty selection procedure adopted by UPSC.

9. Mr. Aman Lekhi, learned Additional Solicitor General,

countered the submissions made on behalf of the Appellants by

arguing that the Draft Guidelines were approved by this Court.

He submitted that the Draft Guidelines were framed by the

UPSC to give effect to the judgement of this Court in Prakash

9 | Page Singh’s case. The five core policing areas that were identified

for empanelment out of twenty domain assignments usually

allocated to police officers was done after taking into account

the peculiar situation and requirement of the State of Punjab.

The criteria laid down by this Court in Prakash Singh’s case is

part of the Draft Guidelines and the Tribunal committed an error

in holding the Guidelines to be contrary to the said judgement.

Respondent No.5, being the then DGP (HoPF), was included as a

member of the Empanelment Committee and the Appellants did

not raise any objection to his participation in the deliberations of

the Empanelment Committee. It was contended that the

assessment by the Empanelment Committee being strictly in

accordance with the Draft Guidelines and the judgement of this

Court in Prakash Singh’s case, the selection and appointment

of Respondent No.4 as DGP (HoPF) is valid. The Empanelment

Committee is not required to record any reasons.

10. Mr. Mukul Rohatgi, learned Senior Counsel appearing for

the State of Punjab, contended that the zone of consideration

according to clause 2 of Draft Guidelines is restricted to the

cadre of ADGP/DGP to officers who have completed 30 years of

service. The Draft Guidelines contained three requirements,

10 | P a g e namely (i) length of service (ii) very good record and (iii) range

of experience. Identification of five core policing areas from

amongst twenty policing areas for assessment of merit of

officers was done by the Empanelment Committee by taking

into account the special needs of the State of Punjab. Courts

should show deference to the decision of experts in the matter

of selections. The State raised serious objection to the

allegation of bias made by the Appellants against Respondent

No.4 and 5. Mr. Rohatgi stated that the Appellant abused his

position as the head of a special investigation team by filing a

report which was not signed by the other members of the team

to tarnish the reputation of Respondent No. 4 and 5. Mr. Rohatgi

stated that the report filed by the Appellant without the

signatures of the other members of the Committee is still lying

in a sealed cover before the High Court. It was submitted on

behalf of the State that the Appellant was fully aware of

initiation of the process for appointment of DGP and the

presence of Respondent No.5 in the Committee but did not raise

any objection to his continuance in the Empanelment

Committee. The Appellant cannot be permitted to raise a bogey

of bias at this late hour. In any event, Respondent No.5 was

11 | P a g e required to continue in the Empanelment Committee as per the

doctrine of necessity. The State Government refuted the

contention of the Appellant that there was suppression of

relevant record. It was argued that the relevant record was sent

to the Public Service Commission. The State Government

cannot be accused of favouring Respondent No.4 by not sending

the said report to the Public Service Commission. Mr. Rohatgi

submitted that the Draft Guidelines have been followed for

empanelment and selection of a number of DGPs in several

States. The Empanelment Committee comprises of senior

officers of which Respondent No.5 is one member. The

selection cannot be said to be biased when the allegation of

prejudice is against one member of a multi-member Committee.

11. Mr. Maninder Singh, learned Senior Counsel, stated that

Respondent No.4 has an exemplary record of service and is a

highly decorated officer with more medals than the Appellant.

Responding to submissions of the Appellant pertaining to the

report filed in the High Court, Respondent No.4 contended that

there is a sinister motive on the part of the Appellant in trying to

mislead this Court that the said report was filed by the special

investigation team. In fact, two reports were filed by the

12 | P a g e special investigation team on 01.02.2018 and 15.03.2018. The

said reports were signed by all the members of the Committee

in which no allegations were made against Respondent No.4.

Later, another report was filed by the Appellant alleging that

Respondent No.4 was involved in certain criminal activities.

The said report was given in a sealed cover to the Court. The

other members of the Committee have gone on record to state

that they were not consulted before the said report was filed

before the Court nor do they have any knowledge about the

contents of the report. The Appellant was facing a criminal

charge in a case registered under Section 306 IPC and had

engineered the report only for the purpose of maligning

Respondent No.4 to steal a march over him for selection and

appointment as DGP. Mr. Maninder Singh argued that the Draft

Guidelines which are strictly in conformity with the directions

issued by this Court in Prakash Singh’s case have not been

challenged in spite of which the Tribunal held them to be in

contravention of the directions in Prakash Singh’s case. He

further submitted that Mr. Mustafa has retired on attaining the

age of superannuation and the Appellant has service of less

13 | P a g e than six months left and cannot be considered for appointment

as DGP even if he succeeds in this appeal.

12. Mr. Shyam Divan, learned Senior Counsel for Respondent

No.5, submitted that the plea of bias as alleged by the Appellant

was rejected by both the Tribunal and the High Court which does

not warrant any interference by this Court. As the Director

General of Police, Respondent No.5 was duty bound to be a

member of the Empanelment Committee. The allegation of bias

is baseless and created only for the purpose of succeeding in

the challenge to the selection and appointment of Respondent

No.4 as DGP (HoPF). Moreover, no objection was raised by the

Appellants for the participation of Respondent No.5 in the

Empanelment Committee.

13. Judicial review may be defined as a Court's power to

review the actions of other branches or levels of government;

especially the Court's power to invalidate legislative and

executive actions as being unconstitutional2. Power of judicial

review is within the domain of the judiciary to determine the

legality of administrative action and the validity of legislations

and it aims to protect citizens from abuse and misuse of power

2 Black's Law Dictionary

14 | P a g e by any branch of the State3. The power of judicial review is a

basic feature of the Constitution of India4. Judicial review has

certain inherent limitations. However, it is suited more for

adjudication of disputes other than for performing administrative

functions. It is for the executive to administer law and the

function of the judiciary is to ensure that the Government carries

out its duties in accordance with the provisions of the

Constitution5.

14. The grounds on which administrative action is subject to

judicial review are illegality, irrationality and procedural

impropriety. The following observations made by Lord Diplock in

Council of Civil Service Unions and others v. Minister for

Civil Service6 are apt:

“By ‘illegality’ as a ground for judicial review I mean that

the decision-maker must understand correctly the law that

regulates his decision-making power and must give effect to

it. Whether he has or not is par excellence a justiciable

question to be decided, in the event of dispute, by those

3 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 4 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225 5 S.R. Bommai v. Union of India (1994) 3 SCC 1 6 [1985] AC 374

15 | P a g e persons, the judges, by whom the judicial power of the

state is exercisable.

By ‘irrationality’ I mean what can by now be succinctly

referred to as ‘Wednesbury unreasonableness’. It applies to a

decision which is so outrageous in its defiance of logic or of

accepted moral standards that no sensible person who had

applied his mind to the question to be decided could have

arrived at it. Whether a decision falls within this category is a

question that judges by their training and experience should be

well equipped to answer, or else there would be something badly

wrong with our judicial system. To justify the Court’s exercise of

this role, resort I think is today no longer needed to Viscount

Radcliff’s ingenious explanation in Edwards (Inspector of Taxes)

v. Bairstow, of irrationality as a ground for a court’s reversal of a

decision by ascribing it to an inferred though unidentifiable

mistake of law by the decision makers. “Irrationality” by now

can stand on its own feet as an accepted ground on which a

decision may be attacked by judicial review.

I have described the third head as “procedural

impropriety” rather than failure to observe basic rules of natural

justice or failure to act with procedural fairness towards the

person who will be affected by the decision. This is because

susceptibility to judicial review under this head covers also

failure by an administrative tribunal to observe procedural rules

16 | P a g e that are expressly laid down in the legislative instrument by

which its jurisdiction is conferred, even where such failure does

not involve any denial of natural justice. But the instant case is

not concerned with the proceedings of an administrative tribunal

at all”.

15. The discretionary power vested in an administrative

authority is not absolute and unfettered. In Wednesbury, Lord

Greene was of the opinion that discretion must be exercised

reasonably. Explaining the concept of unreasonableness, Lord

Greene stated that a person entrusted with discretion must

direct himself properly in law and that he must call his own

attention to the matter which he is bound to consider. He

observed that the authority must exclude from his consideration

matters which are irrelevant to the matter he is to consider. Lord

Greene concluded that if an authority does not obey

aforementioned rules, he may truly be said, and often is said, to

be acting unreasonably.7

16. Conditions prompted by extraneous or irrelevant

considerations are unreasonable and liable to be set aside by

Courts in exercise of its power under judicial review 8. (See:

7 Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680 8 Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189

17 | P a g e State of U.P. v. Raja Ram Jaiswal 9, Sheonandan Paswan v.

State of Bihar & Others10, Sant Raj v. O.P. Singla 11,

Padfield v. Minister of Agriculture12). A decision can be

arrived at by an authority after considering all relevant factors 13.

If the discretionary power has been exercised in disregard of

relevant consideration, the Court will normally hold the action

bad in law14. Relevant, germane and valid considerations

cannot be ignored or overlooked by an executive authority while

taking a decision15. It is trite law that Courts in exercise of power

under judicial review do not interfere with selections made by

expert bodies by reassessing comparative merits of the

candidates. Interference with selections is restricted to

decisions vitiated by bias, mala fides and contrary to statutory

provisions. (See: Dalpat Abasaheb Solunke v. Dr. B.S.

Mahajan16, Badrinath v. State of T.N.17, National Institute

of Mental Health and Neuro Sciences v. Dr. K. Kalyana

Raman18, Major General I. P. S Dewan v. Union of

9 (1985) 3 SCC 131 10 (1983) 1 SCC 438 11 (1985) 2 SCC 349 12 [1968] 1 All ER 694 13 Sachidanand Pandey v. State of WB, (1987) 2 SCC 295 14 H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009) 15 C.K. Thakker Administrative Law, Second Edition page 801 16 (1990) 1 SCC 305 17 (2000) 8 SCC 395 18 1992 Supp (2) SCC 481

18 | P a g e India19, Union Public Service Commission v. Hiranyalal

Dev20, M. V. Thimmaiah v. UPSC 21 and UPSC v.

Sathiyapriya22).

17. Keeping in mind the aforestated principles of law, we

proceed to examine whether the selection and appointment of

Respondent No.4 as DGP (HoPF) on the basis of the Draft

Guidelines is contrary to the judgment of this Court in Prakash

Singh’s case, suffers from the vice of irrationality and is vitiated

due to malice and bias.

18. The Government of India appointed a National Police

Commission on 15.11.1977 for reviewing the role and

performance of the police as well as law enforcement agencies

and as an institution to protect the rights of the citizens

enshrined under the Constitution. Recommendations made by

the Commission were not implemented giving rise to a writ

petition under Article 32 of the Constitution of India filed by a

retired Director General of Police, Prakash Singh in which

directions were sought for framing a new Police Act on the lines

of Model Act drafted by the Commission. The writ petition was

19 (1995) 3 SCC 383 20 (1988) 2 SCC 242 21 (2008) 2 SCC 119 22 (2018) 15 SCC 796

19 | P a g e disposed of by this Court on 22.09.2006 by its judgment in

Prakash Singh’s case in which several directions pertaining to

the State Security Commission, selection and minimum tenure

of the Director General of Police, minimum tenure of the

Inspector General of Police and other officers, separation of

investigation, police establishment board, police complaining

authority and National Security Commission were given. The

said directions were issued under Article 32, read with Article

142, of the Constitution of India which were directed to be

implemented till the legislature passes the appropriate

legislations. In so far as the selection and minimum tenure of

DGP is concerned, this Court directed that the UPSC shall

empanel three senior-most officers of the Department for

promotion to the rank of DGP on the basis of their length of

service, very good record and range of experience for heading

the police force. The State Government shall select the DGP

from amongst the three senior-most officers empanelled by the

UPSC. A minimum tenure of at least two years, irrespective of

the date of superannuation, has been fixed by this Court.

19. By way of implementation of the directions issued by this

Court in Prakash Singh’s case, UPSC framed Draft Guidelines

20 | P a g e for empanelling officers for appointment as DGP (Chief of

Police). The composition of the Empanelment Committee is as

under: -

a) Chairman, or in his absence, Member, UPSC – President.

b) Home Secretary to the Government of India or his

nominee not below the rank of Special Secretary to the

Government of India.

c) Chief Secretary of the State Government concerned.

d) Director General of Police of the State Government

concerned.

e) An officer from amongst the head of CPOs/CPMFs not

belonging to the cadre for which selection is being made,

nominated by the Government of India, Ministry of Home

Affairs.

20. Officers belonging to the Indian Police Service of the

concerned cadre, not below the rank of ADG, and who have

completed at least 30 years of service as on the date of

occurrence of vacancy for which the panel is prepared, are

eligible for being considered for selection and appointment as

DGP. Selection, according to the Guidelines, shall be merit-

based and inclusion in the panel shall be adjudged on the basis

21 | P a g e of ‘very good’ record and range of experience for heading the

police force. The Draft Guidelines empowered the Committee to

adopt its own methods and procedure for objective assessment

of the suitability of officers to the zone of consideration. The

Committee was obligated to make assessment of the annual

confidential reports of the officers with reference to the last ten

years preceding the date of meeting of the Committee. Only

those officers assessed by the Committee as at least ‘very good’

for each of the preceding 10 years shall be considered for

inclusion in the panel. According to the Guidelines, the

Committee shall also take into account the range of experience,

relevant for heading the police force as reflected in the bio-data

of the officers for determining their suitability for inclusion in the

panel. The Guidelines stipulated that the State Government

shall appoint DGP from amongst the three senior-most officers

included in the panel.

21. On 03.07.2018, this Court disposed of an application filed

for modification of the judgment in Prakash Singh’s case by

giving the following directions: -

6.1. All the States shall send their proposals in anticipation of

the vacancies to the Union Public Service Commission, well in

22 | P a g e time at least three months prior to the date of retirement of the

incumbent on the post of Director General of Police; 6.2 The Union Public Service Commission shall prepare the

panel as per the directions of this Court in the judgment in

Prakash Singh’s case(supra) and intimate to the States;

6.3 The State shall immediately appoint one of the persons

from the panel prepared by the Union Public Service

Commission;

6.4 None of the States shall ever conceive of the idea of

appointing any person on the post of Director General of Police

on acting basis for there is no concept of acting Director

General of Police as per the decision in Prakash Singh’s

case(supra);

6.5 An endeavour has to be made by all concerned to see that

the person who was selected and appointed as the Director

General of Police continues despite his date of superannuation.

However, the extended term beyond the date of

superannuation should be a reasonable period. We say so as it

has been brought to our notice that some of the States have

adopted a practice to appoint the Director General of Police on

the last date of retirement as a consequence of which the

person continues for two years after his date of

23 | P a g e superannuation. Such a practice will not be in conformity with

the spirit of the direction.

6.6 Our direction No.(c) should be considered by the Union

Public Service Commission to mean that the persons are to be

empanelled, as far as practicable, from amongst the people

within the zone of consideration who have got clear two years

of service. Merit and seniority should be given due weightage.

6.7 Any legislation/rule framed by any of the States or the

Central Government running counter to the direction shall

remain in abeyance to the aforesaid extent.

22. It is relevant to note that the State of Punjab enacted

Punjab Police Act, 2007, subsequent to the decision of this Court

in Prakash Singh’s case. According to Section 6 of the said

Act, the DGP shall be selected by the State Government from

amongst the Indian Police Service officers and on appointment,

the DGP shall have a tenure of not less than two years. The

validity of the said Act was challenged in Writ Petition No.286 of

2013. The State of Punjab filed I.A. No. 144172 of 2018 for

modification of the order dated 03.07.2018, seeking liberty to

appoint DGP in accordance with the Punjab Police Act, 2007.

While examining the contention of the State of Punjab, this

Court summoned Mr. Rakesh Kumar Gupta, Secretary, UPSC to

24 | P a g e appear on 15.01.2019. Mr. Gupta submitted before this Court

that committees have been constituted by the UPSC for

selection of DGPs and panels have been drawn by the

Committees in respect of 12 States. This Court refused to

modify the order dated 03.07.2018 after being satisfied with the

procedure adopted by UPSC to carry out the directions of this

Court. As some State Governments were appointing DGP on the

last date of service of the incumbent to enable the officer to get

an extendable term of two years, this Court by an order dated

13.03.2019 clarified that empanelment of an officer for

consideration for appointment to the post of DGP should be only

in case of a minimum residual tenure of six months. In other

words, only those officers who have at least six months of

service prior to their retirement shall be considered for

appointment to the post of DGP.

23. The contention of the Appellant is that the criteria fixed by

this Court in Prakash Singh’s case was not followed in letter

and spirit by the Empanelment Committee of UPSC while

conducting selection to the post of DGP (HoPF). The Draft

Guidelines are contrary to the directions given by this Court in

Prakash Singh’s case and therefore, the selection of

25 | P a g e Respondent No.4 is liable to be set aside. Selection of five core

policing areas for evaluation of merit of the officers in respect of

range of experience is arbitrary and is tailor-made to suit

Respondent No.4. Admittedly, appellant is senior to respondent

No.4 and could not have been superseded by the Empanelment

Committee of the UPSC.

24. According to UPSC, the Draft Guidelines were made to give

effect to the directions issued by this Court in Prakash Singh’s

case. The Draft Guidelines were placed before this Court when

the interlocutory application filed by the Government of India for

modification of the judgment dated 22.09.2006 in Prakash

Singh’s case was being considered. This Court expressed its

satisfaction regarding the procedure and practice followed by

UPSC in the matter of selection to the post of DGP. The Draft

Guidelines referred to the factors to be taken into consideration

by the Empanelment Committee for selection of DGP as per the

directions issued by this Court in Prakash Singh’s case.

Length of service, very good record and range of experience for

heading the police force are factors to be considered by the

Empanelment Committee. According to UPSC, the range of

experience is a constituent part of the component of merit. In

26 | P a g e respect of selection to the post of DGP (HoPF) for the State of

Punjab, five core policing areas have been identified to assess

the range of experience of the officers concerned for the last 10

years, which are:-

A. Intelligence B. Law and order C. Administration D. Investigation E. Security

The selection based on the Draft Guidelines was defended

by UPSC on the ground that the Guidelines are in conformity

with the directions issued by this Court in Prakash Singh’s

case.

25. This Court in Prakash Singh’s case directed

empanelment of officers for appointment to the post of DGP by

UPSC by laying down broad criteria. The implementation of the

directions issued by this Court has to be on objective basis for

which reason the UPSC has framed Draft Guidelines, which are

being followed uniformly since 2009 for selection of DGPs in

several States. Keeping in mind, the seniority of the officers

under consideration, selection is conducted on the basis of very

good record and range of experience for heading the police

force. Assessment of very good record of service is on the basis

of annual confidential reports for the last 10 years. Range of

27 | P a g e experience for heading the police force assessed by the

empanelment committee is done by assessing the performance

of officers in five core police areas out of 20 policing areas.

Discretion was given to the empanelment committees to select

the core policing areas by taking into account the prevailing

situation in the States. Considering the peculiar situation of the

State of Punjab, intelligence, law and order, administration,

investigation and security were identified as the core policing

areas to ascertain range of experience of an officer to head the

police force.

26. The Draft Guidelines cannot be said to be contrary to the

criteria laid down by this Court in Prakash Singh’s case. The

Guidelines carry forward the directions given by this Court by

stipulating the objective criteria for guidance of the

empanelment committees. The preparation of a panel on the

basis of the Draft Guidelines after taking into account the core

policing areas cannot be said to be arbitrary. We are not

impressed with the submission of the Appellant that the core

policing areas were identified only to suit Respondent No. 4.

Assessment of relative merit of the officers under consideration

is within the domain of the Empanelment Committee, which is

28 | P a g e given liberty to adopt its own procedure. Merit of the officers in

the zone of consideration is evaluated on the basis of their

record of service and range of experience. A panel of three

officers has been prepared in the order of seniority. The

Appellant was found to be inadequate for inclusion in the panel

in the range of experience for core policing areas. The Tribunal

committed an error in recording the finding that the

Empanelment Committee deviated from the procedure

prescribed by this Court in Prakash Singh’s case. There is no

basis for the conclusion of the Tribunal that the Draft Guidelines

are contrary to the directions given by this Court in Prakash

Singh’s case. The broad criteria mentioned in the said case are

seniority, very good record of service and range of experience to

head a police force. The Draft Guidelines which have to be

scrupulously followed by empanelment committees stipulate

that a selection should be on the same criteria. In the instant

case, Empanelment Committee decided to assess the range of

experience of officers to head the police force in the State of

Punjab after considering the peculiarities of the State.

Identification of five core policing areas out of a domain of

twenty policing areas cannot be said to be an arbitrary exercise

29 | P a g e of power. The Tribunal committed an error in accepting the

submission of the Appellant that the core policing areas,

identified by the Empanelment Committee was only to favour

Respondent No.4 on the basis of unsubstantiated allegations.

Empanelment was directed to be done by UPSC on the basis of

length of service, very good record and range of experience for

heading the police force in Prakash Singh’s case (supra).

Later, in the order dated 13.03.2019, this Court clarified its

earlier order dated 03.07.2018 and directed UPSC to prepare the

panel purely on the basis of merit. Be that as it may, the

recommendation of the names of 12 officers for consideration is

on the basis of completion of thirty years’ service in the cadre of

ADGP. Length of service as mentioned in Prakash Singh’s

case (supra) is taken into account for determination of zone of

consideration. The other two factors namely, good record of

service and range of experience of all the 12 officers

recommended on the basis of length of service are assessed by

the Empanelment Committee. Inter se merit of the candidates

was evaluated according to the objective criteria followed by the

Empanelment Committee. The preparation of panel for

appointment as DGP (HoPF) for the State of Punjab, by the

30 | P a g e Empanelment Committee is in compliance of the Draft

Guidelines, which are in conformity with the directions issued by

this Court in Prakash Singh’s case as the panel was prepared

after taking into account the relevant considerations as directed

by this Court in Prakash Singh's case and stipulated in the

Draft Guidelines. As no irrelevant consideration prompted the

decision, the preparation of the panel by the Empanelment

Committee cannot be said to be irrational. Having regard to

the nature of the function and the power confided to the

Selection Committee, it is not a legal requirement that reasons

should be recorded for its conclusion [See: UPSC v. K. Rajaiah

& Ors.23, Union Public Service Commission v. Arun Kumar Sharma & Ors. 24 and Baidyanath Yadav v. Aditya Narayan

Roy & Ors25]. The Tribunal committed an error in holding the

decision of the Committee as arbitrary in the absence of

reasons. Therefore, the preparation of the panel by the

Empanelment Committee cannot be said to be suffering from

unreasonableness.

27. The Appellant contended that Respondent No. 5 ought to

have recused himself from the Empanelment Committee as he is

23 (2005) 10 SCC 15 24 (2015) 12 SCC 600 25 2020 (16) SCC 799

31 | P a g e inimically disposed of towards him. The Appellant argued that

he was appointed to head a special investigation team by the

High Court of Punjab and Haryana to investigate the

involvement of law enforcement authorities in drug trafficking

and he unearthed material against senior police officers. He

was falsely implicated in a criminal case involving the suicide of

Inderpreet Singh Chadha. It is the case of the Appellant that he

submitted a status report to the High Court on 18.05.2018 in a

sealed cover in which he has mentioned about the involvement

of Respondent No.4 and Respondent No.5 in drug trafficking.

The Appellant referred to the recusal of Respondent No.5 earlier

when he was asked to write his performance appraisal report.

Finally, the Appellant submitted that the preparation of panel is

vitiated due to bias of the Respondent No.5. On the other hand,

it was submitted by the Respondents that the Appellant was

involved in the suicide of Inderpreet Singh Chadha. The special

investigation team headed by the Appellant submitted two

reports on 01.02.2018 and 15.03.2018 before the High Court in

which there is no mention of either Respondent No.4 or

Respondent No. 5. The sealed cover submitted by the Appellant

before the High Court was without consulting the other two

32 | P a g e members of the special investigation team. It was further

submitted that Respondent No. 5, being the DGP of a State,

could not have recused himself from being a member of the

Empanelment Committee. It is also argued that the Appellant

has not raised any objection regarding the participation of

Respondent No.5 in the selection proceedings. Doctrine of

necessity was pressed into service by the Respondents to

submit that Respondent No.5 could not have recused himself

from the Empanelment Committee.

28. It is relevant to note that the plea of bias did not find

favour with the Tribunal or the High Court. Before us, the learned

counsel for the Appellant, relying upon Badrinath (supra), has

submitted that even if one person of the multi-member

committee is biased, the decision of the committee shall be

rendered invalid. Further, this decision holds that doctrine of

necessity applies only in case a committee is constituted by a

statute or a statutory rule. In other words, if the committee is

constituted under an administrative order there can be no

difficulty in an officer recusing himself and requesting another

officer to be substituted in his place. Even if a plea of bias is not

raised earlier, it can be raised during the proceedings in judicial

33 | P a g e review. Further, even if bias is not a direct cause of the decision,

the test is one of mere likelihood of bias, which means a

substantial possibility of bias.26

29. In exercise of its power under Articles 32 and 142 of the

Constitution of India, this Court directed UPSC to constitute an

empanelment committee to recommend three senior-most

officers with good record of service and range of experience, and

meeting other parameters, from whom the DGP shall be

selected and appointed by the State Government. The

incumbent DGP of the State is a member of the empanelment

committee according to the Draft Guidelines issued by the UPSC.

These Guidelines issued in compliance with the directions given

by this Court under Article 142 of the Constitution of India, we

would accept, are well-known and in public domain. Therefore,

the position that Respondent No.5, being the DGP, would be a

member of the Empanelment Committee was within the

knowledge of the Appellant. Ignorance of this factum when

pretended must be rejected as a mere pretence. The two

Appellants are not laymen, but senior police officers aspiring for

the appointment to the top police position in the State. In

26 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Others, (1993) 4 SCC 10

34 | P a g e endorsement of our reasoning, we have on record a news article

published in the Hindustan Times, dated 30 th January 2019, titled

“DGP’s appointment – All eyes on UPSC’s February 4 meet”.

The article states that as per the information gathered from

officials privy to the development, the UPSC meeting will be held

in Delhi and would be attended by the Punjab Chief Secretary

Mr. Karan Avtar Singh and the incumbent DGP Mr. Suresh Arora,

i.e., Respondent No.5. In the given facts and considering the

position and status of the Appellant, we would not accept the

plea that participation of Respondent No.5 in the Empanelment

Committee was unknown or a secret for the Appellants.

30. It is in this context, we have to examine whether the

Appellants are estopped from challenging the recommendations

made by the Empanelment Committee, given the fact that they

had taken a calculated chance, and not protested till the

selection panel was made public. In our opinion, the ratio in

Madan Lal and Others v. State of Jammu and Kashmir and

Others,27 would apply in the present case as when a person

takes a chance and participates, thereafter he cannot, because

the result is unpalatable, turn around to contend that the

process was unfair or the selection committee was not properly 27 (1995) 3 SCC 486

35 | P a g e constituted. This decision, no doubt, pertains to a case where

the petitioner had appeared at an open interview, however, the

ratio would apply to the present case as the Appellant too had

taken a calculated chance in spite of the stakes, that too without

protest, and then has belatedly raised the plea of bias and

prejudice only when he was not recommended. The judgment in

Madanlal (supra) refers to an earlier decision of this Court in

Om Prakash Shukla v. Akhilesh Kumar Shukla and

Others,28 wherein the petitioner who had appeared at an

examination without protest was not granted any relief, as he

had filed the petition when he could not succeed afterwards in

the examination. This principle has been reiterated in Manish

Kumar Shahi v. State of Bihar and Others,29 and Ramesh

Chandra Shah and Others v. Anil Joshi and Others.30

31. More appropriate for our case would be an earlier decision

in Dr. G. Sarana v. University of Lucknow and Others, 31

wherein a similar question had come up for consideration before

a three-judge bench of this Court as the petitioner, after having

appeared before the selection committee and on his failure to

28 (1986) Supp. SCC 285 29 (2010) 12 SCC 576 30 (2013) 11 SCC 309 31 (1976) 3 SCC 585

36 | P a g e get appointed, had challenged the selection result pleading bias

against him by three out of five members of the selection

committee. He also challenged constitution of the committee.

Rejecting the challenge, this Court had held:

“15. We do not, however, consider it necessary in the

present case to go into the question of the

reasonableness of bias or real likelihood of bias as

despite the fact that the appellant knew all the relevant

facts, he did not before appearing for the interview or at

the time of the interview raise even his little finger

against the constitution of the Selection Committee. He

seems to have voluntarily appeared before the

committee and taken a chance of having a favourable

recommendation from it. Having done so, it is not now

open to him to turn round and question the constitution

of the committee. This view gains strength from a

decision of this Court in Manak Lal's case where in

more or less similar circumstances, it was held that the

failure of the appellant to take the identical plea at the

earlier stage of the proceedings created an effective bar

37 | P a g e of waiver against him. The following observations made

therein are worth quoting:

“It seems clear that the appellant wanted to take a

chance to secure a favourable report from the

tribunal which was constituted and when he found

that he was confronted with an unfavourable report,

he adopted the device of raising the present

technical point.””

32. The aforesaid judgment in Dr. G. Sarana (supra) was

referred in Madras Institute of Development Studies and

Another v. K. Sivasubramaniyan and Others,32 in which

selection to the post of Assistant Professor was challenged on

the ground that shortlisting of candidates was contrary to the

Faculty Recruitment Rules. The challenge was declined on the

ground of estoppel as the respondent, without raising any

objection to the alleged variations in the contents of the

advertisement and the Rules, had submitted his application and

participated in the selection process by appearing before the

committee of experts.

32 (2016) 1 SCC 454

38 | P a g e

33. Equally appropriate would be a reference to the decision of

this Court in P.D. Dinakaran (1) v. Judges Inquiry

Committee and Others,33 in which the allegation was that one

of the members of the committee constituted by the Chairman

of the Council of States (Rajya Sabha) under Section 3(2) of the

Judges (Inquiry) Act, 1968 was biased. This judgment

extensively recites and assimilates from both domestic and

foreign judgments on the question of bias and prejudice and

quotes the following observations in Dr. G. Sarana’s (supra)

case:

“11… the real question is not whether a member of an

administrative board while exercising quasi-judicial

powers or discharging quasi-judicial functions was

biased, for it is difficult to probe the mind of a person.

What has to be seen is whether there is a reasonable

ground for believing that he was likely to have been

biased. In deciding the question of bias, human

probabilities and ordinary course of human conduct

have to be taken into consideration.”

33 (2011) 8 SCC 380

39 | P a g e

34. Thereafter, reference is made to Ashok Kumar Yadav

and Others v. State of Haryana and Others ,34 which refers

to the Constitutional Bench judgment in A.K. Kraipak and

Others v. Union of India and Others.35 Ashok Kumar Yadav

(supra) was a case of selection by UPSC and following extract

from this judgment is of some significance:

“18. We must straightaway point out that A.K. Kraipak

case is a landmark in the development of

administrative law and it has contributed in a large

measure to the strengthening of the rule of law in this

country. We would not like to whittle down in the

slightest measure the vital principle laid down in this

decision which has nourished the roots of the rule of

law and injected justice and fair play into legality.

There can be no doubt that if a Selection Committee is

constituted for the purpose of selecting candidates on

merits and one of the members of the Selection

Committee is closely related to a candidate appearing

for the selection, it would not be enough for such

member merely to withdraw from participation in the

34 (1985) 4 SCC 417 35 (1969) 2 SCC 262

40 | P a g e interview of the candidate related to him but he must

withdraw altogether from the entire selection process

and ask the authorities to nominate another person in

his place on the Selection Committee, because

otherwise all the selections made would be vitiated on

account of reasonable likelihood of bias affecting the

process of selection. But the situation here is a little

different because the selection of candidates to the

Haryana Civil Service (Executive) and Allied Services is

being made not by any Selection Committee

constituted for that purpose but it is being done by the

Haryana Public Service Commission which is a

Commission set up under Article 316 of the

Constitution. It is a Commission which consists of a

Chairman and a specified number of members and is a

constitutional authority. We do not think that the

principle which requires that a member of a Selection

Committee whose close relative is appearing for

selection should decline to become a member of the

Selection Committee or withdraw from it leaving it to

the appointing authority to nominate another person in

41 | P a g e his place, need be applied in case of a constitutional

authority like the Public Service Commission, whether

Central or State. If a member of a Public Service

Commission were to withdraw altogether from the

selection process on the ground that a close relative of

his is appearing for selection, no other person save a

member can be substituted in his place. And it may

sometimes happen that no other member is available

to take the place of such member and the functioning

of the Public Service Commission may be affected.

When two or more members of a Public Service

Commission are holding a viva voce examination, they

are functioning not as individuals but as the Public

Service Commission. Of course, we must make it clear

that when a close relative of a member of a Public

Service Commission is appearing for interview, such

member must withdraw from participation in the

interview of that candidate and must not take part in

any discussion in regard to the merits of that candidate

and even the marks or credits given to that candidate

should not be disclosed to him.”

42 | P a g e

35. ‘Real likelihood test’ applied in Ranjit Thakur v. Union of

India and Others,36 is elucidated in the following words:

“15...The test of real likelihood of bias is whether a

reasonable person, in possession of relevant

information, would have thought that bias was likely

and whether Respondent 4 was likely to be disposed to

decide the matter only in a particular way.

16. It is the essence of a judgment that it is made after

due observance of the judicial process; that the court

or tribunal passing it observes, at least the minimal

requirements of natural justice; is composed of

impartial persons acting fairly and without bias and in

good faith. A judgment which is the result of bias or

want of impartiality is a nullity and the trial ‘coram non

judice’.

17. As to the tests of the likelihood of bias what is

relevant is the reasonableness of the apprehension in

that regard in the mind of the party. The proper

approach for the Judge is not to look at his own mind

36 (1987) 4 SCC 611

43 | P a g e and ask himself, however, honestly, ‘Am I biased?’; but

to look at the mind of the party before him.”

36. In P.D. Dinakaran (1) (supra), this Court held that the

member in question had during a seminar spoken against the

proposed elevation of the petitioner as a Judge of the Supreme

Court and, therefore, the apprehension of likelihood of bias is

reasonable and not fanciful, though in fact, the member may not

be biased. Nevertheless, the writ petition was dismissed on the

ground that the petitioner was not a lay person and being well-

versed in law should have objected to the constitution of

committee when notified in the Official Gazette, which factum

was highly publicised in almost all newspapers. Notwithstanding

the awareness and knowledge, the petitioner did not object,

which indicates that he was satisfied that the member had

nothing against him. Therefore, belated plea taken by the

petitioner did not merit acceptance and mitigates against bona

fides of the objection to the appointment of the person as a

member of the committee. In its support, reference was made to

several decisions of this Court, including Shri Lachoo Mal v.

Shri Radhey Shyam,37 which acknowledges the general

37 (1971) 1 SCC 619

44 | P a g e principle that everyone has a right to waive and agree to waive

the advantage of a law or rule made solely for his benefit and

protection of the individual in his private capacity which may be

dispensed with without infringing any public right or public

policy. In Manak Lal (Shri), Advocate v. Prem Chand

Singhvi and Others,38 this Court had declined to nullify an

action made on the recommendation of the Tribunal though the

chairman of the Tribunal had appeared before the appellant in

the case. The reason was that the appellant had never raised a

point before the Tribunal, which with the other factors reflected

waiver. In conclusion, the Court in P.D. Dinakaran (1) (supra)

held:

“86. In conclusion, we hold that the belated raising of

objection against the inclusion of Respondent 3 in the

Committee under Section 3(2) appears to be a

calculated move on the petitioner's part. He is an

intelligent person and knows that in terms of Rule 9(2)

(c) of the Judges (Inquiry) Rules, 1969, the Presiding

Officer of the Committee is required to forward the

report to the Chairman within a period of three months

from the date the charges framed under Section 3(3) 38 AIR 1957 SC 425

45 | P a g e of the Act were served upon him. Therefore, he wants

to adopt every possible tactic to delay the submission

of report which may in all probability compel the

Committee to make a request to the Chairman to

extend the time in terms of the proviso to Rule 9(2)(c).

This Court or, for that reason, no court can render

assistance to the petitioner in a petition filed with the

sole object of delaying finalisation of the inquiry.”

Nevertheless, the Court in P.D. Dinakaran (1) (supra) had

requested the Chairman to nominate another distinguished jurist

in place of the person in question, duly noticing that the

proceedings initiated had progressed only to the stage of

framing of charges and nomination of another jurist would not

hamper the proceedings. The reconstituted committee would be

entitled to proceed on the charges already framed.

37. In view of the above ratio, which is applicable, it is not

necessary for this Court to delve further into the allegations and

submissions based on assertion of bias and prejudice.

38. For the aforementioned reasons, we do not find any error

committed by the High Court in setting aside the judgment of

46 | P a g e the Tribunal and upholding the selection and appointment of

Respondent No.4 as DGP (HoPF), State of Punjab.

39. The appeals are dismissed.

……...............................................J. [ L. NAGESWARA RAO ]

……...............................................J. [ SANJIV KHANNA ]

……...............................................J. [ B.R. GAVAI ]

New Delhi, November 16, 2021.

47 | P a g e