R. D. Kewalramani v. State of Uttar Pradesh — 1982 DIGILAW 1164 (ALL)

ORDER 1. Pursuant to the order dated October 8, 1982, we hereby record the reasons. 2. R.D. Kewalramani, the petitioner, was appointed to the Indian Police Service in January 1950. He was allotted to U.P. Cadre. After having worked in various capacities, the petitioner was transferred on April 21, 1982, to the post of Inspector General of Police (Training). He was confirmed as Inspector General of Police with effect from January 1, 1982. 3. On July 24, 1982, the State of U. P. appointed S. C. Dixit, Respondent 5, as the Director General cum Inspector General of Police, Uttar Pradesh, which was subsequently duly notified in the Gazette. Feeling that the State of U. P. committed injustice to the petitioner by not appointing him on the said post, the petitioner filed the present writ. He alleged that the appointment on the post of Director General cum Inspector General of Police being on merit with due regard to seniority under Rule 3 (2A) of the Indian Police Service (Pay) Rules, 1954, the petitioner being senior to Respondent 5 and more meritorious than him, he was entitled to be promoted to the said post. In that regard, the petitioner pleaded that Respondent 5 S. C. Dixit had been confirmed as Additional Inspector General of Police and was only officiating as Inspector General of Police and, therefore, Respondent 5 could not be considered for promotion. In the field of eligibility, the petitioner claimed that he was the person entitled to be considered. 4. A counter-affidavit has been filed on behalf of the State of U.P. denying that the petitioner was entitled to be appointed as Director General cum Inspector General of Police. It was claimed that the said post had been recently created and that consideration of merit for selection on the said post was the only criterion on which the appointment had to be made. In that regard, the allegation further made was that the petitioner had been appointed as Director of Prosecutions, which post ranked equal in emoluments and in other respects as the Director General cum Inspector General of Police, hence the grievance of the petitioner was unjustified. In that regard, the allegation further made was that the petitioner had been appointed as Director of Prosecutions, which post ranked equal in emoluments and in other respects as the Director General cum Inspector General of Police, hence the grievance of the petitioner was unjustified. The plea taken further was that the petitioner had earned adverse entries in several years, including the years 1980-81 and 1981-82, and, on the basis of those entries, the petitioner was not found fit enough to be appointed Director General cum Inspector General of Police, which was a post needing the qualities of a leader which the petitioner lacked. The character roll of the petitioner reflected that the petitioner lacked leadership. 5. The petitioner also filed a supplementary affidavit stating that the post on which he had been appointed since was an ex cadre post and was below in rank than that of the Inspector General of Police, his appointment as Director of Prosecutions without upgrading the same and without his consent was illegal. 6. Having heard counsel for the parties, we find no merit in this petition. The first thing to be examined in this regard is whether the petitioner could have any lawful cause oi action for maintaining this petition. For the said purposes, what was required to be seen was whether the petitioner had been demoted or reduced in rank or, in any way, had adversely been affected in remuneration etc. by appointing Respondent 5 as Director General cum Inspector General of Police while appointing the petitioner as director of Prosecutions. 7. It is admitted that the petitioner will draw the same salary and emoluments which the post held by Respondent 5 carried. His grievance, however, was that the post of Director General cum Inspector General of Police being one of greater responsibility, the petitioner should have been selected for the same and not respondent 5. For the said purpose, the counter-affidavit filed on behalf of the State of U.P. has referred to the adverse entries earned by the petitioner, and it has been argued by Sri S.S. Bhatnagar counsel appearing for the State of U.P. that the petitioner's adverse entries were considered, and that the petitioner had not been discarded on that basis. For the said purpose, the counter-affidavit filed on behalf of the State of U.P. has referred to the adverse entries earned by the petitioner, and it has been argued by Sri S.S. Bhatnagar counsel appearing for the State of U.P. that the petitioner's adverse entries were considered, and that the petitioner had not been discarded on that basis. The State of U. P. while making the posting order thought in public interest to appoint the petitioner as Director of Prosecutions and Respondent 5 as Director General cum Inspector General of Police. He submitted that since the petitioner has not been discarded on the basis of the adverse entries and not denied the equivalent post, the petitioner can have no cause of action. 8. Before us the learned counsel for the State of U.P. had also placed the entire record. We have seen these records and the affidavits. We are not prepared to accept that merely because the petitioner was not appointed as Director General cum Inspector General of Police, the petitioner had any cause of action to maintain this petition. The Director General Cum Inspector General of Police is expected to control the law and order situation throughout the State. It is a post of great responsibility and no state Government can afford to have an officer on the said post who does not possess the requisite qualifications needed for manning it. For being appointed as Director General cum Inspector General of Police, one of the main qualities that was considered necessary' by the Stale Government was that the officer to be appointed on the said post should have talents or qualities of leadership. The quality of leadership plays a directing role and wields commanding influence. The State Government considered the comparative cases of the petitioner and Respondent 5 and found on consideration of their work and conduct that Respondent 5 would be the most suited for the post of Director General cum Inspector General of Police. 9. Sri B.D. Mandhyan, counsel appearing for the petitioner, contended that for checking administrative authoritarianism it was necessary for this Court to consider the two cases on merits and to find out itself whether the decision -of the State Government to appoint Respondent 5 and ignoring the petitioner of his rightful claim was justified in law. We are unable to accept this submission. We are unable to accept this submission. The Constitution and the law applicable in this country does not permit the Court to assume such a function. The courts are not expected to become super administrators and to assume on themselves the function of administering the State. The courts cannot take such a disastrous step of demoralising the whole administration and plunging the State into administrative chaos and confusion from which it would be difficult to emerge. The court can only see whether the power has been exercised on relevant considerations and if it is so then the Court has no power to interfere. Arbitrariness, irrationality, perversity and mala fides could, of course, render any order unconstitutional. In the instant case, we do not find any one of these grounds established. 10. Emphasis laid next by the learned counsel for the petitioner vehemently was that the adverse entries awarded to the petitioner could not be taken into account while considering his name for appointment as Director General cum Inspector General of Police, without communicating the same to him. It may be true that some of the entries were awarded recently, but for two reasons this will have no effect on the decision of the present case. The first is that the petitioner has been given an equivalent post, hence the consideration of the entries did not, in any way, injure his rights. The second was that exigencies of the situation required the State Government to make the appointment of Director General cum Inspector General of Police immediately and for that purpose the State Government could not be asked to wait till the petitioner was given a chance to make a representation, and the same had been disposed of. Had it been a case of discrimination, the consequence could be different. In the present case, no discrimination could be established. 11. In Prakash Chandra Sharma v. Oil and Natural Gas Commission, 1970 Serv LR 116, the Supreme Court was faced with a similar controversy. It observed : "If the adverse remarks were there in the confidential reports, it was the duty of (he departmental promotion committee to lake note of them and come to a decision on a consideration of them. The committee could not be expected to make an investigation about the confidential reports. It observed : "If the adverse remarks were there in the confidential reports, it was the duty of (he departmental promotion committee to lake note of them and come to a decision on a consideration of them. The committee could not be expected to make an investigation about the confidential reports. It appears to us that in this case there was no discrimination, purposeful or otherwise, and at the best, the committee's taking into consideration the confidential reports with respect to which the petitioner had been given no chance to make a representation was merely fortuitous. In such a state of affairs, we are not satisfied that any interference is called for " 12. Similar appears to be the position in the instant case. Moreover, the present was not a case where the petitioner has not been considered for promotion on account of the adverse entries awarded to him. He was considered, but the State Government thought that Respondent 5 was more suited for being appointed as Director General cum Inspector General of Police. 13. Counsel next urged that as the post of Director of Prosecutions was an ex cadre post, the petitioner could not be sent to that post without his consent. In that regard, it was also pointed out that the said post was not equivalent to the post of Director General cum Inspector General of Police, hence the petitioner's appointment as Director of Prosecutions amounted to his demotion or reduction. We do not agree with this submission. The second proviso to Clause 4 of the Indian Police Service (Cadre) Rules, 1958, empower the State Government to create an ex cadre post temporarily. The second proviso to clause 4 reads as under : "Provided further that the State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years to a State of Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.'' 14. In the counter-affidavit, the allegation made further is that in 1965 the State Government had been empowered by the Central Government to create an ex cadre post. Counsel urged that this ex cadre post had been created to defeat the petitioner's writ petition and his right of being appointed as Director General cum Inspector General of Police. In the counter-affidavit, the allegation made further is that in 1965 the State Government had been empowered by the Central Government to create an ex cadre post. Counsel urged that this ex cadre post had been created to defeat the petitioner's writ petition and his right of being appointed as Director General cum Inspector General of Police. We find nothing in this petition which justified the accepting of this argument. This was done to benefit the petitioner. He cannot have any genuine grievance against the same. 15. Counsel for the petitioner at one point of time submitted that although the emoluments were equivalent to the post held by Respondent 5, but the post of Director of Prosecutions did not carry with it the same impression and prestige as is carried by the post of Director General cum Inspector General of Police. We cannot quash the impugned order of appointment of Respondent 5 on this ground. As the post could be created by the State Government, consent of the petitioner for appointment was not required. 16. In Mir Ghulam v. Union of India, AIR 1973, SC 1138 : 1973 Lab IC 795, the creation of an ex cadre post was challenged on the ground of mala fides. The Supreme Court repelled the argument holding that mala fides could not be imputed when under Rule 4 the Government revised the cadre itself partly by converting some temporary posts included in the temporary cadre strength to the permanent cadre strength and partly by adding some ex cadre posts to the permanent strength of Kashmir Administrative Service. It was done in the exigencies of service. 17. In the instant case also the creation of ex cadre post was done in the exigencies of service. What is exigencies of service is incapable of a precise definition, and the courts cannot attempt to give the saint. Without finding mala fides, the creation of such a post cannot be said to be beyond the power conferred by the Rule on the State Government concerned. 18. Learned counsel for the petitioner urged that since the post of Director of Prosecutions was previously held by the Deputy Inspector General of Police, the petitioner would be deemed to have been demoted by the appointment on the said post. What was done in the past is not relevant for deciding whether the petitioner had been demoted or not. 18. Learned counsel for the petitioner urged that since the post of Director of Prosecutions was previously held by the Deputy Inspector General of Police, the petitioner would be deemed to have been demoted by the appointment on the said post. What was done in the past is not relevant for deciding whether the petitioner had been demoted or not. It is a fact that this post now carries the same emoluments as the one which the petitioner is fighting for. Hence, by no stretch of imagination the petitioner could be said to have been demoted. We have further been referred to the Government notifications which have upgraded this post. 19. We wish to note at the end that it was the discretion of the State Government to have appointed the petitioner as Director General cum inspector General of Police or Respondent No. 5. The petitioner did not have any right to be appointed on the same. The State Government could appoint the petitioner or anyone else on the said post. The discretion conferred for making such an appointment was needed to be exercised in the interest of the administration. The petitioner could not insist for being appointed as Director General cum Inspector General of Police. As we are not satisfied on merits that any extraneous consideration weighed with the State Government in making the appointment, we cannot find any substance in the submission made on behalf of the petitioner that the appointment of Respondent 5 was on account of unjustified bureaucratic interference. We find that the petitioner had made some vague allegations of mala fides. Thinking that those allegations could not be made out, the learned counsel rightly did not press the same. 20. In the result, the writ petition fails and is dismissed under Chapter XXII Rule 2 of the Rules of the Court.