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2004 DIGILAW 2077 (ALL)

Bhanwar Singh v. State of U. P.

2004-10-14

K.N.OJHA, MARKANDEY KATJU, SUNIL AMBWANI

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JUDGMENT M. Katju, A.C.J., Sunil Ambwani and K. N. Ojha, JJ.—Heard learned counsel for the parties. 2. This Full Bench has been constituted in pursuance of reference order of the Division Bench dated 21.4.1998 in Writ Petition No. 12718 of 1998, Sheshmani and others v. State of U. P. and others, in which the Division Bench was of the view that the decision of the Division Bench in Sushil Chandra Srivastava v. State of U. P. and others, 1995 (3) AWC 1952 : (1995) 3 UPLBEC 1862 , should be reconsidered. 3. In Writ Petition No. 12718 of 1998 the petitioner has challenged the validity of the orders dated 19.3.1998, Annexures-6 to 10 to the writ petition. 4. The facts of the case are that the petitioners were promoted from the post of Inspector of Dy. Supdt. of Police in U. P. without consulting the U. P. Public Service Commission. However, subsequently in view of the aforesaid Division Bench decision in Sushil Chandra Srivastava’s case (supra) the impugned reversion orders were passed which have been challenged in this writ petition. 5. In our opinion, the Division Bench decision in Sushil Chandra Srivastava’s case (supra) has been incorrectly decided and deserves to be overruled. 6. The aforesaid Division Bench has noted that Article 320(3) of the Constitution has been held to be directory by the Supreme Court in State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 , which has been followed in Major U. R. Bhatt v. Union of India, AIR 1962 SC 1344 . 7. However, after noting the aforesaid decisions the Division Bench has in para 15 held that it is not only desirable but necessary that the selection of Government servants for appointment in State service should be through an independent and autonomous body like the Commission. 8. In the present case, it is admitted that the selection in question from the post of Inspector to Dy. Supdt. of Police was done by a High Power Committee consisting of very senior officers appointed by the State Government. In our opinion therefore it cannot be said that the procedure for making such selection was arbitrary or illegal. 9. 8. In the present case, it is admitted that the selection in question from the post of Inspector to Dy. Supdt. of Police was done by a High Power Committee consisting of very senior officers appointed by the State Government. In our opinion therefore it cannot be said that the procedure for making such selection was arbitrary or illegal. 9. It may also be mentioned that the proviso of Article 320 (3) of the Constitution permits the Governor to make regulations specifying the matters in which either generally or in any particular class of case or in any particular circumstances it should not be necessary for the Public Service Commission to be consulted. Hence the impugned regulations have been made under the aforesaid proviso and cannot be held to be ultra vires. 10. We may further clarify that the Court should exercise judicial restraint in such matters and over activism is not proper. The judiciary must realise that it should not encroach into the field of the Legislature or the executive otherwise there will be a reaction. 11. For the reasons given above, we overrule the decision of Sushil Chandra Srivastava’s case (supra) and quash the impugned orders. The writ petition is allowed with all the consequential benefits.