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Rajasthan High Court · body

2005 DIGILAW 2357 (RAJ)

State of Rajasthan v. The CAT

2005-09-05

SHASHI KANT SHARMA, Y.R.MEENA

body2005
Judgment Y.R. Meena, ACJ.-Since, in both these petitions, impugned order of the Central Administrative Tribunal, Jaipur dated 4th March, 2005 has been challenged, we heard both the petitions and dispose of them by this common order. 2. Both the Original Application Nos. 468/2004 and 528/2004 have been preferred by respondent No. 2 Shri Virendra Bahadur Singh. Shri Virendra Bahadur Singh, in Original Application No. 468/2004, has challenged the posting of Shri S.N. Jairath as Director General and Inspector General of Police (hereinafter referred as DG and IGP) and in second Original Application No. 528/2004, has challenged the posting of Shri A.S. Gill as DG and IGP. 3. The case of the applicant respondent No. 2 before the Central Administrative Tribunal (hereinafter, referred as CAT) was that the applicant respondent No. 2 Shri Virendra Bahadur Singh was senior to Shri S.N. Jairath and Shri A.S. Gill and they have wrongly been promoted to the post of DG and IGP though they were junior to him and the procedure for promotion to the post of DG and IGP has not been followed as laid down by the Honble Apex Court in the case of State of West Bengal & Ors. vs. Manas Kumar Chakrabarty & Ors., 2003 (1) All India Services Law Journal page 245. 4. In reply before the CAT, the case of respondent was that the post of DG and IGP is not a promotional post from amongst the persons holding the post of DG in police department. If it is promotional post, then respondent No. 2 should approach to the Central Government in appeal if he has any grievance under the All India Services (Discipline and Appeal) Rules, 1969 which provides for preferring an appeal to the Central Government, if the promotion has been given to Shri Gill or Shri Jairath contrary to the rules. If it is not a case of promotion from the post of DG to the post of DG and IGP and all the posts of DG are equal including DG and IGP, it is upto Government to select, in whom they have confidence to hold post of DG and IGP. The Tribunal has rejected the original application in case of Shri Jairath holding that Shri Jairath has retired, therefore, the application filed challenging the posting of Shri Jairath has become infructuous. 5. The Tribunal has rejected the original application in case of Shri Jairath holding that Shri Jairath has retired, therefore, the application filed challenging the posting of Shri Jairath has become infructuous. 5. Now the controversy remains regarding posting of Shri A.S. Gill as DG and IGP. 6. The Tribunal while quoting the minutes appointing Shri A.S. Gill as DG and IGP found that in selecting Shri A.S. Gill for appointing him as DG and IGP, the guidelines laid down by their Lordships of the Honble Apex Court in case of Manas Kumar (Supra), has not been followed. The Tribunal specifically pointed out two factors from the minutes reproduced in its order that the senior persons who are already holding the post of DG were not considered alongwith Shri A.S. Gill and in the note of Chief Secretary, the Chief Secretary has shown Shri A.S. Gill as senior most officer for promotion to the post of DG and IGP which is factually incorrect, therefore, the Tribunal directed the respondents to reconsider all the four DGs for appointment to the post of DG and IGP in the light of guidelines laid down by the Honble Apex Court in the case of Manas Kumar (Supra). The State as well as Shri Gill both have filed petitions against the impugned order of Tribunal. 7. On 15.03.2005, this Court directed the respondents to carry out the directions of the CAT given in the impugned order. Those directions are carried out and again the respondents found Shri A.S. Gill a most suitable person to be appointed as DG and IGP. 8. Mr. B.P. Agrawal, learned Advocate General for the State submits that when the directions of the Tribunal in the impugned order has been carried out, now these petitions have become infructuous and if some mistake has been committed or the directions properly not carried out, that gives rise to a fresh cause of action. The respondent No. 2 can file fresh original application before the Tribunal or can take appropriate steps in accordance with law. 9. On the other hand, Mr. The respondent No. 2 can file fresh original application before the Tribunal or can take appropriate steps in accordance with law. 9. On the other hand, Mr. R.N. Mathur, learned Counsel for respondent No. 2 submits that the post of DG and IGP may not be a promotional post but it is very sensitive post which control the entire police cadre in the State, therefore, seniority should not be ignored and even when the appointment on the post of DG and IGP has been reconsidered by the Screening Committee, that has not been properly adhered with the guidelines laid down by the Honble Apex Court in the case of Manas Kumar (Supra). He further submits that Shri Gill was junior most and as per strength in the police, two posts of DGs are in the cadre and next two posts are ex-cadre and promotion to the post of DG and IGP is to be filled, that should be filled from the cadre post. That has not been done, therefore, directions of the Tribunal has not been properly carried out. 10. Before we consider whether the posting of Shri Gill as DG and IGP is justified, we have to examine whether the posting from the post of DG to DG and IGP is a promotional post and what should be the criteria. In case of Manas Kumar (Supra), in Para 15, their Lordships have considered the issue. The relevant observations of their Lordships reads as under:- “Even if the contention is accepted, the fact remains that second respondent was promoted by the composite order dated 23rd May, 2001 to the substantive rank of DGP and simultaneously posted as DG and IGP. We see no illegality in this. Secondly, there is no dispute that the post of DG and IGP is a selection post like the other DGPs. The post of DG and IGP being a post of very sensitive nature, can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence. We are, therefore, unable to accept the contention of the respondent that deployment of an incumbent in such a post can go only by seniority. Merit in the nature of past record, the credibility and confidence which one is able to command with-the Government of the State must play a predominant role in selection of an incumbent to such a post. Merit in the nature of past record, the credibility and confidence which one is able to command with-the Government of the State must play a predominant role in selection of an incumbent to such a post. In the opinion of the Appointing Authority, the second respondent was the most suitable one. It is not open to the Courts to sit in appeal over the view taken by the Appointing Authority in such a case or substitute its own view for that of the duly constituted Authority. the Administrative Tribunal, as a matter of comparison of merit, was inclined to hold that the second respondent was by far the better and more meritorious candidate. The High Court has skirted this question and declined to decide this issue. Since, we are of the view that there was no legal ineligibility in second respondent to hold the post of DG and IGP, we must necessarily accept the comparative assessment of merit by the first appellant - State of West Bengal and give credence to its own choice, of a suitable incumbent for being posted, as such.” 11. Their Lordships observed that the post of DG and DG and IGP in West Bengal cadre are of the same rank as that of DG in police. Thus, this is not a case of promotion and their Lordships further observed that post of DG and IGP, being a post of very sensitive nature, can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence. In Para 21, their Lordships further observed that there should be a credible mechanism while selecting the incumbent for posting of DG and IGP from among DGs in police. In Para 21, their Lordships further observed as under:- “While there is no doubt that selection to the post of DG and IGP or similar sensitive post must be done through a “credible mechanism”, we are unable to accept the contention of the respondent that the process of selection by which the second respondent was selected was not credible in any manner. The process of selection based on suitability was set in motion by the Home Secretary, and further seems to have been effectively considered by Chief Secretary and the Chief Minister (who was also the Home Minister) and all three authorities had opined that the second respondent was more suited for the post of DG and IGP. Nothing has been shown to us that there was any bias or deficiency in the process by which the second respondent was selected for the post of DG and IGP. The only grievance which appears to have been ventilated by the first respondent throughout it that the second respondent was ineligible to be posted as DG and IGP. This grievance, in our view, has no substance.” 12. There is no dispute on the fact that from the post of DG if anybody is posted as DG and IGP, that is not a promotional post. All four DGs posts in the State carry the same pay scale and same status. Shri Jairath who was promoted from the post of Additional Director General to Director General, on retirement of Shri V.K. Hansukha and Shri B.S. Rathore, was appointed on the post of DG and IGP of the State on the same day, but he retired on 30th November, 2004. Thus, the petition filed against him by respondent No. 2 had become infructuous, therefore, there is no comments, as now respondent No. 2 cannot be promoted on that post for that period. 13. Now we left with the case of Shri A.S. Gill. Shri A.S. Gill was found suitable by the Screening Committee from among the officers of 1971 and 1972 batches to the post of DG and IGP. Six persons were found suitable from the post of Additional Director General to Director General. Shri G.S. Rajgopal, after retirement of Shri Jairath, was on the top of the list among the officers found suitable for the promotion to the post of DG in police, while Shri Gill was next to him. 14. The proceedings were initiated for posting on the post of DG and IGP on retirement of Shri Jairath. Shri G.S. Rajgopal, after retirement of Shri Jairath, was on the top of the list among the officers found suitable for the promotion to the post of DG in police, while Shri Gill was next to him. 14. The proceedings were initiated for posting on the post of DG and IGP on retirement of Shri Jairath. Though that minutes for promoting Shri A.S. Gill on the post of DG and IGP are referred in the impugned order of the Tribunal but for ready reference, reads as under:- “Shri S.N. Jairath, IPS, Director General of Police, Rajasthan, Jaipur is going to retire from service on 30.11.2004. The Cadre position of DGP Grade is given below:- S. No Name of Cadre Post Name of Officer and Batch 1. DGP Shri S.N. Jairath (RR/69) 2.DG and Commandant General, Home Guards and Civil Defence Shri S.S. Darbari (RR/67) S. No. Name of Ex-Cadre Post Name of Officer and Batch 1. DG, SCRB Shri V.B. Singh (RR/68) 2. DG. Prison Shri Arun Dugar (RR/69) The officers of 71 and 72 batch has already been screened for promotion to DGP Grade and they are found suitable for promotion. Details of officers are given below:- S. No. Name of Officer Present posting 1. Shri G.S. Rajgopal On central deputation 1971 batch 2.Shri A.S. Gill ADGP, Crime, Jaipur 1972 batch 3.Shri P.K. Tiwari ADGP, Armed Battalion, " " Jaipur 4.Shri M.L. Sharma On central deputation " " 5.Shri P.N. Rachhoya ADG, RPA, Jaipur " " SD/- (C.S) 211.2004 File is submitted for taking a view regarding posting of DGP which will be fallen vacant on 012.2004 i.e., after retirement of Shri S.N. Jairath on 30.11.2004. Sd/-(B.L. Gupta) AS, DOP (A-1) DS (A-1) (on leave) Secretary, DOP Chief Secretary Honble Chief Minister 3. I have spoken to Shri G.S. Rajgopal today. He is not inclined to return even though he is only an ADG in GOI. 4. ShriA.S. Gill, the most senior most officer may, therefore, be promoted to the grade of DG against the vacancy, which would arise on Shri Jairaths retirement and posted as DGP. For approval. Sd/- (C.S) 211.2004 CM Sd/-211.2004” 15. It is not the case of respondent No. 2 that Shri A.S. Gill has wrongly been promoted to the post of DG from Additional DG. For approval. Sd/- (C.S) 211.2004 CM Sd/-211.2004” 15. It is not the case of respondent No. 2 that Shri A.S. Gill has wrongly been promoted to the post of DG from Additional DG. The grievance of respondent No. 2 is that when Shri Gill is the junior most, even after promotion to the post of DG in police, he has wrongly been appointed on the post of DG and IGP, in place of Shri Jairath. 16. Both the learned Counsel have placed reliance on the decision of Manas Kumar (Supra). As per decision of Manas Kumar of the Honble Apex Court, their Lordships have settled the law that posting of DG and IGP from the DGs is not a promotional post. 17. Now the limited controversy for our consideration is whether Shri Gill who has been promoted to the post of DG in police w.e.f. 012.2004 from the post of Additional Director General in police department, should he be posted as DG and IGP on the same day in department of police. 18. The Tribunal found some fault in the selection process and directed the State Government to reconsider the case of Shri Gill for posting on the post of DG and IGP alongwith other three DGs. This Court, on 15.03.2005, also directed to carry out the directions of the Tribunal. Those directions are carried out and placed on record, for ready reference, reads as under:- “4. In the light of the aforementioned directions given by the Honble Central Administrative Tribunal and the Honble Rajasthan High Court, as well as the advice tendered in the matter by the learned Advocate General, the matter of appointment of Shri A.S. Gill to the post of DG and IGP is to be reconsidered, with particular reference to the observations of the Honble Apex Court in the Manas Kumar case. The following observations of the Honble Apex Court in that case are of particular relevance:- The post of DG and IGP being a post of very sensitive nature, can only be filled by an incumbent in whom the State Government must necessarily have the highest confidence. We are, therefore, unable to accept the contention........ that deployment of an incumbent, in such a post can go only by seniority. We are, therefore, unable to accept the contention........ that deployment of an incumbent, in such a post can go only by seniority. Merit in the nature of past record, the credibility and confidence which one is able to command with the Government of the State must play a dominant role in selection of an incumbent to such a post. 5. The following observations of the learned CAT are also relevant for this purpose:- Thus, we are of the view that the post of DG and IGP is not a promotional post and the Government is competent to post any officer on the aforesaid post of DG and IGP in whom it has full confidence. 6. Since, the Honble Rajasthan High Court has clarified that the promotion granted to Shri A.S. Gill has not been set aside by the Honble CAT, the following officers are eligible for consideration for appointment on the post of DG and IGP, Rajasthan, consequent upon the retirement of Shri S.N. Jairath on 30.11.2004:- 1. Shri S.S. Darbari, Director General and Commandant General, Home Guard and Civil Defence, Jaipur (RR/67). 2. Shri V.B. Singh, Director General, S.C.R.B., Jaipur (RR/68). 3. Shri Arun Dugar, Director General, Prisons, Rajasthan, Jaipur (RR/69). 4. Shri A.S. Gill, presently posted as Director General and IGP (RR/72). 7. A view needs to be taken for posting of one of the above officers as Director General and Inspector General of Police, Rajasthan. For orders. Sd/- 12.04.2005 (Mukesh Sharma) Secretary, DOP CS (u/c) CM (u/c) 8. Paras 1-6/N may kindly be perused. 9. Upon examination of the past record of all the four officers listed above, and from the angle of credibility and level of confidence to be reposed in them by the State Government, I am of the view that Shri A.S. Gill would be the most suitable officer for appointment on the post of DG and IGP, Rajasthan. 10. It is, therefore, proposed that Shri A.S. Gill may be posted as DGP and IGP, Rajasthan. 11. For kind approval. Sd/- 12.04.2005 (Anil Vaish) Chief Secretary CM(u/c) I agree Shri A.S. Gill is the most suitable among the eligible officers for posting as DG and IGP of Rajasthan. Sd/- CM 12.04.2005” 19. 10. It is, therefore, proposed that Shri A.S. Gill may be posted as DGP and IGP, Rajasthan. 11. For kind approval. Sd/- 12.04.2005 (Anil Vaish) Chief Secretary CM(u/c) I agree Shri A.S. Gill is the most suitable among the eligible officers for posting as DG and IGP of Rajasthan. Sd/- CM 12.04.2005” 19. As referred above the directions of the Tribunal have been carried out in the light of the decision of their Lordships in the case of Manas Kumar (Supra) and still the State Government had shown the highest confidence in Shri Gill by re-appointing him on the post of DG and IGP. 20. Once the directions of the Tribunal has been carried out by reconsidering the posting of DG and IGP, both the appeals virtually become infructuous. However, Mr. Mathur argued that while reconsidering the posting on the post of DG and IGP, the guidelines given by their Lordships in the case of Manas Kumar (Supra), are not properly adhered. 21. From the perusal of the nothings referred above regarding appointment of Shri A.S. Gill as DG and IGP, one can see that in the beginning the steps for reconsidering the posting on the post of DG and IGP, the names of all four DGs i.e., Shri S.S. Darbari, Shri V.B. Singh, Shri Arun Dugar and Shri A.S. Gill are considered. In the nothings, the Secretary, DOP has also quoted the observations of their Lordships in the case of Manas Kumar (Supra), and thereafter he sent the file to the Chief Secretary. The Chief Secretary, in Para 9, noted down that he has examined the past record of all the four officers and from the angle of credibility and level of confidence to be reposed in them by the State Government, Shri A.S. Gill would be the most suitable officer for appointment on the post of DG and IGP, Rajasthan. The views expressed by the Chief Secretary have been confirmed by Honble the Chief Minister. Honble Chief Minister agreed with the views expressed by the Chief Secretary that Shri A.S. Gill is the most suitable among the eligible officers for posting as DG and IGP of Rajasthan. The views expressed by the Chief Secretary have been confirmed by Honble the Chief Minister. Honble Chief Minister agreed with the views expressed by the Chief Secretary that Shri A.S. Gill is the most suitable among the eligible officers for posting as DG and IGP of Rajasthan. When even in the second round, the Chief Secretary, as well as Honble the Chief Minister, both had expressed their views that they have highest confidence on Shri A.S. Gill and he is most suitable person to be appointed as DG and IGP of Rajasthan, in our considered opinion, the directions of the Tribunal have been complied with. 22. Once the directions of the Tribunal have been carried out, the petitions filed by the State and Shri A.S. Gill virtually become infructuous. In any case if respondent No. 2 has any grievance against carrying out the directions of the Tribunal in the impugned order, that gives rise to a fresh cause of action, and he can take appropriate steps, in accordance with law. 23. In the result, both the petitions stand disposed of . No order as to costs.