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2012 DIGILAW 265 (MAD)

Tmt. Latika Saran, IPS v. State of T. N.

2012-01-12

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Elipe Dharma Rao, J.:-Both the petitioner and the fourth respondent are directly recruited officers belonging to Indian Police Service. On 8.1.2010, when the first respondent/State Government selected and appointed the petitioner as the Director General of Police, Tamil Nadu, the fourth respondent challenged the same before the 6th respondent/Tribunal by filing O.A.No.245 of 2010, on the grounds, inter alia, that he is senior to the petitioner; that the process of selection and appointment to the post of Director General of Police was not followed by constituting the screening committee as per Rules and the selection is not held as per the principles laid down by the Honourable Supreme Court in the case of Prakash Singh And Others vs. Union Of India And Others [(2006) 8 SCC 1]; that his name was empanelled in the panel of Director General of Police by the Government of India by memo dated 21.5.2009 and inasmuch as he has unblemished record, there is no justification for the authorities to overlook him, merely because the pay rules were amended and himself and other senior most officers were given the same scale of pay. 2. Since the Tribunal has dismissed the said Original Application at the admission stage itself, on 8.3.2010, on the ground that the applicant/the fourth respondent has not established any arbitrariness, he has filed W.P.No.6917 of 2010 before this Court, praying to issue a Writ of Certiorarified Madamus to set aside the said order of the Tribunal and direct the State of Tamil Nadu to follow the decision of the Honourable Supreme Court in Prakash Singh's case and Note 2 of G.O.Ms.No.1403, dated 16.10.2008 and G.O.(D) 99, dated 30.1.2009 and select the Director General of Police of the State, Head of the Police force, from amongst the panel of three senior most Directors General of Police, as on 8.1.2010 and consider the claim of the fourth respondent herein for appointment to the said post. 3. 3. A Division Bench of this Court, by a vivid order dated 8.10.2010, observing that the dictum laid down by the Honourable Apex Court in Prakash Singh's case has not been followed by the authorities, has disposed of the said writ petition with the following directions: "(i) The first respondent is directed to forward the names of all the eligible officers in the rank of Director General of Police in the cadre of HAG+ scale of Rs.75000 – (and increment @ 3%) - Rs.80,000 as on date with all their service records to the 4th respondent Union Public Service Commission with necessary requisition for preparing a panel as directed by the Hon'ble Supreme Court in paragraph 31(2) of Prakash Singh's case. The first respondent should ensure that the forwarding of the above particulars should reach the office of the 4th respondent Union Public Service Commission on or before 26.10.2010. It is made clear that this Court has not expressed any opinion on the merits or demerits of the parties to the writ petition. (ii) If the 4th respondent needs any further clarifications or particulars as regards the names forwarded by the first respondent State, the same should be clarified as expeditiously as possible, if necessary, through a special messenger within 15 days thereafter i.e. on or before 12.11.2010. (iii) The Union Public Service Commission should thereafter prepare a panel as directed by the Hon'ble Supreme Court in paragraph 31(2) of Prakash Singh's case and forward the same to the first respondent State on or before 26.11.2010. (iv) On such panel being forwarded to the first respondent State should make the selection from amongst the officers in the panel forwarded by the 4th respondent Union Public Service Commission and make the appointment positively on or before 7.12.2010. (v) Till such time, the above process for appointment of the officer to the post of Director General of Police as Head of State Police is made, the 8th respondent shall be allowed to discharge the functions of the Director General of Police (Law and Order). (vi) The first respondent is also directed to file a compliance report by 14.12.2010." 4. Aggrieved, the first respondent filed SLP(C) No.30009 of 2010 before the Honourable Apex Court. (vi) The first respondent is also directed to file a compliance report by 14.12.2010." 4. Aggrieved, the first respondent filed SLP(C) No.30009 of 2010 before the Honourable Apex Court. In the meantime, in compliance of the order of the Division Bench of this Court, the first respondent forwarded the names of all eligible officers in the rank of Director General of Police, available in State, along with their service records to the Union Public Service Commission on 22.10.2010 for drawing a panel of Directors General of Police. Accordingly, the Union Public Service Commission constituted an Empanelment Committee consisting of the following authorities: 1.Chairman or in his absence, Member, Union Public Service Commission – President 2. Home Secretary to Government of India or his nominee not below the rank of Special Secretary to Government of India Member 3. Chief Secretary of the State Government concerned – Member 4. Director General of Police of the State Government concerned – Member 5. An Officer from amongst the head of Central Police Organisations/Central Para Military Forces not belonging to the cadre for which selection is being made, nominated by the Government of India, Ministry of Home Affairs – Member. 5. Since the Director General of Police was one of the Members in the committee, the petitioner was excluded and the Union Public Service Commission convened the meeting of the Empanelment Committee on 10.11.2010 at New Delhi for drawing a panel of Directors General of Police of the State and recommended a panel consisting of the names of the following officers, as suitable for appointment to the post of Director General of Police of the State: 1.Mr.R.Nataraj, IPS (the fourth respondent herein) 2.Mr.K.Vijaykumar, IPS 3.Mrs.Letika Saran, IPS (the petitioner herein) 6. According to the first respondent/State Government, they have examined carefully and independently the panel consisting of names recommended by the Union Public Service Commission, New Delhi, along with the service records of the officers included in the panel, having regard to length of service, very good record and range of experience in working in various wings of the police force and after due consideration selected the petitioner/Mrs.Letika Saran as the Director General of Police and appointed her as such with immediate effect, in G.O.2(D) No.563, Home (SC) Department, dated 27.11.2010 and a compliance report was also submitted before this Court on 8.12.2010, as directed by the Division Bench of this Court. As a result of the said G.O., issued by the first respondent, the Honourable Supreme Court disposed of the SLP in the following manner: "In view of the order dated 27.11.2010 notified in G.O.2(D) No.563, nothing survives in the present petition and the same stands disposed of accordingly." 7. Thereafter, the fourth respondent filed O.A.No.81 of 2011 before the 6th respondent/Tribunal, praying to quash the G.O.2(D)No.563, Home (SC) Department, dated 27.11.2010 issued by the first respondent and quash the same and direct the first respondent to issue an order of appointment to the applicant as Head of the Police Force in view of Rank No.1 assigned by the Union Public Service Commission in the panel approved on 10.11.2010 within a time frame to be fixed by the Tribunal. The Tribunal has disposed of the said Original Application by the order dated 31.5.2011, observing as follows: "6. We are in agreement with the contention of the learned counsel for the applicant that the DGP post is a tenure post for a period of two years irrespective of the fact of superannuation. Since the fourth respondent went on leave and the post is lying vacant and to be filled up on a permanent basis, we have to examine the claim of the applicant. Though it is contended that the applicant is ranked as No.1, once the panel is drawn, all the persons who are included in the panel are entitled to be considered for that appointment. We are also of the opinion that while considering the claims of such persons, their seniority and ranking have to be considered." "7. In the backdrop of the above facts, we quash the order G.O.2(D) No.563 of the first respondent dated 27.11.2010 and there will be a direction to the official respondents to consider the claim of the applicant for appointment to the post of DGP w.e.f. 27.11.2010 in view of the fact that he is the senior most person and ranked as No.1 in the panel drawn by the UPSC. The above consideration should be strictly in terms of the guidelines laid down by the Apex Court in Prakash Singh's case reported in 2006 (8) SCC 1. The application is disposed of in the above terms. There will be no order as to costs." Aggrieved, the fourth respondent therein has come forward to file this writ petition. 8. The above consideration should be strictly in terms of the guidelines laid down by the Apex Court in Prakash Singh's case reported in 2006 (8) SCC 1. The application is disposed of in the above terms. There will be no order as to costs." Aggrieved, the fourth respondent therein has come forward to file this writ petition. 8. From the order of the Tribunal it is clear that it has proceeded on the premise that since the writ petitioner/fourth respondent therein was on leave, the post of DGP has to be filled up on a permanent basis. 9. The grounds on which the appointment of the writ petitioner as Director General of Police was challenged by the fourth respondent herein are that the UPSC Empanelment Committee has ranked him as No.1, having regard to the length of service, range of experience and very good record and therefore, the first respondent could not redo the selection and adopt pick and choose method for appointing the writ petitioner, who is ranked No.3 in the select list by UPSC; that he is the second senior most DGP on 1.5.2010 when cadre vacancy for the promotional post to DGP as Head of Police Force has arisen and the writ petitioner could not be equated with himself in respect of range experience, very good record, length of service and medals, in the light of admitted service details. 10. It is to be mentioned that when the fourth respondent has challenged the appointment of the writ petitioner before this Court in the earlier round of litigation, a direction was issued to the State Government to forward the names of all eligible officers to UPSC for preparing a panel as directed by the Honourable Supreme Court in Prakash Singh's case, which has been properly complied with by the State Government and also UPSC. When a high level committee constituted for this purpose, has gone into various aspects and has finalised the panel and forwarded to the State Government for its consideration in strict compliance of the judgment of the Honourable Apex Court in Prakash Singh's case, nothing has been placed before us by the fourth respondent to say that even such high level committee is biased and the decision arrived at by the said committee is arbitrary. In fact, the very prayer of the fourth respondent is that he should be appointed as DGP, since he has been ranked No.1 in the panel prepared and forwarded by the Committee. Therefore, it goes without saying that there is no illegality or irregularity either in the decision or even in the decision making process of the high level committee. 11. In the case on hand, the major hue and cry of the applicant/fourth respondent is that his name figures at Serial No.1 of the panel sent by the Union Public Service Commission, and, therefore, he should have been appointed to the post of Director General of Police by the first respondent. It is also the argument advanced on his part that the first respondent cannot pick and choose the individuals from the Panel. 12. Therefore, the argument advanced on the part of the fourth respondent is on the premise that the State Government has no power or authority in appointment of its Director General of Police, Head of Police Force in the State and that it should, appoint the person ranking No.1 in the panel sent by the Union Public Service Commission. 13. We cannot accept this argument advanced on the part of the fourth respondent. No doubt, the Honourable Apex Court in Prakash Singh's case has issued various directions to insulate police machinery from political/executive interference, to make it more efficient and effective and to strengthen and preserve the rule of law, based principally on recommendations of National Police Commission (1977-1981) and other commissions and committees set up thereafter in respect of police reform. In this path-breaking judgment, with regard to the selection and minimum tenure of DGP, it has been held by the Honourable Apex Court as follows: "The Director General of Police of the State shall be selected by the State Government from amongst the three seniormost officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespect of his date of superannuation. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespect of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties." 14. In the case on hand, the fourth respondent/applicant has attained the age of superannuation on 31.3.2011. However, since being a tenure post and further since his name also finds a place in the panel forwarded by UPSC, we cannot say that he, being a retired employee, cannot challenge the G.O. appointing the writ petitioner as the Director General of Police. However, as has already been mentioned supra, we cannot accept the argument advanced on the part of the fourth respondent/applicant that the State Government has no say in the matter of appointment of its own Director General of Police since the Honourable Apex Court, in Prakash Singh's case, as extracted supra, has specifically observed that the Director General of Police of the State shall be selected by the State Government from amongst the three senior most officers of the Department, who have been empanelled for promotion to that rank by the Union Public Service Commission. Therefore, there cannot be any obligation on the State Government, to appoint only the person at Sl.No.1 or Sl.No.2 in the panel, since it is for the State Government again to take into consideration various aspects before appointing the Director General of Police. But, one thing is clear, that the State Government can have its choice only from among the officers empanelled by the UPSC. In the case on hand, when names of three persons have been empanelled by UPSC and forwarded to the State Government, the State Government, exercising its prerogative power, has selected the writ petitioner as its DGP, which, cannot, under any stretch of imagination, be called an illegality or bereft of power of the State Government. 15. In the case on hand, when names of three persons have been empanelled by UPSC and forwarded to the State Government, the State Government, exercising its prerogative power, has selected the writ petitioner as its DGP, which, cannot, under any stretch of imagination, be called an illegality or bereft of power of the State Government. 15. At this juncture, we feel it apt to quote a judgment of the Honourable Apex Court in E.P.Royappa vs. State Of Tamil Nadu [ (1974) 4 SCC 3 ], wherein considering the question of filling up of the post of Chief Secretary, the Honourable Apex Court has held as follows: "87. Now, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief Secretary is a highly sensitive post. It is a post of great confidence a lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport and understanding between the Chief Secretary and the Chief Minister. The Chief Minister as the head of the government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the government...." 16. Therefore, being a post requiring high level of confidentiality and capacity to meet challenges of new heights every day, the State Government, is definitely having its own choice of selecting an individual from the panel of personnel prepared by the UPSC. In cases where the duties involve greater skill, overall control of the State, a junior may be given assignment having due regard to the larger public interest and for effective functioning in supervising the law and order machinery and the administration. It is not the case of the fourth respondent that the name of the writ petitioner has not at all been considered and recommended by the UPSC. In fact, the very purpose of forwarding a panel of officers to the State Government by the UPSC is to have its own choice, from out of the officers empanelled therein. We could have appreciated the arguments advanced on the part of the fourth respondent, had the State Government appointed a person, whose name is not at all found in the Panel prepared by the UPSC. 17. We could have appreciated the arguments advanced on the part of the fourth respondent, had the State Government appointed a person, whose name is not at all found in the Panel prepared by the UPSC. 17. From the counter affidavit filed by the State Government before the Tribunal it is clear that the selecting authority (the Hon'ble Chief Minister) has extensively examined the service records of all the officers empanelled by the UPSC and has selected the writ petitioner as most suitable, having regard to the criteria laid down by the Honourable Apex Court. Since it is our firm finding that the State Government is empowered to have its own officer to such a highly sensitive post since the merits and demerits of such an appointed person will have direct consequences and implications on the Government and its performance, we cannot appreciate the contra arguments advanced on the part of the fourth respondent. 18. At this juncture, it would also be apt to quote a judgment of the Honourable Apex Court in Citizens For Justice And Peace vs. State Of Gujarat & Others [ AIR 2009 SC 1420 ], wherein it has been held as follows: "An appointment of a government servant is the prerogative of the particular government, particularly, when it is a sensitive appointment of Director General of Police. We, under the doctrine of 'judicial review', would not extend our hands to upset such an appointment, more particularly, in the factual panorama which is available today...." Therefore, we cannot appreciate the argument advanced on the part of the fourth respondent that the State Government should not have exercised its choice from among the panel of officers forwarded by the UPSC. 19. The next question that arises for consideration is whether empanelment itself would give any right for the officer to be appointed to the post for which he was empanelled. Our answer for this question would be an emphatic 'NO' in view of catena of judgments rendered in this regard by the upper forums of law, particularly the Honourable Apex Court. In S.Ramaswamy vs. Union Of India And Others [ (1976) 4 SCC 79 ], a Three Judge Bench of the Honourable Apex Court has held that 'inclusion in the panel of eligible officers confers no right to be promoted'. In S.Ramaswamy vs. Union Of India And Others [ (1976) 4 SCC 79 ], a Three Judge Bench of the Honourable Apex Court has held that 'inclusion in the panel of eligible officers confers no right to be promoted'. Same is the view of the Honourable Apex Court in N.M.Siddique vs. Union Of India [ (1978) 2 SCC 349 ], wherein it has been held that 'putting a government servant's name in a panel for promotion, confers only a right to be considered for promotion.' 20. In the case on hand, admittedly, the name of the fourth respondent and other senior officers like that of the writ petitioner were duly considered by a high level committee in strict compliance of the judgment of the Honourable Apex Court in Prakash Singh's case, as has been directed by a Division Bench of this Court in the earlier round of litigation. Though, admittedly, his name finds a place at Sl.No.1 of the panel forwarded by the UPSC to the State Government and though he is senior to the writ petitioner, it, besides not conferring any right on the fourth respondent to be appointed as DGP of the State, does not, in any way, take away the prerogative power of the State Government to exercise its option of choosing an officer of its choice in public interest to such a highly sensitive post. Therefore, even this argument advanced on the part of the fourth respondent does not appeal to us, being contra to the legal position. 21. With regard to the observation made by the Tribunal that the writ petitioner is on leave and the post is lying vacant and hence it has to be filled up on a permanent basis, it is to be mentioned that the factum of the writ petitioner proceeding on leave is quite immaterial since it would not create any vested right on the fourth respondent to get appointed to the post. In fact, from the materials placed on record, it is seen that the writ petitioner proceeded on leave since the elections have been announced in the State and she only to facilitate the newly appointed Director General of Police (Election) in the smooth conduct of the polls including pre-poll process, the writ petitioner has proceeded on leave. This fact has been completely ignored by the Tribunal, which has resulted in its arrival of an illegal conclusions. 22. This fact has been completely ignored by the Tribunal, which has resulted in its arrival of an illegal conclusions. 22. A complete perusal and deep analysis of the entire materials placed on record would show that no illegality or irregularity has been committed at any stage in the appointment of the writ petitioner as the Director General of Police by the State Government from the Panel of officers forwarded by the UPSC, strictly in terms of the Prakash Singh's case. All the Rules and procedures contemplated for the process of empanelment have also been strictly adhered to by the high level committee, to the decision of which, even the fourth respondent has not raised his little finger. While that being the position, the Tribunal is not justified in causing its unnecessary interference into the order of appointment of the writ petitioner issued by the State Government, in due concurrence of His Excellency The Governor of Tamil Nadu. Therefore, for all the above reasons, this writ petition is allowed. The order passed by the Tribunal is set aside. No costs. Consequently, connected Miscellaneous Petitions are closed.