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2018 DIGILAW 306 (JK)

S. K. Mishra v. Union Home Secretary

2018-05-16

ALI MOHAMMAD MAGREY, M.K.HANJURA

body2018
JUDGMENT : Hanjura, J. 1. Impugned in this petition is the defensibility and pregnability of the judgment dated 21st of September, 2017, passed by the Central Administrative Tribunal (CAT), Chandigarh, (Camp Court, Jammu), in case titled ‘S.K. Mishra v. Union of India & Ors.’, bearing OA No. 061/00355/2017. 2. In adumbrating and analyzing the facts leading to the filing of this petition, it needs must be said that the Central Administrative Tribunal, has given a vivid account of the facts in the judgment assailed in this petition. These are that the petitioner is the senior most Indian Police Service (IPS Officer) of J&K, belonging to the 85 batch, whereas Shri S.P. Vaid, IPS – respondent No.4, belongs to the 86 batch of IPS. The petitioner, it is stated, was empaneled as ADG with 1985 batch officers by the Government of India, while as the respondent No.4 was dropped and was not empaneled as such with his batchmates of the year 1986. The petitioner, it is stated, was illegally superseded by the respondent No.4, who is junior to him and he has been appointed by the official respondents as DGP (HoPF) vide order dated 28th of December, 2016, which is contrary to the law and which has the effect of bypassing the seniority. The petitioner, before passing of the impugned judgment, filed an OA bearing No. 061/00069/2017 before the CAT, Chandigarh, challenging the vires of the order of the appointment of the respondent No.4, in which, by an order dated 24th of January, 2017, the competent authority was directed to consider and decide his representation dated 4th of January, 2017 by a speaking/reasoned order. In compliance thereof, the representation filed by him was considered and rejected by the competent authority vide order dated 23rd of February, 2017, a copy of which is attached to the file. Aggrieved thereby, the petitioner challenged the legality of the said order before the CAT, Chandigarh, on the grounds, inter alia, that the selection of respondent No. 4 as DGP (HoPF), who is junior to him, was made without following proper procedure and the law of the land, in a totally opaque manner to help him, giving a goby to the judgment of the apex Court rendered in Civil writ petition No.310/1996, titled Prakash Singh versus Union of India and others decided on 22nd of September, 2006 and the J&K Business Rules. The petitioner alleged that the Chief Secretary, being the Cabinet Secretary, was required to issue a speaking order about the deliberations carried out in the Cabinet. The rules of business of preparing the Cabinet Note of Memorandum, are also stated to have been ignored by the respondents. 3. The CAT, Chandigarh, after taking an overall view of the matter, determined the petition of the petitioner by directing that all important issues pleaded and urged by the petitioner in the OA have already been considered and decided by the competent authority in the right perspective and, therefore, there are no reasons, much less cogent, to interfere in the selection and appointment of the respondent No. 4 as DGP (HoPF), J&K State, in the obtaining circumstances of the case. The CAT, Chandigarh, further held that in the light of the aforesaid pragmatic reasons, there is no merit in the OA, which entails dismissal and is, accordingly, dismissed. 4. The petitioner did not find favour with the judgment of the CAT, Chandigarh, and filed this petition before the Court, the nitty gritty of which is that the respondent No.4 came to be selected and appointed as DGP (HoPF) of J&K State. The petitioner challenged his appointment/selection in the OA No. 061/00355/2017 before the CAT, Chandigarh, (Camp Office Jammu), on the grounds, inter alia, that the order had been issued in violation of the J&K Business Rules buttressed with the directions extended by the Apex Court in the case of “Prakash Singh v. Union of India & Ors., besides being arbitrary, i.e. without considering the eligible candidates and also by selecting a person, who was ineligible for being selected as DGP in view of the fact that he was the only person to have been empaneled as IGP by the Ministry of Home Affairs on the said date and was junior to the petitioner. The said OA was considered by the CAT, Chandigarh, and vide order dated 24th of January, 2017, the respondents were directed to decide the representation dated 4th of January, 2017, by passing a speaking order, as a corollary to which, the respondent No.3 – Principal Secretary, Home Department, once again, in violation of the J&K Business Rules, on extraneous considerations and inconsistent reasoning, rejected the claim of the petitioner vide order bearing No. 134-Home of 2017 dated 23rd of February, 2017. The petitioner challenged the said order in OA No. 061/00355/2017 before the CAT, Chandigarh, and in the interim application, the respondent No.4 was restrained from exercising the administrative control/power over the petitioner in any manner. Subsequently, the CAT, Chandigarh, passed the judgment dated 21st of September, 2017, without considering the material on record in the right perspective and without appreciating the relevant law, rules and the judgment of the Apex Court, and dismissed the OA of the petitioner. The judgment impugned passed by the CAT, Chandigarh, is perverse and perfunctory. It has incorrectly appreciated the facts and circumstances of the case. On the one hand the CAT, Chandigarh, has admitted the case of the petitioner by restraining the respondent No.4 from exercising any administrative control over the petitioner and on the other hand, it has dismissed the OA filed by the petitioner. The CAT, Chandigarh, has not only erred in holding that the case of the petitioner along with respondent No.4 was considered by the Cabinet but has also fallen in grave error in holding that the directions passed by the apex Court in the case of Prakash Singh were directory in nature and not mandatory. 5. Under the shade and cover of the above facts, the petitioner has implored for the grant of following relief’s in his favour: “(i) By issuance of writ, order or direction one in the nature of certiorari, the judgment impugned dated 21-09-2017 passed by the ld. Central Administrative Chandigarh (Camp Court Jammu) in the case titled S.K. Mishra versus Union of India OA No. 061/0035/2017. (ii) By issuance of writ, order or direction one in the nature of mandamus, the respondents 1 to 3 be commanded to promote the petitioner on the post of DGP (HoPF) w.e.f. 28-12-2016 and pay all the consequential service benefits as admissible under law and rules unto the petitioner. (iii) By issuance of writ, order or direction one in the nature of mandamus, the respondents 1 to 3 be commanded to give the same pay scale (i.e. Pay level 17 Matrix) unto the petitioner w.e.f. 28-12-2016 under the principle of law ‘Next Below Rule.’ (iv) That since the respondents 2&3 have committed willful breach of the law laid down by the Hon’ble Supreme Court in Prakash Singh’s case as such contempt proceeding may be initiated against them and they may be punished under law. It is further prayed that the State Govt. be directed to implement the directions passed by the Hon’ble Supreme Court in Prakash Singh’s case in letter and spirit till a proper legislation is made by the State on the subject.” 6. The respondent No. 1 has resisted and controverted the petition of the petitioner, inter alia, on the grounds that the post of DGP (HoPF) is a selection post and, therefore, the direction of “Next Below Rule” is not applicable in the matter. The Apex Court in its judgment dated 22nd of September, 2006, passed in Civil writ petition No. 310/1996, in the case of “Prakash Singh & Ors. v. Union of India & Ors., on the subject of Police Reforms, had, inter alia, directed that the selection to the post of DGP in the State be made amongst the three senior most officers, who have been empaneled by the UPSC and to fix a minimum tenure of two years for them irrespective of their dates of superannuation. It is further contended that the Union of India filed an Interlocutory application before the Hon’ble Supreme Court, seeking clarification/modification as it related to the tenure of DGP, pleading that the UPSC should not be involved in the selection of DGP and two years’ tenure of the DGP should be subject to the date of superannuation as specified in the AIS (DCRB) Rules, 1958. It is further stated that while accepting the recommendations of the 6th Pay Commission, the Government has approved the grant of apex scale of Rs. 80,000/- (fixed) by up-gradation of one in the line of post of existing DGs as DGP (Head of Police Force) in each State Cadre. The scale of Rs. 80,000/- is allowed only to the incumbent, actually holding the post of DGP (Head of Police Force). The said direction came into effect from the date of the notification of IPS (Pay) Amendment Rules, 2008, i.e. 27th of September, 2008. The respondent No. 1 has proceeded to state that the subject matter of promotion/fixation of pay of the IPS officers in different grades falls within the purview of the State Governments concerned and the Central government has nothing to do in such matters unless any of its rules or instructions have been challenged. 7. The respondent No. 1 has proceeded to state that the subject matter of promotion/fixation of pay of the IPS officers in different grades falls within the purview of the State Governments concerned and the Central government has nothing to do in such matters unless any of its rules or instructions have been challenged. 7. The respondents 2&3 have pleaded in their objections that the impugned order, passed by the CAT, Chandigarh, (Camp Court, Jammu), does not suffer from any legal infirmity, inasmuch as, the challenge to it, both on facts and in law, is totally misplaced, misdirected and misconceived and as such the writ petition is liable to be dismissed on that score alone. It is further contended that the writ petition is devoid of any merit and is bound to fail. The impugned judgment/order, passed by the CAT, Chandigarh, is perfectly legal, justified and a reasoned one and as such is not open to challenge. It is further contended that no legitimate cause has accrued to the petitioner to maintain the instant petition. Respondent Nos. 2&3 have further stated that none of the fundamental, statutory or any other civil rights of the petitioner stand infringed by the answering respondents and as such the writ petition is not maintainable. The CAT, Chandigarh, has, in unambiguous terms, held that the petitioner’s claim has indeed been considered by the competent authority in the right perspective. The position of respondent No.4 as DGP (HoPF), J&K State has not been disturbed by the State. No injustice has been caused to the petitioner by the impugned order. He has tried to mislead the Court by contending that the CAT, Chandigarh, has, in its order, observed that the directions passed by the apex Court in Prakash Singh’s case are directory in nature and not mandatory. 8. It is also pleaded in the objections that the selection/appointment of the respondent No.4 as DGP was taken by the State Cabinet after considering the entire service record, merit, eligibility, suitability and qualification of the persons/candidates falling in the zone of consideration and this decision is based on the subjective satisfaction of the State Cabinet, which, in its wisdom, after taking all the relevant factors into consideration, found the respondent No. 4 to be the most suitable person for the post of DGP. The factors which weighed with the State Cabinet while according consideration to the selection/appointment of DGP, cannot be questioned as it is not a matter that falls within the domain of any other authority and to probe into the suitability of the selection/appointment of a person as DGP. The State Cabinet and the State Government has the power to take a call in such a matter. They have to scan and analyze as to who is the most suitable person amongst the eligible persons to man the post, more particularly, in the State of J&K, taking into consideration the present scenario coupled with the fact that the respondent No. 4 has already remained/posted as Special DGP, Law and Order. Even otherwise also, how and under what circumstances, the petitioner is aggrieved by the decision of the State Cabinet for posting the respondent No.4 as DGP (HoPF) is not forthcoming from the record/pleadings, more particularly, when no such prejudice has ever been caused to the petitioner nor has he even made a whisper about it in the OA filed before the CAT, Chandigarh. It is also stated that the Government order No. 727-Home of 2016 dated 28th of December, 2016, was issued pursuant to the Cabinet decision No. 121/12/2016 dated 28th of December, 2016, which was neither questioned in the OA filed by the petitioner before the CAT, Chandigarh, nor has the same been questioned in the writ petition. It is further contended that the allegation that the impugned action is violative of article 16 of the Constitution of India has no substance in it. The selection/appointment of respondent No.4 as DGP, J&K, has been made after following proper procedure and practice. The action taken by the State can neither be termed as mala fide nor arbitrary. These assertions are just a figment of imagination on the part of the petitioner. The appointment of respondent No.4 is not against the mandate of the law laid down in the case of Prakash Singh. The judgment refers to the Constitution/creation of State Security Commission in the State which is not disputed. These assertions are just a figment of imagination on the part of the petitioner. The appointment of respondent No.4 is not against the mandate of the law laid down in the case of Prakash Singh. The judgment refers to the Constitution/creation of State Security Commission in the State which is not disputed. The function of the State Security Commission is not to make the selection of the DGP, but its area of jurisdiction is to frame the policy so as to mitigate the exercise of undue influence of the Government in the working of police and for the purposes of upholding the law and the Constitution of the country. The consolidated guidelines issued by the Ministry of Personnel, Public Grievance and Pensions Department of Personnel and Training dated 24th of July, 2014, for evaluating the suitability of IAS and other All India Services and Group-A Central Services for Holding Joint Secretary/equivalent post at the Centre, inter alia, provide that the empanelment should be considered not as a reflection of the intrinsic merit or otherwise of an officer but the suitability of an officer to occupy senior levels in the Central Government. It is further stated that the assertion of the petitioner that the judgment in Prakash Singh’s case with regard to constitution/creation of State Security Commission in the State has not been complied with, is factually incorrect and is denied vehemently. It is further contended, in the objections, that so far as the creation of Security Commission is concerned, it is clear from the judgment itself that the Security Commission is not meant for making the selections of the DGP’s Head of the Police force. 9. It is further pleaded that so far as the contention of the petitioner viz-a-viz the empanelment is concerned, the Consolidated Guidelines issued by the Ministry of Personnel, Public Grievance and Pensions Department of Personnel and Training, vide Circular No. 12/3/2008-E0(SMIII) (Part-II) dated 24th of July, 2014, for evaluating suitability of IAS and others All India Services and Group-A Central Services for Holding Joint Secretary/equivalent post. Given the background and experience of an officer, he or she may be suitable to occupy senior positions in the State Government. Likewise, another officer, in view of the background and experience, may be considered more suitable for Central Government Post. Given the background and experience of an officer, he or she may be suitable to occupy senior positions in the State Government. Likewise, another officer, in view of the background and experience, may be considered more suitable for Central Government Post. It is further contended that it shall be worthwhile to mention here that both he and the applicant were working as DGP ’s in the level 16 of pay matrix and were already placed in HAG + grade of above super time scale. The apex pay scale is granted to only DGP (HoPF) for the functions performed by him in his capacity as HoPF and to select and appoint DGP is the sole prerogative of the State Government and by the selection of Respondent No. 4 as HoPF no prejudice has been caused to the applicant and hence selection of Respondent No.4 as DGP (HoPF) cannot be questioned in any Court or Tribunal and there is no remedy in law unless such satisfaction is the result of malafides No person can be allowed to hunt for a particular post, unless the action of the Government is patently illegal, biased, mala fide and unjustified. The applicant has made a reference to the affidavit filed by the State Government in contempt petition N0. 92 of 2007 in Prakash Singh ’s case wherein it is claimed that the Chief Secretary J&K has filed an affidavit before Hon’ble Supreme Court mentioning therein that in view of the peculiar facts and circumstances prevalent in the State of J&K at this stage it would not be expedient to implement direction 1,4 & 6 (which pertained to State Security Commission, Separation of Investigation and Police Complaint Authority) whereas out of seven directions State has already complied with directions No. 2, 3 & 5 (which pertained to Selection & Minimum tenure of DGP, minimum tenure of IG of Police and other officers & Police Establishment Board). The applicant in his application has very conveniently forgotten to mention the date of affidavit, which has been filed on 8th of March, 2008 and the Government of Jammu and Kashmir was in fact following the directions in Prakash Singh’s case for selection and minimum tenure as DGP, but, off late, due to the issuance of circular No. 12/3/2008-E0 (SM-III) (Part-Il) dated 24th of July, 2014, by the Ministry of Personnel, Public Grievance and Pensions, Department of Personnel & Training Government of India and existence of the fact that Union of India has moved an ‘Interlocutory Application’ before the Hon’ble Supreme Court seeking clarification/modification in respect of the directions relating to tenure of the Director General of Police pleading that UPSC should not be involved in the selection process of Director General of Police, the question of empanelment has lost its significance. In fact, the condition of empanelment is envisaged for the purpose of holding an Officer suitable to occupy senior level in Central Government. 10. Respondent No. 4 further pleaded in his objections that as per Sub-rule (l)(c) to Rule 3 read with Schedule 2 of the Indian Police Service (Pay) Rules, 2016, only an officer having the scale of ‘HAG+’ and occupying the post of, or equivalent to that of, the Director General of Police (Prisons), would fall within Level 16 of the Pay Matrix. As on 28th December 2016, when the Government Order, bearing number 727-Home of 2016 was passed appointing the Respondent No. 4 as the DGP (HoPF), only two (2) officers in the State, i.e., the Petitioner and the Respondent No. 4 were placed in Level 16 of the Pay Matrix having the scale of HAG+. So, the contention of the Petitioner has no merit and his argument is based on incorrect interpretation of the law, statue and guidelines provided in the Prakash Singh’s case. So, the contention of the Petitioner has no merit and his argument is based on incorrect interpretation of the law, statue and guidelines provided in the Prakash Singh’s case. The Petitioner has made repeated reference to the affidavit filed by the State Government in contempt petition No. 92 of 2007 in Prakash Singh case wherein it is claimed that Chief Secretary J&K has filed an affidavit before Hon’ble Supreme Court mentioning therein that in view of the peculiar facts and circumstances prevalent in the State of J &K at this stage, it would not be expedient to implement direction 1, 4 & 6 (which pertained to State Security Commission, Separation of Investigation and Police Complaint Authority) whereas out of seven directions, the State has already complied with directions No. 2, 3 & 5. It is further submitted that the directions of the Supreme Court in Prakash Singh’s case have been followed by the State Government, while considering the case of the Petitioner and Respondent No. 4, for the post of DGP (HoPF). However, the Respondent No. 4 submits that such empanelment has, nothing to do with the selection and appointment as DGP (HoPF) in the State and would be relevant, only for the purpose of Central Government posts. It is further contended in the objections that the allegations of violation of the Jammu and Kashmir Business Rules and extraneous considerations levelled is a figment of imagination of the Petitioner. In any event, it is submitted that the Business Rules are framed only for the convenience of the business of the Government, and do not, in any case whatsoever, confer any right on any person to challenge the breach thereof. The case of the petitioner and respondent No.4 was already under consideration with the State Cabinet and all the aspects, relating to seniority, services rendered/achievements made by the officers falling in the zone of consideration were made available by the respondents ahead of the Cabinet meeting which was held on 28th of December, 2016 for the selection and appointment of DGP (HoPF). Even otherwise, also, rule 19 of the J&K Business Rules empowers the Chief Minister to curtail the period of circulation, in case of emergency. Further, sub-Rule 3 of Rule 19 empowers the Chief Minister to consider any other item arising, during the course of Cabinet proceedings. Even otherwise, also, rule 19 of the J&K Business Rules empowers the Chief Minister to curtail the period of circulation, in case of emergency. Further, sub-Rule 3 of Rule 19 empowers the Chief Minister to consider any other item arising, during the course of Cabinet proceedings. So, the contention of the petitioner is not well founded in law and the allegations of nepotism, favoritism are baseless and non-est in the eyes of law. Respondent No.4 has further stated that as submitted by the petitioner, the cases of appointment by selection, the next below rule, as 4:38l has no applicability. Nobody has the right to promotion, particularly on a selection post. The respondent No.4 has been granted level 17 pay matrix, as a sequel to his appointment to the post of DGP (HoPF) and the functions to be performed. The higher pay scale of level 17 is attached to the post of DGP (HoPF), which is a selection post, therefore, no one can claim level 17 pay matrix as a matter of right, unless he is being selected and appointed to the post of DGP (HoPF). It is submitted that grant of level 17 pay matrix is related to performance of functions attached to the post of DGP (HoPF) and as long as a person has not been appointed as DGP (HoPF), he cannot be deemed to have performed the functions thereof. The judgment relied upon by the petitioner has no applicability to the facts of present case. It is further contended by the respondent No. 4 that during his service tenure has received following medals and decorations besides numerous appreciations: (a) President Medal for Gallantry. (b) Presidents Medal for Meritorious Services. (c) President Medal for Distinguished Services. (d) Indian Wound Medal. (e) Indian Army Chiefs Disk. (f) Sher-i-Kashmir Police Medal for Meritorious Services. (g) Antarik Seva Medal. (h) DGP’s Commendation Medal. 11. Heard and considered. The relevant records have also been perused by us. 12. Before looking into the merits of the controversy raised by the petitioner in this petition, it will not be impertinent to state that the areas of concern, as projected by the petitioner in the OA, have been taken note of by the Central Administrative Tribunal in the judgment impugned herein which is pellucid in content and lucid in details. It does not call for any interference. It does not call for any interference. It has touched and decided all the points raised by the petitioner in his petition. However, it may be added that, based on a cabinet decision No.121/12/2016 dated 28th of December, 2016, the Government of Jammu & Kashmir, vide order No.727/Home of 2016 dated 28th of December, 2016, accorded sanction to the appointment of the Respondent No.4, namely, Shri S. P. Vaid, (J&K): 86, as Director General of Police of the Jammu and Kashmir State. Aggrieved by the said order, the petitioner challenged its vires before the Central Administrative Tribunal. The Administrative Tribunal rejected the contention of the petitioner and, therefore, the petitioner filed this petition before this Court challenging the validity and legality of the order of the Central Administrative Tribunal. 13. The grievance of the petitioner, primarily, revolves on three planks. These are, firstly that the selection/appointment of the respondent No.4 as Director General of Police (HoPF), who is junior to him, was made without following the proper procedure and the judgment of the Supreme Court delivered in Prakash Singh’s case has been flouted with impunity. Secondly, it has been stated, that the Jammu and Kashmir Government Business Rules have been given a goby in passing the order of the appointment of the respondent No.4 and the third contention of the petitioner is that he should be equated and treated on par in the matter of the grant of the salary/emoluments with the respondent No.4. 14. It will be worthwhile to note that the petitioner, in an earlier round of litigation, filed a petition before the Central Administrative Tribunal which was disposed of with a direction to the State Government, through the Chief Secretary, to accord consideration to the representation dated 4th of January, 2017 filed by the petitioner for the redressal of his grievances by means of a speaking/reasoned order within one month. It was also directed that in case the petitioner is not satisfied by the order passed on his indicated representation by the competent authority, then, he would be at liberty to challenge its validity by filing a fresh OA, in accordance with the law. The competent authority, after looking into the entire gamut of controversy raised by the petitioner in the representation, rejected the claim of the petitioner on the following grounds: “6. The competent authority, after looking into the entire gamut of controversy raised by the petitioner in the representation, rejected the claim of the petitioner on the following grounds: “6. Whereas, the representation dated 04.01.2017 of Shri S.K. Mishra, IPS, was examined in light of the aforesaid order dated 24.01.2017 of the Hon’ble Central Administrative Tribunal, pleas raised by Shri Mishra in his representation and the relevant rules, and it has been observed that: *The post of Director General of Police, J&K is required to be filled amongst the officers in the zone of consideration with due regard to merit and seniority. The seniority alone is neither the necessary nor sufficient criteria for making this selection and therefore the seniority alone does not confer any right upon the applicant, to the appointment as the Head of Police Force is DGP. It has been a practice that the appointments/postings at senior level including that of DGP are made after due deliberations by the State Cabinet. * The Chief Secretary, in his capacity as Secretary to the Cabinet suitably apprises the Cabinet about the details of the officers falling in the zone of consideration. The Cabinet after considering all the aspects, relating to seniority, services rendered/achievements made by these officers in the State and other relevant factors, makes appointments to various senior positions. In the instant case, the requisite details in respect of the two officers, namely Shri S.K. Mishra, IPS (JK:85) and Shri S.P. Vaid, IPS (JK:86), being in the consideration zone, were made available to the office of the Chief Secretary, ahead of the Cabinet meeting held on 28.12.2016. *The Hon’ble Supreme Court of India vide its judgment dated 22 09. 2006, in Writ Petition (Civil) No 310 of 1996 titled Prakash Singh & Others Vs. Union of India and Others, passed several directions, with regard to the issues concerning Police Reforms. *Shri S.K. Mishra has made a reference to the State Security Commission in the GA. filed before Hon’ble Central Administrative Tribunal, Chandigarh. 2006, in Writ Petition (Civil) No 310 of 1996 titled Prakash Singh & Others Vs. Union of India and Others, passed several directions, with regard to the issues concerning Police Reforms. *Shri S.K. Mishra has made a reference to the State Security Commission in the GA. filed before Hon’ble Central Administrative Tribunal, Chandigarh. In this context, it is pointed out that the Hon’ble Apex Court has directed to constitute a State Security Commission in every State to ensure that the State Government does not exercise unwarranted influence or pressure on the State Police and for laying down the broad policy guidelines so that the State Police always acts according to the laws of the land and the Constitution of the country. This watchdog body shall be headed by the Chief Minister or Home Minister as Chairman and have the DGP of the State as its ex-officio Secretary. The other members of the Commission shall be chosen in such a manner that it is able to function independent of Government control. For this purpose, the States have been directed to choose any of the models recommended by the National Human Rights Commission, the Ribeiro Committee or the Sorabjee Committee. The functions of the State Security Commission would include laying down the broad policies and giving directions for the performance of the preventive tasks and service oriented functions of the Police revaluation of the performance of the State Police and preparing a report thereon for being placed before the State legislature. *The Hon’ble supreme Court of India on the issue of selection and minimum tenure of DGP, in the same judgment, inter-alia, directed 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 empaneled 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 irrespective 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 irrespective 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 any8 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. *Since Government of India, Ministry of Home Affairs had also been arrayed as a respondent in the application filed by Shri SK. Mishra, IPS, vide their communication No. 16013/13/2017-IPS-II dated 06.02.2017, the Ministry of Home Affairs also furnished its inputs in the matter. In this communication, Ministry of Home Affair clarified that DGP (HoPF) is a selection post. The State Government has been advised to examine the representation dated 4.1.2017 of the applicant and pass appropriate speaking and reasoned orders, within stipulated time period, in order to implement the directions of the Hon’ble Tribunal. *'The Hon’ble Supreme Court in its judgment dated 22.9.2006 in Prakash Singh’s case relating to Police Reforms, inter-alia, directed that the selection to the post of DGP in the State be made amongst the three senior most officers who have been empaneled by the UPSC. In this context, the Ministry of Home Affairs, vide the aforementioned communication has informed that the Union of India has filed an Interlocutory Application before the Hon’ble Supreme Court seeking clarification/modification in respect of the direction relating to tenure of Director General of Police, pleading that UPSC should not be involved in the selection process of Director General of Police and the two years tenure to Director General of Police should be subject to the date of superannuation as specified in the AIS (DCRB) Rules, 1958, and the matter is presently pending before the Hon’ble Supreme Court. *The Hon’ble Supreme Court in terms of the aforesaid order has not directed the States for constitution of a Committee to consider the selection of the Director General of Police, as contended by the officer in his representation. *Further, the range of experience for heading the Police Force cannot be easily quantified, since some officers get an opportunity to work in several Branches of the Police Force like Law 8'. *Further, the range of experience for heading the Police Force cannot be easily quantified, since some officers get an opportunity to work in several Branches of the Police Force like Law 8'. Order, Armed Police, Crime prevention, Intelligence, etc., while others may not get such an opportunity. In an era of specialization, it is difficult to find on ‘all-rounder'. What is certain is that all the aspects of an officer are required to be considered. *As regards, the issue of empanelment, the consolidated Guidelines issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel Training vide Circular No.12/3/2008-EO(SM-III) (Part-ll) dated 24.7.2014, for evaluating suitability of IAS and other All India Services and Group A Central Services for holding Joint Secretary/equivalent posts at the Centre, inter-alia, provide that empanelment should be considered not as a reflection of the intrinsic merit or otherwise of an officer but the suitability of an officer to occupy senior levels in the Central Government. Given the background and experience of an officer, he or she may be highly suited to occupy senior positions in State Government. Likewise, another officer, in View of the background and experience, may be considered more suitable for Central Government posts. *The Directions of the Hon’ble Supreme Court passed in Writ Petition (Civil) No. 310 of 1996 titled Prakash Singh 81. Others Vs. Union of India and Others, are under consideration of the State Government and steps are being taken to implement the directions. Besides, the Hon’ble Supreme Court is actively monitoring the status of the implementation of its directions and the State of J&K has from time to time filed the status with regard to the steps taken for the implementation of the directions. *Rule 8 of the Jammu and Kashmir Government Business Rules, provides that subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule shall be brought before the Cabinet in accordance with the provisions of the Rules contained in Part II. The Second Schedule appended to the aforesaid Rules enlists the cases, which shall be brought before the Cabinet. Proposals for the appointment/promotion of the following officers have been indicated at S.No.‘20(l) of the Schedule: (a) Chief Secretary, Additional Chief Secretary and other promotions of All India Service Cadre Officers to various scales of pay within the respective services. The Second Schedule appended to the aforesaid Rules enlists the cases, which shall be brought before the Cabinet. Proposals for the appointment/promotion of the following officers have been indicated at S.No.‘20(l) of the Schedule: (a) Chief Secretary, Additional Chief Secretary and other promotions of All India Service Cadre Officers to various scales of pay within the respective services. (b) Heads of Departments and such other officers as are treated equivalent to a head of Department like Advisors, Consultants; and c) KAS Officers. *Further, the State Cabinet has been from time to time taking decisions on various important issues including senior level appointments that come up for discussion in the Cabinet, outside the circulated agenda. The decisions in respect of Non-Agenda items are conveyed by the Chief Secretary (who is the Secretary to the Cabinet) to the concerned Departments for its implementation. *Note 2 appended to sub-rule (2) of Rule 3 of the IPS Pay Rules, 2016 read with Schedule II of the said rules, provides that the post of Director General of Police (Head of Police Force) in the Apex Scale (Level 17) shall be filled by selection from amongst the officers holding the post of Director General of Police in the State Cadre in the Level 16 of the Pay Matrix. Both the officers, namely, Sh. S.P. Vaid, IPS, DGP, J85K and Shri S.K. Mishra, DGP, Prisons, J&K, in the consideration zone, were already placed in the HAG + grade of ‘Above Super Time Scale’. 7. Whereas, the Chief Secretary (Secretary to the Cabinet), while informing about the deliberations of the Cabinet, relating to this matter has observed that the State Cabinet in its meeting held on 28.12.2016, considered the names of Shri S.K. Mishra, IPS (JK285) and Shri S.P. Vaid, IPS (JK:86) for the post of DGP, J&K. The Cabinet after carefully considering the service records of the two officers, their PAR’s, experience, contribution made by them in different posts, the present security scenario obtaining in the State and other relevant aspects came to the conclusion that Shri SP. Vaid, would be a suitable choice for the post of DGP, The Cabinet, accordingly, decided to appoint Shri SP. Vaid, [PS (111(186) as DGP, J&K, upon completion of the extended term of service of Shri K. Rajendra Kumar on 31.12.2016. 8. Now. Vaid, would be a suitable choice for the post of DGP, The Cabinet, accordingly, decided to appoint Shri SP. Vaid, [PS (111(186) as DGP, J&K, upon completion of the extended term of service of Shri K. Rajendra Kumar on 31.12.2016. 8. Now. therefore, the representation preferred by Shri Mishra having been considered in due deference to Order dated 24.01.2017 of the Hon’ble Central Administrative Tribunal, Chandigarh, pleas raised by Shri S.K. Mishra, IPS, in his representation, relevant rules and the deliberations of the Cabinet in its meeting held on 28.12.2016, has not been found tenable and is hence rejected for the following reasons: * The State Security Commission has no role so far as selection of Director General of Police is concerned. Hence, the contention of the applicant that the selection of DGP, J&K has to be made on the recommendations of a Committee does not hold good. *The Cabinet has been from time to time taking decisions on various important issues including senior level appointments that come up for discussion outside the circulated agenda. *The Cabinet after due deliberations and carefully considering the service records of the two officers, their PAR’s, experience, contribution made by them in different posts, the present security scenario. obtaining in the State and other relevant aspects came to the conclusion that Shri S.P.Vaid, would be a suitable choice for the post of DGP and decided to appoint Shri S.P. Vaid, IPS (JK286) as DGP, J&K upon completion of the extended term of service of Shri K. Rajendra Kumar on 31.12.2016. *The post of DGP, J&K (Head of the Police Force), in the Apex Scale, is to be filled by selection from amongst the officers in the consideration zone, for which the seniority alone is neither the necessary nor sufficient criteria for making this selection and therefore the seniority alone does not confer any right upon the applicant, to the appointment as the Head of Police Force i.e. DGP. *Non-empanelment of an IPS officer at the level of ADGP, cannot act as an impediment to the appointment as DGP, in the State, as contended by the applicant, if so chosen by. the Competent Authority.” 15. The grounds, as urged by the petitioner in his representation, formed the baseline of the petition filed by him before the Central Administrative Tribunal. *Non-empanelment of an IPS officer at the level of ADGP, cannot act as an impediment to the appointment as DGP, in the State, as contended by the applicant, if so chosen by. the Competent Authority.” 15. The grounds, as urged by the petitioner in his representation, formed the baseline of the petition filed by him before the Central Administrative Tribunal. Subsequently, these have been reiterated before this Court in the instant writ petition filed by the petitioner. The representation has been decided by the competent authority on the grounds based on reason, logic and the law. The entire range of controversy raised in the representation has been dealt with by the competent authority in the proper perspective and point of view. The order of the competent authority is lucid, luminous and clear. All the grounds urged by the petitioner have been dealt with and determined by prismatic reasons leaving no scope to take a view contrary to the one expressed in the order of the competent authority. All the issues have been decided and determined by the competent authority in the right phase and direction. There is no reason, much less a cogent one, to interfere in the selection/appointment of respondent No.4 as Director General of Police (HoPF), J&K State, under and in terms of the order of the competent authority. 16. The first contention of the petitioner is that the law laid down by the Apex Court of the country in Prakash Singh’s case has not been complied with by the State Government in its vigour and rigour in the matter of the appointment/selection of the respondent No.4 as Director General of Police (HoPF), J&K State. The judicial precedent evolved in Prakash Singh’s case makes it succinctly clear that the area and jurisdiction of the Security Commission, as directed to be constituted in the State, has to be to frame the policies so as to mitigate and undermine the influence of the Government in the working of the police and for the purposes of upholding the law and the Constitution of the country. However, paragraph No.31(2) of the judicial precedent, under which the petitioner has taken umbrage and shelter, reads as under: “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 empaneled 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.” The position of law as evolved above brings it to the fore that the procedure prescribed in the case is based on the availability of more than three officers who fall within the purview of the eligibility clause to be appointed as Director General of Police (HoPF) under the statutory rules. In the case at hand, admittedly, there were only two officers in the State of Jammu and Kashmir belonging to the scale of HAG+ having level 16 of the pay matrix and, therefore, there was no requirement of empanelment by the Union Public Service Commission for the reason that the Director General of Police (HoPF) could have been appointed from a panel of two senior-most officers only and, even if such a panel was prepared by the Union Public Service Commission, the petitioner and the respondent No.4 only had to be considered for their selection/appointment as Director General of Police (HoPF). Therefore, on the strength of the Indian Police Service (Pay) Rules, 2016 read with Prakash Singh’s case, even if the Union Public Service Commission would have provided a panel of officers eligible for appointment to the post of Director General of Police (HoPDF), it would have, in any event whatsoever, comprised the petitioner and the respondent No.4 only. 17. The petitioner and the respondent No.4, admittedly, are governed by the Indian Police Service (Pay) Rules, 2016. On the analogy of note 2 added to Sub-rule 2 of Rule 3 of the Indian Police Service (Pay) rules, 2016, the Director General of Police (HoPF) in the apex scale (Level 17) has to be appointed from amongst the officers holding the post of Director General of Police in the State cadre (Level 16 of the Pay Matrix). On the analogy of note 2 added to Sub-rule 2 of Rule 3 of the Indian Police Service (Pay) rules, 2016, the Director General of Police (HoPF) in the apex scale (Level 17) has to be appointed from amongst the officers holding the post of Director General of Police in the State cadre (Level 16 of the Pay Matrix). For the convenience of ready reference, note 2 to Sub-rule 2 of Rule 3 is reproduced below, verbatim: “The post of Director General of Police (Head of Police Force) in the apex scale (Level 17) shall be filled by selection from amongst the officers holding the post of Director General of Police in the State cadre in the Level 16 of the Pay Matrix.” As per Sub-rule (1)(c) to Rule 3 read with Schedule 2 of the Indian Police Service (Pay) Rules, 2016, only an officer having the scale of ‘HAG+’ and occupying the post of, or equivalent to that of the Director General of Police (Prisons), would fall within the Level 16 of the Pay matrix. 18. Risking repetition, it needs to be stated that the Government order bearing No.727-Home of 2016 was passed, vide which the respondent No.4 was appointed as the Director General of Police (HoPF), only two officers, i.e. the petitioner and the respondent No.4 were placed in Level 16 of the pay matrix having the scale of HAG+, as is the admitted case of the petitioner. Therefore, on the face of such an eventuality, the Government rightly accorded consideration for the selection/appointment of the Director General of Police (HoPF) to the petitioner and the respondent No.4, and pinned it down that the respondent No.4 has a sharp edge in the mater of selection/appointment as Director General of Police as compared to the petitioner. Under such circumstances of the case, the question of sending of a panel of three senior-most officers was not viable. The State Cabinet having considered the case of the petitioner and the respondent No.4 on the parameters of the service record, merit, eligibility, suitability, qualification, experience, etc., rightly selected the respondent No.4 as the Director General of Police (HoPF), J&K State. The State Cabinet having considered the case of the petitioner and the respondent No.4 on the parameters of the service record, merit, eligibility, suitability, qualification, experience, etc., rightly selected the respondent No.4 as the Director General of Police (HoPF), J&K State. The assessment of the merit and other relevant facts for making selection on the post of Director General of Police was purely within the domain and jurisdiction of the State Government and, since the petitioner was also considered in the panel of eligible officers by the cabinet, so the petitioner cannot challenge the validity of the order by which the respondent No.4 has been selected and appointed as the Director General of Police (HoPF), J&K State. The petitioner is still working as Director General of Police and no prejudice can be said to have been caused to the petitioner by the appointment of the respondent No.4 as the Director General of Police (HoPF). Merely stating that the petitioner figures a step ahead of the respondent No.4 in the order of seniority cannot be a ground to challenge the validity of the order of selection/appointment of the respondent No.4 to the post of Director General of Police, for which a variety of circumstances have to be taken note of, particularly, in view of the conditions prevailing in the State of Jammu & Kashmir which, by now, are obvious and do not require any retelling. The monster of terrorism has eaten into the vitals of the State and, therefore, it becomes all the more necessary for the State Government to appoint a person to the post of Director General of Police, who has an impeccable integrity, is blessed with professional skills, is conversant with the topography of the entire State and is a fit person to run the police force. The respondent No.4, during his service, has been decorated with a number of medals and appreciations. He has received President’s Medal for Gallantry, President’s Medal for meritorious services, President’s Medal for distinguished services and so on and so forth. Out of his total service period spreading over a span of thirty years, the respondent No.4 has mostly served in the State of Jammu and Kashmir and might have gained sufficient experience because of he having rendered his services in every nook and corner of the State. Out of his total service period spreading over a span of thirty years, the respondent No.4 has mostly served in the State of Jammu and Kashmir and might have gained sufficient experience because of he having rendered his services in every nook and corner of the State. The State of Jammu and Kashmir cannot be compared and treated on the same pedestal as any other State of the country where the conditions are normal. The priority of the Government, in the State of Jammu and Kashmir, is to maintain peace and harmony amongst the different sections of the people and, at the same time, to deal with the menace of militancy in an effective and efficient way. Therefore, it becomes all the more necessary to single out a person for holding the coveted post of the Director General of Police (HoPF), who is well versed with the situation and the circumstances prevailing in the State of Jammu and Kashmir and has the zeal, zest and competence to deal with these situations. The Cabinet, in its wisdom, found the respondent No.4 to be a fit and suitable person to man the post of Director General of Police (HoPF), J&K State and, therefore, such a decision of the Cabinet cannot be called in question before a Court. 19. It is not the seniority that holds the roost in making selection/appointment of the Director General of Police, but the merit that has to prevail and has a binding force. The post of the Director General of Police is a selection post, the appointment to which is made amongst the officers holding the post of Director General of Police as is made abundantly clear by Note 2 attached to Sub-rule 2 to Rule 3, detailed hereinabove. Even if, for the sake argument, it is assumed, but not conceded, that it is a promotional post, it has to be promotion by selection for which seniority is not the sole criterion. 20. There are judicial precedents that lay down that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. 20. There are judicial precedents that lay down that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. The scope of judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State. 21. In the case of “Federation of Railway Officers Association & Others v. Union of India”, reported in “ AIR 2003 SC 1344 ”, the Apex Court said that the wholesome rule in regard to judicial interference in an administrative decision is that if the Government takes into consideration all the relevant factors, eschews from considering irrelevant factors and acts reasonably within the parameters of the law, Courts would keep off the same. 22. In the case of “BALCO Employees Union (Regd.) v. Union of India & Ors.”, reported in “MANU/SC/0779/2001”, the Apex Court said that it is evident that it is neither within the domain of the Court nor the scope of the judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are our Courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wise or more scientific or more logical. 23. The Courts have to be loath in interfering in the policy/administrative decision taken by the Government unless it smacks of arbitrariness, or to put it in other words, that it is irrational and not circumspect or is wayward, aberrant, malicious and capricious, offending the basic requirement of Article 14 of the Constitutions of India. 24. The second contention of the petitioner is that the business rules have been violated by the Cabinet in making the selection/appointment of the respondent No.4 to the post of Director General of Police (HoPF), on the basis of extraneous considerations. This plea of the petitioner seems to be spurious and spacious, when tested on the touchstone of the business rules themselves and the law governing the field. This plea of the petitioner seems to be spurious and spacious, when tested on the touchstone of the business rules themselves and the law governing the field. Article 162 of the Constitution of India provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. According to Article 163, corresponding to Section 35 of the Constitution of Jammu and Kashmir (except for the inclusion of Sections 36, 38 and 92 in sub-section 2 in the said Section), it is in tune and line with Article 163 of the Constitution of India which lays down that there shall be a Council of Ministers, with the Chief Minister as the head, to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. The executive power of the State shall be vested in the Governor, and shall be exercised by him, either directly or through officers subordinate to him, in accordance with the Constitution, as envisaged under Article 154 of the Constitution of India. Article 163(3) provides that the question, whether any, and if so what, advice was tendered by the Ministers, shall not be inquired in any Court. 25. The petitioner has not pleaded it anywhere that the decision of the Cabinet, by which the respondent No.4 was selected/appointed as Director General of Police ((HoPF), has any lineage of malice or arbitrariness. The Court does not have the power or authority to sit in appeal against an order of the Government which is based on reason, logic and the law of the land, and to crown it all, the decision of the Cabinet, on the pedestal of which the respondent No.4 was appointed as the Director General of Police (HoPF), has not been challenged by the petitioner either before the Central Administrative Tribunal or before this Court. 26. 26. Adverting to the contention of the petitioner that the agenda of the Cabinet to consider the selection/appointment to the post of Director General of Police (HoPF), J&K State, was not circulated to all the Ministers in advance and, therefore, this irregularity goes to the root of the case, as a sequel to which, the selection/appointment of the respondent No.4 to the post of Director General of Police (HoPF), J&K State, is illegal. This argument has no merit or substance in it. It is totally misconceived. The object behind framing of the business rules is to carry out the business of the Government conveniently and these do not confer any right on any person to challenge their breach. The State Cabinet, after taking an overall view of the matter, considered the petitioner and the respondent No.4, who were in the zone of consideration, in a meeting held on 18th of December, 2016. 27. As per Rule 17 of the Jammu and Kashmir Business Rules, the agenda of a Cabinet meeting has to be circulated to the Ministers and the Governor in advance. However, Rule 19, is a rider attached to it, which empowers the Chief Minister to curtail the period of circulation in case of emergency. Sub-rule 3 added to Rule 19 empowers the Chief Minister to consider any other item for decision arising during the course of Cabinet proceedings and, therefore, the contention of the petitioner does not appear to be valid. Even if, for the sake of arguments, it is assumed, but not conceded, that there were some irregularities and aberrations in circulating the agenda item, even then the petitioner cannot seek any benefit out of it because, as already stated, that the Rules of Government Business do not, in any way, create any right, on a public servant to file any case for the violation of the decision taken by the Cabinet, which is no longer res integra now and has been settled by a catena of judicial pronouncements delivered on the subject. Such an issue came up for consideration before a Division Bench of the Karnataka High Court in the case of “The Commissioner BDA & Ors. v. State of Karnataka”, reported in “ILR 2006 KAR 318”, wherein it has been held as under: “62. Such an issue came up for consideration before a Division Bench of the Karnataka High Court in the case of “The Commissioner BDA & Ors. v. State of Karnataka”, reported in “ILR 2006 KAR 318”, wherein it has been held as under: “62. The question as to whether the provisions of Article 166 itself are mandatory or directory in character and the further question as to whether the rules framed thereunder can be regarded as mandatory or directory have come up for consideration before the Courts on more than one occasion and the tenor of the judicial decisions appear to be, the provisions of Article-166 of the Constitution are themselves directory in nature and so are the rules framed there under. A Constitution Bench of the Supreme Court in the case of R. Chitralekha vs. State of Mysore ( AIR 1964 SC 1823 ) held that it is settled that provisions of Article-166 of the Constitution are only directory and not mandatory in character and if they are not complied with, it can be g; established as a question of fact that they impugned order was issued in fact 6 “by the State Government or the Governor. In the case of State of UP. vs. Om "é Prakash Gupta ( AIR 1970 SC 679 ), the Supreme Court observed that the Court had repeatedly held that the provisions of Article-166(1) are directory and substantial compliance with these provisions was sufficient. So far as sub clause (3) of Article-166 of the Constitution is concerned, in the case of A. Sanjeevi Naidu vs. State of Madras ( AIR 1970 SC 1102 ) it was held that, under the Constitution, the Governor is essentially a constitutional head and the administration of State is run by the Council of Ministers. The Constitution has authorized the Governor under Article-166(3) to make rules for the more convenient transaction of business of the Government of the State and for the allocation amongst its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. Apart from allocating business among the Ministers, the Governor can also make rules on the advice of his Council of Ministers for more convenient transaction of business. He can not only allocate the various subjects amongst the Ministers but may go further and designate a particular official to discharge any particular function. The cabinet is responsible to the Legislature for every action taken in any of the ministries and that is the essence of joint responsibility; that does not mean that each and every decision must be taken by the cabinet. Neither the Council of Ministers nor an individual Minister can attend to the numerous matters that come up before the Government. Those matters have to be attended to and decisions taken by various officials at various levels. When those officials discharge the functions allotted to them, they are doing so as limbs of the Government and not as persons to whom the power of the government has been delegated. 63. In the case of Arun Kumar Bhattacharjee vs. State of West Bengal ( AIR 1968 CAL 35 ) the law with regard to Rules of Business has been enunciated by the Calcutta High Court thus: - the rules of business have been made for the convenience of public business. The opening words of clause (3) of Article-166 make it clear that the rules of business are framed by the Governor for more convenient transaction of business of the Government of the State. These rules have not been framed, and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ. under Article-226 of the Constitution for violation of these rules. 64. These rules have not been framed, and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ. under Article-226 of the Constitution for violation of these rules. 64. A Full Bench of the Bombay High Court in the case of Chandrakant Sakharam Karkhanis and others vs. State of Maharashtra and Others ( AIR 1977 BOM 193 ) after noticing the aforesaid judgments held that, the aforesaid decisions make the position quite clear that the provisions of Article-166 of the Constitution themselves are directory in nature and further the rules framed by the Governor under clause (3) of Article~166 must be regarded as rules having been framed for more convenient transaction of business of the Government and are directory in character and not mandatory and any non compliance thereof would be a mere procedural defect but would not confer any right upon any citizen to approach the Court under Article-226 of the Constitution. Since the Business Rules cannot be regarded as mandatory, it would not be possible to take the view that if any rules were framed by the Governor under the proviso to Article-309 without strictly following the procedure prescribed by such Business Rules, the same will not be effective or not have the force of law or that any rule framed in violation of strict compliance with the formality prescribed by such Business Rules will not amount to a rule framed under the proviso to Article-309 of the Constitution; a substantial compliance therewith would be enough. 65. In Gulab Rao vs. State of Gujarat ( 1996 2 SCC 26 ) it was held that a decision of Revenue Minister was not an order of the Government because of non-compliance with Article-166. But in that case, there was a conflict between the Revenue Department and Urban Housing Department, whether proceedings under Section-4(1) of the Act were to be dropped or not. The Revenue Department was of the view that it should be dropped. The Urban Development Department disputed this. The Rules of Business framed by the State under Article-166(3) specifically provided that in such a controversy, the matter was to be submitted to the Chief Minister for placing before cabinet. This was not done nor was the order of the Revenue Minister’s communicated to the appropriate authority. The Urban Development Department disputed this. The Rules of Business framed by the State under Article-166(3) specifically provided that in such a controversy, the matter was to be submitted to the Chief Minister for placing before cabinet. This was not done nor was the order of the Revenue Minister’s communicated to the appropriate authority. The Revenue Minister’s decision which was noted on file was sought to be enforced by the owners. This was negatived by the Supreme Court. 66. When the decision was cited before the Supreme Court, in the case of State Government Houseless Harijan Employees Association vs. State of Karnataka ( AIR 2001 SC 437 ), the Court held that this decision is factually distinguishable and cannot be construed as upsetting the law settled by the Constitution Bench in Chitralekha’s case and the legal position that there these rules are not mandatory was reiterated. 67. The Supreme Court in the case of M/s. Biahamber Dayal Chandra Mohan vs. State of UP. (AIR 1972 SC 33) held that, the word “law” in the context of Article-300A must mean an act of the Parliament or of a State Legislation, a rule, or a statutory order having the force of law, that is positive or state made law. The executive order passed under Article-162 of the Constitution of India would not fall within the phrase “law”. Therefore, any rules framed by virtue of the power conferred under Article-162 and 166 cannot be regarded as law. 68. Therefore, it is well settled that the provisions of Article-166 itself are directory in nature and not mandatory Rules framed by the Governor under clause (3) of Article-166 must be only regarded as rules having been framed for more convenient transaction of business of the Government and are directory in character and not mandatory. Non-compliance thereof would be a mere procedural defect. If there is any violation of the aforesaid rules it would not confer any right upon any citizen to approach the Court under Article-226 of the Constitution complaining of non-compliance of the said rules and contend that the action of the Government is vitiated. The cabinet is responsible to the legislature for every action taken in any of the ministries and that is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. The cabinet is responsible to the legislature for every action taken in any of the ministries and that is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. In fact Rule-11 of the Rules categorically state that the Council of Ministers shall be collectively responsible for all executive orders issued in the name of the Governor in accordance with these Rules whether such orders are authorized by the Cabinet or by an individual Cabinet Minister. Rule-12 states that all matters referred to in the first schedule shall ordinarily be considered at a meeting of the Cabinet. Therefore, when a cabinet minister in charge of a particular subject takes a decision and an order is issued in the name of the Governor, in law the Cabinet is collectively responsible for the said order, whether it is authorized by the Cabinet or only by an individual minister. If there is no strict compliance of the aforesaid rules it cannot be said that the said order of the Government is vitiated or void and is liable to be struck down by this Court, that too at the instance of a citizen, who cannot found (find) his right on the basis of an irregularly in following the procedure." 28. Again, the High Court of Calcutta, had an occasion to deal with an identical issue in the case of “Arun Kumar Bhatacharjee & Ors. v. State of West Bengal & Ors.”, reported in “AIR 1968 CALCUTTA 35”, wherein it was held by the High Court that that the Rules of Business do not create, much less confer, a right on a public servant, to challenge the validity of the decision taken in the Cabinet Meeting. The rules have been made for the convenience of the public business. The opening words of clause (3) of Article 166 makes is clear that the rules of business are framed by the Governor for more convenient transaction of business of the government of the State. These rules have not been framed and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ, for violation of the rules, if a public servant has no right to claim a promotion, seniority or selection, as the case may be. 29. These rules have not been framed and indeed were not intended, to create or confer a right upon a public servant to come and apply for a writ, for violation of the rules, if a public servant has no right to claim a promotion, seniority or selection, as the case may be. 29. With regard to the third contention raised by the petitioner in this petition, i.e. parity with respondent No.4 in the grant of emoluments, etc., it needs to be understood that while accepting the recommendations of the 6th Pay Commission, the Central Government approved the grant of apex scale of Rs.80,000/- (fixed) by up-gradation of one post in the line of existing DGs as DGP (HoPF) in each state cadre. This scale is allowed only to the incumbent actually holding the post. This direction came into effect from the date of the notification of IPS (Pay amendment rules, 2008) dated 27th of September, 2008, therefore, on the analogy of the rules cited above, it is only the person who mans the post of Director General of Police that the scale of pay attached to the post can be allowed/granted in his favour. As per Notification dated 27th of September, 2008, of the DOP&T, only the DGP (HoPF) is eligible for the Apex Scale of Rs.80,000/- (fixed). In addition to above, as per notification dated 18th of October, 2011, no ex-cadre post of DGP (HoPF) in Apex Scale of Rs.80,000/- (fixed) can be created. The grant of pay scale is related to performance of function attached to that post and, as long as a person has not been appointed to that post, he cannot be deemed to have performed the functions thereof by implication. 30. In view of the preceding analysis, the petition of the petitioner sans merit. It entails dismissal and is, accordingly, dismissed along with all connected MPs. Interim directions, if any, in force as on date, shall stand vacated. 31. The records, as produced by Mr B. A. Dar, the learned Senior Additional Advocate General, be returned to him with utmost dispatch.