Supreme Court of India
MOHD. MUSTAFAversusUNION OF INDIA & ORS.
- Citation
- 2021 INSC 731
- Decided
- 16 November 2021
- Disposal
- Dismissed
- Bench
- L NAGESWARA RAO
Holding
The UPSC’s Draft Guidelines and the empanelment process for appointing the Punjab DGP complied with the Prakash Singh directions, were not arbitrary or irrational, and the selection was not vitiated by bias, so the High Court’s order upholding the appointment stands.
Summary
The case concerned the appointment of Dinkar Gupta as Director General of Police (HoPF) of Punjab, which was challenged on the ground that the empanelment panel prepared by the UPSC violated the directions in Prakash Singh v. Union of India. The appellants alleged bias, procedural impropriety and that the Draft Guidelines 2009 were contrary to law, particularly the identification of five core policing areas. The Supreme Court examined the validity of the Draft Guidelines, the scope of judicial review over expert selections, and the claim of bias against the incumbent DGP who sat on the empanelment committee. It held that the Guidelines faithfully implemented the Prakash Singh directions, the selection process was reasonable, not arbitrary, and no bias was proven. Consequently, the High Court’s order upholding the appointment was affirmed.
Issues considered
- The Draft Guidelines 2009 issued by UPSC for DGP selection are contrary to the directions in Prakash Singh's case.
- The identification of five core policing areas for assessing range of experience is arbitrary and violates the Supreme Court's guidelines.
- Whether the Tribunal erred in setting aside the empanelment panel on the ground of contravention of Prakash Singh's case.
- Whether the appointment of Respondent No.4 as DGP is vitiated by bias, mala fides or procedural impropriety.
- Whether Respondent No.5, the incumbent DGP, should have recused himself from the Empanelment Committee and the applicability of the doctrine of necessity.
- The proper scope of judicial review over selections made by expert bodies.
Legislation cited
- Judges (Inquiry) Act, 1968s. 3(2)
- Judges (Inquiry) Rules, 1969s. 9(2)(c)
- Punjab Police Act, 2007s. 6
Subjects
service lawjudicial reviewselection and appointmentDirector General of Policeempanelment committeebiasprocedural improprietyPrakash Singh caseUPSC guidelinescore policing areasadministrative law
Judgment
[2021] 11 S.C.R. 163 163
MOHD. MUSTAFA A
v.
UNION OF INDIA & ORS.
(Civil Appeal No.6905 of 2021)
NOVEMBER 16, 2021
B
[L. NAGESWARA RAO, SANJIV KHANNA AND
B. R. GAVAI, JJ]
Service law: Selection and appointment – Post of Director
General of Police (Head of Police Force) – Appointment of
respondent No.4 as DGP (HoPF) by the Governor of Punjab –
Tribunal set aside the selection on the ground that preparation of C
the panel for selection of DGP (HoPF) for the State of Punjab was
in contravention of the Prakash Singh’s case – High Court set aside
the said order – On appeal, held: Courts in exercise of power under
judicial review do not interfere with selections made by expert bodies
by reassessing comparative merits of the candidates – Interference D
is restricted to decisions vitiated by bias, mala fides and contrary to
statutory provisions – Preparation of panel for appointment as DGP
(HoPF) for the State of Punjab, by the Empanelment Committee is
in compliance of the Draft Guidelines, in conformity with the
directions issued by this Court in Prakash Singh’s case – Panel was
prepared after taking into account the relevant considerations as E
directed by this Court in Prakash Singh’s case – No irrelevant
consideration prompted the decision – Preparation of the panel by
the Empanelment Committee cannot be said to be irrational and
unreasonable – Also tribunal erred in holding the decision of the
Committee as arbitrary in the absence of reasons – Furthermore, F
allegations based on assertion of bias and prejudice need not be
gone into – Thus, no error committed by the High Court in setting
aside the judgment of the tribunal and upholding the selection and
appointment of respondent No.4 as DGP (HoPF), State of Punjab –
Judicial review.
G
Judicial review: Power of – Scope – Discussed.
Dismissing the appeals, the Court
HELD: 1.1 Judicial review may be defined as a Court’s
power to review the actions of other branches or levels of
government; especially the Court’s power to invalidate legislative
H
163
164 SUPREME COURT REPORTS [2021] 11 S.C.R.
A and executive actions as being unconstitutional. Power of judicial
review is within the domain of the judiciary to determine the
legality of administrative action and the validity of legislations
and it aims to protect citizens from abuse and misuse of power by
any branch of the State. The power of judicial review is a basic
feature of the Constitution of India. Judicial review has certain
B
inherent limitations. However, it is suited more for adjudication
of disputes other than for performing administrative functions. It
is for the executive to administer law and the function of the
judiciary is to ensure that the Government carries out its duties
in accordance with the provisions of the Constitution. The grounds
C on which administrative action is subject to judicial review are
illegality, irrationality and procedural impropriety.[Para 13,
14][180-F-G; 181-A-B]
1.2 The discretionary power vested in an administrative
authority is not absolute and unfettered. Discretion must be
D exercised reasonably. [Para 15][182-B]
1.3 Conditions prompted by extraneous or irrelevant
considerations are unreasonable and liable to be set aside by
Courts in exercise of its power under judicial review. A decision
can be arrived at by an authority after considering all relevant
E factors. If the discretionary power has been exercised in disregard
of relevant consideration, the Court will normally hold the action
bad in law. Relevant, germane and valid considerations cannot
be ignored or overlooked by an executive authority while taking
a decision. It is trite law that Courts in exercise of power under
judicial review do not interfere with selections made by expert
F bodies by reassessing comparative merits of the candidates.
Interference with selections is restricted to decisions vitiated by
bias, mala fides and contrary to statutory provisions. [Para
16][182-D-F]
1.4 By way of implementation of the directions issued by
G this Court in Prakash Singh’s case, UPSC framed Draft Guidelines
for empanelling officers for appointment as DGP (Chief of Police).
Officers belonging to the Indian Police Service of the concerned
cadre, not below the rank of ADG, and who have completed at
least 30 years of service as on the date of occurrence of vacancy
for which the panel is prepared, are eligible for being considered
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 165
for selection and appointment as DGP. Selection, according to A
the Guidelines, shall be merit- based and inclusion in the panel
shall be adjudged on the basis of ‘very good’ record and range of
experience for heading the police force. The Draft Guidelines
empowered the Committee to adopt its own methods and
procedure for objective assessment of the suitability of officers
B
to the zone of consideration. The Committee was obligated to
make assessment of the annual confidential reports of the officers
with reference to the last ten years preceding the date of meeting
of the Committee. Only those officers assessed by the Committee
as at least ‘very good’ for each of the preceding 10 years shall be
considered for inclusion in the panel. According to the Guidelines, C
the Committee shall also take into account the range of
experience, relevant for heading the police force as reflected in
the bio-data of the officers for determining their suitability for
inclusion in the panel. The Guidelines stipulated that the State
Government shall appoint DGP from amongst the three senior-
D
most officers included in the panel. [Para 19, 20][184-A, D-G]
1.5 According to UPSC, the Draft Guidelines were made to
give effect to the directions issued by this Court in Prakash Singh’s
case. The Draft Guidelines were placed before this Court when
the interlocutory application filed by the Government of India for
modification of the judgment dated 22.09.2006 in Prakash Singh’s E
case was being considered. This Court expressed its satisfaction
regarding the procedure and practice followed by UPSC in the
matter of selection to the post of DGP. The Draft Guidelines
referred to the factors to be taken into consideration by the
Empanelment Committee for selection of DGP as per the F
directions issued by this Court in Prakash Singh’s case. Length
of service, very good record and range of experience for heading
the police force are factors to be considered by the Empanelment
Committee. According to UPSC, the range of experience is a
constituent part of the component of merit. In respect of selection
to the post of DGP (HoPF) for the State of Punjab, five core policing G
areas have been identified to assess the range of experience of
the officers concerned for the last 10 years, which are:-
Intelligence, Law and order, Administration, Investigation, and
Security. The selection based on the Draft Guidelines was
H
166 SUPREME COURT REPORTS [2021] 11 S.C.R.
A defended by UPSC on the ground that the Guidelines are in
conformity with the directions issued by this Court in Prakash
Singh’s case. [Para 24][186-G-H; 187-A-E]
1.6 This Court in Prakash Singh’s case directed
empanelment of officers for appointment to the post of DGP by
B UPSC by laying down broad criteria. The implementation of the
directions issued by this Court has to be on objective basis for
which reason the UPSC has framed Draft Guidelines, which are
being followed uniformly since 2009 for selection of DGPs in
several States. Keeping in mind, the seniority of the officers under
consideration, selection is conducted on the basis of very good
C record and range of experience for heading the police force.
Assessment of very good record of service is on the basis of
annual confidential reports for the last 10 years. Range of
experience for heading the police force assessed by the
empanelment committee is done by assessing the performance
D of officers in five core police areas out of 20 policing areas.
Discretion was given to the empanelment committees to select
the core policing areas by taking into account the prevailing
situation in the States. Considering the peculiar situation of the
State of Punjab, intelligence, law and order, administration,
investigation and security were identified as the core policing
E areas to ascertain range of experience of an officer to head the
police force. [Para 25][187-E-H]
1.7 The Draft Guidelines cannot be said to be contrary to
the criteria laid down by this Court in Prakash Singh’s case. The
Guidelines carry forward the directions given by this Court by
F stipulating the objective criteria for guidance of the empanelment
committees. The preparation of a panel on the basis of the Draft
Guidelines after taking into account the core policing areas cannot
be said to be arbitrary. It cannot be said that the core policing
areas were identified only to suit Respondent No. 4. Assessment
G of relative merit of the officers under consideration is within the
domain of the Empanelment Committee, which is given liberty
to adopt its own procedure. Merit of the officers in the zone of
consideration is evaluated on the basis of their record of service
and range of experience. A panel of three officers has been
prepared in the order of seniority. The Appellant was found to be
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 167
inadequate for inclusion in the panel in the range of experience A
for core policing areas. The Tribunal committed an error in
recording the finding that the Empanelment Committee deviated
from the procedure prescribed by this Court in Prakash Singh’s
case. There is no basis for the conclusion of the Tribunal that the
Draft Guidelines are contrary to the directions given by this Court
B
in Prakash Singh’s case. The broad criteria mentioned in the said
case are seniority, very good record of service and range of
experience to head a police force. The Draft Guidelines which
have to be scrupulously followed by empanelment committees
stipulate that a selection should be on the same criteria. In the
instant case, Empanelment Committee decided to assess the C
range of experience of officers to head the police force in the
State of Punjab after considering the peculiarities of the State.
Identification of five core policing areas out of a domain of twenty
policing areas cannot be said to be an arbitrary exercise of power.
The Tribunal committed an error in accepting the submission of
D
the Appellant that the core policing areas, identified by the
Empanelment Committee was only to favour Respondent No.4
on the basis of unsubstantiated allegations. Empanelment was
directed to be done by UPSC on the basis of length of service,
very good record and range of experience for heading the police
force in Prakash Singh’s case. Later, in the order dated E
13.03.2019, this Court clarified its earlier order dated 03.07.2018
and directed UPSC to prepare the panel purely on the basis of
merit. The recommendation of the names of 12 officers for
consideration is on the basis of completion of thirty years’ service
in the cadre of ADGP. Length of service as mentioned in Prakash
F
Singh’s case taken into account for determination of zone of
consideration. The other two factors namely, good record of
service and range of experience of all the 12 officers
recommended on the basis of length of service are assessed by
the Empanelment Committee. Inter se merit of the candidates
was evaluated according to the objective criteria followed by the G
Empanelment Committee. The preparation of panel for
appointment as DGP (HoPF) for the State of Punjab, by the
Empanelment Committee is in compliance of the Draft Guidelines,
which are in conformity with the directions issued by this Court
in Prakash Singh’s case as the panel was prepared after taking
H
168 SUPREME COURT REPORTS [2021] 11 S.C.R.
A into account the relevant considerations as directed by this Court
in Prakash Singh’s case and stipulated in the Draft Guidelines.
As no irrelevant consideration prompted the decision, the
preparation of the panel by the Empanelment Committee cannot
be said to be irrational. Having regard to the nature of the function
and the power confided to the Selection Committee, it is not a
B
legal requirement that reasons should be recorded for its
conclusion The Tribunal committed an error in holding the
decision of the Committee as arbitrary in the absence of reasons.
Therefore, the preparation of the panel by the Empanelment
Committee cannot be said to be suffering from unreasonableness.
C [Para 26][188-A-H; 189-A-E]
1.8 The Appellant contended that Respondent No. 5 ought
to have recused himself from the Empanelment Committee as
he is inimically disposed of towards him. The Appellant argued
that he was appointed to head a special investigation team by the
D High Court of Punjab and Haryana to investigate the involvement
of law enforcement authorities in drug trafficking and he unearthed
material against senior police officers. He was falsely implicated
in a criminal case involving the suicide of ISC. It is the case of
the Appellant that he submitted a status report to the High Court
on 18.05.2018 in a sealed cover in which he has mentioned about
E the involvement of Respondent No.4 and Respondent No.5 in
drug trafficking. The Appellant referred to the recusal of
Respondent No.5 earlier when he was asked to write his
performance appraisal report. Finally, the Appellant submitted
that the preparation of panel is vitiated due to bias of the
F Respondent No.5. On the other hand, it was submitted by the
Respondents that the Appellant was involved in the suicide of
ISC. The special investigation team headed by the Appellant
submitted two reports on 01.02.2018 and 15.03.2018 before the
High Court in which there is no mention of either Respondent
No.4 or Respondent No. 5. The sealed cover submitted by the
G Appellant before the High Court was without consulting the other
two members of the special investigation team. It was further
submitted that Respondent No. 5, being the DGP of a State, could
not have recused himself from being a member of the
Empanelment Committee. It is also argued that the Appellant
H has not raised any objection regarding the participation of
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 169
Respondent No.5 in the selection proceedings. Doctrine of A
necessity was pressed into service by the Respondents to submit
that Respondent No.5 could not have recused himself from the
Empanelment Committee. [Para 27][189-E-G; 190-A-C]
1.9 The plea of bias did not find favour with the Tribunal or
the High Court. The doctrine of necessity applies only in case a B
committee is constituted by a statute or a statutory rule. In other
words, if the committee is constituted under an administrative
order there can be no difficulty in an officer recusing himself and
requesting another officer to be substituted in his place. Even if
a plea of bias is not raised earlier, it can be raised during the
proceedings in judicial review. Further, even if bias is not a direct C
cause of the decision, the test is one of mere likelihood of bias,
which means a substantial possibility of bias. [Para 28][190-D-F]
1.10 In exercise of its power under Articles 32 and 142 of
the Constitution of India, this Court directed UPSC to constitute
an empanelment committee to recommend three senior-most D
officers with good record of service and range of experience, and
meeting other parameters, from whom the DGP shall be selected
and appointed by the State Government. The incumbent DGP of
the State is a member of the empanelment committee according
to the Draft Guidelines issued by the UPSC. These Guidelines E
issued in compliance with the directions given by this Court under
Article 142 of the Constitution of India, are well-known and in
public domain. Therefore, the position that Respondent No.5,
being the DGP, would be a member of the Empanelment
Committee was within the knowledge of the Appellant. Ignorance
of this factum when pretended must be rejected as a mere F
pretence. The two Appellants are not laymen, but senior police
officers aspiring for the appointment to the top police position in
the State. The article published in the Hindustan Times, dated
30th January 2019, titled “DGP’s appointment – All eyes on
UPSC’s February 4 meet”, states that as per the information G
gathered from officials privy to the development, the UPSC
meeting will be held in Delhi and would be attended by the Punjab
Chief Secretary Mr. Karan Avtar Singh and the incumbent DGP
H
170 SUPREME COURT REPORTS [2021] 11 S.C.R.
A Mr. Suresh Arora, i.e., Respondent No.5. In the given facts and
considering the position and status of the Appellant, the plea that
participation of Respondent No.5 in the Empanelment Committee
was unknown or a secret for the Appellants cannot be accepted.
[Para 29][190-F-G; 191-A-D]
B 1.11 It is to be examined whether the Appellants are
estopped from challenging the recommendations made by the
Empanelment Committee, given the fact that they had taken a
calculated chance, and not protested till the selection panel was
made public. In the instant case, the Appellant too had taken a
calculated chance in spite of the stakes, that too without protest,
C and then has belatedly raised the plea of bias and prejudice only
when he was not recommended. [Para 30][191-D-E, F]
Madan Lal and Others v. State of Jammu and Kashmir
and Others (1995) 3 SCC 486 : [1995] 1 SCR 908 –
relied on.
D
1.12 It is not necessary for this Court to delve further into
the allegations and submissions based on assertion of bias and
prejudice. There is no error committed by the High Court in
setting aside the judgment of the tribunal and upholding the
selection and appointment of Respondent No.4 as DGP (HoPF),
E State of Punjab. [Para 37, 38][196-G; 197-A]
P. D. Dinakaran (1) v. Judges Inquiry Committee and
Others (2011) 8 SCC 380 : [2011] 10 SCR 1064;
Prakash Singh v. Union of India (2006) 8 SCC 1 :
[2006] 6 Suppl. SCR 473 – relied on.
F
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
: [1981] 1 SCR 206; Kesavananda Bharati v. State of
Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; S. R.
Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2
SCR 644; Ram Avtar Sharma v. State of Haryana (1985)
G 3 SCC 189 : [1985] 3 SCR 686; State of U.P. v. Raja
Ram Jaiswal (1985) 3 SCC 131 : [1985] 3 SCR 1021;
Sheonandan Paswan v. State of Bihar & Others (1983)
1 SCC 438 : [1983] 2 SCR 61; Sant Raj v. O.P. Singla
(1985) 2 SCC 349 : [1985] 3 SCR 623; Sachidanand
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 171
Pandey v. State of WB (1987) 2 SCC 295 : [1987] 2 A
SCR 223; Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan
(1990) 1 SCC 305; Badrinath v. State of T.N. (2000) 8
SCC 395 : [2000] 3 Suppl. SCR 573; National Institute
of Mental Health and Neuro Sciences v. Dr. K. Kalyana
Raman (1992) 2 Suppl. SCC 481; Major General I. P.
B
S Dewan v. Union of India (1995) 3 SCC 383 : [1995]
2 SCR 532; Union Public Service Commission v.
Hiranyalal Dev (1988) 2 SCC 242 : [1988] 3 SCR 302;
M. V. Thimmaiah v. UPSC (2008) 2 SCC 119 : [2007]
13 SCR 624; UPSC v. Sathiyapriya (2018) 15 SCC
796 : [2018] 6 SCR 701; UPSC v. K. Rajaiah & Ors. C
(2005) 10 SCC 15; Union Public Service Commission
v. Arun Kumar Sharma & Ors. (2015) 12 SCC 600;
Baidyanath Yadav v. Aditya Narayan Roy & Ors. (2020)
16 SCC 799 : [2019] 15 SCR 427; Rattan Lal Sharma
v. Managing Committee, Dr. Hari Ram (Co-Education)
D
Higher Secondary School and Others (1993) 4 SCC
10 : [1993] 3 SCR 863; Om Prakash Shukla v. Akhilesh
Kumar Shukla and Others (1986) Suppl. SCC 285 :
[1986] SCR 855; Manish Kumar Shahi v. State of Bihar
and Others (2010) 12 SCC 576; Ramesh Chandra Shah
and Others v. Anil Joshi and Others (2013) 11 SCC E
309 : [2013] 5 SCR 687; Dr. G. Sarana v. University of
Lucknow and Others (1976) 3 SCC 585 : [1977] 1 SCR
64; Madras Institute of Development Studies and
Another v. K. Sivasubramaniyan and Others (2016) 1
SCC 454 : [2015] 14 SCR 276; Ashok Kumar Yadav
F
and Others v. State of Haryana and Others (1985) 4
SCC 417 : [1985] 1 Suppl. SCR 657; A.K. Kraipak
and Others v. Union of India and Others (1969) 2 SCC
262; Ranjit Thakur v. Union of India and Others (1987)
4 SCC 611 : [1988] 1 SCR 512; Shri Lachoo Mal v.
Shri Radhey Shyam (1971) 1 SCC 619; Manak Lal G
(Shri), Advocate v. Prem Chand Singhvi and Others AIR
1957 SC 425 : [1957] SCR 575 – referred to.
Council of Civil Service Unions and others v. Minister
for Civil Service [1985] AC 374; Associated Provincial
H
172 SUPREME COURT REPORTS [2021] 11 S.C.R.
A Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All
ER 680; Padfield v. Minister of Agriculture [1968] 1
All ER 694 – referred to.
Case Law Reference
[1981] 1 SCR 206 referred to Para 13
B
[1973] Suppl. SCR 1 referred to Para 13
[1994] 2 SCR 644 referred to Para 13
[1985] 3 SCR 686 referred to Para 16
[1985] 3 SCR 1021 referred to Para 16
C
[1983] 2 SCR 61 referred to Para 16
[1985] 3 SCR 623 referred to Para 16
[1987] 2 SCR 223 referred to Para 16
D (1990) 1 SCC 305 referred to Para 16
[2000] 3 Suppl. SCR 573 referred to Para 16
(1992) 2 Suppl. SCC 481 referred to Para 16
[1995] 2 SCR 532 referred to Para 16
E [1988] 3 SCR 302 referred to Para 16
[2007] 13 SCR 624 referred to Para 16
[2018] 6 SCR 701 referred to Para 16
[2006] 6 Suppl. SCR 473 relied on Para 19,
F 22-26, 28
(2005) 10 SCC 15 referred to Para 26
(2015) 12 SCC 600 referred to Para 26
[2019] 15 SCR 427 referred to Para 26
G
[1993] 3 SCR 863 referred to Para 28
[1995] 1 SCR 908 relied on Para 30
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 173
[1986] SCR 855 referred to Para 30 A
(2010) 12 SCC 576 referred to Para 30
[2013] 5 SCR 687 referred to Para 30
[1977] 1 SCR 64 referred to Para 31
[2015] 14 SCR 276 referred to Para 32 B
[1985] 1 Suppl. SCR 657 referred to Para 34
[1988] 1 SCR 512 referred to Para 35
[2011] 10 SCR 1064 relied on Para 36
C
(1971) 1 SCC 619 referred to Para 36
[1957] SCR 575 referred to Para 36
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6905
of 2021.
From the Judgment and Order dated 06.11.2020 of the High Court D
of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 1608 of
2020.
With
Civil Appeal Nos. 6906-6909 of 2021.
E
Krishnan Venugopal, Paramjit Singh Patwalia, Sr Advs., Ms. Pooja
Dhar, Gaurav Ray, Shivendra Singh, Ejaz Maqbool, Saif Zia, Advs. for
the Appellant.
Atul Nanda, AG, Ms. Aishwarya Bhati, Aman Lekhi, ASGs,
R. Balasubramanian, Mukul Rohatgi, Shyam Divan, Maninder Singh, F
Sr. Advs., Ms. Shradha Deshmukh, Shyam Gopal, Anukalp Jain, B. V.
Balaram Das, Naresh Kaushik, Vardhman Kaushik, Manoj Joshi,
Ms. Lalitha Kaushik, Nishant Gautam, B. Purushottama Reddy, Yogesh
Yadav, Ujjwal Sinha, Ms. Mehak Huria, Ritwiz Rishabh, Aniket Seth,
Paranjay Chopra, Ms. Himanjali Gautam, Vardhman Kaushik,
Ms. Ranjeeta Rohatgi, Ms. Samten Doma, Karan Bharihoke, Siddhant G
Sharma, Ms. Sanam Tripathi, Ms. Uttara Babbar, Manan Bansal, Prabhas
Bajaj, Advs. for the Respondents.
H
174 SUPREME COURT REPORTS [2021] 11 S.C.R.
A The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
Leave granted.
1. Aggrieved by the order dated 07.02.2019 passed by the
B Governor of Punjab by which Mr. Dinkar Gupta was appointed as Director
General of Police (Head of Police Force) (hereinafter referred to “DGP
(HoPF)”), the Appellants filed original applications before the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh. By an order
dated 17.01.2020, the Tribunal set aside the order dated 07.02.2019 on
the ground that preparation of the panel for selection of DGP (HoPF)
C for the State of Punjab was in contravention of a judgement of this
Court in Prakash Singh v. Union of India1 apart from others. Further,
a direction was given to the Union Public Service Commission (hereinafter
referred to as “UPSC”) and the State of Punjab to conduct selection for
the post of DGP (HoPF), State of Punjab afresh. The judgement of the
D Central Administrative Tribunal was challenged in the High Court of
Punjab and Haryana by the UPSC, the State of Punjab and Mr. Dinkar
Gupta. Mr. Siddharth Chattopadhyaya, the Appellant in Civil Appeal arising
out of SLP (Civil) No.14982-14985 of 2020, also filed a Writ Petition
aggrieved by the rejection of the plea of bias. Writ Petitions filed by
UPSC, the State of Punjab and Mr. Dinkar Gupta were allowed by the
E High Court and the judgement of the Tribunal was set aside. Writ Petition
filed by Mr. Siddharth Chattopadhyaya (hereinafter referred to as “the
Appellant”) was dismissed. These appeals are filed assailing the legality
and validity of the judgement of the High Court dated 06.11.2020.
2. Mohd. Mustafa, the Appellant in Civil Appeal arising out of
F SLP (C) No.14623 of 2020, retired on attaining the age of superannuation
during the pendency of these appeals. As the contentions raised by
Appellants in both the civil appeals are similar, we shall refer to the facts
of Civil Appeal arising out ofSLP (C) Nos. 14982-14985 of 2020.
Mr. Siddharth Chattopadhyaya was inducted to Indian Police Service in
G 1986 and allocated to Punjab cadre. The post of DGP (HoPF), State of
Punjab was required to be filled up due to the ensuing retirement of
Mr. Suresh Arora. A letter was written by the Union of India on 19.01.2019
to Respondent No.1-UPSC to initiate the process for appointment to the
post of DGP (HoPF) for the State of Punjab. A list of 12 officers who
1
H (2006) 8 SCC 1
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 175
[L. NAGESWARA RAO, J.]
were working in the rank of DGP/additional DGP and who had completed A
thirty years of service was forwarded by the State of Punjab. The
Appellant was included in the said list.
3. The Empanelment Committee constituted by the UPSC finalised
a panel consisting of Mr. Dinkar Gupta-Respondent No. 4, Mr. M.K.
Tiwari- Respondent No.6 and Mr. V.K. Bhawra Respondent No.7. The B
State Government selected and appointed Respondent No.4 as DGP
(HoPF) from the said panel. Challenging the selection and appointment
of Respondent No.4 as DGP (HoPF), the Appellant and Mohd. Mustafa
filed Original Applications in the Central Administrative Tribunal. The
Tribunal, by its order dated 17.01.2020, allowed the Original Applications
and set aside the panel prepared by the Empanelment Committee on C
04.02.2019. Consequently, the selection and appointment of Respondent
No.4 as DGP (HoPF) was set aside. The Tribunal directed preparation
of a panel of three senior-most officers afresh strictly in accordance
with the judgment of this Court in Prakash Singh’s case (supra).
4. The Tribunal was of the opinion that this Court in Prakash D
Singh’s case settled the parameters to be followed for selection of the
Director Generals of Police. UPSC deviated from the procedure
prescribed by this Court, rendering the selection invalid. The Tribunal
held that this Court specified three factors which have to be followed
for selection of DGP. Seniority, being one of the factors, along with good E
record of service and range of experience to head a police force was
not given due importance by the Empanelment Committee in finalising
the panel. Draft Guidelines 2009 framed by UPSC (hereinafter referred
to as “Draft Guidelines”) have no authenticity or legality, according to
the Tribunal. Identification of five core policing areas from the domain
of twenty policing areas is without any basis. In addition, the Tribunal F
held that the identification of the core policing areas was to suit the
selected candidate. Preparation of the panel consisting three persons
was also found fault with due to no reasons being assigned.
5. Aggrieved by the judgment of the Tribunal, Writ Petitions were
filed in the High Court of Punjab and Haryana. The High Court framed G
the following questions for determination:
1) What is the scope of judicial review/interference by the
High Court under Article 226 of the Constitution of
India, 1950 against the decision of the Administrative
Tribunal (in short “Tribunal”}? H
176 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 2) (a) Whether the Draft Guidelines 2009 issued by the
UPSC detailing the procedure and modalities for
selection of panel for DGP (HoPF} are patently opposed
and violative of the directions issued in Prakash Singh’s
case (supra} and the findings of the Tribunal contrary
to the same are sustainable?
B
(b) Whether the Core Policing Areas being adopted by
the Empanelment Committee for assessment on the aspect
of ‘range of experience’ State wise on cases to case
basis are in contravention of the Supreme Court
directions in Prakash Singh’s case (supra} and whether
C the 5 Core Policing Areas chosen in the present case
are is legal and valid? \
(c) Whether in view of the findings of this Court to the
issues at (a} and (b} above, the findings of the Tribunal
are sustainable?
D
3) (a) What is the scope of judicial review in matter of the
empanelment and selection by the Selection/
Empanelment Committee?
(b) Whether the Tribunal exceeded the said power of
E judicial review in selection of DGP (HoPF} by the UPSC
in February 2019?
4) Whether the impugned order dated 17.01.2020 of the
Tribunal is liable to be set aside and the consequential
relief?
F 6. The High Court held that this Court in Prakash Singh’s case
has laid down broad guidelines for selection to the post of DGP on the
basis of assessment of officers by considering length of service, very
good record and range of experience for heading the police force. The
Draft Guidelines were framed by UPSC for implementation of directions
issued by this Court in Prakash Singh’s case. The conclusion of the
G
Tribunal that the Draft Guidelines have no authenticity was set aside by
the High Court on the ground that the Draft Guidelines have been approved
by this Court. The jurisdiction of UPSC in formulating Draft Guidelines
and giving discretion to the Empanelment Committee to follow its own
procedure was upheld by the High Court. Selection of five core policing
H areas for assessment of the officers from the State of Punjab was
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 177
[L. NAGESWARA RAO, J.]
approved by the High Court. Relying upon judgments of this Court, the A
High Court observed that there was no requirement for recording reasons
while finalising the selection of DGPs. The High Court held that the
Tribunal encroached into the domain of the experts in setting aside the
selection made by UPSC. The High Court was in agreement with the
Tribunal that the Appellant failed to make out a case of bias. Finally, the
B
High Court set aside the judgment of the Tribunal and upheld the selection
and appointment of Respondent No.4 as DGP (HoPF).
7. We have heard Mr. Krishnan Venugopal, learned Senior
Counsel for the Appellant in Civil Appeal arising out of SLP (C) Nos.
14982-14985 of 2020, Mr. P.S. Patwalia, learned Senior Counsel for the
Appellant in Civil Appeal arising out of SLP (C) No.14623 of 2020, Mr. C
Aman Lekhi, learned Additional Solicitor General for the Respondent
No.1-UPSC, Mr. Mukul Rohatgi, learned Senior Counsel for the State
of Punjab, Mr. Maninder Singh, learned Senior Counsel for Respondent
No.4 and Mr. Shyam Divan, learned Senior Counsel for Respondent
No.5. D
8. Mr. Krishnan Venugopal, learned Senior Counsel appearing for
the Appellant in Civil Appeal arising out of SLP (C) Nos. 14982-14985
of 2020, argued that the empanelment and appointment of Respondent
No. 4 as DGP (HoPF) is vitiated by bias. Respondent No.5 who was a
member of the Empanelment Committee was prejudiced against the E
Appellant due to the report filed by the Appellant before the Punjab and
Haryana High Court in Civil Writ Petition No. 20359 of 2013 titled as
‘Court on its own motion v. State of Punjab and Another’ in which
Respondent No.5 was found to be involved in criminal activities. On
earlier occasions Respondent No. 5 recused himself in matters relating
to the Appellant and, therefore, Respondent No.5 ought not to have F
participated in the selection process. Accordingly, the decision of the
Empanelment Committee of which Respondent No.5 was a member is
not bonafide and is liable to be set aside. The Appellant contended that
the Draft Guidelines have no legal sanctity. The criteria laid down by the
Draft Guidelines is contrary to the judgement of this Court in Prakash G
Singh’s case. The Draft Guidelines cannot be considered as statutory
rules or regulations. It was further submitted on behalf of the Appellant
that the five core policing areas that were identified by the Empanelment
Committee out of twenty policing areas as criteria for assessment of
officers’ range of experience to head a police force were tailor-made to
H
178 SUPREME COURT REPORTS [2021] 11 S.C.R.
A suit Respondent No. 4. Due weightage has not been accorded to seniority
as laid down by this Court in Prakash Singh’s case. Admittedly, the
Appellant is senior to Respondent No.4 and could not have been
overlooked unless there are justifiable reasons for his supersession.
According to the Appellant, the list of 12 officers working as additional
DGP/DGP could not have been forwarded by the State of Punjab for
B
selection and appointment to one post of DGP. Mr. P. S. Patwalia, learned
Senior Counsel appearing for the Appellant in Civil Appeal arising out of
SLP (C) No.14623 of 2020, submitted that Mr. Mohd. Mustafa has
maximum gallantry awards and has a meritorious record of service. He
was not empanelled due to faulty selection procedure adopted by UPSC.
C 9. Mr. Aman Lekhi, learned Additional Solicitor General, countered
the submissions made on behalf of the Appellants by arguing that the
Draft Guidelines were approved by this Court. He submitted that the
Draft Guidelines were framed by the UPSC to give effect to the judgement
of this Court in Prakash Singh’s case. The five core policing areas that
D were identified for empanelment out of twenty domain assignments
usually allocated to police officers was done after taking into account
the peculiar situation and requirement of the State of Punjab. The criteria
laid down by this Court in Prakash Singh’s case is part of the Draft
Guidelines and the Tribunal committed an error in holding the Guidelines
to be contrary to the said judgement. Respondent No.5, being the then
E DGP (HoPF), was included as a member of the Empanelment Committee
and the Appellants did not raise any objection to his participation in the
deliberations of the Empanelment Committee. It was contended that the
assessment by the Empanelment Committee being strictly in accordance
with the Draft Guidelines and the judgement of this Court in Prakash
F Singh’s case, the selection and appointment of Respondent No.4 as
DGP (HoPF) is valid. The Empanelment Committee is not required to
record any reasons.
10. Mr. Mukul Rohatgi, learned Senior Counsel appearing for the
State of Punjab, contended that the zone of consideration according to
G clause 2 of Draft Guidelines is restricted to the cadre of ADGP/DGP to
officers who have completed 30 years of service. The Draft Guidelines
contained three requirements, namely (i) length of service (ii) very good
record and (iii) range of experience. Identification of five core policing
areas from amongst twenty policing areas for assessment of merit of
officers was done by the Empanelment Committee by taking into account
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 179
[L. NAGESWARA RAO, J.]
the special needs of the State of Punjab. Courts should show deference A
to the decision of experts in the matter of selections. The State raised
serious objection to the allegation of bias made by the Appellants against
Respondent No.4 and 5. Mr. Rohatgi stated that the Appellant abused
his position as the head of a special investigation team by filing a report
which was not signed by the other members of the team to tarnish the
B
reputation of Respondent No. 4 and 5. Mr. Rohatgi stated that the report
filed by the Appellant without the signatures of the other members of the
Committee is still lying in a sealed cover before the High Court. It was
submitted on behalf of the State that the Appellant was fully aware of
initiation of the process for appointment of DGP and the presence of
Respondent No.5 in the Committee but did not raise any objection to his C
continuance in the Empanelment Committee. The Appellant cannot be
permitted to raise a bogey of bias at this late hour. In any event,
Respondent No.5 was required to continue in the Empanelment
Committee as per the doctrine of necessity. The State Government
refuted the contention of the Appellant that there was suppression of
D
relevant record. It was argued that the relevant record was sent to the
Public Service Commission. The State Government cannot be accused
of favouring Respondent No.4 by not sending the said report to the Public
Service Commission. Mr. Rohatgi submitted that the Draft Guidelines
have been followed for empanelment and selection of a number of DGPs
in several States. The Empanelment Committee comprises of senior E
officers of which Respondent No.5 is one member. The selection cannot
be said to be biased when the allegation of prejudice is against one member
of a multi-member Committee.
11. Mr. Maninder Singh, learned Senior Counsel, stated that
Respondent No.4 has an exemplary record of service and is a highly F
decorated officer with more medals than the Appellant. Responding to
submissions of the Appellant pertaining to the report filed in the High
Court, Respondent No.4 contended that there is a sinister motive on the
part of the Appellant in trying to mislead this Court that the said report
was filed by the special investigation team. In fact, two reports were
filed by the special investigation team on 01.02.2018 and 15.03.2018. G
The said reports were signed by all the members of the Committee in
which no allegations were made against Respondent No.4. Later, another
report was filed by the Appellant alleging that Respondent No.4 was
involved in certain criminal activities. The said report was given in a
sealed cover to the Court. The other members of the Committee have H
180 SUPREME COURT REPORTS [2021] 11 S.C.R.
A gone on record to state that they were not consulted before the said
report was filed before the Court nor do they have any knowledge about
the contents of the report. The Appellant was facing a criminal charge
in a case registered under Section 306 IPC and had engineered the
report only for the purpose of maligning Respondent No.4 to steal a
march over him for selection and appointment as DGP. Mr. Maninder
B
Singh argued that the Draft Guidelines which are strictly in conformity
with the directions issued by this Court in Prakash Singh’s case have
not been challenged in spite of which the Tribunal held them to be in
contravention of the directions in Prakash Singh’s case. He further
submitted that Mr. Mustafa has retired on attaining the age of
C superannuation and the Appellant has service of less than six months
left and cannot be considered for appointment as DGP even if he succeeds
in this appeal.
12. Mr. Shyam Divan, learned Senior Counsel for Respondent
No.5, submitted that the plea of bias as alleged by the Appellant was
D rejected by both the Tribunal and the High Court which does not warrant
any interference by this Court. As the Director General of Police,
Respondent No.5 was duty bound to be a member of the Empanelment
Committee. The allegation of bias is baseless and created only for the
purpose of succeeding in the challenge to the selection and appointment
of Respondent No.4 as DGP (HoPF). Moreover, no objection was raised
E by the Appellants for the participation of Respondent No.5 in the
Empanelment Committee.
13. Judicial review may be defined as a Court’s power to review
the actions of other branches or levels of government; especially the
Court’s power to invalidate legislative and executive actions as being
F unconstitutional2. Power of judicial review is within the domain of the
judiciary to determine the legality of administrative action and the validity
of legislations and it aims to protect citizens from abuse and misuse of
power by any branch of the State3. The power of judicial review is a
basic feature of the Constitution of India4. Judicial review has certain
G inherent limitations. However, it is suited more for adjudication of disputes
other than for performing administrative functions. It is for the executive
to administer law and the function of the judiciary is to ensure that the
2
Black’s Law Dictionary
3
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
H 4
Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 181
[L. NAGESWARA RAO, J.]
Government carries out its duties in accordance with the provisions of A
the Constitution5.
14. The grounds on which administrative action is subject to judicial
review are illegality, irrationality and procedural impropriety. The following
observations made by Lord Diplock in Council of Civil Service Unions
and others v. Minister for Civil Service6 are apt: B
“By ‘illegality’ as a ground for judicial review I mean that the
decision-maker must understand correctly the law that
regulates his decision-making power and must give effect to
it. Whether he has or not is par excellence a justiciable
question to be decided, in the event of dispute, by those C
persons, the judges, by whom the judicial power of the state
is exercisable.
By ‘irrationality’ I mean what can by now be succinctly
referred to as ‘Wednesbury unreasonableness’. It applies to a
decision which is so outrageous in its defiance of logic or of D
accepted moral standards that no sensible person who had applied
his mind to the question to be decided could have arrived at it.
Whether a decision falls within this category is a question that judges
by their training and experience should be well equipped to answer,
or else there would be something badly wrong with our judicial
system. To justify the Court’s exercise of this role, resort I think is E
today no longer needed to Viscount Radcliff’s ingenious explanation
in Edwards (Inspector of Taxes) v. Bairstow, of irrationality as a
ground for a court’s reversal of a decision by ascribing it to an
inferred though unidentifiable mistake of law by the decision makers.
“Irrationality” by now can stand on its own feet as an accepted F
ground on which a decision may be attacked by judicial review.
I have described the third head as “procedural impropriety”
rather than failure to observe basic rules of natural justice or failure
to act with procedural fairness towards the person who will be
affected by the decision. This is because susceptibility to judicial G
review under this head covers also failure by an administrative
tribunal to observe procedural rules that are expressly laid down in
the legislative instrument by which its jurisdiction is conferred, even
5
S.R. Bommai v. Union of India (1994) 3 SCC 1
6
[1985] AC 374 H
182 SUPREME COURT REPORTS [2021] 11 S.C.R.
A where such failure does not involve any denial of natural justice.
But the instant case is not concerned with the proceedings of an
administrative tribunal at all”.
15. The discretionary power vested in an administrative authority
is not absolute and unfettered. In Wednesbury, Lord Greene was of the
B opinion that discretion must be exercised reasonably. Explaining the
concept of unreasonableness, Lord Greene stated that a person entrusted
with discretion must direct himself properly in law and that he must call
his own attention to the matter which he is bound to consider. He observed
that the authority must exclude from his consideration matters which
are irrelevant to the matter he is to consider. Lord Greene concluded
C that if an authority does not obey aforementioned rules, he may truly be
said, and often is said, to be acting unreasonably.7
16. Conditions prompted by extraneous or irrelevant considerations
are unreasonable and liable to be set aside by Courts in exercise of its
power under judicial review8. (See: State of U.P. v. Raja Ram Jaiswal9,
D Sheonandan Paswan v. State of Bihar & Others10, Sant Raj v. O.P.
Singla11, Padfield v. Minister of Agriculture12). A decision can be
arrived at by an authority after considering all relevant factors13. If the
discretionary power has been exercised in disregard of relevant
consideration, the Court will normally hold the action bad in law14.
E Relevant, germane and valid considerations cannot be ignored or
overlooked by an executive authority while taking a decision15. It is trite
law that Courts in exercise of power under judicial review do not interfere
with selections made by expert bodies by reassessing comparative merits
of the candidates. Interference with selections is restricted to decisions
vitiated by bias, mala fides and contrary to statutory provisions. (See:
F Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan16, Badrinath v. State
of T.N.17, National Institute of Mental Health and Neuro Sciences
7
Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680
8
Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189
9
(1985) 3 SCC 131
10
G (1983) 1 SCC 438
11
(1985) 2 SCC 349
12
[1968] 1 All ER 694
13
Sachidanand Pandey v. State of WB, (1987) 2 SCC 295
14
H.W.R. Wade & C.F. Forsyth in the 10th Edition of Administrative Law (2009)
15
C.K. Thakker Administrative Law, Second Edition page 801
16
(1990) 1 SCC 305
17
H (2000) 8 SCC 395
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 183
[L. NAGESWARA RAO, J.]
v. Dr. K. Kalyana Raman18, Major General I. P. S Dewan v. Union A
of India19, Union Public Service Commission v. Hiranyalal Dev20,
M. V. Thimmaiah v. UPSC21 and UPSC v. Sathiyapriya22).
17. Keeping in mind the aforestated principles of law, we proceed
to examine whether the selection and appointment of Respondent No.4
as DGP (HoPF) on the basis of the Draft Guidelines is contrary to the B
judgment of this Court in Prakash Singh’s case, suffers from the vice
of irrationality and is vitiated due to malice and bias.
18. The Government of India appointed a National Police
Commission on 15.11.1977 for reviewing the role and performance of
the police as well as law enforcement agencies and as an institution to C
protect the rights of the citizens enshrined under the Constitution.
Recommendations made by the Commission were not implemented giving
rise to a writ petition under Article 32 of the Constitution of India filed by
a retired Director General of Police, Prakash Singh in which directions
were sought for framing a new Police Act on the lines of Model Act
drafted by the Commission. The writ petition was disposed of by this D
Court on 22.09.2006 by its judgment in Prakash Singh’s case in which
several directions pertaining to the State Security Commission, selection
and minimum tenure of the Director General of Police, minimum tenure
of the Inspector General of Police and other officers, separation of
investigation, police establishment board, police complaining authority E
and National Security Commission were given. The said directions were
issued under Article 32, read with Article 142, of the Constitution of
India which were directed to be implemented till the legislature passes
the appropriate legislations. In so far as the selection and minimum tenure
of DGP is concerned, this Court directed that the UPSC shall empanel
three senior-most officers of the Department for promotion to the rank F
of DGP on the basis of their length of service, very good record and
range of experience for heading the police force. The State Government
shall select the DGP from amongst the three senior-most officers
empanelled by the UPSC. A minimum tenure of at least two years,
irrespective of the date of superannuation, has been fixed by this Court. G
18
1992 Supp (2) SCC 481
19
(1995) 3 SCC 383
20
(1988) 2 SCC 242
21
(2008) 2 SCC 119
22
(2018) 15 SCC 796 H
184 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 19. By way of implementation of the directions issued by this
Court in Prakash Singh’s case, UPSC framed Draft Guidelines for
empanelling officers for appointment as DGP (Chief of Police). The
composition of the Empanelment Committee is as under: -
a) Chairman, or in his absence, Member, UPSC – President.
B b) Home Secretary to the Government of India or his nominee
not below the rank of Special Secretary to the Government of
India.
c) Chief Secretary of the State Government concerned.
C d) Director General of Police of the State Government concerned.
e) An officer from amongst the head of CPOs/CPMFs not
belonging to the cadre for which selection is being made,
nominated by the Government of India, Ministry of Home
Affairs.
D 20. Officers belonging to the Indian Police Service of the concerned
cadre, not below the rank of ADG, and who have completed at least 30
years of service as on the date of occurrence of vacancy for which the
panel is prepared, are eligible for being considered for selection and
appointment as DGP. Selection, according to the Guidelines, shall be
merit-based and inclusion in the panel shall be adjudged on the basis of
E
‘very good’ record and range of experience for heading the police force.
The Draft Guidelines empowered the Committee to adopt its own methods
and procedure for objective assessment of the suitability of officers to
the zone of consideration. The Committee was obligated to make
assessment of the annual confidential reports of the officers with
F reference to the last ten years preceding the date of meeting of the
Committee. Only those officers assessed by the Committee as at least
‘very good’ for each of the preceding 10 years shall be considered for
inclusion in the panel. According to the Guidelines, the Committee shall
also take into account the range of experience, relevant for heading the
police force as reflected in the bio-data of the officers for determining
G
their suitability for inclusion in the panel. The Guidelines stipulated that
the State Government shall appoint DGP from amongst the three senior-
most officers included in the panel.
21. On 03.07.2018, this Court disposed of an application filed for
modification of the judgment in Prakash Singh’s case by giving the
H following directions: -
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 185
[L. NAGESWARA RAO, J.]
6.1. All the States shall send their proposals in anticipation A
of the vacancies to the Union Public Service Commission,
well in time at least three months prior to the date of retirement
of the incumbent on the post of Director General of Police;
6.2 The Union Public Service Commission shall prepare the
panel as per the directions of this Court in the judgment in B
Prakash Singh’s case(supra) and intimate to the States;
6.3 The State shall immediately appoint one of the persons
from the panel prepared by the Union Public Service
Commission;
6.4 None of the States shall ever conceive of the idea of C
appointing any person on the post of Director General of
Police on acting basis for there is no concept of acting
Director General of Police as per the decision in Prakash
Singh’s case(supra);
6.5 An endeavour has to be made by all concerned to see D
that the person who was selected and appointed as the Director
General of Police continues despite his date of
superannuation. However, the extended term beyond the date
of superannuation should be a reasonable period. We say so
as it has been brought to our notice that some of the States E
have adopted a practice to appoint the Director General of
Police on the last date of retirement as a consequence of which
the person continues for two years after his date of
superannuation. Such a practice will not be in conformity
with the spirit of the direction.
F
6.6 Our direction No.(c) should be considered by the Union
Public Service Commission to mean that the persons are to be
empanelled, as far as practicable, from amongst the people
within the zone of consideration who have got clear two years
of service. Merit and seniority should be given due weightage.
G
6.7 Any legislation/rule framed by any of the States or the
Central Government running counter to the direction shall
remain in abeyance to the aforesaid extent.
22. It is relevant to note that the State of Punjab enacted Punjab
Police Act, 2007, subsequent to the decision of this Court in Prakash
H
186 SUPREME COURT REPORTS [2021] 11 S.C.R.
A Singh’s case. According to Section 6 of the said Act, the DGP shall be
selected by the State Government from amongst the Indian Police Service
officers and on appointment, the DGP shall have a tenure of not less
than two years. The validity of the said Act was challenged in Writ
Petition No.286 of 2013. The State of Punjab filed I.A. No. 144172 of
2018 for modification of the order dated 03.07.2018, seeking liberty to
B
appoint DGP in accordance with the Punjab Police Act, 2007. While
examining the contention of the State of Punjab, this Court summoned
Mr. Rakesh Kumar Gupta, Secretary, UPSC to appear on 15.01.2019.
Mr. Gupta submitted before this Court that committees have been
constituted by the UPSC for selection of DGPs and panels have been
C drawn by the Committees in respect of 12 States. This Court refused to
modify the order dated 03.07.2018 after being satisfied with the procedure
adopted by UPSC to carry out the directions of this Court. As some
State Governments were appointing DGP on the last date of service of
the incumbent to enable the officer to get an extendable term of two
years, this Court by an order dated 13.03.2019 clarified that empanelment
D
of an officer for consideration for appointment to the post of DGP should
be only in case of a minimum residual tenure of six months. In other
words, only those officers who have at least six months of service prior
to their retirement shall be considered for appointment to the post of
DGP.
E 23. The contention of the Appellant is that the criteria fixed by
this Court in Prakash Singh’s case was not followed in letter and spirit
by the Empanelment Committee of UPSC while conducting selection to
the post of DGP (HoPF). The Draft Guidelines are contrary to the
directions given by this Court in Prakash Singh’s case and therefore,
F the selection of Respondent No.4 is liable to be set aside. Selection of
five core policing areas for evaluation of merit of the officers in respect
of range of experience is arbitrary and is tailor-made to suit Respondent
No.4. Admittedly, appellant is senior to respondent No.4 and could not
have been superseded by the Empanelment Committee of the UPSC.
G 24. According to UPSC, the Draft Guidelines were made to give
effect to the directions issued by this Court in Prakash Singh’s case.
The Draft Guidelines were placed before this Court when the interlocutory
application filed by the Government of India for modification of the
judgment dated 22.09.2006 in Prakash Singh’s case was being
considered. This Court expressed its satisfaction regarding the procedure
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 187
[L. NAGESWARA RAO, J.]
and practice followed by UPSC in the matter of selection to the post of A
DGP. The Draft Guidelines referred to the factors to be taken into
consideration by the Empanelment Committee for selection of DGP as
per the directions issued by this Court in Prakash Singh’s case. Length
of service, very good record and range of experience for heading the
police force are factors to be considered by the Empanelment Committee.
B
According to UPSC, the range of experience is a constituent part of the
component of merit. In respect of selection to the post of DGP (HoPF)
for the State of Punjab, five core policing areas have been identified to
assess the range of experience of the officers concerned for the last 10
years, which are:-
A. Intelligence C
B. Law and order
C. Administration
D. Investigation
D
E. Security
The selection based on the Draft Guidelines was defended by
UPSC on the ground that the Guidelines are in conformity with the
directions issued by this Court in Prakash Singh’s case.
25. This Court in Prakash Singh’s case directed empanelment E
of officers for appointment to the post of DGP by UPSC by laying down
broad criteria. The implementation of the directions issued by this Court
has to be on objective basis for which reason the UPSC has framed
Draft Guidelines, which are being followed uniformly since 2009 for
selection of DGPs in several States. Keeping in mind, the seniority of
F
the officers under consideration, selection is conducted on the basis of
very good record and range of experience for heading the police force.
Assessment of very good record of service is on the basis of annual
confidential reports for the last 10 years. Range of experience for heading
the police force assessed by the empanelment committee is done by
assessing the performance of officers in five core police areas out of 20 G
policing areas. Discretion was given to the empanelment committees to
select the core policing areas by taking into account the prevailing situation
in the States. Considering the peculiar situation of the State of Punjab,
intelligence, law and order, administration, investigation and security were
identified as the core policing areas to ascertain range of experience of
an officer to head the police force. H
188 SUPREME COURT REPORTS [2021] 11 S.C.R.
A 26. The Draft Guidelines cannot be said to be contrary to the
criteria laid down by this Court in Prakash Singh’s case. The Guidelines
carry forward the directions given by this Court by stipulating the objective
criteria for guidance of the empanelment committees. The preparation
of a panel on the basis of the Draft Guidelines after taking into account
the core policing areas cannot be said to be arbitrary. We are not impressed
B
with the submission of the Appellant that the core policing areas were
identified only to suit Respondent No. 4. Assessment of relative merit of
the officers under consideration is within the domain of the Empanelment
Committee, which is given liberty to adopt its own procedure. Merit of
the officers in the zone of consideration is evaluated on the basis of their
C record of service and range of experience. A panel of three officers has
been prepared in the order of seniority. The Appellant was found to be
inadequate for inclusion in the panel in the range of experience for core
policing areas. The Tribunal committed an error in recording the finding
that the Empanelment Committee deviated from the procedure prescribed
by this Court in Prakash Singh’s case. There is no basis for the
D
conclusion of the Tribunal that the Draft Guidelines are contrary to the
directions given by this Court in Prakash Singh’s case. The broad criteria
mentioned in the said case are seniority, very good record of service and
range of experience to head a police force. The Draft Guidelines which
have to be scrupulously followed by empanelment committees stipulate
E that a selection should be on the same criteria. In the instant case,
Empanelment Committee decided to assess the range of experience of
officers to head the police force in the State of Punjab after considering
the peculiarities of the State. Identification of five core policing areas
out of a domain of twenty policing areas cannot be said to be an arbitrary
exercise of power. The Tribunal committed an error in accepting the
F
submission of the Appellant that the core policing areas, identified by the
Empanelment Committee was only to favour Respondent No.4 on the
basis of unsubstantiated allegations. Empanelment was directed to be
done by UPSC on the basis of length of service, very good record and
range of experience for heading the police force in Prakash Singh’s
G case (supra). Later, in the order dated 13.03.2019, this Court clarified
its earlier order dated 03.07.2018 and directed UPSC to prepare the
panel purely on the basis of merit. Be that as it may, the recommendation
of the names of 12 officers for consideration is on the basis of completion
of thirty years’ service in the cadre of ADGP. Length of service as
mentioned in Prakash Singh’s case (supra) is taken into account for
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 189
[L. NAGESWARA RAO, J.]
determination of zone of consideration. The other two factors namely, A
good record of service and range of experience of all the 12 officers
recommended on the basis of length of service are assessed by the
Empanelment Committee. Inter se merit of the candidates was evaluated
according to the objective criteria followed by the Empanelment
Committee. The preparation of panel for appointment as DGP (HoPF)
B
for the State of Punjab, by the Empanelment Committee is in compliance
of the Draft Guidelines, which are in conformity with the directions issued
by this Court in Prakash Singh’s caseas the panel was prepared after
taking into account the relevant considerations as directed by this Court
in Prakash Singh’s case and stipulated in the Draft Guidelines. As no
irrelevant consideration prompted the decision, the preparation of the C
panel by the Empanelment Committee cannot be said to be irrational.
Having regard to the nature of the function and the power confided to
the Selection Committee, it is not a legal requirement that reasons should
be recorded for its conclusion [See: UPSC v. K. Rajaiah & Ors.23,
Union Public Service Commission v. Arun Kumar Sharma & Ors.24
D
and Baidyanath Yadav v. Aditya Narayan Roy & Ors25]. The Tribunal
committed an error in holding the decision of the Committee as arbitrary
in the absence of reasons. Therefore, the preparation of the panel by the
Empanelment Committee cannot be said to be suffering from
unreasonableness.
27. The Appellant contended that Respondent No. 5 ought to have E
recused himself from the Empanelment Committee as he is inimically
disposed of towards him. The Appellant argued that he was appointed to
head a special investigation team by the High Court of Punjab and Haryana
to investigate the involvement of law enforcement authorities in drug
trafficking and he unearthed material against senior police officers. He F
was falsely implicated in a criminal case involving the suicide of Inderpreet
Singh Chadha. It is the case of the Appellant that he submitted a status
report to the High Court on 18.05.2018 in a sealed cover in which he has
mentioned about the involvement of Respondent No.4 and Respondent
No.5 in drug trafficking. The Appellant referred to the recusal of
Respondent No.5 earlier when he was asked to write his performance G
appraisal report. Finally, the Appellant submitted that the preparation of
panel is vitiated due to bias of the Respondent No.5. On the other hand,
23
(2005) 10 SCC 15
24
(2015) 12 SCC 600
25
2020 (16) SCC 799 H
190 SUPREME COURT REPORTS [2021] 11 S.C.R.
A it was submitted by the Respondents that the Appellant was involved in
the suicide of Inderpreet Singh Chadha. The special investigation team
headed by the Appellant submitted two reports on 01.02.2018 and
15.03.2018 before the High Court in which there is no mention of either
Respondent No.4 or Respondent No. 5. The sealed cover submitted by
the Appellant before the High Court was without consulting the other
B
two members of the special investigation team. It was further submitted
that Respondent No. 5, being the DGP of a State, could not have recused
himself from being a member of the Empanelment Committee. It is also
argued that the Appellant has not raised any objection regarding the
participation of Respondent No.5 in the selection proceedings. Doctrine
C of necessity was pressed into service by the Respondents to submit that
Respondent No.5 could not have recused himself from the Empanelment
Committee.
28. It is relevant to note that the plea of bias did not find favour
with the Tribunal or the High Court. Before us, the learned counsel for
D the Appellant, relying upon Badrinath (supra), has submitted that even
if one person of the multi-member committee is biased, the decision of
the committee shall be rendered invalid. Further, this decision holds that
doctrine of necessity applies only in case a committee is constituted by a
statute or a statutory rule. In other words, if the committee is constituted
under an administrative order there can be no difficulty in an officer
E recusing himself and requesting another officer to be substituted in his
place. Even if a plea of bias is not raised earlier, it can be raised during
the proceedings in judicial review. Further, even if bias is not a direct
cause of the decision, the test is one of mere likelihood of bias, which
means a substantial possibility of bias.26
F 29. In exercise of its power under Articles 32 and 142 of the
Constitution of India, this Court directed UPSC to constitute an
empanelment committee to recommend three senior-most officers with
good record of service and range of experience, and meeting other
parameters, from whom the DGP shall be selected and appointed by the
G State Government. The incumbent DGP of the State is a member of the
empanelment committee according to the Draft Guidelines issued by the
UPSC. These Guidelines issued in compliance with the directions given
by this Court under Article 142 of the Constitution of India, we would
26
Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher
H Secondary School and Others, (1993) 4 SCC 10
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 191
[L. NAGESWARA RAO, J.]
accept, are well-known and in public domain. Therefore, the position A
that Respondent No.5, being the DGP, would be a member of the
Empanelment Committee was within the knowledge of the Appellant.
Ignorance of this factum when pretended must be rejected as a mere
pretence. The two Appellants are not laymen, but senior police officers
aspiring for the appointment to the top police position in the State. In
B
endorsement of our reasoning, we have on record a news article
published in the Hindustan Times, dated 30th January 2019, titled “DGP’s
appointment – All eyes on UPSC’s February 4 meet”. The article
states that as per the information gathered from officials privy to the
development, the UPSC meeting will be held in Delhi and would be
attended by the Punjab Chief Secretary Mr. Karan Avtar Singh and the C
incumbent DGP Mr. Suresh Arora, i.e., Respondent No.5. In the given
facts and considering the position and status of the Appellant, we would
not accept the plea that participation of Respondent No.5 in the
Empanelment Committee was unknown or a secret for the Appellants.
30. It is in this context, we have to examine whether the Appellants D
are estopped from challenging the recommendations made by the
Empanelment Committee, given the fact that they had taken a calculated
chance, and not protested till the selection panel was made public. In our
opinion, the ratio in Madan Lal and Others v. State of Jammu and
Kashmir and Others,27 would apply in the present case as when a
person takes a chance and participates, thereafter he cannot, because E
the result is unpalatable, turn around to contend that the process was
unfair or the selection committee was not properly constituted. This
decision, no doubt, pertains to a case where the petitioner had appeared
at an open interview, however, the ratio would apply to the present case
as the Appellant too had taken a calculated chance in spite of the stakes, F
that too without protest, and then has belatedly raised the plea of bias
and prejudice only when he was not recommended. The judgment in
Madanlal (supra) refers to an earlier decision of this Court in Om
Prakash Shukla v. Akhilesh Kumar Shukla and Others,28 wherein
the petitioner who had appeared at an examination without protest was
not granted any relief, as he had filed the petition when he could not G
succeed afterwards in the examination. This principle has been reiterated
27
(1995) 3 SCC 486
28
(1986) Supp. SCC 285 H
192 SUPREME COURT REPORTS [2021] 11 S.C.R.
A in Manish Kumar Shahi v. State of Bihar and Others,29 and Ramesh
Chandra Shah and Others v. Anil Joshi and Others.30
31. More appropriate for our case would be an earlier decision in
Dr. G. Sarana v. University of Lucknow and Others,31 wherein a
similar question had come up for consideration before a three-judge bench
B of this Court as the petitioner, after having appeared before the selection
committee and on his failure to get appointed, had challenged the selection
result pleading bias against him by three out of five members of the
selection committee. He also challenged constitution of the committee.
Rejecting the challenge, this Court had held:
C “15. We do not, however, consider it necessary in the present
case to go into the question of the reasonableness of bias or
real likelihood of bias as despite the fact that the appellant
knew all the relevant facts, he did not before appearing for
the interview or at the time of the interview raise even his
little finger against the constitution of the Selection Committee.
D He seems to have voluntarily appeared before the committee
and taken a chance of having a favourable recommendation
from it. Having done so, it is not now open to him to turn
round and question the constitution of the committee. This
view gains strength from a decision of this Court in Manak
E Lal’s case where in more or less similar circumstances, it was
held that the failure of the appellant to take the identical plea
at the earlier stage of the proceedings created an effective
bar of waiver against him. The following observations made
therein are worth quoting:
F “It seems clear that the appellant wanted to take a chance to
secure a favourable report from the tribunal which was
constituted and when he found that he was confronted with
an unfavourable report, he adopted the device of raising the
present technical point.””
G 32. The aforesaid judgment in Dr. G. Sarana (supra) was referred
in Madras Institute of Development Studies and Another v.
K. Sivasubramaniyan and Others,32 in which selection to the post of
29
(2010) 12 SCC 576
30
(2013) 11 SCC 309
31
(1976) 3 SCC 585
H 32
(2016) 1 SCC 454
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 193
[L. NAGESWARA RAO, J.]
Assistant Professor was challenged on the ground that shortlisting of A
candidates was contrary to the Faculty Recruitment Rules. The challenge
was declined on the ground of estoppel as the respondent, without raising
any objection to the alleged variations in the contents of the advertisement
and the Rules, had submitted his application and participated in the selection
process by appearing before the committee of experts.
B
33. Equally appropriate would be a reference to the decision of
this Court in P.D. Dinakaran (1) v. Judges Inquiry Committee and
Others,33 in which the allegation was that one of the members of the
committee constituted by the Chairman of the Council of States (Rajya
Sabha) under Section 3(2) of the Judges (Inquiry) Act, 1968 was biased.
This judgment extensively recites and assimilates from both domestic C
and foreign judgments on the question of bias and prejudice and quotes
the following observations in Dr. G. Sarana’s (supra) case:
“11… the real question is not whether a member of an
administrative board while exercising quasi-judicial powers
or discharging quasi-judicial functions was biased, for it is D
difficult to probe the mind of a person. What has to be seen is
whether there is a reasonable ground for believing that he
was likely to have been biased. In deciding the question of
bias, human probabilities and ordinary course of human
conduct have to be taken into consideration.” E
34. Thereafter, reference is made to Ashok Kumar Yadav and
Others v. State of Haryana and Others, 34 which refers to the
Constitutional Bench judgment in A.K. Kraipak and Others v. Union
of India and Others.35Ashok Kumar Yadav (supra) was a case of
selection by UPSC and following extract from this judgmentis of some F
significance:
“18. We must straightaway point out that A.K. Kraipak case is
a landmark in the development of administrative law and it
has contributed in a large measure to the strengthening of
the rule of law in this country. We would not like to whittle G
down in the slightest measure the vital principle laid down in
this decision which has nourished the roots of the rule of law
and injected justice and fair play into legality. There can be
33
(2011) 8 SCC 380
34
(1985) 4 SCC 417
35
(1969) 2 SCC 262 H
194 SUPREME COURT REPORTS [2021] 11 S.C.R.
A no doubt that if a Selection Committee is constituted for the
purpose of selecting candidates on merits and one of the
members of the Selection Committee is closely related to a
candidate appearing for the selection, it would not be enough
for such member merely to withdraw from participation in the
interview of the candidate related to him but he must withdraw
B
altogether from the entire selection process and ask the
authorities to nominate another person in his place on the
Selection Committee, because otherwise all the selections made
would be vitiated on account of reasonable likelihood of bias
affecting the process of selection. But the situation here is a
C little different because the selection of candidates to the
Haryana Civil Service (Executive) and Allied Services is being
made not by any Selection Committee constituted for that
purpose but it is being done by the Haryana Public Service
Commission which is a Commission set up under Article 316
of the Constitution. It is a Commission which consists of a
D
Chairman and a specified number of members and is a
constitutional authority. We do not think that the principle
which requires that a member of a Selection Committee whose
close relative is appearing for selection should decline to
become a member of the Selection Committee or withdraw
E from it leaving it to the appointing authority to nominate
another person in his place, need be applied in case of a
constitutional authority like the Public Service Commission,
whether Central or State. If a member of a Public Service
Commission were to withdraw altogether from the selection
process on the ground that a close relative of his is appearing
F
for selection, no other person save a member can be
substituted in his place. And it may sometimes happen that no
other member is available to take the place of such member
and the functioning of the Public Service Commission may be
affected. When two or more members of a Public Service
G Commission are holding a viva voce examination, they are
functioning not as individuals but as the Public Service
Commission. Of course, we must make it clear that when a
close relative of a member of a Public Service Commission is
appearing for interview, such member must withdraw from
participation in the interview of that candidate and must not
H
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 195
[L. NAGESWARA RAO, J.]
take part in any discussion in regard to the merits of that A
candidate and even the marks or credits given to that candidate
should not be disclosed to him.”
35. ‘Real likelihood test’ applied in Ranjit Thakur v. Union of
India and Others,36 is elucidated in the following words:
“15...The test of real likelihood of bias is whether a reasonable B
person, in possession of relevant information, would have
thought that bias was likely and whether Respondent 4 was
likely to be disposed to decide the matter only in a particular
way.
16. It is the essence of a judgment that it is made after due C
observance of the judicial process; that the court or tribunal
passing it observes, at least the minimal requirements of
natural justice; is composed of impartial persons acting fairly
and without bias and in good faith. A judgment which is the
result of bias or want of impartiality is a nullity and the trial D
‘coram non judice’.
17. As to the tests of the likelihood of bias what is relevant is
the reasonableness of the apprehension in that regard in the
mind of the party. The proper approach for the Judge is not
to look at his own mind and ask himself, however, honestly, E
‘Am I biased?’; but to look at the mind of the party before
him.”
36. In P.D. Dinakaran (1) (supra), this Court held that the member
in question had during a seminar spoken against the proposed elevation
of the petitioner as a Judge of the Supreme Court and, therefore, the F
apprehension of likelihood of bias is reasonable and not fanciful, though
in fact, the member may not be biased. Nevertheless, the writ petition
was dismissed on the ground that the petitioner was not a lay person and
being well-versed in law should have objected to the constitution of
committee when notified in the Official Gazette, which factum was highly
publicised in almost all newspapers. Notwithstanding the awareness and G
knowledge, the petitioner did not object, which indicates that he was
satisfied that the member had nothing against him. Therefore, belated
plea taken by the petitioner did not merit acceptance and mitigates against
bona fidesof the objection to the appointment of the person as a member
36
(1987) 4 SCC 611 H
196 SUPREME COURT REPORTS [2021] 11 S.C.R.
A of the committee. In its support, reference was made to several decisions
of this Court, including Shri Lachoo Mal v. Shri Radhey Shyam,37
which acknowledges the general principle that everyone has a right to
waive and agree to waive the advantage of a law or rule made solely for
his benefit and protection of the individual in his private capacity which
may be dispensed with without infringing any public right or public policy.
B
In Manak Lal (Shri), Advocate v. Prem Chand Singhvi and Others,38
this Court had declined to nullify an action made on the recommendation
of the Tribunal though the chairman of the Tribunal had appeared before
the appellant in the case. The reason was that the appellant had never
raised a point before the Tribunal, which with the other factors reflected
C waiver. In conclusion, the Court in P.D. Dinakaran (1) (supra) held:
“86. In conclusion, we hold that the belated raising of
objection against the inclusion of Respondent 3 in the
Committee under Section 3(2) appears to be a calculated move
on the petitioner’s part. He is an intelligent person and knows
D that in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules,
1969, the Presiding Officer of the Committee is required to
forward the report to the Chairman within a period of three
months from the date the charges framed under Section 3(3)
of the Act were served upon him. Therefore, he wants to adopt
every possible tactic to delay the submission of report which
E may in all probability compel the Committee to make a request
to the Chairman to extend the time in terms of the proviso to
Rule 9(2)(c). This Court or, for that reason, no court can render
assistance to the petitioner in a petition filed with the sole
object of delaying finalisation of the inquiry.”
F Nevertheless, the Court in P.D. Dinakaran (1) (supra) had
requested the Chairman to nominate another distinguished jurist in place
of the person in question, duly noticing that the proceedings initiated had
progressed only to the stage of framing of charges and nomination of
another jurist would not hamper the proceedings. The reconstituted
G committee would be entitled to proceed on the charges already framed.
37. In view of the above ratio, which is applicable, it is not necessary
for this Court to delve further into the allegations and submissions based
on assertion of bias and prejudice.
37
(1971) 1 SCC 619
38
H AIR 1957 SC 425
MOHD. MUSTAFA v. UNION OF INDIA & ORS. 197
[L. NAGESWARA RAO, J.]
38. For the aforementioned reasons, we do not find any error A
committed by the High Court in setting aside the judgment of the Tribunal
and upholding the selection and appointment of Respondent No.4 as
DGP (HoPF), State of Punjab.
39. The appeals are dismissed.
B
Nidhi Jain Appeals dismissed.
C
D
E
F
G
H
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