Supreme Court: The 3-Judges Bench Comprising of L. Nageswara Rao*, Sanjiv Khanna and B.R. Gavai, JJ., upheld the controversial appointment of Mr. DInkar Gupta as DSP, State of Punjab.
Aggrieved by the order of the Governor of Punjab by which one Mr. Dinkar Gupta was appointed as Director General of Police (DGP), the appellants had filed original applications before the Central Administrative Tribunal. The Tribunal set aside the order of appointment on the ground that preparation of the panel for selection of DGP was in contravention of the judgement in the case of Prakash Singh v. Union of India and directed the Union Public Service Commission (UPSC) and the State of Punjab to conduct selection for the post of DGP afresh. However, in appeal, the judgement of the Tribunal was set aside by the High Court of Punjab and Haryana.
The grievance of the appellant was that the Draft Guidelines for the appointment were not in conformity with the decision of the Supreme Court. The appellant also alleged one of the members of the Empanelment Committee constituted by the UPSC to finalise a panel of shortlisted candidates for selection for holding bias against him.
So far as the selection and minimum tenure of DGP was concerned, the had Court directed that the UPSC shall empanel three senior-most officers of the Department for promotion to the rank of DGP on the basis of their length of service, very good record and range of experience for heading the police force and the State Government should select the DGP from amongst the officers empanelled by the UPSC.
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. Selection, according to the Guidelines, shall be meritbased 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 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.
Validity of Draft Guideline
According to UPSC, the range of experience was a constituent part of the component of merit. In respect of selection to the post of DGP, five core policing areas had been identified to assess the range of experience of the officers concerned for the last 10 years, which were:- A. Intelligence B. Law and order C. Administration D. Investigation E. Security.
The contention of the Appellant was that the criteria fixed in Prakash Singh’s case were not followed in letter and spirit by the Empanelment Committee of UPSC while conducting selection to the post of DGP. Admittedly, appellant was senior to respondent 4 and could not have been superseded by the Empanelment Committee of the UPSC.
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 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 could not be said to be an arbitrary exercise of power as discretion was given to the empanelment committees to select the core policing areas by taking into account the prevailing situation in the States.
Noticeably, by the order dated 13-03-2019, the judgment of Prakash Singh’s case was clarified by the Court and the UPSC was directed to prepare the panel purely on the basis of merit. The recommendation of the names of 12 officers for consideration was on the basis of completion of thirty years’ service in the cadre of ADGP. Length of service as mentioned in Prakash Singh’s case was taken into account for determination of zone of consideration. The other two factors namely, good record of service and range of experience on the basis of length of service was assessed by the Empanelment Committee. Inter se merit of the candidates was evaluated according to the objective criteria followed by the Committee and a panel of three officers had been prepared in the order of seniority. Observing that the Appellant was found to be inadequate for inclusion in the panel in the range of experience for core policing areas, the Bench stated that the preparation of panel by the Empanelment Committee was in compliance of the Draft Guidelines, which were in conformity with the directions issued by the Court in Prakash Singh’s case.
Allegation of Bias
The appellant argued that the empanelment and appointment of Respondent 4 as DGP was vitiated by bias as respondent 5 who was a member of the Empanelment Committee was prejudiced against the Appellant due to the report filed by the Appellant before the Punjab and Haryana High Court by which Respondent 5 was found to be involved in criminal activities. The appellant submitted that, on earlier occasions Respondent 5 had recused himself in matters relating to the Appellant and, therefore, he ought not to have participated in the selection process.
Noticeably, the incumbent DGP of the State is a member of the empanelment committee according to the Draft Guidelines issued by the UPSC and the Guidelines were issued in compliance with the directions given by the under Article 142 of the Constitution, which was well-known and in public domain. Therefore, the Bench opined that the position that Respondent 5, being the DGP, would be a member of the Empanelment Committee was within the knowledge of the Appellant and ignorance of that factum must be rejected as a mere pretence. Moreover, the fact that respondent 5 was member of the Committee was even published in the Hindustan Times, considering that the appellants were not laymen, but senior police officers aspiring for the appointment to the top police position in the State, the Bench held that they were estopped from challenging the recommendations made by the Committee, given the fact that they had taken a calculated chance, and not protested till the selection panel was made public. Applying the ratio of Madan Lal v. State of Jammu and Kashmir, (1995) 3 SCC 486, the Bench stated,
“When a person takes a chance and participates, thereafter he cannot, because the result is unpalatable, turn around to contend that the process was unfair or the selection committee was not properly constituted.”
In the light of above, the Bench held that the High Court did not commit any error by setting aside the judgment of the Tribunal and upholding the selection and appointment of Respondent 4 as DGP of State of Punjab. Accordingly, the appeals were dismissed.
[Mustafa v. Union of India, 2021 SCC OnLine SC 1063, decided on 16-11-2021]
Kamini Sharma, Editorial Assistant has put this report together
For the Appellants: Krishnan Venugopal, Senior Counsel and P.S. Patwalia, Senior Counsel
For UPSC: Aman Lekhi, Additional Solicitor General
For State of Punjab: Mukul Rohatgi, Senior Counsel for the State of Punjab
For Respondent 4: Maninder Singh, Senior Counsel
For Respondent 5: Shyam Divan, Senior Counsel
*Judgment by: Justice L. Nageswara Rao