Mohd. Mustafa vs Union of India & Ors.

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 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 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 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 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 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 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 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 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 ‘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 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 their suitability for inclusion in the panel. The Guidelines stipulated that the State Government shall appoint DGP from amongst the three seniormost 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 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 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 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 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 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 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 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. [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 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 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 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 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 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 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 case. 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. 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 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 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 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 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. [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 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 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 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 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 has not raised any objection regarding the participation of Respondent No.5 in the selection proceedings. Doctrine of 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 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 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 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 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 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 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 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]

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, 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.

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), 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.

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)

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 Pandey v. State of WB (1987) 2 SCC 295 : [1987] 2 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. 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. (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) 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

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 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 (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 Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 680; Padfield v. Minister of Agriculture [1968] 1 All ER 694 – referred to.