TMI Blog2021 (11) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India, we would accept, 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 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 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. 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? - HELD THAT:- The judgment in Madanlal [ 1995 (2) TMI 441 - SUPREME COURT ] refers to an earlier decision of this Court in Om Prakash Shukla v. Akhilesh Kumar Shukl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 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 High Court and the judgment 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 judgment of the High Court dated 06.11.2020. 2. Mohd. Mustafa, the Appellant in Civil Appeal arising out of 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 of SLP (C) Nos. 14982-14985 of 2020. Mr. Siddharth Chattopadhyaya was inducted to Indian Police Service in 1986 and allocated to Punjab cadre. The post of DGP (HoPF), State of Punj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Aggrieved by the judgment of the Tribunal, Writ Petitions were filed in the High Court of Punjab and Haryana. The High Court framed 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 )? 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) 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 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? 3) (a) What is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal 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 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 Anr.' 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 participated in the selection process. Accordingly, the decision of the Empanelment Committee of which Respondent No. 5 was a member is not bona fide 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 judgment of this Court in Prakash 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the special needs of the State of Punjab. Courts should show deference 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 fling a report which was not signed by the other members of the team to tarnish the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 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 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 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 gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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 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 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 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 opinion that discretion must be exercised reasonably. Explaining the concept of unreasonableness, Lord Greene stated that a person entrusted with discretion must direct himself p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 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 and National Security Commission were given. The said directions were issued Under Article 32, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 following directions: 6.1. All the States shall send their proposals in anticipation 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 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 id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 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, 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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. 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 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 record of service and range of experience. A panel of three officers has been pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pliance 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 [See: UPSC v. K. Rajaiah and Ors. (2005) 10 SCC 15, Union Public Service Commission v. Arun Kumar Sharma and Ors. (2015) 12 SCC 600 and Baidyanath Yadav v. Aditya Narayan Roy and Ors. 2020 (16) SCC 799]. 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 recused himself from the Empanelment Committee as he is inimically dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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. Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. (1993) 4 SCC 10 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 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 accept, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 013) 11 SCC 309. 31. More appropriate for our case would be an earlier decision in Dr. G. Sarana v. University of Lucknow and Ors. (1976) 3 SCC 585 wherein a similar question had come up for consideration before a three-judge bench 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: 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. 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 stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262. Ashok Kumar Yadav (supra) was a case of selection by UPSC and following extract from this judgment is of some 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 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 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 '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, '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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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