MOHD. MUSTAFA versus UNION OF INDIA & ORS.

[2021] 11 S.C.R. 163

MOHD. MUSTAFA

UNION OF INDIA & ORS.

(Civil Appeal No.6905 of 2021)

NOVEMBER 16, 2021

[L. NAGESWARA RAO, SANJIV KHANNA AND

B. R. GAVAI, JJ]

Service law: Selection and appointment – Post of DirectorGeneral of Police (Head of Police Force) – Appointment ofrespondent No.4 as DGP (HoPF) by the Governor of Punjab –Tribunal set aside the selection on the ground that preparation ofthe panel for selection of DGP (HoPF) for the State of Punjab wasin contravention of the Prakash Singh’s case – High Court set asidethe said order – On appeal, held: Courts in exercise of power underjudicial review do not interfere with selections made by expert bodiesby reassessing comparative merits of the candidates – Interferenceis restricted to decisions vitiated by bias, mala fides and contrary tostatutory provisions – Preparation of panel for appointment as DGP(HoPF) for the State of Punjab, by the Empanelment Committee isin compliance of the Draft Guidelines, in conformity with thedirections issued by this Court in Prakash Singh’s case – Panel wasprepared after taking into account the relevant considerations asdirected by this Court in Prakash Singh’s case – No irrelevantconsideration prompted the decision – Preparation of the panel bythe Empanelment Committee cannot be said to be irrational andunreasonable – Also tribunal erred in holding the decision of theCommittee as arbitrary in the absence of reasons – Furthermore,allegations based on assertion of bias and prejudice need not begone into – Thus, no error committed by the High Court in settingaside the judgment of the tribunal and upholding the selection andappointment of respondent No.4 as DGP (HoPF), State of Punjab –Judicial review.

Judicial review: Power of – Scope – Discussed.

Dismissing the appeals, the Court

HELD: 1.1 Judicial review may be defined as Court’spower to review the actions of other branches or levels ofgovernment; especially the Court’s power to invalidate legislative

Aand executive actions as being unconstitutional. Power of judicialreview is within the domain of the judiciary to determine thelegality of administrative action and the validity of legislationsand it aims to protect citizens from abuse and misuse of power byany branch of the State. The power of judicial review is basicfeature of the Constitution of India. Judicial review has certainBinherent limitations. However, it is suited more for adjudicationof disputes other than for performing administrative functions. Itis for the executive to administer law and the function of thejudiciary is to ensure that the Government carries out its dutiesin accordance with the provisions of the Constitution. The groundsCon which administrative action is subject to judicial review areillegality, irrationality and procedural impropriety.[Para 13,14][180-F-G; 181-A-B]

1.2 The discretionary power vested in an administrativeauthority is not absolute and unfettered. Discretion must beDexercised reasonably. [Para 15][182-B]

1.3 Conditions prompted by extraneous or irrelevantconsiderations are unreasonable and liable to be set aside byCourts in exercise of its power under judicial review. decisioncan be arrived at by an authority after considering all relevantEfactors. If the discretionary power has been exercised in disregardof relevant consideration, the Court will normally hold the actionbad in law. Relevant, germane and valid considerations cannotbe ignored or overlooked by an executive authority while takinga decision. It is trite law that Courts in exercise of power underjudicial review do not interfere with selections made by expertFbodies by reassessing comparative merits of the candidates.Interference with selections is restricted to decisions vitiated bybias, mala fides and contrary to statutory provisions. [Para16][182-D-F]1.4 By way of implementation of the directions issued byGthis Court in Prakash Singh’s case, UPSC framed Draft Guidelinesfor empanelling officers for appointment as DGP (Chief of Police).Officers belonging to the Indian Police Service of the concernedcadre, not below the rank of ADG, and who have completed atleast 30 years of service as on the date of occurrence of vacancyfor which the panel is prepared, are eligible for being consideredH

for selection and appointment as DGP. Selection, according tothe Guidelines, shall be merit- based and inclusion in the panelshall be adjudged on the basis of ‘very good’ record and range ofexperience for heading the police force. The Draft Guidelinesempowered the Committee to adopt its own methods andprocedure for objective assessment of the suitability of officersto the zone of consideration. The Committee was obligated tomake assessment of the annual confidential reports of the officerswith reference to the last ten years preceding the date of meetingof the Committee. Only those officers assessed by the Committeeas at least ‘very good’ for each of the preceding 10 years shall beconsidered for inclusion in the panel. According to the Guidelines,the Committee shall also take into account the range ofexperience, relevant for heading the police force as reflected inthe bio-data of the officers for determining their suitability forinclusion in the panel. The Guidelines stipulated that the StateGovernment shall appoint DGP from amongst the three senior-most officers included in the panel. [Para 19, 20][184-A, D-G]

1.5 According to UPSC, the Draft Guidelines were made togive effect to the directions issued by this Court in Prakash Singh’scase. The Draft Guidelines were placed before this Court whenthe interlocutory application filed by the Government of India formodification of the judgment dated 22.09.2006 in Prakash Singh’scase was being considered. This Court expressed its satisfactionregarding the procedure and practice followed by UPSC in thematter of selection to the post of DGP. The Draft Guidelinesreferred to the factors to be taken into consideration by theEmpanelment Committee for selection of DGP as per thedirections issued by this Court in Prakash Singh’s case. Lengthof service, very good record and range of experience for headingthe police force are factors to be considered by the EmpanelmentCommittee. According to UPSC, the range of experience is aconstituent part of the component of merit. In respect of selectionto the post of DGP (HoPF) for the State of Punjab, five core policingareas have been identified to assess the range of experience ofthe officers concerned for the last 10 years, which are:-Intelligence, Law and order, Administration, Investigation, andSecurity. The selection based on the Draft Guidelines was

Adefended by UPSC on the ground that the Guidelines are inconformity with the directions issued by this Court in PrakashSingh’s case. [Para 24][186-G-H; 187-A-E]

1.6 This Court in Prakash Singh’s case directedempanelment of officers for appointment to the post of DGP byBUPSC by laying down broad criteria. The implementation of thedirections issued by this Court has to be on objective basis forwhich reason the UPSC has framed Draft Guidelines, which arebeing followed uniformly since 2009 for selection of DGPs inseveral States. Keeping in mind, the seniority of the officers underconsideration, selection is conducted on the basis of very goodCrecord and range of experience for heading the police force.Assessment of very good record of service is on the basis ofannual confidential reports for the last 10 years. Range ofexperience for heading the police force assessed by theempanelment committee is done by assessing the performanceDof officers in five core police areas out of 20 policing areas.Discretion was given to the empanelment committees to selectthe core policing areas by taking into account the prevailingsituation in the States. Considering the peculiar situation of theState of Punjab, intelligence, law and order, administration,investigation and security were identified as the core policingEareas to ascertain range of experience of an officer to head thepolice force. [Para 25][187-E-H]

1.7 The Draft Guidelines cannot be said to be contrary tothe criteria laid down by this Court in Prakash Singh’s case. TheGuidelines carry forward the directions given by this Court byFstipulating the objective criteria for guidance of the empanelmentcommittees. The preparation of panel on the basis of the DraftGuidelines after taking into account the core policing areas cannotbe said to be arbitrary. It cannot be said that the core policingareas were identified only to suit Respondent No. 4. AssessmentGof relative merit of the officers under consideration is within thedomain of the Empanelment Committee, which is given libertyto adopt its own procedure. Merit of the officers in the zone ofconsideration is evaluated on the basis of their record of serviceand range of experience. panel of three officers has beenprepared in the order of seniority. The Appellant was found to beHinadequate for inclusion in the panel in the range of experiencefor core policing areas. The Tribunal committed an error inrecording the finding that the Empanelment Committee deviatedfrom the procedure prescribed by this Court in Prakash Singh’scase. There is no basis for the conclusion of the Tribunal that theDraft Guidelines are contrary to the directions given by this Courtin Prakash Singh’s case. The broad criteria mentioned in the saidcase are seniority, very good record of service and range ofexperience to head police force. The Draft Guidelines whichhave to be scrupulously followed by empanelment committeesstipulate that selection should be on the same criteria. In theinstant case, Empanelment Committee decided to assess therange of experience of officers to head the police force in theState of Punjab after considering the peculiarities of the State.Identification of five core policing areas out of domain of twentypolicing areas cannot be said to be an arbitrary exercise of power.The Tribunal committed an error in accepting the submission ofthe Appellant that the core policing areas, identified by theEmpanelment Committee was only to favour Respondent No.4on the basis of unsubstantiated allegations. Empanelment wasdirected to be done by UPSC on the basis of length of service,very good record and range of experience for heading the policeforce in Prakash Singh’s case. Later, in the order dated13.03.2019, this Court clarified its earlier order dated 03.07.2018and directed UPSC to prepare the panel purely on the basis ofmerit. The recommendation of the names of 12 officers forconsideration is on the basis of completion of thirty years’ servicein the cadre of ADGP. Length of service as mentioned in PrakashSingh’s case taken into account for determination of zone ofconsideration. The other two factors namely, good record ofservice and range of experience of all the 12 officersrecommended on the basis of length of service are assessed bythe Empanelment Committee. Inter se merit of the candidateswas evaluated according to the objective criteria followed by theEmpanelment Committee. The preparation of panel forappointment as DGP (HoPF) for the State of Punjab, by theEmpanelment Committee is in compliance of the Draft Guidelines,which are in conformity with the directions issued by this Courtin Prakash Singh’s case as the panel was prepared after taking

Ainto account the relevant considerations as directed by this Courtin Prakash Singh’s case and stipulated in the Draft Guidelines.As no irrelevant consideration prompted the decision, thepreparation of the panel by the Empanelment Committee cannotbe said to be irrational. Having regard to the nature of the functionand the power confided to the Selection Committee, it is not aBlegal requirement that reasons should be recorded for itsconclusion The Tribunal committed an error in holding thedecision of the Committee as arbitrary in the absence of reasons.Therefore, the preparation of the panel by the EmpanelmentCommittee 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 oughtto have recused himself from the Empanelment Committee ashe is inimically disposed of towards him. The Appellant arguedthat he was appointed to head special investigation team by theDHigh Court of Punjab and Haryana to investigate the involvementof law enforcement authorities in drug trafficking and he unearthedmaterial against senior police officers. He was falsely implicatedin criminal case involving the suicide of ISC. It is the case ofthe Appellant that he submitted status report to the High Courton 18.05.2018 in sealed cover in which he has mentioned aboutEthe involvement of Respondent No.4 and Respondent No.5 indrug trafficking. The Appellant referred to the recusal ofRespondent No.5 earlier when he was asked to write hisperformance appraisal report. Finally, the Appellant submittedthat the preparation of panel is vitiated due to bias of theFRespondent No.5. On the other hand, it was submitted by theRespondents that the Appellant was involved in the suicide ofISC. The special investigation team headed by the Appellantsubmitted two reports on 01.02.2018 and 15.03.2018 before theHigh Court in which there is no mention of either RespondentNo.4 or Respondent No. 5. The sealed cover submitted by theGAppellant before the High Court was without consulting the othertwo members of the special investigation team. It was furthersubmitted that Respondent No. 5, being the DGP of State, couldnot have recused himself from being member of theEmpanelment Committee. It is also argued that the AppellantHhas not raised any objection regarding the participation of

Respondent No.5 in the selection proceedings. Doctrine ofnecessity was pressed into service by the Respondents to submitthat Respondent No.5 could not have recused himself from theEmpanelment Committee. [Para 27][189-E-G; 190-A-C]

1.9 The plea of bias did not find favour with the Tribunal orthe High Court. The doctrine of necessity applies only in case acommittee is constituted by statute or statutory rule. In otherwords, if the committee is constituted under an administrativeorder there can be no difficulty in an officer recusing himself andrequesting another officer to be substituted in his place. Even ifa plea of bias is not raised earlier, it can be raised during theproceedings in judicial review. Further, even if bias is not directcause of the decision, the test is one of mere likelihood of bias,which means substantial possibility of bias. [Para 28][190-D-F]

1.10 In exercise of its power under Articles 32 and 142 ofthe Constitution of India, this Court directed UPSC to constitutean empanelment committee to recommend three senior-mostofficers with good record of service and range of experience, andmeeting other parameters, from whom the DGP shall be selectedand appointed by the State Government. The incumbent DGP ofthe State is member of the empanelment committee accordingto the Draft Guidelines issued by the UPSC. These Guidelinesissued in compliance with the directions given by this Court underArticle 142 of the Constitution of India, are well-known and inpublic domain. Therefore, the position that Respondent No.5,being the DGP, would be member of the EmpanelmentCommittee was within the knowledge of the Appellant. Ignoranceof this factum when pretended must be rejected as merepretence. The two Appellants are not laymen, but senior policeofficers aspiring for the appointment to the top police position inthe State. The article published in the Hindustan Times, dated30th January 2019, titled “DGP’s appointment – All eyes onUPSC’s February 4 meet”, states that as per the informationgathered from officials privy to the development, the UPSCmeeting will be held in Delhi and would be attended by the PunjabChief Secretary Mr. Karan Avtar Singh and the incumbent DGP

AMr. Suresh Arora, i.e., Respondent No.5. In the given facts andconsidering the position and status of the Appellant, the plea thatparticipation of Respondent No.5 in the Empanelment Committeewas unknown or secret for the Appellants cannot be accepted.[Para 29][190-F-G; 191-A-D]

B1.11 It is to be examined whether the Appellants areestopped from challenging the recommendations made by theEmpanelment Committee, given the fact that they had taken acalculated chance, and not protested till the selection panel wasmade public. In the instant case, the Appellant too had taken acalculated chance in spite of the stakes, that too without protest,Cand then has belatedly raised the plea of bias and prejudice onlywhen he was not recommended. [Para 30][191-D-E, F]

Madan Lal and Others v. State of Jammu and Kashmirand Others (1995) 3 SCC 486 : [1995] 1 SCR 908 –relied on.D

1.12 It is not necessary for this Court to delve further intothe allegations and submissions based on assertion of bias andprejudice. There is no error committed by the High Court insetting aside the judgment of the tribunal and upholding theselection and appointment of Respondent No.4 as DGP (HoPF),EState of Punjab. [Para 37, 38][196-G; 197-A]

P. D. Dinakaran (1) v. Judges Inquiry Committee andOthers (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 ofKerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; S. R.Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2SCR 644; Ram Avtar Sharma v. State of Haryana (1985)G3 SCC 189 : [1985] 3 SCR 686; State of U.P. v. RajaRam 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] 2SCR 223; Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan(1990) 1 SCC 305; Badrinath v. State of T.N. (2000) 8SCC 395 : [2000] 3 Suppl. SCR 573; National Instituteof Mental Health and Neuro Sciences v. Dr. K. KalyanaRaman (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 SCC796 : [2018] 6 SCR 701; UPSC v. K. Rajaiah & Ors.(2005) 10 SCC 15; Union Public Service Commissionv. 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 Sharmav. Managing Committee, Dr. Hari Ram (Co-Education)Higher Secondary School and Others (1993) 4 SCC10 : [1993] 3 SCR 863; Om Prakash Shukla v. AkhileshKumar Shukla and Others (1986) Suppl. SCC 285 :[1986] SCR 855; Manish Kumar Shahi v. State of Biharand Others (2010) 12 SCC 576; Ramesh Chandra Shahand Others v. Anil Joshi and Others (2013) 11 SCC309 : [2013] 5 SCR 687; Dr. G. Sarana v. University ofLucknow and Others (1976) 3 SCC 585 : [1977] 1 SCR64; Madras Institute of Development Studies andAnother v. K. Sivasubramaniyan and Others (2016) 1SCC 454 : [2015] 14 SCR 276; Ashok Kumar Yadavand Others v. State of Haryana and Others (1985) 4SCC 417 : [1985] 1 Suppl. SCR 657; A.K. Kraipakand Others v. Union of India and Others (1969) 2 SCC262; 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 AIR1957 SC 425 : [1957] SCR 575 – referred to.

Council of Civil Service Unions and others v. Ministerfor Civil Service [1985] AC 374; Associated Provincial

172SUPREME COURT REPORTS

[2021] 11 S.C.R.

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

MOHD. MUSTAFA v. UNION OF INDIA & ORS.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6905of 2021.

From the Judgment and Order dated 06.11.2020 of the High Courtof Punjab and Haryana at Chandigarh in Civil Writ Petition No. 1608 of2020.

With

Civil Appeal Nos. 6906-6909 of 2021.

Krishnan Venugopal, Paramjit Singh Patwalia, Sr Advs., Ms. PoojaDhar, Gaurav Ray, Shivendra Singh, Ejaz Maqbool, Saif Zia, Advs. forthe Appellant.

Atul Nanda, AG, Ms. Aishwarya Bhati, Aman Lekhi, ASGs,R. Balasubramanian, Mukul Rohatgi, Shyam Divan, Maninder Singh,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, YogeshYadav, Ujjwal Sinha, Ms. Mehak Huria, Ritwiz Rishabh, Aniket Seth,Paranjay Chopra, Ms. Himanjali Gautam, Vardhman Kaushik,Ms. Ranjeeta Rohatgi, Ms. Samten Doma, Karan Bharihoke, SiddhantSharma, Ms. Sanam Tripathi, Ms. Uttara Babbar, Manan Bansal, PrabhasBajaj, Advs. for the Respondents.

174SUPREME COURT REPORTS

[2021] 11 S.C.R.

AThe Judgment of the Court was delivered by

L. NAGESWARA RAO, J.

Leave granted.

1. Aggrieved by the order dated 07.02.2019 passed by theBGovernor of Punjab by which Mr. Dinkar Gupta was appointed as DirectorGeneral of Police (Head of Police Force) (hereinafter referred to “DGP(HoPF)”), the Appellants filed original applications before the CentralAdministrative Tribunal, Chandigarh Bench, Chandigarh. By an orderdated 17.01.2020, the Tribunal set aside the order dated 07.02.2019 onthe ground that preparation of the panel for selection of DGP (HoPF)Cfor the State of Punjab was in contravention of judgement of thisCourt in Prakash Singh v. Union of India[1]apart from others. Further,a direction was given to the Union Public Service Commission (hereinafterreferred to as “UPSC”) and the State of Punjab to conduct selection forthe post of DGP (HoPF), State of Punjab afresh. The judgement of theDCentral Administrative Tribunal was challenged in the High Court ofPunjab and Haryana by the UPSC, the State of Punjab and Mr. DinkarGupta. Mr. Siddharth Chattopadhyaya, the Appellant in Civil Appeal arisingout of SLP (Civil) No.14982-14985 of 2020, also filed Writ Petitionaggrieved by the rejection of the plea of bias. Writ Petitions filed byUPSC, the State of Punjab and Mr. Dinkar Gupta were allowed by theEHigh Court and the judgement of the Tribunal was set aside. Writ Petitionfiled by Mr. Siddharth Chattopadhyaya (hereinafter referred to as “theAppellant”) was dismissed. These appeals are filed assailing the legalityand validity of the judgement of the High Court dated 06.11.2020.

2. Mohd. Mustafa, the Appellant in Civil Appeal arising out ofFSLP (C) No.14623 of 2020, retired on attaining the age of superannuationduring the pendency of these appeals. As the contentions raised byAppellants in both the civil appeals are similar, we shall refer to the factsof Civil Appeal arising out ofSLP (C) Nos. 14982-14985 of 2020.Mr. Siddharth Chattopadhyaya was inducted to Indian Police Service inG1986 and allocated to Punjab cadre. The post of DGP (HoPF), State ofPunjab was required to be filled up due to the ensuing retirement ofMr. Suresh Arora. letter was written by the Union of India on 19.01.2019to Respondent No.1-UPSC to initiate the process for appointment to thepost of DGP (HoPF) for the State of Punjab. list of 12 officers who

H1 (2006) 8 SCC 1

were working in the rank of DGP/additional DGP and who had completedthirty years of service was forwarded by the State of Punjab. TheAppellant was included in the said list.

3. The Empanelment Committee constituted by the UPSC finaliseda panel consisting of Mr. Dinkar Gupta-Respondent No. 4, Mr. M.K.Tiwari- Respondent No.6 and Mr. V.K. Bhawra Respondent No.7. TheState Government selected and appointed Respondent No.4 as DGP(HoPF) from the said panel. Challenging the selection and appointmentof Respondent No.4 as DGP (HoPF), the Appellant and Mohd. Mustafafiled Original Applications in the Central Administrative Tribunal. TheTribunal, by its order dated 17.01.2020, allowed the Original Applicationsand set aside the panel prepared by the Empanelment Committee on04.02.2019. Consequently, the selection and appointment of RespondentNo.4 as DGP (HoPF) was set aside. The Tribunal directed preparationof panel of three senior-most officers afresh strictly in accordancewith the judgment of this Court in Prakash Singh’s case (supra).

4. The Tribunal was of the opinion that this Court in PrakashSingh’s case settled the parameters to be followed for selection of theDirector Generals of Police. UPSC deviated from the procedureprescribed by this Court, rendering the selection invalid. The Tribunalheld that this Court specified three factors which have to be followedfor selection of DGP. Seniority, being one of the factors, along with goodrecord of service and range of experience to head police force wasnot given due importance by the Empanelment Committee in finalisingthe panel. Draft Guidelines 2009 framed by UPSC (hereinafter referredto as “Draft Guidelines”) have no authenticity or legality, according tothe Tribunal. Identification of five core policing areas from the domainof twenty policing areas is without any basis. In addition, the Tribunalheld that the identification of the core policing areas was to suit theselected candidate. Preparation of the panel consisting three personswas also found fault with due to no reasons being assigned.

5. Aggrieved by the judgment of the Tribunal, Writ Petitions werefiled in the High Court of Punjab and Haryana. The High Court framedthe following questions for determination:

1)What is the scope of judicial review/interference by theHigh Court under Article 226 of the Constitution ofIndia, 1950 against the decision of the AdministrativeTribunal (in short “Tribunal”}?

A2)(a) Whether the Draft Guidelines 2009 issued by theUPSC detailing the procedure and modalities forselection of panel for DGP (HoPF} are patently opposedand violative of the directions issued in Prakash Singh’scase (supra} and the findings of the Tribunal contraryto the same are sustainable?

(b) Whether the Core Policing Areas being adopted bythe Empanelment Committee for assessment on the aspectof ‘range of experience’ State wise on cases to casebasis are in contravention of the Supreme Courtdirections in Prakash Singh’s case (supra} and whetherCthe 5 Core Policing Areas chosen in the present caseare is legal and valid? \

(c) Whether in view of the findings of this Court to theissues at (a} and (b} above, the findings of the Tribunalare sustainable?

3)(a) What is the scope of judicial review in matter of theempanelment and selection by the Selection/Empanelment Committee?

(b) Whether the Tribunal exceeded the said power ofEjudicial review in selection of DGP (HoPF} by the UPSCin February 2019?

4)Whether the impugned order dated 17.01.2020 of theTribunal is liable to be set aside and the consequentialrelief?

F6. The High Court held that this Court in Prakash Singh’s casehas laid down broad guidelines for selection to the post of DGP on thebasis of assessment of officers by considering length of service, verygood record and range of experience for heading the police force. TheDraft Guidelines were framed by UPSC for implementation of directionsissued by this Court in Prakash Singh’s case. The conclusion of theGTribunal that the Draft Guidelines have no authenticity was set aside bythe High Court on the ground that the Draft Guidelines have been approvedby this Court. The jurisdiction of UPSC in formulating Draft Guidelinesand giving discretion to the Empanelment Committee to follow its ownprocedure was upheld by the High Court. Selection of five core policingHareas for assessment of the officers from the State of Punjab was

approved by the High Court. Relying upon judgments of this Court, theHigh Court observed that there was no requirement for recording reasonswhile finalising the selection of DGPs. The High Court held that theTribunal encroached into the domain of the experts in setting aside theselection made by UPSC. The High Court was in agreement with theTribunal that the Appellant failed to make out case of bias. Finally, theHigh Court set aside the judgment of the Tribunal and upheld the selectionand appointment of Respondent No.4 as DGP (HoPF).

7. We have heard Mr. Krishnan Venugopal, learned SeniorCounsel for the Appellant in Civil Appeal arising out of SLP (C) Nos.14982-14985 of 2020, Mr. P.S. Patwalia, learned Senior Counsel for theAppellant in Civil Appeal arising out of SLP (C) No.14623 of 2020, Mr.Aman Lekhi, learned Additional Solicitor General for the RespondentNo.1-UPSC, Mr. Mukul Rohatgi, learned Senior Counsel for the Stateof Punjab, Mr. Maninder Singh, learned Senior Counsel for RespondentNo.4 and Mr. Shyam Divan, learned Senior Counsel for RespondentNo.5.

8. Mr. Krishnan Venugopal, learned Senior Counsel appearing forthe Appellant in Civil Appeal arising out of SLP (C) Nos. 14982-14985of 2020, argued that the empanelment and appointment of RespondentNo. 4 as DGP (HoPF) is vitiated by bias. Respondent No.5 who was amember of the Empanelment Committee was prejudiced against theAppellant due to the report filed by the Appellant before the Punjab andHaryana High Court in Civil Writ Petition No. 20359 of 2013 titled as‘Court on its own motion v. State of Punjab and Another’ in whichRespondent No.5 was found to be involved in criminal activities. Onearlier occasions Respondent No. 5 recused himself in matters relatingto the Appellant and, therefore, Respondent No.5 ought not to haveparticipated in the selection process. Accordingly, the decision of theEmpanelment Committee of which Respondent No.5 was member isnot bonafide and is liable to be set aside. The Appellant contended thatthe Draft Guidelines have no legal sanctity. The criteria laid down by theDraft Guidelines is contrary to the judgement of this Court in PrakashSingh’s case. The Draft Guidelines cannot be considered as statutoryrules or regulations. It was further submitted on behalf of the Appellantthat the five core policing areas that were identified by the EmpanelmentCommittee out of twenty policing areas as criteria for assessment ofofficers’ range of experience to head police force were tailor-made to

Asuit Respondent No. 4. Due weightage has not been accorded to seniorityas laid down by this Court in Prakash Singh’s case. Admittedly, theAppellant is senior to Respondent No.4 and could not have beenoverlooked unless there are justifiable reasons for his supersession.According to the Appellant, the list of 12 officers working as additionalDGP/DGP could not have been forwarded by the State of Punjab forBselection and appointment to one post of DGP. Mr. P. S. Patwalia, learnedSenior Counsel appearing for the Appellant in Civil Appeal arising out ofSLP (C) No.14623 of 2020, submitted that Mr. Mohd. Mustafa hasmaximum gallantry awards and has meritorious record of service. Hewas not empanelled due to faulty selection procedure adopted by UPSC.C9. Mr. Aman Lekhi, learned Additional Solicitor General, counteredthe submissions made on behalf of the Appellants by arguing that theDraft Guidelines were approved by this Court. He submitted that theDraft Guidelines were framed by the UPSC to give effect to the judgementof this Court in Prakash Singh’s case. The five core policing areas thatDwere identified for empanelment out of twenty domain assignmentsusually allocated to police officers was done after taking into accountthe peculiar situation and requirement of the State of Punjab. The criterialaid down by this Court in Prakash Singh’s case is part of the DraftGuidelines and the Tribunal committed an error in holding the Guidelinesto be contrary to the said judgement. Respondent No.5, being the thenEDGP (HoPF), was included as member of the Empanelment Committeeand the Appellants did not raise any objection to his participation in thedeliberations of the Empanelment Committee. It was contended that theassessment by the Empanelment Committee being strictly in accordancewith the Draft Guidelines and the judgement of this Court in Prakash

FSingh’s case, the selection and appointment of Respondent No.4 asDGP (HoPF) is valid. The Empanelment Committee is not required torecord any reasons.

10. Mr. Mukul Rohatgi, learned Senior Counsel appearing for theState of Punjab, contended that the zone of consideration according toGclause 2 of Draft Guidelines is restricted to the cadre of ADGP/DGP toofficers who have completed 30 years of service. The Draft Guidelinescontained three requirements, namely (i) length of service (ii) very goodrecord and (iii) range of experience. Identification of five core policingareas from amongst twenty policing areas for assessment of merit ofofficers was done by the Empanelment Committee by taking into accountH

the special needs of the State of Punjab. Courts should show deferenceto the decision of experts in the matter of selections. The State raisedserious objection to the allegation of bias made by the Appellants againstRespondent No.4 and 5. Mr. Rohatgi stated that the Appellant abusedhis position as the head of special investigation team by filing reportwhich was not signed by the other members of the team to tarnish thereputation of Respondent No. 4 and 5. Mr. Rohatgi stated that the reportfiled by the Appellant without the signatures of the other members of theCommittee is still lying in sealed cover before the High Court. It wassubmitted on behalf of the State that the Appellant was fully aware ofinitiation of the process for appointment of DGP and the presence ofRespondent No.5 in the Committee but did not raise any objection to hiscontinuance in the Empanelment Committee. The Appellant cannot bepermitted to raise bogey of bias at this late hour. In any event,Respondent No.5 was required to continue in the EmpanelmentCommittee as per the doctrine of necessity. The State Governmentrefuted the contention of the Appellant that there was suppression ofrelevant record. It was argued that the relevant record was sent to thePublic Service Commission. The State Government cannot be accusedof favouring Respondent No.4 by not sending the said report to the PublicService Commission. Mr. Rohatgi submitted that the Draft Guidelineshave been followed for empanelment and selection of number of DGPsin several States. The Empanelment Committee comprises of seniorofficers of which Respondent No.5 is one member. The selection cannotbe said to be biased when the allegation of prejudice is against one memberof multi-member Committee.

11. Mr. Maninder Singh, learned Senior Counsel, stated thatRespondent No.4 has an exemplary record of service and is highlydecorated officer with more medals than the Appellant. Responding tosubmissions of the Appellant pertaining to the report filed in the HighCourt, Respondent No.4 contended that there is sinister motive on thepart of the Appellant in trying to mislead this Court that the said reportwas filed by the special investigation team. In fact, two reports werefiled by the special investigation team on 01.02.2018 and 15.03.2018.The said reports were signed by all the members of the Committee inwhich no allegations were made against Respondent No.4. Later, anotherreport was filed by the Appellant alleging that Respondent No.4 wasinvolved in certain criminal activities. The said report was given in asealed cover to the Court. The other members of the Committee have

Agone on record to state that they were not consulted before the saidreport was filed before the Court nor do they have any knowledge aboutthe contents of the report. The Appellant was facing criminal chargein case registered under Section 306 IPC and had engineered thereport only for the purpose of maligning Respondent No.4 to steal amarch over him for selection and appointment as DGP. Mr. ManinderBSingh argued that the Draft Guidelines which are strictly in conformitywith the directions issued by this Court in Prakash Singh’s case havenot been challenged in spite of which the Tribunal held them to be incontravention of the directions in Prakash Singh’s case. He furthersubmitted that Mr. Mustafa has retired on attaining the age ofCsuperannuation and the Appellant has service of less than six monthsleft and cannot be considered for appointment as DGP even if he succeedsin this appeal.12. Mr. Shyam Divan, learned Senior Counsel for RespondentNo.5, submitted that the plea of bias as alleged by the Appellant wasDrejected by both the Tribunal and the High Court which does not warrantany interference by this Court. As the Director General of Police,Respondent No.5 was duty bound to be member of the EmpanelmentCommittee. The allegation of bias is baseless and created only for thepurpose of succeeding in the challenge to the selection and appointmentof Respondent No.4 as DGP (HoPF). Moreover, no objection was raisedEby the Appellants for the participation of Respondent No.5 in theEmpanelment Committee.

13. Judicial review may be defined as Court’s power to reviewthe actions of other branches or levels of government; especially theCourt’s power to invalidate legislative and executive actions as beingFunconstitutional[2]. Power of judicial review is within the domain of thejudiciary to determine the legality of administrative action and the validityof legislations and it aims to protect citizens from abuse and misuse ofpower by any branch of the State[3]. The power of judicial review is abasic feature of the Constitution of India[4]. Judicial review has certainGinherent limitations. However, it is suited more for adjudication of disputesother than for performing administrative functions. It is for the executiveto administer law and the function of the judiciary is to ensure that the

2 Black’s Law Dictionary3 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625H4 Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

Government carries out its duties in accordance with the provisions ofthe Constitution[5].

14. The grounds on which administrative action is subject to judicialreview are illegality, irrationality and procedural impropriety. The followingobservations made by Lord Diplock in Council of Civil Service Unionsand others v. Minister for Civil Service[6] are apt:

“By ‘illegality’ as ground for judicial review I mean that thedecision-maker must understand correctly the law thatregulates his decision-making power and must give effect toit. Whether he has or not is par excellence justiciablequestion to be decided, in the event of dispute, by thosepersons, the judges, by whom the judicial power of the stateis exercisable.

By ‘irrationality’ I mean what can by now be succinctlyreferred to as ‘Wednesbury unreasonableness’. It applies to adecision which is so outrageous in its defiance of logic or ofaccepted moral standards that no sensible person who had appliedhis mind to the question to be decided could have arrived at it.Whether decision falls within this category is question that judgesby their training and experience should be well equipped to answer,or else there would be something badly wrong with our judicialsystem. To justify the Court’s exercise of this role, resort I think istoday no longer needed to Viscount Radcliff’s ingenious explanationin Edwards (Inspector of Taxes) v. Bairstow, of irrationality as aground for court’s reversal of decision by ascribing it to aninferred though unidentifiable mistake of law by the decision makers.“Irrationality” by now can stand on its own feet as an acceptedground on which 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 failureto act with procedural fairness towards the person who will beaffected by the decision. This is because susceptibility to judicialreview under this head covers also failure by an administrativetribunal to observe procedural rules that are expressly laid down inthe 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

Awhere such failure does not involve any denial of natural justice.But the instant case is not concerned with the proceedings of anadministrative tribunal at all”.

15. The discretionary power vested in an administrative authorityis not absolute and unfettered. In Wednesbury, Lord Greene was of theBopinion that discretion must be exercised reasonably. Explaining theconcept of unreasonableness, Lord Greene stated that person entrustedwith discretion must direct himself properly in law and that he must callhis own attention to the matter which he is bound to consider. He observedthat the authority must exclude from his consideration matters whichare irrelevant to the matter he is to consider. Lord Greene concludedCthat if an authority does not obey aforementioned rules, he may truly besaid, and often is said, to be acting unreasonably.[7]

16. Conditions prompted by extraneous or irrelevant considerationsare unreasonable and liable to be set aside by Courts in exercise of itspower under judicial review[8]. (See: State of U.P. v. Raja Ram Jaiswal[9],DSheonandan Paswan v. State of Bihar & Others[10], Sant Raj v. O.P.Singla[11], Padfield v. Minister of Agriculture[12]). decision can bearrived at by an authority after considering all relevant factors[13]. If thediscretionary power has been exercised in disregard of relevantconsideration, the Court will normally hold the action bad in law[14].ERelevant, germane and valid considerations cannot be ignored oroverlooked by an executive authority while taking decision[15]. It is tritelaw that Courts in exercise of power under judicial review do not interferewith selections made by expert bodies by reassessing comparative meritsof the candidates. Interference with selections is restricted to decisionsvitiated by bias, mala fides and contrary to statutory provisions. (See:FDalpat Abasaheb Solunke v. Dr. B.S. Mahajan[16], Badrinath v. Stateof T.N.[17], National Institute of Mental Health and Neuro Sciences

7 Associated Provincial Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All ER 6808 Ram Avtar Sharma v. State of Haryana (1985) 3 SCC 189

9 (1985) 3 SCC 131G10 (1983) 1 SCC 43811 (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 305H17 (2000) 8 SCC 395

v. Dr. K. Kalyana Raman[18], Major General I. P. S Dewan v. Unionof India[19], Union Public Service Commission v. Hiranyalal Dev[20],M. V. Thimmaiah v. UPSC[21] and UPSC v. Sathiyapriya[22]).

17. Keeping in mind the aforestated principles of law, we proceedto examine whether the selection and appointment of Respondent No.4as DGP (HoPF) on the basis of the Draft Guidelines is contrary to thejudgment of this Court in Prakash Singh’s case, suffers from the viceof irrationality and is vitiated due to malice and bias.

18. The Government of India appointed National PoliceCommission on 15.11.1977 for reviewing the role and performance ofthe police as well as law enforcement agencies and as an institution toprotect the rights of the citizens enshrined under the Constitution.Recommendations made by the Commission were not implemented givingrise to writ petition under Article 32 of the Constitution of India filed bya retired Director General of Police, Prakash Singh in which directionswere sought for framing new Police Act on the lines of Model Actdrafted by the Commission. The writ petition was disposed of by thisCourt on 22.09.2006 by its judgment in Prakash Singh’s case in whichseveral directions pertaining to the State Security Commission, selectionand minimum tenure of the Director General of Police, minimum tenureof the Inspector General of Police and other officers, separation ofinvestigation, police establishment board, police complaining authorityand National Security Commission were given. The said directions wereissued under Article 32, read with Article 142, of the Constitution ofIndia which were directed to be implemented till the legislature passesthe appropriate legislations. In so far as the selection and minimum tenureof DGP is concerned, this Court directed that the UPSC shall empanelthree senior-most officers of the Department for promotion to the rankof DGP on the basis of their length of service, very good record andrange of experience for heading the police force. The State Governmentshall select the DGP from amongst the three senior-most officersempanelled by the UPSC. minimum tenure of at least two years,irrespective of the date of superannuation, has been fixed by this Court.

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

A19. By way of implementation of the directions issued by thisCourt in Prakash Singh’s case, UPSC framed Draft Guidelines forempanelling officers for appointment as DGP (Chief of Police). Thecomposition of the Empanelment Committee is as under: -

a) Chairman, or in his absence, Member, UPSC – President.

b) Home Secretary to the Government of India or his nomineenot below the rank of Special Secretary to the Government ofIndia.

c) Chief Secretary of the State Government concerned.

Cd) Director General of Police of the State Government concerned.

e) An officer from amongst the head of CPOs/CPMFs notbelonging to the cadre for which selection is being made,nominated by the Government of India, Ministry of HomeAffairs.

D20. Officers belonging to the Indian Police Service of the concernedcadre, not below the rank of ADG, and who have completed at least 30years of service as on the date of occurrence of vacancy for which thepanel is prepared, are eligible for being considered for selection andappointment as DGP. Selection, according to the Guidelines, shall bemerit-based and inclusion in the panel shall be adjudged on the basis ofE‘very good’ record and range of experience for heading the police force.The Draft Guidelines empowered the Committee to adopt its own methodsand procedure for objective assessment of the suitability of officers tothe zone of consideration. The Committee was obligated to makeassessment of the annual confidential reports of the officers withFreference to the last ten years preceding the date of meeting of theCommittee. Only those officers assessed by the Committee as at least‘very good’ for each of the preceding 10 years shall be considered forinclusion in the panel. According to the Guidelines, the Committee shallalso take into account the range of experience, relevant for heading thepolice force as reflected in the bio-data of the officers for determiningGtheir suitability for inclusion in the panel. The Guidelines stipulated thatthe 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 formodification of the judgment in Prakash Singh’s case by giving theHfollowing directions: -

6.1. All the States shall send their proposals in anticipationof the vacancies to the Union Public Service Commission,well in time at least three months prior to the date of retirementof the incumbent on the post of Director General of Police;

6.2 The Union Public Service Commission shall prepare thepanel as per the directions of this Court in the judgment inPrakash Singh’s case(supra) and intimate to the States;

6.3 The State shall immediately appoint one of the personsfrom the panel prepared by the Union Public ServiceCommission;

6.4 None of the States shall ever conceive of the idea ofappointing any person on the post of Director General ofPolice on acting basis for there is no concept of actingDirector General of Police as per the decision in PrakashSingh’s case(supra);

6.5 An endeavour has to be made by all concerned to seethat the person who was selected and appointed as the DirectorGeneral of Police continues despite his date ofsuperannuation. However, the extended term beyond the dateof superannuation should be reasonable period. We say soas it has been brought to our notice that some of the Stateshave adopted practice to appoint the Director General ofPolice on the last date of retirement as consequence of whichthe person continues for two years after his date ofsuperannuation. Such practice will not be in conformitywith the spirit of the direction.

6.6 Our direction No.(c) should be considered by the UnionPublic Service Commission to mean that the persons are to beempanelled, as far as practicable, from amongst the peoplewithin the zone of consideration who have got clear two yearsof service. Merit and seniority should be given due weightage.

6.7 Any legislation/rule framed by any of the States or theCentral Government running counter to the direction shallremain in abeyance to the aforesaid extent.

22. It is relevant to note that the State of Punjab enacted PunjabPolice Act, 2007, subsequent to the decision of this Court in Prakash

ASingh’s case. According to Section 6 of the said Act, the DGP shall beselected by the State Government from amongst the Indian Police Serviceofficers and on appointment, the DGP shall have tenure of not lessthan two years. The validity of the said Act was challenged in WritPetition No.286 of 2013. The State of Punjab filed I.A. No. 144172 of2018 for modification of the order dated 03.07.2018, seeking liberty toBappoint DGP in accordance with the Punjab Police Act, 2007. Whileexamining the contention of the State of Punjab, this Court summonedMr. Rakesh Kumar Gupta, Secretary, UPSC to appear on 15.01.2019.Mr. Gupta submitted before this Court that committees have beenconstituted by the UPSC for selection of DGPs and panels have beenCdrawn by the Committees in respect of 12 States. This Court refused tomodify the order dated 03.07.2018 after being satisfied with the procedureadopted by UPSC to carry out the directions of this Court. As someState Governments were appointing DGP on the last date of service ofthe incumbent to enable the officer to get an extendable term of twoyears, this Court by an order dated 13.03.2019 clarified that empanelmentDof an officer for consideration for appointment to the post of DGP shouldbe only in case of minimum residual tenure of six months. In otherwords, only those officers who have at least six months of service priorto their retirement shall be considered for appointment to the post ofDGP.E23. The contention of the Appellant is that the criteria fixed bythis Court in Prakash Singh’s case was not followed in letter and spiritby the Empanelment Committee of UPSC while conducting selection tothe post of DGP (HoPF). The Draft Guidelines are contrary to thedirections given by this Court in Prakash Singh’s case and therefore,Fthe selection of Respondent No.4 is liable to be set aside. Selection offive core policing areas for evaluation of merit of the officers in respectof range of experience is arbitrary and is tailor-made to suit RespondentNo.4. Admittedly, appellant is senior to respondent No.4 and could nothave been superseded by the Empanelment Committee of the UPSC.

G24. According to UPSC, the Draft Guidelines were made to giveeffect to the directions issued by this Court in Prakash Singh’s case.The Draft Guidelines were placed before this Court when the interlocutoryapplication filed by the Government of India for modification of thejudgment dated 22.09.2006 in Prakash Singh’s case was beingconsidered. This Court expressed its satisfaction regarding the procedureH

and practice followed by UPSC in the matter of selection to the post ofDGP. The Draft Guidelines referred to the factors to be taken intoconsideration by the Empanelment Committee for selection of DGP asper the directions issued by this Court in Prakash Singh’s case. Lengthof service, very good record and range of experience for heading thepolice force are factors to be considered by the Empanelment Committee.According to UPSC, the range of experience is constituent part of thecomponent of merit. In respect of selection to the post of DGP (HoPF)for the State of Punjab, five core policing areas have been identified toassess the range of experience of the officers concerned for the last 10years, which are:-

A. Intelligence

B. Law and order

C. Administration

D. Investigation

E. Security

The selection based on the Draft Guidelines was defended byUPSC on the ground that the Guidelines are in conformity with thedirections issued by this Court in Prakash Singh’s case.

25. This Court in Prakash Singh’s case directed empanelmentof officers for appointment to the post of DGP by UPSC by laying downbroad criteria. The implementation of the directions issued by this Courthas to be on objective basis for which reason the UPSC has framedDraft Guidelines, which are being followed uniformly since 2009 forselection of DGPs in several States. Keeping in mind, the seniority ofthe officers under consideration, selection is conducted on the basis ofvery good record and range of experience for heading the police force.Assessment of very good record of service is on the basis of annualconfidential reports for the last 10 years. Range of experience for headingthe police force assessed by the empanelment committee is done byassessing the performance of officers in five core police areas out of 20policing areas. Discretion was given to the empanelment committees toselect the core policing areas by taking into account the prevailing situationin the States. Considering the peculiar situation of the State of Punjab,intelligence, law and order, administration, investigation and security wereidentified as the core policing areas to ascertain range of experience ofan officer to head the police force.

A26. The Draft Guidelines cannot be said to be contrary to thecriteria laid down by this Court in Prakash Singh’s case. The Guidelinescarry forward the directions given by this Court by stipulating the objectivecriteria for guidance of the empanelment committees. The preparationof panel on the basis of the Draft Guidelines after taking into accountthe core policing areas cannot be said to be arbitrary. We are not impressedBwith the submission of the Appellant that the core policing areas wereidentified only to suit Respondent No. 4. Assessment of relative merit ofthe officers under consideration is within the domain of the EmpanelmentCommittee, which is given liberty to adopt its own procedure. Merit ofthe officers in the zone of consideration is evaluated on the basis of theirCrecord of service and range of experience. panel of three officers hasbeen prepared in the order of seniority. The Appellant was found to beinadequate for inclusion in the panel in the range of experience for corepolicing areas. The Tribunal committed an error in recording the findingthat the Empanelment Committee deviated from the procedure prescribedby this Court in Prakash Singh’s case. There is no basis for theDconclusion of the Tribunal that the Draft Guidelines are contrary to thedirections given by this Court in Prakash Singh’s case. The broad criteriamentioned in the said case are seniority, very good record of service andrange of experience to head police force. The Draft Guidelines whichhave to be scrupulously followed by empanelment committees stipulateEthat selection should be on the same criteria. In the instant case,Empanelment Committee decided to assess the range of experience ofofficers to head the police force in the State of Punjab after consideringthe peculiarities of the State. Identification of five core policing areasout of domain of twenty policing areas cannot be said to be an arbitraryexercise of power. The Tribunal committed an error in accepting theFsubmission of the Appellant that the core policing areas, identified by theEmpanelment Committee was only to favour Respondent No.4 on thebasis of unsubstantiated allegations. Empanelment was directed to bedone by UPSC on the basis of length of service, very good record andrange of experience for heading the police force in Prakash Singh’sGcase (supra). Later, in the order dated 13.03.2019, this Court clarifiedits earlier order dated 03.07.2018 and directed UPSC to prepare thepanel purely on the basis of merit. Be that as it may, the recommendationof the names of 12 officers for consideration is on the basis of completionof thirty years’ service in the cadre of ADGP. Length of service asmentioned in Prakash Singh’s case (supra) is taken into account forH

determination of zone of consideration. The other two factors namely,good record of service and range of experience of all the 12 officersrecommended on the basis of length of service are assessed by theEmpanelment Committee. Inter se merit of the candidates was evaluatedaccording to the objective criteria followed by the EmpanelmentCommittee. The preparation of panel for appointment as DGP (HoPF)for the State of Punjab, by the Empanelment Committee is in complianceof the Draft Guidelines, which are in conformity with the directions issuedby this Court in Prakash Singh’s caseas the panel was prepared aftertaking into account the relevant considerations as directed by this Courtin Prakash Singh’s case and stipulated in the Draft Guidelines. As noirrelevant consideration prompted the decision, the preparation of thepanel by the Empanelment Committee cannot be said to be irrational.Having regard to the nature of the function and the power confided tothe Selection Committee, it is not legal requirement that reasons shouldbe recorded for its conclusion [See: UPSC v. K. Rajaiah & Ors.[23],Union Public Service Commission v. Arun Kumar Sharma & Ors.[24]and Baidyanath Yadav v. Aditya Narayan Roy & Ors[25]]. The Tribunalcommitted an error in holding the decision of the Committee as arbitraryin the absence of reasons. Therefore, the preparation of the panel by theEmpanelment Committee cannot be said to be suffering fromunreasonableness.

27. The Appellant contended that Respondent No. 5 ought to haverecused himself from the Empanelment Committee as he is inimicallydisposed of towards him. The Appellant argued that he was appointed tohead special investigation team by the High Court of Punjab and Haryanato investigate the involvement of law enforcement authorities in drugtrafficking and he unearthed material against senior police officers. Hewas falsely implicated in criminal case involving the suicide of InderpreetSingh Chadha. It is the case of the Appellant that he submitted statusreport to the High Court on 18.05.2018 in sealed cover in which he hasmentioned about the involvement of Respondent No.4 and RespondentNo.5 in drug trafficking. The Appellant referred to the recusal ofRespondent No.5 earlier when he was asked to write his performanceappraisal report. Finally, the Appellant submitted that the preparation ofpanel is vitiated due to bias of the Respondent No.5. On the other hand,

23 (2005) 10 SCC 1524 (2015) 12 SCC 60025 2020 (16) SCC 799

Ait was submitted by the Respondents that the Appellant was involved inthe suicide of Inderpreet Singh Chadha. The special investigation teamheaded by the Appellant submitted two reports on 01.02.2018 and15.03.2018 before the High Court in which there is no mention of eitherRespondent No.4 or Respondent No. 5. The sealed cover submitted bythe Appellant before the High Court was without consulting the otherBtwo members of the special investigation team. It was further submittedthat Respondent No. 5, being the DGP of State, could not have recusedhimself from being member of the Empanelment Committee. It is alsoargued that the Appellant has not raised any objection regarding theparticipation of Respondent No.5 in the selection proceedings. DoctrineCof necessity was pressed into service by the Respondents to submit thatRespondent No.5 could not have recused himself from the EmpanelmentCommittee.28. It is relevant to note that the plea of bias did not find favourwith the Tribunal or the High Court. Before us, the learned counsel forDthe Appellant, relying upon Badrinath (supra), has submitted that evenif one person of the multi-member committee is biased, the decision ofthe committee shall be rendered invalid. Further, this decision holds thatdoctrine of necessity applies only in case committee is constituted by astatute or statutory rule. In other words, if the committee is constitutedunder an administrative order there can be no difficulty in an officerErecusing himself and requesting another officer to be substituted in hisplace. Even if plea of bias is not raised earlier, it can be raised duringthe proceedings in judicial review. Further, even if bias is not directcause of the decision, the test is one of mere likelihood of bias, whichmeans substantial possibility of bias.[26]F29. In exercise of its power under Articles 32 and 142 of theConstitution of India, this Court directed UPSC to constitute anempanelment committee to recommend three senior-most officers withgood record of service and range of experience, and meeting otherparameters, from whom the DGP shall be selected and appointed by theGState Government. The incumbent DGP of the State is member of theempanelment committee according to the Draft Guidelines issued by theUPSC. These Guidelines issued in compliance with the directions givenby this Court under Article 142 of the Constitution of India, we would

26 Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) HigherHSecondary School and Others, (1993) 4 SCC 10

accept, are well-known and in public domain. Therefore, the positionthat Respondent No.5, being the DGP, would be member of theEmpanelment Committee was within the knowledge of the Appellant.Ignorance of this factum when pretended must be rejected as merepretence. The two Appellants are not laymen, but senior police officersaspiring for the appointment to the top police position in the State. Inendorsement of our reasoning, we have on record news articlepublished in the Hindustan Times, dated 30[th] January 2019, titled “DGP’sappointment – All eyes on UPSC’s February 4 meet”. The articlestates that as per the information gathered from officials privy to thedevelopment, the UPSC meeting will be held in Delhi and would beattended by the Punjab Chief Secretary Mr. Karan Avtar Singh and theincumbent DGP Mr. Suresh Arora, i.e., Respondent No.5. In the givenfacts and considering the position and status of the Appellant, we wouldnot accept the plea that participation of Respondent No.5 in theEmpanelment Committee was unknown or secret for the Appellants.

30. It is in this context, we have to examine whether the Appellantsare estopped from challenging the recommendations made by theEmpanelment Committee, given the fact that they had taken calculatedchance, and not protested till the selection panel was made public. In ouropinion, the ratio in Madan Lal and Others v. State of Jammu andKashmir and Others,[27] would apply in the present case as when aperson takes chance and participates, thereafter he cannot, becausethe result is unpalatable, turn around to contend that the process wasunfair or the selection committee was not properly constituted. Thisdecision, no doubt, pertains to case where the petitioner had appearedat an open interview, however, the ratio would apply to the present caseas the Appellant too had taken calculated chance in spite of the stakes,that too without protest, and then has belatedly raised the plea of biasand prejudice only when he was not recommended. The judgment inMadanlal (supra) refers to an earlier decision of this Court in OmPrakash Shukla v. Akhilesh Kumar Shukla and Others,[28] whereinthe petitioner who had appeared at an examination without protest wasnot granted any relief, as he had filed the petition when he could notsucceed afterwards in the examination. This principle has been reiterated27 (1995) 3 SCC 486

28 (1986) Supp. SCC 285

Ain Manish Kumar Shahi v. State of Bihar and Others,[29] and RameshChandra Shah and Others v. Anil Joshi and Others.[30]

31. More appropriate for our case would be an earlier decision inDr. G. Sarana v. University of Lucknow and Others,[31] wherein asimilar question had come up for consideration before three-judge benchBof this Court as the petitioner, after having appeared before the selectioncommittee and on his failure to get appointed, had challenged the selectionresult pleading bias against him by three out of five members of theselection 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 presentcase to go into the question of the reasonableness of bias orreal likelihood of bias as despite the fact that the appellantknew all the relevant facts, he did not before appearing forthe interview or at the time of the interview raise even hislittle finger against the constitution of the Selection Committee.DHe seems to have voluntarily appeared before the committeeand taken chance of having favourable recommendationfrom it. Having done so, it is not now open to him to turnround and question the constitution of the committee. Thisview gains strength from decision of this Court in ManakELal’s case where in more or less similar circumstances, it washeld that the failure of the appellant to take the identical pleaat the earlier stage of the proceedings created an effectivebar of waiver against him. The following observations madetherein are worth quoting:

F“It seems clear that the appellant wanted to take chance tosecure favourable report from the tribunal which wasconstituted and when he found that he was confronted withan unfavourable report, he adopted the device of raising thepresent technical point.””

G32. The aforesaid judgment in Dr. G. Sarana (supra) was referredin Madras Institute of Development Studies and Another v.K. Sivasubramaniyan and Others,[32 ]in which selection to the post of

29 (2010) 12 SCC 57630 (2013) 11 SCC 30931 (1976) 3 SCC 585H32 (2016) 1 SCC 454

Assistant Professor was challenged on the ground that shortlisting ofcandidates was contrary to the Faculty Recruitment Rules. The challengewas declined on the ground of estoppel as the respondent, without raisingany objection to the alleged variations in the contents of the advertisementand the Rules, had submitted his application and participated in the selectionprocess by appearing before the committee of experts.

33. Equally appropriate would be reference to the decision ofthis Court in P.D. Dinakaran (1) v. Judges Inquiry Committee andOthers,[33] in which the allegation was that one of the members of thecommittee constituted by the Chairman of the Council of States (RajyaSabha) under Section 3(2) of the Judges (Inquiry) Act, 1968 was biased.This judgment extensively recites and assimilates from both domesticand foreign judgments on the question of bias and prejudice and quotesthe following observations in Dr. G. Sarana’s (supra) case:

“11… the real question is not whether member of anadministrative board while exercising quasi-judicial powersor discharging quasi-judicial functions was biased, for it isdifficult to probe the mind of person. What has to be seen iswhether there is reasonable ground for believing that hewas likely to have been biased. In deciding the question ofbias, human probabilities and ordinary course of humanconduct have to be taken into consideration.”

34. Thereafter, reference is made to Ashok Kumar Yadav andOthers v. State of Haryana and Others,[34] which refers to theConstitutional Bench judgment in A.K. Kraipak and Others v. Unionof India and Others.[35]Ashok Kumar Yadav (supra) was case ofselection by UPSC and following extract from this judgmentis of somesignificance:

“18. We must straightaway point out that A.K. Kraipak case isa landmark in the development of administrative law and ithas contributed in large measure to the strengthening ofthe rule of law in this country. We would not like to whittledown in the slightest measure the vital principle laid down inthis decision which has nourished the roots of the rule of lawand 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

no doubt that if Selection Committee is constituted for thepurpose of selecting candidates on merits and one of themembers of the Selection Committee is closely related to acandidate appearing for the selection, it would not be enoughfor such member merely to withdraw from participation in theinterview of the candidate related to him but he must withdrawaltogether from the entire selection process and ask theauthorities to nominate another person in his place on theSelection Committee, because otherwise all the selections madewould be vitiated on account of reasonable likelihood of biasaffecting the process of selection. But the situation here is alittle different because the selection of candidates to theHaryana Civil Service (Executive) and Allied Services is beingmade not by any Selection Committee constituted for thatpurpose but it is being done by the Haryana Public ServiceCommission which is Commission set up under Article 316of the Constitution. It is Commission which consists of aChairman and specified number of members and is aconstitutional authority. We do not think that the principlewhich requires that member of Selection Committee whoseclose relative is appearing for selection should decline tobecome member of the Selection Committee or withdrawfrom it leaving it to the appointing authority to nominateanother person in his place, need be applied in case of aconstitutional authority like the Public Service Commission,whether Central or State. If member of Public ServiceCommission were to withdraw altogether from the selectionprocess on the ground that close relative of his is appearingfor selection, no other person save member can besubstituted in his place. And it may sometimes happen that noother member is available to take the place of such memberand the functioning of the Public Service Commission may beaffected. When two or more members of Public ServiceCommission are holding viva voce examination, they arefunctioning not as individuals but as the Public ServiceCommission. Of course, we must make it clear that when aclose relative of member of Public Service Commission isappearing for interview, such member must withdraw fromparticipation in the interview of that candidate and must not

take part in any discussion in regard to the merits of thatcandidate and even the marks or credits given to that candidateshould not be disclosed to him.”

35. ‘Real likelihood test’ applied in Ranjit Thakur v. Union ofIndia and Others,[36] is elucidated in the following words:

“15...The test of real likelihood of bias is whether reasonableperson, in possession of relevant information, would havethought that bias was likely and whether Respondent 4 waslikely to be disposed to decide the matter only in particularway.

16. It is the essence of judgment that it is made after dueobservance of the judicial process; that the court or tribunalpassing it observes, at least the minimal requirements ofnatural justice; is composed of impartial persons acting fairlyand without bias and in good faith. judgment which is theresult of bias or want of impartiality is nullity and the trial‘coram non judice’.

17. As to the tests of the likelihood of bias what is relevant isthe reasonableness of the apprehension in that regard in themind of the party. The proper approach for the Judge is notto look at his own mind and ask himself, however, honestly,‘Am I biased?’; but to look at the mind of the party beforehim.”

36. In P.D. Dinakaran (1) (supra), this Court held that the memberin question had during seminar spoken against the proposed elevationof the petitioner as Judge of the Supreme Court and, therefore, theapprehension of likelihood of bias is reasonable and not fanciful, thoughin fact, the member may not be biased. Nevertheless, the writ petitionwas dismissed on the ground that the petitioner was not lay person andbeing well-versed in law should have objected to the constitution ofcommittee when notified in the Official Gazette, which factum was highlypublicised in almost all newspapers. Notwithstanding the awareness andknowledge, the petitioner did not object, which indicates that he wassatisfied that the member had nothing against him. Therefore, belatedplea taken by the petitioner did not merit acceptance and mitigates againstbona fidesof the objection to the appointment of the person as member

Aof the committee. In its support, reference was made to several decisionsof this Court, including Shri Lachoo Mal v. Shri Radhey Shyam,[37]which acknowledges the general principle that everyone has right towaive and agree to waive the advantage of law or rule made solely forhis benefit and protection of the individual in his private capacity whichmay be dispensed with without infringing any public right or public policy.BIn Manak Lal (Shri), Advocate v. Prem Chand Singhvi and Others,[38]this Court had declined to nullify an action made on the recommendationof the Tribunal though the chairman of the Tribunal had appeared beforethe appellant in the case. The reason was that the appellant had neverraised point before the Tribunal, which with the other factors reflectedCwaiver. In conclusion, the Court in P.D. Dinakaran (1) (supra) held:“86. In conclusion, we hold that the belated raising ofobjection against the inclusion of Respondent 3 in theCommittee under Section 3(2) appears to be calculated moveon the petitioner’s part. He is an intelligent person and knowsDthat in terms of Rule 9(2)(c) of the Judges (Inquiry) Rules,1969, the Presiding Officer of the Committee is required toforward the report to the Chairman within period of threemonths from the date the charges framed under Section 3(3)of the Act were served upon him. Therefore, he wants to adoptevery possible tactic to delay the submission of report whichEmay in all probability compel the Committee to make requestto the Chairman to extend the time in terms of the proviso toRule 9(2)(c). This Court or, for that reason, no court can renderassistance to the petitioner in petition filed with the soleobject of delaying finalisation of the inquiry.”FNevertheless, the Court in P.D. Dinakaran (1) (supra) hadrequested the Chairman to nominate another distinguished jurist in placeof the person in question, duly noticing that the proceedings initiated hadprogressed only to the stage of framing of charges and nomination ofanother jurist would not hamper the proceedings. The reconstitutedGcommittee would be entitled to proceed on the charges already framed.37. In view of the above ratio, which is applicable, it is not necessaryfor this Court to delve further into the allegations and submissions basedon assertion of bias and prejudice.

37 (1971) 1 SCC 619H38 AIR 1957 SC 425

38. For the aforementioned reasons, we do not find any errorcommitted by the High Court in setting aside the judgment of the Tribunaland upholding the selection and appointment of Respondent No.4 asDGP (HoPF), State of Punjab.

39. The appeals are dismissed.

Nidhi Jain

Appeals dismissed.