# MOHD. MUSTAFA v. UNION OF INDIA & ORS

- **Citation:** [2021] 11 S.C.R. 163
- **Court:** Supreme Court of India
- **Decided:** 2021-11-16
- **Case number:** Civil Appeal No.6905 of 2021
- **Bench:** L. Nageswara Rao, Sanjiv Khanna, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohd-mustafa-v-union-of-india-ors-34746
- **Pages:** 35

## Headnote

Service law: Selection and appointment - Post of Director
General of Police (Head of Police Force) - Appointment of
respondent No.4 as DGP (HoPF) by the Governor of Punjab -
Tribunal set aside the selection on the ground that preparation of
the panel for selection of DGP (HoPF) for the State of Punjab was
in contravention of the Prakash Singh's case - High Court set aside
the said order - On appeal, held: Courts in exercise of power under
judicial review do not interfere with selections made by expert bodies
by reassessing comparative merits of the candidates - Interference
is restricted to decisions vitiated by bias, mala fides and contrary to
statutory provisions - Preparation of panel for appointment as DGP
(HoPF) for the State of Punjab, by the Empanelment Committee is
in compliance of the Draft Guidelines, in conformity with the
directions issued by this Court in Prakash Singh's case - Panel was
prepared after taking into account the relevant considerations as
directed by this Court in Prakash Singh's case - No irrelevant
consideration prompted the decision - Preparation of the panel by
the Empanelment Committee cannot be said to be irrational and
unreasonable - Also tribunal erred in holding the decision of the
Committee as arbitrary in the absence of reasons - Furthermore,
allegations based on assertion of bias and prejudice need not be
gone into - Thus, no error committed by the High Court in setting
aside the judgment of the tribunal and upholding the selection and
appointment of respondent No.4 as DGP (HoPF), State of Punjab -
Judicial review.
Judicial review: Power of - Scope - Discussed.
Dismissing the appeals, the Court
HELD: 1.1 Judicial review may be defined as a Court's
power to review the actions of other branches or levels of
government; especially the Court's power to invalidate legislative
[2021] 11 S.C.R. 163
163
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
and executive actions as being unconstitutional. Power of judicial
review is within the domain of the judiciary to determine the
legality of administrative action and the validity of legislations
and it aims to protect citizens from abuse and misuse of power by
any branch of the State. The power of judicial review is a basic
feature of the Constitution of India. Judicial review has certain
inherent limitations. However, it is suited more for adjudication
of disputes other than for performing administrative functions. It
is for the executive to administer law and the function of the
judiciary is to ensure that the Government carries out its duties
in accordance with the provisions of the Constitution. The grounds
on which administrative action is subject to judicial review are
illegality, irrationality and procedural impropriety.[Para 13,
14][180-F-G; 181-A-B]
1.2 The discretionary power vested in an administrative
authority is not absolute and unfettered. Discretion must be
exercised reasonably. [Para 15][182-B]
1.3 Conditions prompted by extraneous or irrelevant
considerations are unreasonable and liable to be set aside by
Courts in exercise of its power under judicial review. A decision
can be arrived at by an authority after considering all relevant
factors. If the discretionary power has been exercised in disregard
of relevant consideration, the Court will normally hold the action
bad in law. Relevant, germane and valid considerations cannot
be ignored or overlooked by an executive authority while taking
a decision. It is trite law that Courts in exercise of power under
judicial review do not interfere with selections made by expert
bodies by reassessing comparative merits of the candidates.
Interference with selections is restricted to decisions vitiated by
bias, mala fides and contrary to statutory provisions. [Para
16][182-D-F]
1.4 By way of implementation of the directions issued by
this Court in Prakash Singh's case, UPSC framed Draft Guidelines
for empanelling officers for appointment as DGP (Chief of Police).
Officers belonging

## Text

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163
MOHD. MUSTAFA
v.
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 Director
General of Police (Head of Police Force) - Appointment of
respondent No.4 as DGP (HoPF) by the Governor of Punjab -
Tribunal set aside the selection on the ground that preparation of
the panel for selection of DGP (HoPF) for the State of Punjab was
in contravention of the Prakash Singh's case - High Court set aside
the said order - On appeal, held: Courts in exercise of power under
judicial review do not interfere with selections made by expert bodies
by reassessing comparative merits of the candidates - Interference
is restricted to decisions vitiated by bias, mala fides and contrary to
statutory provisions - Preparation of panel for appointment as DGP
(HoPF) for the State of Punjab, by the Empanelment Committee is
in compliance of the Draft Guidelines, in conformity with the
directions issued by this Court in Prakash Singh's case - Panel was
prepared after taking into account the relevant considerations as
directed by this Court in Prakash Singh's case - No irrelevant
consideration prompted the decision - Preparation of the panel by
the Empanelment Committee cannot be said to be irrational and
unreasonable - Also tribunal erred in holding the decision of the
Committee as arbitrary in the absence of reasons - Furthermore,
allegations based on assertion of bias and prejudice need not be
gone into - Thus, no error committed by the High Court in setting
aside the judgment of the tribunal and upholding the selection and
appointment of respondent No.4 as DGP (HoPF), State of Punjab -
Judicial review.
Judicial review: Power of - Scope - Discussed.
Dismissing the appeals, the Court
HELD: 1.1 Judicial review may be defined as a Court's
power to review the actions of other branches or levels of
government; especially the Court's power to invalidate legislative
[2021] 11 S.C.R. 163
163
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SUPREME COURT REPORTS
[2021] 11 S.C.R.
and executive actions as being unconstitutional. Power of judicial
review is within the domain of the judiciary to determine the
legality of administrative action and the validity of legislations
and it aims to protect citizens from abuse and misuse of power by
any branch of the State. The power of judicial review is a basic
feature of the Constitution of India. Judicial review has certain
inherent limitations. However, it is suited more for adjudication
of disputes other than for performing administrative functions. It
is for the executive to administer law and the function of the
judiciary is to ensure that the Government carries out its duties
in accordance with the provisions of the Constitution. The grounds
on which administrative action is subject to judicial review are
illegality, irrationality and procedural impropriety.[Para 13,
14][180-F-G; 181-A-B]
1.2 The discretionary power vested in an administrative
authority is not absolute and unfettered. Discretion must be
exercised reasonably. [Para 15][182-B]
1.3 Conditions prompted by extraneous or irrelevant
considerations are unreasonable and liable to be set aside by
Courts in exercise of its power under judicial review. A decision
can be arrived at by an authority after considering all relevant
factors. If the discretionary power has been exercised in disregard
of relevant consideration, the Court will normally hold the action
bad in law. Relevant, germane and valid considerations cannot
be ignored or overlooked by an executive authority while taking
a decision. It is trite law that Courts in exercise of power under
judicial review do not interfere with selections made by expert
bodies by reassessing comparative merits of the candidates.
Interference with selections is restricted to decisions vitiated by
bias, mala fides and contrary to statutory provisions. [Para
16][182-D-F]
1.4 By way of implementation of the directions issued by
this Court in Prakash Singh's case, UPSC framed Draft Guidelines
for empanelling officers for appointment as DGP (Chief of Police).
Officers belonging to the Indian Police Service of the concerned
cadre, not below the rank of ADG, and who have completed at
least 30 years of service as on the date of occurrence of vacancy
for which the panel is prepared, are eligible for being considered
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for selection and appointment as DGP. Selection, according to
the Guidelines, shall be merit- based and inclusion in the panel
shall be adjudged on the basis of 'very good' record and range of
experience for heading the police force. The Draft Guidelines
empowered the Committee to adopt its own methods and
procedure for objective assessment of the suitability of officers
to the zone of consideration. The Committee was obligated to
make assessment of the annual confidential reports of the officers
with reference to the last ten years preceding the date of meeting
of the Committee. Only those officers assessed by the Committee
as at least 'very good' for each of the preceding 10 years shall be
considered for inclusion in the panel. According to the Guidelines,
the Committee shall also take into account the range of
experience, relevant for heading the police force as reflected in
the bio-data of the officers for determining their suitability for
inclusion in the panel. The Guidelines stipulated that the State
Government shall appoint DGP from amongst the three seniormost officers included in the panel. [Para 19, 20][184-A, D-G]
1.5 According to UPSC, the Draft Guidelines were made to
give effect to the directions issued by this Court in Prakash Singh's
case. The Draft Guidelines were placed before this Court when
the interlocutory application filed by the Government of India for
modification of the judgment dated 22.09.2006 in Prakash Singh's
case was being considered. This Court expressed its satisfaction
regarding the procedure and practice followed by UPSC in the
matter of selection to the post of DGP. The Draft Guidelines
referred to the factors to be taken into consideration by the
Empanelment Committee for selection of DGP as per the
directions issued by this Court in Prakash Singh's case. Length
of service, very good record and range of experience for heading
the police force are factors to be considered by the Empanelment
Committee. According to UPSC, the range of experience is a
constituent part of the component of merit. In respect of selection
to the post of DGP (HoPF) for the State of Punjab, five core policing
areas have been identified to assess the range of experience of
the officers concerned for the last 10 years, which are:-
Intelligence, Law and order, Administration, Investigation, and
Security. The selection based on the Draft Guidelines was
MOHD. MUSTAFA v. UNION OF INDIA & ORS.
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[2021] 11 S.C.R.
defended by UPSC on the ground that the Guidelines are in
conformity with the directions issued by this Court in Prakash
Singh's case. [Para 24][186-G-H; 187-A-E]
1.6 This Court in Prakash Singh's case directed
empanelment of officers for appointment to the post of DGP by
UPSC by laying down broad criteria. The implementation of the
directions issued by this Court has to be on objective basis for
which reason the UPSC has framed Draft Guidelines, which are
being followed uniformly since 2009 for selection of DGPs in
several States. Keeping in mind, the seniority of the officers under
consideration, selection is conducted on the basis of very good
record and range of experience for heading the police force.
Assessment of very good record of service is on the basis of
annual confidential reports for the last 10 years. Range of
experience for heading the police force assessed by the
empanelment committee is done by assessing the performance
of officers in five core police areas out of 20 policing areas.
Discretion was given to the empanelment committees to select
the core policing areas by taking into account the prevailing
situation in the States. Considering the peculiar situation of the
State of Punjab, intelligence, law and order, administration,
investigation and security were identified as the core policing
areas to ascertain range of experience of an officer to head the
police force. [Para 25][187-E-H]
1.7 The Draft Guidelines cannot be said to be contrary to
the criteria laid down by this Court in Prakash Singh's case. The
Guidelines carry forward the directions given by this Court by
stipulating the objective criteria for guidance of the empanelment
committees. The preparation of a panel on the basis of the Draft
Guidelines after taking into account the core policing areas cannot
be said to be arbitrary. It cannot be said that the core policing
areas were identified only to suit Respondent No. 4. Assessment
of relative merit of the officers under consideration is within the
domain of the Empanelment Committee, which is given liberty
to adopt its own procedure. Merit of the officers in the zone of
consideration is evaluated on the basis of their record of service
and range of experience. A panel of three officers has been
prepared in the order of seniority. The Appellant was found to be
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inadequate for inclusion in the panel in the range of experience
for core policing areas. The Tribunal committed an error in
recording the finding that the Empanelment Committee deviated
from the procedure prescribed by this Court in Prakash Singh's
case. There is no basis for the conclusion of the Tribunal that the
Draft Guidelines are contrary to the directions given by this Court
in Prakash Singh's case. The broad criteria mentioned in the said
case are seniority, very good record of service and range of
experience to head a police force. The Draft Guidelines which
have to be scrupulously followed by empanelment committees
stipulate that a selection should be on the same criteria. In the
instant case, Empanelment Committee decided to assess the
range of experience of officers to head the police force in the
State of Punjab after considering the peculiarities of the State.
Identification of five core policing areas out of a domain of twenty
policing areas cannot be said to be an arbitrary exercise of power.
The Tribunal committed an error in accepting the submission of
the Appellant that the core policing areas, identified by the
Empanelment Committee was only to favour Respondent No.4
on the basis of unsubstantiated allegations. Empanelment was
directed to be done by UPSC on the basis of length of service,
very good record and range of experience for heading the police
force in Prakash Singh's case. Later, in the order dated
13.03.2019, this Court clarified its earlier order dated 03.07.2018
and directed UPSC to prepare the panel purely on the basis of
merit. The recommendation of the names of 12 officers for
consideration is on the basis of completion of thirty years' service
in the cadre of ADGP. Length of service as mentioned in Prakash
Singh's case taken into account for determination of zone of
consideration. The other two factors namely, good record of
service and range of experience of all the 12 officers
recommended on the basis of length of service are assessed by
the Empanelment Committee. Inter se merit of the candidates
was evaluated according to the objective criteria followed by the
Empanelment Committee. The preparation of panel for
appointment as DGP (HoPF) for the State of Punjab, by the
Empanelment Committee is in compliance of the Draft Guidelines,
which are in conformity with the directions issued by this Court
in Prakash Singh's case as the panel was prepared after taking
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[2021] 11 S.C.R.
into account the relevant considerations as directed by this Court
in Prakash Singh's case and stipulated in the Draft Guidelines.
As no irrelevant consideration prompted the decision, the
preparation of the panel by the Empanelment Committee cannot
be said to be irrational. Having regard to the nature of the function
and the power confided to the Selection Committee, it is not a
legal requirement that reasons should be recorded for its
conclusion The Tribunal committed an error in holding the
decision of the Committee as arbitrary in the absence of reasons.
Therefore, the preparation of the panel by the Empanelment
Committee cannot be said to be suffering from unreasonableness.
[Para 26][188-A-H; 189-A-E]
1.8 The Appellant contended that Respondent No. 5 ought
to have recused himself from the Empanelment Committee as
he is inimically disposed of towards him. The Appellant argued
that he was appointed to head a special investigation team by the
High Court of Punjab and Haryana to investigate the involvement
of law enforcement authorities in drug trafficking and he unearthed
material against senior police officers. He was falsely implicated
in a criminal case involving the suicide of ISC. It is the case of
the Appellant that he submitted a status report to the High Court
on 18.05.2018 in a sealed cover in which he has mentioned about
the involvement of Respondent No.4 and Respondent No.5 in
drug trafficking. The Appellant referred to the recusal of
Respondent No.5 earlier when he was asked to write his
performance appraisal report. Finally, the Appellant submitted
that the preparation of panel is vitiated due to bias of the
Respondent No.5. On the other hand, it was submitted by the
Respondents that the Appellant was involved in the suicide of
ISC. The special investigation team headed by the Appellant
submitted two reports on 01.02.2018 and 15.03.2018 before the
High Court in which there is no mention of either Respondent
No.4 or Respondent No. 5. The sealed cover submitted by the
Appellant before the High Court was without consulting the other
two members of the special investigation team. It was further
submitted that Respondent No. 5, being the DGP of a State, could
not have recused himself from being a member of the
Empanelment Committee. It is also argued that the Appellant
has not raised any objection regarding the participation of
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Respondent No.5 in the selection proceedings. Doctrine of
necessity was pressed into service by the Respondents to submit
that Respondent No.5 could not have recused himself from the
Empanelment Committee. [Para 27][189-E-G; 190-A-C]
1.9 The plea of bias did not find favour with the Tribunal or
the High Court. The doctrine of necessity applies only in case a
committee is constituted by a statute or a statutory rule. In other
words, if the committee is constituted under an administrative
order there can be no difficulty in an officer recusing himself and
requesting another officer to be substituted in his place. Even if
a plea of bias is not raised earlier, it can be raised during the
proceedings in judicial review. Further, even if bias is not a direct
cause of the decision, the test is one of mere likelihood of bias,
which means a substantial possibility of bias. [Para 28][190-D-F]
1.10 In exercise of its power under Articles 32 and 142 of
the Constitution of India, this Court directed UPSC to constitute
an empanelment committee to recommend three senior-most
officers with good record of service and range of experience, and
meeting other parameters, from whom the DGP shall be selected
and appointed by the State Government. The incumbent DGP of
the State is a member of the empanelment committee according
to the Draft Guidelines issued by the UPSC. These Guidelines
issued in compliance with the directions given by this Court under
Article 142 of the Constitution of India, are well-known and in
public domain. Therefore, the position that Respondent No.5,
being the DGP, would be a member of the Empanelment
Committee was within the knowledge of the Appellant. Ignorance
of this factum when pretended must be rejected as a mere
pretence. The two Appellants are not laymen, but senior police
officers aspiring for the appointment to the top police position in
the State. The article published in the Hindustan Times, dated
30th January 2019, titled "DGP's appointment - All eyes on
UPSC's February 4 meet", states that as per the information
gathered from officials privy to the development, the UPSC
meeting will be held in Delhi and would be attended by the Punjab
Chief Secretary Mr. Karan Avtar Singh and the incumbent DGP
MOHD. MUSTAFA v. UNION OF INDIA & ORS.
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Mr. Suresh Arora, i.e., Respondent No.5. In the given facts and
considering the position and status of the Appellant, the plea that
participation of Respondent No.5 in the Empanelment Committee
was unknown or a secret for the Appellants cannot be accepted.
[Para 29][190-F-G; 191-A-D]
1.11 It is to be examined whether the Appellants are
estopped from challenging the recommendations made by the
Empanelment Committee, given the fact that they had taken a
calculated chance, and not protested till the selection panel was
made public. In the instant case, the Appellant too had taken a
calculated chance in spite of the stakes, that too without protest,
and then has belatedly raised the plea of bias and prejudice only
when he was not recommended. [Para 30][191-D-E, F]
Madan Lal and Others v. State of Jammu and Kashmir
and Others (1995) 3 SCC 486 : [1995] 1 SCR 908 -
relied on.
1.12 It is not necessary for this Court to delve further into
the allegations and submissions based on assertion of bias and
prejudice. There is no error committed by the High Court in
setting aside the judgment of the tribunal and upholding the
selection and appointment of Respondent No.4 as DGP (HoPF),
State of Punjab. [Para 37, 38][196-G; 197-A]
P. D. Dinakaran (1) v. Judges Inquiry Committee and
Others (2011) 8 SCC 380 : [2011] 10 SCR 1064;
Prakash Singh v. Union of India (2006) 8 SCC 1 :
[2006] 6 Suppl. SCR 473 - relied on.
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
: [1981] 1 SCR 206; Kesavananda Bharati v. State of
Kerala (1973) 4 SCC 225 : [1973] Suppl. SCR 1; S. R.
Bommai v. Union of India (1994) 3 SCC 1 : [1994] 2
SCR 644; Ram Avtar Sharma v. State of Haryana (1985)
3 SCC 189 : [1985] 3 SCR 686; State of U.P. v. Raja
Ram Jaiswal (1985) 3 SCC 131 : [1985] 3 SCR 1021;
Sheonandan Paswan v. State of Bihar & Others (1983)
1 SCC 438 : [1983] 2 SCR 61; Sant Raj v. O.P. Singla
(1985) 2 SCC 349 : [1985] 3 SCR 623; Sachidanand
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Pandey v. State of WB (1987) 2 SCC 295 : [1987] 2
SCR 223; Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan
(1990) 1 SCC 305; Badrinath v. State of T.N. (2000) 8
SCC 395 : [2000] 3 Suppl. SCR 573; National Institute
of Mental Health and Neuro Sciences v. Dr. K. Kalyana
Raman (1992) 2 Suppl. SCC 481; Major General I. P.
S Dewan v. Union of India (1995) 3 SCC 383 : [1995]
2 SCR 532; Union Public Service Commission v.
Hiranyalal Dev (1988) 2 SCC 242 : [1988] 3 SCR 302;
M. V. Thimmaiah v. UPSC (2008) 2 SCC 119 : [2007]
13 SCR 624; UPSC v. Sathiyapriya (2018) 15 SCC
796 : [2018] 6 SCR 701; UPSC v. K. Rajaiah & Ors.
(2005) 10 SCC 15; Union Public Service Commission
v. Arun Kumar Sharma & Ors. (2015) 12 SCC 600;
Baidyanath Yadav v. Aditya Narayan Roy & Ors. (2020)
16 SCC 799 : [2019] 15 SCR 427; Rattan Lal Sharma
v. Managing Committee, Dr. Hari Ram (Co-Education)
Higher Secondary School and Others (1993) 4 SCC
10 : [1993] 3 SCR 863; Om Prakash Shukla v. Akhilesh
Kumar Shukla and Others (1986) Suppl. SCC 285 :
[1986] SCR 855; Manish Kumar Shahi v. State of Bihar
and Others (2010) 12 SCC 576; Ramesh Chandra Shah
and Others v. Anil Joshi and Others (2013) 11 SCC
309 : [2013] 5 SCR 687; Dr. G. Sarana v. University of
Lucknow and Others (1976) 3 SCC 585 : [1977] 1 SCR
64; Madras Institute of Development Studies and
Another v. K. Sivasubramaniyan and Others (2016) 1
SCC 454 : [2015] 14 SCR 276; Ashok Kumar Yadav
and Others v. State of Haryana and Others (1985) 4
SCC 417 : [1985] 1 Suppl. SCR 657; A.K. Kraipak
and Others v. Union of India and Others (1969) 2 SCC
262; Ranjit Thakur v. Union of India and Others (1987)
4 SCC 611 : [1988] 1 SCR 512; Shri Lachoo Mal v.
Shri Radhey Shyam (1971) 1 SCC 619; Manak Lal
(Shri), Advocate v. Prem Chand Singhvi and Others AIR
1957 SC 425 : [1957] SCR 575 - referred to.
Council of Civil Service Unions and others v. Minister
for Civil Service [1985] AC 374; Associated Provincial
MOHD. MUSTAFA v. UNION OF INDIA & ORS.
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[2021] 11 S.C.R.
Picture Houses Ltd v. Wednesbury Corp. [1947] 2 All
ER 680; Padfield v. Minister of Agriculture [1968] 1
All ER 694 - referred to.
Case Law Reference
[1981] 1 SCR 206
referred to
Para 13
[1973] Suppl. SCR 1
referred to
Para 13
[1994] 2 SCR 644
referred to
Para 13
[1985] 3 SCR 686
referred to
Para 16
[1985] 3 SCR 1021
referred to
Para 16
[1983] 2 SCR 61
referred to
Para 16
[1985] 3 SCR 623
referred to
Para 16
[1987] 2 SCR 223
referred to
Para 16
(1990) 1 SCC 305
referred to
Para 16
[2000] 3 Suppl. SCR 573
referred to
Para 16
(1992) 2 Suppl. SCC 481
referred to
Para 16
[1995] 2 SCR 532
referred to
Para 16
[1988] 3 SCR 302
referred to
Para 16
[2007] 13 SCR 624
referred to
Para 16
[2018] 6 SCR 701
referred to
Para 16
[2006] 6 Suppl. SCR 473
relied on
Para 19,
22-26, 28
(2005) 10 SCC 15
referred to
Para 26
(2015) 12 SCC 600
referred to
Para 26
[2019] 15 SCR 427
referred to
Para 26
[1993] 3 SCR 863
referred to
Para 28
[1995] 1 SCR 908
relied on
Para 30
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[1986] SCR 855
referred to
Para 30
(2010) 12 SCC 576
referred to
Para 30
[2013] 5 SCR 687
referred to
Para 30
[1977] 1 SCR 64
referred to
Para 31
[2015] 14 SCR 276
referred to
Para 32
[1985] 1 Suppl. SCR 657
referred to
Para 34
[1988] 1 SCR 512
referred to
Para 35
[2011] 10 SCR 1064
relied on
Para 36
(1971) 1 SCC 619
referred to
Para 36
[1957] SCR 575
referred to
Para 36
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6905
of 2021.
From the Judgment and Order dated 06.11.2020 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 1608 of
2020.
With
Civil Appeal Nos. 6906-6909 of 2021.
Krishnan Venugopal, Paramjit Singh Patwalia, Sr Advs., Ms. Pooja
Dhar, Gaurav Ray, Shivendra Singh, Ejaz Maqbool, Saif Zia, Advs. for
the Appellant.
Atul Nanda, AG, Ms. Aishwarya Bhati, Aman Lekhi, ASGs,
R. Balasubramanian, Mukul Rohatgi, Shyam Divan, Maninder Singh,
Sr. Advs., Ms. Shradha Deshmukh, Shyam Gopal, Anukalp Jain, B. V.
Balaram Das, Naresh Kaushik, Vardhman Kaushik, Manoj Joshi,
Ms. Lalitha Kaushik, Nishant Gautam, B. Purushottama Reddy, Yogesh
Yadav, Ujjwal Sinha, Ms. Mehak Huria, Ritwiz Rishabh, Aniket Seth,
Paranjay Chopra, Ms. Himanjali Gautam, Vardhman Kaushik,
Ms. Ranjeeta Rohatgi, Ms. Samten Doma, Karan Bharihoke, Siddhant
Sharma, Ms. Sanam Tripathi, Ms. Uttara Babbar, Manan Bansal, Prabhas
Bajaj, Advs. for the Respondents.
MOHD. MUSTAFA v. UNION OF INDIA & ORS.
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[2021] 11 S.C.R.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
Leave granted.
1. Aggrieved by the order dated 07.02.2019 passed by the
Governor of Punjab by which Mr. Dinkar Gupta was appointed as Director
General of Police (Head of Police Force) (hereinafter referred to "DGP
(HoPF)"), the Appellants filed original applications before the Central
Administrative Tribunal, Chandigarh Bench, Chandigarh. By an order
dated 17.01.2020, the Tribunal set aside the order dated 07.02.2019 on
the ground that preparation of the panel for selection of DGP (HoPF)
for the State of Punjab was in contravention of a judgement of this
Court in Prakash Singh v. Union of India1 apart from others. Further,
a direction was given to the Union Public Service Commission (hereinafter
referred to as "UPSC") and the State of Punjab to conduct selection for
the post of DGP (HoPF), State of Punjab afresh. The judgement of the
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 judgement of the Tribunal was set aside. Writ Petition
filed by Mr. Siddharth Chattopadhyaya (hereinafter referred to as "the
Appellant") was dismissed. These appeals are filed assailing the legality
and validity of the judgement of the High Court dated 06.11.2020.
2. Mohd. Mustafa, the Appellant in Civil Appeal arising out of
SLP (C) No.14623 of 2020, retired on attaining the age of superannuation
during the pendency of these appeals. As the contentions raised by
Appellants in both the civil appeals are similar, we shall refer to the facts
of Civil Appeal arising out ofSLP (C) Nos. 14982-14985 of 2020.
Mr. Siddharth Chattopadhyaya was inducted to Indian Police Service in
1986 and allocated to Punjab cadre. The post of DGP (HoPF), State of
Punjab was required to be filled up due to the ensuing retirement of
Mr. Suresh Arora. A letter was written by the Union of India on 19.01.2019
to Respondent No.1-UPSC to initiate the process for appointment to the
post of DGP (HoPF) for the State of Punjab. A list of 12 officers who
1 (2006) 8 SCC 1
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were working in the rank of DGP/additional DGP and who had completed
thirty years of service was forwarded by the State of Punjab. The
Appellant was included in the said list.
3. The Empanelment Committee constituted by the UPSC finalised
a panel consisting of Mr. Dinkar Gupta-Respondent No. 4, Mr. M.K.
Tiwari- Respondent No.6 and Mr. V.K. Bhawra Respondent No.7. The
State Government selected and appointed Respondent No.4 as DGP
(HoPF) from the said panel. Challenging the selection and appointment
of Respondent No.4 as DGP (HoPF), the Appellant and Mohd. Mustafa
filed Original Applications in the Central Administrative Tribunal. The
Tribunal, by its order dated 17.01.2020, allowed the Original Applications
and set aside the panel prepared by the Empanelment Committee on
04.02.2019. Consequently, the selection and appointment of Respondent
No.4 as DGP (HoPF) was set aside. The Tribunal directed preparation
of a panel of three senior-most officers afresh strictly in accordance
with the judgment of this Court in Prakash Singh's case (supra).
4. The Tribunal was of the opinion that this Court in Prakash
Singh's case settled the parameters to be followed for selection of the
Director Generals of Police. UPSC deviated from the procedure
prescribed by this Court, rendering the selection invalid. The Tribunal
held that this Court specified three factors which have to be followed
for selection of DGP. Seniority, being one of the factors, along with good
record of service and range of experience to head a police force was
not given due importance by the Empanelment Committee in finalising
the panel. Draft Guidelines 2009 framed by UPSC (hereinafter referred
to as "Draft Guidelines") have no authenticity or legality, according to
the Tribunal. Identification of five core policing areas from the domain
of twenty policing areas is without any basis. In addition, the Tribunal
held that the identification of the core policing areas was to suit the
selected candidate. Preparation of the panel consisting three persons
was also found fault with due to no reasons being assigned.
5. Aggrieved by the judgment of the Tribunal, Writ Petitions were
filed in the High Court of Punjab and Haryana. The High Court framed
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"}?
MOHD. MUSTAFA v. UNION OF INDIA & ORS.
[L. NAGESWARA RAO, J.]
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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 scope of judicial review in matter of the
empanelment and selection by the Selection/
Empanelment Committee?
(b) Whether the Tribunal exceeded the said power of
judicial review in selection of DGP (HoPF} by the UPSC
in February 2019?
4)
Whether the impugned order dated 17.01.2020 of the
Tribunal is liable to be set aside and the consequential
relief?
6. The High Court held that this Court in Prakash Singh's case
has laid down broad guidelines for selection to the post of DGP on the
basis of assessment of officers by considering length of service, very
good record and range of experience for heading the police force. The
Draft Guidelines were framed by UPSC for implementation of directions
issued by this Court in Prakash Singh's case. The conclusion of the
Tribunal that the Draft Guidelines have no authenticity was set aside by
the High Court on the ground that the Draft Guidelines have been approved
by this Court. The jurisdiction of UPSC in formulating Draft Guidelines
and giving discretion to the Empanelment Committee to follow its own
procedure was upheld by the High Court. Selection of five core policing
areas for assessment of the officers from the State of Punjab was
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approved by the High Court. Relying upon judgments of this Court, the
High Court observed that there was no requirement for recording reasons
while finalising the selection of DGPs. The High Court held that the
Tribunal encroached into the domain of the experts in setting aside the
selection made by UPSC. The High Court was in agreement with the
Tribunal that the Appellant failed to make out a case of bias. Finally, the
High Court set aside the judgment of the Tribunal and upheld the selection
and appointment of Respondent No.4 as DGP (HoPF).
7. We have heard Mr. Krishnan Venugopal, learned Senior
Counsel for the Appellant in Civil Appeal arising out of SLP (C) Nos.
14982-14985 of 2020, Mr. P.S. Patwalia, learned Senior Counsel for the
Appellant in Civil Appeal arising out of SLP (C) No.14623 of 2020, Mr.
Aman Lekhi, learned Additional Solicitor General for the Respondent
No.1-UPSC, Mr. Mukul Rohatgi, learned Senior Counsel for the State
of Punjab, Mr. Maninder Singh, learned Senior Counsel for Respondent
No.4 and Mr. Shyam Divan, learned Senior Counsel for Respondent
No.5.
8. Mr. Krishnan Venugopal, learned Senior Counsel appearing for
the Appellant in Civil Appeal arising out of SLP (C) Nos. 14982-14985
of 2020, argued that the empanelment and appointment of Respondent
No. 4 as DGP (HoPF) is vitiated by bias. Respondent No.5 who was a
member of the Empanelment Committee was prejudiced against the
Appellant due to the report filed by the Appellant before the Punjab and
Haryana High Court in Civil Writ Petition No. 20359 of 2013 titled as
'Court on its own motion v. State of Punjab and Another' in which
Respondent No.5 was found to be involved in criminal activities. On
earlier occasions Respondent No. 5 recused himself in matters relating
to the Appellant and, therefore, Respondent No.5 ought not to have
participated in the selection process. Accordingly, the decision of the
Empanelment Committee of which Respondent No.5 was a member is
not bonafide and is liable to be set aside. The Appellant contended that
the Draft Guidelines have no legal sanctity. The criteria laid down by the
Draft Guidelines is contrary to the judgement of this Court in Prakash
Singh's case. The Draft Guidelines cannot be considered as statutory
rules or regulations. It was further submitted on behalf of the Appellant
that the five core policing areas that were identified by the Empanelment
Committee out of twenty policing areas as criteria for assessment of
officers' range of experience to head a police force were tailor-made to
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suit Respondent No. 4. Due weightage has not been accorded to seniority
as laid down by this Court in Prakash Singh's case. Admittedly, the
Appellant is senior to Respondent No.4 and could not have been
overlooked unless there are justifiable reasons for his supersession.
According to the Appellant, the list of 12 officers working as additional
DGP/DGP could not have been forwarded by the State of Punjab for
selection and appointment to one post of DGP. Mr. P. S. Patwalia, learned
Senior Counsel appearing for the Appellant in Civil Appeal arising out of
SLP (C) No.14623 of 2020, submitted that Mr. Mohd. Mustafa has
maximum gallantry awards and has a meritorious record of service. He
was not empanelled due to faulty selection procedure adopted by UPSC.
9. Mr. Aman Lekhi, learned Additional Solicitor General, countered
the submissions made on behalf of the Appellants by arguing that the
Draft Guidelines were approved by this Court. He submitted that the
Draft Guidelines were framed by the UPSC to give effect to the judgement
of this Court in Prakash Singh's case. The five core policing areas that
were identified for empanelment out of twenty domain assignments
usually allocated to police officers was done after taking into account
the peculiar situation and requirement of the State of Punjab. The criteria
laid down by this Court in Prakash Singh's case is part of the Draft
Guidelines and the Tribunal committed an error in holding the Guidelines
to be contrary to the said judgement. Respondent No.5, being the then
DGP (HoPF), was included as a member of the Empanelment Committee
and the Appellants did not raise any objection to his participation in the
deliberations of the Empanelment Committee. It was contended that the
assessment by the Empanelment Committee being strictly in accordance
with the Draft Guidelines and the judgement of this Court in Prakash
Singh's case, the selection and appointment of Respondent No.4 as
DGP (HoPF) is valid. The Empanelment Committee is not required to
record any reasons.
10. Mr. Mukul Rohatgi, learned Senior Counsel appearing for the
State of Punjab, contended that the zone of consideration according to
clause 2 of Draft Guidelines is restricted to the cadre of ADGP/DGP to
officers who have completed 30 years of service. The Draft Guidelines
contained three requirements, namely (i) length of service (ii) very good
record and (iii) range of experience. Identification of five core policing
areas from amongst twenty policing areas for assessment of merit of
officers was done by the Empanelment Committee by taking into account
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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 filing 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 of
Respondent No.5 in the Committee but did not raise any objection to his
continuance in the Empanelment Committee. The Appellant cannot be
permitted to raise a bogey of bias at this late hour. In any event,
Respondent No.5 was required to continue in the Empanelment
Committee as per the doctrine of necessity. The State Government
refuted the contention of the Appellant that there was suppression of
relevant record. It was argued that the relevant record was sent to the
Public Service Commission. The State Government cannot be accused
of favouring Respondent No.4 by not sending the said report to the Public
Service Commission. Mr. Rohatgi submitted that the Draft Guidelines
have been followed for empanelment and selection of a number of DGPs
in several States. The Empanelment Committee comprises of senior
officers of which Respondent No.5 is one member. The selection cannot
be said to be biased when the allegation of prejudice is against one member
of a multi-member Committee.
11. Mr. Maninder Singh, learned Senior Counsel, stated that
Respondent No.4 has an exemplary record of service and is a highly
decorated officer with more medals than the Appellant. Responding to
submissions of the Appellant pertaining to the report filed in the High
Court, Respondent No.4 contended that there is a sinister motive on the
part of the Appellant in trying to mislead this Court that the said report
was filed by the special investigation team. In fact, two reports were
filed by the special investigation team on 01.02.2018 and 15.03.2018.
The said reports were signed by all the members of the Committee in
which no allegations were made against Respondent No.4. Later, another
report was filed by the Appellant alleging that Respondent No.4 was
involved in certain criminal activities. The said report was given in a
sealed cover to the Court. The other members of the Committee have
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gone on record to state that they were not consulted before the said
report was filed before the Court nor do they have any knowledge about
the contents of the report. The Appellant was facing a criminal charge
in a case registered under Section 306 IPC and had engineered the
report only for the purpose of maligning Respondent No.4 to steal a
march over him for selection and appointment as DGP. Mr. Maninder
Singh argued that the Draft Guidelines which are strictly in conformity
with the directions issued by this Court in Prakash Singh's case have
not been challenged in spite of which the Tribunal held them to be in
contravention of the directions in Prakash Singh's case. He further
submitted that Mr. Mustafa has retired on attaining the age of
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 government; especially the
Court's power to invalidate legislative and executive actions as being
unconstitutional2.