TaxTMI 
TaxTMI 
2012 (8) TMI 1191
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....uctural checks and balances, nor the adequate discharge of government's affirmative [minimal or expansive] obligations, are likely without some form of intervention from a point at least partially outside of ordinary majoritarian politics American Constitutional Law - Lawrence H. Tribe - 2nd Edition - Foundation Press Judicial review provides the legitimate intervention that could steer the course of governance back on course, when it loses sight of the constitutional destination. 2. The judicial process is after all a major ingredient of freedom, despite a government under a constitutional order. The present lis is illustrative of continual executive pre-occupation with a fundamental misconception; that un-canalized, uncharted, unregulated and absolute discretion is essential for effective governance. The rigor of history of structured societies and their formal institutions of governance, ancient, medieval or modern and regardless of the architecture of governance, emphatically belies this assumption. The millenary engagement with the misconception, however continues unabated. 3. The writ petitions are by the State of Andhra Pradesh (for short 'the State') and S....
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....hat the Ministry of Home Affairs (MHA), vide letter dated 10-02-2010 intimated that since the manner of selection of DGP was under consideration by the Supreme Court and a decision awaited, no decision on the issue relating to constitution of Selection Committee for apex level posts of All India Service was taken by the Committee of Secretaries (CoS) under the Chairmanship of the Cabinet Secretary, on 14-09-2009; (iv) that the High Court of Andhra Pradesh by the judgment in Government of Andhra Pradesh v. S.S.P. Yadav (2011) 1 ALT 365 (the Yadav judgment) had inter alia directed the Government to make a final choice from amongst officers empanelled by the UPSC for appointment to the post of DGP (HoPF), following the Supreme Court direction in Prakash Singh, but the Supreme Court issued status quo orders on 13-07-2011, in appeals preferred by the State against the Yadav judgment; (v) that subsequent appointment of Aravinda Rao as DGP (HoPF) on 31-08-2010, was challenged by Gautam Kumar and the Tribunal allowed Gautam Kumar's plea by the order dated 27-04-2011 and directed the State Government to forward the names and other particulars of DGP's t....
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....hief Secretary) it is revealed that all the above six (6) officers were initially considered. Sri Balwinder Singh was however excluded for empanelment in view of his impending retirement with effect from 31-12-2011. The Committee found the other five (5) officers as "fit" for empanelment, for selection as DGP (HoPF). The five (5) officers empanelled by the Selection Committee in the inter se order of seniority are : (1) K.R. Nandan; (2) Gautam Kumar; (3) A Shivasankar; (4) Umesh Kumar; and (5) Dinesh Reddy. 9. The screened list of 'fit' officers drawn up by the Selection Committee was forwarded to the Hon'ble Chief Minister, who after apparently taking into consideration the overall performance, experience, suitability of the officers and the tenure available in the panel suggested by the Selection Committee, selected Dinesh Reddy to be posted as DGP (HoPF) observing : He has the best track record and commendable performance in various posts held by him. 10. A consequent order was issued in G.O. Rt. No. 2861, dated 30-06-2011 appointing Dinesh Reddy as DGP (HoPF). The discourse between t....
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....1 (granting stay of operation of the judgment of the Tribunal dated 27-04-2011 in O.A. No. 958 of 2010 - in appeals preferred there against by the State, Aravinda Rao and Dinesh Reddy), does not inhibit adjudication of Gautam Kumar's challenge to the appointment of Dinesh Reddy; (e) that grant of interim stay of a judgment by an appellate court constitutes stay of operation of execution of the judgment (in this case, the Yadav judgment) but does not operate to eclipse the judgment in Prakash Singh; (f) that as the Supreme Court had declined interim stay, [in an appeal preferred against the judgment dated 08-10-2010 of the High Court of Madras in R. Narataj v. State of Tamil Nadu and others (W.P. No. 6917 of 2010) wherein the Madras High Court declared that the Prakash Singh directive is binding, in the matter of appointment to the post of DGP (HoPF), notwithstanding the 2007 and 2008 Rules)], the obligation to follow the Prakash Singh directive cannot be avoided by the State. 13. The Tribunal recorded its conclusions in para 45 of its order. These read : 45. In the result, the impugned G.O. Rt. No. 2861 GA (SC.C) Department dated ....
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....0 and two reports of 1981; issued notices to the Union of India and the several State Governments and Union Territories; referred to several other (specified) high-powered Committees and Commissions such as the National Human Rights Commission, the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee and the Justice Malimath Committee on Reforms of Criminal Justice System; referred to the Government of India order dated 20-09-2005 constituting a Committee comprising the former Attorney-General Sri Soli Sorabjee and others to draft a new Police Act in view of the socio-economic and political dynamics and the felt necessity for a change in the role of the Police in the context of the ever-new challenges posed by contemporaneous, global and domestic events such as terrorism, extremism, rapid urbanization and the nuanced aspirations of a modern democratic society; referred to the Sorabjee Committee's draft outlines dated 09-09-2006 of a new Police Act; and several other documents. The Court further adverted to the recidivist apathy by the Union and the several State Governments to usher in necessary reforms notwithstanding the observations in Vineeth Narain and others....
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....hat may be prescribed by the Central Government, with due regard to seniority. The 2008 Rules : 18. Amendments were issued to the 2007 Rules by the 2008 Rules in G.S.R.692(E), dated 27-09-2008. Provisions of the 2008 Rules, relevant to the lis, before us, came into force on 01-01-2006. The Pay bands and Grade pays admissible to different categories of members of the Service and the dates with effect from which such Pay bands and Grade pays are deemed to have come into force are incorporated into Rule - 3 of the 2007 Rules. In category - D, under Rule - 3 of the 2007 Rules, (i.e., Above Super Time Scale), apart from Additional Director General of Police in serial No. (i); and DGP- HAG + Scale at serial No. (ii), a third scale was introduced by the 2008 amendment Rules, as serial No. (iii) and reads : (iii) Apex Scale : Rs. 80000 (fixed), Grade Pay : nil (by upgradation of one existing post of Director General of Police as head of police force in the each State cadre); (with effect from the date of issue of notification of the Indian Police Service (Pay) Amendment Rules, 2008). Note - 2 under the amended Rule - 3 is relevant and reads : &n....
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....e UPSC had expressed no difficulty in preparing the panel for forwarding it to the State Government if it was asked to do so; and (d) that G.O. Ms. No. 6391, dated 26-04-2007 [an order issued by the State Government setting out a selection procedure for appointment to the post of DGP (HoPF)] was inconsistent with and derogatory of the Prakash Singh directive. Consequently the Court allowed the writ petition and issued the following directions : (i) to the State Government forward the names of eligible officers in the rank of DGP in the HAG + Scale to the UPSC for preparing a panel, within the stipulated time; (ii) to the UPSC to prepare a panel as directed in Prakash Singh and forward the same to the State, within a specified time; (iii) to the State to thereafter make a selection from amongst officers empanelled by the UPSC for appointment as DGP (HoPF); and (iv) to file a compliance report by 14-12-2010. The 8th respondent was however permitted to discharge the functions of DGP (HoPF) till the process directed above was concluded, as the Court did not wish to leave the post vacant, in public interest, by invalidating the....
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....their subsequent transfers to a post in the DGP-HAG + scale, a reversion/reduction in rank and therefore impermissible? (iii) Whether promoting Sri Girish Kumar to the DGP-HAG + scale violated the 2nd proviso to Rule 4(2) of the IPS (Cadre) Rules 1954 ['the 1954 Rules'] read with Rule 11(7) of the 2007 Rules; whether the illegality in the appointment of Sri Girish Kumar as DGP (HAG + scale) stood cured by the ex-post facto sanction order dated 10.12.2009 of the Central Government, authorising creation of one ex-cadre post (in DGP scale) w.e.f. 25.09.2009, under Rule 11(7) of the 2007 Rules; and whether the subsequent order of the State Government dated 7.10.2009 appointing Sri Girish Kumar as DGP (HoPF) is valid?; and (iv) Whether the observations by the Tribunal regarding the relevant considerations for selection for appointment to the post of DGP (HoPF) or with regard to the rationality of the order dated 7.10.2009, preferring Sri Girish Kumar over Sri Yadav for appointment to the post of DGP (HoPF) and other cognate observations, are sustainable or warrant interference? 30. The Yadav judgment partly allowed the writ petitions filed by the....
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....y; professionalism; a capacity to act decisively and with clinical precision; fidelity to and comprehension of the appropriate role of the police under a federal and democratic constitutional order; and many such and other qualities revealed during the long career require to be considered, while appointing an officer to this critical and sensitive position at the highest level of the police bureaucracy. Different qualities and particular skills may be required in different periods, in the dynamics of public administration. Just as in the life of a Nation there are times of peace and of conflict, in the case of State as well there are placid times as there are times of turbulence and tumult. The etiology of disequilibrium in a society may differ and on occasions, calling for special qualities and skills. Governance is a dynamic phenomenon. This too often calls for not merely ability but aptitude. In the nature of things the Government must be accommodated the power and discretion of rational choice in the selection of officers within the zone of consideration for appointment to the post of DGP(HoPF). The decision in Prakash Singh does not derogate from and in fact fortifies the avai....
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....Court and orders therein : 35. Aggrieved by the Yadav judgment, the State filed S.L.P. (Civil) Nos. 34798 and 34799 of 2010. The learned Advocate General and Sri Venkataramana the learned Senior Counsel for Dinesh Reddy - the petitioners herein, have placed before this court a copy of the order of the Hon'ble Supreme Court dated 10.01.2011 in SLP (Civil) Nos. 34798 and 34799 of 2010. This order reveals that while dispensing with service of notice on the 1st respondent - caveator and directing service of notice on the other respondents within the time stipulated, the apex Court ordered: In the meantime, there will be stay of operation of the impugned judgment. Appointment, if any, made in the meantime, will be subject to the final result of this case. 36. We have extracted the interim direction by the Supreme Court, dated 10.01.2011, since the core and substantive contention emphatically asserted on behalf of the petitioners - the State and Dinesh Reddy, is that on account of the stay of operation of the Yadav judgment the State is liberated from the obligation to follow and implement without demur, the directive in Prakash Singh, pertaining to the process o....
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....erts that after the Prakash Singh judgment, the MHA had filed an interlocutory application seeking clarification/modification of the Apex Court's directives; the Supreme Court constituted a Committee under the Chairmanship of Sri Justice K.T. Thomas to examine the various issues; the Committee submitted its report and the matter is sub-judice. This is a mere narrative of events. Nothing is however stated in this counter on whether the Prakash Singh directive regarding the selection process to be followed for appointment to the post of DGP (HoPF), continues to be operative and mandatory, in the opinion of the Central Government. 40. We are compelled to infer that the Central Government has either no opinion or a clue on this aspect or is content with a Federal Service (The Indian Police Service) administered according to the unrestrained discretion or whim of the State. We are also left with a disquiet. If the Prakash Singh judgment with regard to the process of selection to a critical and Central Service (Head of the State Police Force) is mandatory (as the MHA letter dated 09-05-2011 states) and a State has violated the Prakash Singh mandate, the Central Government has no c....
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....ent DGP) and other incumbent DGP's and appointed as DG & IGP (to Head the State Police Force). This appointment was initially officiating but was later made regular. While the High Court quashed Vajpai's appointment, the Supreme Court distinguished the observations in Government of Karnataka v. C Dinakar (1999) 5 SCC 161 and held that the Dinakar observations (that a person not holding the post of DGP substantively could not be posted as DG & IGP), were on an uncontested premise on that issue. In M.K. Chakraborty, the Supreme Court observed that there being no rule or requirement that eligibility to hold the post of DG & IGP could be limited only to an officer already substantive in the cadre of DG & IGP, appointment of Vajpai as DG & IGP (though while working substantively as Addl. DGP) was not in error (emphasis is supplied). The State's appeal was accordingly allowed; the judgment of the High Court reversed; and the order of the Central Administrative Tribunal (in favour of Vajpai) confirmed. 44. From the ruling in M.K. Chakraborty it is clear that prior to the 2007 Rules (as amended by the 2008 Rules) an officer holding the post of Addl. DGP or for that matter an....
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.... as amended in 2008 have merely specified the zone of consideration for appointment to the post of DGP (HoPF); and the generic norm, i.e., that the process should be by selection on merit, with due regard to seniority (Rule - 3(2)(i) of the 2007 Rules). The Central Government has not prescribed criteria for the process of selection for appointment as Head of police force (for balancing the twin criteria, of merit with due regard to seniority). 49. It is therefore clear that the concerns (transparent procedure for appointment of Head of State Police Force; liberating the Police Force from the status of a mere tool in the hands of unscrupulous masters - a pathology resulting in the misuse and abuse of the Force; and ensuring an independent, fearless, non-partisan, professional and neutral Police Force structured to deliver the mandate of the Constitution and the laws without genuflecting to political patronage); the essential and expressed concerns that led to the issue of a raft of directives in Prakash Singh (including the relevant directive) have not been altered, modified or varied by any statutory prescription set out in the 2007 Rules and the amendments thereto, by the 2008 ....
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....to the final result of this case. Therefore, the Advocate-General says, the rationes of the Yadav judgment and all observations, findings and conclusions recorded therein are rendered sterile and inoperative, till disposal of the SLP's or the eventual civil appeals, by the Supreme Court. It is the further contention, though somewhat ambiguous, that as a consequence of the pendency (for appellate consideration of the Yadav judgment) before the Supreme Court, the Prakash Singh directive itself is rendered unenforceable, at least in Andhra Pradesh and the State is not required to comply with the Supreme Court directive as well. 56. As is apparent the contention has two dimensions : (a) that this Court's conclusion in the Yadav judgment [that the Prakash Singh directive is operative and binding, as neither the 2007 Rules nor the 2008 amendments thereto amount to framing of appropriate legislation - delineating methodology for the process of selection for appointment to the post of DGP (HoPF)], is eclipsed due to the stay of operation of the Yadav judgment, ordered by the Supreme Court on 10-01-2011; and the eclipse continues during pendency of the SLP's; a....
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....chronic default in payment of rents. Eventually, eviction was ordered and a revision against the eviction order filed before the High Court was rejected and another civil appeal was preferred by the appellant-company. 61. Both the civil appeals were therefore considered together and disposed of by the Supreme Court. The Supreme Court framed two questions for consideration, one of which is relevant for our guidance. The relevant question framed was whether in view of the stay of operation of the AAIFR's order dated 07-01-1991 (granted by the Delhi High Court), proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 must be treated as pending and, if so, before which authority. The scope of an order of stay granted by a Court therefore fell for consideration. The Supreme Court observed : ... The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of oper....
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.... per se require the High Court, in the matter pending before it to draw inferences on merits (of the judgment appealed), from the fact that a stay was granted; (ii) the High Court in the above circumstances must decide the matter on merits uninfluenced by the fact that an interim stay was granted by the Supreme Court; (iii) a precedent is the principle contained in a judicial decision, which forms the authoritative and binding element termed as the ratio decidendi. An interim order, which neither finally nor conclusively decides an issue, nor spells out reasons for the interim order, constitutes no precedent and affords no guidance to the lower court, on the further course of adjudication; and (iv) even where reasons are assigned (by the Supreme Court) in support of such non-final interim order containing prima facie findings, these are only tentative. Interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or fait accompli before the final hearing. 64. In Koduru Venkata Red....
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....ng to the learned Advocate-General the binding authority of the earlier judgment of the Supreme Court is rendered inoperative and the earlier Supreme Court judgment ceases to have precedential value, during currency of the order of stay. Such a proposition is productive of universal and unmitigated mischief and therefore does not merit acceptance 68. From the guidance derived from the precedents referred to, we are of the view that stay of operation of the Yadav judgment only disables execution of the consequences of the judgment to the parties thereto. Grant of stay does not extinguish the norm(s) predicated in the judgment. 69. On the aforesaid analyses, this contention merits no acceptance and is rejected. The second contention : 70. Sri V. Ventakaramana fairly admits that the Yadav judgment spells out the ratio that the Prakash Singh directive is operative, binding and compels adherence by the State even after the 2007 Rules and the 2008 amendments thereto. He would however urge that on the principle of comity, the Tribunal ought not to have proceeded with adjudication of Gautam Kumar's application and must have deferred adjudication till conclusion of the SLP&#....
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....nt of the relief asked for or obtainable in the other jurisdiction. 74. In M/s. Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central) AIR 1960 SC 280 a principle akin to comity was applied. The relevant facts in brief. The appellants aggrieved by assessment orders passed under the Income Tax Act, 1922, preferred further appeals to the Income Tax Appellate Tribunal. These were also dismissed. They thereafter applied to the ITAT under Section 66(1) requiring the Tribunal to state a case and refer certain questions of law to the Calcutta High Court for its opinion. These applications were dismissed by the Tribunal. Appellants thereafter applied to the High Court under Section 66(2) for a rule to show-cause why the Tribunal should not state cases and refer certain questions of law to it. Initially rules were issued. Eventually, the High Court discharged the said rules. Thereafter appellants filed four SLP's to the Supreme Court, against orders of the Tribunal dismissing their applications under Section 66(1). In the above circumstances, the Supreme Court dismissed the appeals observing : ... The result of our going into these appeals before us on the m....
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....ion would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another court. 77. In Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and others (2009) 2 SCC 784, the principle of comity was reiterated and the Court observed that the principle postulates that different courts exercising separate jurisdiction should pass similar orders. Applying the principle to the law of injunctions the Supreme Court concluded with a statement of the applicable principle extracted from Lewis & Spelling's : The Law of Injunctions : Where a court having general jurisdiction and having acquired jurisdiction of the subject-matter has issued an injunction, a court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction. 78. The several authorities on the principle of comity do not, either as a rule of law or even a matter of prudence posit, that where the decision of an authorized Tribunal or the High Court is pending appellate consideration (the Supreme Court in this case), particularly presenting a distinct matrix of facts, the Tribunal or the High Court m....
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....urt or the Tribunal, we discern no legal requirement to defer adjudication or to suspend hearing of the lis presented to us in these writ petitions. 82. For the reasons recorded above, the second contention does not merit acceptance; and is accordingly rejected. The revealing chronology : 83. Subsequent to the Yadav judgment, the State on 15-04-2011 addressed the MHA for issue of guidelines [for selection and appointment of DGP (HoPF)] and that in the event of any delay in issue of guidelines, to advise the State on the further course of action to be taken for selection and appointment of DGP (HoPF), in view of the impending retirement of Aravinda Rao with effect from 30-06-2011. The State was anxious to obtain guidance on the appropriate course to be followed and issued two reminders to the Central Government (for guidelines or interim advice, as the case may be) on 24-07-2011 and 10-05-2011. In response, the MHA vide its letter dated 09-05-2011 categorically mandated the State that selection to the post of DGP (HoPF) shall be made by the State Government in accordance with the judgment in Prakash Singh.(Emphasis) 84. Significantly, the State Government having addresse....
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....in Prakash Singh's case -------. iv) Even so and despite Aravinda Rao's appointment also having been set aside by the Tribunal; the note file does not record a single noting advising the non-derogable obligation to follow the Prakash Singh directive; and despite the Central Government's directive dt. 09-05-2011; v) At paras 36-38 of the note file, a reference is made to the direction in the letter dt. 09-05-2011 letter of the Central Government and pendency of litigation in the High Court and the Supreme Court; vi) The Special Chief Secretary to the Chief Minister, on 21-06-2011 circulated a note, to re-examine the issue in the light of the fact that the order of the Tribunal (setting aside the appointment of Aravinda Rao;) was stayed by the High Court (para 40); vii) After this indication from headquarters, a way out of the predicament appears to have been identified and a query was promptly generated whether the opinion of the Advocate General should be obtained. The AG's opinion was sought and tendered, on 28-06-2011. viii) Eventually it was decided that Supreme Court (Prakash Singh) and H....
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....not have and are not vouchsafed absolute or uncanalized power. It is axiomatic that constitutional Government is a limited Government. Discretion is not availability of a choice between lawful and unlawful courses of conduct. As the eminent jurist Aharon Barak points out 20 : Discretion does not exist when the choice is between a lawful possibility and an unlawful possibility... ... The options are determined not by the physical criteria of the feasibility of carrying out the choice, but by the legal criteria of the legality of the execution. The existence of the alternative is determined not by its effectiveness but by its lawfulness. It is not the choice that makes the chosen option lawful; rather, the choice is based on the fact that the option in question is lawful. 88. The governance obligation, of maintenance of Public Order [Entry - 1 of List - II (State List); Seventh Schedule], ought to be executed by the State in accordance with the Constitution and not outside it. Entry - 41 of the State List enumerates the Legislative field : State Public Services. The State has formulated rules for governing the conditions of service of the police services in the State; and issued s....
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....obliged to follow either the All India Services Act or the relevant (IPS) Rules either, while considering selection and appointment to the post of DGP (HoPF), since the Yadav judgment (which dealt with those rules as well), is stayed. We would dilate no further on this analysis. The contention is patently misconceived and does not proceed on any acceptable interpretation of the phraseology of the Supreme Court observation : Appointment, if any, made in the meantime, will be subject to the final result of this case. The contention is accordingly rejected. Summary of our conclusions : (i) The IPS (Pay) Rules, 2007 and the IPS (Pay) amendment Rules, 2008, have made no provision for the process or methodology of selection of officers in the rank of DGP- HAG + Scale to the post of DGP (HoPF); and the Central Government has prescribed no criteria for selection as enabled by Rule 3(2)(i) of the 2007 Rules. The directions issued by the Supreme Court in Prakash Singh v. Union of India have therefore neither worked themselves out (as contended by the petitioners) nor are eclipsed, over-borne or rendered otiose. (ii) The ratio of the judgment of the Madras Hig....
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....sh Singh and communicate the same to the State of Andhra Pradesh. This direction is issued to the UPSC (though not a party to this lis) since UPSC's obligation to empanel officers for appointment to the post of DGP (HoPF) arises from the judgment of the Supreme Court in Prakash Singh; (iii) Within one week (7 days) from the date of receipt of the panel forwarded by the UPSC, as set out in the preceding direction, the State Government shall select one of the three senior-most officers (empanelled by the UPSC), for appointment to the post of DGP (HoPF), in compliance with the directions in Prakash Singh; and (iv) Since the order of the Tribunal setting aside the appointment of Sri V. Dinesh Reddy as DGP (HoPF) is being upheld by this Court herein, in the public interest, we direct that till the process of a fresh and lawful appointment to the post of DGP (HoPF) is executed in accordance with the foregoing directions, Sri Dinesh Reddy may discharge the functions of DGP (HoPF) but as a purely in-charge/officiating arrangement. The officer shall neither be entitled to nor draw salary and emoluments attached to the post of DGP (HoPF). He would however be....