TaxTMI 
TaxTMI 
2021 (11) TMI 1181
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....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 judgment of this Court in Prakash Singh v. Union of India (2006) 8 SCC 1 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 judgment 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 judgment of the Tribunal was set aside. Writ Petition filed by Mr. Siddharth Chattopadhyaya (hereinafter referred to as "the Appellant") was dismissed. These appeals are filed assailing the legality and validity of the judgment of the High Court dated 06.11.2020....
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....g 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")? 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? ....
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....sing 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 Anr.' in which Respondent No. 5 was found to be involved in criminal activities. On earlier occasions Respondent No. 5 recused himself in matters relating to the Appellant and, therefore, Respondent No. 5 ought not to hav....
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....ticipation 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 judgment 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 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. Rohat....
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....t. The other members of the Committee have 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 Indian Penal Code 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 ....
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....t no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the Court's exercise of this role, resort I think is today no longer needed to Viscount Radcliff's ingenious explanation in Edwards (Inspector of Taxes) v. Bairstow, of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision makers. "Irrationality" by now can stand on its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as "procedural impropriety" rather than failure to observe basic Rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural Rules that are expressly laid down in the le....
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....C 395, National Institute of Mental Health and Neuro Sciences v. Dr. K. Kalyana Raman 1992 Supp (2) SCC 481, Major General I.P.S. Dewan v. Union of India (1995) 3 SCC 383, Union Public Service Commission v. Hiranyalal Dev (1988) 2 SCC 242, M.V. Thimmaiah v. UPSC (2008) 2 SCC 119 and UPSC v. Sathiyapriya 2018) 15 SCC 796). 17. Keeping in mind the aforestated principles of law, we proceed to examine whether the selection and appointment of Respondent No. 4 as DGP (HoPF) on the basis of the Draft Guidelines is contrary to the judgment of this Court in Prakash Singh's case, suffers from the vice of irrationality and is vitiated due to malice and bias. 18. The Government of India appointed a National Police Commission on 15.11.1977 for reviewing the role and performance of the police as well as law enforcement agencies and as an institution to protect the rights of the citizens enshrined under the Constitution. Recommendations made by the Commission were not implemented giving rise to a writ petition Under Article 32 of the Constitution of India filed by a retired Director General of Police, Prakash Singh in which directions were sought for framing a new Police Act on the line....
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....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 senior-most officers included in the panel. 21. On 03.07.2018, this Court disposed of an application filed for modification of the judgment in Prakash Singh's case by giving the following directions: 6.1. All the States shall send their p....
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....18 for modification of the order dated 03.07.2018, seeking liberty to appoint DGP in accordance with the Punjab Police Act, 2007. While examining the contention of the State of Punjab, this Court summoned Mr. Rakesh Kumar Gupta, Secretary, UPSC to appear on 15.01.2019. Mr. Gupta submitted before this Court that committees have been constituted by the UPSC for selection of DGPs and panels have been drawn by the Committees in respect of 12 States. This Court refused to modify the order dated 03.07.2018 after being satisfied with the procedure adopted by UPSC to carry out the directions of this Court. As some State Governments were appointing DGP on the last date of service of the incumbent to enable the officer to get an extendable term of two years, this Court by an order dated 13.03.2019 clarified that empanelment of an officer for consideration for appointment to the post of DGP should be only in case of a minimum residual tenure of six months. In other words, only those officers who have at least six months of service prior to their retirement shall be considered for appointment to the post of DGP. 23. The contention of the Appellant is that the criteria fixed by this Court in....
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....e 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. 26. The Draft Guidelines cannot be said to be contrary to the criteria laid down by this Court in Prakash Singh's case. The Guidelines carry forward the directions given by this Court by stipulating the objective criteria for guidance of the....
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....n the basis of completion of thirty years' service in the cadre of ADGP. Length of service as mentioned in Prakash Singh's case (supra) is taken into account for determination of zone of consideration. The other two factors namely, good record of service and range of experience of all the 12 officers recommended on the basis of length of service are assessed by the Empanelment Committee. Inter se merit of the candidates was evaluated according to the objective criteria followed by the Empanelment Committee. The preparation of panel for appointment as DGP (HoPF) for the State of Punjab, by the Empanelment Committee is in compliance of the Draft Guidelines, which are in conformity with the directions issued by this Court in Prakash Singh's case as the panel was prepared after taking into account the relevant considerations as directed by this Court in Prakash Singh's case and stipulated in the Draft Guidelines. As no irrelevant consideration prompted the decision, the preparation of the panel by the Empanelment Committee cannot be said to be irrational. Having regard to the nature of the function and the power confided to the Selection Committee, it is not a legal req....
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....anelment Committee. 28. It is relevant to note that the plea of bias did not find favour with the Tribunal or the High Court. Before us, the learned Counsel for the Appellant, relying upon Badrinath (supra), has submitted that even if one person of the multi-member committee is biased, the decision of the committee shall be rendered invalid. Further, this decision holds that 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. Rattan Lal Sharma v. Managing Committee, Dr. Hari Ram (Co-Education) Higher Secondary School and Ors. (1993) 4 SCC 10 29. In exercise of its power Under Articles 32 and 142 of the Constitution of India, this Court directed UPSC to constitute an empanelmen....
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....of the stakes, that too without protest, and then has belatedly raised the plea of bias and prejudice only when he was not recommended. The judgment in Madanlal (supra) refers to an earlier decision of this Court in Om Prakash Shukla v. Akhilesh Kumar Shukla and Ors. (1986) Supp. SCC 285 wherein the Petitioner who had appeared at an examination without protest was not granted any relief, as he had filed the petition when he could not succeed afterwards in the examination. This principle has been reiterated in Manish Kumar Shahi v. State of Bihar and Ors. (2010) 12 SCC 576 and Ramesh Chandra Shah and Ors. v. Anil Joshi and Ors. (2013) 11 SCC 309. 31. More appropriate for our case would be an earlier decision in Dr. G. Sarana v. University of Lucknow and Ors. (1976) 3 SCC 585 wherein a similar question had come up for consideration before a three-judge bench of this Court as the Petitioner, after having appeared before the selection committee and on his failure to get appointed, had challenged the selection result pleading bias against him by three out of five members of the selection committee. He also challenged constitution of the committee. Rejecting the challenge, this Court ....
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....ana's (supra) case: 11... the real question is not whether a member of an administrative board while exercising quasi-judicial powers or discharging quasi-judicial functions was biased, for it is difficult to probe the mind of a person. What has to be seen is whether there is a reasonable ground for believing that he was likely to have been biased. In deciding the question of bias, human probabilities and ordinary course of human conduct have to be taken into consideration. 34. Thereafter, reference is made to Ashok Kumar Yadav and Ors. v. State of Haryana and Ors. (1985) 4 SCC 417 which refers to the Constitutional Bench judgment in A.K. Kraipak and Ors. v. Union of India and Ors. (1969) 2 SCC 262. Ashok Kumar Yadav (supra) was a case of selection by UPSC and following extract from this judgment is of some significance: 18. We must straightaway point out that A.K. Kraipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the Rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the ....
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....ke part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him. 35. 'Real likelihood test' applied in Ranjit Thakur v. Union of India and Ors. (1987) 4 SCC 611 is elucidated in the following words: 15....The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether Respondent 4 was likely to be disposed to decide the matter only in a particular way. 16. It is the essence of a judgment that it is made after due observance of the judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial 'coram non judice'. 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask him....