IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.10.2010 C O R A M: THE HONOURABLE MR.JUSTICE F.M.IBRAHIM KALIFULLA and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Writ Petition No.6917 of 2010 and M.P.No.2 of 2010 R.Nataraj, I.P.S. .. Petitioner Vs. 1. The State of Tamil Nadu rep.by its Chief Secretary to Government Fort St. George, Secretariat, Chennai 600 009. 2. The State of Tamil Nadu rep.by its Principal Secretary, Home Department Fort St. George, Secretariat, Chennai 600 009. 3. The Union of India Rep. by its Secretary, Ministry of Home Affairs, North Block, New Delhi. 4. The Union Public Service Commission Represented by its Secretary, New Delhi. 5. K.P.Jain, I.P.S. 6. N.Balachandran, I.P.S. 7. K.Vijay Kumar, I.P.S. 8. Letika Saran, I.P.S. 9. Central Administrative Tribunal Madras Bench, Chennai. .. Respondents Writ Petition filed under the Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus to call for the records of the 9th respondent in O.A.No.245 of 2010 dated 8.3.2010 and the order of the 2nd respondent relating to Police Note No.SC/3/2010 dated 8.1.2010 and quash the same and direct the first respondent to follow the decision of the Hon'ble Supreme Court in the matter of Prakash Singh vs. Union of India reported in 2006 8 SCC 1 and Note 2 of G.O.Ms.No.1403 dated 16.10.2008 and G.O.(D) 99 dated 30.1.2009 and select the Director General of Police of the State, Head of the Police Force, from amongst the panel of three senior most Director Generals of Police eligible as on 8.1.2010 and consider the claim of the petitioner for appointment to the said post. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.A.L.Somayaji, Senior counsel for Mr.N.S.Nandakumar For Respondents : Mr.P.S.Raman, Advocate General assisted by Mr.G.Sankaran and Mrs.Pusupa Menon, Spl.G.P for R1 and R2 No appearance for R3 Mr.K.Sridhar for R4 Mrs.T.Girija for R7 Mr.S.Ragunathan for R8 R9-Tribunal O R D E R F.M. IBRAHIM KALIFULLA, J. The petitioner seeks for the issuance of a Certiorarified Mandamus to call for the records of the 9th respondent in O.A.No.245 of 2010 dated 8.3.2010 as well as the order of the 2nd respondent relating to Police Note No.SC/3/2010 dated 8.1.2010, to quash the same and direct the first respondent to follow the decision of the Hon'ble Supreme Court in the matter of Prakash Singh vs. Union of India reported in (2006) 8 SCC 1 and Note 2 of G.O.Ms.No.1403 dated 16.10.2008 and G.O. (D) No.99 dated 30.1.2009 and select the Director General of Police of the State, Head of the Police Force, from amongst the panel of three senior most Director Generals of Police eligible as on 8.1.2010 and consider the claim of the petitioner for appointment to the said post. 2. When the Writ Petition was moved on 7.4.2010, the writ petitioner prayed for an interim order in M.P.No.2 of 2010 to stay the order passed by the 9th respondent dated 8.3.2010 in O.A.No.245 of 2010 and the order of the 2nd respondent in Police Note No.SC/3/2010 dated 8.1.2010 pending disposal of the Writ Petition. The said prayer was not however granted by this Court and an order came to be passed on 7.4.2010 holding as under: "3. We have considered the above submissions. On a perusal of the judgment of the Supreme Court in Prakash Singh's case, referred supra, we are of the considered view that the directions for filling up the post of Director General of Police of a State should be made only as per the empanelment of the candidates and from among the first three of such police officers in the panel. That procedure seems to have not been followed in the instant case. We are also informed that the present incumbent, K.P.Jain, IPS as Director General of Police is attaining the age of superannuation at the end of this month. Since Letika Saran, IPS has been appointed and as on today, she is functioning as Director General of https://hcservices.ecourts.gov.in/hcservices/ Police, we are not inclined to grant interim order. However, we make it clear that her continuance shall abide by further orders in this petition." 3. While the learned Assistant Solicitor General Mr.J.Ravindran took notice on behalf of the 3rd respondent, notice was directed to be served through Court as well as privately on the respondents 4 to 8. On behalf of the 2nd respondent, the learned Special Government Pleader took notice. The 9th respondent being the Central Administrative Tribunal, a formal party, it is not represented by anyone. As far as the 4th respondent UPSC is concerned, subsequently Mr.K.Sridhar, learned Standing Counsel entered appearance. The 8th respondent is now represented by M/s.S.Ragunathan and Shymala. The 7th respondent is represented by his advocate Mrs.T.Girija. Though the 6th respondent was duly served, there is no representation on his behalf either in person or through counsel. It is represented that the 6th respondent has subsequently retired and is no longer in service. 4. Heard Mr.A.L.Somayaji, learned senior counsel for the petitioner, the learned Advocate General Mr.P.S.Raman for the 1st and 2nd respondents and other learned counsel for the other respondents. 5. The sheet anchor of the petitioner's case is the judgment of the Hon'ble Supreme Court in Prakash Singh's case reported in (2006) 8 SCC 1, wherein among other posts, the Hon'ble Supreme Court dealt with the post of Director General of Police as the Head of the State Police and the manner in which the said post should be filled up in every State. 6. Before dealing with the core issue, the brief facts which are required to be stated are that the petitioner, who was directly recruited to the Indian Police Service on 16.7.1975, was said to have been promoted as Inspector General of Police on 18.3.1996 and was subsequently promoted as Additional Director General of Police on 9.9.2001. He was promoted as Director General of Police on 10.9.2008. 7. The 8th respondent was said to have been recruited to the Indian Police Service on 14.11.1976. She was said to have been promoted as Inspector General of Police on 28.11.1997 and thereafter promoted as Additional Director General of Police on 10.6.2002. She was said to have been promoted to the rank of Director General of Police on 2.9.2009. 8. The 7th respondent is also said to have belonged to 1975 batch like that of the petitioner and empanelled as Director General of Police on 21.5.2009. By G.O.D. No.1267, dated 29.11.2008, the Government of India, Ministry of Home Affairs, New Delhi in their communication dated .11.2008 approved the appointment of the 7th respondent to the post of Director of Sardar Vallabai Patel National Police Academy, Hyderabad by temporarily downgrading the post of Director General of Police to Additional https://hcservices.ecourts.gov.in/hcservices/ Director General of Police on deputation basis for the period upto 30.9.2012, i.e., the date of the 7th respondent's superannuation or until further orders, whichever event takes place earlier and on usual terms and conditions of the deputation. He was also directed to be relieved immediately to enable him to take up his appointment on 1.12.2008 at Hyderabad. 9. The 5th respondent, who was also in the rank of Director General of Police was appointed as Director General of Police (Law and Order), which according to the 1st respondent is the post equivalent to the Director General of Police, Head of Police in Tamil Nadu by an order dated 31.8.2008. The 5th respondent applied for 102 days leave i.e. from 18.1.2010 to 29.4.2010 with a request to prefix the holidays from 14.1.2010. He made such an application on 7.1.2010. By G.O.(Rt) No.38 dated 8.1.2010, the 5th respondent was granted Earned Leaver subject to eligibility for 102 days from 18.1.2010 to 29.4.2010 with permission to prefix the holidays from 14.1.2010 to 17.1.2010. It was also certified in the said letter that under Fundamental Rule 26(b)(b), the officer would have continued to act as Director General of Police,Tamil Nadu, Chennai but for his proceeding on leave. By yet another order dated 8.1.2010, in Police No.SC/3/2010, the 2nd respondent passed an order of transfer and posting of the 8th respondent as Director General of Police, Tamil Nadu, Chennai vice the 5th respondent proceeding on leave. 10. On 13.1.2010, on the 5th respondent proceeding on leave, the 8th respondent was said to have taken charge from him. On 30.4.2010, after availing the leave sanctioned, the 5th respondent was permitted to rejoin duty in the post of Director General of Police, Police Service Recruitment Board and was also permitted to retire on the same date. 11. The writ petitioner moved the 9th respondent challenging the appointment of the 8th respondent in O.A.No.245 of 2010. It was dismissed in liminie by the 9th respondent by an order dated 8.3.2010. Thereafter, the present Writ Petition was moved on 7.4.2010 challenging the order of the Tribunal dated 8.3.2010 as well as the order of the 2nd respondent dated 8.1.2010 appointing the 8th respondent as Director General of Police (Law and Order). As stated earlier, the 6th respondent retired from service on superannuation on 31.8.2010. 12. Mr.A.L.Somayaji, learned senior counsel for the petitioner took us through the judgment of the Hon'ble Supreme Court reported in (2006)8 SCC 1, hereinafter referred to as Prakash Singh's case, the subsequent developments that took place and also the orders passed by the Hon'ble Supreme Court at the instance of the 1st respondent. The learned senior counsel also referred to the report of Justice K.T.Thomas, wherein he is said to have indicted the 1st respondent, the State Government for its failure to respond to his letter dated 22.8.2009 and also a direction to take action against the 1st respondent. The learned senior counsel submitted that in spite of the subsequent direction of the Hon'ble Supreme https://hcservices.ecourts.gov.in/hcservices/ Court in Prakash Singh's case in regard to the selection and appointment of Head of the Police Force in the State, the State Government has failed to comply with the directions, while on the other hand the 1st respondent State Government in violation of the specific directions of the Hon'ble Supreme Court, proceeded to appoint the 8th respondent, who was not even in the zone of consideration for being appointed to the post of Director General of Police/Head of the State. 13. The learned senior counsel by making a reference to the G.O. passed by the State Government in G.O.Ms.No.639 contended that the same does not deal with the post of Director General of Police as Head of State Police and therefore the State Government cannot be heard to state that it had complied with the directions of the Hon'ble Supreme Court. The learned senior counsel also brought to our notice a Bill introduced by the State Government known as Tamil Nadu Police Bill, 2008, which according to the learned senior counsel was in tune with the directions of the Hon'ble Supreme Court in Prakash Singh's case. According to the learned senior counsel, on 7.4.2010 at the time when this Court dealt with the Miscellaneous Petition for stay, it was claimed on behalf of the State that the 8th respondent was only transferred and posted as Director General of Police and that the present stand of the 1st and 2nd respondents that the 8th respondent was duly appointed to the post of Director General of Police/Head of Police by way of selection cannot be true. He further contended that when the 5th respondent had only gone on leave and the 8th respondent was transferred and posted in that leave vacancy and when the 5th respondent rejoined duty on 30.4.2010, i.e., on the last date of his service, the claim of the 1st respondent that the 8th respondent was appointed on a regular basis in the post of Director General of Police cannot be true. The learned senior counsel further contended that there could not have been a selection of 8th respondent on 8.1.2010, inasmuch as on that date, there was no regular vacancy in the post of Director General of Police/Head of Police with the apex scale of pay and that admittedly, there was no selection made on or after the date of retirement of the 5th respondent, namely 30.4.2010. It was also pointed out that since the 5th respondent was on leave in the post of Director General of Police/Head of Police, he could not have rejoined on 30.4.2010 as Director General of Police (Training). According to the learned senior counsel, the statement of the Special Government Pleader on 7.4.2010 before this Court at the time when orders were passed in the Miscellaneous Petition that the 8th respondent was only transferred and posted as Director General of Police was not a correct statement. It was contended that since the direction of the Hon'ble Supreme Court in Prakash Singh's case was not followed and since the application for modification as well as review was also dismissed by the Supreme Court, the only manner in which the post of Director General of Police/Head of Police could have been filled up was only by following the direction contained in para 32 (ii)(i) of Prakash Singh's case and the appointment of the 8th respondent cannot be accepted as one made in compliance of the orders of the Hon'ble Supreme Court. The learned senior counsel https://hcservices.ecourts.gov.in/hcservices/ therefore contended that the so-called appointment of the 8th respondent in the post of Director General of Police/Head of Police cannot be allowed to stand and the same is liable to be set aside. 14. On behalf of the 7th respondent, a counter affidavit and reply to the supplementary affidavit of the 2nd respondent was filed. According to the 7th respondent, he became the Additional Director General of Police in Tamil Nadu in September 2001, that he was promoted as Director General of Police (Training) in Tamil Nadu on 9.9.2008 and that he went on deputation as Director of Sardar Vallabai Patel National Police Academy, Hyderabad in November 2008, which post was temporarily downgraded from the level of Director General of Police to the level of Additional Director General of Police on deputation basis for a period upto 30.9.2012 or until further orders. According to him, when he was sent on deputation, the officers of his batch (1975) were only empanelled as Additional Director General of Police in the Central service and that was the reason why the post of Director of Sardar Vallabai Patel National Police Academy, Hyderabad was downgraded to the post of Additional Director General of Police to facilitate him to take charge as Director of that Institution. However, he would contend that subsequently, the Government by memo dated 21.5.2009 empanelled him as Director General of Police in the Government of India and from then onwards he is holding the post of Director General of Police even in Central Service. It is stated that thereafter the post of Director of National Police Academy, Hyderabad has also been upgraded to the original level of Director General of Police. He would further point out that he was in the level of Director General of Police in the State by 9.9.2008 itself and that his joining as Director of National Police Academy, Hyderabad by downgrading the post to the level of Additional Director General of Police in Central service did not have any effect or affect his status as Director General of Police in this State. He would further contend that he was one of the senior officers in the level of Director General of Police and was entitled to be considered in the matter of selection to the post of head of the Police in the State of Tamil Nadu, namely Director General of Police (Law and Order). He also expressed his categoric stand that he never stated that he was unwilling to serve in the State and the averment to the contrary was not true. According to him, if a selection had been made and he were to take charge of the post, the Central Government would revert him back from the central deputation to the State. He would also quote such an instance in the case of Director General of Police of Tamil Nadu, who was recalled from the Central Government and posted in the year 2001. He would attribute mala fides on the part of the 2nd respondent in having questioned the legality of his position to be considered for promotion to the post of Director General of Police/Head of Police. He would also point out that his pay was never affected even while downgrading the post to suit the Central service to the level of Additional Director General of Police. Lastly he would contend that he was not aware whether he was considered for the post of Director General of Police and Head of Police force in the State and if it had not been done, that was in violation of the https://hcservices.ecourts.gov.in/hcservices/ directions of the Hon'ble Supreme Court in Prakash Singh's case and the same cannot be sustained. 15. The 8th respondent filed a counter affidavit dated 14.8.2010, a memo dated 27.8.2010 and an additional counter affidavit on 23.8.2010. While denying the averments of the petitioner filed in support of the Writ Petition, 8th respondent would contend that she is adopting the counter affidavit of the 2nd respondent, that she was appointed as Director General of Police in the State of Tamil Nadu in accordance with law and that there were no infirmities in the said appointment. The 8th respondent has specifically denied the allegations of the petitioner that she started press briefing from 9.1.2010 onwards even before her appointment as Director General of Police on 13.1.2010. By referring to reports published in various Newspapers, the 8th respondent contended that she gave press briefing only after assuming charge as Director General of Police in the Afternoon of 13.1.2010. 16. On behalf of the 1st and 2nd respondents, the learned Advocate General Mr.P.S.Raman addressed arguments. At the outset, the learned Advocate General submitted that paragraph 15 in the Additional Reply affidavit dated 30.8.2010 can be taken as deleted. The learned Advocate General contended that even as per the counter affidavit of the 4th respondent Union Public Service Commission, they have expressed their inability to comply with the directions of the Hon'ble Supreme Court in Prakash Singh's case and that they have filed an Interlocutory Application before the Hon'ble Supreme Court for finalisation of modalities to be followed for the empanelment for the post of Director General of Police and in the circumstances the State Government in compliance of the orders of the Hon'ble Supreme Court formulated a procedure and issued the same by way of a Government Order in G.O.Ms.No.639 dated 26.4.2007. 17. According to the learned Advocate General, since the 7th respondent opted for a Central Government post in December 2008, he had gone out of the zone of consideration in the process of selection for the post of Director General of Police. He would further contend that the 7th respondent while opting to go on deputation, he knew fully well about the said position and that he also as a matter of fact undertook to serve in the deputed post for a minimum period of three years. According to the learned Advocate General, since the vacancy of Director General of Police as Head of State Police had to be filled up expeditiously, there was no scope for considering his candidature. 18. The learned Advocate General placed before the Court the proceedings relating to the selection made for the post of Director General of Police, containing 7 sheets of paper and contended that the same was in compliance of the directions of the Hon'ble Supreme Court in Prakash Singh's case and except that the Union Public Service Commission was not involved, in other respects, it fully satisfied the directions of the Hon'ble Supreme Court. https://hcservices.ecourts.gov.in/hcservices/ 19. According to the learned Advocate General, the procedure which was followed by the State Government has been set out in paragraph 5(a) of G.O.Ms.No.639 dated 26.4.2007. Insofar as the post of Director General of Police (Law and Order) as Head of the State Police, that the proceedings placed before this Court would reveal that such a procedure has been scrupulously followed in the matter of selection of the 8th respondent as Director General of Police and therefore no interference is called for. He would contend that the procedure prescribed in G.O.Ms.No.639 is not inconsistent with the directions of the Hon'ble Supreme Court in Prakash Singh's case and such a prescription by way of an executive order is valid in law as held by the Supreme Court in AIR 1972 SC 995. 20. By referring to the directions contained in the Prakash Singh's case, the learned Advocate General submitted that the first part of the direction, namely empanelment to be made by the UPSC was impossible of compliance, since UPSC was not inclined to carry out the said exercise. According to him, the 7th respondent having not chosen to challenge the selection of the 8th respondent cannot be permitted to have any grievance at any point of time. 21. The learned Advocate General would further contend that the post of Director General of Police as Head of Police in the State being a sensitive post, without in any manner affecting the directions contained in the Prakash Singh's case, the head of the State Government should be given the fullest liberty to make the selection. He would rely on the decision of the Hon'ble Supreme Court in (2003) 2 SCC 604. The learned Advocate General however fairly stated that though the 8th respondent, who was promoted to the post of Director General of Police as Head of Police was not granted apex scale of pay because of the pendency of the writ petition, and that the 5th respondent was drawing the apex scale of pay till 30.4.2010. The learned Advocate General also contended that since the process of selection for the post of Director General of Police was fairly made, any allegation of mala fides cannot stand. He would contend that the reliance placed upon by the petitioner on the Bombay High Court judgment was a total misreading of the said judgment, inasmuch as that was a case where political mala fies were alleged and unlike the State of Tamil Nadu, where G.O.Ms.No.639 was issued in pursuance of the Supreme Court judgment in Prakash Singh's case, there was no such procedure laid down or followed by the State of Maharashtra. 22. The learned Advocate General also contended that no contention relating to the contents of the Note file can be entertained in the absence of any pleadings and that in regard to various credentials, all the candidates, who were considered in the course of selection will always have some grievance or other and that what is to be examined is as to whether the process of selection was made in a fair manner. The learned Advocate General would also contend that in any event non consideration of the 7th respondent's candidature cannot be taken as a ground to challenge https://hcservices.ecourts.gov.in/hcservices/ the appointment of the 8th respondent at the instance of the petitioner inasmuch as the 7th respondent chose not to challenge the selection either before the Central Administrative Tribunal or in this Court. 23. Mr.Sridhar, learned Standing Counsel for the 4th respondent in his submissions contended that by virtue of Article 320 of the Constitution, wherein the functions of the Union Public Service Commission have been set out, the 4th respondent has to follow well laid down procedure and for that reason the 4th respondent has filed an Interlocutory Application before the Hon'ble Supreme Court seeking for the modalities to be followed while carrying out its directions in Prakash Singh's case. He, however, stated that the State Government has not sent any names of the available officers along with their service particulars and therefore the 4th respondent was not in a position to implement the order of the Hon'ble Supreme Court in the matter of appointment to the post of Director General of Police in this State. On behalf of the 4th respondent, the learned Standing