Judgment:
1. In this O.A. under Section 19 of the Administrative Tribunals Act, the question to be decided is whether the Notification Annexure 'B' dated 23.5.2001, amended vide order dated 10.7.2001 appointing Shri Dinesh Chandra Vajpai (respondent No. 6) to the post of Director General of Police and Inspector General of Police (for short DG&IGP), is bad and illegal and is liable to be quashed.
2. We shall first state the facts on which there is no dispute between the parties. They are as follows: (i) Applicant, Shri Manas Kumar Chakraborty and respondent No. 6, Shri Dinesh Chandra Vajpai are IFS of 1966 batch and in the merit list the name of the applicant had appeared at Sl. No. 2 and that of the respondent No. 6 at Sl. No. 6.
(ii) There are four posts of Director General of Police (DGP) in the State of West Bengal, which are in the Grade and Scale of Rs.24050-650-26000/-. They are: (iii) On 28.2.2001 the following officers were working in the Grade and Scale of DGP : Out of them Shri D. Banerjee and Shri S.K. Ghosh sought voluntary retirement on 28.2.2001 to take up new assignments, (iv) On the two vacancies occurred on 28.02.2001 Shri K.P. Bandhpadhyay (1966 batch) and Shri R.C. Sharma (1966 batch) who had been empanelled earlier were promoted to DGP Grade and Scale.
(v) Shri D.K. Sanyal was the DG&IGP, West Bengal till he retired on 30.04.2001.
(vi) In May 2001, besides the applicant, Shri Bandopadhyay & Shri R.C. Sharma were in the Grade and Scale of DGP. Shri Vajpai (respondent No. 6), ADGP was awaiting promotion to the Grade & Scale of DGP as he had already been empanelled in the year 2000 along with Shri Bandopadhyay & Shri Sharma for the DGP and there existed a vacancy due to retirement of Shri Sanyal on 30.4.2001.
(vii) The Secretary, Department of Home (Police), (respondent No. 5) considered the officers who were in the DGP rank including the applicant and the respondent No. 6 (empanelled DGP) for the post of DG&IGP. He placed his recommendation in favour of respondent No. 6 and submitted the file to the Chief Secretary (respondent No. 3) who in his turn submitted the file to the Chief Minister (respondent No. 2) with his endorsement. The Chief Minister (respondent No. 2) on 23.5.2001 approved the name of respondent No. 6 and thereafter the order of appointment (Annexure 'B'), impugned in this OA, was issued.
(viii) Respondent No. 6 was promoted to the Grade and Scale of DGP and appointed to the post of DG&IGP by the composite order Annexure 'B'.
(ix) On the date respondent No. 6 was appointed as DG&IGP, the applicant was Director General & Commandant General Home Guards and he continues on this post.
(x) The impugned order dated 23.5.2001 indicated that the respondent No. 6 was appointed on officiating basis only, but subsequently vide order dated 10.7.2001 the words "officiate in" were deleted. As such the appointments of respondent No. 6 as DG & IGP is on substantive basis.
I. The applicant pleads that the status of DG&IGP is the highest in terms of legal and administrative responsibilities and duties and his office carries much grade prestige. He is the cadre management authority in the State and he has the legal powers to issue directions for deployment of Police as well as Home Guards.
II. The applicant says that there was a game plan to appoint respondent No. 6 as DG&IGP and therefore, the two senior officers viz., Shri Banerjee and Shri Ghosh were pursuaded to retire.
III. The applicant states that in view of decision of the Supreme Court in the case of Government of Karnataka v. C. Dinakar, 1997(5) SCC 161, respondent No. 6 was not eligible to be considered for the post of DG&IGP as on the date of consideration he was not in the Grade and Scale of DGP. The respondents' case is that the case of Dinakar was decided on the basis of Rules/orders/guidelines which were in force in the State of Karnataka. In West Bengal, there being no such Order/Guidelines, the Central Govt. Guidelines dated 15.1.99 have been followed.
IV. The applicant says that there was no credible mechanism in selecting the DG&IGP as was mandated by the Supreme Court in the case of Vineet Narain v. Union of India and Ors., AIR 1998 SC 889 and hence, the selection and appointment of respondent No. 6 to the post of DG&IGP is bad and illegal.
V. The applicant says that his service record being better than the respondent No. 6 he had a right of appointment to the post of DG&IGP as he was senior to the respondent No. 6.
The respondent admit that the applicant was senior to the respondent No. 6, but deny that he had better record than that of respondent No. 6. They state that it is not necessary that only senior person should be appointed as DG&IGP. A. The contentions of Mr. Ray, learned Senior Counsel for the applicant may be summarised as follows: (i) The Supreme Court has laid down in the case of Dinakar (supra) that only such officers are eligible to be considered for the post of Police Chief who are in the Grade and Scale of DGP on substantive basis and as respondent No. 6 was not in the rank, Grade and scale of DGP on or before 23.5.01, he was not eligible lo be considered for the post.
(ii) When the official respondents considered respondent No. 6 along with the applicant and two other officers who were in the Grade and Scale of DGP, they have treated unequals alike and thus Article 14 of the Constitution of India has been violated.
(iii) No credible mechanism was set up to make selection for the post as required by the Apex Court in the case of Vineet Narain (supra) and reiterated in the case of C. Dinakar (supra) and as such the entire process of selection was bad and illegal and decision based on such process is liable lo be quashed. Mr. Ray conlended that Home Secretary was not superior to the DGPs and hence he had no right to make recommendation. He relied on the case of State of Haryana v. P.C. Wadhwa and Anr., (1987) 2 SCC 602=1987(2) SLJ 162 (SC).
(iv) The respondent had made a design to appoint respondent No. 6 as DG&IGP ignoring the claim of the applicant, which is evident by the fact that the post was kept vacant for more than 21/2 months, and two senior officers were pursuaded to retire. In this connection he cited the case of C.S. Rowjee and Ors. v. State of Andhra Pradesh, AIR 1964 SC 962 and opinion of Kerr on Law of Fraud and Mistake (7th Edition, 674). Mr. Ray pointing out that the Chief Minister has not filed his affidavit to rebut the averments made with regard to design a plan, submitted that adverse inference should be drawn against the respondents. He cited the cases of 5. Pratap Singh v. State of Punjab, AIR 1964 SC 72, Smt. S.R. Venkataraman v Union of India and Anr., AIR 1979 SC 49=1979 SLJ 1 (SC) and the opinion of Sir William Wade on Administrative Law appearing at page 363, 365, 366, 413 and 415.
(v) The respondent No. 6 did not have better service record in comparison to the applicant, rather, vigilance enquiry had been held against him and he was convicted in a case under the Contempt of Courts Act. The applicant who was senior to respondent No. 6 ought to have been selected for the post of DG&IGP. Mr. Ray relied on the observation in the case of C. Dinakar (supra).
B. Per contra the contentions of Mr. Mukherjee, learned Senior Counsel for the official respondents were these:- (i) Dinkar's case was decided on the basis of provision existing in the State of Karnataka providing that only substantively appointed DGPs were eligible to be considered for the post of DG&IGP. In the State of West Bengal there is no such provision and the Central Govt, Guidelines dated 15.1.99 are applicable wherein under Clause (C) (ii) of para IV suitability of Officer to hold a post is judged on the evaluation of service record. Mr. Mukherjee pointed out that after Dinakar's Judgment the Karnataka Govt. made significant new provision making even the ADGPs eligible for appointment as DG&IGP. (ii) In the Supreme Court Judgment of Vineet Narain (supra) it was desired that a credible mechanism shall be set up for appointment, transfer etc. of the Police Chief and thereafter the Central Govt.
Guidelines dated 15.1.99 were issued wherein the credible mechanism was provided for promotion to the post of DGP. According to Mr.
Muhkerjee, the appointment to the post of DG&IGP is only a posting from amongst the eligible officers.
It was submitted that there was nothing wrong in recommending the name of respondent No. 6 by the Home Secretary and when the Chief Secretary endorsed the same. He relied on the cases of Prodyut Kumar v. C.J. of Calcutta High Court, AIR 1976 SC 285 and Union of India v. P.K, Roy, AIR 1968 SC 850, Mr. Mukhrjee tried to distinguish the case of Wadhwa (supra) by contending that AH India Service (Confidential Rolls) Rules, 1970 have been amended after Wadhawa's case.
(iii) The contention of malafides or making a design is without foundation. There was no need to file affidavit of respondent No. 2 as the allegations of malafide were vague and no particulars of the alleged malafide were supplied. He cited the case of Sukhwinder Pal v. State of Punjab, AIR 1982 SC 65, Probodh Sagar v. Punjab SFB, (2000) 5 SCC 630 and Kedar Nath Bahl v. State of Punjab, AIR 1979 SC 220=1979 SLJ 105 (SC).
(iv) No departmental enquiry was held after the preliminary enquiry by the Vigilance Section and therefore, it could not be considered a circumstance against respondent No. 6. It was urged that main purpose of civil contempt proceedings is to enforce the Court's order and as such it is a wrong of private nature.
C. Mr. Kar, learned Counsel for the respondent No. 6 adopted the arguments advanced on behalf of the official respondents.
5. The serious question to be considered by us is whether only DGPs holding post on substantive basis were eligible to be considered for the post of DG&IGP. Admittedly, there is no Rule/Order/Guideline to that effect and the case hinges on the proper understanding of the ratio in the case of C. Dinkar.
At the outset it may be stated that nowhere in the Judgment in the case of Dinakar there are observations of their Lordships of the Supreme Court laying down that only officers in the rank/Grade and Scale of DGP are eligible to be considered for the post of DG&IGP. Of course, there are certain observation of the Karnataka High Court in its Judgment and their Lordships of the Supreme Court have reproduced them.
We have carefully read the said paragraphs reproduced in the Judgment of the Supreme Court and we have no manner of doubt to deduce that the relevant observations were made on the basis of the admitted facts. It has been observed at para 6 of the report as follows: "We are of the view that on the admitted facts as found by the High Court, no case is made out for interference with the Judgment under appeal.
"If respondent No. 4 was not a Director General prior to 6th March, 1997, then there was no material before respondent No. 2 to consider him for appointment by selection to the post of DG&IGP because admittedly only a person substantively holding the cadre of DGP could be considered for appointment to the post of DG&IGP." (emphasis supplied) "On the basis of the above conclusion of facts which cannot be disputed the High Court set aside the impugned Notification and directed to make fresh appointment by selection to the post of DG&IGP by considering the cases of all the eligible Director Generals and keeping in mind the observations made by it".
It is thus obvious that there was no dispute between the parties in the case of C. Dinakar that only officers, holding the cadre of DGP substantively, were eligible to be considered for the post of DG&IGP.It seems there was a provision to that effect in the form of some order or guidelines, which has not been referred to in the Judgment because there was no dispute between the parties as to its existence or it was a tradition, which was being followed for many years and the tradition was never challenged. That is why, no contention was made therein that even ADGP empanelled for DGP was eligible to be considered. Rather all the parties including the official respondents had admitted that Officers only in the DGP cadre substantively were eligible to be considered for the post of DG&IGP.That being so, it has to be accepted that their Lordships of Supreme Court have not laid down a law in the case of C Dinakar that in the country only officers holding Cadre of DGP substantively are eligible to be considered for the post of DG&IGP. As a matter of fact, the Supreme Court has affirmed the observations of the Karnataka High Court, which were based on the admitted facts. In our opinion, it cannot be said to be the ratio of the case that only officers holding substantively the cadre of DGP are eligible for appointment to the post of DG&IGP in all the States.
It has been held by the Apex Court that the decision on question of facts does not serve as precedents : Vide Prakash Chandra Pathak v.State of Uttar Pradesh, AIR 1960 SC 195. The relevant observations of their Lordships are reproduced hereunder : "It is enough to say that decisions even of the highest Court on questions which are essentially questions of fact, cannot be cited as precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances of a particular case coming before the Court. That question has to be determined by the Court as and when it arises with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to precedents in such matters. No, case on facts can be on all fours with those of another." It is also trite that a decision is binding not because of its conclusion but in regard to his ratio and the principle laid down therein: Vide B. Shama Rao v. Union Territory of Pondicherry, AIR 1976 SC 1480.State of Orissa v. Sudhansu Sekhar Misra and Ors., AIR "A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it." As already stated, the Dinkar case was decided on the basis of the admitted facts of the case and no principle or law was laid down by the Apex Court on the question of eligibility of the officers to be considered for the post of DG&IGP.Since the decision in the case of Dinakar was based on admitted facts it has to be accepted that it is not the ratio decidendi of the case that only officers substanlivcty holding the cadre of DGPs are eligible to be considered for the post of DG&IGP, Our conclusion is fortified by the order of the Karnataka Govt. No.DPAR 82 SPS 99, Bangalore dt. 5.7.99, wherein at para 4 it was provided that now even ADGP would be eligible to be considered for appointment to the post of DG&IGP. We reproduce para 4 hereunder: "All Officers in the grade of Director General of Police, including the officers in the grade of Additional Director General of Police eligible to be promoted to the grade of DGP, on account of vacancies available in the grade of DGP, serving within the State or on deputation, shall be eligible to be considered for appointment to the post of Director General & Inspector General of Police." Had there not been a provision earlier that officers of only DGP rank Grade and Scale were eligible to be considered for appointment to the post of DG&IGP, there was hardly a need to incorporate the words "including the officers in the grade of Addl. Director General of Police" in the order. The inclusion of these words after the Supreme Court Judgment strengthens our conclusions.
Not only that, had it been the ratio of the Judgment in the case of Dinakar that only officers substanlively holding the cadre of DGP were eligible for appointment to the post of DG&IGP, how the Karnataka Government could provide in the Govt. Order dated 5.7.99 that ADGP would also be eligible for appointment to the post of DGP. It clearly shows that the decision in Dinakar 's case was based on some existing provision which was done away by the Govt. Order dated 5.7.99.
6. Now the next question that arises for determination is whether the consideration of the respondent No. 6, then ADGP, along with the applicant and two other DGPs violated Article 14 of the Constitution of India. The contention was that unequals were treated alike.
In this connection, this fact cannot be lost sight of that respondent No. 6, who was in the Grade and Scale of ADGP on the date of consideration, had already been empanelled for the post of DGP and he was awaiting only the posting.
There is certainly a difference in respect of a person who is in the Grade and Scale of ADGP, but not empanelled for DGP, and a person in the Grade/Scale of ADGP, but has been empanelled for the DGP. The empanelled takes place, after the DPC, on the proper consideration and assessment of work, approves an employee for promotion to the higher Grade and Scale.
In the instant case, it is an admitted fact that the Screening Committee formed as per the Govt. of India guidelines dated 15.1.99, had already found fit respondent No. 6 for promotion to the post of DGP way back in 2000.
The respondent No. 6 could be given the scale and Grade of DGP w.e.f.
1.5.2001 on the vacancy caused due to the retirement of Shri Sanyal on 30.4.2001, but it could not be done because of the Assembly Elections, which were to be held within 10 days. The respondent No. 6 was posted as Police Commissioner as on 30.4.2001. Had he been given promotion to the higher grade/scale at that point of time, it would have necessitated his transfer from the post of Police Commissioner, which could not be done because the election process had already started.
Soon after the elections were over and the new Govt. was formed the matter was processed. Obviously, their was no fault on the part of respondent No. 6 that he was not placed in the Grade and Scale of DGP till 23.5.01. In our opinion, there could not be a justifiable reason to deprive respondent No. 6 from right of consideration for the post of DG&IGP, when he was already in the approved panel.
It is significant to point out that it is not the case for the applicant that after the recommendation of the DPC vigilance or departmental inquiry had been initiated against respondent No. 6 as to make him disqualified for promotion under para D(ii) of the Govt. of India guidelines dated 15.1.99.
In our considered opinion when respondent No. 6 had already been empanelled for DGP and there was not other officer senior to him awaiting promotion to the post of DGP, it cannot be said that by considering him along with existing DGPs the equality clause of the Constitution was violated.
Of course, in the case of C. Dinakar (supra) the plea of the petitioner that unequals were treated alike was accepted, but as already stated, the requirement in Karnataka was that only a person substantively holding the cadre of DGP was eligible for appointment to the post of DG&IGP. It was an admitted position there that Shri T. Srinivasalu was not substantively holding the cadre of DGP. Therefore, the Karnataka High Court held that unequals were treated alike. That was also the reason, that their Lordships found fault in the composite order of promotion and appointment.
In the State of West Bengal there is no such provision Rather the Central Govt.
guidelines dated 15.1.99 allow that suitability of officers to hold a post may be adjudged by evaluating their service record. In our opinion the word 'Officers' in Sub-clause (ii) of Clause (C) of the guidelines includes the officers holding the cadre as also the officers empanelled for the Cadre, save where Clause (D)(ii) of the guidelines can be pressed into service.
In view of what we have held above, the impugned Notification cannot be said to be bad for the reason that composite order of promotion and appointment was issued. His empanelment for DGP Grade and Scale did entitle the respondent No. 6 to be considered for the post of DG&IGP.Thus there is no merit in the first two contentions of Mr. Ray.
7. The next limb of argument of Mr. Ray was that the official respondents had not set up credible mechanism for making selection for the appointment to the post of DG&IGP and therefore, the selection is bad. Reliance has been placed on the case of Vineet Narain (supra).
According to him, the credible mechanism for selection to the important post of DG&IGP was that a committee of some six Ministers; including Law and Judicial A fairs, Civil Defence, Transport Affairs Service, Prison and Forest and the Chief Secretary was constituted under the Chairmanship of the Chief Minister and that Committee considered the matter.
Learned Counsel for the respondents, on the other hand contended that the Supreme Court has no where directed for the setting up of a committee, as contended on behalf of the applicant. He submitted that the Supreme Court has only desired that credible mechanism should be set up for the selection to the post of Police Chief. According to him, on the procedure followed that the matter was processed by the Principal Home Secretary, who deals with the Police Department in the Government, and he placed the entire record before the Chief Secretary, who in his turn moved the matter to the Chief Minister' who was also holding the Home Portfolio and he took the decision it cannot be said that there was no credible mechanism. He contended that if a committee as suggested by Mr. Ray, is set up to make such appointments, then it will be difficult to take a definite decision in the matter as, the Ministers who are the people's representatives will like to have their person as Police Chief and it will be difficult to take correct decision.
What the Supreme Court has said at para 61 of the report in the case of Vineet Narain (supra) with regard to the selection of the Police Chief is reproduced hereunder : "In view of the problem in the States being even more acute, as elaborately discussed in the Report of the National Police Commission (1979), there is urgent need for the State Governments also to set up credible mechanism for selection of the Police Chief in the States, The Centre Government must pursue the matter with the State Governments and ensure that a similar mechanism, as indicated above, is set up in each State for the selection/ appointment, tenure, transfer and posting of not merely the Chief of the State Police but also all Police Officers of the rank of Superintendent of Police and above. It is shocking to hear, a matter of common knowledge, that in some States the tenure of a Superintendent of Police is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralising the Police force, it has also the adverse effect of politicizing the personal. It is, therefore, essential that prompt measures are taken by the Central Government within the ambit of their constitutional powers in the federation to impress upon the State Governments that such a practice is alien to the envisaged constitutional machinery. The situation described in the National Police Commission's Report (1979) was alarming and it has become much worse by now. The desperation of the Union Home Minister in his letters to the State Governments, placed before us at the hearing, reveal a distressing situation which must be cured, if the rule of law is to prevail. No action within the constitutional scheme found necessary to remedy the situation is too stringent in these circumstances." It becomes clear from the Judgment in the Vineet Narain case that though specific and detailed directions were given in the cases of CBI, Enforcement Directorate and Prosecution Agency, the Supreme Court has left it to the Governments to ensure setting up of a credible mechanism not only for the selection/appointment, but also for the tenure, transfer and posting not merely of the State Police Chief but also of the officers of Superintendent of Police rank and above. The Supreme Court has referred to the report of the National Police Commission. It would have been ideal if the recommendations of the National Police Commission had been effectively implemented. However, this is an all India problem and not restricted to West Bengal only.
It may be stated here that even in the case of C. Dinakar their Lordships have not said about the authority who should take part in tee selection mechanism. There is reference of credible mechanism at para 9 of the report whereunder the High Court's observations have been reproduced which say that in view of Vineet Narain's case credible mechanism is required to be set up. It has no where been said that the mechanism which was at Karnataka was not credible. It is significant to point out that the G.O. No. 197 dated 23.12.96, which provided the mechanism for selection to the post of Head of Department included only the Chief Minister, concerned Minister and the Chief Secretary. Such mechanism was not held to be incredible in the case of C Dinakar.
The question for consideration before us is whether the procedure adopted by the respondents in selecting the respondent No. 6 can be said to be incredible. There cannot be any dispute in this position that the Police Department in a State is looked after by the Home Secretary in the Secretariat. It has to be accepted that he is the best person to have the knowledge about the service particulars and performance of the Police Officers, particularly the officers working in the DGP and ADGP scales. In our opinion, no fault can be found in the procedure when the note was prepared by the Principal Home Secretary and he placed the record of all the officers along with his recommendation before the Chief Secretary and the Chief Secretary in his turn placed the same before the Chief Minister, who also held the Home Portfolio. The Chief Minister in the fact situation was the only person to select an officer for the post of DG&IGP.In this connection Mr. Ray's contention was that the Home Secretary was not superior officer of the DGP and therefore, he could not consider the case and make his recommendation. His contention was based on the decision of the State of Haryana v. P.C. Wadhwa (supra) wherein their Lordships of the Supreme Court held that the Home Secretary was not competent to write ACR of the IGP. Keeping in view the provisions of Police Act, 1861 read with Rule 1.2 of the Punjab Police Rules, 1834 it was held that the Inspector General of Police, Haryana was the Head of the Police Department and the Home Secretary was not the Head of the Department and therefore, the immediate authority superior to the Inspector General of Police was the Minister in-charge of the Police Department and only he was empowered as the reporting authority in regard to the IGP to write the ACR.There is merit in the contention of the learned Counsel for the respondents that in view of the amendment in Rule (a) (e) and (f) and the newly added explanation in All India Service (Confidential Rolls) Rules, 1970 it cannot be said that the Home Secretary cannot write the ACR of the Police Officers. It is to be noticed that after the decision in the case of Wadhwa (supra) amendments were made in Rule 2(a)(e) and (0 of the Rules w.e.f. 8.12.87. The explanation below Rule 2 was inserted to enable the Govt. to authorise officers of different service to write the ACR or to review the same. In view of this change in law after the decision in the case of Wadhwa there cannot be any objection if the Principal Home Secretary moved the papers with his recommendation.
That apart the Supreme Court has not held it be illegal or improper when the ultimate authority takes assistance from any other authority in deciding the matter. See: Union of India and Ors. v. P.K. Roy (supra) and Prodyut \. Calcutta High Court (supra).
It may also be seen that the guidelines issued by the Govt. of India in the matter of promotion to various Scales/Grads in the IFS recognise the role of the Home Secretary.
A similar question arose before the Ahmedabad Bench of this Tribunal in the case of Rajanikant Dattatray Tamhane v. State of Gujarat and Ors., 2001 (2) SLJ (CAT) 116. In Gujarat also there was no committee of the Ministers to make selection for the appointment to the post of DG&IGP and the matter was put up by the Addl. Chief Secretary (Home) to the Chief Secretary who in his turn placed the file before the Minister of State (Home). The appointment to the post of DG&IGP was made with the approval of the Chief Minister. That mechanism was held to be not incredible.
That being so, it cannot be accepted that there was no credible mechanism in the selection and the appointment of respondent No. 6 to the post of DG&IGP is assailable.
We ourselves are not in favour of the constitution of a committee of many Ministers to decide about the DG&IGP as canvassed by Mr. Ray. In that situation it will be difficult to select a proper person for the post.
8. The next important contention of learned Counsel for the applicant was that the respondent have acted malafide when two senior officers were persuaded to seek voluntary retirement and the applicant was not selected to hold the post of DG&IGP, ignoring his seniority.
In our opinion, simply because the two DGPs viz., Shri S.K. Ghosh and Shri D. Banerjee sought voluntary retirement it can not be inferred that there was malafide on the part of the respondents. Shri Ghosh and Shri Banerjee who were to retire after a short period must have considered that it was advantageous to them to seek retirement and take up the new assignment. By accepting those assignments the two officers, not only continued to have the same pay and perks, may be better than that, they also have the benefit of serving for more years. It is obvious that the two officers have got the prestigeous appointments, one, being the Member of the State Public Service Commission and the other as the Member of the State Administrative Tribunal.
It is not the case for the applicant that the two officers had been forced to seek retirement. What has been averred is that they were persuaded to seek voluntary retirement. It may be that there was persuasion to the two officers to hold the prestigeous post as Member of Public Service Commission and as Member of the State Administrative Tribunal, but by that it cannot be inferred that the purpose behind it was to make a ground for respondent No. 6. It may be noted that the voluntary retirement of these two officers had taken place in the month of February and the selection of the respondent No. 6 has been made about three months thereafter.
Learned Counsel for the applicant in this connection contended that there is no need of proving malafide by direct evidence and on the basis of the circumstances the malafide should be presumed, more so when the' Chief Minister himself has not rebutted the allegations by filing counter affidavit. In support of this contention he has cited the cases of C.S. Rowjee v. State ofAndhra Pradesh and Ors, (supra) and R.P. Kapur v. P.S. Kairon and Ors., AIR On the other hand, learned Counsel for the respondents pointing out that there are no allegations of malafide against the Home Secretary who had made recommendation in favour of respondent No. 6 and the Chief Secretary and even in clear term against the Chief Minister contended that the contention of malafide should be rejected outright. He relied on the observations of the Supreme Court in the case of Kedar Nath Bahl v. State of Punjab and Ors., AIR 1979 SC 220, Prakash Singh v. State of Punjab, 2000(5) SCC 630.
We find merit in the contention of the learned Counsel for the respondents. Certainly there are no allegations of malafide against the Principal Home Secretary and Chief Secretary. The allegations of malafide against the Chief Minister arc also vague and therefore, they deserve to be ignored.
In the pase of C.S. Rowjee (supra) relied on by Mr. Ray specific allegations had been made against the Chief Minister. It is in that fact situation that their Lordships held that there should have been clear denial by the Chief Minister, instead of denial so made by the Secretary. Since in the instant case there are no specific allegations of malafide we do not find that there was a need of denial of the allegations by the Chief Minister himself.
So also, the fact situation in the case of R.P. Kapur (supra) was very different. In that case serious allegations had been made against Shri Kairon, the then Chief Minister of Punjab, which fact is evident by narration of facts of para 19 of the report. In that situation, it was observed that the refutation should not have been left to the Secretaries and the Chief Minister himself should have filed counter affidavit.E.P. Royappa v. State of Tamil Nadu, AIR 1914 SC 555, observed at para 92 of the report that the burden of establishing malafide is very heavy on the person who alleges it. It was further observed that the allegations of malafides are often more easily made than proved and the very seriousness of such allegation demands proof of a high order of credibility.Hem Lall Bhandari v. State of Sikkim, AIR 1987 SC 762 has held that where allegations against a person placed in high position are made and if they are not specific and pointed it is not necessary that they are controverted by filing counter affidavit by the person holding high position.State of Punjab v. V.K. Khanna,2001 LAB.I.C. 391 it was held that general allegations of personal vendatta without any basis cannot be said to be a sufficient assertion worth acceptance in a Court of law and there must be a positive evidence available on record in order to decry administrative action on the ground of malafide and arbitrariness.
"A person seeking to invalidate an administrative order on the charge of malafides has to establish the charge of bad faith by furnishing necessary particulars. What the party, in such a case has to prove is not malice in its legal sense. He has to prove malus animus indicating that the State was actuated either by spite or ill will against him or by indirect or improper motives." In the instant case as there are no specific particulars of malafide, it was not necessary for respondent No. 2 to have filed affidavit.
It is significant to point out that it is not the allegation of the applicant that respondent No. 2 was annoyed with him and bore ill will against him for certain reasons or that he was interested in respondent No. 6.
That being so, it cannot be said that process of selection was not fair and reasonable or that the appointment of respondent No. 6 to the post of DG&IGP suffers from vires of malafide.
9. One of the contentions of Mr. Ray was that respondent No. 6 was involved in some CBI inquiry and that he has been punished under the Contempt of Courts Act and therefore, he should not have been selected for the post of DG&IGP.Suffice it to say, on the said inquiry no. D.E. was held against respondent No. 6 and therefore, that circumstance cannot be used against respondent No. 6. It was not disputed during the course of arguments that the Supreme Court has stayed the order of the Calcutta High Court punishing respondent No. 6 for contempt in the appeal preferred against the order. In such situation this circumstance also does not go against respondent No. 6.
10. One of the contentions raised in the O.A. is that all the other three posts of DGPs are subordinate to the DG&IGP and the post of DG&IGP carries much grade prestige and is the highest in status and hence only seniormost DGP ought to have been selected for the post.
There cannot be any dispute in this contention that the post of DG&IGP is the highest post in the Police hierarchy since he manages the entire Police force in a State. It is also true that the post carries high prestige. But the question is, if on that ground only seniormost DGP has to be appointed on the post of DG&IGP. We think, it is neither possible, nor practicable. For such high post, it is the discretion of the concerned authority to decide as to with whom the administration ought to be better run.
In this connection it is profitable to read the observations of the Constitution Bench of the Supreme Court in the case of E.P. Royappa v.State of Tamil Nadu (supra) appearing at paras 87 & 88 of the report hereunder: "Now, to important considerations must weight with us in determining our approach to these questions. First, the post of Chief Secretary is highly sensitive post. It is a post of great confidence- a linchpin in the ad ministration-and smooth functioning of the administration requires that there should be complete re port and understanding between the Chief Secretary and the Chief Minister.
The Chief Minister as the head of the Government is in ultimate charge of the administration and it is he who is politically answerable to the people for the achievements and failures of the Government. If, therefore, for any valid reason the Chief Secretary forfeits the confidence of the Chief Minister, the Chief Minister may legitimately, in the larger interests of administration, shift the Chief Secretary to another post, provided of course that does not involve violation of any of his legal or constitutional rights.
There can be no question in such a case as to who is right and who is wrong.
The displacement of the Chief Secretary from his post in such a case would not be arbitrary and it would not attract the inhibition of Articles 14 and 16. It may, however, be pointed out that such an action would not, we think, ordinarily be taken except for the most compelling reasons, because, if resorted to without justification, it would tend to affect the political neutrality of the public service and lead to demoralisation and frustration amongst the public servants.
88. Secondly, with the vast multitudinous activities in which a modern State is engaged, there are bound to be some posts which require for adequate discharge of their functions, high degree of intellect and specialised experience. It is always a difficult problem for the Government to find suitable officers for such specialised posts. There are not ordinarily many officers who answer the requirements of such specialised posts and the choice with the Government is very limited and this choice becomes all the more difficult, because some of these posts, though important and having onerous responsibilities, do not carry wide executive powers and officers may not, therefore, generally be willing to be transferred to those posts. The Government has in the circumstances to make the best possible choice it can, keeping in view the larger interests of the administration. When, in exercise of this choice, the Government transfers an officer from one post to another, the officer may feel unhappy because the new post does not give him the same amplitude of powers which he had while holding the old post. But that does not make the transfer arbitrary. So long as the transfer is made on account of the exigencies of administration and is not from a higher post to a lower post with discriminatory preference of a junior for the higher post, it would be valid and not open to attach under Articles 14 and 16." That was the case of appointment by transfer of the Chief Secretary.
The principle equally applies to the appointment to the post of the DG&IGP.The post of DG&IGP is a selection post. It cannot be accepted that only senior most DGP can be appointed to the said post. In such appointments merit is the main criterion.
Both the applicant and the respondent No. 6 have brought on record their plus points and minus points of the other. This Court cannot be justified in substituting its opinion for the opinion of respondent No.2 in making the selection. In any case, on the basis of the material on record it cannot be said that the selection and appointment of respondent No. 6 to the post of DG&IGP was arbitrary and illegal.
That being so, this contention is not acceptable that the senior most DGP (applicant) should have been appointed to the post of DG&IGP.It may be stated here that the applicant can in no way be considered subordinate to respondent No. 6 as he is holding the post of Director General and Commandant General Home Guards, which is statutory post under the West Bengal Home Guards Act, 1962. He is under the administrative control of the Home (Civil Defence) Department. There is no material on record to believe that the post of DG&CG Home Guards is under the administrative control of the DG&IGP. So, the question of giving directions by respondent No. 6 to the applicant does not arise.
In other words, there can be no occasion of humiliation of the applicant at the hands of respondent No. 6 in their official capacities. In our opinion the status of the applicant is not lowered down when respondent No. 6 was appointed as DG&IGP.11. As a result of foregoing discussions we find no merit in this O.A.It is liable to be dismissed.