"If all officers eligible are to be considered without any regulation/ restriction of the zone of consideration among such eligible officers, then would such practice not violate the mischief sought to be curtailed/removed by Prakash Singh's case?", the Punjab and Haryana High Court asked the UPSC.
The UPSC has also been directed to compile a chart showing comparative merit of all officers considered for the post of DGP in Punjab and keep the same ready in a sealed cover for consideration of the court.
The court was hearing the plea of the Congress government in Punjab and DGP Dinkar Gupta against a Central Administrative Tribunal verdict of January 17 quashing the latter's appointment as state police chief. The same bench of Justices Jaswant Singh and Sant Prakash had stayed the impugned order earlier.
The Punjab government had in the instant case forwarded its proposal to the UPSC, enclosing a list of 12 eligible officers. Punjab Government had, at the time, a sanctioned strength of 2 cadre posts of DGPs, and it was, therefore, requested that a panel of 6 would be required to be sent by UPSC to the State Government for the post of DGP as per the guidelines of UPSC.
One of the directions issued by the Supreme Court in the 2006 Prakash Singh case was to the effect that a DGP (HoPF) shall be selected from amongst the three senior-most officers of the Department, who have been empanelled for promotion by the UPSC. It was also mentioned that the Commission, in turn, shall take into account, length of service, very good record and range of experience for heading the police force.
The Supreme Court has subsequently obligated all states to send their proposals in anticipation of the vacancy to the UPSC well in time, that is, 3 months prior to the retirement of the incumbent, whereupon, the UPSC shall prepare the panel of the three seniormost officers of the Department based on their length of service, very good record and range of experience for heading the police force, as stipulated by the Prakash Singh judgment (2006). Finally, The panel so prepared is to be intimated to the state, which shall then immediately select and appoint one of the candidates empanelled.
The Opinion of the CAT
The CAT had quashed Gupta's appointment as DGP in the applications filed by Mohammad Mustafa and Siddharth Chattopadhyay, who questioned the selection process.
The Tribunal in its ruling stressed that the UPSC committee prepared a panel of only three officers instead of Punjab's desire of six names. "It is evident that the list of 12 officers was felt necessary on the assumption that a panel of 6 would be prepared by the 2nd respondent (UPSC). On its part, the 2nd respondent does not appear to have addressed the issue as to whether the panel should comprise of 3, as directed by the Hon‟ble Supreme Court or 6, as desired by the 3rd respondent (state government). If the proposed panel was to comprise 3 names, the list of 12 officers was required to be reduced in size, in such a way that it is adequate for preparation of the panel of 3 names. This becomes important from the point of view of the fact that officers at Sl. Nos. 6, 8 & 9 were empanelled", said the CAT.
The UPSC and the empanelment committee had argued that the procedure followed for preparing a panel of eligible officers and the criteria followed by the empanelment committee for objective assessment on the aspect of ''range of experience'' in the five core policing areas (intelligence, law & order, administration, investigation and security) was as per the provisions laid down in the draft guidelines 2009 framed by the UPSC.
In this behalf, the Tribunal observed that the Committee, while preparing the panel made no discussion on the 'range of experience' and accordingly, the Committee has deviated from the parameters stipulated by the top court
The CAT proceeded to add, "Whatever is the permissibility of the adoption of its own method for a Selection Committee, such a facility is totally blocked in the context of selection to the post of DGP (HoPF)".
"Assuming that the core policing areas are relevant in the selection process, it is a matter of record that there existed 20 such areas, which are mentioned in the performance evaluation. It is not even mentioned as to on what basis the 5 areas were selected and why intelligence, which occurs at Sl. No.14 in the list of 20, was accorded primacy", the Tribunal opined.
Stating that the issue can be examined from another angle, the CAT expressed that the "easiest way" for a State Government to ensure that an "officer of its choice and who is pliable as DGP", would be to "continuously post him in any specific activity, howsoever inconsequential it may be", and then to make an effort "to accord primacy to such activity in the process of selection".
"There cannot be a better instance of arbitrariness and favoritism, than this", commented the Tribunal, setting aside the appointment.
Proceedings before the HC
The bench has inquired from the UPSC that "if all officers eligible as per the Draft Guidelines 2009 are to be considered without any regulation/ restriction of the zone of consideration among such eligible officers", then would such practice "not violate the mischief sought to be curtailed/ removed by Prakash Singh's case"?
Besides, the bench, on Thursday, has sought the following data from the UPSC:
1. What is the number fixed for zone of consideration for the empanelment of eligible officers for the post of DGP (HoPF) as per the Draft Guideline 2009?
2. If there is no number fixed for the zone of consideration in Draft Guidelines 2009 then whether the DoPT Guidelines and instructions are relied and followed to regulate the zone of consideration for the consideration of the eligible officers for the empanelment for the post of DGP (HoPF).
3. In the case under (ii) above, if the DoPT guidelines and instructions are not followed and relied then it may clearly be stated as to what is the process / mode followed by UPSC for restricting/ regulating the zone of consideration among all the officers eligible as per the Draft Guidelines 2009?
4. If there is no restriction for the zone of consideration then whether all officers eligible as per the Draft Guidelines 2009 are required to be considered irrespective of their number vis a vis the number of post of DGP (HoPF) to be filed?
5. Does the UPSC insists/ asks for the forwarding of the list / dossiers of all the officers eligible as per the Draft Guidelines 2009 or leaves it to the discretion of the State to forward and send the list/ dossiers of officers eligible as per the Draft Guidelines 2009 as the zone of consideration for the empanelment of officers for the post of DGP (HoPF) of different States?
6. What is the pan India practice regarding the number of officers in the zone of consideration for empanelment of DG (HoPF) for different States.
7. UPSC is directed to prepare and produce the Chart regarding the consideration made by UPSC / Empanelment Committee for the post of DGP (HoPF) of different States in the last five years depicting:-
(i) How many officers were eligible as per Draft Guideline 2009 for each of such consideration?
(ii) How many such officers were called for / considered for empanelment in each such consideration?
(iii) Whether the Zone of consideration was restricted/ regulated as per the relevant DoPT guidelines/ instructions and/ or what criteria whatsoever was followed?
(iv) What was the inter-se seniority of the empanelled Officers among the officers eligible as per the Draft Guideline 2009?
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