The Supreme Court on Wednesday reserved judgment in the batch of special leave petitions moved against the Punjab and Haryana High Court's order upholding the appointment of Dinkar Gupta as the Punjab DGP. The petitions had been filed by IPS Officers Mohammad Mustafa and Siddarth Chattopadhyay who were not considered for appointment as the top police officer of the State of Punjab.
A Bench comprising Justices LN Rao, Sanjiv Khanna and BR Gavai on Wednesday heard concluding arguments from from the concerned parties and thereafter directed that any additional written submissions must be filed by September 17. Furthermore, the counsel appearing on behalf of the UPSC was also ordered to submit the assessment reports relied upon for the selection of the candidates by Friday.
IPS Officers Mohammad Mustafa and Siddharth Chattopadhyay (1985 and 1986 batch belonging to Punjab Cadre respectively) had approached the Central Administrative Tribunal ("CAT") challenging order dated February 7, 2019 wherein the Government of Punjab appointed Dinkar Gupta, an IPS officer of 1987 batch of Punjab cadre, as Director General of Police, Head of Police Force based on the recommendations of UPSC Empanelment Committee.
A Two member bench of CAT Chairman L Narsimha Reddy and M Jamshed upon IPS Officer's application quashed Gupta's appointment as DGP and observed that the procedure adopted by UPSC and the Empanelment Committee for preparation of the panel for the purpose of selection and appointment of DGP was violative of the procedure stipulated by the Supreme Court Prakash Singh & others v. Union of India & others.
Aggrieved by the CAT's order, UPSC, State of Punjab and Dinkar Gupta had approached Punjab and Haryana High Court. The division bench of Justices Sawant Singh and Sant Prakash on November 6, 2020 while holding that the CAT "exceeded its power of judicial review by transgressing into the domain of law regarding judicial review of the decisions/ recommendations of the Selection Committee," set aside CAT's order that had quashed Dinkar's Appointment.
Submissions advanced by counsels
Serious cloud on the integrity of Siddharth Chattopadhyay: Mukul Rohatgi
Representing the State of Punjab, Senior Advocate Mukul Rohatgi argued that the Supreme Court in its judgment dated March 13, 2019 in Prakash Singh v. Union of India had stressed that appointment of the DGP of a State must be made 'purely on the basis of merit' from officers who have a minimum residual tenure of six months i.e. officers who have at least six months of service prior to the retirement. The Apex Court had also interpreted 'suitability' of selection to mean that the person selected must have a wide range of experience of heading a police force.
To this, Justice Khanna remarked, "the Supreme Court had also stated that seniority must be given weightage".
In response, the senior counsel submitted, "If you have 30 years of experience, concept of seniority is inbuilt. By and large amongst all candidates seniority is already there. In a pyramidal structure, by and large everyone is equal when it comes to seniority".
The Bench further enquired from the senior counsel, "Did you send the names of all officers who had completed 30 years of service to the Empanelment Committee?"
In response, senior advocate Rohatgi submitted, "We sent the names of everyone who had completed 30 years of service except those who did not have the mandated minimum tenure of at least two years of continuous service."
It was further argued that as per the directions laid down in Prakash Singh v. Union of India, the State government had to appoint the DGP from amongst the three senior-most officers of the Department empanelled by the UPSC.
"Three names were sent, we selected the current appointee (Dinkar Gupta) who was the seniormost. Discretion was very limited, they are all top ranking officials", it was further stated by the senior counsel.
Furthermore, it was also pointed out to the Court that the instant challenge was 'far fetched' in so far as the other two officers i.e. out of whom Dinkar Gupta was finally selected (final round of 3) had not preferred any challenge. Instead, two officers i.e. Mohammad Mustafa and Siddharth Chattopadhyay who were knocked out in the selection round of 12 had preferred the instant challenge.
"Officers who were only in the zone and not tipped to the post have posed a challenge", it was submitted.
The senior counsel also apprised the Court that the assessment sheets for selection of candidates had been given in a sealed cover both to the High Court as well as the CAT.
With regards to the allegations of bias levelled against Suresh Arora the then DGP who was the ex-officio member of the Empanelment Committee for the selection of panel for the post of DGP (Head of Police Force), it was argued that Arora was a member of a multi-member committee and that he was not the sole person in charge of the selection. There were officers far senior to Arora in the panel, it was argued.
"The law is very clear, if at all there is bias Arora must have been able to influence everyone in the panel which is a far cry in this case", the senior counsel advanced.
The senior counsel further argued that there was an IPS officer who had committed suicide in 2017 and subsequently the investigation team under IPS Officer Yadav had discovered from the diary of the deceased police officer that Siddharth Chattopadhyay had been blamed for his demise.
"His conduct and integrity are in doubt by the case of the suicide. It is a clear case of abetment of suicide", the senior counsel submitted.
IPS officer Siddharth Chattopadhyay had been empanelled and appointed cadre Officer by the Punjab and Haryana High Court to identify the nexus between senior officers & drug mafia. In this regard, the senior advocate vehemently argued that Siddharth Chattopadhyay had submitted a status report to the High Court on April 5, 2018 in a sealed cover alleging that former DGP Arora and the incumbent DGP Dinkar Gupta were complicit.
"The status report has not seen the light of the day and it was not signed by the other two members of the SIT. It was a self serving status report", senior counsel Rohatgi contended. He further submitted that this was done by Chattopadhyay to defame his competitor Dinkar Gupta as he was well aware that the selection process of appointing a new DGP would soon begin.
It was also argued that the Empanelment Committee is at liberty to choose the 5 Core Policing Areas which form a part of assessment towards the "range of experience" relevant to the suitability of the Officer to be appointed as DGP (HoPF) of that state and effectively address issues on those core areas pertinent to the State. In the last date of hearing, Justice Khanna had also acknowledged this and had orally remarked,
"Each state has its own policing areas. Punjab is a border state. The policing areas in Madhya Pradesh might not be the same as that of Punjab. This varies from state to state."
The senior counsel concluded his submissions by pointing out to the Bench that it was the duty of the DGP as head of the police force to be a part of the Empanelment Committee and thus allegations of bias are unfounded. He thus urged the Bench to dismiss the petitions with costs.
2009 Draft Guidelines mandate the DGP to be a part of the Empanelment Committee: Shyam Divan
Senior counsel Shyam Divan appearing on behalf of former DGP Suresh Arora submitted that both the Punjab and Haryana High Court as well as the CAT had rejected the argument of the petitioners that there was a likelihood of bias against Suresh Arora. The plea of bias is not available to Siddharth Chattopadhyay.
It was also argued that the petitioners had not raised any objection to the empanelment of Arora in the Empanelment Committee during its constitution.
"The petitioners had ample opportunity to seek Arora's recusal from the Committee before the UPSC or the State government", it was argued.
Referring to the 2009 Draft Guidelines stipulating the composition of the Empanelment Committee, it was submitted that the Director General of Police of the State Government is mandated to be a part of the Committee.
"As far as the DGP is concerned, no alternative appointment is provided for in the guidelines", the senior counsel submitted. He further argued that if Suresh Arora was to step aside there were no other officers who were senior to him and could accordingly replace him to a part of the Committee. All other officers were in the 'zone of consideration' to be chosen as the next DGP, it was further added.
Senior counsel Divan further contended that the 'doctrine of necessity' applied heavily in the instant case considering the structure of the committee and the task conferred upon the Committee. He also echoed similar concerns of senior counsel Rohatgi by stating that it is the duty of the DGP to be a part of the Empanelment Committee.
In regards to the status report submitted by Siddharth Chattopadhyay on behalf of the SIT constituted to probe the nexus between the police and drug mafia, it was submitted,
"The other two members of the SIT namely IPS officers Pramod Kumar and Vijay Pratap Singh had completely dissociated themselves from the SIT report." A reference was made to their statements on record.
Reliance was also placed in the Supreme Court judgment in Badri Nath v. Govt of Tamil Nadu & Ors wherein the doctrine of necessity had been recognised by ruling,
"It may be noticed that where a statute or a statutory rule constitutes a designated authority to take administrative or quasi-judicial decisions and where the person concerned is disqualified to take a decision on the principle of likelihood of bias, then the law (in certain circumstances explained below) makes an exception in the situation and the said person is entitled to take a decision notwithstanding his disqualification for otherwise no decision can be taken by anybody on the issue and public interest will suffer"
He also submitted that the Draft Guidelines framed which mandate the presence of the DGP in the Empanelment Committee have a 'statutory flavour' as they are applied throughout the country and therefore must not be departed from.
Unfounded, baseless attack on Dinkar Gupta as if he is a part of some drug cartel: Maninder Singh
Senior Advocate Mainder Singh appearing for the incumbent DGP Dinkar Gupta raised serious objections to the status report submitted by Siddharth Chattopadhyay to the Punjab and Haryana High Court on behalf of the SIT constituted to probe the nexus between police authorties and the drug mafia.
"Unbriddled, unfounded, baseless attack on me as if I am a part of some drug cartel", the senior advocate submitted on behalf of the incumbent DGP.
He also reiterated that the status report submitted by Chattopadhyay on behalf of the SIT had not been authorized by the other two SIT members.
"The SIT was directed to submit a report..not his own individual report. He exploited the High Court order appointing him to be a part of the SIT" it was further argued referring to the actions of Siddharth Chattopadhyay.
The senior counsel further submitted that DGP Dinkar Gupta was a highly decorated officer and that out of 31 years of service he had been officially labelled as 'outstanding' for 24 years of service.
It was submitted that the Empanelment Committee had evolved its own parameters in terms of Clause 6.1 of Draft Guidelines 2009 for assessing the "range of experience" in identified core policing areas keeping in view of the peculiar and critical circumstances of the State of Punjab and all the above 5 core policing areas were given consideration by the Empanelment Committee.
"The challenge to the appointment of Dinkar Gupta can only be sustained if the guidelines are wrong. There has been no challenge to the Guidelines framed", it was further contended.
Had no way of knowing earlier that former DGP Suresh Arora would be a part of the Empanelment Committee: Krishnan Venugopal
Appearing for petitioner Siddharth Chattopadhyay, senior advocate Krishnan Venugopal submitted before the Court that prior two reports of the SIT dated February 1, 2018 and March 13, 2018 had been signed by all the SIT members including IPS officers Pramod Kumar and Vijay Pratap Singh.
He also submitted that contrary to the submissions made by senior counsel Rohatgi, the Supreme Court in its March 13, 2019 order in the case of Prakash Singh & others v. Union of India had given a lot of credence to seniority when it comes to appointments and that purely merit could not be the sole criterion.
He further argued that the 'truth of the allegations' of bias levelled against former DGP Suresh Arora is immaterial and that all that needs to be proved is that there was a 'reasonable likelihood of bias' as enumerated in the Supreme Court judgment in Badri Nath v. Govt of Tamil Nadu & Ors.
To this, the Bench enquired from the senior counsel, "why did you not object to Arora being a part of the Empanelment Committee earlier?"
In response, the senior counsel submitted that the 2009 Draft Guidelines which mandate the present of the incumbent DGP were not in the public domain. It was also submitted that since Arora had recused himself from similar proceedings earlier, there was a 'reasonable expectation' that he would recuse again. It was also added that the petitioner had no way of knowing that Arora would be a part of the Committee.
To this the Bench remarked, "It is difficult to accept this contention."
The senior counsel further remarked on behalf of Siddharth Chattopadhyay, "what would I have to gain by only targeting Dikar Gupta? There were 4 officers who were senior to me. Why would I target a senior? My fault is that I went where the evidence led me."
Furthermore, it was also contended that the 'doctrine of necessity' would not be applicable in the present case as there have been instances wherein the DGP had not been a part of the Empanelment Committee. He further stated that the presence of the DGP in the committee is not mandated by any statute.
The senior counsel also urged the Apex Court to make amendments to the 2009 Draft Guidelines and ease out the ambiguities especially in regards to seniority and merit conditionalities.
Retorting to the submission that the petitioner Siddharth Chattopadhyay had no way of knowing that Arora would be a part of the Empanelment Committee, senior advocate Shyam Divan towards the end of the hearing referred to a media report of Hindustan Times dated January 30 which clearly publicised that Arora would be a part of such a committee and thus it was contended that such an information was in the public domain.
Case Title: Mohd Mustafa v. Union of India and Ors and other connected matters
Also Read: Supreme Court Hears Challenge Against Dinkar Gupta's Appointment As Punjab DGP(Report of September 14)