Three days after the Chandigarh bench of the Central Administrative Tribunal quashed Punjab DGP Dinkar Gupta’s appointment rendering the state police without any head or chief, the Indian Express explains the rules laid down by the Supreme Court for the appointment of a state DGP and the CAT judgment.
How is a state DGP appointed?
The Supreme Court in 2006 in Prakash Singh versus Union of India laid down the procedure for appointment of a police DGP with an aim to insulate the police force from any political interference. A DGP or head of the police force is to be selected by the state government from among the three senior most officers empanelled by the Union Public Service Commission (UPSC) on the basis of — length of service, very good record and the range of experience for heading the police force.
The selected DGP must have a minimum tenure of at least two years. In subsequent directions in 2018 and 2019, the Supreme Court barred the state governments from appointing any officer as DGP on acting basis and also made it clear that “preparation of panel should be 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”. It also said merit and seniority should be given due weightage.
What happened in Punjab’s case?
In January 2019 when then DGP Suresh Arora was on the verge of retirement, the Punjab government initiated the process for appointment of a new DGP by contacting the UPSC as all the states have to send a proposal in advance to the body in anticipation of the vacancy. A list of 12 officers, who were either DGP or Additional DGP with at least 30 years of service was sent. DGP Mohammad Mustafa and DGP Siddharth Chattopadhyaya — both officers had challenged Gupta’s appointment before CAT, figured at serial numbers 2 and 5, respectively. Gupta was at number 6. The 12 names were submitted citing sanctioned strength of 2 cadre post of DGPs and a request was also made to send back a panel of six names for final selection by the state.
Usually, only six names are sent for consideration. A committee was then constituted by the UPSC which forwarded only three names of Gupta, M K Tiwari (serial number 8) and V K Bhawra (serial number 9) to the state government for final selection while, as per a reply before CAT, assessing Mustafa and Chattopadhyaya as “inadequate” on the criteria of “range of experience in core policing areas during the last 10 years”. The CAT was informed that the five core policing areas include Intelligence, Law & Order, Administration, Investigation and Security and the criteria was adopted in accordance with draft guidelines issued by the UPSC in 2009, adding that the committee also adopted its own criteria for objective assessment of suitability of officers. State appointed Gupta as the DGP.
What did the Tribunal rule over Mustafa and Chattopadhyaya’s applications?
The Tribunal in its ruling emphasised that UPSC committee prepared a panel of only three officers instead of Punjab’s position of six names. It said the same becomes important because the list of officer sent by the government was also required to be reduced from 12 to 6 for it to be adequate for preparation of the panel of 3 names as directed by Supreme Court. “This becomes important from the point of view of the fact that officers at serial nos. 6, 8 & 9 were empanelled,” it said.
It further ruled that the Committee while preparing the panel made no discussion regarding the ‘range of experience’ and said the Committee has deviated from the parameters prescribed by the apex court . It added the so-called draft guidelines of the UPSC have no authenticity or legality and ruled that the Committee could have not have adopted its own method as same is “blocked” in view of the Supreme Court’s laid down procedure. Regarding the selection of names over core policing areas experience, the CAT said there exist 20 such areas as mentioned in the performance evaluation and there is no mention anywhere as to on what basis the 5 areas were selected and why intelligence — which occurs at serial number 14 in the list of 20 areas — was accorded primacy.
Gupta served in the field of intelligence for more than a decade, contend other DGPs. Gupta has clarified it in his petition before the High Court, saying he has only 5 years and 5 months experience in Intelligence area of policing. His petition also argues that the observation regarding 20 core policing areas is wrong as “same seems to have been made on the basis of the perfroma of the Performance Appraisal Report (PAR) of IPS officers…” It adds the same performa does not define or say anywhere that the said assignments are core policing areas. Submitting the 5 areas adopted by the UPSC Committee does not appear to have a connection with the list provided in the PAR, Gupta’s petition says it was merely a method adopted by the Committee.
The Tribunal ruled that whether or not a particular officer is posted in specific area is not in his hands and it is always at the discretion of administration. “The issue can be examined from another angle. 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, … and then to make an effort to accord primacy to such activity in the process of selection,” it observed, adding, “there cannot be a better instance of arbitrariness and favoritism”.
What are Punjab’s arguments in the case seeking a stay on CAT judgment?
While the UPSC had told the CAT that the draft guidelines were placed before the Supreme Court at some stage and no exception was taken to them, Punjab’s argument is that Tribunal has found “fault with the guidelines followed by the Empanelment Committee, despite the same having met with the approval of the Hon’ble Supreme Court in Prakash Singh’s Case”.
It further contends that Tribunal has set in appeal over the decision of Committee and substituted its own opinion on the merits, adding same is impermissible in law. Punjab’s submission is that the UPSC guidelines have been used in 21 empanelment committee meetings since 2010 for various states. Regarding its proposal seeking a panel of six officers for 2 cadre posts of DGP, Punjab has conceded its mistake saying its position did not take into account that there is only one sanctioned post of DGP (Head of Police Force) in the level 17 of the pay matrix while other DGPs are one level below in the pay matrix.
However, it has added that the Supreme Court has not put any restriction on number of officers to be sent as part of the zone of consideration by the state. It also justifies the Committee decision of empanelment of the three names saying it is “said to have taken” into consideration the ACRs and APARs of the eligible officers for the past 10 years which is in accordance with the guidelines in question. It further argues that a similar system for empanelment is followed by the Government of India for selection of its own officers like Joint Secretary, Additional Secretary and even the IPS officers. Punjab and Haryana High Court is to hear the matter on Tuesday.
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