STATE OF WEST BENGAL AND ORS.versusMANAS KUMAR CHAKRABARTI AND ORS.

A                    STATE OF WEST BENGAL AND ORS.
                                          V.

                 MANAS KUMAR CHAKRABARTI AND ORS.

                              DECEMBER 13, 2002

B             [DORAISWAMY RAJU AND B.N. SRIKRISHNA, JJ.]


         Service law:

          Indian Police Service-Appointment/Selection-Post of Director General
C and Inspector General of Police in West Bengal-Appointment of an officer
    challenged by another officer-Tribunal upholding the appointment but High
    Court quashing the same-On appeal, Held: There is neither any rule, nor
    guideline, nor practice in the State that only an incumbent in the post of DGP
    is eligible to the post of DG & /GP and the selection was made by credible
D   mechanism-Hence appointment valid-Order of Tribunal restored.

          First respondent and second respondent are officers of the Indian
    Police Service cadre of 1966 batch. In the initial merit list, name of first
    respondent appeared at serial no.2 and of second respondent at serial no.6.
    Second respondent was working as Addi. DGP and was selected and
E   empanelled for appointment as DGP. Few months later second respondent
    who was No. I in the Select List was considered along with three other
    existing DGPs for suitability to be appointed to the post of DG & IGP
    and was promoted and appointed by a composite order to officiate in the
    post of DG & IGP. His appointment was regularized by deleting the word
    "Officiate". First respondent who was holding the post of DG & CGHG
F   challenged the appointment of second respondent as DG & IGP. He relied
    on Government of Karnataka v. C. Dinakar and Ors. and Vineet Narain and
    Ors. v. Union of India and Ors. cases. It was contended that the post of
    DG & IGP was a promotional post, its feeder category being cadre of DGP
    and that there was no "credible mechanism" for the comparative
G   ~ssessment of merit and selection to the post of Chief of Police. Tribunal
    dismissed the petition. However, High Court quashed the appointment of
    second respondent to the vacant post of DG & IGP. Hence the present
    appeal.

          Appellant-State Government contended that there is neither any rule,
H                                         72
                STATE v. MANAS KUMAR CHAKRABARTI                         73
nor guideline, nor practice, by which the appointment fo the post of DG A
& IGP in the State of West Bengal is treated as a promotional post from
the feeder category of DGPs and that the post of DG & IGP should be
held only by a person who already held the substantive post of DGP; that
the judgment in Dinakar 's case does not lay down as a general proposition
of law of universal application that only an officer in the substantive cadre . B
of DGP could be appointed as DG & IGP; and that High Court fell into
error in assuming that a "credible mechanism" had not been established
for selection of officers to superior posts and also in thinking that the
circular dated 15.1.1999 does not apply to the selection of DG & IGP.

      First Respondent contended that DG & IGP being Police Chief of           C
State, is superior to other DGPs in terms of legal and administrative duties
and responsibilities, prestige, powers, status, honour and mere posting of
an officer to the post of DG & IGP as compared to the previous post held,
amounts to promotion, even if both the posts carry the same scale of pay;
that deployment of an incumbent in such a post can go only by seniority;
and that second respondent was not selected to the post by 'credible           D
mechanism'.

      Allowing the appeals, the Court

      HELD: 1.1. High Court erred in taking the view that there is an
inexorable proposition of law that only an incumbent in the post of DGP        E
was eligible to the post of DG & IGP. There is no such requirement either
under the rules/guidelines or practice followed in the State of West Bengal.
It also erred in assuming that the mechanism by which the second
respondent was selected for holding the post of DG & IGP was not
credible. The mechanism by which the selection was made by the appellant       F
was credible. Therefore, the order of Tribunal upholding validity of the
appointment of second respondent as DG & IGP is affirmed. (85-A-CI

      1.2. The submission that the judgment in Dinakar's case does not lay
down as a general proposition of law of universal application, that only
an officer in the substantive cadre of DGP could be appointed as DG &          G
IGP, appears to be justified and must be upheld. Dinakar 's case does not
lay down as a matter of law that an officer not in the cadre of DGP is
ineligible for being posted as DG & IGP in all the States. High Court erred
in assuming the same. Tribunal correctly appreciated the facts of Dinakar 's
case and rightly accepted the submission that there is neither any rule,
nor requirement that eligibility to hold the post of DG & IGP could be         H
        I
    74                        SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A limited only to an officer already substantively in the cadre of DGP.
                                                                  180-G; 81-A-BI

          1.3. Regarding the question whether the post of DG & IGP was a
    promotional post, the material on record suggests that there is no
    supervisory jurisdiction vested in the DG & IGP in the State of West
B   Bengal over the other DGPs. All the posts of DGP carry the same scale of
    pay, status and are borne in the same cadre and grade, namely, that of
    DGP, only. 181-C-DI

           1.4. Second respondent was promoted by the composite order to the
C   substantive rank of DGP and simultaneously posted as DG & IGP and
    there is no illegality in it. Further, there is no dispute that the post of DG
    & IGP being a post of very sensitive nature can only be filled by an
    incumbent in whom the State Government must necessarily have the
    highest confidence. Therefore, the submission that deployment of an
    incumbent in such a post can go only by seniority cannot be accepted.
D   Merit in the nature of past record, and the credibility and confidence which
    one is able to command with - the Government of the State, must play a
    predominant role in selection of an incumbent to such a post. In the opinion
    of, the Appointing Authority, second respondent was the most suitable one.
                                                                          182-B-DI

E         1.5. It is not open to the court to sit in appeal over the view taken
    by the Appointing Authority in such a case or substitute its own view for
    that of the duly constituted Authority. Tribunal, as a matter of comparison
    of merit, was inclined to hold that second respondent was by far the better
    and more meritorious candidate. High Court skirted this question and
F   declined to decide this issue. Since there was no legal ineligibility in second
    respondent to hold the post of DG & IGP, the comparative assessment of
    merit by first appellant-State of West Bengal must be accepted and given
    credence to as to its own choice of a suitable incumbent for being posted
    as such. 182-D-FI

G         1.6~In the State of West Bengal the guidelines of the Central
    Government dated 15.1.1999 were being followed in the appointment of
    Senior Officers to the police services. The principle followed was one of
    merit-cum-seni<!rity. The previous appointments show that several officers
    who were appointed from the select panel were not in the substantive rank
    of DGP before being appointed to the post of DG & IGP. Further, there
H   seems to be an assumption that DG & IGP is a post outside the cadre,
          STATE v. MANAS KUMAR CHAKRABARTI [SRI KRISHNA, J.]              75
grade and rank of DGP. No rule was shown that this was so; nor any other        A
material was placed on record to support this conclusion. 182-F-G; 83-EI

      1.7. The judgment in Vineet Narayan's case does not require that the
mechanism, which was put in place by this Court in that case, should
necessarily be reproduced in other States. While there is no doubt that
selection to the post of DG & IGP or similar sensitive post must be done        B
through a "credible mechanism", the submission that second respondent
was not selected by credible mechanism cannot be accepted. The process
of selection based on suitability was set in motion by the Home Secretary
which was further effectively considered by Chief Secretary and Chief
Minister and all the authorities opined that the second respondent was          C
more suited for the post of DG & IGP. It was not shown that there was
any bias or deficiency in the process by which the second respondent was
selected for the post of DG & IGP. The only grievance ventilated by first
respondent was that second respondent was ineligible to be posted as DG
& IGP, which has no substance. 184-C-FI
                                                                                D
      Government of Karnataka v. C. Dinakar and Ors., 119991 5 SCC 161;
Vineet Narain and Ors. v. Union of India and Ors., 119981 1 SCC 226; Dr.
Meera Massey and Ors. v. Dr. S.R. Mehrotra and Ors., 1199813 SCC 88 and
Vice Chancellor, l.N. Mithila University v. Dayanand Jha, 1198613 SCC 7,
relied on.
                                                                                E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3335 of
2002.

     From the Judgment and Order dated 18.3 .2002 of the Calcutta High
Court in W.P.C.T. No. 2 of 2001.
                                                                                F
    Mukul Rohtagi Additional Solicitor General, Shanti Bhushan, Rana
Mukherjee and Ms. Sumita Mukherjee, for the Appellants.

     S.S. Ray and P.P. Rao, Sushil Kr. Jain and G. Balaji, for the Respondent
No. I.                                                                          G
     Bhaskar P. Gupta, J. Kar, Sidharth Gautam and Goodwill Indeevar, for
the Respondent No. 2.

        The Judgment of the Court was delivered by
                                                                                H
     SRIKRISHNA, J. By this appeal the State of West Bengal and its
    76                        SUPREME COURT REPORTS [2002] SUPP. 5 S.C.R.

A authorities impugn the judgment of the High Court at Calcutta which quashed
    an order of the State Government dated 23rd May, 200 I appointing the 2nd
    respondent as Director General and Inspector General of Police.

         The salient facts necessary for deciding this appeal arise as follows:-

B          There are four posts of Director General of Police (DGP) in the State
    of West Bengal and they are: (a) Director General & Inspector General of
    J?olice (DG & IGP), (b) Director General & Commandant General of Home
    Guards (DGCGHG), (c) Director (Training) and (d) Director (Intelligence).
    All the four posts of DGP are in the grade and pay scale of Rs. 24050-650
    Rs. 26000. The first respondent (Manas Kumar Chakraborty) and the second
C   respondent (Dinesh Chandra Vajpai) are officers of the IPS cadre of the 1966
    batch. In the initial merit list, the name of the First respondent appeared at
    serial no. 2 and that of the second respondent at serial no.6.

        On 28th December, 2000, while the second respondent was working as
  Addi. DGP, he was selected and empanelled for appointment as DGP. One
D K.P. Bandyopadhyay and one R.C. Sharma, both of the 1966 batch, had been
  empanelled earlier and were awaiting vacancy for appointment in the grade
  of DGP. All three at that stage were in the grade and pay-scale of Additional
  Director General of Police (ADGP). On 28th February, 200 I two existing
  DGPs retired by taking voluntary retirement. The said two officers were D.
  Banerjee, who was then holding the post of Director (Intelligence) and S.K.
E Ghosh, who was then holding the post of Director General & Commandant
  General (Home Guards). Out of the three Addi. DGPs in the panel, the first
  two officers K.P. Bandyopadhyay and R.C. Sharma were promoted to the
  DGP grade and appointed as Director (Training) and Director (Intelligence),
  respectively. The first respondent Manas Kumar Chakraborty, who was then
F holding the post of Director (Training), was shifted to the post of Director
  General & Commandant General.

          As on 28th February, 200 I the four posts of DGPs were held by the
    following incumbents:

G         I. D.K. Sanyal, DG & IGP

          2. Manas kumar Chakraborty, DG & CGHG

          3. K.P. Bandyopadhyay, Director (Training)

          4. R.C. Sharma, Director (Intelligence)
H
          D.K. Sanyal retired from the post DG & IGP on 30th April, 2001. In
        STATE v. MANAS KUMAR CHAKRABARTI [SRIKRISHNA, J.)                   77
view of the ensuing elections in the State of West Bengal, which were              A
scheduled to be held on I 0.5.200 I, the State Government sought extension
of his tensure, but the extension sought for was not allowed by the Central
Government. R.C. Sharma, Director (Intelligence) held charge as DG & IGP
from 30.4.200 I until appointment of a new incumbent to the said post.

       On 23rd May, 2001, the second respondent Dinesh Chandra Vajpai,             B
who was then No. I in the Select List, was considered along with other 3
existing DGPs for suitability to be appointed to the post of DG & IGP and
he was promoted and appointed by a composite order to officiate in the post
DG & IGP. By a subsequent Government order dated 10th July, 2001, his
appointment was regularized by deleting the word "Officiate". The Secretary,       C
Home Department (Police) had considered the suitability of three officers in
the DGP rank and respondent No.2, who was first in the panel, to find out
the suitability of the incumbent forthe post ofDG & IGP. Upon comparative
assessment of merit, the Secretary, Home Department (Police) recommended
that the second respondent be appointed. This recommendation was endorsed
by the Chief Secretary, who, in his tum, forwarded the file to the Chief           D
Minister with his endorsement that the second respondent be appointed as
DG & IGP in the vacant post. On 23rd May, 2001, after considering the
recommendations the Chief Minister approved the name of the second
respondent for appointment as DG & IGP. The second respondent was,
therefore, appointed by the order dated 23rd May; 2001, to officiate in the        E
post of DG & !GP. The appointment later was regularized by the Government
order dated 10th July, 2001 by deleting the expression "officiate."

      The first respondent who was holding the post of DG & CGHG
challenged the appointment of the second respondent as DG & IGP by his
Original Application No. 673 of 2001 before the Central Administrative             p
Tribunal (Tribunal) mainly on two grounds. First, that the second respondent
could not be appointed to the post of DG & !GP directly as only incumbents
holding the post of DGPs as on 23rd may, 2001 were eligible for being
considered for appointment to the post of DG & !GP in view of the law laid-
down by this Court in Government of Karnataka v. C. Dinakar and Ors.,
[I 999] 5 sec I 6 I. It was the contention of the first respondent that the post   G
of DG & !GP was of a higher status and rank and appointment thereto must
necessarily be treated as a promotional post, its feeder category being the
cadre of DGP. The second ground on which the appointment of the second
respondent was objected to was that there was no "credible mechanism" for
the purpose of comparative assessment of merit and selection to the post of        H
    78                        SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A Chief of Police as contemplated by the Judgment of this Court in Vineet
  Narain and Ors. v. Union of India and Ors., (1998] l SCC 226. The Tribunal
  by an elaborate judgment rejected both the contentions urged by the first
  respondent and dismissed his petition. Being aggrieved thereby, the first
  respondent moved the High Court by a writ petition. By the Judgment dated
B 18th March, 2002 the High Court took the view that the appointment of the
  second respondent to the vacant post of DG & !GP was illegal. Although the
  two learned Judges comprising the Division Bench delivered two separate
  judgments, both were ad idem on the issue of quashing the appointment of
  the second respondent to the vacant post of DG & IGP, but differed on the
  consequential relief to be granted. One of the learned Judges (Alok Kumar
C Basu, J.) directed that the State Government should take fresh test for selection
  and appointment to the vacant post of DG & IGP from amongst the persons
  holding the substantive post of DG through a "credible mechanism" as
  envisaged in the case of Vineet Narayan supra within thre.e months and that
  in the interregnum the appointment should be made on ad-hoc basis having
  due regard to the question of seniority. The other learned Judge (A. Kabir,
D J.) directed that though the composite order appointing the second respondent
  as DG & IGP was quashed, the promotion granted to the second respondent
  by the order of 23rd May, 200 I was not being interfered with and he was
  eligible for holding the post of DG & IGP along with other officers holding
  substantive ra~k of DGP. He also directed that the post of the DG & IGP
E which fell vacant on account of the order should be filled up pursuant to the
  directions contained in the judgment of the other learned Judge.

        Learned Counsel for the appellant contended that both the premises on
  which the judgment of the High Court rests are erroneous and proceed on a
  misappreciation of both the law and the facts. It is urged that there is neithi::r
F any rule, nor guideline, nor practice, by which the appointment to the post
  of DG & IGP in the State of West Bengal is treated as a pro~otional post
  from the feeder category of DGPs. Pursuant to the judgment in Vineet Narayan
  supra the Central Government addressed a letter dated 15th January, 1999 to
  the Chief Secretaries to all States formulating the General Principles of
  promotion, formation ofDPCs and their functioning etc. applicable to officers
G of the Indian Police Services in Sr. Scale, Jr. Administrative Grade, Selection
  Grade, Super-time Scale and Above Super-time Scale posts. These guidelines
  were issued in the matter of appointment and promotion to various grades in
  the Indian Police Services in all the State cadres in the country. All the States
  were informed that it would be advisable to adhere to the revised guidelines
H and follows and impose stricter standards of selection as envisaged in the
         STATE v. MANAS KUMAR CHAKRABARTI [SRIKRISHNA, J.]                     79
revised guidelines. In the revised guidelines, the zone of consideration of          A
officers for promotion to various grades is indicated. As far as promotion to
the grade of DGP is concerned, the guidelines provide that officer who had
put in 30 years of service are to be considered. There are detailed guidelines
with regard to the preparation of selection panel, period of validity of the
panel and General Principles for promotion applicable to all posts. The              B
appellant contends that the appointment to the post of DG & IGP could be
done from amongst the persons who are eligible to be appointed to the post
of DGP and there is neither practice nor rule which requires that the post of
DG & IGP should be held only by a person who already held the substantive
post of DGP. No rule was pointed out which requires that only an officer
holding the substantive post of DGP can be posted as DG & !GP. On the                C
other hand, the material on record suggests that even in the post there was
no such practice of appointing only the senior most eligible officer from
among DGPs as DG & IGP, as contended by the first respondent., The cases
of S.C. Choudhary, the then Commissioner of Police appointed to the post of
DG & IGP and V.K. Basu, appointed from the post of Police Commissioner
to the post of DG & IGP, have been highlighted. There is no acceptable               D
material from which it could be concluded that there was any inviolable rule
that the post of DG & IGP was and has to be filled up only by appointing
an officer already substantively holding the rank of DGP.

       The High Court was impressed by the contention of the first respondent        E
that the post of DG & IGP !~a post of superior status and rank and, therefore,
appointment thereto would necessarily be a promotion. Read the judgment in
Dinakar (Supra), the High Court assumed that the judgment lays down a
principle of law viz, that no person not holding the substantive rank of DGP
can be posted as DG & IGP.
                                                                                     F
      At the outset, it is necessary to examine if this is an inexorable principle
of law laid down in the judgment of this Court in Dinakar supra.

       In Dinakar Supra also there were four posts of Director General of
Police. The High Court found, as a matter of fact, as later reiterated by this
Court, that •at least two of the posts, COD (Training), and Chairman and             G
Managing Director of Police Housing Corporation was considered to be
amenable to the supervisory jurisdiction of DG & IGP. Only the posts of
DGP & CGHG and Director of Civil Defence & Fire Service were not subject
to the supervisory jurisdiction of the DG & IGP. The High Court had found
that the 4th respondent therein was not a Director General at any point of           H
    80                        SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A tirne prior to 6th March, 1997 and that the Chief Minister was misled to
    believe that on that date the 4th respondent was Still on deputation with the
    Government of India and holding the rank of DGP. As to whether a person
    not holding the substantive rank of DGP could be posted as DG & !GP, the
    question appears to have been admitted, either as a matter of rule of practice,
    that in Karnataka cadre an officer not holding the substantive post was
B   ineligible to the post as DG & IGP. This is clear from the observation of the
    High Court, (quoted in paragraph 9 of the judgment of this Court) "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 & /GP because admittedly only a person
C   substantively holding the cadre of DG of Police could be considered for
    appointment to the post of DG & !GP" (emphasis supplied). Further, the
    High Court observes, "the action of the respondents apparently appears to
    be unconstitutional as admittedly respondent No.4 being not a Director
    General of Police on 3rd March, 1997 was not eligible to be considered for
    such appointment by selection" emphasis supplied Thus, it appears that the
D   High Court was given to understand that, at least in the State of Karnataka..
    an officer could not be appointed as DG & /GP unless hf! held the substantive
    rank of DGP. These facts seem to have been admitted as seen by the expression
     "admittedly" used at several places by the High Court and finally the
    conclusion of this Court, "we are of the view that on the admitted facts as
E   found by the High Court, no case is made out for interference" emphasis
    supplied.

          A fair reading of Dinakar (Supra), in our view, suggests that there was
    no dispute between the parties on the issue that only an officer holding the
    substantive post in the cadre of DGP was eligible to be considered for the
F   post ofDG & !GP. In view of this fact being admitted, ornot being disputed,
    no question arose before the High Court of deciding whether even an Addi.
    DGP empanelled for DGP cadre could be posted as DG & IGP. Consequently,
    there was no occasion for this court too to express its views thereupon.

          The appellant's contention that the judgment in Dinakar does not lay
G down, as a general proposition of law of universal application, that only an
  officer in the substantive cadre of DGP could be appointed as DG & IGP,
  appears to be justified and must be upheld. We are of the view that Dinakar
  (Supra) does not lay down as a matter of law that an officer not in the cadre
  of DGP is ineligible for being posted as DG & !GP. In fact, as we read the
H judgment in Dinakar, this Court has merely affirmed and reiterated the
         STATE v. MANAS KUMAR CHAKRABARTI [SRI KRISHNA, J.)                    81
observations of the Karnataka High Court which in turn were based on the             A
facts admitted. The Central Administrative Tribunal correctly appreciated the
facts of Dinakar but the High Court fell into error in thinking that Dinakar
had laid down any inexorable proposition of law that an officer not in the
cadre of DGP was ineligible to be appointed on the post of DG & IGP in all
States.
                                                                                     B
      As far as the facts of the present case go, it is the case of the appellant,
which has been accepted by the Tribunal, that there is neither any rule, nor
requirement, that eligibility to hold the post of DG & IGP could be limited
only to an officer already substantively in the cadre of DG & IGP. We are,
therefore, in agreement with the view expressed by the Central Administrative        C
Tribunal and unable to accept the correctness of the view of the High Court
which has been challenged before us.

      The next question which requires consideration is whether the post of
DG & IGP was a promotional post as contended by the first respondent and
accepted by the High Court. Factually, there is no material to suggest this. On D
the contrary, the mat_erial on record suggests that while in Karnataka two
posts of DGP were amenable to the supervisory jurisdiction of the DG &
IGP, there is no supervisory jurisdiction vested in the DG & IGP in the State
of West Bengal over the other DGPs. All the posts of DGP carry the same
scale of pay, status and are borne in the same cadre and grade, namely, that
of DGP, only.                                                                   E
       Learned Senior Counsel, Shri Rao for the first respondent, however,
contended that DG & IGP is the Police Chief of the State and is, therefore,
superior to other DGPs in terms of legal and administrative duties and
responsibilities, prestige, powers, status, honour and so on. Hence, he urged
that mere posting of an officer to the post DG & IGP amounts to promotion.
                                                                                F
If there is no rule with regard to it, the promotional post must go only on the
basis of seniority. The learned Senior Counsel also referred to All India
Services Manual, [Sixth Edition-Part Ill] in which there is only one post of
Director General and Inspector General of Police and the other posts are only
of Inspector General of Police. He, therefore, contended that the post of DG G
& IGP is the highest post of Police Chief and posting thereupon amounts to
promotion. The manual appears to be as of 31 July, 1990. The nomenclature
given in the manual relied upon by Respondent No. I appears to have been
substantially changed. While in the manual one post was referred to a Director
General of Police, presently there appear to be four posts of Director General H
    82                          SUPREME COURT REPORTS (2002) SUPP. 5 S.C.R.

A of Police, both in West Bengal and in Karnataka. The reliance of the manual,
    therefore, does not advance any further, the case of the respondent.

         The learned Senior Counsel for the first respondent then contended that
  if a person moves to a post of greater prestige, duties and responsibilities,
  honour or status, as compared to the previous post held, then that movement,
B even if lateral, would amount to promotion even if both the posts carry the
  same scale of pay. Learned counsel relied upon the case of Dr. Meera Massey
  and Ors. v. Dr. S. R. Mehrotra and Ors., [ 1998] 3 SCC 88 and Vice-Chance/101~
  L.N. Mithila University v. Dayanand Jha, [1986] 3 SCC 7 to support the
  contention urged. Even if the contention is accepted, the fact remains that
C second respondent was promoted by the composite order dated 23rd May,
  2001 to the substantive rank of DGP and simultaneously posted as DG &
  IGP. We see no illegality in this .. Secondly, there is no dispute that the post
  of DG & IGP is a selection post like the other DGPs. The post of DG & IGP
  being a post of very sensitive nature can only be filled by an incumbent in
  whom the State Government must necessarily have the highest confidence.
D We are, therefore, unable to accept the contention of the respondent that
  deployment of an incumbent in such a post can go only by seniority. Merit
  in the nature of past record, the credibility and confidence which one is able
  to command with-the Government of the State must play a predominant role
  in selection of an incumbent to such a post. In the opinion of the Appointing
E Authority, the second respondent was the most suitable one. It is not open to
  the courts to sit in appeal over the view taken by the Appointing Authority
  in such a case or substitute its own view for that of the duly constituted
  Authority. The Administrative Tribunal, as a matter of comparison of merit,
  inclined to hold that the second respondent was by far the better and more
  meritorious candidate. The High Court has skirted this question and declined
F to decide this issue. Since we are of
                                     I
                                        the view that there was no legal ineligibility
  in second respondent to hold the post of DG & IGP, we must necessarily
  accept the comparative assessment of merit by the first appellant-State of
  West Bengal and give credence to its own choice, of a suitable incumbent for
  being posted, as such.

G        In the State of West Bengal the guidelines of the Central Government
  dated 15.1.1999 were being followed in the appointment of Senior Officers
  to the police services. The principle followed was one of merit-cum-seniority.
  The previous appointments show that several officers who were appointed
  from the select panel were not in the substantive rank of DGP before being
H appointed to the post ofDG & IGP. For example, S.K. Ghosh was appointed
        STATE v. MANAS KUMAR CHAKRABARTl[SRIKRISHNA, J.]                        83
to the post of DG & CD on 30th October, 2000 from the panel directly, even            A
though the first respondent was then senior in the grade of DGP having been
appointed on 1.12.1997 and holding the post of Director (Training). K.P.
Bandopadhya, R.C. Shanna and D.C. Vajpai appear to have been appointed
following the same nonns and the same guidelines. These are the facts of
which the first respondent was quite· aware even before he challenged the             B
appointment of the second respondent. Interestingly, as on the date of the
appointment to the post of DGP, none of the aforesaid officers was in the
rank or grade of DGP, but all were appointed from the panel having been
selected for promotion to the post of DGP.

      After Dinakar's Judgment dated 14.5.1999, the State ofKamataka had              C
introduced a new set of guidelines by an order dated 5.7.I999. By para 4 of
this new order, all officers in the grade of Director General of Police, including
the officers in the grade of Additional Director General of Police, were made
eligible to be promoted to the grade of DGP. In fact, this Government order
supports the appellant's contention that prior thereto the practice or norm in
Kamataka State was that only on officer already in the grade or rank of DGP           D
could be appointed as DG & IGP. The material on record shows that even
these new guidelines issued by the State of Kamataka were challenged, but
insofar as the legality of guidelines was concerned, the challenge before the
Central Administrative Tribunal failed.

      It is urged for the appellant that the High Court fell into error in thinking   E
that the circular dated 15.1.1999 does not apply to the selection of DG &
IGP. There seems to be an assumption that DG & IGP is a post outside the
cadre, grade and rank of DGP. We have not been shown any rule that this
was so; nor is any other material placed on record to support this conclusion.
                                                                                      F
      The High Court has also taken the view that the second respondent did
not fall within the zone of consideration. This again is erroneous and based
on the wrong assumption that the selection for the post of DG & IGP could
 be made only from amongst officers holding the cadre and rank of DG &
 IGP. This assumption was based on an erroneous reading of Dinakar's
judgment supra.                                                                       G
       It is next urged on behalf of the appellant that the High Court fell into
error in assuming that a "credible mechanism" had not been established for
selection of officers to superior posts.

      The respondent placed heavy reliance on the judgment of this Court in           H
    84                        SUPREME COURT REPORTS (2002] SUPP. 5 S.C.R.

A Vineet Narayan (Supra) and the observations made in paragraph 60 of the
  said judgment. In the first place, Vineet Narayan was a case in which the
  question was whether the jurisdiction of the Central Bureau of Investigation
  could be amended or curtailed by executive instructions issued by what was
  called "Single Directive." With regard to officers at the decision making
  level, the executive circular prohibited the CBI from investigation unless
B clearance was taken from the Central Government. While quashing the said
                                                                                    ""
  circular as wholly opposed to the provisions of Delhi Special Police
  Establishment Ad, as also the rule of law in general, this Court laid down
  detalied guidelines as to how the CBI, Central Vigilance Commission,
  Enforcement Directorate and Prosecution Agencies attached thereto should
c function. Incidentally, it also noticed that the situation of rampant executive
  interference in the matter of police functioning in the States. With a view to
  ensure that the police agencies were not subjected to executive and political
  interference, the observations were made in paragraph 60 that every State
  should set up a "credible mechanism" for selection/appointment, tenure,
  transfer and posting of not merely the Chief of the State Police but also of
D all police officers of the rank of Superintendent of Police and above. We do
  not think that the judgment in Vineet Narayan requires that the mechanism
  which was put in place by this Court in that case should necessarily be
  reproduced in other States. While there is no doubt that selection to the post
  of DG & IGP or similar sensitive post must be done through a "credible
E mechanism", we are unable to accept the contention of the respondent that
  the process of selection by which the second respondent was selected was not
  credible in any manner. The process of selection based on suitability was set
   in motion by the Home Secretary, and further seems to have been effectively
  considered by Chief Secretary and the Chief Minister (who was also the
  Home Minister) and all three authorities had opined that the second respondent
F was more suited for the post of DG & IGP. Nothing has been shown to us
  that there was any bias or deficiency in the process by which the second
  respondent was selected for the post of DG & !GP. The only grievance which
  appears to have been ventilated by the first respondent throughout is that the
  second respondent was ineligible to be posted as DG & IGP. This grievance,
G in our view, has no substance.
        Though a half-hearted attempt appears to have been made before the
  Tribunal to project that the first respondent had greater merits, we do not
  think that the attempt succeeded. The Tribunal did not accept the said stand
  of the first respondent. So far as the High Court is concerned, the High Court
H has totally side-stepped the issue of the comparative merits of the officers.     '
           STATE v. MANAS KUMAR CHAKRABARTI [SRIKRISHNA, J.]                  85
We, therefore, find it difficult to accept the submission of the teamed counsel A
for the respondent that there was a lack of 'credible mechanism' to determine
the suitability to hold the post of DG & IGP in. West Bengal.

       In the result, we hold that the High Court erred on both counts. First,
it erred in taking the view that there is an inexorable proposition of law that
only an incumbent in the post of DGP was eligible to the post of DG & IGP.          B
There is no such requirement either under the rules/guidelines or practice
followed in the State of West Bengal Secondly, the High Court also erred in
assuming that the mechanism by which the second respondent was selected
for holding the post of DG & IGP was not credible. We do not think that the
mechanism by which the selection was made by the appellant was in any               c
manner not credible.

       For the aforesaid reasons, we allow the appeal and set aside the judgment
of the High Court. We affirm the order made by the Tribunal upholding
validity of the appointment of the second respondent as DG & IGP and
dismissing the application filed by the first respondent before it.                 D
         In the facts and circumstances of the case there shall be no order as to
costs.

N.J.                                                            Appeal allowed.