C Anjaneya Reddy Vs State of a P and ors - Citation 445229 - Court Judgment

Judgment:

AR. Lakshmanan, C.J.

1. This writ petition is filed by one Sri C. Anjaneya Reddy, IPS, presently working as Chairman and Managing Director of Andhra Pradesh Tourism Development Corporation Ltd., in the cadre of Director General of Police challenging the order of the Central Administrative Tribunal, Hyderabad in O.A.No.280 of 2002 dated 17.7.2002 declining to interfere with the order of the State Government in G.O. Rt. No.809 G.A. (SC.C) Department dated 18.2.2002 whereby and whereunder the 3rd respondent herein was appointed and posted as Director General and Inspector General of Police of Andhra Pradesh.

2. The petitioner by way of this writ petition seeks a writ of certiorari calling for records pertaining to O.A. No.280 of 2002 and G.O. Rt. No.809 GA (SC.C) Department, dated 18.2.2002 and to set aside the same and consequently for a direction to the 1st respondent to appoint him as Director General and Inspector General of Police.

3. The petitioner was appointed to the Indian Police Service on 11.7.1966 and was allotted to the A.P. Cadre and worked in various capacities. Presently he is working as Chairman & Managing Director, Andhra Pradesh Tourism Development Corporation Ltd., He was awarded Indian Police Medal for meritorious service in the year 1986 and recipient of President's Police Medal for distinguished service in the year 1993. By and under the I.P.S. (Fixation of Cadre Strength) Regulations, 1955, the Central Government fixed cadre strength of various States and shall be as specified in the Schedule appended to the Regulations. So far as the State of Andhra Pradesh is concerned, the cadre strength in respect of Director General of Police (for short 'DGP') is as follows:

1. Director General and InspectorGeneral of Police: 1

2. Director General, Anti CorruptionBureau: 1

4. As per Rule 9(7) of I.P.S. (Cadre) Rules, 1954, the number of cadre posts and ex-cadre posts in the grade of DGP shall be in the ratio of 1:1 and since the Central Government has sanctioned only two posts in the grade of DGP for the State of 'Andhra Pradesh, the State Government can create only two ex-cadre posts. Therefore, there cannot be more than four posts in the grade of DGP - two cadre posts and two ex-cadre posts and any person appointed beyond the cadre strength can only be considered to be holding supernumerary post and the same will not confer on such person any right to be considered as equivalent to persons working within the cadre strength.

5. The petitioner was appointed as DGP on 29.6.1999 and the third respondent was appointed as such on 30.5.2001. As on 17.2.2002 the following Officers are working in the Grade of DGP:

Sl. No.Name of the Officer and BatchDate of birthDate of retirementPosting

1.H.J. Dora, IPS4.10.194331.10.2003DG & IGP2.Janak Raj IPS10.2.194328.2.2003Chairman, A.P. Police HousingCorporation3.C.Anjaneya Redby, IPS (writ petitioner)7.1.194331.1.2003CMD, A.P. Travel and TourismDevelopmentCorporation4.S.C. Dwivedi, IPS12.8.194231.8.2002Waiting for posting5.Bharatchandra, IPS30.6.194430.6.2004PrincipalSecretary, Home Department6.P.Ramulu, IPS (Respondent No.3)19.7.194331.7.2003Commissionerof Police, Hyderabad City.

6. There is no dispute that the post of Director General and Inspector General of Police carries the same scale of pay as that of Director General of Police and it is the highest post in the Police Department so far as the State is concerned. Since H.J. Dora who has been working as Director General and Inspector General of Police has been appointed as Director General, Central Industrial Security Force, by reason of the impugned G.O. Rt. No.809, General Administration (S.C.C) Department dated 18.2.2002 while relieving Sri H.J. Dora as DG & IGP, the 3rd respondent herein has been appointed as DG & IGP and has been transferred and posted as Director General and Inspector-General of Police, ignoring the claim of the writ petitioner. According to the petitioner, it has become the practice of the State Government to make appointments to the Grade of DGP beyond the cadre strength and choose persons to be appointed as DG & IGP beyond the zone consideration from among the persons appointed beyond the cadre strength. Only the Officers in the Grade of DGP constitute the zone of consideration from which officers can be selected and appointed to the post of DG & IGP. Since only four persons in the cadre of DGP can be considered for appointment of DG & IGP, the 3rd respondent cannot come within the zone of consideration; hence his appointment as DG & IGP is illegal and arbitrary. His very appointment as DGP is illegal as he was appointed as such beyond the cadre strength fixed as per rules. Therefore, he cannot be considered to be a person eligible for being considered as DG & IGP. The Central Government took serious note of such appointments being made by the States in violation of the statutory rules governing the cadre strength. In support of his contentions, the petitioner has placed strong reliance on the decision of the Apex Court in Vineet Narain v. Union of India, : 1998CriLJ1208 , Sarabjit Singh v. Ex-Major B.D. Gupta, : AIR2000SC2639 , and Government of Karnataka v. Dinakar, : [1999]3SCR708 .

7. No credible mechanism has been evolved for selection of Chief of Police of the State as has been directed by the Supreme Court in Vineet Narain's case. In the additional affidavit filed by the petitioner, it is stated that during the course of arguments, it is revealed that in the file relating to appointment of 3rd respondent as DG & IGP, the Chief Secretary of the State appears to have made a note that 'based on the willingness of the petitioner, he has been confirmed for appointment with Government of India'. The petitioner states that since he has been empanelled for appointment by the Union of India as he was in the grade of IG he has been routinely indicating his willingness every year but there was no confirmation as regards such appointment and the note of the Chief Secretary is factually incorrect and seems to have been put up only to impress upon the Hon'ble Chief Minister that he may not be available for working as DG & IGP.

8. The petitioner claims that he is more meritorious than the 3rd respondent. The Tribunal erred in placing reliance on the justification given by the 1st respondent that immediate past service is also taken into consideration ignoring the fact that the posting of the petitioner outside the regular police force was not on his volition and that he had worked for almost 30 years of service in the regular police force holding very sensitive positions. The Tribunal also erred in endorsing the view of the 1st respondent for ignoring the claim of the petitioner on the ground that the petitioner will be left with short tenure of service if appointed as DG & IGP as the rules do not prohibit any short tenure promotions nor there is any policy decision to that effect. Several persons with less than one year of tenure were appointed as DG & IGP earlier. The Tribunal has misunderstood the submission of the Counsel for petitioner that the Counsel for the petitioner is not willing to go into the question of consequences of violation of Rule 9(7) of the IPC (Cadre) Rules, 1954.

9. In the counter-affidavit fifed by the 1st respondent, it is stated that since more than 15 years i.e. from 1987 onwards, the IPS Officers working in the State of Andhra Pradesh were selected and given DGP cadre in excess of the cadre strength. Even the appointment of the petitioner was beyond the cadre strength and the Central Government regretted to post facto approval for creating 3 cadre posts by the State of Andhra Pradesh and in turn directed to revert 3 Officers holding ex-cadre posts, in pursuance of which the State of Andhra Pradesh has not reverted, but continued the petitioner in the same grade. As on 29.6.1999 when the petitioner was appointed as DGP already there are four officers working in the cadre of DGP. From the past fifteen years, IPS Officers working in the State of A.P. were promoted and given the DGP cadre in excess of the cadre strength only as a measure of encouragement to its officers and to prevent frustration due to stagnation. Therefore, all the Officers working in the cadre of DGP are entitled to be considered for appointment as IG & DGP. All the five DGP grade officers were appointed to the said category after completion of 30 years of service. It was contended before the Tribunal that the petitioner was having only eleven months of service. 'According to the 1st respondent, it is essential that the IPS Officer holding the post of DG & IGP should have a reasonable tenure to discharge the duties of that post. In view of the difficulties being faced by the State, Government considered it necessary that the new incumbent should have sufficient time to acquaint himself and to come to grip with the subject and confidently implement the policies of the Government and therefore officers with less than one year of service are by and large not preferred.

10. In the counter-affidavit, respondent No. 3 stated that he became eligible and entitled for consideration to be posted as Director General and Inspector General of Police above the super time scale of Rs. 24050-26000 inasmuch as he was already promoted as DGP w.e.f. 30.5.2001. Since the post of DG and IGP has to be filled on the basis of selection on merit with due regard to seniority as per Rule 3(2A) of IPS (Pay) Rules, 1954 it is a selection post wherein the seniority comes into play only when the equally meritorious candidates compete for the same post. The 1st respondent is well within its powers under Rule 9(7) read with Rule 4 of the IPS (Pay) Rules 1954 to create the said post and fill in the same in accordance with the rules. The petitioner is a beneficiary of similar promotion to the cadre of DGP and he was promoted as 5th candidate in the said cadre. The petitioner having availed the benefit of such promotion is estopped from questioning his promotion as DGP. Since the petitioner did not challenge his order of promotion to the post of DGP in G.O. Rt. No.2396 dated 30.5.2001, he cannot challenge his selection and posting by transfer to the post of DG & IGP.

11. In the reply affidavit filed by the 1st respondent, it is stated that there is nothing in mentioning in the note put by the Chief Secretary that the name of the petitioner has been confirmed for appointment with Government of India as appointment orders of Government of India in respect of empanelled officers who have given their willingness can be expected any time. The petitioner has given his willingness for deputation to Central Government and this was confirmed by the Government of India, Ministry of Home Affairs in their fax message dated 18.1.2002 that the petitioner is being considered for the DG level post in Government of India, hence, the note of Chief Secretary is correct and has been rightly brought out for the information of the Chief Minister for taking a decision on appointment of DG & IGP.

12. The Tribunal by the order impugned herein rejected the contentions of the parties and after perusing the record placed before it came to the conclusion that a reasonable tenure from the date of appointment for proper results, proper experience in supervising Law and Order machinery, performance of the officers particularly in the field oriented appointments, assessments of the officers and their performances have been considered before selection to the post of DG & IGP and there is no reason to substitute that decision of the State Government with that of the Tribunal. The Tribunal also rejected the contention of the petitioner that respondent No.3 was appointed in excess of the cadre strength as the petitioner himself was appointed beyond the cadre strength.

13. We have heard Sri C.V. Mohan Reddy, learned Counsel appearing for the petitioner, Sri Prakash Reddy, learned Additional Advocate General and Sri P. Venkateswarlu, learned Counsel appearing for Respondent No. 3.

14. Sri C.V. Mohan Reddy, learned Counsel for the Writ petitioner contended that the promotion to the post of Director General of Police is governed by the I.P.S. (Cadre) Rules, 1954, IPS (Fixation of Cadre Strength) Regulations, 1955 and IPS (Pay) Rules, 1954. But the respondent No. 1 ignoring the provisions of the above rules and regulations issued impugned G.O. Rt. No.809 dated 18.2.2002 appointing the 3rd respondent as the Director General and Inspector General of Police, Andhra Pradesh. The learned Counsel also submits that the 3rd respondent was outside the cadre strength of Director General of Police whereas the petitioner and 3 other officers were seniors to respondent No. 3 and were within the cadre strength. But the respondent No. 1 without giving due regard to their seniority or merit preferred the 3rd respondent who was in the cadre of Additional DGP by overlooking the claims of the writ petitioner and others.

15. According to the learned Counsel, the petitioner was appointed to the Indian Police Service on 11.7.1966 and promoted to the cadre of DGP on 29.6.1999 whereas the 3rd respondent appointed to the Indian Police Service on 14.7.1967 and promoted to the cadre of DGP on 30.5.2001. Sri Mohan Reddy further submits that the cadre strength in respect of the post of DGPs insofar as the State of Andhra Pradesh is concerned being 2, in total, 4 IPS officers in the Grade of DGP would only come into the zone of consideration for selection to the post of Director General and Inspector General of Police, Andhra Pradesh. Since the respondent No.3 was out of the zone of consideration and was in the grade of Additional DGP, he should be declared as to have not come within the zone of consideration for appointment to the post of Director General and Inspector General of Police, Andhra Pradesh. According to the learned Counsel the 1st respondent preferred the 3rd respondent for appointment to the post of Director General and Inspector General of Police, Andhra Pradesh on extraneous considerations illegally by overlooking the claims of four IPS officers of the cadre of DGP who are seniors to the 3rd respondent.

16. According to the learned Counsel, as per Rule 9(7) of the IPS (Pay) Rules, 1954, the number of cadre posts and ex-cadre posts in the grade of Additional DGP in the Scale of pay of Rs.22,400-24,500 and DGP in the Scale of pay of Rs.24,050-26,000/- should be in the ratio of 1:1. As the Central Government have sanctioned two cadre posts in the grade of DGP for the State of Andhra Pradesh, the 1st respondent-Government of Andhra Pradesh can create only two ex-cadre posts in this Grade, Therefore there cannot be more than four posts in the cadre of DGP viz., two ex-cadre posts and two cadre posts. The learned Counsel says that in utter disregard of the mandatory requirement of Rule 9(7), the 1st respondent created the fifth post in the grade of DGP in order to favour the 3rd respondent without the approval of the Central Government and without any power and authority in law.

17. The learned Counsel further submits that the Central Government took serious note of such violations committed by the State Governments and when the State of Karnataka created the fifth post in the grade of DGP unauthorisedly, the 2nd respondent-Government of India addressed a letter to the State Government in reference Tele No. 301-1288 dated 26.11.1999 deprecating the practice. The learned Counsel also submitted that the Central Government have threatened that the IPS Officers who have appointed to the post of DGP over and above the cadre strength would not be paid salary and the Accountant Generals of such States would be directed not to pay salary in such cases. The said letter reads thus:

'Dear Shri Bhattacharya,

1. As you are aware, Rule 9(7) of the IPS (Pay) Rules, 1954 empowers the State Governments to create the apex level post of DGP equivalent to the number of sanctioned posts, in the ratio of 1:1. However, a number of cases have come to the notice of the Union Government wherein the State Governments have created ex-cadre posts at the apex level in excess 1:1 ratio in violation of the aforesaid rule despite guidelines and advisories to put a stop to it. The Central Government have taken a serious note of the continuance of this practice.

2. You will agree that this practice not only has no legal sanction but also creates problems in cadre management and puts the officers so promoted to a lot of difficulty as their pay cannot be regularised by the concerned Accountants General.

3. I take this opportunity to request you to ensure that creation of apex level posts in the IPS in violation of Rule 9(7) of the IPS (Pay) Rules, 1954 may not be resorted to. Concomitantly, I must also reiterate that in future no ex-post-facto approval for the creation of ex-cadre posts of DGP beyond the prescribed ratio of 1:1 would be given and the State Governments would have to deal themselves, with the consequences of creation of posts at DGP level in violation of the existing rules.

4. I am also endorsing a copy of this letter to the Accountant General of your State so that the EPS officers who are holding ex-cadre posts of Directors General in excess of the number that is authorised under Rule 9(7) of the IPS (Pay) Rules, 1954 are henceforth not allowed to draw pay of DGP's post.

Your sincerely,

_____Sd/-

(M.B.Kaushal)'

18. Sri Mohan Reddy further submits that when the post of DG & IGP became vacant on deputation of Sri H.J. Dora, IPS, to the Government of India as Director General, Central Industrial Security Force, the 1st respondent should have considered the cases of those 4 IPS officers who came within the zone of consideration and selected one among them and appointed him as DG & IGP of the State of Andhra Pradesh. According to the learned Counsel the zone of consideration consists of only four officers in the grade of DGP. In support of this contention, learned Counsel brought our attention to the observations of the Hon'ble Supreme Court in Sarabjit Singh v. Ex-Major B.D. Gupta, : AIR2000SC2639 , wherein the Supreme Court held:

'In our view, the respondent writ petitioner is no doubt right in contending that he has a fundamental right to be considered for promotion but this is available only if the 1st respondent falls within the prescribed zone of consideration.'

19. According to the learned Counsel, the principle laid down by the Supreme Court would be applicable for appointment to the post of DG and IGP, which is a selection post and since the 3rd respondent was not legally appointed to the grade of DGP, he should not only be considered as an officer in the grade of Additional DGP but also as an officer outside the zone of consideration for appointment to the post of DG and IGP of the State of Andhra Pradesh. It is further submitted that the 1st respondent used the words 'transfer and posting' in the impugned G.O. Rt. No.809, General Administration (SC.C) Department, dated 18.2.2002 which are not found in the IPS (Pay) Rules, 1954 and that the word used in the Rules is 'appointment'. Rule 3(2-A) is the relevant Rule, which reads thus:

'3(2-A) Appointment to the Selection Grade and posts carrying pay above the time-scale of pay in the Indian Police Service shall be made by selection on merit with the regard to seniority: Provided that no member of the Service shall be eligible for appointment to the Selection Grade unless he has entered the fourteenth year of service calculated from the year of allotment assigned to him under Rule 3 of the India Police Service (Regulation of Seniority) Rules, 1954 or under Regulation 3 of the Indian Police Service (Seniority of Special Recruits) Regulations, 1960, as the case may be.'

20. Referring to the above, the learned Counsel would submit that appointment to the post of DG & IGP should be by selection on merit with due regard to seniority. But respondent No. 1, violating this rule appointed respondent No. 3 as DG & IGP by overlooking the applicant who has an outstanding record of service and who is senior to respondent No. 3. He would further submit that only the IPS Officers in the cadre of DGP constitute the zone of consideration and from among those IPS Officers, one could have been selected and appointed to the post of DG & IGP. Since Respondent No.3 was legally in the grade of Additional DGP, hence he should not have been considered for selection and appointment as DG & IGP and the same is contrary to the law laid down by the Supreme Court in Sarabjit Singh's case (supra).

21. It was further contended that though the post of DG & IGP is a selection post, a credible mechanism would have been adopted by the respondent No. 1 as held by the Supreme Court in Vineet Narain's case (supra). He would submit that no selection has been made for the appointment to the post of DG and IGP and 3rd respondent was picked and chosen for the said post due to extraneous considerations. The reason shown before the learned Tribunal that the 3rd respondent has got longer tenure than the petitioner according to the learned Counsel is not a valid ground for rejecting the case of the petitioner for the post of DG & IGP sinee Bharat Chandra, IPS who is working as Principal Secretary of Home Department got longer tenure than the 3rd respondent as he would be in service till the end of June, 2004. Admittedly, as on the date of appointment i.e., 18.2.2002, the petitioner was having one year's tenure to retire whereas the 3rd respondent was having one and half years to retire. Therefore, according to the learned Counsel if 'longer tenure' was the reason for rejecting the case of the Writ Petitioner, Shri Bharat Chandra, IPS should have been appointed to the post of DG and IGP.

22. Another ground for rejecting the case of the petitioner, according to the learned Counsel is that the petitioner has not held any post in the Police Department in the immediate past. This ground, according to the learned Counsel, is also not tenable since the petitioner was not assigned with any post in the Police Department by the 1st respondent and it is not the mistake of the petitioner. The petitioner has left with no choice except to obey the orders of the 1st respondent-State Government.

23. The next ground taken for rejecting the case of the petitioner is that the petitioner was also promoted to the cadre of DGP over and above the cadre strength and the Government had received a letter in that regard from the Government of India to the following effect:

'No. I-11012/7/99-IPS Government of India/ Bharat Sarkar, Ministry of Home Affairs/ Grin Mantralaya, New Delhi, the 2nd Feb. 2000.

The Secretary,

Government of Andhra Pradesh,

Hyderabad.

(Attn: Shri A.L. Narayana, Joint Secretary)

Sub:- Ex-Post-facto approval sought for by the State Government of Andhra Pradesh to operate 3 more ex-cadre posts of DGP, in the grade of Rs. 24,050- 26,000 beyond 1:1 ratio, in the IPS cadre of A.P.

Sir,

I am directed to refer to State Government's letter No. 511/SC.C/99 dated 3.1.2000 on the above noted subject and to say that the State Government of A.P. has been sanctioned 2 cadre posts of DGP (in the pay scale of Rs. 24,050-26,000) and against the same they are authorised to create only 2 ex-cadre posts of DGP, i.e., in the ratio of 1:1 as per Rule 9(7) of IPS (Pay) Rules, 1954. So, the State Government have violated the provisions of the ibid Rules, by creating 3 more ex-cadre posts of DGP. Further, the functional justifications furnished by the State Government in support of their creation of such posts of DGP, over and above the prescribed ratio, are not justifiable, and also inadequate to merit relaxation of the provisions of Rule 9(7) of IPS (Pay) Rules, 1954. It is, therefore, regretted that the State Government's request of ex-post facto approval for creation of 3 more ex-cadre posts of DGP beyond 1:1 ratio, could not be acceded to.

The State Government, may however, operate the Cadre post of DG(ACB) and, adjust one of the officers against the cadre post of DG(ACB), and revert the 3 officers holding ex-cadre posts of DGP since their continuance against such posts are not authorised.

Yours faithfully,

P.S. Pillai

Under Secretary to the Government of India.

24. Pointing out the above letter, learned Counsel for the petitioner would submit that it may be true but by afflux of time the petitioner has joined the cadre strength and on the date of appointment to the post of DG and IGP is made i.e., 18.2.2002, the petitioner was in the cadre of DGP within the zone of consideration and that he was fully qualified to the post.

25. Mr. Mohan Reddy, learned Counsel has placed strong reliance upon the decision of the Supreme Court in Government of Karnataka v. C. Dinakar : [1999]3SCR708 wherein at paragraph-8 of the judgment, the apex Court pointed out the observations of the High Court of Karnataka, which are to the following effect:

From the pleadings of the parties, the submissions made before the Tribunal and the findings returned by it in this behalf it cannot be said that the appointment of Respondent No. 4 as DG & IGP was an order of simpliciter assignment of duties of DG & IGP to him in his capacity as DGP. The respondents 1 and 2 are shown and proved to have appointed respondent No.4 by selection purportedly after perusal of the comparative service record of all concerned. The plea of mere assignment of duties of DG & IGP to respondent No.4 appears to have been carved out purposely perhaps upon conceiving a doubt that such a selection could not be justified before a Court of Law, as selection is admittedly distinct from nomination. We shall therefore assume that the appointment of respondent No.4 has been made on the basis of the selection and determine the legality of Annexure-A in that context.

26. In paragraph-10 of the said judgment, the apex Court has referred to the observations of the Karnataka High Court on the aspect of non-application of mind, which are to the following effect:

Both the petitioner and respondent No.4 have claimed to be in possession of various letters of appreciations, medals and awards, which according to them make the one meritorious than the other. Admittedly, such letters of appreciation, the record about medals, awards, etc., as noticed hereinabove were not placed before respondent No.2 for his consideration at the time of making the selection of respondent No.4 as DG & IGP, which makes his selection illegal on the ground of non-consideration of the material record while making the selection for appointment to the post of Police Chief of the State. It is also worth noticing that while making the appointment of respondent No.4 to the post of DG & IGP, the official respondents were aware of the fact that it was likely to create embarrassing position so far as the Petitioner was concerned because the post of Director General of Police, COD Training, Special Units and Economic Offence and Chairman and Managing Director of Police Housing Corporation was considered to be amenable to the supervisory jurisdiction of DG & IGP. The only post treated as not amenable to supervisory jurisdiction of respondent No. 4 was the post of Director General of Police, Commandant General, Home Guards and Director of Civil Defence & Fire Services. To save the Petitioner from the humiliation of subordination the Chief Minister himself directed his transfer and appointment as Director General of Police & Commandant General, Home Guards & Ex-Officio Director, Civil Defence and Director, Fire Force, Bangalore. Continuance of the Petitioner as DGP, COD Training, Special Units and Economic Offences was considered to be derogatory to him. Despite holding that the post of DGP, COD Training, Special Units and Economic Offences and Chairman and Managing Director of Police Housing Corporation was subject to the supervisory control of respondent No.4, the Petitioner has admittedly been transferred to one of the aforesaid post during the pendency of this litigation. What necessitated his transfer and posting as Chairman and Managing Director of the Police Housing Corporation is a mystery shrouded with doubts and not explained by the respondents. The petitioner has referred to a number of documents, which are stated to have been addressed by the respondent No.4 to him allegedly with the motive of humiliating him despite his seniority in the service. We are of the opinion that the Tribunal did not take into account the circumstances noticed by us hereinabove while dismissing the application filed by the petitioner. The Order of the respondent-Tribunal is therefore not sustainable, as it has failed to take note of the position of law applicable in the case and arrived at the conclusion by reference to circumstances, which were not warranted. The Tribunal also did not notice the contradictory pleas raised by the respondents and the fact that the impugned order had been passed in a casual manner and without application of mind by keeping into account for various considerations requisite for making appointment by selection. The casual manner in which the fate of a senior most Police Officer in the State was decided appears to have not been properly presented before the tribunal and appreciated by it. The impugned Notification-Annexure-A which has been found by us to be against all the Service Rules and ethics despite being illegal and unconstitutional could not be upheld as was done by the tribunal. The impugned Notification-Annexure-A and the order of the respondent-Tribunal is therefore liable to be set aside and the Petitioner held entitled to grant of appropriate relief.

27. Mr. Mohan Reddy, then contended that absolutely there is non-application of mind in the selection process and the Annual Confidential Reports were not considered. The learned Counsel has submitted that from the judgment in C. Dinakar's case, two aspects arise for consideration

1. The State, as was done in Karnataka's case, has not put in any mechanism as directed by the Supreme Court in Vineet Narain v. Union of India : 1998CriLJ1208

2. In the selection process whether there was proper application of mind by the competent authority in regard to merit of the candidates.

28. In the present case, the Chief Secretary moved the file and the Chief Minister signed it and that there is no selection committee at all. He would further submit that from the stand taken by the State Government in the counter affidavit vis-a-vis the petitioner as well as the third respondent, it would be clear that the petitioner is more meritorious having regard to the annual confidential reports and if they are the only criteria. Regard shall be given to seniority when merit is equal or approximately equal and no other consideration shall weigh in such selection process.

29. With regard to the immediate past service rendered by the petitioner, the learned Counsel points out that out of thirty six years of service, the petitioner had worked for almost thirty years in regular police force, for two years he served as Chairman of the Tourism and Development Corporation and earlier to that he was Managing Director in Road Transport Corporation. He also worked as I.G. of Intelligence and Vigilance Commissioner and during his tenure in Tourism Development Corporation, the profit of 20 crores was accrued.

30. On the question as to what the Annual Confidential Reports would contain, the learned Counsel for the petitioner placed reliance on the observations of the. Division Bench of Karnataka High Court in Government of Karnataka v. C. Dinakar, 2001 (5) Kar. LJ 33, wherein it was held at paragraph-27 as under:

'It has further to be noticed that for determining the merit. All India Services (Confidential Rolls) Rules, 1970 may be taken into consideration. According to Rule 2 (b) of the said Rules 'confidential roll' means the compilation of the confidential reports written on a member of the Service and includes such other documents as may be specified by the Central Government, by general or special order, in that behalf. In pursuance of Clause (b) of Rule 2 of the Confidential Rules, the Central Government has specified the following documents to be included in the confidential roll, as defined in that clause, namely:

(i) Letters of appreciation/resolution issued by the Government to a member of the All India Service; record about any medals, award, etc., awarded to him in recognition of his services.

(ii) Copy of the order imposing on the member of the Service any of the penalties specified in the All India Services (Discipline and Appeal) Rules, 1969.

(a) Copy of the communications addressed to a member of the Service warning him or conveying the displeasure or reprimand by the Reporting Authority/Receiving Authority/ Accepting Authority to which a reference is made in the Confidential Report for the relevant period.

(b) Copy of the communication addressed to a member of the Service conveying warning, or displeasure, or reprimand of the Government.

(iii) Record of final result of the inquiry into the charges or allegations against a member of the Service, mentioned in his confidential report.

(iv) Copies of certificates regarding languages by the member of the Service.

(v) Copies of certificates regarding educational qualifications acquired by the member of the service after entering the service.

(vi) Copies of:

(a) Certificates and mark sheets regarding training (excluding certificates for one week training programmes) received by a member of the service; and

(b) Evaluation Sheets in respect of training programmes sponsored by Government of India or duration of four weeks or more.

(vii) Record about any books, articles and other publications brought out by a member of the Service or for the publication of which he may be responsible.'

31. According to the learned Counsel, in the present case there was no selection process by duly constituting a selection committee, as is the same in the case of Karnataka. He would submit that even assuming for a moment, there was a selection and the endorsement made by the Chief Minister would amount to selection by the duly constituted selection committee, yet there was no application of mind to the relevant factors and merit was totally ignored and it became a casualty.

32. On the aspect as to what would constitute 'merit', 'merit-cum-seniority', etc., the learned Counsel placed reliance on the decision of the Supreme Court in B.V. Sivaiah v. K. Addanki Babu, : (1999)ILLJ754SC , wherein at paragraph-9 of the judgment, the apex Court held:

The principle of 'merit-cum-seniority' lays greater emphasis on merit and ability and seniority plays a less significant role. Seniority is to be given weight only when merit and ability are approximately equal. In the context of Rule 5(2) of the Indian Administrative Service / Indian Police Service (Appointment by Promotion) Regulations, 1955 which prescribed that 'selection for inclusion in such list shall be based on merit and suitability in all respects with due regard to seniority' Mathew, J., in Union of India v. Mohan Lal Capoor, : (1973)IILLJ504SC has said :

'... for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale.' (p.801 of SCR) = (at p.99, para 37 of AIR) Similarly, Beg J. (as the learned Chief Justice then was) has said :-

'Thus, we think that the correct view in conformity with the plain meaning of words used in the relevant rules, is that the 'entrance' or 'inclusion' test, for a place on the select list, is competitive and comparative applied to all eligible candidates and not minimal like pass marks at an examination. The Selection Committee has an unrestricted choice of the best available talent, from amongst eligible candidates, determined by reference to reasonable criteria applied in assessing the facts revealed by service records of all eligible candidates so that merit and not mere seniority is the governing factor.' (p.817 of SCR) = (at p.96 of AIR).' The learned Counsel has also relied upon the decision of the Supreme Court in Union of India v. M.L. Capoor, : (1973)IILLJ504SC , wherein at paragraph-37 it was held: 'And, when Regulation 5(2) says that the selection for inclusion in the list shall be based on merit and suitability in all respects with due regard to seniority, what it means is that for inclusion in the list, merit and suitability in all respects should be the governing consideration and that seniority should play only a secondary role. It is only when merit and suitability are roughly equal that seniority will be a determining factor, or, if it is not fairly possible to make an assessment inter se of the merit and suitability of two eligible candidates and come to a firm conclusion, seniority would tilt the scale. But, to say as the High Court has done, that seniority is the determining factor and that it is only if the senior is found unfit that the junior can be thought of for inclusion in the list is, with respect, not a correct reading of Regulation 5 (2).'

33. Citing the above decisions, Mr. Mohan Reddy would contend that the appointment of third respondent based on certain extraneous considerations is totally illegal and is liable to be set aside.

34. On the question whether the third respondent could at all have been considered for appointment to the post of Director General of Police and whether by considering him the official respondents have committed an illegality in treating two unequals as equals, for the said purpose, the learned Counsel invited our attention to the Indian Police Service (Pay) Rules, 1954 and the Indian Police Service (Fixation of Cadre Strength) Rules, 1955.

Rule 9(7) of the Indian Police Service (Pay) Rules, 1954 provides as under:

'At no time the number of members of the service appointed to hold posts, other than cadre posts specified in Schedule III and referred to in Sub-rule (1) and Sub-rule (4), which carry a pay scale of Rs. 73 00-7 600 or Rs.7600-8000 per mensem, as the case may be, and which are reckoned against the State Deputation Reserve shall, except with the prior approval of the Central Government, exceed the number of cadre posts in the pay scale of Rs.7300-7600 or Rs.7600-8000 per mensem, as the case may be, in a State cadre or, as the case may be, in a Joint cadre.' (The pay scales are since revised to Rs. 22,400-24,500 and Rs.24,050-26,000 respectively).

35. Rule 4 of the Indian Police Service (Cadre) Regulations 1954, which deals with the strength of cadres, reads:

4(1) Strength of Cadres: The strength and composition of each of the cadres constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf and until such regulations are made shall be as in force immediately before the commencement of these rules.

(2) The Central Government shall, at intervals of every three years, re-examine the strength and composition of each such Cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit:

Provided that nothing in this sub-rule shall be deemed to affect the power of the Central Government to alter the strength and composition of any cadre at any other time;

Provided further that the State Government concerned may add for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years, to a State or Joint Cadre one or more posts carrying duties or responsibilities of a like nature to cadre posts.

36. Mr. Mohan Reddy submits that from 1987 onwards the State Government, except in two years, had been creating posts and posting officers beyond the cadre strength. By letter dated 17.11.1999, the Central Government observed that it cannot give permission to the State Government to create more additional posts beyond the sanctioned cadre strength. Our attention was invited to the Instructions of the Government of India contained in G.I., M.H.A. letter No.40/5/66-AIS (III), dated 27.12.1966. In para 2.1 it was observed;

'Under 3 of the Cadre Rules, Cadres have been constituted for each State or group of States. The strength and composition of each of these cadres have been determined by the Regulations, framed under the Cadres Rules and have been shown in the Schedule to those Regulations. The term 'cadre post' has been defined as any post specified under item I of each cadre in the Cadre Schedule vide Clause (v) of Rule 2 of the Cadre Rules.'

In para 2.4 it was observed:

'Neither a post which is declared equivalent in status and responsibility to a post included in the Pay Schedule nor a post as respects which such declaration has been dispensed with, is a cadre post.'

As to what is the effect of a 'cadre', the learned Counsel drew our attention to the observations of the Supreme Court in E.P. Royappa v. State of Tamil Nadu, : (1974)ILLJ172SC , wherein at para-81 it was held:

We now turn to the first ground of challenge which alleges contravention of the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and Rule 9(1) of the Indian Administrative Service (Pay) Rules, 1954. So far as the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 is concerned, we do not think it has any application. That proviso merely confers limited authority on the State government to make temporary addition to the Cadre for a period not exceeding the limit therein specified. The strength and composition of the Cadre can be determined only by the central government under Rule 4(1) and the central government alone can review it triennially or at any other intermediate time under Rule 4(2). The State government cannot add to the Cadre a different category of post than that already existing in the Cadre, nor can it make any permanent addition to the number of posts of a particular category in the Cadre, for to do so would mean, in the first case, alteration in the composition of the Cadre, and in the second, alteration in the strength of the Cadre, both of which would be impermissible to the State government. But the State government can, by virtue of the relaxation granted by the second proviso, make temporary addition to the Cadre provided the post added carries duties or responsibilities of a like nature to a Cadre post. This would mean, as pointed out by the government of India in its decision recorded at 4.1 at page 741 of the All Indian Services Manual (Second Edition): 'The exercise of this power by the State government with reference to a post involves an objective assessment of the nature of the duties and responsibilities attached to that post in comparison to those attached to a Cadre post. Thus posts cannot be added temporarily to the Cadre unless such posts already exist in the Cadre'. The State of Tamil Nadu could not, therefore, add the posts of Deputy Chairman, State Planning Commission, and Officer on Special Duty under the second proviso, as these posts did not exist in the Cadre as constituted by the central government. They were new categories of posts created by the State Government. The second proviso to Rule 4(2) has, therefore, no application and the challenge based on it must fail.

37. According to the learned Counsel, the State Government has no power to add to cadre strength and wherever cadre strength was violated, the Supreme Court found fault with such appointment.

38. The learned Counsel also relied on the judgment of the Supreme Court in K.Prasad v. Union of India, : (1988)ILLJ485SC , wherein at para-21 it was held:

The Government and the initial recruits seek to meet the above contention in two ways. They contend, firstly, that the assumption of the direct recruits that the prescription of strength of the service in the schedule will apply to the initial recruitment is wrong and that, even if this were correct, the further assumption that the schedule separately prescribes limitations on the number of junior and senior time scale posts is wrong. Secondly, they submit that, even if both the above assumptions are granted, the argument overlooks that the rules confer power on the Central Government to alter the strength and composition of the cadres at any time and that, therefore, any appointments, even if made in excess, should be treated as an automatic expansion of the cadre strength and would not be irregular or invalid.

39. At para-22 of the said decision, it was held:

We may take up the second argument first. If it were correct, it would be a complete answer to the contentions of the direct recruits. The argument is that it is for the Central Government to fix the strength and composition of the cadres and that this power can be exercised by it at any time. The first proviso to Rule 4(2) of the Cadre Rules, it is said, places this beyond all doubt. As against this, it is contended by the direct recruits that the proviso relied upon is only a proviso to Rule 4(2) and does not extend to Rule 4(1). It is urged that it has application only to the power of the Central Government to make alterations to the cadre strength in between the three-year review contemplated by Rule 4(2). Shri Kakkar, in this context, referred us to the following observations in Royappa v. State of Tamil Nadu, : (1974)ILLJ172SC :

We now turn to the first ground of challenge which alleges contravention of the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 and Rule 9, Sub-rule (1) of the Indian Administrative Service (Pay) Rules, 1954. So far as the second proviso to Rule 4(2) of the Indian Administrative Service (Cadre) Rules, 1954 is concerned, we do not think it has any application. That proviso merely confers limited authority on the State Government to make temporary addition to the cadre for a period not exceeding the limit therein specified. The strength and composition of the cadre can be determined only by the Central Government under Rule 4(1) and the Central Government alone can review it triennially or at any other intermediate time under Rule 4(2).

40. Placing reliance on the above judgment Mr. Mohan Reddy would submit that the above observations would partly answer the arguments of the respondents. He submitted that there is no power to expand the cadre strength merely because more persons are appointed.

41. The learned Counsel also relied on the decision of the Supreme Court in Gudur Kishan Rao v. Sutirtha Bhattacharya, : [1998]1SCR1053 , wherein at para-7 it was observed:

So far as the first question is concerned, the Notification dated 15-12-1993 on the face of it is an amendment to the Cadre Strength 'Regulation, 1955 and by the said Notification 14 posts against item No. 3 to be filled up by promotion and selection in accordance with Rule 8 of the Recruitment Rules have been increased for the period indicated in the notification. The obvious necessity for increasing the cadre strength so far as item No. 3 of the Schedule of the Cadre Strength Regulation is to accommodate the 14 State Civil Service Officers who had been excluded from the purview of consideration while drawing up the Select List for the year 1987 and in whose favour the Tribunal has issued certain directions. The Cadre Strength of the Indian Administrative Service for each of the State is fixed by the regulation which regulation is framed in exercise of power under Sub-rule (1) of Rule 4 of the Cadre Rules. This being the position the notification increasing the number of posts in respect of Item No. 3 of the schedule relating to Andhra Pradesh as well as the increase of the total authorised strength of the cadre in Andhra Pradesh is nothing but an amendment to the Regulation in question, and therefore, notwithstanding the level of notification that the same has been issued under Sub-section (1) of Section 3 of the Act read with Sub-rule (2) of Rule 4 of the Cadre Rules and Rule 3 of the Residuary Rules the same cannot have the status of an Act or the Rule as contended by Mr. Salve the learned Counsel appearing for the appellants. On a plain grammatical meaning of the words used in the notification being given as well as the object for which the notification has been issued if bome in mind the only conclusion that can be arrived at is that the said notification is a regulation amending the Cadre Strength Regulation and called the 12th Amendment Regulation, 1993.

42. At paragraph-8 of the decision, it was held by the Supreme Court as under:

So far as the second question posed by us is concerned it is no doubt a cardinal principle of construction that when Rules and Regulations have been framed dealing with different aspects of the conditions of service of the employees the Courts would attempt to make a harmonious construction and try to save the provisions and not to strike down the same. But where it is not possible even with doing some amount of violence to the language used in the notification to give a harmonious construction, then necessarily the Court will have no other option than to set aside a notification if the said notification contravenes any provisions of the Act or the Rule or is otherwise constitutionally invalid. Bearing in mind the aforesaid principle of construction it appears to us that the impugned amended Regulation cannot be harmoniously construed with Rule 9 of the Recruitment Rules. Under the Recruitment Rules recruitment to the Indian Administrative Service can be made by competitive examination; by selection of persons from among the Emergency Commissioned Officers and Short Service Commissioned Officers of the Armed Forces of the Union; by promotion of member of a State Civil Service; and by selection, in special cases from among the persons who hold in a substantive capacity gazetted posts in connection with the affairs of a State and who are not members of a State Civil Service. So far as the promotion of members of a State Civil Service is concerned the procedure is provided in Rule 8 of the Recruitment Rules. Under the said Rule 8 the Central Government on the recommendation of the State Government concerned and in consultation with the Public Service Commission makes recruitment to the service by promotion from amongst the members of the State Civil Service in accordance with Regulation to be framed by the Central Government. Under Rule 9 of the Recruitment Rules, there is a prohibition that the number of persons recruited under Rule 8 in any State and at any time will not exceed 33 1/3 per cent of the number of posts shown against items 1 and 2 of the Cadre in relation to the State. The Cadre Strength Regulation framed by the Central Government in exercise of power under Sub-rule (1) of Rule 4 of the Cadre Rules categorically fixes the number of posts borne and the strength and composition of the cadre for each of the States and so far as item No.3 dealing with the promotion by Selection under Rule 8 of the State Civil Service Officers are concerned it has to be 33 1/3 per cent of items 1 and 2 of the Schedule. That being so, any regulation merely increasing the number of post in item 3 without any corresponding increase of items 1 and 2 on the face of it would be violative of the very mandate of the Regulation and at any rate it would violate Rule 9 of the Recruitment Rules. The Regulation itself having been framed in exercise of power under Sub-rule (1) of Rule 4 of the Cadre Rules and Rule 8 having provided that the recruitment by promotion to the service from amongst the members of the State Civil Service has to be made in accordance with the Regulation and Rule 9 of the said Recruitment Rules having provided for a maximum of such promotion, the impugned notification increasing the number of posts only for State Civil Service Officers to be promoted contravenes Rules 8 and 9 of the Recruitment Rules as well as contravenes the mandate of the Regulation itself. Having considered the provisions of the Recruitment Rules, the Cadre Rules and the Cadre Strength Regulation we have no hesitation to come to the conclusion that the impugned notification dated 15 of December, 1993 contravenes Rule 9 of the Recruitment Rules and under the scheme of the Act, Rules and Regulations it is not possible to sustain the notification in question by giving any harmonious construction to the provisions. The Tribunal, therefore, was fully justified in striking down the notification dated 15 of December, 1993.

43. Another judgment of the Supreme Court in Tamilnadu Administrative Service Officers Association v. Union of India, AIR 2000 SC 1898, was also relied on. At para 11, it was observed as follows:

Under Rule 3 of the Cadre Rules, an IAS cadre is created for each State or a group of States in the Indian Union. Rule 4 of the said Rules provides that the Central Government in consultation with the State Governments should determine the strength and composition of the cadres constituted under Rule 3 by framing the regulations in this behalf. This Rule also provides for a review of the cadre from time to time which used to be at an interval of every 3 years and presently amended to 5 years. The review of the cadre strength contemplated under this Rule is to be done in consultation with the State Governments concerned. The proviso to this Rule empowers the State Government concerned to temporarily add to its cadre one or more post(s) for a period not exceeding one year on its own and with approval of the Central Government for a further period not exceeding two years. Thus, a conjoint reading of these sub-clauses and proviso of Rule 4 shows the fixation of the cadre strength and review thereof is the responsibility of the Central Government and for any urgent need of temporary nature, the State Government is empowered to add to this cadre one or more posts on its own as provided in the proviso to Rule 4(2). Therefore, creation of a cadre and fixation of the cadre strength are statutorily controlled and the same will have to be reviewed periodically bearing in mind the necessity prevailing at the time of review.

44. Mr. Mohan Reddy has also relied on the decision of the Supreme Court in Syed Khalid Rizvi v. Union of India, : (1993)ILLJ887SC .

'Thus it is settled law that a promotee officer appointed temporarily under Regulation 8 of Promotion Regulations and Rule 9 of Cadre Rules to a cadre post does not get his/her continuous officiation towards seniority. Seniority would be counted only from the date on which he/she was brought into the select-list by the selection committee in accordance with Recruitment Rules, Promotion Regulations and Seniority Rules and was approved by the UPSC, appointed under Rule 9 of Recruitment Rules and Regulation 9 of Promotion Regulations and has continuously officiated without break. Seniority would be entitled from the date of select-list or continuous officiation whichever is later. He/she is entitled to appointment by the central government to substantive vacancy under Regulation 9 of Promotion Regulations from that date. The central government and the UPSC should approve temporary appointment by an order in writing and also of such officiation. In that event seniority would be counted only from the date, either of his/her inclusion in the select-list or from the date of officiating appointment to the cadre post whichever is later. By operation of Explanation 1 to Rule 3(3)(b) of the Seniority Rules his seniority will be counted only from either of the later dates and the necessary effect is that the entire previous period of officiation should be rendered fortuitous and the appointment as ad hoc appointment or by local arrangement.

...The concomitant result is that the determination of the seniority has been interlinked with the recruitment of the promotee officer to the Indian Police Service. To satisfactorily solve the problem the Recruitment Rules, Promotion Regulations and Seniority Rules vis-a-vis the Cadre Rules should be read together.

Due to exigencies of the service, the State government has been empowered under Regulation 8 of Promotion Regulations read with Rule 9 of Cadre Rules to appoint select-list or non select officers to man temporary vacancies in cadre posts..... In other words, where the vacancy/vacancies continue for more than three months, the prior concurrence of the central government is mandatory. If it continues for more than six months prior approval of the Union Public Service Commission is also mandatory. Any appointment in violation thereof is not an appointment in accordance with the law. These appointments are mere ad hoc or local arrangement or fortuitous.

...Fulfilling the conditions of eligibility for consideration for promotion to the Indian Police Service from State Service are conditions of recruitment. Once a promotee has duly been recruited by promotion the conditions thereafter like pay, pension etc. are conditions of service. The compliance of conditions of recruitment are mandatory for appointment by promotion. In Keshav Chandra Joshi case, the writ petitioners were Forest Range Officers in U.P. State Forest Subordinate Service. Due to paucity of direct recruit Assistant Conservators of Forest by the UPSC the Forest Range Officers were temporarily promoted and they continued to officiate as Assistant Conservators of Forest for a period ranging between 5 to 12 years. They filed a writ petition under Article 32 contending that they became senior to the direct recruits who were recruited later on and that their continuous officiation should be counted towards their seniority. This Court, while repelling the contention, held that appointment to the post in accordance with the rules is a precondition and the conditions of rules of recruitment cannot be relaxed and that the promotees get their seniority only from the date of the regular promotion in accordance with the rules and within quota. The entire officiating period was held to be fortuitous. It must, therefore, be held that recruitment by promotion in accordance with the regulations and rules are conditions of recruitment and are mandatory and should be complied with.'

45. Mr. Mohan Reddy submitted that when 3rd respondent was selected as DGP, which is outside the cadre strength, the petitioner had no grievance at all and he could not have entertained any grievance. He could not have imagined that though he is not holding a substantive post, he will be considered and appointed to that post. Therefore, he would not have locus standi to challenge the appointment of 3rd respondent at that point of time and even now, it is not necessary for the petitioner to challenge his appointment, as he still remains to be outside the cadre. This apart, the petitioner did not have a grievance at that time, as admittedly he is junior to the petitioner (sic respondent No.3) and he is being made DGP as stated in the counter only for the purpose of designation and salary and nothing else. Mr. Reddy would submit that the Tribunal did not answer the above aspects. In so far as the petitioner's entry into the grade is concerned, it is the practice of the State to make appointments beyond the cadre strength i.e., selection post as and when vacancy arises. The State Government wanted to designate the 3rd respondent and did it violating the rules and the law.

46. Mr. Reddy has also relied upon a judgment of High Court of Calcutta in W.P.C.T.No.2 of 2001 wherein the inclusion of Additional Director-General of Police for promotion to DGP was considered. Therein, the Tribunal rejected the contention of the petitioner, who was the senior most DGP but the writ petition was allowed holding that the person appointed was not even in the select list of DGP. Once he is in the select list, he automatically becomes eligible for consideration. In the above judgment, our attention was drawn to the following observations:

We have no doubt in our mind to accept the observation of the Tribunal regarding the status of DG and IGP and hence, we also accept the contention of petitioner that although the post of DG and IGP carries the similar basic scale like other DGP of the State, the post of DG and IGP must be construed and treated to be the highest post in the Police hierarchy.

When come to the finding that post of D.G. and IGP is the highest post of police hierarchy, we must accept the contention of the petitioner that selection and appointment to the post of DG & IGP cannot be considered to be a simple routine assignment of duty and certainly there is an element of selection to such post and only an eligible candidate having due regard to merit and seniority should be appointed to such post.

We respectfully agree to the proposition of law settled by the Apex Court in the case of E.P. Royappa v. State of Tamil Nadu : (1974)ILLJ172SC where the Constitution Bench was pleased to observe that the appropriate Government is competent to exercise its choice regarding selection of a person to such a post where high degree of intellect and specialised experience is required and the Court of law cannot substitute its own choice and for administrative exigency if some one is picked up with discriminatory privilege that would be valid and not open to attack under Articles 14 and 16 of the Constitution. But, at the same time, we cannot forget that everybody must act to uphold rule of law and there must be a reasonable and fair exercise of the choice so that no civil servant is deprived of his legitimate right to a post for which he is otherwise found eligible.

47. The above judgment also referred to the principles laid down in Vineet Narain 's case and set aside the appointment as there was no credible mechanism for making such an appointment and directed the State Government, to create such a mechanism and make selection. He, therefore, pleaded for setting aside the order of the Tribunal as also the order of the 1st respondent dated 18.2.2002.

48. Unfolding the arguments, the learned Additional Advocate-General drew our attention to the relevant pleadings in Original Application filed by the petitioner herein before the Central Administrative Tribunal and submitted that the contentions raised before the Central Administrative Tribunal and in this Court are different. One of such contentions is; before the Tribunal he pleaded that because the third respondent is beyond the cadre strength, he will be treated as only additional DGP, but in this Court he pleaded that though the third respondent was given DGP grade in 2001, but he was beyond the cadre strength. Nowhere the contention that he was also DGP was raised. He drew our attention to para 6.4 of the O.A. at page 66, which reads:

That according to Rule 9.7 of Pay Rules, the number of cadre posts and ex-cadre posts in the grade of Additional DGP (pay scale of Rs. 22,400-24,500) and DGP (pay scale of Rs. 24,050-26,000) should be in the ratio of 1:1. Since the Central Government have sanctioned two cadre posts in the grade of DGP for A.P., respondent No. 1 State Government can create only two ex-cadre posts in this grade. Therefore, there cannot be more than four posts in the cadre of DGP, that is, two cadre posts and two ex-cadre posts. Notwithstanding the clear provisions contained in Rule 9 (7) of the Pay Rules, respondent No. 1 created the fifth post in the grade of DGP without authority and power of approval of the Central Government and as an act of favourtism promoted respondent No.3 to the grade of DGP in the pay scale of Rs. 24,050-26,000. Thus respondent No. 1 had gone to the extent of committing an illegality by completly violating Rule 9(7) of the Pay Rules to favour respondent No.3. This shows that respondent No.3 is in a position to compel respondent No. 1 even to the extent of committing illegality.

49. As to filling up of posts beyond the cadre strength of four officers, the State represented that the consequences of violation of Rule 9.7 have to be gone into. Then the learned Counsel for the petitioner contended that whether Rule 9.7 was violated or not need not be gone into for the disposal of the O.A. The learned Additional Advocate General raises a question as to whether will it be open to the petitioner to contend that the Tribunal has not decided the issue?

50. He further pointed out that it was the specific case that irrespective of the fact that though the third respondent was promoted to DGP grade, he cannot be treated as DGP but he belongs to Addl. DGP grade and reliance was placed on Dinakar's case, which was admittedly a case wherein Sri Srinivasulu was appointed DG & IGP.

51. Another important aspect on which the learned Additional Advocate General placed reliance is: In the counter affidavit it was stated that the petitioner has taken a stand that in 1999 he was promoted to DGP grade beyond cadre strength. In the reply, a specific stand was taken. If the contention of the petitioner is accepted to the logical end, it means that who ever has been appointed to the DGP grade, irrespective of the fact that they have been selected by the Committee, there is no other order passed by the Government giving him the Grade, after he walks into four cadre posts strength. Both the petitioner and the third respondent were selected by the Committee as required under the Rules - one in June, 1999 and another in May, 2001.

52. Our attention was also drawn to para 3 of the rejoinder filed by the applicant before the Tribunal wherein it is stated:

'It is respectfully submitted that the applicant was promoted to the grade of DGP on 24.6.1999 even though there were four officers already in that grade is not true. The dates of appointment of the relevant IPS Officers to the grade of DGP as mentioned in 'Half-yearly list of members of the Indian Police Service Cadre, borne on the Andhra Pradesh Establishment connected upto 1st January, 2002' published by the General Administration (SC-C) Department of respondent is at SI.No.4...'

53. Our attention was also drawn to para 8 of the counter affidavit filed by the 3rd respondent before the Tribunal which reads thus:

It is humbly submitted that it is the State Government on which the Officers are borne and which has to prevent stagnation of officials by providing career advancement to the meritorious of Officers to keep up their morale and prevent frustration and lowering of the efficiency.'

54. The learned Advocate General would submit that the above sentence, has to be read in the context of nature of duties. Respondent No.3 at the time when the Grade was given in May 2001 was Commissioner of Police. The State has considered all the officers in the grade of DGP.

55. Our attention was also drawn to the point raised by the petitioner to the effect that the appointment order reads only as transfer - 'transferred and posted as'. The very order describes 'IPS - appointment of Sri P. Ramulu as DG & IGP'. It is clear that the appointment of third respondent is as DG & IGP and that the petitioner himself recognized the order as an order of appointment in the Original application. In this context, we may see the prayer in the Original Application which reads as follows:

Therefore, the applicant humbly prays that this Hon'ble Tribunal be graciously pleased to:

(a) Call for records relating to the issue of respondent No. 1's order G.O.Rt.No.809 dated 18.2.2002 at Annexure A-4 appointing Respondent No.3 as DG & IGP of A.P. and issue a direction, order of writ in the nature of certiorari setting aside the aforesaid order;

(b) Direct respondent No. 1 to consider the case of the applicant and appoint him as DG & IGP of A.P.

56. Learned Additional Advocate-General would contend that a reading of the prayer would show that the petitioner himself understood it as an order and that is why he sought for setting aside the same. He vehemently argued that it is an appointment after selection and all the five officers' annual confidential reports have been considered and the Chief Secretary has put up a note.

57. He further submitted that when the State is making appointment to the important post of DG & IGP of the State, it has to necessarily borne in mind the interest of the public at large and not the individual interest of x. He submitted that the petitioner has not on his own has gone out of the police service, but the fact remains that he was out of regular police service line and it would certainly be a relevant consideration.

58. Learned Additional Advocate General has produced the note file in C.No.47/SC.C/2002 relating to appointment and the relevant paragraphs read as under:

5. Sri H.J. Dora, IPS, DG & IGP has been appointed as Director General, CISF on deputation basis and Govt. of India have requested for his relief to join at his new assignment on 1.2.2002. State Government have informed that he would be relieved at the earliest after making arrangements for his relief.

6. Submitted for orders for relief of Sri HJ. Dora, IPS and for appointment of DG & IGP for the State. The following (6) Officers are in the DG & IGP grade in the State at present;

S/Sri

1. Janak Raj, IPS(66)

2. C. Anjaneya Reddy, IPS (66)

3. S.C. Dwivedi, IPS (66)

4. Bharath Chandra, IPS (66)

5. P. Ramulu, IPS (67)

6. S.R. Sukumara, IPS (67).

There are no charges against these Officers. Their ACRs are placed in L.F.II. In this connection, it may be noted that on an earlier occasion the State Government have informed die Govt. of India that 'in view of the sensitivities involved, postings of IPS officers will be done by the State Government' (Vide D.O. Letter No.436/SC.C/98 dt/30.12.2000 in the LF.l)

Secretary (Poll.)

16.2.2002.

8. Notes from pre-page may kindly be seen. The post of DGP is an onerous one involving the management of the total law and order position in the State and the management of the large Police Force and the para-military forces. The position assumes greater significance in view of development relating to security and terrorism at international scale having ramifications at the national and state levels.

'9. Selection of the officer against the post should keep the following in focus:

1. Reasonable tenure from the date of appointment for proper results;

2. Appropriate experience in supervising the law and order machinery;

3. Performance of the officer, particularly in the field oriented policies.'

10. The following five officers are in the zone of consideration inasmuch as they have been enjoying the rank and pay of DGP. Notwithstanding the choice for the DGP requires a look into the record of the Officer with specific reference to the service left over and the gradation of the performance.

11. The following is a short-list indicating the service left and the gradation of performance:

Sl. No. Name S/SriDate of birthDate of retirementLeft over serviceGradation

1. Sri JanakRaj I66I10.2.194328.2.200311 monthsGood2. C.Anjaneya Reddy (66)7.1.194331.1.200311 monthsOutstanding3. S.C.Dwiwedi 166)12.8.194231.8.20026 monthsGood4. BharathChandra (66)30.6.194430.6.20042 years 4 monthsVery Good5. P.Ramulu(67)19.7.194331.7.20031 year 5 monthsVeryGood/ Outstanding

12. On the basis of the above, the candidature of Sri Janak Raj and Sri S.C. Dwiwedi may not be pursued further.

13. The performance of Sri C. Anjaneya Reddy is outstanding in the Department of Tourism and RTC, etc. However, a limited balance of service i.e., 11 months may not perhaps bear up the Government's requirements.

14. Government's choice with reference to both tenure and record revolves around two officers i.e. Sri Bharath 'Chandra or Sri P. Ramuiu. In this connection, it is for note that posts of Prl. Secretary, Home which Sri Bharath Chandra holds at present and that of DGP have traditionally been considered as inter-changeable and in addition to the same rank and status also carry the same prestige. CM may kindly see and take a decision in the matter.

P.V. Rao

Chief Secretary

16.2.2002.

15. Perused the detailed analysis in the foregoing paragraphs. Considering all the relevant facts, the assessment made above, the record, performance and available tenure of the officers in the reckoning for this post; Sri P. Ramuiu, IPS is appointed as Director General of Police.

N. Chandrababunaidu

CHIEF MINISTER

18.2.2002

59. It is, therefore, contended by the learned Additional Advocate-General that from the above it is clear that the performance and the limited balance of service are the two considerations that were taken into consideration. He further submitted that one has to look into the merit only with reference to the suitability of the post.

60. Turning to the observations of the Apex Court as to evolving a 'credible mechanism', learned Additional Advocate-General referred to paragraph 61 of the judgment of the Apex Court in Vineet Narain's case.

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 Central 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 politicising 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.

In the result, we strike down Directive No.4.7(3) of the Single Directive quoted above and issue the above directions, which have to be constructed in the light of the earlier discussion. The Report of the Independent Review Committee (IRC) and its recommendations which are similar to this extent can be read, if necessary, for a proper appreciation of these directions. To the extent we agree with the conclusions and recommendations of the IRC, and that is a large area, we have adopted the same in the formulation of the above directions. These directions require the strict compliance/adherence of the Union of India and all concerned.

61. The learned Additional Advocate-General would further submit that the petitioner took a specific plea to the effect that respondent No.3 cannot be treated as DGP though he was promoted to the DGP grade in May 2001. The reason mentioned in the O.A., was respondent No.3 was not within the zone of consideration for being appointed as DG & IGP. Though he was given DGP grade, it has not been challenged. The contention of the petitioner was that Respondent No.3 was holding additional DGP post because he was beyond cadre strength.

62. According to the learned Addl. Advocate-General, a different stand is taken in this Court from the one that was taken before the Tribunal.

63. He also submitted that from 1987 the State Government was giving DGP cadres beyond cadre strength in the State for encouraging officers to see that they are not stagnated. The petitioner himself is also a beneficiary. The submission now made is once a person is appointed beyond cadre strength, he cannot be treated to be of that cadre and he should be treated to be only in the lower cadre. There is no fresh order giving him DGP cadre after he has come into the zone of four posts. If that were taken to logical end, he would also not be in the DGP cadre. There is a change in the argument stating that the petitioner walked into at the time of consideration of appointment of DG & IGP post, he was within four and that is why he was entitled to be considered but not respondent No.3. That was not the case before the Tribunal.

64. Learned Additional Advocate General pointed out that a categorical finding has been recorded by the Tribunal to the effect that the Counsel who appeared for the petitioner before the Tribunal stated that consequences of violation of Rule 9.7 of the Pay Rules need not be gone into and the relevant portions are at paragraphs 46 and 47:

46. The contention raised by the learned Counsel for the applicant for violation of Rule 9(7) regarding non-maintenance of 1:1 ratio is indeed a weighty contention, particularly so, when read with the letter dated 22.11.1999, issued by the Ministry of Home Affairs to all the Chief Secretaries of the States. The fact emerging from the pleading before us is that the ratio 1 : 1 has not been maintained in the State of A.P. right from 1987. Utilisation has been in excess except for the years 1994 and 1998. The State Government have resorted to it to prevent stagnation of officials by providing a career advancement to the meritorious officers to keep up their morale and prevent frustration. The applicant's submission before us is that violation of the said rule should not be countenanced by this Tribunal. It is, however, seen from the letter dated 26.11.1999 that the problem of utilisation of excess ex-cadre posts by the State Governments has received the attention of the Home Ministry. They have gone to the extent of informing the Accountant General that the IPS officers who are holding the ex-cadre post of DGP in excess of the number that is authorised under Rule 9(7) of the Pay Rules are henceforth not to be allowed to draw the pay of DGPs post i.e., stopping...... of amending the rules.

The five yearly review of re-examination and composition of the IPS cadre for the State Government of A.P. is due in March, 2002. The applicant's contention that strict interpretation should be rigidly enforced does not stand to our reasoning as the applicant himself have come through the same channel of excess utilisation in June, 1999 referred to in para 12 supra. The tabulated statement furnished by the applicant with his rejoinder is on the basis of the factual position as it exited on 1st January, 2002 and not in July, 1999.

47. In any case, the learned Counsel for the applicant was not inclined to get into the question arising out of consequences of non-maintenance of the ratio 1:1 in the ran as laid down in Rule 9(7) of the Pay Rules.

65. He submitted that it was stated across the Bar that consequences of violation of rule need not be gone into in the case of the petitioner, now, entirely a new case is being built up saying that the ratio ought to have been maintained.

66. The learned Additional Advocate-General submitted that the State Government, as on the date of consideration, necessarily has to consider the appointment of DG & IGP keeping in view the interest of whole State and not the individual interest. Tenure also is an equally important factor. The petitioner was left with eleven months' service whereas respondent No. 3 was having 1 1/2 years term.

67. Additional Advocate-General in reply to the reliance placed by the petitioner in Vineet Narain 's case submitted that it is not as though until credible mechanism is evolved, all the appointments till then are bad. He referred to the passage in the said decision, which is as under:

'In view of the problem in the States being more acute as elaborately discussed....the Central Government must pursue the matter with the State Governments..'

68. In reply to the reliance placed by the petitioner on Dinakar's case, the learned Addl. Advocate General would submit that the said case has no application to the facts of this case. In that case, the appointment has been set aside on the ground that the officer of the lower grade has been considered along with the officers of DGP grade, but the appointment has not been set aside on the ground that credible mechanism was not evolved. There is nothing wrong in the judgment of the Tribunal for the reason that appointment of respondent No.3 to DGP post was not challenged and now it is not open to the petitioner to contend that Respondent No. 3 is only additional DGP. The Tribunal, as of fact, found that respondent No.3 was holding DGP grade as on the date of consideration.

69. Rule 3 of the Pay Rules deals with the scales of pay admissible to various officers. Rule 3(2)(a) has been inserted by way of amendment in 1968. This rule is with regard to giving of scale and selection grade and it has nothing to do with DG & IG appointment. There is no rule prescribing selection mode to DG & IG post. The tenure of the person is important and is a relevant consideration.

70. The Apex Court in Vineet Narain's case pointed out that there was need to evolve credible mechanism. No where it is stated that until credible mechanism is evolved, no appointment shall be made.

71. In regard to the judgment of the Calcutta High Court in W.P.C.T. No.2 of 2001, the learned Additional Advocate General would submit that in appeal carried to the Supreme Court against the said judgment, status quo was ordered to be maintained. He further submitted that in that case, the petitioner was one of the candidates empanelled for DGP grade and that the DG & IGP appointed in the State of West Bengal are continuing.

72. Learned Additional Advocate-General pointed out that the petitioner was not in the police department in the recent past and was left with eleven months service as on the date of consideration. These two relevant factors have been considered by the Government and respondent No. 3 was found suitable for appointment to the post of DG & IG.

73. Lastly, he submitted that the Tribunal has rightly did not go into the consequences of violation of Rule 9.7 in view of the statement of the petitioner that in his case that need not be gone into.

74. The learned Counsel appearing for the 3rd respondent has adopted the arguments of the learned Advocate-General and submitted that there are no grounds to interfere with the order of the learned Tribunal.

75. We have given our anxious and thoughtful consideration to the elaborate arguments advanced by the Counsel appearing on either side. We have also perused the entire pleadings and the judgments cited and records placed before us.

76. Though the arguments of Mr. Mohan Reddy appears to be attractive on the first blush, but on a deeper consideration of the same with reference to the arguments advanced by the learned Additional Advocate General, the record placed before us and the judgments relied upon, the same cannot be countenanced.

77. The petitioner has filed the O.A. before the Central Administrative Tribunal questioning the order dated 18.2.2002 on the ground that the third respondent is ineligible to be considered for appointment as Director General and Inspector General of State of Andhra Pradesh inasmuch as his promotion to the said post was beyond the cadre strength viz., four posts in the Grade of Director General of Police (two cadre and two ex-cadre posts) and the 3rd respondent shall be treated only as Additional Director General of Police as on 18.2.2002 and as such he could not have been considered to be equal to the other officers of DGP grade.

78. There is no dispute that though the post of DG & IGP fall in the grade of DGP and carries the same scale of pay, appointment to the same is by way of selection from among the eligible officers in the DGP Grade. Rule 3(1) of the Indian Police Service (Cadre) Rules, 1954 provides that there shall be constituted for each State or group of States an Indian Police Service Cadre. Rule 4(1) of the said Rules provides that the strength and composition of each of the cadre constituted under Rule 3 shall be as determined by regulations made by the Central Government in consultation with the State Governments in this behalf. Under Rule 4(2) the Central Government shall, at intervals of every three years (now stated to be amended as five years), re-examine the strength and composition of each such cadre in consultation with the State Government or the State Governments concerned and may make such alterations therein as it deems fit. We have earlier extracted Rule 4 of Cadre Rules.

79. By reason of the Indian Police Service (Fixation of Cadre Strength) Regulations, 1955, the Central Government in consultation with the Governments of the States concerned fixed the cadre strengths for each State. So far as the State of Andhra Pradesh is concerned, the posts of Director General and Inspector General of Police and Director General, Anti Corruption Bureau are fixed as cadre posts in the Grade of Director General of Police. Therefore, two cadre posts in the grade of DGP are earmarked for the State of A.P. Under the second proviso to Rule 4(2) the State Government has power to add more posts carrying duties or responsibilities of a like nature to the State cadre posts for a period not exceeding one year and with the approval of the Central Government for a further period not exceeding two years. Therefore the State Government has power to appoint persons beyond cadre strength subject of course to the approval of the Central Government.

80. Rule 3(2-A) of the Indian Police Service (Pay) Rules, 1954 provides that the appointment to the Selection grade and posts carrying pay above the time scale of pay in the Indian Police Service shall be made by selection on merit with due regard to seniority. As per Rule 9(7) of the Pay Rules, 1954, which has been quoted earlier, the State can, create two more posts of DGPs as ex-cadre posts and in all there can be four posts in the cadre of DGP.

81. There is no dispute that when the petitioner was appointed as DGP on 24.6.1999 he was the 5th officer in the said grade and the 3rd respondent was the 6th Officer when he was appointed as DGP on 30.5.2001. Therefore, both the Officers were appointed beyond the cadre strength. The fact that the petitioner and the 3rd respondent were appointed beyond the cadre strength shows that such appointments are being made probably in order to keep up the morale of the Officers and to prevent stagnation and frustration among them. There cannot be any dispute about the propositions relied on by the learned Counsel for the petitioner in Royappa v. Tamil Nadu and K. Prasad v. Union of India (supra) as regards the constitution of the cadres and the limitations on the power of the States to add posts to the cadres temporarily. The Central Government alone can re-examine the strength and composition of cadres in consultation with the State Governments. It is true that the State has no power to expand the cadre strength merely because more persons are appointed. But the fact remains that the State Government has appointed persons beyond the cadre strength and in fact the petitioner is also benefited by such procedure. The ratio of 1:1 has not been maintained right from the year 1987 and the same is being continued even today. Therefore, it is for the Central Government to take appropriate action in such cases. In view of the peculiar situation obtaining in the State and as all the Officers are being allowed some concession in the matter of appointment to the cadre of DGP, we are unable to agree with the contention of Mr. Reddy that the appointments made beyond the cadre strength should be treated as irregular and illegal and such appointments do not confer any right on them. In the present petition, we are not inclined to go into the said aspect, as both the petitioner and 3rd respondent are beneficiaries of such procedure. It is also not correct to contend that till a substantive vacancy is available in the grade of DGP, they shall be treated as holding the posts of Additional DGP. In this view of the matter, it is not necessary for us to go into the aspect whether the Counsel for the petitioner has urged before the Tribunal that the consequences of violation of Rule 9(7) need not be gone into.

82. As regards the cadre strength, in our view, Rule 4(2) of the IPS (Cadre) Rules and Rule 9(7) of the IPS (Pay) Rules, 1954 and IPS (Fixation of Cadre Strength) Rules 1955 have to be read together for better appreciation of the position and in the view we have taken it is not necessary to determine as to what would be consequences if the cadre strength has been exceeded in the State. For the same reason, it is not necessary to go into the issue whether the 3rd respondent has been appointed beyond the cadre strength of DGP grade.

83. The main contention of the petitioner is that appointment of the 3rd respondent is contrary to the principles laid down in Dinakar's case. In the said case, ignoring the case of the 1st respondent therein who was in the cadre of DGP, the 4th respondent therein who was in the cadre of Addl. DGP was considered. The Tribunal dismissed the application of the 1st respondent. In exercise of the power of judicial review, the High Court of Karnataka quashed the appointment of the 4th respondent as DG & IGF. Before the Tribunal it was contended that appointment to the post of DG & IGP has been made on very objective criteria and after comparative assessment of the service records of all the eligible officers. However, before the High Court a different stand was taken contending that the appointment of respondent No. 4 as DG and IGP was an order of simpliciter assignment of duties of DG and IGP to the 4th respondent in his capacity as DGP. The High Court rejected the said contention holding that the appointment of Respondent No. 4 to DG & IGP was on the basis of selection only. As a fact it was found that the 4th respondent was not a DGP on any date prior to his appointment as DG & IGP as he was on deputation with the Central Government and only a person substantively holding the cadre of DGP could be considered for appointment to the Post of DG & IGP and therefore the 1st respondent is right in complaining that unequals were treated alike and the same is discriminatory and unconstitutional. No doubt the Karnataka High Court has gone into the aspect of non-application of mind as to the relative assessment of merits of the competing Officers and held that when merit being equal between the claimants the seniority could not have been ignored. It was found that the selection of respondent No. 4 was the result of non-application mind and the decision was arrived at in a casual manner. The High Court found that the latest performance of respondent No. 4 who was with the service of the Central Government in Intelligence Bureau was apparently not in the knowledge of the authority. Taking all these factors into account cumulatively, the appointment of the 4th respondent was quashed. In the case on hand, the 3rd respondent was already in the cadre of DGP and the question of treating him as unequal as has been contended by Sri Mohan Reddy, learned Counsel appearing for the petitioner does not arise. Whether he comes within the fold of the cadre strength of DGP or not, since he has been working in the cadre of DGP he has a right to be considered along with others.

84. There cannot be any dispute about the principle that when merit and ability are equal or approximately equal, seniority should be given weight. But, in our considered view, where the selection involves appointment to the sensitive and highest post in a department having larger public interest of the State, it would not always be possible to apply the aforesaid principle in stricto senso when the entire selection process is otherwise in order. We will deal with this aspect in some detail in latter paras of the judgment.

85. As regards the credible mechanism as contemplated in Vineet Narain 's case, it is to be noted that the said directions were given to the Central Government and no specific directions were given to the States. In the said case, the Supreme Court was dealing with a public interest litigation arising out of seizure of diaries from one Sri Surender Kumar Jain and his brothers. The PIL was filed with the object that the Government agencies be compelled to duly perform their legal obligations and to proceed in accordance with law against every person involved, irrespective of where he was placed in the political hierarchy and to appoint officers of the police or others in whose integrity, independence and competence the Court has confidence for conducting and/or supervising the said investigation. Incidentally, the appointment of one Sri R.C. Sharma as the Director of CBI was also called in question.

86. The Apex Court has in extenso dealt with the procedure as to the appointments to various posts i.e. Central Vigilance Commissioner, Director, CBI, Director, Enforcement Directorate etc. taking notice of reports of various Committees and in that connection has issued certain directions to the Central Government in para 59 of the judgment. The Apex Court, in that connection, has also made certain observations in para 61 of the Judgment in regard to selection of the Police Chief, Officers of the rank of Superintendent of Police and above in the States which we quoted in the earlier paras of our judgment. It was observed that there is urgent need for State Government also to set up credible mechanism for selection of the Police Chief in the States and the Central Government must pursue the matter with the State governments and ensure that a similar mechanism as indicated in the case of appointments of CVC, Director, CBI 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 Police Officers of the rank of Superintendent of Police and above. It is true that so far as the State is concerned, so far no credible mechanism for selection as suggested by the Apex Court has been evolved. The Central Government has been advised to pursue the matter with the State Governments to evolve a credible mechanism. To what extent, the Central Government has been able to pursue the matter is not known. However, merely because a credible mechanism has not been evolved either by the Central Government or the State Government, it does not mean that the selection process would be vitiated. Till a credible mechanism has been evolved by the State, the State cannot keep the highest posts vacant or make ad hoc promotions, which may lead to difficulties. Nowhere in the said judgment it was observed that until credible mechanism has been evolved, no appointment or transfer can be made by the State Government.

87. Further, while the case was part heard, the petitioner herein filed an additional affidavit and pleaded that the State Government has not placed the relevant material regarding the credible mechanism. In fact the State Government has produced the relevant records pertaining to the communication of the Central government addressed to the State Government to evolve credible mechanism and the State Government informed the Central Government that in view of the sensitivities involved, the posting of IPS Officers will be done by the State government. In view of this, it is stated that the appointment of 3rd respondent cannot be said to be illegal on the ground that no credible mechanism has been evolved. We are in agreement with the stand taken by the 1st respondent.

88. The main argument of the learned Counsel for the petitioner is that the 3rd respondent does not come within the zone of consideration for being appointed as DG & IGP as the post he was holding at the time he was considered for appointment as DG & IGP fell outside the sanctioned cadre strength. No doubt as per Rule 9(7) of the Pay Rules cadre and ex-cadre posts should be in the ratio of 1:1 and in the instant case as there are two sanctioned posts of DGP, there will be only two ex cadre posts in the said category. But, as already observed earlier, the record placed before us clearly depict that right from the year 1987 ex-cadre posts are being created beyond the ratio prescribed under Rule 9(7) of the Pay Rules, 1954 read with Rule 4(2) of the IPS (Cadre) Rules, 1954. In the year 1987 as against one sanctioned DGP cadre post and one ex-cadre post i.e., for total of two posts as many as seven Officers were given promotion as DGPs. The appointment to DGP cadre has always exceeded the total posts of cadre and ex cadre posts. Even the petitioner himself was appointed beyond the cadre strength when he was appointed as DGP on 29.6.1999. It is the case of the State that in order to prevent stagnation of officials and frustration among the meritorious officers and to keep up their morale, promotions are effected to the DGP cadre as a measure of providing career advancement to the meritorious officers and in that process appointments are being made in excess of the ratio prescribed in Rule 9(7). Therefore, when Rule 9(7) of the Pay Rules was not strictly adhered to by the State and when the petitioner himself was benefited by such policy, the petitioner cannot contend that the appointment of the 3rd respondent to the cadre of DGP is illegal particularly when he has not challenged the same. The argument of the petitioner that at the relevant time he was not aggrieved by the promotion of the 3rd respondent as DGP on the ground that he was junior to him and as there is no adverse impact on him by such promotion he has not challenged the same has no merit. When appointment to the post of DG & IGP is on the basis of selection, once the 3rd respondent has come to the cadre of DGP, whether he is junior or senior does not matter, as the criterion for appointment to DG & IGP is only merit-cum-seniority and it cannot be predicted that a senior alone will be considered for appointment. In view of the policy adopted by the State to appoint persons beyond the cadre strength, once an individual has come into the fold of DGP cadre, he is entitled to be considered for appointment to the IG & DGP cadre. Restricting the persons in the DGP cadre for such appointment only upto the cadre strength would amount to discriminating the equals which is arbitrary and violative of Article 16 of the Constitution.

89. It was also contended that the appointment of the 3rd respondent was not within the zone of consideration as on the date of the impugned G.O. he being outside the sanctioned cadre strength. Therefore, considering him for appointment as DG & IGP along with officers in the grade of DGP who are within the cadre strength would be treating unequals as equals and would amount to considering the ineligible persons for appointment as DG & IGP. The appointment of the 3rd respondent as DGP itself was irregular, as the same is in violation of Rule 9(7) of the Pay Rules and therefore he shall be treated only as Additional DGP and hence not eligible for appointment to the post of IG & DGP. We find no merit in the said contention.

90. Since the 3rd respondent was appointed to the cadre of DGP and was being paid the scale attached to the grade of DGP, the question of considering him as Addl. DGP as on 18.5.2002 does not arise in view of the policy being adopted by the State in promoting the Officers beyond the cadre strength. As noticed earlier, several persons including the petitioner himself were promoted to the DGP cadre in excess of the cadre strength. In such a situation, why the 3rd respondent should alone be discriminated and be treated as Addl. DGP? From time to time, the eligible officers are getting the benefit of appointment to DGP cadre in excess of the cadre strength. Such a benefit having been availed of by the petitioner himself, he cannot be permitted to contend that the same should not be extended to 3rd respondent because by such exclusion, 3rd respondent will not come into the zone of consideration. We absolutely find no substance in the contention of the petitioner. The non-extension of such benefit to the 3rd respondent would certainly attract the discriminatory clause enshrined under Article 16 of the Constitution of India. As already observed, the petitioner has not challenged the order-dated 30.5.2001. Therefore, in our considered opinion, it is not open to the petitioner to contend that the 3rd respondent shall be treated as Addl. DGP and not equal to the rank of other officers in the grade of DGP. Consequently, the contention of the petitioner that only such officers who are in the cadre strength alone are entitled to be considered for the post of DG & IGP of State is also equally untenable.

91. Further, we may notice that in letter dated 2.2.2000 addressed to the Chief Secretary of the State made in response to the letter of the State Government seeking post facto approval to operate three more ex cadre posts of DGP beyond the ratio of 1:1, which was extracted in the order of the Tribunal, the State was requested to revert the three officers holding ex cadre posts. At that time, the petitioner was holding the ex cadre post of DGP in excess of the cadre strength. Despite this, the State has not reverted him.

92. Mr. Mohan Reddy, learned Counsel appearing for the petitioner has relied upon the decision of the Apex Court in Union of India v. R.S. Chopra, to contend that the persons appointed beyond the cadre strength are not entitled to be considered for appointment as DG & IGP. In this case, the respondent who was appointed as DGP was denied the pay scale of DGP on the ground that he was appointed beyond the cadre strength. The Supreme Court held that the persons appointed beyond cadre strength without sanction of Central Government cannot claim pay scale of ex cadre post. But the Apex Court has not held that the persons appointed beyond the cadre strength are not entitled to be considered for selection and appointment as DG & IGP. As already held, since the appointment of the 3rd respondent was not challenged, it is not necessary to go into the same.

93. We, therefore, find no merit in the argument of the petitioner that a candidate appointed beyond the cadre strength of DGP is to be treated as unequal to the candidates within the cadre strength.

94. The mere fixation of cadre strength, which is subject to review by the Central Government from time to time, cannot take away the right of the individual who was appointed to the said cadre by the State to compete for the top post. Though the learned Counsel has taken us through some of the correspondence made by the Central Government with the State Governments on this aspect, ultimately, it appears that the rules have not been amended strictly prohibiting the States from adopting such course. Therefore, when the petitioner himself has been benefited by such procedure, he cannot contend that the 3rd respondent would not come within the zone of consideration and would be ineligible to be considered for appointment to the cadre of DG & IGP. The contention that it is not necessary for him to challenge the appointment of the 3rd respondent to the cadre of DGP has also no merit. As long as the appointment of the 3rd respondent to the cadre of DGP remains unchallenged and is in order, his right to be considered for appointment as DG & IGP cannot be taken away.

95. The contention of the petitioner that the 3rd respondent was not selected and appointed but only posted as DG & IGP is not correct. We have perused the record and the note put up by the Secretary (Political) and the Chief Secretary to the Hon'ble Chief Minister.

96. From the note file, it is clear that a process has been made for selection of the eligible and suitable candidate for the post by the competent authority and on a consideration of the material placed including the ACRs, a decision has been taken by the Chief Minister keeping in view the relevant facts and on a comparative assessment of the merit of all the eligible persons, performance and available tenure of the officers. It is not that there was no selection process at all. In the abstract of the impugned order of appointment, it is clearly mentioned as 'Appointment of Sri P. Ramulu, IPS (67) as Director General and Inspector General of Police, Andhra Pradesh'. Therefore, it cannot be said the third respondent was not selected and appointed as DG & IGP but only transferred and posted as such.

97. It is true that no selection committee has been constituted. But the fact remains that a decision has been taken on an overall comparative assessment of the merit of all the eligible candidates with reference to their ACRs etc.

98. Further, all the eligible Officers in the Grade of DGP being at the helm of high office, the Chief Minister being the head of the State will have his own assessment about the ability and capabilities of the Officers and though when merit and ability is approximately equal the seniority may till the balance in favour of the senior, the Chief Minister may keeping in view the larger public interest and the capabilities of the Officer and considering the tenure of the officers in the reckoning for the post, may opt for a junior officer as the best choice. Some times it is very difficult to draw a line between the Officers whose merit and ability are approximately equal. Some factors may weigh to choose an officer who is junior having regard to the facts and circumstances of the case.

99. In cases where the duties involve greater skill, overall control of the State, a junior may be given assignment having due regard to the larger public interest and for effective functioning in supervising the law and order machinery and the administration. No doubt both the Officers herein are held to be equally competent. But having regard to the performance of the Officers in mind who are working in top most posts in the State and available tenure of the Officers in the reckoning for the highest post, the Chief Minister selected the 3rd respondent for the post as the best choice. Can this Court go into the said selection process and the decision taken merely because the petitioner who is senior is ignored? Will the Chief Minister have no say in the matter? In our considered view, the Chief Minister being the head of the State may have some options in mind and where the appointment relates to the highest office of the State involving administration of law and order and where the competing officers are equally competent, some leeway can be allowed in selecting the suitable and best choice on consideration of the overall performance of Officers and in the interest of the State unless the decision is vitiated by male fides duly established. Herein, though the petitioner has alleged that the decision has been taken on extraneous considerations, he has not been able to establish the same. We find no merit in the contention of the petitioner that there was no selection process involved and only the whim of the political executive prevailed sacrificing merit and seniority contrary to the judgment in Dinakar's case. Under these circumstances, we are not inclined to interfere with the impugned order of the 1 st respondent.

100. As stated in the note the post of DGP is an onerous one involving the management of the total law and order position in the state and management of the large police force and the para military force. There cannot also be any dispute that the position assumes greater significance in view of recent developments relating to security and terrorism at national level having ramifications at state levels.

101. From the note it is clear that three aspects, namely, (1) reasonable tenure from the date of appointment for proper results, (2) appropriate experience in supervising the law and order machinery and (3) performance of the Officer, particularly in field-oriented appointments have been taken into consideration.

102. According to Mr. Mohan Reddy, the petitioner is more meritorious than the 3rd respondent as could be seen from the ACRs of the last five years that have been taken into consideration in the process of filling of the post of IG & DGP. According to Mr. Mohan Reddy, the petitioner's performance during the past five years was assessed and graded as 'outstanding' whereas the 3rd respondent got a grading of 'very good' for three years and outstanding for only two years. Ignoring the merit of the petitioner 3rd respondent was chosen violating Articles 14 and 16 of the Constitution of India.

103. At this stage we may refer to Royappa's case (supra). In this case, the petitioner therein who was officiating in the key post of Chief Secretary to Tamil Nadu Government was first transferred by the Chief Minister to the post of Deputy Chairman State Planning Commission and then to the post of Officer on Special Duty in the larger interests of the administration. The same was challenged on various grounds. The following passages in the said case are relevant for our purpose.

87. NOW, two important considerations must weigh with us in determining our approach to these questions. First, the post of Chief secretary is a highly sensitive post. It is a post of great confidence a lynchpin in the administration and smooth functioning of the administration requires that there should be complete rapport 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 proper 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 attack under Articles 14 and 16.

89. NOW, here this post of Chief secretary was admittedly a selection post and after careful examination of the merits of the senior most eleven officers of the Tamil Nadu Cadre of the Indian Administrative Service, the second respondent selected the petitioner for the post of Chief secretary. The petitioner worked as Chief secretary from 14/11/1969 up to 6/04/1971 and evidently during this period he acquitted himself creditably. It was not the case of either of the respondents that the petitioner was not found equal to the task or that his work was not satisfactory. In fact the affidavit in reply filed on behalf of the first respondent clearly indicates that the petitioner discharged the duties of his office efficiently and to the satisfaction of everyone concerned. Yet the petitioner was transferred first to the post of Deputy Chairman and then to the post of Officer on Special Duty and in his place Sabanayagam, who was admittedly junior to him, was not only promoted but also confirmed. The result of confirmation of Sabanayagam as Chief secretary was that the petitioner, though senior and proved competent, was permanently excluded from the post of Chief secretary. This clearly shows, contended the petitioner, that his transfer first to the post of Deputy Chairman and then to the post of Officer on Special Duty was not on account of administrative reasons but solely to displace him from the key post of Chief secretary. That perhaps might have been legally and constitutionally unobjectionable, if the posts of Deputy Chairman and Officer on Special Duty were of the same status and responsibility as the post of Chief secretary, but the argument of the petitioner was that neither of these two posts could be regarded as of equal status and responsibility as the post of Chief secretary because the post of Chief secretary is always a unique and unrivalled post in the State administration. The transfer of the petitioner from the post of Chief secretary first to the post of Deputy Chairman and then to the post of Officer on Special Duty coupled with the promotion and confirmation of Sabanayagam in the post of Chief secretary was, therefore, clearly arbitrary and violative of Articles 14 and 16. This contention, plausible though it may seem, cannot be accepted by us, because there is no adequate material placed before us to sustain it. The premise on which this contention is founded is that the posts of Deputy Chairman and Officer on Special Duty were not of the same status and responsibility as the post of Chief secretary, but we cannot say on the material on record that the validity of this premise has been established by the petitioner. So far as the post of Deputy Chairman is concerned, the petitioner himself accepted that post as being of the same status and responsibility as the post of Chief secretary and did not raise any objection against it and we need not, therefore, say anything more about it. The only question is as to the post of Officer on Special Duty. We think that this post has not been satisfactorily established by the petitioner to be inferior in status and responsibility to the post of Chief secretary. This of course does not mean, and we are not prepared to go as far as the learned chief justice in asserting positively that that post was equal in status and responsibility to the post of Chief secretary. The fact that sales tax accounts for a very large segment of the revenues of the State and it runs into about 120 crores of rupees does not necessarily make the post of Officer on Special Duty equal in status and responsibility to that of the Chief secretary. What has to be seen for equivalence is the status and the nature and responsibility of the duties attached to the two posts. Merely giving the salary of one post to the other does not make for equivalence. We are, therefore, not prepared to accept the thesis that the post of Officer on Special Duty was equal in status and responsibility to the post of Chief secretary as claimed by the respondents. We entertain serious doubts about it. But equally it is not possible for us to hold it established on the material on record that this post was inferior in status and responsibility to the post of Chief secretary, though prima facie it does appear to be so. We cannot, therefore, say that the petitioner was arbitrarily or unfairly treated or that equality was denied to him when he was transferred from the post of Chief secretary and in his place Sabanayagam, his junior, was promoted and confirmed. The challenge based on Articles 14 and 16 must therefore fail.

104. Though the above observations of the Apex Court were made in the context of transfer of Chief Secretary of Tamil Nadu, yet, the said observations may be applicable and relevant even in cases where selection is required to be made to the highest post of DG & IGP, which also requires high degree of intellect and specialised experience. In the present day context of increased violence of terrorism, the post assumes more importance. As has been observed by the Apex Court in Royappa 's case, the Chief Minister as the head of Government is in ultimate charge of the administration and it is he who is politically answerable to people for the achievements and failings of the Government. We may add that the Chief Minister is also primarily responsible for the law and order situation in the State and for effective administration of the law and order subject. It is the State, which is responsible for any law and order problem. In such a situation candidate of his choice for the post of DG &IGP; in the larger public interest assumes importance. The confidence of the Chief Minister over the Officer has relevance in the selection of the candidate. He can choose a person of his choice on whom he can repose confidence if on a comparative assessment of the merit if he is equally competent to hold the post and such confidence may tilt the balance in favour of the individual though he may happen to be a junior. It is the prerogative of the Chief Minister to make the best possible choice he can in the circumstances, keeping in view the larger interests of the State in mind and for effective maintenance of the law and order in the State. If in the said process, a junior is considered to be the fittest person to hold the highest post and given appointment, we do not think that it would either offend Article 14 or Article 16 of the Constitution of India.

105. However, no fetters can be imposed on the power of the Court to interfere with the decision if the same is tainted with mala fides or where there is abuse or excess of discretion. In the absence of any mala fides attributed and established herein, it would be unfair to assume mat having regard to the facts and circumstances, the Chief Minister being the Head of the State had not properly exercised his discretion in selecting the best choice for the post. Unless the contra is established, it has to be presumed that the selection has been made fairly keeping in view the interest and administration of the State.

106. One of the reasons as reflected from the note file for considering the case of the 3rd respondent is the longer tenure of service. It is true that guidelines either executive or otherwise have been laid down by the State Government in regard thereto. But, having regard to the sensitivities of the post involved, it may be open to the Government to think that the new incumbent at the highest office should have sufficient time to acquaint himself with the overall law and order situation in the State for effectively dealing with the law and order problems in the State. We do not think that by selecting a person having longer tenure of service, the State has committed any illegality and for that reason the order should be quashed. Therefore, we do not see much force in the contention of the petitioner that even persons within shorter tenure of service were considered earlier and he should not have been denied appointment on that ground.

107. It may also be noted that preference for a person having a longer period of service has also assumed importance since Rule 16(1) of AIS (DCRS) Rules enabling the State Governments to retain a member of the Service in service by six months and for another six months with the approval of the Government of India has since been deleted consequent on the decision to enhance the age of superannuation from 58 to 60 years,

108. Another consideration, which went against the petitioner, is that in the immediate past he has worked in the Department of Tourism and Road Transport Corporation and not in the regular Police Department. It is true that the petitioner was not posted to those organisations on his own volition and we do agree that the same may not be a relevant consideration. But, the case of the petitioner was not rejected on that ground alone. It may be that the Government was of the opinion on a comparative assessment of the relative merits of the competing Officers that the 3rd respondent who was discharging his duties in the regular Police Department as Commissioner of Police, Hyderabad City would be more suitable to the highest post having regard to the situation prevailing in the State. Such discretion of the State Government taken in the public interest cannot be found fault with.

109. Yet another contention of the Counsel for the petitioner is that even the note put up by the Chief Secretary was misleading inasmuch as he states in the note while referring to the file as 'Also based on his willingness, Officer's name has been confirmed to the Government of India'. According to the learned Counsel, the said note gives an impression that the petitioner's appointment with the Government of India is confirmed and his services are not likely to be available to the State. We do not think that the same has been mentioned in the note so as to mislead the Hon'ble Chief Minister. There is no dispute that the petitioner is one of the officers empanelled who had given their willingness for consideration for appointment of DG level post in Government of India. The 1st respondent in the reply affidavit stated thus:

It is submitted that the petitioner informed of his willingness to go on deputation to Government of India, in his letter dated 13.12.1999. The State Government recommended his name along with some other officers who have given their willingness to the Government of India for appointment in Central Government Organisations. The Government of India, Ministry of Home Affairs in their Fax Message dated 18.1.2002 have informed that Sri H.J. Dora and Sri C. Anjaneya Reddy, IPSs are being considered for Director General level posts in the Government of India. The 'Government of India, Ministry of Home Affairs in their Fax dated 31.1.2002 informed the decision of Central Government approving the appointment of Sri H.J. Dora, IPS as Director General, CISF, New Delhi.' Accordingly, orders were issued relieving Sri H.J. Dora, IPS to enable him to take up his new assignment with the Government of India. Appointment orders of Government of India in respect of other empanelled officers who have given their willingness can be expected any time.......

The petitioner has given his willingness for central deputation and this was confirmed by the Government of India, Ministry of Home Affairs in their fax message dated 18.1.2002 that the petitioner is being considered for the DG level post in Government of India. Hence, the note of Chief Secretary as mentioned above by the petitioner is correct and has been rightly brought out for the information of the Chief Mistier for taking a decision on appointment of DG & IGP.

110. In view of the above statement in the reply affidavit, it cannot be said that the note of the Chief Secretary has wrongly depicted the factual position obtaining. We find no merit in the contention of the petitioner.

111. The contention of the petitioner that there are absolutely no reasons for selecting the 3rd respondent overlooking his seniority is not correct. At the cost of repetition, it may be noted that both the officers were promoted to the grade of DGP beyond the cadre strength. The petitioner without questioning the promotion of respondent No. 3 to the grade of DGP cannot now contend that the 3rd respondent cannot be appointed as DG & IGP of the State as he is junior to him. As long as promotion of the 3rd respondent to the grade of DGP is in order and till the Court of competent jurisdiction sets it aside, he is eligible to be considered for selection and appointment to the post of DG & IGP. It is submitted that all the officers who are in the cadre of DGP were duly considered and the 3rd respondent was selected and appointed. It may be true that the petitioner is also having outstanding record and might not have gone on his own volition to the other departments, but the fact remains that he was not working in the regular police department as on the date of consideration.

112. As already noticed, the appointment of the 3rd respondent was made by way of selection and taking into consideration all relevant aspects such as reasonable tenure, proper experience in supervising law and order machinery, overall assessment of his performance, in the interest of the Department and Public in general. The Tribunal, in our opinion, after consideration of the entire material on record has come to the right conclusion that the O.A. is liable to be dismissed. We also feel that there is no reason to substitute our view to the one taken by the Government after considering the cases of all the eligible officers.

113. Both the petitioner and the 3rd respondent are qualified and competent to hold the post. But, we are of the opinion that the Government in its wisdom and on a consideration of the relevant aspects such as tenure of Office, capability and competence of the Officer and immediate past service rendered in the police department have thought it fit to appoint the 3rd respondent as the DG & IGP. There are no extraneous considerations involved as alleged. The Government, in our opinion, is perfectly within its competence in selecting 'the best' from among the available Officers for the top most post in the Police department of State. The decision, in our opinion, cannot at all be faulted with.

114. For the foregoing reasons, we are of the opinion that there are no merits in the writ petition and we dismiss the same accordingly. There shall however be no order as to costs.

115. We place on record ourappreciation for the valuable assistancerendered by Sri C.V. Mohan Reddy, learnedCounsel for the petitioner and Sri PrakashReddy, learned Additional Advocate-Generalrepresenting the State.

Subject	Service
Court	Andhra Pradesh High Court
Decided On	Nov-26-2002
Case Number	WP No. 13379 of 2002
Judge	Ar. Lakshmanan, C.J. and ;V. Eswaraiah, J.
Reported in	2002(6)ALD798; 2003(1)ALT139
Acts	Indian Police Service Pay Rules, 1954 - Rules 3(2A), 9(1) and 9(7); Indian Police Service (Cadre) Rules, 1954 - Rule 4(2); Constitution of India - Article 16
Appellant	C. Anjaneya Reddy
Respondent	State of A.P. and ors.
Appellant Advocate	C.V. Mohan Reddy, Adv.
Respondent Advocate	Prakash Reddy, Addl. Adv. General for Respondent No. 1, ;C.V. Ramulu, Adv. for Respondent No. 2 and ;Venkateshwarlu Posani, Adv. for Respondent No. 3
Disposition	Petition dismissed

C. Anjaneya Reddy Vs. State of A.P. and ors. - Court Judgment