- (1.) GOVERNMENT cannot be relied upon to behave voluntarily as the Constitution demands. Neither the effective maintenance of structural checks and balances, nor the adequate discharge of government's affirmative [minimal or expansive] obligations, are likely without some form of intervention from a point at least partially outside of ordinary majoritarian politics (1) (American Constitutional Law - Lawrence H. Tribe - 2nd Edition - Foundation Press) Judicial review provides the legitimate intervention that could steer the course of governance back on course, when it loses sight of the constitutional destination.
(2.) THE judicial process is after all a major ingredient of freedom, despite a government under a constitutional order. The present lis is illustrative of continual executive pre-occupation with a fundamental misconception; that un- canalized, uncharted, unregulated and absolute discretion is essential for effective governance. The rigor of history of structured societies and their formal institutions of governance, ancient, medieval or modern and regardless of the architecture of governance, emphatically belies this assumption. The millenary engagement with the misconception, however continues unabated. The writ petitions are by the State of Andhra Pradesh (for short 'the State') and Sri V. Dinesh Reddy, IPS (for short 'Dinesh Reddy'), respectively. The challenge is common and is to the order of the Central Administrative Tribunal, Hyderabad Bench (the Tribunal), dated 19-06-2012, allowing O.A.No.678 of 2011 filed by Sri P. Gautam Kumar, IPS (for short 'Gautam Kumar'), the 1st respondent in both the writ petitions. Heard the learned Advocate-General and Sri V. Venkataramana, learned senior counsel instructed by Sri V.V. Prabhakar Rao, Advocate for the State and Dinesh Reddy, respectively; Sri C.V. Mohan Reddy, learned senior counsel instructed by Sri J. Sudhir, Advocate, for Gautam Kumar and the learned Assistant Solicitor-General, for the Union of India (the 2nd respondent).
(3.) A medley of averments notwithstanding, the core challenge presented by Gautam Kumar before the Tribunal to the appointment of Dinesh Reddy as DGP (HoPF) was on the substantive ground that the appointment transgressed the mandatory directive in Prakash Singh and others v. Union of India (2) 2007 (1) ALT (Crl.) 30 (SC) = 2006 (8) SCJ 577 = (2006) 8 SCC 1 = 2007 (2) ALT 2.3 (DN SC) and on an attendant grievance that no due consideration was accorded to his seniority vis-a-vis Dinesh Reddy. The relevant chronology of facts leading to filing of the O.A. before the Tribunal : (a) Since the incumbent DGP (HoPF) Sri Aravinda Rao (for short 'Aravinda Rao') was due to retire on 30-06-2011, a meeting of the Selection Committee (constituted by the State in G.O.Rt.No.4201, General Administration (SCC) Department, dated 21-08-2010 - comprising the Chief Secretary to Government and two Special Chief Secretaries as members) was scheduled on 29-06-2011. (b) The administrative note prepared for consideration of the Selection Committee indicated : (i) that the post of DGP (HoPF) in the apex scale 80,000.00 (fixed)] must be filled up by selection from amongst officers holding the post of Director General of Police in the State cadre, in the HAG + Scale 75,500 - 80,000); (ii) that as per Rule - 3 (2)(i) of the IPS (Pay) Rules, 2007 (the '2007 Rules') selection should be based on merit with due regard to seniority; and suitability of officers to hold posts of and above the selection grade must be by evaluation of character roll record as a whole and general assessment of their work; (iii) that the Ministry of Home Affairs (MHA), vide letter dated 10-02-2010 intimated that since the manner of selection of DGP was under consideration by the Supreme Court and a decision awaited, no decision on the issue relating to constitution of Selection Committee for apex level posts of All India Service was taken by the Committee of Secretaries (CoS) under the Chairmanship of the Cabinet Secretary, on 14-09-2009; (iv) that the High Court of Andhra Pradesh by the judgment in Government of Andhra Pradesh v. S.S.P. Yadav (3) 2011 (1) ALT 365 (the Yadav judgment) had inter alia directed the Government to make a final choice from amongst officers empanelled by the UPSC for appointment to the post of DGP (HoPF), following the Supreme Court direction in Prakash Singh, but the Supreme Court issued status quo orders on 13-07-2011, in appeals preferred by the State against the Yadav judgment; (v) that subsequent appointment of Aravinda Rao as DGP (HoPF) on 31-08-2010, was challenged by Gautam Kumar and the Tribunal allowed Gautam Kumar's plea by the order dated 27-04-2011 and directed the State Government to forward the names and other particulars of DGP's to the UPSC as per the Prakash Singh directive; (vi) that the State filed a writ petition against the said judgment and this Court stayed operation of the order of the Tribunal dated 27-04-2011; (vii) that the State vide letter dated 15-04-2011 sought issue of guidelines by the Central Government regarding the process of selection to the post of DGP (HoPF); and in the event of delay (in issuing such guidelines), for advice on the further course of action for selection and appointment of DGP (Apex Scale) in view of the impending retirement of Aravinda Rao, on 30-06-2011; (viii) that the Central Government vide letter dated 09-05-2011 advised the State to take action in accordance with the Prakash Singh directives for selection and appointment of DGP (HoPF), consequent on retirement of Aravinda Rao; (ix) that the judgment in Prakash Singh stipulates forwarding of proposals to the UPSC for preparation of a panel from amongst officers of the DGP Grade, for appointment of one of them as DGP (HoPF); (x) that the State's Advocate- General had opined that the State Government may follow the same procedure as hitherto followed; and (xi) that since the Government had constituted a Selection Committee in G.O.Rt.No.4201 dated 21-08-2010, cases of the enumerated six (6) officers are placed before the Selection Committee for empanelment to the post of DGP (HoPF). ;