SWATANTER KUMAR,C.J. - (1.)RULE in both the Writ Petitions. Rule made returnable forthwith. By consent of the parties, Rule called out and heard finally at the admission stage itself. Facts
(2.)THE State of Maharashtra vide its order dated 29th February, 2008 appointed Shri. A. N. Roy, Petitioner in Writ Petition (Lodging) No.2528 of 2008 and Respondent No.2 in Writ Petition (Lodging) No.2552 of 2008, as the Director General and Inspector General of Police, Maharashtra State . This order of the State was challenged by Shri. Suprakash Chakravarthy, Director General of Police, Commandant, General Home Guards and Director, Civil Defence, Maharashtra State, Mumbai by filing Original Application No.389 of 2008 before the Central Administrative Tribunal, Bombay Bench, Mumbai stating that he is an Officer from 1972 Batch of the Indian Police Service (IPS) and till date he has served in distinguished capacity in various ranks of the police force and other Departments including CID, Railways, Commissioner of Police, etc. He was promoted to the rank of Director General of Police in February, 2005 and had earned two confidential reports in that rank. He claimed that he was the seniormost Director General of Police and had even held important postings in that rank. The post of Director General and Inspector General of Police occupied by Shri. A. N. Roy and Director General, Anti Corruption Bureau occupied by Shri. J. D. Virkar are the only two cadre posts, whereas Director General of Police and Managing Director Police Housing and Welfare Corporation Limited, Mumbai i.e. the post presently held by Shri. Virk and the post of Director General of Police, Commandant, General Home Guards and Director, Civil Defence, Maharashtra State, Mumbai occupied by the Applicant i.e. Shri. S. Chakravarthy are the two non cadre posts. The post of Director General and Inspector General of Police, State of Maharashtra fell vacant on 29th February, 2008 when the incumbent of the post Shri. S. P. Pasricha was superannuated even after expiry of his extension period. Shri. S. S. Virk, according to the Applicant, had joined the Maharashtra State cadre after repatriation from Punjab, where he was on deputation and was taken on the strength of the State cadre on 27th April, 2007. While raising a challenge to the order, the grounds taken by the Applicant before the Tribunal was that only the three seniormost officers in the rank of Director General of Police could be considered for the post of Director General and Inspector General of Police and Shri. A. N. Roy was not in the zone of consideration in terms of directions prescribed in the case of Prakash Singh and others Vs. Union of India and others, (2006)8 SCC 1 . Thus his name should not have been considered. It was also stated that Shri. Roy has been appointed to the post in a very convenient manner and in violation to the Rules as in the past seniormost Director General of Police was being appointed to the post of Director General and Inspector General of Police. The cadre posts were always occupied by the seniormost persons as per established convention and past practice. Shri. Roy, besides being not falling in the zone of consideration, had not earned confidential reports as Director General of Police which could justify his appointment to the highest post. On the contrary, it is averred that he was chosen over the Applicant purely for political reasons and principally on account of there being a coalition Government, the Home portfolio being with Nationalist Congress Party which insisted on foisting its nominee and this appointment was not even with the wishes of the Chief Minister. As could be evident from the case of the Applicant, the emphasis was that Shri. Roy did not fall within the zone of consideration, had not earned confidential reports and the action was arbitrary and discriminatory.
This Application was contested by the Union of India, Government of Maharashtra as well as by Shri. Roy, the private Respondent. The other private Respondent, Shri. J. D. Virkar, it appears from the order of the Tribunal had not really contested the Application either way.

(3.)IN its reply before the Tribunal, the State took up the stand that Shri. Virk is the seniormost Officer as per seniority while the Applicant is the second senior Director General and seniority as stated in the application was not disputed. It was stated that there are two ex cadre posts of Director General level and two non cadre posts which are in consonance with the instructions of the Government that the ex cadre posts would not exceed the equal number of cadre posts. It was averred that Shri. Virk was prematurely repatriated to the State of Maharashtra vide order dated 10th April, 2007, but vide order dated 4th April, 2007 he was placed under suspension by the State of Punjab and after joining the State of Maharashtra on 27th April, 2007 he was on compulsory waiting thereafter. It is also stated that Shri. Virk was arrested by the Mohali Police Station, Chandigarh on 9th September, 2007 and remained in police custody till 24th September, 2007. Therefore the Government of Punjab issued an order dated 25th February, 2008 stating that Shri Virk was deemed to be under suspension with effect from 9th September 2007 and as he was facing prosecution and being under suspension at the relevant time, issue of appointment in the rank of Director General of Police, when the issue was considered, did not arise. In view of the above position, three seniormost Officers i.e. Shri. Chakravarthy, Shri. Virkar and Shri. Roy were considered and Shri. Roy was appointed to the post of Director General and Inspector General of Police. It is also averred that Shri. Roy was the only Officer who has been empanelled by the Government of India to hold Director General level post at the Centre as was communicated vide order dated 5th April, 2006. Shri. Virk was to superannuate on 30th June, 2009 and Shri. Virkar on 31st July, 2009, whereas Shri. Roy was due to retire on 30th May, 2010. Taking these various factors into consideration, Shri. Roy was appointed to the post of Director General and Inspector General of Police, Maharashtra State.