Government Of Andhra Pradesh v. P. Gautam Kumar, Ips And Others, Andhra Pradesh High Court, Judgment, Law, casemine.com

Precedent	Rule or Principle Cited For	Application by the Court
Prakash Singh and others v. Union of India (2006) 8 SCC 1	Mandates a transparent, merit-based selection process for appointment of DGP (HoPF) involving empanelment by UPSC and selection from three senior-most officers.	Held that the directive is non-derogable and binding on the State despite subsequent rules; appointment must comply with this directive.
Government of Andhra Pradesh v. S.S.P. Yadav (2011) 1 ALT 365	Reiterated that appointment to DGP (HoPF) must follow the Prakash Singh directive; State’s selection process was invalid.	The Court upheld the Tribunal’s setting aside of appointments made contrary to Prakash Singh and directed compliance.
R. Nataraj v. State of Tamil Nadu (2010)	Confirmed that the Prakash Singh directive remains binding and empanelment must be made by UPSC; State cannot constitute its own selection committee.	The Court set aside the appointment made without following Prakash Singh and directed compliance.
State of West Bengal v. Manas Kumar Chakraborty (2003) 2 SCC 604	Clarified that appointment as DGP could be made from officers not substantively holding that post, including Addl. DGPs.	Provided context on permissible appointments prior to 2007 Rules; relevant for understanding appointment practices.
Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1	Explained that stay of operation of a judgment does not erase the judgment’s existence or its ratio decidendi.	Used to reject the contention that stay of Yadav judgment suspends the binding nature of Prakash Singh directive.
Kishor Kirtilal Mehta v. Lilavati Kirtilal Mehta Medical Trust (2007) 10 SCC 21	Principles on the effect of interim stay orders and their non-binding nature as precedents.	Supported the view that interim stays do not extinguish the binding force of a judgment’s ratio.
State of Assam v. Barak Upatyaka D.U Karmachari Sanstha (2009) 5 SCC 694	Similar principles on interim orders and their limited effect on binding precedent.	Reinforced the principle that stay orders do not nullify the underlying judgment.
Koduru Venkata Reddy v. Land Acquisition Officer (1988) 170 ITR 15	Held that suspension of a judgment by the Supreme Court only disables execution but does not affect the binding dicta.	Applied to reject the argument that stay suspends the binding nature of Prakash Singh.
E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3	Sounded a caution against arbitrary exercise of discretion affecting political neutrality and demoralization in public service.	Supported the view that discretion in appointments must be exercised within constitutional limits.
M/s. Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central) AIR 1960 SC 280	Principle of comity among courts and deference to judicial decisions to avoid conflicting rulings.	Used to analyze the principle of comity and the inappropriateness of suspending adjudication absent explicit orders.
India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. (2007) 5 SCC 510	Reiterated the principle of comity requiring courts not to pass conflicting orders.	Supported the court’s decision to proceed with adjudication despite pending appeals, as no conflict mandated suspension.
Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar (2009) 2 SCC 784	Restated comity principle in the context of injunctions and concurrent jurisdiction.	Applied to affirm the court’s jurisdiction to proceed without deferring to pending appeals absent explicit stay.

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 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.

3. 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.

4. 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).

5. 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 (2006) 8 SCC 1 and on an attendant grievance that no due consideration was accorded to his seniority vis-a-vis Dinesh Reddy.

How Sri Dinesh Reddy was appointed :

6. 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 (SC.C) 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 [Rs. 80,000/- (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 (Rs. 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 (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);

(i) that the State's Advocate-General had opined that the State Government may follow the same procedure as hitherto followed; and

(ii) 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).

7. Particulars of the officers holding the post of DGP - HAG + Scale whose names were placed for consideration by the Selection Committee are : (i) Sri K.R. Nandan and Gautam Kumar of the 1975 batch; (ii) Sri Balwinder Singh of the 1976 batch, (on Central Deputation as Special Director CBI); (iii) Sri A. Sivasankar, Sri Umesh Kumar and Dinesh Reddy, all of the 1977 batch.

The Record :

8. We called for and have carefully perused the original record including the note-file pertaining to the issue of G.O. Rt. No. 2861 General Administration (SC.C) Department, dated 30-06-2011, whereby Dinesh Reddy was appointed as DGP (HoPF). From the note file, the record and proceedings of the Selection Committee, dated 29-06-2011 (comprising the Chief Secretary to the Government, the Special Chief Secretary - Environment, Forests, Science and Technology Department; and the Chief Commissioner of Land Administration and Special Chief Secretary) it is revealed that all the above six (6) officers were initially considered. Sri Balwinder Singh was however excluded for empanelment in view of his impending retirement with effect from 31-12-2011. The Committee found the other five (5) officers as "fit" for empanelment, for selection as DGP (HoPF). The five (5) officers empanelled by the Selection Committee in the inter se order of seniority are :

(1) K.R. Nandan;

(2) Gautam Kumar;

(3) A Shivasankar;

(4) Umesh Kumar; and

(5) Dinesh Reddy.

9. The screened list of 'fit' officers drawn up by the Selection Committee was forwarded to the Hon'ble Chief Minister, who after apparently taking into consideration the overall performance, experience, suitability of the officers and the tenure available in the panel suggested by the Selection Committee, selected Dinesh Reddy to be posted as DGP (HoPF) observing : He has the best track record and commendable performance in various posts held by him.

10. A consequent order was issued in G.O. Rt. No. 2861, dated 30-06-2011 appointing Dinesh Reddy as DGP (HoPF).

The discourse between the State and the Union :

11. Earlier, on 15-04-2011, the State (the Chief Secretary to the Government) addressed the Secretary, MHA for issue of guidelines [for selection and appointment of DGP (Apex Scale)] and requested that in the event of any delay in issue of guidelines, to advise the State on the further course of action to be taken for selection and appointment of DGP (Apex Scale), in view of the impending retirement of Aravinda Rao on 30-06-2011. A reminder was sent on 27-04-2011 and on 10-05-2011, a fax was sent to the MHA reiterating the earlier request i.e., for guidelines or interim advice.

12. The MHA vide letter No. 16013/15/2011-IPS.II, dated 09-05-2011, (received by the State on 11-05-2011), responded as follows :

I am directed to refer to your letter No. 188/SC.C/A1/2011-I dated 15.04.2011 on the subject cited above. It is informed that the selection to the post of DGP (Head of Police Force) shall be made by the State Government in accordance with the judgment dated 22.09.2006 passed by the Supreme Court in Prakash Singh's case, DoP&T' Notification dated 27.09.2008 made under the IPS (Pay) Amendment Rules 2008 and guidelines issued from time to time.

(Emphasis is added)

This issues with the approval of the Competent Authority.

Yours faithfully,

Sd/-

(K. Natarajan)

Under Secretary to the Govt. of India.

Relevant conclusions and directions by the Tribunal :

(a) By the impugned order the Tribunal reasoned (in its own phraseology) that the 2007 Rules as amended by the IPS (Pay) Amendment Rules, 2008 (the 2008 Rules) do not obviate compliance with the directives in Prakash Singh as regards the process of selection to be followed for appointment to the post of DGP (HoPF);

(b) that since the appointment of Dinesh Reddy as DGP (HoPF) was made in transgression of the Prakash Singh directive, the appointment is unsustainable;

(c) that pendency of appeals before the Supreme Court (preferred by the State against the Yadav judgment) and grant of interim stay therein by the Supreme Court, in [S.L.P.(Civil) Nos. 34798 and 34799 of 2010], does not impede exercise of jurisdiction by the Tribunal;

(d) that for reasons alike, the interim order of the A.P. High Court dated 14-06-2011 (granting stay of operation of the judgment of the Tribunal dated 27-04-2011 in O.A. No. 958 of 2010 - in appeals preferred there against by the State, Aravinda Rao and Dinesh Reddy), does not inhibit adjudication of Gautam Kumar's challenge to the appointment of Dinesh Reddy;

(e) that grant of interim stay of a judgment by an appellate court constitutes stay of operation of execution of the judgment (in this case, the Yadav judgment) but does not operate to eclipse the judgment in Prakash Singh;

(f) that as the Supreme Court had declined interim stay, [in an appeal preferred against the judgment dated 08-10-2010 of the High Court of Madras in R. Narataj v. State of Tamil Nadu and others (W.P. No. 6917 of 2010) wherein the Madras High Court declared that the Prakash Singh directive is binding, in the matter of appointment to the post of DGP (HoPF), notwithstanding the 2007 and 2008 Rules)], the obligation to follow the Prakash Singh directive cannot be avoided by the State.

13. The Tribunal recorded its conclusions in para 45 of its order. These read :

45. In the result, the impugned G.O. Rt. No. 2861 GA (SC.C) Department dated 30.06.2011 issued by the State Government - 2nd respondent in respect of selection and appointment of 3rd respondent as DGP (HoPF) is set aside with a direction to conduct the said selection afresh with the following observations/directions :

(i) The State Government of A.P. - 2nd respondent is directed to forward the names of all the eligible officers in the cadre of HAG + scale of Rs. 75000 - (and increment 03%) - Rs. 80000 as on the date with all their service records to the UPSC with necessary requisition for preparing a panel as directed by the Hon'ble Supreme Court in paragraph 31 (2) of Prakash Singh's case within one week from the date of receipt of a copy of this order.

(ii) The UPSC thereafter prepare the panel as directed by the Hon'ble Supreme Court in para 31(2) of Prakash Singh's case and forward the same to the State Government of A.P. - 2nd respondent within one week.

(iii) On such panel being forwarded to the State Government of A.P. - 2nd respondent, should make selection from amongst the officers in the panel forwarded by the UPSC and make the appointment to the post of DGP (HoPF) positively within one week.

(iv) Till such time the above process for appointment of the officer to the post of DGP (HoPF) is made, 3rd respondent shall be allowed to discharge functions of the DGP (HoPF).

The governing, statutory and precedential norms :

The Prakash Singh Directive :

The Broad factual context :

14. Two former distinguished police officers and common cause an organization recognized for ventilating several issues of public interest, filed a writ petition under Article 32 alleging that violation of fundamental and human rights of citizens by non-enforcement and discriminatory application of laws is occurring; that the privileged are escaping accountability even for blatant violation of the laws and are not brought to justice even for violation of citizen's rights such as detentions, torture, harassment, fabrication of evidence, malicious prosecutions, etc.; and that such distortions in the functioning of the police is relatable to archaic legislation, The Police Act, 1861, and the un-reformed structure and organisation of the Police.

15. The Supreme Court considered reports of the National Police Commission, submitted in February, 1979, August, 1979, 1980 and two reports of 1981; issued notices to the Union of India and the several State Governments and Union Territories; referred to several other (specified) high-powered Committees and Commissions such as the National Human Rights Commission, the Law Commission, the Ribeiro Committee, the Padmanabhaiah Committee and the Justice Malimath Committee on Reforms of Criminal Justice System; referred to the Government of India order dated 20-09-2005 constituting a Committee comprising the former Attorney-General Sri Soli Sorabjee and others to draft a new Police Act in view of the socio-economic and political dynamics and the felt necessity for a change in the role of the Police in the context of the ever-new challenges posed by contemporaneous, global and domestic events such as terrorism, extremism, rapid urbanization and the nuanced aspirations of a modern democratic society; referred to the Sorabjee Committee's draft outlines dated 09-09-2006 of a new Police Act; and several other documents. The Court further adverted to the recidivist apathy by the Union and the several State Governments to usher in necessary reforms notwithstanding the observations in Vineeth Narain and others v. Union of India and another (1998) 1 SCC 226 and concluded that in view of the inexorable and non-derogable constitutional mandate for an effective, non-partisan, professional and neutral criminal justice delivery system, the Supreme Court must issue directions in exercise of its power, authority and jurisdiction under Article 32 r/w Article 142. The Court issued a raft of directives to the Central Government, State Governments and Union Territories for compliance, till framing of appropriate legislation. For the purposes of this lis, the relevant Prakash Singh directive (at para 31.2) reads :

Selection and Minimum Tenure of DGP :

(2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior-most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.

(Emphasis is supplied)

The applicable Statutory regime :

The 2007 Rules :

16. In supersession of the pre-existing IPS (Pay) Rules, 1954, the Government of India vide the notification G.S.R.108(E), dated 21-02-2008 issued the 2007 Rules. The provisions of these rules (relevant for the purposes of this lis) have come into force on their publication, i.e., on 21-02-2008. Rule - 3 enumerates four scales of pay admissible to members of the Service (IPS) - A. Junior Scale; B. Senior Scale; C. Super Time Scale; and D. Above Super Time Scale. The post of DGP is enumerated at serial No. (ii) in Category 'D'.

17. Sub-rule 2 (i) of Rule - 3 mandates appointment to the selection grade and to posts carrying pay above this grade in the Service to be made by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority.

The 2008 Rules :

18. Amendments were issued to the 2007 Rules by the 2008 Rules in G.S.R.692(E), dated 27-09-2008. Provisions of the 2008 Rules, relevant to the lis, before us, came into force on 01-01-2006. The Pay bands and Grade pays admissible to different categories of members of the Service and the dates with effect from which such Pay bands and Grade pays are deemed to have come into force are incorporated into Rule - 3 of the 2007 Rules. In category - D, under Rule - 3 of the 2007 Rules, (i.e., Above Super Time Scale), apart from Additional Director General of Police in serial No. (i); and DGP- HAG + Scale at serial No. (ii), a third scale was introduced by the 2008 amendment Rules, as serial No. (iii) and reads :

(iii) Apex Scale : Rs. 80000 (fixed), Grade Pay : nil (by upgradation of one existing post of Director General of Police as head of police force in the each State cadre); (with effect from the date of issue of notification of the Indian Police Service (Pay) Amendment Rules, 2008).

Note - 2 under the amended Rule - 3 is relevant and reads :

Note 2: The post of Director General of Police in the apex scale shall be filled by selection from amongst the officers holding the post of Director General of Police in the State cadre in the HAG + scale of Rs. 75500-(annual increment @3%)- 80000.

(Emphasis is supplied)

The current status of the Prakash Singh directive and precedents :

19. Earlier herein, the context and text of the Prakash Singh directive was noticed and the relevant directive extracted. The State and Dinesh Reddy had contended before the Tribunal and reiterate before us that the Prakash Singh directive had ceased to operate (worked itself out) on the framing of the 2007 Rules as amended by the 2008 Rules; and the appointment of Dinesh Reddy by the State Government, is thus impeccable.

The Singular normative issue in this lis :

20. Is fidelity to the Prakash Singh directive, non-derogable (even after the 2007 and 2008 Rules) is thus the only issue that falls for consideration, before us.

R. Nataraj : Relevant facts, the issue and the ratio :

21. In R. Nataraj the Madras High Court pronounced judgment on 08-10-2010. Whether the Prakash Singh directive must be followed for appointment to the post of DGP (HoPF) was also the only issue therein.

The R. Nataraj factual context, in brief :

22. The writ petitioner challenged the appointment of the 8th respondent (Ms. Letika Saran) before the Central Administrative Tribunal, Madras Bench. O.A. No. 245 of 2010 by the petitioner (R. Nataraj) was dismissed in limine. The writ petition was therefore filed challenging the order of the Tribunal; and the order of the State Government dated 08-01-2010, appointing the 8th respondent as DGP (Law and Order) [the Tamil Nadu alias for DGP (HoFP)]. Several contentions were urged to support impeachment of the 8th respondent's appointment. The principal ground of challenge however was violation of the Prakash Singh directive.

The R. Nataraj Judgment :

23. Hon'ble Justice F.M. Ibrahim Khalifulla, (as His Lordship then was), wrote the opinion for the Court. The Court recorded the following findings : (a) that the directions in Prakash Singh were not followed in the matter of selection of the 8th respondent as DGP (HoPF); (b) the State never approached the UPSC to prepare a panel of three senior-most DGP's, to enable selection from amongst them; (c) that the UPSC had expressed no difficulty in preparing the panel for forwarding it to the State Government if it was asked to do so; and (d) that G.O. Ms. No. 6391, dated 26-04-2007 [an order issued by the State Government setting out a selection procedure for appointment to the post of DGP (HoPF)] was inconsistent with and derogatory of the Prakash Singh directive. Consequently the Court allowed the writ petition and issued the following directions :

(i) to the State Government forward the names of eligible officers in the rank of DGP in the HAG + Scale to the UPSC for preparing a panel, within the stipulated time;

(ii) to the UPSC to prepare a panel as directed in Prakash Singh and forward the same to the State, within a specified time;

(iii) to the State to thereafter make a selection from amongst officers empanelled by the UPSC for appointment as DGP (HoPF); and

(iv) to file a compliance report by 14-12-2010. The 8th respondent was however permitted to discharge the functions of DGP (HoPF) till the process directed above was concluded, as the Court did not wish to leave the post vacant, in public interest, by invalidating the appointment of the 8th respondent thereto.

24. We are in respectful agreement with the judgment of the Madras High Court in R. Nataraj.

25. The Madras High Court in R. Nataraj noticed and extensively extracted the relevant provisions of the 2007 and the 2008 Rules. The State of Tamil Nadu did not even venture to contend (as the State of Andhra Pradesh contends before us) that in view of issue of the 2007 rules and the 2008 rules, the Prakash Singh directive ceased to have operative efficacy.

26. Since such a contention however creative, is pressed into service, we will deal with it hereinafter.

27. It was admitted before the Tribunal in the present case that no stay was granted by the Supreme Court in appeals preferred against the judgment in R. Nataraj. On behalf of the writ petitioners, it is admitted before us as well that the position has not altered as on date.

This Court's judgment in Yadav :

Background of litigation before the Tribunal leading to the Yadav judgment :

28. Several writ petitions were filed against the common order of the Tribunal dated 28-01-2010 in O.A. Nos. 944 of 2009 and 999 of 2009. Sri S.S.P. Yadav (for short 'Yadav') and Sri A.K. Mohanty (for short 'Mohanty') had approached the Tribunal. Yadav had inter alia challenged his transfer out of the post of DGP and appointment of Sri R.R. Girish Kumar (for short 'Girish Kumar') thereto; while Mohanty challenged a similar though earlier order of the State transferring him from the post of D.G.P. and posting Yadav in his place. The challenges to the several orders of the State Government were presented on several grounds. The Tribunal issued a series of directives. Aggrieved thereby, the State, Yadav, Mohanty and Girish Kumar preferred the several writ petitions.

29. This court framed several issues for determination in the context of the competing facts and contentions presented for adjudication. The following substantive issues were framed, in brief:

(i) Whether the post of DGP (HoPF) is a distinct, higher and promotional post vis-a-vis the DGP-HAG + scale and whether appointment thereto must follow a process of selection?

(ii) Whether Sri Yadav and Sri Mohanty were appointed as DGP (HoPF) as per the prescribed procedure/process; their appointment as such could be treated as regular; and if regular, were their subsequent transfers to a post in the DGP-HAG + scale, a reversion/reduction in rank and therefore impermissible?

(iii) Whether promoting Sri Girish Kumar to the DGP-HAG + scale violated the 2nd proviso to Rule 4(2) of the IPS (Cadre) Rules 1954 ['the 1954 Rules'] read with Rule 11(7) of the 2007 Rules; whether the illegality in the appointment of Sri Girish Kumar as DGP (HAG + scale) stood cured by the ex-post facto sanction order dated 10.12.2009 of the Central Government, authorising creation of one ex-cadre post (in DGP scale) w.e.f. 25.09.2009, under Rule 11(7) of the 2007 Rules; and whether the subsequent order of the State Government dated 7.10.2009 appointing Sri Girish Kumar as DGP (HoPF) is valid?; and

(iv) Whether the observations by the Tribunal regarding the relevant considerations for selection for appointment to the post of DGP (HoPF) or with regard to the rationality of the order dated 7.10.2009, preferring Sri Girish Kumar over Sri Yadav for appointment to the post of DGP (HoPF) and other cognate observations, are sustainable or warrant interference?

30. The Yadav judgment partly allowed the writ petitions filed by the State and Girish Kumar for the reasons recorded; and dismissed the writ petitions filed by Yadav. The several issued framed by this court, the analyses, the reasons and conclusions recorded on each of the issues framed, reveal that a raft of distinct aspects/issues arose, were framed, analysed and determined, by the Yadav judgment.

31. The appropriate procedure to be followed for appointment to the post of DGP (HoPF) and whether the Prakash Singh directive and the procedure for selection (to the post of DGP) mandated thereby was non-derogable despite the 2007 Rules and the 2008 amendments thereto, was not however the only issue that fell for consideration and was decided, in the Yadav judgment.

32. The above aspect (which alone is relevant for the present adjudication) was also analysed by this Court. Having elaborately considered the contentions emphatically urged by the petitioners therein - the State and Yadav, that the Prakash Singh directive (regarding the mandated process of selection for appointment to the post of DGP) was no longer operative in view of the 2007 Rules as amended by the 2008 Rules, this Court in Yadav, recorded the following observations:

Relevant observations in the Yadav judgment :

The direction that the DGP shall be selected by the State from amongst three senior-most officers of the Department empanelled for promotion to that rank by the UPSC on the basis of their length of service, very good record and range of experience for heading the police force, does not in our considered view ordain that experience only in the feeder post to the post of DGP ought to be considered. The post of DGP, in Prakash Singh (1 supra) is now the post of DGP(HoPF). The statutory rules enjoin that the cases of all officers serving as DGP in the HAG+ Scale must be considered. Members of the service appointed to the rank of DGP in the HAG+ Scale are invariably the senior most officers in the service, excluding those who are superseded, if any and for valid reasons. The statutory rules mandate a process of selection and the appointment is to a post that must head the police force in the State. The full range of experience of an officer, the qualities of head and heart; of leadership; ability to manage the human assets that constitute the force; integrity; a comprehension of the socio-cultural-economic profile of the people; neutrality; professionalism; a capacity to act decisively and with clinical precision; fidelity to and comprehension of the appropriate role of the police under a federal and democratic constitutional order; and many such and other qualities revealed during the long career require to be considered, while appointing an officer to this critical and sensitive position at the highest level of the police bureaucracy. Different qualities and particular skills may be required in different periods, in the dynamics of public administration. Just as in the life of a Nation there are times of peace and of conflict, in the case of State as well there are placid times as there are times of turbulence and tumult. The etiology of disequilibrium in a society may differ and on occasions, calling for special qualities and skills. Governance is a dynamic phenomenon. This too often calls for not merely ability but aptitude. In the nature of things the Government must be accommodated the power and discretion of rational choice in the selection of officers within the zone of consideration for appointment to the post of DGP(HoPF). The decision in Prakash Singh does not derogate from and in fact fortifies the availability of legitimate and rational but adequate Governmental discretion in this area. Prakash Singh directions are in our considered view intended to be both a prophylactic and a curative to the necrosis of politicization, demoralization and regress from professional neutrality of the police; and to the attainment of that object are its directions addressed. The Prakash Singh directive that the empanelment shall be by the UPSC is intended to infuse neutrality, expertise and professionalism into the process of selection. As there is no subsequent legislative or statutory intervention or modification, the directions in Prakash Singh on the process and the selection authority are operative and bind the executive.

33. The generic analyses supra was reiterated in the summary of conclusions, in the judgment as :

In the facts and circumstances above and in view of the statutory dynamics read in the context of the operative and mandatory directions of the Supreme Court in Prakash Singh (1 supra), which have not been altered, modified or substituted by Legislation or Statutory Rules; in view of the invalidity of the appointment of Sri Girish Kumar to the post of DGP (HoPF) vide our conclusion on issue No. 4 (concurring with the finding of the Tribunal on this aspect), the process of selection to the post of DGP (HoPF), must be held afresh. As the decision in Prakash Singh is operational and binding and in the light of the mandate of Note-2 under Rule 3 (1) of the 2007 Pay Rules, the Union Public Service Commission must conduct the selection and empanel three officers from amongst officers holding the post of DGP in the HAG+ Scale, for consideration by the State Government, for appointment as DGP(HoPF).

34. This court further declared :

We also declare that in view of the directions in Prakash Singh (1 supra) and in the absence of any contrary legislation or Statutory rule issued subsequent thereto, the empanelment must be by the Union Public Service Commission. The State is disentitled to constitute a selection committee for empanelment of officers for appointment as DGP (HoPF). The only authority of the State Government is to make a final choice from amongst the officers empanelled by the Union Public Service Commission and to thereafter issue the order of appointment to the post of DGP (HoPF).

Appeals by the State to the Supreme Court and orders therein :

35. Aggrieved by the Yadav judgment, the State filed S.L.P. (Civil) Nos. 34798 and 34799 of 2010. The learned Advocate General and Sri Venkataramana the learned Senior Counsel for Dinesh Reddy - the petitioners herein, have placed before this court a copy of the order of the Hon'ble Supreme Court dated 10.01.2011 in SLP (Civil) Nos. 34798 and 34799 of 2010. This order reveals that while dispensing with service of notice on the 1st respondent - caveator and directing service of notice on the other respondents within the time stipulated, the apex Court ordered:

In the meantime, there will be stay of operation of the impugned judgment. Appointment, if any, made in the meantime, will be subject to the final result of this case.

36. We have extracted the interim direction by the Supreme Court, dated 10.01.2011, since the core and substantive contention emphatically asserted on behalf of the petitioners - the State and Dinesh Reddy, is that on account of the stay of operation of the Yadav judgment the State is liberated from the obligation to follow and implement without demur, the directive in Prakash Singh, pertaining to the process of selection for appointment to the post of DGP (HoPF). Another contention urged is that the stay operates as a plenary eclipse of the rationes of the Yadav judgment; including its analyses and the conclusion that the Prakash Singh directive is operative proprio vigore even after the 2007 Rules as amended by the 2008 Rules.

37. The main contentions asserted before the Tribunal by the State and on behalf of Dinesh Reddy and reiterated before us in the writ petitions are:

(i) The Tribunal ought to have deferred adjudication of OA No. 678/11 till disposal of the SLP's by the Supreme Court and the writ petitions by the High Court. (W.P. Nos 13495 and 13524 of 2011 were filed by Sri Aravinda Rao and the State against the judgment dated 27.4.2011 of the Tribunal in OA No. 958/10 whereby Sri Gautam Kumar's challenge to the appointment of Sri Aravinda Rao as DGP(HoPF) was upheld and the appointment of Aravinda Rao set aside);

(ii) The stay of operation of this court's Yadav judgment W.P. No. 2257/10 (in the SLPs preferred by the State) by the Supreme Court; and the stay granted by this court in the writ petition filed by the State [against the judgment of the Tribunal setting aside Sri Aravinda Rao's appointment as DGP (HoPF)] lead to the compelling inference that the Prakash Singh directive is inoperative and the Tribunal erred in concluding to the contrary; and

(iii) Law and Order being a State subject, the State must have absolute freedom and discretion in the matter of appointment of a person to head the Police force in the State and any restriction on or regulation of such discretion would derogate from its authority and power.

The ambiguous and non-responsive counter by the Union :

38. On behalf of the 1st respondent - Union of India a counter was filed by the Under Secretary to the Government, MHA, before the Tribunal. The averments in this counter are ambiguous, evasive, perfunctory and contribute nothing to the core issue. The counter appears to have designedly shirked responsibility (of the Central Government) to spell out its stand on whether the Prakash Singh directive is binding despite the 2007 Rules as amended by the 2008 Rules. This ambiguity is perplexing in the context of the letter dated 09-05-2011, addressed by the MHA to the State.

39. In Para-4 of this counter the Union asserts that after the Prakash Singh judgment, the MHA had filed an interlocutory application seeking clarification/modification of the Apex Court's directives; the Supreme Court constituted a Committee under the Chairmanship of Sri Justice K.T. Thomas to examine the various issues; the Committee submitted its report and the matter is sub-judice. This is a mere narrative of events. Nothing is however stated in this counter on whether the Prakash Singh directive regarding the selection process to be followed for appointment to the post of DGP (HoPF), continues to be operative and mandatory, in the opinion of the Central Government.

40. We are compelled to infer that the Central Government has either no opinion or a clue on this aspect or is content with a Federal Service (The Indian Police Service) administered according to the unrestrained discretion or whim of the State. We are also left with a disquiet. If the Prakash Singh judgment with regard to the process of selection to a critical and Central Service (Head of the State Police Force) is mandatory (as the MHA letter dated 09-05-2011 states) and a State has violated the Prakash Singh mandate, the Central Government has no concern and demonstrates its apathy to this critical issue by a non-responsive counter! We wonder if it is some complex Dharma at play.

Substantive Analyses :

41. Earlier, we adverted and referred to the relevant statutory dynamics; the initial Pay Rules, 1954; their comprehensive supersession and substitution by the 2007 Rules; and amendment to these Rules by the 2008 rules. relevant provisions of the 2007 and 2008 rules were extracted. On an interactive analyses of the 2007 Rules as amended by the 2008 Rules, the resultant position is :

(i) The Head of Police Force in each State cadre is authorised a distinct scale called the Apex Scale - Rs. 80,000 (fixed) with no Grade pay - under Clause (iii) Category-D in Rule - 3;

(ii) Rule - 3(2)(i) mandates appointment to the Selection Grade and to posts carrying pay above this Grade in the service to be by selection on merit, as per criteria that may be prescribed by the Central Government, with due regard to seniority;

(iii) Note - 2 to Rule - 3 of the 2007 Rules enjoins the post of DGP (HoPF) to be filled by selection from amongst others holding the post of Director General of Police in the State cadre in the HAG + scale.

42. It is also the synoptic and the admitted position as well, that the Central Government did not prescribe criteria for appointment to the post of DGP (HoPF).

43. The position prior to the 2007 Rules (as amended by the 2008 Rules) was that even an Addl. DGP could be appointed as DGP, to head the State Police Force. A somewhat similar situation fell for consideration in State of West Bengal and others v. Manas Kumar Chakraborty and others (2003) 2 SCC 604. The facts of this case are illustrative. M.K. Chakraborty and D.C. Vajpai were IPS officers of the 1966 batch. In the initial merit list while Chakraborty was at serial No. 2, Vajpai was at serial No. 6. In December, 2000 Vajpai while working as Addl. DGP was selected and empanelled for appointment as DGP. Chakraborty was holding one of the four posts of DGP by 28-02-2001 when two existing DGP's retired on voluntary retirement. The incumbent DG and IGP (as the Head of the State Police Force was then designated) retired on 30-04-2001. After a short in-charge arrangement, on 23-05-2001 Vajpai (an Addl. DGP empanelled for the post of DGP) was considered along with Chakraborty (an incumbent DGP) and other incumbent DGP's and appointed as DG & IGP (to Head the State Police Force). This appointment was initially officiating but was later made regular. While the High Court quashed Vajpai's appointment, the Supreme Court distinguished the observations in Government of Karnataka v. C Dinakar (1999) 5 SCC 161 and held that the Dinakar observations (that a person not holding the post of DGP substantively could not be posted as DG & IGP), were on an uncontested premise on that issue. In M.K. Chakraborty, the Supreme Court observed that there being no rule or requirement that eligibility to hold the post of DG & IGP could be limited only to an officer already substantive in the cadre of DG & IGP, appointment of Vajpai as DG & IGP (though while working substantively as Addl. DGP) was not in error (emphasis is supplied). The State's appeal was accordingly allowed; the judgment of the High Court reversed; and the order of the Central Administrative Tribunal (in favour of Vajpai) confirmed.

44. From the ruling in M.K. Chakraborty it is clear that prior to the 2007 Rules (as amended by the 2008 Rules) an officer holding the post of Addl. DGP or for that matter any member of the Service (IPS) could technically be appointed to the post of DGP and to head a State police force.

45. Too often in this State as well, for some inscrutable and to us an incomprehensible reason senior officers appointed substantively to the rank of DGP in sanctioned cadre posts are not considered meritorious enough to merit selection and appointment to head the State police force. Such elusive merit is too disturbingly often found only in junior officers appointed in view of ex-cadre posts in the scale of pay of DGP, i.e., posts created by the State under the first proviso to Rule - 4(2) of the cadre Rules r/w Rule - 11(7) of the 2007 Rules. Far junior officers are often appointed in a context where Rule - 4(2) of the cadre Rules enables the State to make such addition on its own only for a period of one year; and with the approval of the Central Government only for a further period not exceeding two years; with a further restriction by Rule - 11(7) of the 2007 Rules, mandating in effect that the number of such ex-cadre posts (which carry the scale of Rs. 24,050 - 650 - 26,000 p.m. - pre-revised) shall not except with the prior approval of the Central Government exceed the number of cadre posts at that level of pay in a State cadre.

46. Potentially therefore, where an Addl. DGP is promoted as DGP (HAG+ scale) reckoning ex-cadre posts as well and is thereafter appointed as DGP (HoPF), a DGP promoted as such much earlier and entitled to hold a cadre post (during his/her tenure and good behaviour) would have to be adjusted in an ex-cadre post; where tenure of the added ex-cadre post is only one year (when added by the State on its own) and in any event is three years in all (even where the Central Government accords approval), in terms of Rule - 4(2) of the cadre rules.

47. We are impliedly exhorted by counsel for the writ petitioners that the inscrutable wisdom of the State in this area ought never be doubted or questioned. Such exhortation we are afraid, is to unquestionable faith in dogma; not logic, not the law and not the Constitution. We shall avoid this invitation to credulity.

Why the Prakash Singh directive is still operative and binding :

48. The wider and potential implications (of the State identifying higher merit, often in junior-most officers) considered in the preceding paragraph, apart, provisions of the 2007 rules as amended in 2008 have merely specified the zone of consideration for appointment to the post of DGP (HoPF); and the generic norm, i.e., that the process should be by selection on merit, with due regard to seniority (Rule - 3(2)(i) of the 2007 Rules). The Central Government has not prescribed criteria for the process of selection for appointment as Head of police force (for balancing the twin criteria, of merit with due regard to seniority).

49. It is therefore clear that the concerns (transparent procedure for appointment of Head of State Police Force; liberating the Police Force from the status of a mere tool in the hands of unscrupulous masters - a pathology resulting in the misuse and abuse of the Force; and ensuring an independent, fearless, non-partisan, professional and neutral Police Force structured to deliver the mandate of the Constitution and the laws without genuflecting to political patronage); the essential and expressed concerns that led to the issue of a raft of directives in Prakash Singh (including the relevant directive) have not been altered, modified or varied by any statutory prescription set out in the 2007 Rules and the amendments thereto, by the 2008 Rules.

50. On the above analyses, we are clearly and compellingly of the view and hold that the Prakash Singh directive has continuing vitality, is non-derogable and the State must comply with it, without demur or artifice.

51. Even in E.P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3, Bhagwati, J (as his Lordship then was) in a concurring opinion, while accommodating a discretion in the State (the Chief Minister as the Head of the Government) to shift the Chief Secretary to another post, clearly sounded a caveat :

... 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 demoralization and frustration amongst the public servants. (para 87)

Two other contentions on behalf of the petitioners :

52. The learned Advocate-General and Sri V. Venkataramana, advanced two contentions for the petitioners. We will deal these with before recording our conclusions in this case.

53. The learned counsel are agreed that the Yadav judgment of this Court (dated 22-11-2010, in W.P. No. 2257 of 2010 and batch) has declared the principle that the Prakash Singh directive (to forward names of eligible officers within the zone of consideration to the UPSC for empanelment for promotion as Head of a State Police Force and that the State Government must select from amongst the three senior most officers of the department, so empanelled) is effective and operative proprio vigore even after the 2007 Rules (as amended by the 2008 Rules) and must be followed by the State, for any appointment of DGP (HoPF) to be valid. Learned counsel also concede the position that the R. Nataraj judgment of the Madras High Court posits the identical principle.

54. Learned counsel however put forth distinct contentions to impeach the impugned judgment, of the Tribunal. We therefore consider these contentions for analyses.

One Contention :

55. The learned Advocate-General contends that against the Yadav judgment SLP's were filed and the Supreme Court while directing notice on the respondents had (on 10-01-2011) ordered : In the meantime there will be stay of operation of the impugned judgment. Appointment, if any, made in the mean time will be subject to the final result of this case. Therefore, the Advocate-General says, the rationes of the Yadav judgment and all observations, findings and conclusions recorded therein are rendered sterile and inoperative, till disposal of the SLP's or the eventual civil appeals, by the Supreme Court. It is the further contention, though somewhat ambiguous, that as a consequence of the pendency (for appellate consideration of the Yadav judgment) before the Supreme Court, the Prakash Singh directive itself is rendered unenforceable, at least in Andhra Pradesh and the State is not required to comply with the Supreme Court directive as well.

56. As is apparent the contention has two dimensions :

(a) that this Court's conclusion in the Yadav judgment [that the Prakash Singh directive is operative and binding, as neither the 2007 Rules nor the 2008 amendments thereto amount to framing of appropriate legislation - delineating methodology for the process of selection for appointment to the post of DGP (HoPF)], is eclipsed due to the stay of operation of the Yadav judgment, ordered by the Supreme Court on 10-01-2011; and the eclipse continues during pendency of the SLP's; and

(b) since efficacy of the Prakash Singh directive was declared in the Yadav judgment; and operation of that judgment stayed by the Supreme Court, the Prakash Singh directive itself would not operate in the State till disposal of the SLP's. To summarize, stay of Yadav amounts to suspension of Prakash Singh.

57. The learned Advocate-General relied on Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (1992) 3 SCC 1 to support the contention that stay of operation of the Yadav judgment by the Supreme Court operates to eclipse the ratio, the analyses, the findings, conclusions, interpretation of the several statutory provisions and the several precedents including Prakash Singh, set out in the Yadav judgment.

The ratio of Shree Chamundi Mopeds Ltd. :

58. The relevant facts in brief, in Shree Chamundi Mopeds Ltd., require to be considered. The appellant a Public Limited Company had taken the premises of the respondent-Trust Association on lease and committed default in the payment of rents. Eventually, the respondents filed a petition in the High Court for winding up of the appellant-company, under the Companies Act. While so, the appellant moved the BIFR. In April, 1990 the BIFR ordered winding up of the appellant; withheld the winding up order for a month to enable the promoters of the appellant to submit an acceptable rehabilitation proposal; and observed in conclusion that if no acceptable rehabilitation scheme is received, its opinion for winding up the appellant would be forwarded to the jurisdictional High Court, for necessary action. The company's appeal to the AAIFR was dismissed in January, 1991 and there against the appellant filed a writ petition before the Delhi High Court which granted stay of operation of the AAIFR order (confirming the order of winding up).

59. Meanwhile (pursuant to the April, 1990 order of the BIFR and dismissal of the appeal by the AAIFR), the winding up petition was taken up and allowed by a learned single Judge. The appellant-company's appeal there against was also dismissed by the Division Bench of the Karnataka High Court. Against this order one civil appeal was preferred to the Supreme Court.

60. Meanwhile, the Trust Association and others (owners of the premises) initiated proceedings under the State Rent Control Act for eviction of the appellant-company for chronic default in payment of rents. Eventually, eviction was ordered and a revision against the eviction order filed before the High Court was rejected and another civil appeal was preferred by the appellant-company.

61. Both the civil appeals were therefore considered together and disposed of by the Supreme Court. The Supreme Court framed two questions for consideration, one of which is relevant for our guidance. The relevant question framed was whether in view of the stay of operation of the AAIFR's order dated 07-01-1991 (granted by the Delhi High Court), proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 must be treated as pending and, if so, before which authority. The scope of an order of stay granted by a Court therefore fell for consideration. The Supreme Court observed :

... The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law and so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending... ... ... (para 10).

(Emphasis is supplied).

62. When carefully analysed, the principle enunciated in Shree Chamundi Mopeds Ltd. operates against the petitioner's contention above. Applied to the facts of the present case, the principle enunciated in Shree Chamundi Mopeds Ltd. means that if the Supreme Court were to set aside the Yadav judgment, that would result in restoration of the position obtaining prior to the Yadav judgment (and depending upon analyses, rationes and conclusion in the judgment of the Supreme Court; and the facets of the Yadav judgment which are reversed - all the more important in a multiple ratio judgment like Yadav). Mere stay of operation of the Yadav judgment would however neither efface nor eclipse the judgment, even ad-interim.

63. The effect of grant of an interim order was considered by the Supreme Court in several other decisions including Kishor Kirtilal Mehta and ors. v. Lilavati Kirtilal Mehta Medical Trust and ors. (2007) 10 SCC 21; and State Of Assam v. Barak Upatyaka D.U Karmachari Sanstha. (2009) 5 SCC 694. The distillate of the principles derived from curial authority on this aspect, we summarise :

(i) mere grant of stay by the Supreme Court in an appeal would not per se require the High Court, in the matter pending before it to draw inferences on merits (of the judgment appealed), from the fact that a stay was granted;

(ii) the High Court in the above circumstances must decide the matter on merits uninfluenced by the fact that an interim stay was granted by the Supreme Court;

(iii) a precedent is the principle contained in a judicial decision, which forms the authoritative and binding element termed as the ratio decidendi. An interim order, which neither finally nor conclusively decides an issue, nor spells out reasons for the interim order, constitutes no precedent and affords no guidance to the lower court, on the further course of adjudication; and

(iv) even where reasons are assigned (by the Supreme Court) in support of such non-final interim order containing prima facie findings, these are only tentative. Interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or fait accompli before the final hearing.

64. In Koduru Venkata Reddy v. Land Acquisition Officer (1988) 170 ITR 15, the question was, where a judgment of a Full Bench is suspended by the Supreme Court whether the dicta of the Full Bench would be binding and ought to be followed. A Full Bench of this Court had held that payment of compensation in installments works out to payment that is less than the market value; that Section - 3(4) of the A.P. Land Reforms (Ceiling on Agricultural Lands) Act, 1973 is therefore unconstitutional to the extent of acquisition of lands coming within the purview of Article 31A(1); and compensation cannot be paid in installments for lands acquired from a farmer, who holds lands below the ceiling limit and personally cultivates them.

65. The learned Division Bench in Koduru Venkata Reddy answered the reference (made to it by a learned single Judge), as under :

We are of the view that when a judgment of the High Court is the subject-matter of an appeal and the said judgment is suspended, the only effect of such suspension is that that judgment cannot be executed or implemented. But so long as the Full Bench judgment stands, the dicta laid down therein are binding on all courts including single judges and Division Benches of this court. The dicta laid down therein cannot be ignored unless the court after hearing a particular case doubts the correctness of the dicta and thinks it appropriate that it should be reconsidered. We, however, do not feel any such doubt that in so far as the acquisition of the land of a person, whose holding is less than the ceiling area and who is personally cultivating the same, is concerned, he is entitled to the payment of market value in lump sum. Payment of compensation in instalments is violative of the provisions of article 31A(1) of the Constitution.

66. The other aspect of the contention, i.e., that on account of "stay of operation of the judgment", the Prakash Singh directive is itself not binding, is a contention that is wholly misconceived. Acceptance of this contention would lead to utter chaos and a de-construction of the principle of stare decisis, an essential integer of our system of law.

67. To illustrate, if a judgment of the Supreme Court is referred to and relied upon for conclusions or grant of relief in a judgment by a High Court; and the High Court judgment is appealed against and a stay granted by the Supreme Court, according to the learned Advocate-General the binding authority of the earlier judgment of the Supreme Court is rendered inoperative and the earlier Supreme Court judgment ceases to have precedential value, during currency of the order of stay. Such a proposition is productive of universal and unmitigated mischief and therefore does not merit acceptance.

68. From the guidance derived from the precedents referred to, we are of the view that stay of operation of the Yadav judgment only disables execution of the consequences of the judgment to the parties thereto. Grant of stay does not extinguish the norm(s) predicated in the judgment.

69. On the aforesaid analyses, this contention merits no acceptance and is rejected.

The second contention :

70. Sri V. Ventakaramana fairly admits that the Yadav judgment spells out the ratio that the Prakash Singh directive is operative, binding and compels adherence by the State even after the 2007 Rules and the 2008 amendments thereto. He would however urge that on the principle of comity, the Tribunal ought not to have proceeded with adjudication of Gautam Kumar's application and must have deferred adjudication till conclusion of the SLP's by the Supreme Court (preferred by the State against the Yadav judgment). Several decisions are cited by Sri V. Venkataramana and by C.V. Mohan Reddy, (the learned senior Advocate for Gautam Kumar) to explain the principle of comity.

71. Normatively comity (latin root - Comitas Legum), refers to legal reciprocity - a principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative and judicial acts. Applied to adjudication, the term refers to a concept that courts should not act in a way that demeans the jurisdiction laws or judicial decisions of another jurisdiction. Inherent in the presumption of comity is that other jurisdictions will reciprocate the courtesy shown to them.

72. In The Law Lexicon, 'comity' is explained to be not a rule of law but one of practice, convenience and expediency. It is something more than mere courtesy, which implies only deference to the opinion of others, since it has a substantial value in securing uniformity of decision and discouraging repeated litigation of the same question. But its obligation is not imperative. Comity persuades, but it does not command. It declares, not how a case shall be decided, but how it may with propriety be decided. In 'Lectric Law Library's lexicon, 'comity' is explained to be a practice whereby courts generally agree to defer scheduling a trail if the same issues are being tried in a court in another jurisdiction.

Analyses of applicable precedents :

73. In O.V. Forbes v. V.G. Peterson AIR 1942 Cal 283 and in Jitendra Pratap v. Padam Kueri and others AIR 1953 Patna 202, the Calcutta and Patna High Courts quoted with approval the statement of the relevant principle lucidly explained by Farwell L.J. in Jopson v. James (1908) 77 L.J.Ch. 824 :

The existence of concurrent jurisdiction render very necessary the observance of a comity between those jurisdictions the disregard of which would lead to most unfortunate friction. Two points appear to me to be usual in considering whether the Court should have regard and defer to a jurisdiction with which it may come into conflict or whether the Court can fairly expect that other jurisdiction to defer to it. One is priority in time, and the other is the extent of the relief asked for or obtainable in the other jurisdiction.

74. In M/s. Chimmonlall Rameshwarlall v. Commissioner of Income-tax (Central) AIR 1960 SC 280 a principle akin to comity was applied. The relevant facts in brief. The appellants aggrieved by assessment orders passed under the Income Tax Act, 1922, preferred further appeals to the Income Tax Appellate Tribunal. These were also dismissed. They thereafter applied to the ITAT under Section 66(1) requiring the Tribunal to state a case and refer certain questions of law to the Calcutta High Court for its opinion. These applications were dismissed by the Tribunal. Appellants thereafter applied to the High Court under Section 66(2) for a rule to show-cause why the Tribunal should not state cases and refer certain questions of law to it. Initially rules were issued. Eventually, the High Court discharged the said rules. Thereafter appellants filed four SLP's to the Supreme Court, against orders of the Tribunal dismissing their applications under Section 66(1). In the above circumstances, the Supreme Court dismissed the appeals observing :

... The result of our going into these appeals before us on the merits would be either to confirm the judgment which has been pronounced by the High Court or to differ from it. If we did the former the appellants would be out of Court, if, however, perchance we came to the contrary conclusion and accepted the latter view, namely, that the High Court was wrong in not granting the applications of the appellants under section 66(2) of the Act there would be two contrary decisions, one by the High Court and the other by us and we would be in effect, though not by the proper procedure to be adopted by the appellants in that behalf, setting aside the judgment of the High Court. This is an eventuality which we cannot view with equanimity. It is contrary to all notions of comity of Courts and even though we are a Court which could in certain events set aside the overrule the decisions of the High Court concerned, we cannot bypass the normal procedure which is to be adopted for this purpose and achieve the result indirectly in the manner suggested by the appellants. We, therefore, think that in the circumstances here it would be inappropriate on our part to enter upon an adjudication of these appeals on merits ... .... (Para 8).

75. Mamleshwar Prasad and another v. Kanhaiya Lal through L.Rs. (1975) 2 SCC 232, another decision cited by Sri V. Venkataramana is not directly on the point. The relevant observations however are :

7. Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.

76. In India Household and Healthcare Ltd. v. LG Household and Healthcare Ltd. (2007) 5 SCC 510, the Court reiterated the scope of the principle of comity by stating that the principle requires a court not to pass an order which would be in conflict with another order passed by a competent Court of Law; and that the court while exercising its judicial function would ordinarily not pass an order which would make one of the parties to the lis violate a lawful order passed by another court.

77. In Tamilnad Mercantile Bank Shareholders Welfare Association (2) v. S.C. Sekar and others (2009) 2 SCC 784, the principle of comity was reiterated and the Court observed that the principle postulates that different courts exercising separate jurisdiction should pass similar orders. Applying the principle to the law of injunctions the Supreme Court concluded with a statement of the applicable principle extracted from Lewis & Spelling's : The Law of Injunctions :

Where a court having general jurisdiction and having acquired jurisdiction of the subject-matter has issued an injunction, a court of concurrent jurisdiction will usually refuse to interfere by issuance of a second injunction.

78. The several authorities on the principle of comity do not, either as a rule of law or even a matter of prudence posit, that where the decision of an authorized Tribunal or the High Court is pending appellate consideration (the Supreme Court in this case), particularly presenting a distinct matrix of facts, the Tribunal or the High Court must defer consideration and suspend the adjudicatory process till conclusion of the appeal pending in the superior court, unless the superior court mandates interdiction of further proceedings. The doctrine merely connotes, in the municipal law context (as distinct from an International law circumstance), that conflict of judicial orders must be avoided and to that end courts must defer adjudication, to avoid conflict or obsolescence of a lawful order passed by an authorized Tribunal/Court.

79. In our considered view, extending the principle delineated in the several authorities referred to above, to the factual matrix presented before us, would lead to adjudicatory paralysis. In service Law litigation, for instance, the appropriate principles governing inter se seniority between direct recruits and promotees would be pending consideration in several courts across the Republic and quite often in the Supreme Court as well, involving idiosyncratic factual and legal matrices. Several nuances of the appropriate principles would fall for appellate or co-ordinate consideration, often in the context of specific statutory rules having a bearing on determination of inter se seniority. To apply the doctrine of comity as propounded on behalf of Sri Dinesh Reddy, would require that no Court or Tribunal should proceed with determination of disputes relating to inter se seniority of direct recruits and promotees, on account of a pendency of such an issue elsewhere; and for near infinity.

80. It also requires to be noticed that the jurisdiction of the Tribunal or of this Court on the one hand and that of the Supreme Court on the other, are not concurrent. The Supreme Court inheres appellate jurisdiction and while its jurisdiction is plenary it would normally not adjudicate a service dispute, under Article 32. While the decision of the Supreme Court is binding between the parties to the judgment, the law declared (the ratio decidendi) alone, is normally operative proprio vigore throughout the territory of India. The High Court though a court of record as well, its decisions to the extent of the rationes of its judgments have binding efficacy within the territory of the relevant State and have only persuasive trajectory on High Courts, of other States.

81. On the analyses above and in the absence of any order of the Supreme Court interdicting adjudication by this Court or the Tribunal, we discern no legal requirement to defer adjudication or to suspend hearing of the lis presented to us in these writ petitions.

82. For the reasons recorded above, the second contention does not merit acceptance; and is accordingly rejected.

The revealing chronology :

83. Subsequent to the Yadav judgment, the State on 15-04-2011 addressed the MHA for issue of guidelines [for selection and appointment of DGP (HoPF)] and that in the event of any delay in issue of guidelines, to advise the State on the further course of action to be taken for selection and appointment of DGP (HoPF), in view of the impending retirement of Aravinda Rao with effect from 30-06-2011. The State was anxious to obtain guidance on the appropriate course to be followed and issued two reminders to the Central Government (for guidelines or interim advice, as the case may be) on 24-07-2011 and 10-05-2011. In response, the MHA vide its letter dated 09-05-2011 categorically mandated the State that selection to the post of DGP (HoPF) shall be made by the State Government in accordance with the judgment in Prakash Singh.

(Emphasis)

84. Significantly, the State Government having addressed the Central Government for guidelines or for advice, on 15-04-2011 (with reminders on 27-04-2011 and 10-05-2011); after stay of operation of the Yadav judgment by the Supreme Court, on 10-01-2011; and having received a direction from the MHA (on 09-05-2011), curiously proceeded with a self-generated and contrived process of selection for appointment to the post of DGP (HoPF). The State persuaded itself that not only the Yadav judgment, even the Prakash Singh directive issued by the Supreme Court, (under Article 32 r/w Art. 142) is of no consequence, has no binding efficacy and the State was liberated and immunized from the obligation of fidelity, both to the Yadav declaration of principle and the Prakash Singh directive. This is an extravagant conduct and process pursued by the State, despite the unambiguous Central Government's direction, to the contrary.

How the direction by the Central Government was subverted :

85. As earlier stated we perused the record of the State leading to the process of selection and appointment of Dinesh Reddy as DGP (HoPF), including the note-file. The note-file clearly brings out how the Prakash Singh directive; the Yadav Judgment and even the Central Government direction dt. 09-05-2011 were evaded and violated. That the violation was designed is a legitimate inference from the revealing chronology. The relevant steps:

i) By G.O. Rt. No. 4201, G.A.D, dt. 21-08-2010, the State constituted a Selection Committee (comprising the Chief Secretary to the Government and two designated Special Chief Secretaries) to prepare a panel of officers for selection to the post of DGP (HoPF) from amongst existing officers holding the rank of DGP. The composition as it transpires was for constituting a mere screening committee;

ii) On 15-04-2011, the State addressed the Central Government for guidelines or at least for advice; regarding the appropriate course of action and process to be followed for selection and appointment to the post of DGP (HoPF), clearly setting out the outcome of earlier appointments and their invalidation by the Tribunal and the High Court;

iii) The Central Government responded and by letter dt. 09-05-2011 directed that selection to the post of DGP (HoPF) shall be made by the State Government in accordance with the judgment dated 22-09-2006 passed by the Supreme Court in Prakash Singh's case -------.

iv) Even so and despite Aravinda Rao's appointment also having been set aside by the Tribunal; the note file does not record a single noting advising the non-derogable obligation to follow the Prakash Singh directive; and despite the Central Government's directive dt. 09-05-2011;

v) At paras 36-38 of the note file, a reference is made to the direction in the letter dt. 09-05-2011 letter of the Central Government and pendency of litigation in the High Court and the Supreme Court;

vi) The Special Chief Secretary to the Chief Minister, on 21-06-2011 circulated a note, to re-examine the issue in the light of the fact that the order of the Tribunal (setting aside the appointment of Aravinda Rao;) was stayed by the High Court (para 40);

vii) After this indication from headquarters, a way out of the predicament appears to have been identified and a query was promptly generated whether the opinion of the Advocate General should be obtained. The AG's opinion was sought and tendered, on 28-06-2011.

viii) Eventually it was decided that Supreme Court (Prakash Singh) and High Court (Yadav) Judgments notwithstanding; and the Central Government's directive as well, the in-house "selection process" would be followed and the screening committee was summoned to session;

ix) The meeting of the screening committee (designated - The Selection Committee) was scheduled on 29-06-2011;

x) The Committee referred to the available six officers in the DGP rank; and eliminated Sri Balwinder Singh for active consideration (for the reason, he was to retire shortly). The Committee found the other five officers "fit" for empanelment Dinesh Reddy was the fifth candidate (and last in seniority among the five). It is thus clear that the 'Selection Committee' merely screened the officers for determining their fitness (except for eliminating Sri. Balwinder Singh on short tenure ground);

xi) Eventually, following a Curzonesque 19 but speedier process, the issue reached the Hon'ble Chief Minister, who having perceived the best track record and commendable performance in various posts held, by the fifth (and junior-most) officer, ordered his appointment as DGP (HoPF). The four senior-most officers, found 'fit' by the screening/selection committee however failed to measure up to the 'exacting' standards, for appointment as DGP (HoPF). A consequent order in G.O. Rt. No. 2861 followed, on 30-06-2011; and

xii) The Prakash Singh directive that the State must select the DGP (now HoPF) from amongst the three senior-most officers of the Department, empanelled for promotion to that rank by the UPSC was thus subverted by the stratagem of following an in-house contrivance.

The State must be conceded 'absolute freedom' :

86. One of the grounds [para 11(d)] pleaded in the writ petition by the State (W.P. No. 19026 of 2012) is that it must have absolute freedom and discretion in the matter of appointment of a person to head the State police force; and Law and Order being a State subject, any restriction on or regulation of such discretion would derogate from its authority and power in this area.

87. The above contention is stated to be rejected. Pursuit of absolute discretion, authority or power is a preoccupation of tyranny and despotism; inconsistent with a constitutional Government. Public institutions including governments operating under a Constitution do not have and are not vouchsafed absolute or uncanalized power. It is axiomatic that constitutional Government is a limited Government. Discretion is not availability of a choice between lawful and unlawful courses of conduct. As the eminent jurist Aharon Barak points out 20 : Discretion does not exist when the choice is between a lawful possibility and an unlawful possibility... ... The options are determined not by the physical criteria of the feasibility of carrying out the choice, but by the legal criteria of the legality of the execution. The existence of the alternative is determined not by its effectiveness but by its lawfulness. It is not the choice that makes the chosen option lawful; rather, the choice is based on the fact that the option in question is lawful.

88. The governance obligation, of maintenance of Public Order [Entry - 1 of List - II (State List); Seventh Schedule], ought to be executed by the State in accordance with the Constitution and not outside it. Entry - 41 of the State List enumerates the Legislative field : State Public Services. The State has formulated rules for governing the conditions of service of the police services in the State; and issued separate rules for the State Services and Sub-ordinate Services. If the post of DGP (HoPF) were a post enumerated in the A.P. State police service or the Sub-ordinate police service, the State could perhaps have ventured an argument, of the need to have a wide discretion (though not uncanalized), for administering the said post.

89. Since head of the State police force is a post in the rank and scale of DGP (HoPF), a cadre post in the IPS (a Central Service, governed by the field of legislation enumerated in Entry - 70 of the Union List); and the several conditions of service relating to this post are regulated by the All India Services Act, 1951 and the Rules made thereunder including the 2007, Rules, the State is per se authorized no role in the appointment to the post of DGP (HoPF).

90. The functions that the State may lawfully exercise in relation to an All India Service, are only those accommodated or conferred to a State under the 1951 Act and the relevant Rules made thereunder.

91. The contention by the State that since the appointment in question is to the head of the State police force, it must have an absolute discretion and unregulated freedom, is a contention that proceeds from a fundamental misconception of our Constitutional architecture.

92. The contention is misconceived and therefore rejected.

93. Another contention urged on behalf of the petitioners; and this is the last we need to deal with, is that since the Supreme Court interim order dated 10-01-2011 had observed: Appointment, if any, made in the meantime, will be subject to the final result of this case, the State is at liberty not to follow the judgment of the Tribunal as upheld in Yadav, [i.e., need not follow Prakash Singh mandate of forwarding names to the UPSC for empanelment and thereafter of selecting one of the three senior-most officers in the Police Department, for appointment as DGP (HoPF)]. In our considered view, this contention is jejune and urged, perhaps in desperation. The contention is syllogistically flawed and normatively misconceived. The Yadav judgment set out many principles and rationes including that appointment to the post of DGP (HoPF) is governed by provisions of the All India Service Act and the Indian Police Service Rules, referred to in the Yadav judgment.

94. The above contention by the petitioners would mean that the State would not be obliged to follow either the All India Services Act or the relevant (IPS) Rules either, while considering selection and appointment to the post of DGP (HoPF), since the Yadav judgment (which dealt with those rules as well), is stayed. We would dilate no further on this analysis. The contention is patently misconceived and does not proceed on any acceptable interpretation of the phraseology of the Supreme Court observation : Appointment, if any, made in the meantime, will be subject to the final result of this case. The contention is accordingly rejected.

Summary of our conclusions :

(i) The IPS (Pay) Rules, 2007 and the IPS (Pay) amendment Rules, 2008, have made no provision for the process or methodology of selection of officers in the rank of DGP- HAG + Scale to the post of DGP (HoPF); and the Central Government has prescribed no criteria for selection as enabled by Rule 3(2)(i) of the 2007 Rules. The directions issued by the Supreme Court in Prakash Singh v. Union of India have therefore neither worked themselves out (as contended by the petitioners) nor are eclipsed, over-borne or rendered otiose.

(ii) The ratio of the judgment of the Madras High Court in R. Nataraj v. State of Tamil Nadu and others and the relevant ratio of this Court in Government of Andhra Pradesh v. S.S.P. Yadav and others, have clearly declared the principle that the Supreme Court's directive in Prakash Singh is operative notwithstanding the 2007 and 2008 Rules.

(iii) The Yadav judgment insofar as the principles spelt out therein are concerned continue to operate proprio vigore; the ratio in Yadav that the Prakash Singh directive is in force and binds the State Government, is not eclipsed on account of stay of operation of this judgment, granted by the Supreme Court [on 10-01-2011 in S.L.P. (Civil) Nos. 34798 and 34799 of 2010].

(iv) Stay of operation of the Yadav judgment would not in any event, tantamount to suspension or eclipse of the Supreme Court judgment in Prakash Singh v. Union of India. The State has therefore no escape from unquestioned fidelity and ungrudging obedience to the mandate of the Prakash Singh directive.

(v) The impugned judgment of the Tribunal (that the order of the State Government in G.O. Rt. No. 2861, General Administration (SC.C) Department, dated 30-06-2011, selecting and appointing Sri V. Dinesh Reddy as DGP in the Apex Scale of Rs. 80,000 (Fixed), is illegal and unsustainable), is valid and suffers from no infirmity warranting interference in judicial review, under Article 226 of the Constitution.

Directions :

95. In the facts and circumstances of the case and since we are dismissing the writ petitions, we consider it appropriate to issue the following directions :

(i) Apropos the operative directions issued by the Tribunal in the order impugned herein (para 45), the appellant - The State of Andhra Pradesh shall forward the names of all eligible and serving Police Officers in the rank of DGP in the HAG + Scale together with their entire records of service to the UPSC, requesting preparation of a panel, as directed by the Supreme Court in the paragraph 31.2 of the judgment in Prakash Singh v. Union of India, within one week (7 days), from the date of receipt of a copy of this judgment;

(ii) Within two weeks from the date of receipt of proposals from the State Government (forwarded by the State in conformity with direction (i) supra), the UPSC shall draw up a panel as directed in para 31.2 of the judgment in Prakash Singh and communicate the same to the State of Andhra Pradesh. This direction is issued to the UPSC (though not a party to this lis) since UPSC's obligation to empanel officers for appointment to the post of DGP (HoPF) arises from the judgment of the Supreme Court in Prakash Singh;

(iii) Within one week (7 days) from the date of receipt of the panel forwarded by the UPSC, as set out in the preceding direction, the State Government shall select one of the three senior-most officers (empanelled by the UPSC), for appointment to the post of DGP (HoPF), in compliance with the directions in Prakash Singh; and

(iv) Since the order of the Tribunal setting aside the appointment of Sri V. Dinesh Reddy as DGP (HoPF) is being upheld by this Court herein, in the public interest, we direct that till the process of a fresh and lawful appointment to the post of DGP (HoPF) is executed in accordance with the foregoing directions, Sri Dinesh Reddy may discharge the functions of DGP (HoPF) but as a purely in-charge/officiating arrangement. The officer shall neither be entitled to nor draw salary and emoluments attached to the post of DGP (HoPF). He would however be entitled to draw the salary and emoluments attached to the post of DGP in the HAG + Scale.

96. As a result the foregoing analyses and our conclusions summarized above and since we are of the considered view that the State has consciously and consistently disregarded and violated the specific, unambiguous and non-derogable directive of the Supreme Court in Prakash Singh v. Union of India; and on specious, artificial and extravagant grounds, we deem it appropriate to dismiss these writ petitions with costs of Rs. 5,000/- (five thousand only), payable by the appellant - the State of Andhra Pradesh (the petitioner in W.P. No. 19026 of 2012) to the Andhra Pradesh State Legal Services Authority, within thirty (30) days from the date of receipt of a copy of this order. The writ petitions are dismissed, with the directions specified above and with costs, as ordered.

19. Lord Curzon addressed a despatch to the Secretary of State, recording a scathing observation about the administration during his time. Krishna Iyer, J, reproduces the relevant observations in State of Kerala v. T.P. Roshana [ (1979) 1 SCC 572]. Said Lord Curzon in the despatch : Your despatch of August 5 arrived. It goes to Foreign Department. Thereupon Clerk 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it. Then comes Clerk 2 with 31 more pages upon Clerk 1. Then we get to the region of Asst. Secretaries, Dy. Secretaries and Secretaries. All these gentlemen state their worthless views at equal length. Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print. Then these papers wander about from department to department and amid the various Members of Council. I am grappling with this vile system in my own department, but it has seated itself like the Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden.

20. Judicial Discretion - Yale University Press Pg.9

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WP Nos. 19026 and 19190 of 2012

Government Of Andhra Pradesh v. P. Gautam Kumar, Ips And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners (State of Andhra Pradesh and Sri V. Dinesh Reddy)

Respondent (Sri P. Gautam Kumar and Union of India)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications