DB dismisses petition challenging Dr SP Vaid’s appointment as DGP

JAMMU, MAY 16: A Division Bench of the J&K High Court comprising Justice Ali Mohammad Magrey and Justice MK Hanjura today dismissed the petition filed by SK Mishra challenging appointment of Dr SP Vaid as DGP J&K, terming the petition of the petitioner sans merit.
The DB after hearing both the sides observed “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.”
The DB further observed that the petitioner and the SP Vaid admittedly, are governed by the Indian Police Service (Pay) Rules, 2016. On the analogy of note 2 added to Sub-rule 2 of Rule 3 of the Indian Police Service (Pay) rules, 2016, the Director General of Police (HoPF) in the apex scale (Level 17) has to be appointed from amongst the officers holding the post of Director General of Police in the State cadre (Level 16 of the Pay Matrix).
The DB observed that the assessment of the merit and other relevant facts for making selection on the post of Director General of Police was purely within the domain and jurisdiction of the State Government and, since the petitioner was also considered in the panel of eligible officers by the cabinet, so the petitioner cannot challenge the validity of the order by which Dr. SP Vaid has been selected and appointed as the Director General of Police (HoPF), J&K State. The petitioner is still working as Director General of Police and no prejudice can be said to have been caused to the petitioner by the appointment of Vaid as the Director General of Police (HoPF).
Merely stating that the petitioner figures a step ahead of SP Vaid in the order of seniority cannot be a ground to challenge the validity of the order of selection/ appointment of the SP Vaid to the post of Director General of Police, for which a variety of circumstances have to be taken note of, particularly in view of the conditions prevailing in the State of Jammu & Kashmir which, by now, are obvious and do not require any retelling. The Cabinet, in its wisdom, found Dr. SP Vaid to be fit and suitable person to man the post of Director General of Police (HoPF), J&K State and, therefore, such a decision of the Cabinet cannot be called in question before a Court.
The DB further observed that there are judicial precedents that lay down that the correctness of the reasons that prompted the Government to take a decision and take one course of action instead of the other is not a matter of concern in the judicial review and the Court is not the appropriate forum for conducting such investigations. The scope of judicial review has to be confined to find out whether the Government decision was against the statutory provisions or violative of the fundamental rights of the citizens of the State.
The DB observed that it is well settled that the provisions of Article-166 itself are directory in nature and not mandatory Rules framed by the Governor under clause (3) of Article-166 must be only regarded as rules having been framed for more convenient transaction of business of the Government and are directory in character and not mandatory. Non-compliance thereof would be a mere procedural defect. If there is any violation of the aforesaid rules it would not confer any right upon any citizen to approach the Court under Article-226 of the Constitution complaining of non-compliance of the said rules and contend that the action of the Government is vitiated. The cabinet is responsible to the legislature for every action taken in any of the ministries and that is the essence of joint responsibility. That does not mean that each and every decision must be taken by the cabinet. Therefore, when a cabinet minister in charge of a particular subject takes a decision and an order is issued in the name of the Governor, in law the Cabinet is collectively responsible for the said order, whether it is authorized by the Cabinet or only by an individual minister.
With regard to the third contention raised by the petitioner in this petition, i.e. parity with Dr SP Vaid in the grant of emoluments, etc., it needs to be understood that while accepting the recommendations of the 6th Pay Commission, the Central Government approved the grant of apex scale of Rs.80,000 (fixed) by upgradation of one post in the line of existing DGs as DGP (HoPF) in each state cadre. This scale is allowed only to the incumbent actually holding the post.
The grant of pay scale is related to performance of function attached to that post and, as long as a person has not been appointed to that post, he cannot be deemed to have performed the functions thereof by implication,.
With these observations, Division Bench observed that the petition of the petitioner is sans merit and the same is dismissed. JNF