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Judgment
This writ petition is filed, by way of Public
Interest Litigation, with the prayers, which read
as under:
"A. This Hon''ble Court may be pleased to allow this petition;
B. This Hon''ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to the Respondent to appoint a regular full- time Director General and Inspector General of Police for Gujarat State at the earliest;
BA. This Hon''ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to Respondent No.1 to propose the name of a suitably qualified officer to be posted as the Director General and Inspector General of Police, Gujarat State, to Respondent No.2 at the earliest and further direct Respondent No.2 to decide on such proposal at the earliest after the communication of such proposal by Respondent No.1 and further direct Respondent No.1 to appoint such person to the post of Director General and Inspector General of Police, Gujarat State, at the earliest in accordance with law;
BB. This Hon''ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to Respondent No.2 to give detailed reasons if it were to refuse the aforesaid proposal sent by Respondent No.1;
BC. This Hon''ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to the Respondents to complete the aforesaid appointment process by the last date of withdrawal of nomination for the first phase of elections, i.e. by 24.11.2017;
C. This Hon''ble Court may be pleased to issue the writ of mandamus or any other appropriate writ, order or direction, to the Respondent to allow the person so appointed as a full-time DG&IGP of Gujarat State, to continue in office for a tenure specified by the provisions of the Bombay Police (Gujarat Amendment) Rules, 2007, and on the conditions mentioned therein;
D. This Hon''ble Court may be pleased to direct the Respondent to begin the exercise for the selection of a new DG&IGP, one month prior to the date of superannuation of the incumbent DG&IGP in future.
E. This Hon''ble Court may be pleased to direct the Respondent that in case of a sudden vacancy to the post of DG&IGP, necessary notification to appoint a new incumbent to the post of a regular DG&IGP must be made within two weeks from the date on which such vacancy arose;
F. Pass any such other orders as may be deemed fit, proper and just in the interest of justice pending admission,
hearing and final disposal of the present petition."
The petitioner, a retired IPS Officer, seeks
directions to the 1st respondent Government to
appoint a regular full time Director General and
Inspector General of Police. It is stated in the
petition that, since 15.4.2016, the 1st respondent
has not appointed a full time Director General
and Inspector General of Police. Earlier,
Director General and Inspector General of Police,
Shri P.C.Thakur was replaced by in-charge
Director General and Inspector General of Police,
Shri P.P.Pandey and when his appointment was
questioned, following the assurance given by the
State of Gujarat before the Hon''ble Supreme
Court, Shri P.P.Pandey was superannuated and his
extension of service was revoked. It is alleged
that, in his place, Smt. Geetha Johari was given
additional charge of the Director General and
Inspector General of Police.
In this petition, it is stated that, the
petitioner was a member of 1992 batch of the
direct recruits to the Indian Police Service and
he believes in the rule of law and sincerely
believes that, observance to the rule of law is
in the interest of the society and the nation. It
is alleged that, the quality of criminal justice
system in the country, to a large extent, depends
upon the working of the police force. Towards
this purpose, it is essential that, the Director
General and Inspector General of Police should
be appointed on regular basis, with a minimum
tenure, which will go a long way in ensuring his
impartiality and neutrality of the post and also
of the police force of State of Gujarat. It is
alleged that, said issue of appointment of a
regular Director General and Inspector General of
Police has been considered by the Hon''ble Supreme
Court and directions were issued in the judgment
in the case of Prakash Singh & Ors. Vs. Union of
India & Ors. reported in 2006(8) Supreme Court
Cases page 1. It is stated that, in the State of
Gujarat, Bombay Police Act, 1951 is made
applicable and said Act is amended by Gujarat Act
No.23 of 2007. It is submitted that, as per the
provisions of the said Act, it is obligatory on
the part of the 1st respondent State to appoint a
regular Director General and Inspector General of
Police, who will be in-charge of over all
direction and supervision of police force in the
State.
At first instance, this petition was filed
only by impleading State of Gujarat as a party
respondent. Based on the advance copy served to
the learned Government Pleader, learned Advocate
General appeared on earlier occasions and brought
to the notice of this Court about the election
schedule announced by the Election Commission of
India. Learned Advocate General placed on record
the letter dated 25.10.2017 addressed by the
Election Commission of India to the Chief
Secretary of the Government of Gujarat. In the
said letter dated 25.10.2017, it is stated that,
the Election Commission has announced the
schedule for holding general elections to the
Legislative Assembly of Gujarat vide press note
dated 25.10.2017 and in view of the same, the
Model Code of Conduct has come into force with
immediate effect. There is a further letter dated
26.10.2017 issued by the Chief Electoral Officer,
Gujarat State to the Additional Chief Secretary
to Government, Home Department, Gujarat, wherein
directions were issued to issue notification,
designating Director General of Police/Additional
Director General of Police/Inspector General of
Police and all the police officers below the
level of Director General of Police borne on the
strength of State Government, for the purpose of
Section 28A of the Representation of People Act, 1951
latest by 14.11.2017. Copy of the letter dated
26.10.2017 reads as under:
"No.ELC-102017-ECI-466(2)-CHH
Dated: 26/10/2017
To
Additional Chief Secretary to Government,
Home Department,
Sachivalaya, Gandhinagar.
Subject: General Election to Gujarat Legislative Assembly - 2017 Police Personnel connected with election related duties-exercise of supervisory/disciplinary control. regarding.
Sir,
Please refer to the Election Commission''s order No.434/1/ESO26/94/MCS dated 24th October, 1994(Copy Enclosed) on the subject mentioned above. As per the Commission''s direction, the State Government has to issue a Notification designating the following officers for the purpose of Section 28-A of R.P.ACT-1951 on the same day, the Commission issues notification under section 15 or 150 of the R.P.Act-1951 to hold General Election to State Legislative Assembly:-
The Director General of Police/Additional Director General of Police/Inspector General of Police and
In a General Election all the police officers below the level of Director General of Police borne on the strength of the State Government;
The schedule of the General Election to the Gujarat Legislative Assembly has been announced by the Commission on dt. 25/10/2017. Accordingly necessary notification will be issued by the Commission on dt.14/11/2017.
You are requested to issue a suitable notification designating police Officers as designated officers for the purpose of section -28A of the R.P.Act-1951 latest by dt. 14/11/2017 as directed by the Commission.
Encl: as above
Yours faithfully,
Sd/-
(B.B.Swain)
Chief Electoral Officer
Gujarat State"
Further, in response to such communication, the
1st respondent has issued notification dated
6.11.2017, designating aforesaid police officers
for the purpose of Section 28-A of the
Representation of People Act, 1951, to conduct
the general elections to the Legislative Assembly
of Gujarat during the month of December, 2017.
Copy of the said notification reads as under:
"HOME DEPARTMENT
Notification
Sachivalaya, Gandhinagar, 6th November, 2017.
REPRESENTATION OF THE PEOPLE ACT, 1951
No.GG/68/SB-I/ELC/102017/79: In pursuance of the provisions of Section 28-A of the Representation of the People Act, 1951 and in view of the directions contained in the Election Commission of India''s order No.434/ESO26/94/MCS, dated 24th October, 1994, the Government of Gujarat hereby designates the following Police officers for the purpose of Section 28-A of the R.P. Act-1951 to conduct the General Elections to the Legislative Assembly of Gujarat during the month of December,2017, viz:-
The Director General of Police/Additional Director General of
Police/Inspector General of Police and
In a General Election all the police officers below the level of Director General of police borne on the Strength of the State Government;
This order shall be effective from 14/11/2017 and shall remain in force till the date of completion of process of the said General Elections.
By order and in the name of the Governor of Gujarat
PANKAJ DAVE, Under Secretary to Government"
While referring to the above said
notifications, it is stated by the learned
Advocate General appearing for the State that, no
steps can be taken at this stage by the State for
regular appointment of Director General of
Police. Thereupon, further steps were taken by
the petitioner by impleading Election Commission
of India as the respondent No.2 in the petition
and on service of notice, the 2nd respondent
appeared and filed affidavit-in-reply on behalf
of Election Commission of India.
In the affidavit-in-reply filed on behalf of
the 2nd respondent, it is stated that, elections
for Legislative Assembly in State of Gujarat were
announced on 25.10.2017 and Smt. Geetha Johari
was functioning as in-charge Director General and
Inspector General of Police, Gujarat. Smt.
Geetha Johari was superannuated on 30.11.2017.
Thereafter, the Commission received a proposal
from Government of Gujarat on 30.11.2017,
submitting a panel of officers, who can be given
the charge of Director General and Inspector
General of Police on superannuation of Smt.
Geetha Johari. It is stated that, the Commission
has discussed the matter with regard to interse
seniority of the Officers on 30.11.2017.
Thereafter, they sought information regarding
vigilance clearance and clearance from the angle
of disciplinary proceedings, etc. and further
information was received in the late evening of
30.11.2017. It is stated that, the Commission on
1.12.2017 discussed the matter and keeping in
view the time constraints, issued directions to
appoint senior-most eligible IPS officer
available in Gujarat cadre as in-charge Director
General and Inspector General of Police with
immediate effect, keeping in view the imperatives
of ongoing election process. It is stated that,
accordingly, one Shri Pramod Kumar, the senior-
most Officer is appointed as in-charge Director
General and Inspector General of Police.
We have heard Mr.I.H.Syed, learned counsel
assisted by Mr.Prithu Parimal, learned counsel
for the petitioner, Mr.Kamal Trivedi, learned
Advocate General assisted by Ms.Manisha Lavkumar,
learned Government Pleader and Mr.Utkarsh Sharma,
learned Assistant Government Pleader for the
respondent No.1-State and Mr.Amit Sharma, learned
counsel assisted by Mr.Shahil M. Shah, learned
counsel for the respondent No.2-Election
Commission of India.
Mr. Syed, learned counsel appearing for the
petitioner, submitted that there is no reason for
not appointing a regular Director General and
Inspector General of Police, as per the
provisions of the Bombay Police Act, 1951, as
amended by Gujarat Act No.23 of 2007. It is
submitted that, in view of the directions issued
by the Hon''ble Supreme Court in the case of
Prakash Singh & Ors. Vs. Union of India & Ors.
reported in 2006(8) Supreme Court Cases page 1
and further, as per the provisions of the Bombay
Police Act, 1951, as amended by Gujarat Act No.23
of 2007, it is obligatory on the part of the
respondents to appoint a regular Director
General and Inspector General of Police. It is
submitted that, unless such post is filled up on
regular basis, police force cannot function
independently. It is submitted that, for a very
long time, for one reason or the other, said
appointment is made only on temporary basis and
being continued as such.
On the other hand, learned Advocate General,
Mr.Kamal Trivedi appearing for the State,
submitted that, elections are notified to be held
in two phases i.e. on 9th of December and 14th of
December, 2017 and declaration of results is on
18th of December, 2017. It is submitted that,
officers are on deputation under the control of
the 2nd respondent and no steps can be taken by
the present Government at this stage. It is
submitted that, process for appointment of
Director General and Inspector General of Police
can be initiated only after new Government is
formed, after declaration of results of the
Assembly elections on 18th December, 2017.
Mr. Amit Sharma, learned counsel appearing
for the 2nd respondent-Election Commission of
India submitted that, in view of the
superannuation of the earlier in-charge Director
General and Inspector General of Police, Smt.
Geetha Johari and further, in view of the
communication dated 30.11.2017 from the State
Government and in view of the time constraints, orders
were issued by the Election Commission directing
the State Government to appoint senior-most IPS
Cadre Officer of Gujarat as in-charge Director
General and Inspector General of Police. It is
submitted that, only after new Government is
formed, steps can be taken by the 1st respondent
State for appointment of a regular Director
General and Inspector General of Police.
The Hon''ble Supreme Court, in the case of
Prakash Singh & Ors. Vs. Union of India & Ors.
reported in 2006(8) Supreme Court Cases page 1,
while considering the far reaching changes that
had taken place in the country after the
enactment of the Indian Police Act, 1861 and the
absence of comprehensive review at the national
level of the police system after independence,
based on the reports of the National Police
Commission and other reports, issued various
directions including the direction for selection
and minimum tenure of Director General and
Inspector General of Police. With regard to
selection and minimum tenure of Director General
of Police, the directions were issued, which read
as under:
"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 empaneled 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."
It appears that, to bring in tune with the
directions issued by the Hon''ble Supreme Court,
Bombay Police Act, 1951, which is made applicable
to State of Gujarat, is amended by Gujarat Act
No.23 of 2007. By the aforesaid amendment,
Sections 5A and 5B are inserted in the Act XXII
of 1951. Sub-Sections (1), (2), (3) and (4) of
Section 5A read as under:
"5A. (1) For the overall direction and supervision of the Police Force, the State Government shall appoint a Director General and Inspector General of Police who shall exercise such powers, perform such functions and duties and have such responsibilities and authority as may be provided by or under this Act or orders made by the State Government.
(2) The Director General and Inspector General of Police shall be selected from a panel of officers consisting of the officers already working in the rank of the Director General of Police or of the officers in the rank of Additional Director General of Police who have been found suitable for promotion after screening by a Committee under the provisions of the All India Services Act, 1951:
Provided that the panel of officers from the rank of Additional Director General of Police shall not exceed double the number of vacant posts to be filled in the rank of Director General and Inspector General of Police in the State.
(3) The Director General and Inspector General of Police so selected and appointed shall ordinarily have a minimum tenure of two years irrespective of his date of superannuation, subject to the relevant provisions under the All India Services Act, 1951 and the rules made there under.
(4) The Director General and Inspector
General of Police may be removed from his post before the expiry of his tenure by the State Government by an order in writing specifying reasons thereof, consequent upon the -
(a) conviction by a court of law in a criminal offence or where charges have been framed by a court in a case involving corruption or moral turpitude; or
(b) punishment of dismissal, removal or compulsory retirement from service or of reduction to a lower post; or
(c) suspension from service; or
(d) incapability to discharge his functions as the Director General and Inspector General of Police due to physical or mental illness; or
(e) misuse or abuse of powers vested in him or for gross inefficiency and negligence or failure to provide leadership to the Police Force."
In view of the directions issued by the
Hon''ble Supreme Court in the case of Prakash
Singh & Ors. Vs. Union of India & Ors. reported in
2006(8) Supreme Court Cases page 1, coupled with
the provisions under the Bombay Police Act, 1951,
as amended by Gujarat Act No.23 of 2007, it is
clear that, for over all supervision of the
police force, State Government shall appoint a
Director General and Inspector General of Police
on regular basis. Under Sub-Section (3) of
Section 5A, it is stated that, Director General
and Inspector General of Police, so selected and
appointed, shall ordinarily have a minimum tenure
of two years. In view of such provisions, there
appears to be no reason for not filling up the
post of Director General and Inspector General of
Police on regular basis. Though it is contended
by learned Advocate General that, no steps can be
taken at this stage, unless new Government is
formed, after declaration of election results of
Legislative Assembly on 18th December, 2017 but,
it is the obligation on the part of any
Government to make regular appointment. In view
of the fact that election code is in force in the
State of Gujarat and further, only after the new
Government is formed, pursuant to declaration of
election results of Gujarat Legislative Assembly
on 18th December, 2017, steps have to be taken
for appointment of Director General and Inspector
General of Police on regular basis. In view of
the same, we deem it appropriate to dispose of
the petition with the following directions:
The 1st respondent is directed to initiate
the process and make necessary selection by
following the procedure and appoint Director
General and Inspector General of Police, on
regular basis, within a period of eight weeks
from the date of receipt of this order. No order
as to costs.