LT. CDR. M. RAMESH versus UNION OF INDIA & ORS. on 17 April 2018

[2018] 6 S.C.R. 763

LT. CDR. M. RAMESH

v.

UNION OF INDIA & ORS.

(Transferred Case (Civil) No.11 of 2017

WITH

I.A. No.132315/2017 – Clarification/Direction)

APRIL 17, 2018

[MADAN B. LOKUR, KURIAN JOSEPH ANDDEEPAK GUPTA, JJ.]

Indian Police Service (Recruitment) Rules, 1954 and AmendedRules, 2011– r.8 as amended – Union of India introduced LimitedCompetitive Examination (LCE) to make appointments to the IndianPolice Service (IPS) – Examination took place from 20.05.2012 to22.05.2012, however, results of the same were not declared –Thereafter, Union of India took the decision in 2018 to scrap theLCE held in the year 2012 – Whether the decision of Union ofIndia to cancel the selection process is legal or not – Held: Legaland valid – Decision to scrap the LCE was taken in larger publicinterest and it cannot be termed to be arbitrary, discriminatory orcapricious – The result of the said examination was expected to bedeclared in the year 2013 and the officers would have been sentfor training in the same year – The officers, who may have beenselected in the year 2013 at the upper age limit of 35 years or 36years would be 5 years older in year 2018 and their induction orrecruitment in the IPS would have been delayed by more than 5years – Government had fixed the upper age limit of 35 years andwith delay of more than 5 years the purpose for upper age limit,whatever it would have been, was defeated – If Union of India hadmade appointments, it would have led to a plethora of litigationwhere the persons recruited to the IPS between 2013 and 2018would have claimed seniority over the persons, who appeared inthe LCE – Litigation by officers against each other would haveachieved no higher purpose – LCE was introduced keeping in viewthe shortage of police officials in the IPS and to fill up thevacancies, however, the percentage of vacancies in last 5 yearshad fallen considerably, therefore, the decision of the Governmentto scrap LCE cannot be termed irrational – The induction through

A

B

C

D

E

F

G

H

ALCE was mainly limited to persons belonging to the State PoliceServices and Central Police Organization – The gain, in the IPS,would have been set off by a consequent shortage in the StatePolice Services and the Central Police Organization – The decisionto scrap the LCE is not mala fide and is a reasonable one in thefacts and circumstances of the case – Indian Police ServiceB(Regulation of Seniority) Rules, 1988 – r.3 – Service Law.Service Law – Union of India introduced the LimitedCompetitive Examination (LCE) keeping in view the shortage ofpolice officials in the IPS – Examination took place from 20.05.2012to 22.05.2012, however, it was subsequently scrapped – WhetherCthe petitioners have any vested right to claim declaration of resultsand appointment pursuant to selection – Held: It is well settled thatmerely because a person has been selected, does not give thatperson an indefeasible right of claiming appointment – In theinstant case, results have not been declared and even the selectionDprocess was not complete – Petitioners had no enforceable right toclaim that the result should be declared or that they should beappointed if found meritorious.

Disposing of the matters, the Court

HELD: 1. In the present cases, results of LimitedCompetitive Examination (LCE) have not been declared and evenEthe selection process is not complete. As such, there is nomanner of doubt that the petitioners have no enforceable right toclaim that the result should be declared or that they should beappointed if found meritorious. The law is well settled that eventhough the candidates may not have a vested right ofFappointment and the State is not under any duty or obligation tofill up the vacancies, the State has to act fairly and it cannot act inan arbitrary manner. The decision, not to fill up the vacanciespursuant to the selection process, must be taken bona fide andfor justifiable and appropriate reasons. [Paras 15, 16] [772-G-H;773-A-B]G

2. In the instant case, there is no manner of doubt that itwas expected that the result of LCE would be declared in theyear 2013 and the officers would be sent for training in the sameyear. The officers, who may have been selected in the year 2013at the upper age limit of 35 years or 36 years would now be 5Hyears older. No doubt, they are members of the State Police Service or the Central Police Organisation, but their inductionor recruitment in the IPS is delayed by more than 5 years. Whenthe Government laid down a policy that upper age limit was 35years, it must have had some reason for fixing the upper agelimit. That purpose is now defeated. [Paras 20, 21] [774-D, F-G]

3. If the Union is compelled to make the appointments,this will lead to a plethora of litigation where the personsrecruited to the IPS between 2013 and 2018 will claim seniorityover the persons, who appear in the LCE. Such litigation wouldnot be in public good and will achieve no higher purpose. In fact,such litigation may also affect the morale of the officers in theIPS. [Para 22] [774-H; 775-G-H]

4. The Union has also taken up a plea that though the fall invacancies when taken numerically, may not be much but whentaken on the percentage basis, there is a fairly large fall in thevacancies. Furthermore, the induction through LCE is mainlylimited to persons belonging to the State Police Services and theCentral Police Organisation. Any such induction would lead to aconsequential shortage in these organisations. The gain, if any,in the IPS, would be set off by a consequent shortage in the StatePolice Services and the Central Police Organisation.[Para 23][775-B-C, D-E]

5. The decision to scrap the LCE recruitment has beentaken in the larger public interest. It is not actuated byextraneous reasons. The decision cannot be termed to bearbitrary, discriminatory, capricious or malafide and is areasonable one in the facts and circumstances of the case.[Paras 24, 25] [775-E-G]

Jai Singh Dalal v. State of Haryana (1993) 2 Suppl.SCC 600 : [1992] 3 Suppl. SCR 816 ; Vijay KumarMishra v. High Court of Judicature at Patna (2016) 9SCC 313 : [2016] 3 SCR 806 ; Shankarsan Dash v.Union of India (1991) 3 SCC 47 : [1991] 2 SCR 567– referred to.

A

B

C

D

E

F

G

H

[2018] 6 S.C.R.

ACIVIL ORIGINAL JURISDICTION : Transferred Case (Civil)No. 11 of 2017

Under Article 139A (1) of the Constitution of India WITH

BT. C. (C) Nos. 12, 13, 16-20, 46, 268, 48, 50 and 49 of 2017

T. C. (C) No. 23 of 2017 with I. A. No. 108931 of 2017-Intervention Application.

R. Venkatramani, Ms. Jyoti Singh, Sr. Advs., Anitha Shenoy,Ms. Srishti Agnihotri, Pravin Vignesh, Ms. Remya Raj, Sudarshan Rajan,CAmandeep Joshi, Ms. Jayashree Narasimhan, Himanshu Gautam,Mahesh Kumar, Padmna Kumar S., Ms. Usha Nandini V., Advs. for thePetitioner.

Ms. Vibha Datta Makhija, Dushyant Dave, Sr. Advs.,Ms. Aishwarya Bhati, T. A. Khan, Ms. Rashmi Malhotra, B. V.DBalramdas, Om Prakash Shukla, Yajur Sharma, Ms. Disha Vaish,Ms. Sushma Suri, Naresh Kaushik Vardhman Kaushik, Akash Mahapatra,Omung Raj Gupta, Manoj Joshi, Nishant Gautam, Karn Deo Baghel,Devik Singh, Mrs. Lalita Kaushik, Shree Prakash Sinha, Rakesh Mishra,Ms. Mohua Sinha, Nawalendra Kumar, Hrishikesh Baruah, Advs. forthe Respondents.E

The Judgment of the Court was delivered by DEEPAK GUPTA J. 1. By this judgment we shall decidewhether the decision taken by the Union of India not to makeappointments to the Indian Police Service (for short ‘the IPS’) pursuantFto the Limited Competitive Examination (for short ‘the LCE’) whichtook place from 20.05.2012 to 22.05.2012, is legal and valid.

2. The facts in brief are that keeping in view the shortage ofpolice officials in the Indian Police Service, the Ministry of Home Affairs,Union of India set up a Committee headed by Shri Kamal Kumar, I.P.S.(Retd.) to make suggestions on various aspects including filling up thevacancies. The Committee, in its report, recommended that in additionto the normal modes of recruitment i.e. direct recruitment to the IPSthrough the annual Civil Services Examination and promotion from theState Police Services, a third method of Limited Competitive Examination G

H

should be introduced. The directly recruited Deputy Superintendents ofPolice in the State Police Service and their equivalents in the CentralPolice Services with a minimum of 5 years of service were eligible forthis exam subject to a maximum age limit of 45 years. It was alsorecommended that not more than 65 officers should be recruited in agiven year through the LCE and the recruitment through this channelmay have to be staggered over a period of 7 years. The Governmentpartially accepted the report and by amendment in sub-rule (1) of Rule 4of the Indian Police Service (Recruitment) Rules, 1954 introduced amethod of recruitment through LCE. Officers of the State Police Service,Central Police Organisation and Army officers fulfilling the eligibilityconditions were entitled to appear in the LCE. It would be pertinent tomention that the LCE was placed at point (b) below (a) direct recruitthrough competitive examination and above (c) promotion of the membersof the State Police Services. Rule 8, as amended, provided that theLCE would be held at such intervals as the Central Government, may inconsultation with the Union Public Service Commission (for short ‘theUPSC’) from time to time, determine. At this stage, it would be pertinentto mention that in terms of the IPS rules, the seniority of IPS officers isdetermined as per the year of allotment and Rule 3 of the Indian PoliceService (Regulation of Seniority) Rules, 1988 provides that the year ofallotment of a direct recruit shall be the year following the year in whichthe competitive examination was held. It is not disputed that for thepurposes of assigning the year of allotment the persons selected throughthe LCE would be covered by the same rule like the direct recruit.Consequently, amongst the officers having the same year appointment,the inter se seniority would be determined as follows:

1. Direct recruits

2. LCE appointees

3. Promoted State Police Service officers

3. The relevant portion of Indian Police Service (Recruitment)Amended Rules, 2011 reads as follows:- “1. xxxxxxxxx

2. In the Indian Police Service (Recruitment) Rules, 1954 (herein-after referred to as the principal rules), in rule 4 in sub-rule(1), forclause (b), the following clauses shall be substituted, namely:- ABC

DE

F

G

H

A “(b) by limited competitive examination;

(c) by promotion of members of a State PoliceService.”

xxx

xxxxxx

B3. In the Principal rules, after rule 7, the following rule shall beinserted, namely:- “8. Recruitment by limited competitive examination –

(1) The limited competitive examination for recruitment to theservice shall be held at such intervals as the Central Governmentmay, in consultation with the Commission, from time to timedetermine.

C

(2) The examination shall be conducted by the Commission inaccordance with such regulations as the Central Government mayfrom time to time make in consultation with the Commission andthe State Government.

D

(3) xxx

xxxxxx”

4. Pursuant to the aforesaid amendment to the Rules, the UPSCpublished an advertisement on 10.03.2012 inviting applications for fillingup posts in the IPS through LCE as per the amended rules. Thereafter,Ewritten tests and interviews were conducted but till date the results ofthe same have not been declared.

5. The amendments to the rules were challenged in a number ofpetitions. One petition was filed in the Delhi High Court being WP (C)No. 1610 of 2012 titled Zakat Foundation of India v. Union of India &FOrs. This petition appears to have been filed in the public interest andthe contention of the petitioner was that the provisions providing for theLCE were arbitrary and unconstitutional and the Government shouldincrease the intake of the IPS through normal direct recruitment throughthe UPSC. This petition was rejected mainly on the ground thatintroduction of a new method of recruitment through the LCE was aGpolicy decision in which the Court could not interfere. It had beenargued before the Delhi High Court that many State Governments hadnot been consulted; that the UPSC and other bodies had expressed theirreservations and therefore, the amendment was illegal. The Delhi HighCourt observed that it cannot comment whether the system introduced H

by this amendment is the best or there could be better alternatives. Itnoted that the UPSC had initially opposed the amendment. It had alsonoted the reservation of the Central Police Organisation and the Statesthat this would result in shortage of police officers, and ParamilitaryForces in the State. However, the Court held that it cannot nullify orinvalidate the decision of the Government only on the ground that it wasnot a very wise decision and there were better alternatives.

6. It would also be pertinent to mention that the amended ruleswere challenged before this Court in Writ Petition (Civil) No. 326 of2012 but the same was dismissed by this Court on 27.08.2012 on theground that the petitioners could not show how they were adverselyaffected by the amendment to the rules.

7. Some police officers of the Assam Police Service filed OriginalApplication being O.A.No.112 of 2012 in the Central AdministrativeTribunal (for short ‘the CAT’), Guwahati Bench challenging theamendment introducing the LCE mainly on the grounds that noconsultations had been held with the States; that the amendment wasarbitrary and unreasonable and the main challenge was with regard tothe maximum age being fixed at 35 years whereas the recommendationof the Kamal Kumar Committee was 45 years. The CAT vide its orderdated 14.09.2012 quashed the amended Rules of 2011 as being illegal,having been made without consulting the State Governmentsrepresenting the Assam-Meghalaya Joint Cadre Authority and also onthe ground that the promotional avenues of the State police officersstood abridged by the amended rules and therefore, the rules wereviolative of Articles 14 and 16 of the Constitution of India. This decisionof the CAT was challenged by the Union of India before the GauhatiHigh Court in Writ Petition (Civil) No.4880 of 2012. Some persons, whohad appeared in the LCE also filed a writ petition being Writ Petition(Civil) No. 5337 of 2012 challenging the judgment of the CAT. TheGauhati High Court allowed the writ petitions and set aside the order ofthe CAT and held the amended rules to be valid.

8. It would be pertinent to mention that neither the judgment ofthe Delhi High Court in Zakat Foundation nor the judgment of the GauhatiHigh Court has been challenged and has thus attained finality.However, the matter does not end here. Various petitions were filed indifferent High Courts. It would also not be out of place to mention that AB

C

D

E

F

G

H

Acertain members of the armed forces engaged on Short ServiceCommission were not given permission to appear in the examination orinterview on the ground that they could not leave the armed forcesbefore completing their tenure of service. They also filed writ petitionspraying that they should be permitted to appear in the examination andinterview. Therefore, the Union of India filed Transfer Petition (Civil)BNos. 272-287 of 2015 and Transfer Petition (Civil) No.1555 of 2017praying for transfer of 17 cases pending in different High Courts in thecountry. Notice was issued for transfer of 17 cases and proceedingsbefore the High Courts were stayed. However, 3 cases were not sentby the High Courts on the ground that either they have been alreadyCdisposed of or they had no concern with this litigation. Therefore, 14transfer petitions have been listed before this Court for hearing. It maybe mentioned that as far as Transferred Case (Civil) No. 50 of 2017 isconcerned, the matter has already been disposed of by the Delhi HighCourt and, therefore, it has become infructuous.

D9. Before this Court, it took a long time to serve the respondentsand on 12.12.2017, when the matter was taken up for hearing thefollowing order was passed:

“Mr. Tushar Mehta, learned Additional Solicitor General, seekssome more time for the Ministry of Home Affairs to take a finalEcall on the stand to be taken on the issues raised in these cases.We direct the Ministry of Home Affairs to finalize its standpositively within two weeks from today.

Post these cases on 08.01.2018.

We make it clear that depending on the decision taken by theFMinistry of Home Affairs it will be open to the U.P.S.C. to proceed withthe process, making it subject to the result of these Transferred Cases.”

10. On 08.01.2018, the Union of India sought time to file anaffidavit. By this affidavit, filed on 12.01.2018 and affirmed by Shri S.K.Rastogi, Deputy Secretary, Ministry of Home Affairs, the Court wasGinformed that after considering all aspects referred to in the affidavit,the Union of India had taken a decision to scrap the LCE held in theyear 2012. The candidates who had appeared in the LCE have opposedthis decision of the Union of India and at this stage, we have heardarguments only on the issue whether the decision of the CentralHGovernment to cancel the selection process is legal or not.

LT. CDR. M. RAMESH v. UNION OF INDIA & ORS.[DEEPAK GUPTA, J.]

11. In support of its decision to scrap the LCE, the Union of Indiahas submitted that the main purpose of holding the LCE was to fill up alarge number of vacancies. According to the stand of the Union ofIndia, when the Kamal Kumar Committee was set up, about 30% postsin the IPS were vacant. The year-wise tabulation of the same is asunder:

A

BYear Authorised In Vacancy % Strength position 01.01.20123277253674122.6101.01.20133277257470321.4501.01.20143275261765820.0901.01.20153293 2685 608 18.46 C01.01.20163327 2744 583 17.52 01.01.20173356 2802 554 16.50 01.01.20183423 2887* 536* 15.65

*Approx

12. It has been argued by Ms. Vibha Datta Makhija, learnedsenior counsel appearing for the Union of India that the percentage ofvacancies has gone down. It has also been contended that thecandidates who underwent the examination in the year 2012 would beplaced immediately below the direct recruit IPS officers of the sameyear and that subsequent recruitments have been done both by directrecruitment and by promotion and this may result in a lot of litigationwith regard to seniority. It is also contended that it was contemplatedthat the officers recruited through the process of the LCE would beabout 35 years of age but now with the passage of time even if the resultis declared, many of them may be more than 40 years of age which willhamper their functioning in the Indian Police Service. The maincontention of the Union of India is that the petitioners have no legal rightto be appointed and mere selection does not give them such a right.

13. Mr. Dushyant Dave, learned senior counsel, appearing for thepersons who have appeared in the LCE, contended that even if there isno vested legal right, the said applicants have a legitimate expectation tobe appointed. He concedes that in certain circumstances theGovernment can cancel a selection process but this cancellation canonly be done when there is an overriding public interest. His submission D

E

F

G

H

Ais that the affidavit in question does not show any such overridinginterest. Mr. R. Venkatramani, learned senior counsel appearing forsome of the LCE candidates submitted that the Government must befair and just and the affidavit fails to disclose what is the public interestor the higher purpose served by scrapping the examination. He furthersubmits that the reasons given by the Government in its affidavit do notBsatisfy the test of overriding public interest or higher purpose and, assuch, the decision of the Government to scrap the examination shouldnot be accepted by this Court and the UPSC should be directed todeclare the result and the Union of India be directed to makeappointments pursuant to the result.

C14. The first issue that arises is whether the petitioners have anyvested right to claim that the result must be declared and if thepetitioners are selected, they should be appointed. This Court in JaiSingh Dalal v. State of Haryana[1] held that merely because theGovernment had sent a requisition to the UPSC to select the candidatesDfor appointments, did not create any vested right in the candidate calledfor the interview to be appointed. It was also held that the authoritywhich has the power to specify the method of recruitment must bedeemed to have the power to revise and substitute the same. The Court,however, also laid down that at best the Government may be required toEjustify its action on the touchstone of Article 14 of the Constitution. Thisview has been followed in a large number of cases. In Vijay KumarMishra v. High Court of Judicature at Patna[2], this Court held thatthere is a distinction between selection and appointment. It was heldthat a person, who is successful in the selection process, does notacquire any right to be appointed automatically. Such a person has noFindefeasible right of appointment.

15. It is, thus, well settled that merely because a person has beenselected, does not give that person an indefeasible right of claimingappointment. As far as the present cases are concerned, results havenot been declared and even the selection process is not complete. AsGsuch, there is no manner of doubt that the petitioners have noenforceable right to claim that the result should be declared or that theyshould be appointed if found meritorious.

11993 Supp.(2) SCC 6002(2016) 9 SCC 313H

16. Having held so, we must also note that the law is well settledthat even though the candidates may not have a vested right ofappointment and the State is not under any duty or obligation to fill up thevacancies, the State has to act fairly and it cannot act in an arbitrarymanner. The decision, not to fill up the vacancies pursuant to theselection process, must be taken bona fide and for justifiable andappropriate reasons. In this regard, we may make reference to the caseof Shankarsan Dash v. Union of India[3].

17. On behalf of the candidates, who have appeared in theexamination, a feeble attempt was made to invoke the principle ofpromissory estoppel. In our view, the said principle is not at allapplicable to the present case. It is well settled law that the principle ofpromissory estoppel can only be invoked by a person who has changedhis position to his detriment on the basis of the promise held out to him.This is not the position in the present cases. All the candidates areserving in the State Police or the Central Police Organisation or in theArmy. Their position has not been adversely affected by the selectionprocess and therefore, the principle of promissory estoppel is notapplicable.

18. The main attack against the decision of the Government is onthe ground that the candidates had a legitimate expectation thatpursuant to the written test and interview, their result would be declaredand if found successful, they would be appointed. It is a well settled lawthat even if there is no vested right, the principle of legitimateexpectation can be invoked. Legitimate expectation arises when thecitizens expect that they will be benefitted under some policy ordecision, announced by the State. At the same time, the law is wellsettled that the Legislature and the Executive can change any policy forgood reasons. These good reasons must be such which are notarbitrary, which are not mala fide and the decision has been taken in thepublic interest. If the decision to change the policy is arbitrary orcapricious then it may be struck down.

19. Applying the aforesaid principle, we may test whether theaction of the Government in deciding to scrap the recruitment processby the LCE is an arbitrary decision or not. The reasons given by theGovernment in support of its decision are as follows:

3(1991) 3 SCC 471

AB

C

D

E

F

G

A1. percentage of vacancies has gone down;

2. the selection process has been delayed by many years whichwill mean that the persons selected will be at least 5 yearsolder than as expected;

3. that many petitions are still pending and the matter has notBbeen finally decided, which could lead to further delay; and

4. it is apprehended that there would be a surfeit of litigationbetween candidates, if any, appointed through LCE and thosewho are recruited by direct recruitment or promotion duringthe years 2012 to 2018.C

20. Both Mr. Dave and Mr. Venkatramani have attacked eachground invoked by the Union individually but we are of the view that it isthe combined effect of all the grounds which will have to be taken intoconsideration. There is no manner of doubt that it was expected that theresult would be declared in the year 2013 and the officers would be sentDfor training in the same year. We are in the year 2018 and some of thematters which have been transferred to this Court are still to be heard.It was urged that the dispute stands decided by the Gauhati High Courtand the Delhi High Court. It may be true that these two Courts haveupheld the validity of the rules and the Union of India did not challengeEthe decisions in these two cases, but we cannot lose sight of the fact thatthere are various other petitions pending and neither this Court nor theother High Courts are bound by the decision rendered by the GauhatiHigh Court or the Delhi High Court. These cases will have to bedecided, if we are not to accept the stand of the Central Government.This could delay the matter even further.F

21. The officers, who may have been selected in the year 2013 atthe upper age limit of 35 years or 36 years would now be 5 years older.No doubt, they are members of the State Police Service or the CentralPolice Organisation, but their induction or recruitment in the IPS isdelayed by more than 5 years. When the Government laid down aGpolicy that upper age limit was 35 years, it must have had some reasonfor fixing the upper age limit. That purpose is now defeated.

22. We cannot be oblivious to the fact that if the Union iscompelled to make the appointments, this will lead to a plethora oflitigation where the persons recruited to the IPS between 2013 and 2018

H

will claim seniority over the persons, who appear in the LCE. We arenot going into the merits of the issue but, we can easily visualise thehuge amount of litigation which will in all probability ensue, wheremembers of the IPS would be litigating against each other. Suchlitigation would not be in public good and will achieve no higher purpose.In fact, such litigation may also affect the morale of the officers in theIPS.

23. The Union has also taken up a plea that though the fall invacancies, when taken numerically, may not be much but when taken onpercentage basis, there is a fairly large fall in the vacancies. At the timewhen the Kamal Kumar Committee was set up and till its report, 30% ofthe posts in the IPS were lying vacant. When the rules were introduced,22.61% posts were vacant. As on 01.01.2018, 15.65% posts are vacantand, therefore, definitely there is a fall in the percentage of vacancies.It was urged that even now there are large number of vacancies and,therefore, the decision of the Government is irrational. We cannotaccept this submission. One cannot lose sight of the fact that theinduction through LCE is mainly limited to persons belonging to the StatePolice Services and the Central Police Organisation. Any such inductionwould lead to a consequential shortage in these organisations. The gain,if any, in the IPS, would be set off by a consequent shortage in the StatePolice Services and the Central Police Organisation.

24. When we examine the decision taken by the CentralGovernment in a holistic manner, we have no doubt that the decision toscrap the LCE recruitment has been taken in the larger public interest.The decision is definitely not mala fide. It is not actuated by extraneousreasons. It cannot be said that the decision is arbitrary.

25. In view of the foregoing reasons, the decision of theGovernment to scrap the process of recruitment to the IPS through theLCE cannot be termed to be arbitrary, discriminatory or capricious. Thedecision is a reasonable one in the facts and circumstances of the case.

26. In view of the above, all the transferred cases have beenrendered infructuous and are disposed of accordingly. Applications forclarification/direction as well as intervention are rejected. Pendingapplication(s), if any, also stand(s) disposed of.

Ankit Gyan

Matters disposed of.

A

B

C

D

E

F

G

H