1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFERRED CASE (CIVIL) NO(S). 11 OF 2017

LT. CDR. M. RAMESH ...PETITIONER(S)

Versus

UNION OF INDIA & ORS. …RESPONDENT(S)

(WITH I.A. NO.132315/2017 – CLARIFICATION/DIRECTION)

WITH

T.C. (C) NO. 12 OF 2017

T.C. (C) NO. 13 OF 2017

T.C. (C) NO. 16-20 OF 2017

T.C. (C) NO. 23 OF 2017

(WITH I.A. NO.108931/2017 -INTERVENTION APPLICATION)

T.C. (C) NO. 46 OF 2017

T.C. (C) NO. 268 OF 2017

T.C. (C) NO. 48 OF 2017

T.C. (C) NO. 50 OF 2017

T.C. (C) NO. 49 OF 2017

J U D G M E N T

Deepak Gupta J.

1. By this judgment we shall decide whether the decision taken

by the Union of India not to make appointments to the Indian

Police Service (for short ‘the IPS’) pursuant to the Limited

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Competitive Examination (for short ‘the LCE’) which took 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 of

police 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 the vacancies. The Committee, in its report,

recommended that in addition to the normal modes of recruitment

i.e. direct recruitment to the IPS through the annual Civil Services

Examination and promotion from the State Police Services, a third

method of Limited Competitive Examination should be introduced.

The directly recruited Deputy Superintendents of Police in the

State Police Service and their equivalents in the Central Police

Services with a minimum of 5 years of service were eligible for this

exam subject to a maximum age limit of 45 years. It was also

recommended that not more than 65 officers should be recruited

in a given year through the LCE and the recruitment through this

channel may have to be staggered over a period of 7 years. The

Government partially accepted the report and by amendment in

sub-rule (1) of Rule 4 of the Indian Police Service (Recruitment)

Rules, 1954 introduced a method of recruitment through LCE.

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Officers of the State Police Service, Central Police Organisation

and Army officers fulfilling the eligibility conditions were entitled to

appear in the LCE. It would be pertinent to mention that the LCE

was placed at point (b) below (a) direct recruit through competitive

examination and above (c) promotion of the members of the State

Police Services. Rule 8, as amended, provided that the LCE would

be held at such intervals as the Central Government, may in

consultation with the Union Public Service Commission (for short

‘the UPSC’) from time to time, determine. At this stage, it would

be pertinent to mention that in terms of the IPS rules, the

seniority of IPS officers is determined as per the year of allotment

and Rule 3 of the Indian Police Service (Regulation of Seniority)

Rules, 1988 provides that the year of allotment of a direct recruit

shall be the year following the year in which the competitive

examination was held. It is not disputed that for the purposes of

assigning the year of allotment the persons selected through the

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:

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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. xxx xxx xxx

2.In the Indian Police Service (Recruitment) Rules, 1954

(hereinafter referred to as the principal rules), in rule 4 in

sub-rule(1), for clause (b), the following clauses shall be

substituted, namely:-

“(b) by limited competitive examination;

(c) by promotion of members of a S tate Police

Service.”

xxx xxx xxx

3. In the Principal rules, after rule 7, the following rule

shall be inserted, namely:-

“8. Recruitment by limited competitive examination –

(1) The limited competitive examination for recruitment to

the service shall be held at such intervals as the Central

Government may, in consultation with the Commission,

from time to time determine.

(2) The examination shall be conducted by the Commission

in accordance with such regulations as the Central

Government may from time to time make in consultation

with the Commission and the State Government.

(3) xxx xxx xxx”

4. Pursuant to the aforesaid amendment to the Rules, the UPSC

published an advertisement on 10.03.2012 inviting applications

for filling up posts in the IPS through LCE as per the amended

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rules. Thereafter, written tests and interviews were conducted but

till date the results of the same have not been declared.

5. The amendments to the rules were challenged in a number of

petitions. 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 & Ors. This petition appears to have been filed in the public

interest and the contention of the petitioner was th at the

provisions providing for the LCE were arbitrary and

unconstitutional and the Government should increase the intake

of the IPS through normal direct recruitment through the UPSC.

This petition was rejected mainly on the ground that introduction

of a new method of recruitment through the LCE was a policy

decision in which the Court could not interfere. It had been

argued before the Delhi High Court that many State Governments

had not been consulted; that the UPSC and other bodies had

expressed their reservations and therefore, the amendment was

illegal. The Delhi High Court observed that it cannot comment

whether the system introduced by this amendment is the best or

there could be better alternatives. It noted that the UPSC had

initially opposed the amendment. It had also noted the

reservation of the Central Police Organisation and the States that

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this would result in shortage of police officers, and Paramilitary

Forces in the State. However, the Court held that it cannot nullify

or invalidate the decision of the Government only on the ground

that it was not a very wise decision and there were better

alternatives.

6. It would also be pertinent to mention that the amended rules

were challenged before this Court in Writ Petition (Civil) No. 326

of 2012 but the same was dismissed by this Court on 27.08.2012

on the ground that the petitioners could not show how they were

adversely affected by the amendment to the rules.

7. Some police officers of the Assam Police Service filed Original

Application being O.A.No.112 of 2012 in the Central

Administrative Tribunal (for short ‘the CAT’), Guwahati Bench

challenging the amendment introducing the LCE mainly on the

grounds that no consultations had been held with the States; that

the amendment was arbitrary and unreasonable and the main

challenge was with regard to the maximum age being fixed at 35

years whereas the recommendation of the Kamal Kumar

Committee was 45 years. The CAT vide its order dated 14.09.2012

quashed the amended Rules of 2011 as being illegal, having been

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made without consulting the State Governments representing the

Assam-Meghalaya Joint Cadre Authority and also on the ground

that the promotional avenues of the State police officers stood

abridged by the amended rules and therefore, the rules were

violative of Articles 14 and 16 of the Constitution of India. This

decision of the CAT was challenged by the Union of India before

the Gauhati High Court in Writ Petition (Civil) No.4880 of 2012.

Some persons, who had appeared in the LCE also filed a writ

petition being Writ Petition (Civil) No. 5337 of 2012 challenging the

judgment of the CAT. The Gauhati High Court allowed the writ

petitions and set aside the order of the CAT and held the amended

rules to be valid.

8. It would be pertinent to mention that neither the judgment of

the Delhi High Court in Zakat Foundation nor the judgment of the

Gauhati High Court has been challenged and has thus attained

finality. However, the matter does not end here. Various petitions

were filed in different High Courts. It would also not be out of

place to mention that certain members of the armed forces

engaged on Short Service Commission were not given permission

to appear in the examination or interview on the ground that they

could not leave the armed forces before completing their tenure of

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service. They also filed writ petitions praying that they should be

permitted to appear in the examination and interview. Therefore,

the Union of India filed Transfer Petition (Civil) Nos. 272-287 of

2015 and Transfer Petition (Civil) No.1555 of 2017 praying for

transfer of 17 cases pending in different High Courts in the

country. Notice was issued for transfer of 17 cases and

proceedings before the High Courts were stayed. However, 3 cases

were not sent by the High Courts on the ground that either they

have been already disposed of or they had no concern with this

litigation. Therefore, 14 transfer petitions have been listed before

this Court for hearing. It may be mentioned that as far as

Transferred Case (Civil) No. 50 of 2017 is concerned, the matter

has already been disposed of by the Delhi High Court and,

therefore, it has become infructuous.

9. Before this Court, it took a long time to serve the

respondents and on 12.12.2017, when the matter was taken up

for hearing the following order was passed:

“Mr. Tushar Mehta, learned Additional Solicitor

General, seeks some more time for the Ministry of Home

Affairs to take a final call on the stand to be taken on

the issues raised in these cases.

We direct the Ministry of Home Affairs to finalize its

stand positively within two weeks from today.

Post these cases on 08.01.2018.

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We make it clear that depending on the decision taken

by the Ministry of Home Affairs it will be open to the

U.P.S.C. to proceed with the process, making it subject

to the result of these Transferred Cases.”

10. On 08.01.2018, the Union of India sought time to file an

affidavit. By this affidavit, filed on 12.01.2018 and affirmed by

Shri S.K. Rastogi, Deputy Secretary, Ministry of Home Affairs, the

Court was informed that after considering all aspects referred to in

the affidavit, the Union of India had taken a decision to scrap the

LCE held in the year 2012. The candidates who had appeared in

the LCE have opposed this decision of the Union of India and at

this stage, we have heard arguments only on the issue whether

the decision of the Central Government to cancel the selection

process is legal or not.

11. In support of its decision to scrap the LCE, the Union of India

has submitted that the main purpose of holding the LCE was to fill

up a large number of vacancies. According to the stand of the

Union of India, when the Kamal Kumar Committee was set up,

about 30% posts in the IPS were vacant. The year-wise tabulation

of the same is as under:

10

Year Authorised

Strength

In

position

Vacancy %

01.01.2012 3277 2536 741 22.61

01.01.2013 3277 2574 703 21.45

01.01.2014 3275 2617 658 20.09

01.01.2015 3293 2685 608 18.46

01.01.2016 3327 2744 583 17.52

01.01.2017 3356 2802 554 16.50

01.01.2018 3423 2887* 536* 15.65

*Approx

12. It has been argued by Ms. Vibha Datta Makhija, learned

senior counsel appearing for the Union of India that the

percentage of vacancies has gone down. It has also been

contended that the candidates who underwent the examination in

the year 2012 would be placed immediately be low the direct

recruit IPS officers of the same year and that subsequent

recruitments have been done both by direct recruitment and by

promotion and this may result in a lot of litigation with regard to

seniority. It is also contended that it was contemplated that the

officers recruited through the process of the LCE would be about

35 years of age but now with the passage of time even if the result

is declared, many of them may be more than 40 years of age which

will hamper their functioning in the Indian Police Service. The

main contention of the Union of India is that the petitioners have

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no legal right to be appointed and mere selection does not give

them such a right.

13. Mr. Dushyant Dave, learned senior counsel, appearing for

the persons who have appeared in the LCE, contended that even if

there is no vested legal right, the said applicants have a legitimate

expectation to be appointed. He concedes that in certain

circumstances the Government can cancel a selection process but

this cancellation can only be done when there is an overriding

public interest. His submission is that the affidavit in question

does not show any such overriding interest. Mr. R. Venkatramani,

learned senior counsel appearing for some of the LCE candidates

submitted that the Government must be fair and just and the

affidavit fails to disclose what is the public interest or the higher

purpose served by scrapping the examination. He further

submits that the reasons given by the Government in its affidavit

do not satisfy the test of overriding public interest or higher

purpose and, as such, the decision of the Government to scrap the

examination should not be accepted by this Court and the UPSC

should be directed to declare the result and the Union of India be

directed to make appointments pursuant to the result.

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14. The first issue that arises is whether the petitioners have any

vested right to claim that the result must be declared and if the

petitioners are selected, they should be appointed. This Court in

Jai Singh Dalal v. State of Haryana

1 held that merely because

the Government had sent a requisition to the UPSC to select the

candidates for appointments, did not create any vested right in the

candidate called for the interview to be appointed. It was also held

that the authority which has the power to specify the method of

recruitment must be deemed to have the power to revise and

substitute the same. The Court, however, also laid down that at

best the Government may be required to justify its action on the

touchstone of Article 14 of the Constitution. This view has been

followed in a large number of cases. In Vijay Kumar Mishra v.

High Court of Judicature at Patna

2, this Court held that there

is a distinction between selection and appointment. It was held

that a person, who is successful in the selection process, does not

acquire any right to be appointed automatically. Such a person

has no indefeasible right of appointment.

15. It is, thus, well settled that merely because a person has

been selected, does not give that person an indefeasible right of

1

1993 Supp.(2) SCC 600

2

(2016) 9 SCC 313

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claiming appointment. As far as the present cases are concerned,

results have not been declared and even the selection process is

not complete. As such, there is no manner of doubt that the

petitioners have no enforceable right to claim that the result

should be declared or that they should be appointed if found

meritorious.

16. Having held so, we must also note that the law is well settled

that even though the candidates may not have a vested right of

appointment and the State is not under any duty or obligation to

fill up the vacancies, the State has to act fairly and it cannot act in

an arbitrary manner. The decision, not to fill up the vacancies

pursuant to the selection process, must be taken bona fide and for

justifiable and appropriate reasons. In this regard, we may make

reference to the case of Shankarsan Dash v. Union of India

3.

17. On behalf of the candidates, who have appeared in the

examination, a feeble attempt was made to invoke the principle of

promissory estoppel. In our view, the said principle is not at all

applicable to the present case. It is well settled law that the

principle of promissory estoppel can only be invoked by a person

3

(1991) 3 SCC 47

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who has changed his 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 are serving in the State Police or the

Central Police Organisation or in the Army. Their position has not

been adversely affected by the selection process and therefore, the

principle of promissory estoppel is not applicable.

18. The main attack against the decision of the Government is

on the ground that the candidates had a legitimate expectation

that pursuant to the written test and interview, their result would

be declared and if found successful, they would be appointed. It is

a well settled law that even if there is no vested right, the principle

of legitimate expectation can be invoked. Legitimate expectation

arises when the citizens expect that they will be benefitted under

some policy or decision, announced by the State. At the same

time, the law is well settled that the Legislature and the Executive

can change any policy for good reasons. These good reasons must

be such which are not arbitrary, which are not mala fide and the

decision has been taken in the public interest. If the decision to

change the policy is arbitrary or capricious then it may be

struck down.

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19. Applying the aforesaid principle, we may test whether the

action of the Government in deciding to scrap the recruitment

process by the LCE is an arbitrary decision or not. The reasons

given by the Government in support of its decision are as follows:

1. percentage of vacancies has gone down;

2. the selection process has been delayed by many years which

will mean that the persons selected will be at least 5 years

older than as expected;

3. that many petitions are still pending and the matter has not

been finally decided, which could lead to further delay; and

4. it is apprehended that there would be a surfeit of litigation

between candidates, if any, appointed through LCE and

those who are recruited by direct recruitment or promotion

during the years 2012 to 2018.

20. Both Mr. Dave and Mr. Venkatramani have attacked each

ground invoked by the Union individually but we are of the view

that it is the combined effect of all the grounds which will have to

be taken into consideration. There is no manner of doubt that it

was expected that the result would be declared in the year 2013

and the officers would be sent for training in the same year. We

are in the year 2018 and some of the matters which have been

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transferred to this Court are still to be heard. It was urged that

the dispute stands decided by the Gauhati High Court and the

Delhi High Court. It may be true that these two Courts have

upheld the validity of the rules and the Union of India did not

challenge the decisions in these two cases, but we cannot lose

sight of the fact that there are various other petitions pending and

neither this Court nor the other High Courts are bound by the

decision rendered by the Gauhati High Court or the Delhi High

Court. These cases will have to be decided, if we are not to accept

the stand of the Central Government. This could delay the matter

even further.

21. The officers, who may have been selected in the year 2013 at

the 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 Central Police Organisation, but their induction or recruitment

in the IPS is delayed by more than 5 years. When the Government

laid down a policy that upper age limit was 35 years, it must have

had some reason for fixing the upper age limit. That purpose is

now defeated.

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22. We cannot be oblivious to the fact that if the Union is

compelled to make the appointments, this will lead to a plethora of

litigation where the persons recruited to the IPS between 2013 and

2018 will claim seniority over the persons, who appear in the LCE.

We are not going into the merits of the issue but, we can easily

visualise the huge amount of litigation which will in all probability

ensue, where members of the IPS would be litigating against each

other. Such litigation 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 the IPS.

23. The Union has also taken up a plea that though the fall in

vacancies, when taken numerically, may not be much but when

taken on percentage basis, there is a fairly large fall in the

vacancies. At the time when the Kamal Kumar Committee was set

up and till its report, 30% of the posts in the IPS were lying

vacant. When the rules were intr oduced, 22.61% posts were

vacant. As on 01.01.2018, 15 .65% posts are vacant and,

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

cannot accept this submission. One cannot lose sight of the fact

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that the induction through LCE is mainly limited to persons

belonging to the State Police Services and the Central Police

Organisation. Any such induction would 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 State Police

Services and the Central Police Organisation.

24. When we examine the decision taken by the Central

Government in a holistic manner, we have no doubt that the

decision to scrap the LCE recruitment has been taken in the larger

public interest. The decision is definitely not mala fide. It is not

actuated by extraneous reasons. It cannot be said that the

decision is arbitrary.

25. In view of the foregoing reasons, t he decision of the

Government to scrap the process of recruitment to the IPS through

the LCE cannot be termed to be arbitrary, discriminatory or

capricious. The decision is a reasonable one in the facts and

circumstances of the case.

26. In view of the above, all the transferred cases have been rendered

infructuous and are disposed of accordingly. Applications for

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clarification/direction as well as intervention are rejected.

Pending application(s), if any, also stand(s) disposed of.

……………………… …J.

(Madan B. Lokur)

…………………………J.

(Kurian Joseph)

…………………………J.

(Deepak Gupta)

New Delhi

April 17, 2018