By Our Correspondent
NEW DELHI/BHUBANESWAR: Justice Joymalya Bagchi said Whatever is not… consulted before sending the integrity certificate. Later on, you got a letter. You could have always forwarded it. But whether that letter is sufficient to withdraw an integrity certificate…
SG Tushar Mehta: According to our understanding, the UPSC guidelines permit us to send Level 16 plus potential Level 15 officers who are likely to become Level 16, for two reasons. I am repeating, kindly pardon me.
If you don’t find anyone suitable among the first three, sometimes someone is senior only because he was born earlier, but he may not have much to his credit as a police officer who can lead the police force. If they find that the first three are not suitable, then we can say that these are the other potential candidates. They are on the verge of crossing that line.
Accepting 2A and 2B otherwise would amount to rewriting 2A and 2B. The State has the power to send both together. That is my respectful submission.
SG Tushar Mehta: Forget this item for a while. Please appreciate, in a small State or even in a big State, it is not necessary always to impute bad faith to the administration.
Suppose, in a given case, they feel that we have two people who are Level 16, but they may not be able to satisfy the muster of the UPSC. UPSC sends it back, I send it again, and there is a time gap. As an option, I am saying these Level 15 officers are also available. This is the pool available. You cross that pool if you do not find anyone suitable under the first part of 2B.
Justice Bagchi: Then it is only a matter of semantics. The best manner to read it in your favour is to read 2A with force.
SG Tushar Mehta: Yes. The panel is what the UPSC will send to me.
Bench: UPSC will send you a panel of not exceeding three.
SG Tushar Mehta: Yes.
Justice Bagchi: What we are saying is that while sending names under 2A, if your State Government has more than three officers in Level 16, their names should be sent under 2A.
But there may be a State, let us say one of the smallest States, where there are only two Level 16 officers, one DGP and another in an equivalent ex-cadre post. There are only two.
The entire scheme of these guidelines is that a panel of not exceeding three officers can be sent. Therefore, you must ensure that your zone of consideration comprises at least three officers. Otherwise, how will it happen?
If you have only two Level 16 officers, the State may justify adding one Level 15 officer and say that officer should also be considered because we don’t have any more Level 16 officers. In a given situation, that can happen.
Adv Prashant Bhushan: if you see…
SG Tushar Mehta: Now the public spirit has arisen again. Yesterday I was reading the Jharkhand brief. Why did this public spirit not arise in Jharkhand? I am coming to that after this. One day before retirement, twice, the person is promoted. Why?
Because the public interest of your friends is selective. The Central Government has filed an application in Jharkhand because public spirit has been selective.
You filed this case in 1996. Judgment came in 2006, and despite that, now 20 years after that judgment, State Governments are making a mess of that.
Justice Bagchi: What the Solicitor is, in all probability, saying lightly is that you should have been the applicant in Jharkhand.
SG Tushar Mehta: Yes. You can’t be selectively public-spirited.
In Nagaland, exactly this situation which the Court is indicating arose. This Court said even one officer can be sent.
Bench: Because the rule itself says “not less than three”. So it caps it at three…
SG Tushar Mehta: More than three is capped at the upper limit, but it says that in exceptional cases less than three can be sent, with reasons assigned.So we will have to examine, as the Court indicated, the chronology of 2A and 2B in light of Rule 4. When does 2B come into the picture?
Bench: When 2A is exhausted.
SG Tushar Mehta: Yes.
Justice Baghchi: Yes, we understand what you are saying. What you may have done is, under Clause 5(xii), come back to us and say: “Sir, we are sending merely three names. Now we have got this letter from CBI. In the meantime, we have got two promotions.”
SG Tushar Mehta: That is the second point. I am coming to that.In view of the fact that the Central Government permitted us to promote two people from Level 15 to Level 16, who would have been Level 16 on the date of occurrence of vacancy, I was justified, maybe not justified in the subsequent names, but justified in sending two more names. That is my submission. The rest would be repetition.
SG: So far as the integrity certificate is concerned, I took instructions. There are two kinds of certificates contemplated in service law. One is an integrity certificate and the other is vigilance clearance. In the case of vigilance clearance, it is not merely the filing of an FIR, but a chargesheet or cognizance being taken by a court.
But an integrity certificate, whether it satisfies the Court or not, is a view the Court will take. In an integrity certificate, the State can always say there is something and this officer is under a cloud.
Of course, we did not say that when we sent it in May 2026. But in August 2026…Justice Baghchi: There is nothing in the material of the CBI to show that even on that day he was declared as an accused in an FIR. It was a very contemplative situation where something may develop in future. An inquiry is being examined.
Now in this case if we agreed to a wide-sweeping discretionary power in an integrity certificate by the State, it can
SG: even be misused. I can go to that extent. It can be misused.
