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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: CHOTHIA (H.P.) AND ORS.  ETC.  ETC.

DATE OF JUDGMENT07/04/1978

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA SINGH, JASWANT

CITATION:  1978 AIR 1214            1978 SCR  (3) 652  1978 SCC  (2) 586  CITATOR INFO :  E D        1987 SC 593  (10,26,27)  RF         1988 SC 535  (1,11,15,16,37)

ACT: Indian  Forest Service (Initial Recruitment)  Regulation  of 1966,  Regulation  5, interpretation of-Whether or  not  the provisions  of  Regulation 5(2)(b) mandatory  in  character- Affidavit  in  support of a contention must be by  a  person competent to certify.

HEADNOTE: Respondent No. 1 was selected for Superior Forest Service of the Government of Saurashtra in the year 1951.  On 9-4-1958, he was appointed as Assistant Conservator of Forests,  Class 111.   Sometime  in  August  1959,  Respondent  No.  1   was appointed as Deputy Conservator of Forests, consequent  upon the  merger of Saurashtra with Greater Bombay.  On 1st  May, 1956, he was allotted to the newly created State of  Gujarat and  appointed  as  Deputy Conservator of  Forests.   A  new service called the Indian Forests Service was established in 1966  and  Indian Forests Service Rules were made  in  1966. Respondent No. I was one of the candidates to be  considered for  initial recruitment to the Indian Forests Service  from the State cadre.  The Selection Board did not recommend  the selection  of  Respondent No. 1 and other  respondents  were selected.   Respondent No. 1, filed a writ petition  in  the High Court of Gujarat.  The High Court held that  Regulation 5(2) (b) of the Indian Forests Service (Initial Recruitment) Regulations,  1966 is mandatory and as the  Selection  Board did  not  give reasons as enjoined by  this  provision,  the selection  made by the Board was illegal.  The selection  as well as the Notification dated January 7, 1972 were  quashed accordingly. Dismissing the appeals, by special leave the Court HELD : 1. The provisions of Regulation 5(2)(b) of the Indian Forests Service (Initial Recruitment) Regulations 1966.  are mandatory  in  character and whenever the  Board  sends  the records  to  the  Commission it must  give  its  reasons  as required by S. 5(2)(b) of the Regulation. [65G-H]               2.    (a)  Regulation 5 manifestly shows  that               the   provision   required   three   essential               conditions to be complied with -

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             (i)   that the Board shall prepare in order of               preference  a  list of officers of  the  State               Forest  Service in accordance with  Regulation               4;               (ii)  that the Board must adjudge persons whom               it thinks suitable for the appointment to  the               posts;               (iii) that the Board shall send the records of               eligible  officers  of the State who  are  not               adjudged  as  suitable together  with  reasons               recorded by the Board. [655 A-C] (b)  The words "shall than be referred to the Commission for advice  by  the  Central Government along  with"  are  of  a mandatory  character and govern not only clause (a) but  all the  other  clauses  viz.  (b)  and  (c).   The  requirement mentioned in clauses (a), (b) and (c). must be complied with before the recommendation is sent to the Commission.  [655C- D] (c)  Clause (b) of Regulation 5(2) is in public interest and has  been made with a view to avoid arbitrary or  capricious exercise of discretion by the Board and also to prevent  any hostile  discrimination.   Clause (b)  clearly  states  that where eligible officers of the State Forest Service are  not found suitable, reasons must be given by the Board for their non-inclusion in the select list. [655D] 653 K.   G.  Vasudevan v. State of Kerala (Unreported  case  No. O.P. 2910/72 dated  1-10-1975)  of the Kerala  High  Court); over-ruled. (d)  The word "adjudge" is a very strong term and  indicates that  the  Board   must be satisfied that a  person  is  not suitable  and  the requirement for giving reasons  has  been enjoined  for the purpose of proving that the Board was  not ,only satisfied but has given grounds of its satisfaction so as  to  exclude  possibility of any  oblique  or  extraneous considerations.  The Commission would also, be in a position to  know  the views of the Selection Board and  the  reasons given by it for excluding a particular candidate so that  it may  verify  the correctness ,of the reasons  given  by  the Board  with the record forwarded by the Board.   Perusal  by the  Board  of  the  confidential  rolls  of  officers   and forwarding the ,record to the commission is not  substantial compliance  with  the  provisions  of  Regulation   5(2)(b). Regulation 5(2)(b) is not an idle formality. [655 C-F] 3.   In the instant case, the deponent in the affidavit, not being  a  member  of the Selection Board,  was  not  at  all competent to certify as to what was the reason given by  the Board,  as  required by Regulation 5(2) (b), nor  could  the affidavit supply an omission made by the selection Board  is not  complying  with  the mandate  contained  in  Regulation 5(2)(b). [656 D-E]

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeal Nos.  1329-1330 of 1977. Appeal  by Special Leave from the Judgment and  Order  dated 18-3-1977 and 29-4-1977 of the Gujarat High Court in Special Civil Appeal Nos. 1080/72 and L.P.A. No. 106/77. R.   P. Bhatt and Girish Chandra for the Appellant. R.   S.  Gae,  P. H. Parekh, (Mrs.) Manju Sharma and  C.  B. Singh for Rcspondent No. 1 in C.A. No. 1329/77. The Judgment of the Court was delivered by FAZAL  ALI, J.-These appeals by Special leave  are  directed

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against  the Judgment of the division Bench of  the  Gujarat High  Court dated- 18th March, 1977 by which  writ  petition filed  by  respondent  No. I was allowed  and  the  impugned selection  made by the Selection Board was quashed as  also the notification dated January 7, 1972. The  facts  have been detailed in the Judgment of  the  High Court  and it is not necessary to repeat the same  all  over again.  Suffice it to say that Respondent No. I was selected for Superior Forest Service of the Government of  Saurashtra in  the  year  1951.   On  9-4-1958,  be  was  appointed  as Assistant  Conservator of Forests, Class III.  Sometimes  in August,  1959,  Respondent  No. 1 was  appointed  as  Deputy Conservator  of  Forests  consequent  upon  the  merger   of Saurashtra with Greater Bombay.  On 1st May, 1960 the  State of Gujarat was created and Respondent No. 1 was allotted  to the  Gujarat  Cadre and appointed as Deputy  Conservator  of Forests.   Sometimes  after  in the  year  1966,  there  was amendment  in  the  All India Service Act  by  which  a  new service  called the Indian Forests Service  was  established and Indian Forests Service Rules were made in 1966.  In  the instant case, we are only concerned with the  interpretation of  the Regulation 5 of the Indian Forest  Service  (Initial Recruitment) Regulation of 1966. 654 Respondent No. 1 was one of the candidates to be  considered for  initial recruitment to the Indian Forest  Service  from the  State Cadre.  It appears that the Selection  Board  did not  recommend the selection of Respondent No. 1  and  other respondents  were  selected.  Respondent No.  1,  therefore, filed  writ  petition  in  the High  Court  of  Gujarat  for quashing the selection made by the Selection Board. The sole point that was urged before the High Court was that the   mandatory  provisions  of  Regulation  5   dated   1st September,  1966 as amended uptodate had been violated  and, therefore, the selection made by the Board was illegal.  The High  Court accepted the plea taken by Respondent No. 1  and allowed the writ petition as indicated above.  The Union  of India  obtained special leave of this Court and  hence  this appeal before us. The  short point which falls for determination in this  case is  as to whether or not the provisions of the Regulation  5 (2) (b) of the Indian Forests Service (Initial  Recruitment) Regulations,   1966   (hereinafter  referred   to   as   the Regulations)  are  mandatory in character.  The  High  Court held  that  Regulation  5(2) (b) is  mandatory  and  as  the Selection  Board  did not give reasons as enjoined  by  this provision,  the  selection made by the  Board  was  illegal. Appearing in support of the appeal,.  Mr. Bhatt submitted in the  first  place  that  the  Regulation  does  not  contain mandatory requirements for giving reasons by the Board  when it submits its recommendations to the Commission.  Secondly, it was submitted that the Selection Board on perusal of  the confidential  rolls  of the Respondent No. I  was  satisfied that  he  was not a suitable person to be recruited  to  the service   and  he  was,  therefore,  ignored.   The   Board, therefore, did not commit any error of law in not  selecting respondent  no. 1. Reliance has been placed by  the  Counsel for  the Appellant on an unreported decision of  the  Kerala High Court which has been annexed to the paper book.  In our opinion,  the interpretation of Regulation 5(2)(b) does  not present   any  difficulty  at  all.   Relevant  portion   of Regulation 5 may be extracted thus:-               "5. Preparation of list of suitable officers.               1.    The Board shall prepare, in the order of               preference,  a list of such officers of  State

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             Forest  Service  who  satisfy  the  conditions               specified in Regulation 4 and who are adjudged               by the Board suitable for appointment to posts               in the senior and junior scales of service.               2.    The Est prepared in accordance with sub-               regulation  (1) shall then be referred to  the               Commission   for   advice,  by   the   Central               Government alongwith               (a)   the  records  of all officers  of  State               Forest Servicer included in the list;               (b)   the  records  of  all   other   eligible               officers  of the State Forest Service who  are               not  adjudged  suitable for inclusion  in  the               list, together with the-               655               reasons  as  recorded by the Board  for  their               non-inclusion in the list"               (Emphasis ours) A  perusal  of  Regulation  5  manifestly  shows  that   the provision requires three essential conditions to be complied with :-               (i)   that the Board shall prepare in order of               preferance  a list of officers. of  the  State               Forest  Service in accordance with  Regulation               4;               (ii)  that the Board must adjudge persons whom               it thinks suitable for the appointment to  the               posts;               (iii) that the Board shall send the records of               eligible  officers  of the State who  are  not               adjudged  as  suitable together  with  reasons               recorded by the Board. The  words  "shall then be referred to  the  Commission  for advice, by the Central Government alongwith" appear to be of a  mandatory character and govern not only cl. (a)  but  all the  other  clauses  viz.  (b)  and  (c).   Thus,  a   plain interpretation   of  regulation  5  would  show   that   the requirements  mentioned  in cls. (a), (b) and  (c)  must  be complied  with  before  the recommendation is  sent  to  the Commission.   Cl.  (b) clearly states  that  where  eligible officers of the State Forest Service are not found suitable, reasons  must be given by the Board for their  non-inclusion in  the select list. This provision, in our opinion  is  in public  interest  and  has been made with a  view  to  avoid arbitrary or capricious exercise of discretion by the Board, and  also to prevent any hostile discrimination.   The  word ’adjudge’ is a very strong term and indicates that the Board must  be  satisfied that a person is not  suitable  and  the requirement  for giving reasons, has been enjoined  for  the purpose of proving that the Board was not only satisfied but has  given  grounds  of its satisfaction so  as  to  exclude possibility of any oblique or extraneous consideration.   In these circumstances, therefore, we are unable to agree  with the counsel for the appellant that the requirement of giving reasons as contained in Regulation 5(2)(b) is merely an idle formality  and it is a substantial compliance with the  said clause  if  the  Board peruses  the  confidential  rolls  of officers and forwards the record to the Commission.  Another purpose served by the provision is that the Commission would be  in a position to know the views of the  Selection  Board and  the  reasons  given by it for  excluding  a  particular candidate  so  that  it may verify the  correctness  of  the reasons given by the Board with the record forwarded by  the Board.   In  these circumstances we are satisfied  that  the provisions  for giving reasons by Regulation 5 (2)  (b)  are

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mandatory and must be complied with.  It is not disputed  in the  present case that the Board had not complied with  this part  of  the  provision  of  Regulation  5  and  this   was sufficient to vitiate the selection made by the Board’.  Mr. Bhatt,  relied on an unreported decision of the Kerala  High Court where, in a very summary fashion, the said High  Court has held that there was no requirement 656 in  the  Regulation that reasons should be given.   In  this connection, the High Court of Kerala observed as follows :-               "It  is to be observed that there is  no  such               requirement  in  the Rules with which  we  are               concerned in the instant case.  Being so,  it               would be inappropriate to import any  require-               ment of recording of reasons-for selection  in               this  case." (Vide K. G. Vasudevan vs.   State               of Kerala & Ors. 0 P 2910/72 dt. 1-10-75) The  High Court does not appear to have applied its mind  to the language used in S. 5 (2) (b) of the Regulation, nor has it considered the avowed purpose of this provision which  is undoubtedly  in  public interest.  In  these  circumstances, therefore,  we  find ourself unable to agree with  the  view taken by the Kerala High Court on this point and we overrule the same. Lastly,  Mr.  Bhatt  submitted that in view  of  the  reply- affidavit  filed  by Mr. Bhardwaj, Deputy Secretary  to  the Government  of India, it would appear that the reasons  were given by the Board which were that the service record of the respondent did not justify the inclusion of his name in  the select  list.  In the first place, the affidavit appears  to have  been  given by a person who was not a  member  of  the Selection  Board  and as the recommendation was  by  a  non- speaking  order lie would not at all be conversant with  the manner  in  which the recommendation was made  ignoring  the Respondent  No.  1. Nor had he any knowledge of the  way  in which  the mind of the Board was working at that time.   The deponent, therefore, was not at all competent to certify  as to  what  was the reason given by the Board as  required  by Regulation  5  (2)  (b) nor could the  affidavit  supply  an omission  made by the Selection Board in not complying  with the  mandate contained in Regulation 5 (2)  (b).   Secondly, the  affidavit  is obtuse because according  to  the  Deputy Secretary,  there was no obligation placed on the  Selection Board  to  give  reasons for the supersession  of  the  said Forest Service Officers.  This view as we have pointed  out, is absolutely incorrect and is not borne out by the language of the provision of Regulation 5. Apart from this, the  High Court  has  pointed out in its judgment at page  31  of  the brief  that  the  Court  bad given  an  opportunity  to  the appellant to produce the records before it so as to find out if the confidential records of the Respondent No. I did  not justify  the  selection.  The appellant did  not  choose  to avail of the opportunity given to it by the High Court which clearly indicates that the position was somewhat obscure. For  these  reasons, we find ourself in  complete  agreement with  the judgment of the High Court and endorse  the  same. We  are  clearly  of  the opinion  that  the  provisions  of Regulation  5(2) (b) are mandatory in character and  whether the Board sends the records to the Commission, it must  give its  reasons as required by s. 5 (2) (b) of the  Regulation. The  result is that the appeals fail and are dismissed  with costs to Respondent No. I only in civil Appeal No. 1329/77. S. R.                         Appeal dismissed. 657

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