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PETITIONER: A.   TRIPATHI AND ANR.  ETC.  ETC.

       Vs.

RESPONDENT: J.P. GUPTA AND ORS.  ETC.  ETC.

DATE OF JUDGMENT07/01/1993

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) KULDIP SINGH (J)

CITATION:  1993 SCR  (1)  20        1993 SCC  (1) 426  JT 1993 (1)   115        1993 SCALE  (1)21

ACT: Service  Law--Constitution of Selection Committee--U.P.  Jal Nigam--Superintendent  Engineer--Selection  for   Additional Chief  Engineer--Government  Order requiring  nomination  of expert  in Selection Committee--Nomination of  Chairman  Jal Nigam  on  Selection Committee instead of nomination  of  an Expert--Validity  of--Held in the absence of any  indication or order requiring that the expert nominated must be  expert in  the  field of Engineering--Appointment of  Chairman  Jal Nigam, having special knowledge in administrative set up  of Jal Nigam, as expert on Selection Committee was valid. Words and Phrases : ’Vishesagya’--Meaning of.

HEADNOTE: A Government Order dated December 14, 1979 provided that the Selection  Committee for the post of Chief Engineer  in  the U.P.  Jal Nigam shall, inter alia, consists of an Expert  G, working  as  Superintendent Engineer in the  Jal  Nigam  was selected  as  Additional  Chief Engineer,  Level-II  by  the Selection Committee in 1985 but was not offered appointment. In  1989  fresh  selections  were  held  by  the   Selection Committee  in  which  T and  R,  working  as  Superintendent Engineers  in the Jal Nigam, were selected and  promoted  to the post of Additional Chief Engineers.  G was not found fit by the Selection Committee. G  filed  a  Writ  Petition  in  the  Allahabad  High  Court challenging  the selections made in 1989 on the ground  that the Selection Committee was not properly constituted because instead of nominating an expert, the Chairman U.P. Jal Nigam was  nominated  as a member of the  Committee.   During  the pendency  of  the  Writ Petition the High  Court  passed  an interim  order pursuant to which T and R were reverted  from the posts of Additional Chief Engineer.  High Court  allowed the  petition and set aside the selection made in 1989,  and directed  that G be appointed on the basis of his  selection made in 1985.  Against the judgment of the High Court, T,  R and U.P. Jal Nigam filed appeals in this Court.  During  the pendency   of  the  proceedings  before  this  Court   fresh selections were made in 1992 in 21 which   T   was  selected  but  R  was  not   selected   and consequential appointments were also made.

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In appeal to this Court It was contended on behalf of T &  R that the on Committee was properly constituted because as  a long standing practice   the  chairman of the Jal Nigam  was always included as an Expert Member     of  the   Committee; besides the Chairman the Managing Director of the Jal Nigam, who was a technical expert in the field of engineering,  was also one of the members of the committee; (2) mere inclusion of a candidate’s name in the panel does not confer on him  a right to appointment; selection of G made in 1985 came to an end with the lapse of time and (3) both T and R should first be  appointed  pursuant to the selection made  in  1989  and thereafter  selections made in 1992 should be  given  effect to. On  behalf of G it was contended (1) that in the context  in which  the selection of Additional Chief Engineer is  to  be made  the expression ’Expert’ must mean technical expert  In the field concerning the Jal Nigam and accordingly the  High Court was right in holding that the Chairman U.P. Jal  Nigam cannot  be  held to be an expert; (2)  since  the  Selection Committee of 1989 was not properly constituted G, by  virtue of  his  inclusion  in  the  1985  panel  was  entitled   to appointment  before other eligible officers were  considered in 1989. On behalf of the State it was contended that the pendency of the  proceedings before this Court did not stand in the  way of  making  selections  in 1992 as  also  the  consequential appointments;  (2)  in  view of  altered  position  in  1992 because  of the selection and consequential appointments  no further directions should be given by this Court Disposing the appeals, this court HELD:     1.  In  the  absence  of  any  indication  or  any Government Order indicating that in the context of  exercise to be made by the Selection Committee to prepare a panel  of officers fit to be promoted to the post of Additional  Chief Engineer  Level-II  of  the  Jal Nigam,  the  expert  to  be nominated by the Chief Secretary to the Selection  Committee should be an expert in the field of Engineering or for  that matter  in the particular speciality of  Engineering  namely irrigation and waterways, it cannot be held that appointment of  Chairman Jal Nigam as a ’Vishesagya’ was per se  illegal and as such the 22 constitution  of  the Selection Committee  was  invalid  and selection  made by such committee is liable to be  annulled. [28E-F] 2.   Literally the expression ’Vishesagya’ in Hindi means  a person  having special knowledge.  Such expression  has  not been   explained   either   explicitly   or   by   necessary implication.   In the circumstances of the case it does  not appear   that  the  Vishesagya  to  be  nominated  in   the. Selection Committee must necessarily be a ’Vishesagya’ in  a particular  field  of speciality.  The Chairman of  the  Jal Nigam  was a person with wide experience  in  administration over the years and by virtue of his position as Chairman  of Jal Nigam, he had also special knowledge in the  administra- tive  set up of Jal Nigam.  He is, therefore, a  ’Vshesagya’ particularly from the point of view of administration. [28C- D] 3.   Since  the selection made by the Committee  constituted in  1989 Is legal and valid the panel prepared by  Selection Committee in 1985 came to an end.  Consequently it will  not be  proper  to cancel the selection of T and R made  by  the Selection  Committee constituted in 1989.  Further, in  view of the fact that the selection made by the Committee of 1985 was  not  challenged  and it is otherwise  not  illegal  and

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invalid  the life of the panel formed in 1985 had  continued till  new selection was made by the Selection  Committee  in 1989.   Consequently, it will be unjust and unfair  to  deny promotion  to G also against the available vacancy  existing in 1989. [29E, 30A-B] 4.   The  Administration  should not have acted  with  undue haste  ilk appointing persons included in the panel of  1992 before the disposal of the pending appeals before this Court or  atleast without taking leave from this Court to fill  up such  posts.  Such appointment having been made  during  the pendency of these appeals must abide by the result of  these appeals. [29F] 4.1. Accordingly,  it  is  directed  that  against  all  the available posts of Additional Chief Engineer, Level II prior to selection made by the Selection Committee constituted  in 1992, G, T and R should be considered first for  appointment by promotion to the post of Additional Chief Engineer, Level II  and  thereafter  on the basis of  the  respective  merit position in the panel recommended by the Selection Committee of  1992,  selected  candidates  should  be  considered  for appointment against the re vacancies. [30C-D] 23 4.2. In the matter of inter se seniority amongst G, T and R, G  having been included in the panel of 1985 and also  being the senior most, should get seniority and thereafter on  the basis  of.  merit  position  in the  list  prepared  by  the Selection Committee of 1989, the inter se seniority of T and R  should  be  fixed.  T and R should be  seniors  to  other persons to be appointed in terms of selection made in  1992. [30E-F] State of Haryana v. Subash Chander Marwaha & Ors., [1974]  1 S.C.R.  165;  Jatinder Kumar and Ors. v. State of  Punjab  & Haryana,  [1985]  1 S.C.R. 899 and State Bank of  India  and Ors. v. Mohd Mynuddin, A.I.R. 1987 S.C. 1889, cited.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 940 of 1992. From the Judgment and Order dated 1.5.1991 of the  Allahabad High Court in W.P. No.9066 of 1989.        WITH Civil Appeal No. 941 of 1992. Harish  N.  Salve,  S.C. Manchanda,  Sunil  K.  Jain,  Vijay Hansaria,  Ms. Sandhya Goswami, I.M. Quddusi and P.S.  Tomar for the Appellants. Manoj Swarup and Ms. Lalita Kohli for the Respondents. The Judgment of the Court was delivered by G.N.  RAY,  J.  Gupta, Tripathi and  Rizvi  are  working  as Superintendent  Engineers in the service of U.P. Jal  Nigam. Gupta  was  selected  for  the  post  of  Additional   Chief Engineer,  Level 11 by the Selection Committee in  1985  and his  name was brought on the merit list.  Unfortunately,  he was not offered the appointment and in 1989 fresh selections were  held by the Selection Committee.  Tripathi  and  Rizvi were  selected by the Selection Committee in the  year  1989 whereas  Gupta was not found fit by the Selection  Committee on the basis of his service record.  Tripathi and Rizvi were promoted  to  the  post of Additional Chief  Engineer  as  a result of their selection in the year 1989. Gupta challenged the selection made in the year 1989  before the 24 Lucknow  Bench of the Allahabad High Court by way of a  writ petition  under  Article 226 of the Constitution  of  India.

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The  main ground of attack was that the Selection  Committee was  not  validly constituted.  Gupta  also  contended  that before the fresh selection could be made in the year 1989 he was entitled to be appointed as Additional Chief Engineer on the basis of the merit list prepared in the year 1985  which was operating even in the year 1989.  The High Court allowed the writ petition, set aside the selection made in the  year 1989 and further directed that Gupta be given appointment on the basis of his selection made in the year 1985.  It may be mentioned  that  Tripathi and Rizvi were reverted  from  the posts  of Additional Chief Engineer by the interim order  of the  High  Court during the pendency of the  writ  petition. These  appeals  by Tripathi, Rizvi and U.P.  Jal  Nigam  are against the judgment of the High Court. It  is  not disputed that under the Government  order  dated December  14, 1979 the Selection Committee for the  post  of Chief Engineer was to consist of the following persons: (i)  A Secretary nominated by the Chief Secretary (ii) An Expert nominated by the Chief Secretary (iii)     Secretary Appointment Department (iv) Director General Bureau of Public Enterprises (v)  Secretary of the Department concerned. The  contention  before the High Court was that  instead  of nominating an expert on the Selection Committee the Chairman of the Jal Nigam was nominated as a member of the Committee. The  High  Court accepted the contention and set  aside  the selection  on  the ground that there was no  expert  on  the Selection Committee.  The High Court rejected the contention that  the Chairman Jal Nigam, having vast experience in  the field  of selection to various offices of Jal Nigam, was  an expert and in his presence no other expert was necessary. Mr.   Salve,  learned  Senior  counsel  appearing  for   the appellants  in Civil Appeal No. 940 of 1992 namely  Shri  A. Tripathi  and  Shri M.A. Rizvi has contended that  the  High Court  on a very flimsy ground has held that  the  Selection Committee was not properly constituted because no expert 25 was  nominated in the Selection Committee and the  Chairman, U.P.  Jal Nigam Shri Venkataramani, could not be held to  be an  expert.   He  has submitted that  nowhere  it  has  been mentioned  that  any  member not  having  expertise  in  any particular field can not be treated as an expert.  There  is no  manner of doubt that the then Chairman U.P.  Jal  Nigam, Shri  Venkataramani being a very senior I.A.S.  Officer  had wide  experience in the administration of Jal Nigam  and  by virtue  of his vast experience in the administrative set  up he was entitled to be treated as an expert.  He has  further submitted  that it was stated in the counter  affidavits  of the  State  Government and also of the Jal Nigam that  as  a long  standing practice, the Chairman of the Jal  Nigam  was always  included  as an expert member of the  Committee  and besides  the  said Chairman, the Managing  Director  of  Jal Nigam   who  had  technical  expertise  in  the   field   of engineering  was also one of the members of  the  committee. Mr.  Salve has contended that even assuming  for  argument’s sake that expert as contemplated under the Government  Order in  question should be A technical expert and not an  expert in the administrative set up, the Managing Director being  a technical  Expert was already there in the  Committee.   Mr. Salve has contended that the selection to the post of  Chief Engineer  which  is  one  of  the  very  top  posts  in  the hierarchy,  was essentially a selection on merit and not  on the basis of seniority.  For the purpose of being  selected, the  candidate must have an outstanding record all  through. It  has  been  very  specifically  stated  in  the   counter

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affidavits filed on behalf of the State Government and  also on  behalf  of the U.P. Jal Nigam that Shri  Gupta,  had  no outstanding  record and he had suffered adverse  remarks  in 1983-84,  1984-85 and 1985-86 and even prior to that he  was warned.  Adverse remark for 1985-86 was however expunged  on his  representation  but the other adverse  entries  in  the service record remained in force.  Coming to the question of his  selection  made in 1985, Mr. Salve has  contended  that such selection even if any came to an end with the lapse  of time.  He has stated that it has been persistently  followed that  the  selection list will remain in force for  about  a year.   He  has further contended that in  any  event,  such question becomes academic because though he was included  in the panel of selected candidates, the Writ Petitioner,  Sri. Gupta,  could not be given appointment in view of his  lower position in the merit list against the available  vacancies. As  subsequently a new selection list was made, in  November 1989 before he could be absorbed, the said list of 1985 had, came to an end.  Mr. Salve has contended that it was  really unfortunate that the appellants had to be 26 reverted from the post of Additional Chief Engineer Level II because of the interim order passed by the High Court in the said Writ Petition.  Mr. Salve has also stated that in  1992 when the Special Leave Petitions was pending in this  Court, a  fresh  selection  was made and seven  persons  have  been selected.  The appellant, Shri Tripathi has been included in the  said selection list but, unfortunately, Shri Rizvi  has not been included in this selection fist.  He has  submitted that  if  the Writ Petition is dismissed and  the  selection made  in  1989 is upheld, the subsequent selection  made  in 1992  cannot operate against the appellants in Civil  Appeal No. 940 of 1992, particularly the appellant Shri Rizvi.   He has submitted that both Shri Tripathi and Shri Rizvi  should first  of all be appointed pursuant to the  valid  selection made  in  1989 and thereafter against  any  other  available vacancy the effect of the subsequent selection made in  1992 should  be given.  Mr. Salve has further submitted that  the Selection Committee of 1989 was constituted by the Bureau of Public Enterprise.  Such Selection Committee was quite legal and no interference is called for against the selection made by the said Selection Committee.  He has also submitted that even for the sake of argument that the Writ Petitioner,  Sri Gupta, was entitled to get the advantage of his inclusion in the  said list of 1985 because, such list remained in  force until  subsequent valid selection was made, the  High  Court clearly  erred in directing to give the appointment  to  Sri Gupta  to  the post of Additional Chief Engineer  Level  II. Mr.  Salve has contended that merely because  a  candidate’s name  has been included in the panel such candidate  has  no right  to  claim appointment by way of  mandamus.   In  this connection,  reliance has been placed on the decisions  made by  this  Court in the cases of State of Haryana  v.  Subash Chander Marwaha and others, reported in [1974] 1 SCR 165 and Jatinder  Kumar  and others v. State of  Punjab  and  others reported in [1985] 1 SCR p.899. Mr. Salve has contended that the  direction  of the High Court to appoint  Sri  Gupta  is contrary  to the decision of this Court made in the  cut  of State Bank of India and others v. Mohd Mynuddin reported  in AIR 1987 SC 1889. The  learned  counsel  for the State of  U.P.  has  however, stated that since the Chairman  was not a technical  expert, the  consideration  of  Selection Committee  has  been  held illegal by the High Court and it has also been held that the inclusion    of    the    Managing    Director    in     the

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Committee could not cure the defect of nominating an  expert in the Committee inasmuch as such Managing Director was  not appointed  qua expert.  As the Administration was  suffering for not filling up the vacant posts of Additional Chief 27 Engineer   Level  II  the  Selection  Committee  was   again constituted in 1992 ants have been   made.    The    learned counsel  has  submitted  that  pendency  of  the  proceeding before  this  Court  did  not stand in  the  way  of  making selection  in 1992 and giving appointments pursuant to  such selection.  He has therefore, submitted that in view of  the altered  position  in  1992 because  of  the  selection  and consequential  appointments  in 1992  no  further  direction should  be given by this Court.  He has also submitted  that although there were adverse remarks in the service record of Sri Gupta but in the selection made in 1985 he was  included in the panel of selected Officers.  The learned counsel  has made it clear that the State Government or Jal Nigam has  no objection  if the Writ Petitioner, Sri Gupta, is  considered for promotion because of his earlier selection made in 1985. The  learned counsel appearing for the Writ Petitioner,  Sri Gupta has contended that the plea of long standing  practice should  not be accepted because the rules  clearly  indicate how  the Selection Committee is to be constituted.   He  has also stated that under the existing rules and the Government orders,  the penal of the selected candidates should  remain in  force until the same is exhausted or a new selection  is made. since the Selection Committee of 1989 was not properly constituted, the petitioner reminded  in the panel by virtue of his inclusion in 1985 and admittedly there     was vacancy  when the new Selection Committee was sought  to  be constitution  1989.  It was therefore a bounded duty of  the authorities  of the Jal Nigamand the State of U.P.  to  give appointment  to the writ petitioner, Sri Gupta, to the  post of  Additional  Chief  Engineer,  Level  II  before   making exercise of considering the cases of other eligible officers against  available  vacancies by  constituting  a  Selection Committee.   The learned counsel has submitted that  a  just claim  of  Sri  Gupta,  should  not  be  frustrated  by  any approach. He has submitted that the selection to the Post of Additional   Chief  Engineer Level II in the Jal  Nigam  was meant  to select proper persons having sufficient  technical expertise  to  Man a high Post in the  hierarchy.   In  such circumstances,  the expert to be nominated in the  Selection Committee  must be a person having technical  expertise  and not  expertise  in  any  other field  or  in  the  field  of administration.   In the context in which the  selection  of Additional   Chief  Engineer  Level  is  to  be  made,   the expression ’expert’ must mean technical expert in the  field the  Jal  Nigam.  In the aforesaid circumstances,  the  High Court  has  correctly read the expression ’expert’  and  has held that the 28 Chairman,  U.P. Jal Nigam cannot be held to be an expert  as contemplated in the rules.  The learned counsel has  further contended that if the statutory rule indicates the manner in which  the  Selection  Committee must  be  constituted,  any departure  from such manner must be held to be  illegal  and void.  The mere fact that the Managing Director was also one of  the members of the Selection Committee having  technical expertise, his inclusion in the Committee could not cure the defect because admittedly the said Managing Director was not nominated  by the Chief Secretary, Government of U.P. as  an ’expert member’ in the Committee. After  considering the facts and circumstances of  the  case

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and  the submissions of the learned counsels  appearing  for the parties it does not appear to us that ’Vishesagya’ to be nominated  in the Selection Committee must necessarily be  a ’Vishesagya’  in  a particular field  of  speciality.   Such expression  has not been explained either explicitly  or  by necessary    implication.     Literally    the    expression ’Vishesagya’   in  Hindi  means  a  person  having   special knowledge  ’Vishes’  means special and ’Agya’  means  person having knowledge.  Mr. Venkataramani was a person with  wide experience in administration over the years and by virtue of his  position as Chairman of Jal Nigam, he had also  special knowledge in the administrative set up of Jal Nigam.  He is, therefore,  a  ’Vishesagya’ particularly from the  point  of view of administration.  In the absence of any indication or any Government Order placed before us that in the context of exercise to be made _by the Selection Committee to prepare a panel  of  Officers  fit  to be  promoted  to  the  post  of Additional  Chief  Engineer Level 11 of the Jal  Nigam,  the expert  to  be  nominated  by the  Chief  Secretary  to  the Selection  Committee  should be an expert in  the  field  of Engineering or for that matter in the particular  speciality of Engineering namely irrigation and waterways, it cannot be held that appointment of Mr. Venktaramani as a  ’Vishesagya’ was  per  se  illegal and as such the  constitution  of  the Selection  Committee was invalid and selection made by  such committee  is liable to be annulled.  Since the exercise  to be  made by the Selection Committee is to find out  suitable persons  to  be  promoted to the post  of  Additional  Chief Engineer  Level  II,  it is  reasonably  expected  that  the Committee  should  be  constituted in  such  a  manner  that technical expertise of the selected candidates in the  field of operation to which their services will be required may be reasonably  assessed.   It is quite likely  that  since  the Managing   Director  of  the  Jal  Nigam  having   technical expertise  in the field of engineering was included  in  the Committee, the Chairman who is also an expert in general ad- 29 ministration  was appointed in the, committee as  an  expert member.    The  Additional  Chief  Engineer  is   reasonably expected  to  look  after administrative set  up  under  its control besides the technical works involved in the field of his  activities.   It has been specifically  stated  in  the counter affidavits of the State of Uttar Pradesh and the Jal Nigam  that  the  Chairman  of the  Jal  Nigam  was  earlier appointed  as an expert member in the  Selection  Committee. The  Selection  Committee  of 1989 was  constituted  by  the Bureau of Public Enterprise.  This high power committee  has made all the exercises to select officers to be included  in the  panel and on such selection, recommendations were  made to  the State Government and the State Government  has  also approved the panel.  No other officer coming in the zone  of consideration  except  the Writ Petitioner  Sri  Gupta,  has challenged  the constitution of the Selection Committee  and the  validity of the panel of the selected  officers.   Such challenge  has been made just at the nick of time  when  the selected  officers  were going to be appointed  pursuant  to their  merit positions in the selection list.  But  for  the Writ proceedings, and interim order passed therein, both Sri Tripathi  and Sri Rizvi, would have got the appointments  in the  post of Additional Chief Engineer Level II,  and  would have continued in such post.  As a matter of fact, they  had been  given  appointments to the post  of  Additional  Chief Engineer but in view of the interim order passed in the Writ proceedings such order were recalled and they were  reverted to the post of Superintending Engineer.  In the facts of the

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case,  we do not think that it will be proper to cancel  the selection  of Sri Tripathi and Sri Rizvi, made by  Selection Committee constituted in 1989.  Since the selection made  by the  Committee  constituted in 1989 is legal and  valid  the panel  prepared  by Selection Committee in 1985 came  to  an end.   It also appears to us that the Administration  should not  have  acted  with undue  haste  in  appointing  persons included  in the panel of selected officers on the basis  of recommendations made by the Selection Committee  constituted in  1992 before the disposal of the pending  appeals  before this  Court or atleast without taking leave from this  Court to  fill up such posts.  Such appointments having been  made during  the  pendency  of these appeals must  abide  by  the result of these appeals.  It however appears to us that  Sri Gupta was included in the list of selected officers in  1985 and  if diligent steps had been taken to fill  up  available vacancies on the basis of merit positions in the select list of  1989,  Sri Gupta should have been absorbed  even  before exercise  of selecting suitable officers fit  for  promotion was made by the Selection Committee of 1989. 30 Admittedly there were vacancies available in 1989 when  such exercise was made.  Since selection made by the Committee of 1985  was not challenged and it is no body’s case that  such selection is otherwise illegal and invalid, we are  inclined to  hold by accepting the contention of the learned  counsel of  Sri Gupta that the life of the panel formed in 1985  had continued  till  now  selection was made  by  the  Selection Committee in 1989. Consequently,  it appears to us that it will be  unjust  and unfair  to  deny  promotion  to Sri Gupta  to  the  post  of Additional  Chief  Engineer,  Level II  of  U.P.  Jal  Nigam against   the  available  vacancy  existing  in  1989.    We therefore,  direct that against all the available  posts  of Additional Chief Engineer, Level 11 prior to selection  made by  the  Selection Committee constituted in  1992  the  Writ Petitioner Sri Gupta and appellants in Civil Appeal No.  940 of  1992  namely  Sri  Tripathi  and  Sri  Rizvi  should  be considered first for appointment by promotion to the post of Additional  Chief Engineer, Level II of U.P. Jal  Nigam  and thereafter on the basis of the respective merit position  in the  panel recommended by the Selection Committee  of  1992, selected candidates should be considered for appointment  to the  said  post  of Additional Chief  Engineer  against  the remaining vacancies.  In the absence of any challenge  about the  validity of the Constitution of Selection Committee  of 1992  and  selection made by it, we assume  that  the  panel prepared  by  such Committee and approved by  the  concerned authority  is  a  valid panel.  In the matter  of  inter  se seniority amongst Sri Gupta, Sri Tripathi and Sri Raizvi Sri Gupta  having  been included in the panel of 1985  and  also being  the senior most, should get seniority and  thereafter on  the basis of merit position in the list prepared by  the Selection  Committee of 1989, the inter se seniority of  Sri Tripathi and Sri Rizvi should be fixed.  By way of  abundant caution  it  is made clear that Sri Tripathi and  Sri  Rizvi should be seniors to other persons to be appointed in  terms of selection made in 1992. The appeals are accordingly disposed of without any order as to cost. T.N.A.                               Appeals disposed of. 31