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PETITIONER: UNION OF INDIA & ANR.

       Vs.

RESPONDENT: SAMAR SINGH & ORS.

DATE OF JUDGMENT:       08/10/1996

BENCH: S.C. AGRAWAL, S.C. SEN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S. C. AGRAWAL, J. :      Special leave granted.      This appeal  is directed  against the  judgment of  the Central Administrative  Tribunal, Principal Bench, New Delhi (hereinafter referred  to as  ‘the Tribunal’). It relates to empanelment and  appointment on the post of Secretary to the Government of  India or  equivalent post.  Respondent No.  1 (hereinafter referred  to as the respondent’) is a member of the Indian Administrative Service (I.A.S.) belonging to 1962 batch. In  February  1990  he  was  promoted  as  Additional Secretary. In  1993 a  Special Committee  consisting of  the Cabinet Secretary,  the Principal  Secretary  to  the  prime Minister and  the Home  Secretary prepared a panel of I.A.S. officers of  1962   batch for  appointment as Secretaries to the Government  of India  or equivalent post. The said panel was considered  by the Appointments Committee of the Cabinet (for short‘ACC’) of the Government of India and appointments were made  on the  posts of  Secretaries in  March 1993. The respondent was not empanelled and hence he was not appointed as Secretary. Feeling aggrieved by the said nonconclusion in the panel, he filed a petition (O.A. No. 539 of 1994) before the Tribunal  which  has  been  allowed  by    the  impugned judgment dated  May 14, 1996. The Tribunal has declared that the action  of the  appellants in  Omitting the  name of the respondent from  the panel  prepared for  appointment to the post of  Secretary to  the Government of India or equivalent post without  proper consideration of his case is arbitrary, unsustainable and  void and  has directed  the appellants to consider the  suitability of  the respondent for empanelment and appointment  on the post of Secretary to  the Government of India  or equivalent  post afresh as on the date on which respondents  Nos.   2  to  10  herein  were  considered  for empanelment after  taking into  account Annual  Confidential Reports (ACRs) of the respondent for the relevant period and other relevant  facts and  materials in  the  light  of  the guidelines contained in paragraph 14 of the Central Staffing Scheme   and, if  on such  consideration the  respondent  is found suitable,  the Tribunal has directed the appellants to consider his appointment on one such post.

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    The Central staffing Scheme, as contained in the Office Memorandum dated  July 15,  1992 issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions (Department  of   Personnel  &   Training),  prescribes  the procedure for  selection  for  appointment  of  officers  to Secretarial posts  of and  above the rank of Under Secretary to  the   Government  of  India  and  to  certain  important nonsecretarial  posts.  Paragraph  14  of  the  said  Scheme relates  to   the  posts   of  Additional  secretary/Special Secretary/Secretary and reads as under:-      "14. Selection for inclusion on the      panel of officers adjudged suitable      for appointment  to  the  posts  of      Additional  Secretary   or  Special      secretary/Secretary     to      the      Government  of   India  and   Posts      equivalent   thereto,    will    be      approved by the ACC on the basis of      proposals submitted  by the Cabinet      Secretary.  In   this   task,   the      Cabinet Secretary  may be  assisted      by   a    Special   Committee    of      Secretaries    for    drawing    up      proposals for  the consideration of      ACC. As  far as possible, panels of      suitable officers  will be drawn up      on an  annual basis considering all      officers of  a particular  year  of      allotment from one service together      as  a   group.  Inclusion  in  such      panels will  be through the process      of strict  selection and evaluation      of   such   qualities   as   merit,      competence, leadership  and a flair      for participating  in  the  policy-      making  process.   Posts  at  these      levels   at   the   Center   filled      according to  the Central  Staffing      Scheme are  not to be considered as      posts   for   the   betterment   of      promotion prospects of any service.      The needs of the Central Government      would     be      the     paramount      consideration.  While   due  regard      would  be   given   to   seniority,      filling up  of  any  specific  post      would be based on merit, competence      and the specific suitability of the      officer for a particular vacancy in      the Central Government."      Before the  Tribunal the  respondent assailed  his non- selection on the following grounds:-      (i)  the Special  committee has not been constituted in           accordance with  the provisions  contained in  the           Central Staffing  Scheme inasmuch  as one  of  the           members,  namely,   Shri  A.N.   Varma,  Principal           Secretary to  the prime  Minister, being a retired           secretary to the Government of India, could not be           legally appointed as members of the Committee;      (ii) the  selection made  by the  Special Committee  is           vitiated because  officers  junior  to  respondent           have been empanelled overlooking the seniority and           merit of the respondent; and      (iii)as  the   respondent  had   been  empanelled   and           appointed  as   Additional  secretary   the   non-

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         inclusion of  the respondent  in the panel amounts           to a colourable exercise of power and was a result           of taking  into consideration  matters  which  are           extraneous and  the selection is vitiated by legal           mala fides.      None  of   these  contentions  found  favour  with  the Tribunal. The  Tribunal held that the principal Secretary to the prime  Minister appointed  by the Government of India is also a  Secretary   discharging governmental  functions  and there is nothing in the Central Staffing Scheme to show that a serving  Secretary alone  can function  as a member of the special committee.  The Tribunal  also held  that under  the Central  Staffing   Scheme  appointment   to  the  posts  of Additional secretary/Special  Secretary and Secretary to the Government of  India  and  equivalent  post  are  filled  on deputation basis  on consideration  of the  various  factors mentioned in  the said Scheme and such appointment is not by way of  promotion but  by way  of appointment  after  strict selection and  evaluation of  such qualifications  as merit, competence, leadership  and flair  for participation  in the policy making  process and  that the paramount consideration in  making   the  selection  is  the  need  of  the  Central Government  and  that  it  is  incorrect  to  say  that  the seniority   must be  the determining  factor for empanelment and appointment  to the  post of Secretary to the Government of  India.  The  Tribunal  has  further  found  that  though respondent  has   alleged  in   his  application   that  the proceedings were  vitiated by   mala  fides, it has not been stated anywhere  in the  application that  any  one  of  the members of  the Committee  of the Special Secretaries or the Cabinet secretary  or  the  Appointments  committee  of  the Cabinet has  any special reason to be prejudiced against him and that  the allegation  that some  of the officers who had completed the  tenure of  their deputation  were allowed  to continue as  Additional secretaries  and have been appointed as secretaries  to the  Government of  India on the basis of the panel  does not  amount to  an allegation  of mala fides since allowing  any officer to continue beyond the period of tenure of  deputation has nothing to  do with the process of selection and  empanelment. The  tribunal has  observed that even  if   the  respondent   had  excellent  service  record throughout his  career and  even  though  he  is  senior  to respondents Nos.  2 to 10, if the Cabinet Secretary with the assistance rendered  to him  by the Special committee of the Secretaries  did   not  find  the  respondent  suitable  for inclusion in  the panel  and found  respondents Nos.2  to 10 suitable for  such inclusion,  it is  not possible  to infer legal mala  fides if  the case  of the  respondent had  been properly considered. The Tribunal was of the view that since there is  no reason  to assume  that the  preparation of the panel by  the Cabinet Secretary assisted by the Committee of Special secretaries  was not  done properly,  it  could  not accede to  the prayer  of the respondent to call for records of proceedings and the ACRs of the respondent as also of the officers who have been selected and empanelled and to make a comparative evaluation  of merits.  The  Tribunal,  however, perused the  selection   file and the ACRs of the respondent with a  view to  see whether  the respondent  has been  duly considered for empanelment in accordance with the guidelines contained in   paragraph  14 of the Central Staffing Scheme. On a  perusal of  the said  ACRs the Tribunal has found that after his  promotion on  the post of Additional Secretary in 1990 the  respondent had  earned outstanding  entries in the ACRs and excellent commendation from the Ministers concerned throughout. The Tribunal has also referred to the Minutes of

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the meeting of the Special committee of the Secretaries held on December  22, 1992  for the purpose of drawing up  of the panel for  holding the post of Secretary and equivalent post and has  pointed out  that   in the  said Minutes nothing is seen to   be stated about the suitability or non-suitability of  the   respondent.  According   to  the  Tribunal,  while empanelment is  on the  basis of strict selection though the reason for  non-inclusion in the panel need not be intimated to the  officer concerned,  the selection proceedings should indicate as  to how  a senior  member of the service did not deserve to  be included in the panel. Since there is nothing to indicate  in the  Minutes of  the  Special  committee  of secretaries or  in the  file  relating  to  the  empanelment anywhere that  there has  been an application of mind to the merits of  the respondent  and  his  suitability  for  being appointed to  the post  of Secretary  to the  Government  of India or  equivalent post,  the decision  was taken  without application  of  mind  and  thus  arbitrary.  The  Tribunal, therefore, gave the direction referred to above.      In the  matter of  judicial review  of a  selection for appointment on  a particular post the law is well-settled by the decisions  of this Court. In Dalpat Abasahed Solunke and Other V.  Dr. B.S.  Mahajan and Others, 1990 (1) SCC 305, it has been laid down :-      It is needless to emphasise that it      is not the function of the court to      hear appeals  over the decisions of      the  Selection  Committees  and  to      scrutinize the  relative merits  of      the candidates. Whether a candidate      is fit for a particular post or not      has  to  be  decided  by  the  duly      constituted   Selection   committee      which  has  the  expertise  on  the      subject.  The  court  has  no  such      expertise.  The   decision  of  the      selection    committee    can    be      interfered  with  only  on  limited      grounds,  such   as  illegality  or      patent  material   irregularity  in      the constitution  of the  Committee      or  its   procedure  vitiating  the      selection,  or  proved  mala  fides      affecting the selection etc."      In Dr. Jai Narain Misra v. State of Bihar and Ors. 1971 (1) SCC 30, it was said :-      "So  far   as   the   question   of      suitability   is   concerned,   the      decision entirely  rested with  the      Government.  In  other  words,  the      Government is  the  sole  judge  to      decide  as   to  who  is  the  most      suitable   candidate    for   being      appointed  as   the   director   of      Agriculture. for  discharging  that      responsibility it  was open to  the      Government to  seek the  assistance      of the  Public service  Commission.      In our  judgment the High Court was      not justified  in calling  for  the      records  of   the  Public   service      Commission and  going  through  the      notings made by various officers of      the  Commission   as  well  as  the      correspondence that  passed between

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    the  Commission   fact   that   the      Government sought the assistance of      the commission  and not that of the      High Court for finding out the most      suitable candidate.  In  this  case      there  was  no  complaint  of  mala      fides either  on the  part  of  the      Government or  the Commission. That      being so  the   interference of the      High  Court   in  the   matter   of      selection made  by  the  Government      was not [P. 32]      In Major  General I.P.S.  Dewan v.  Union of  India and Others, 1995  (3)  SCC  383,  it  has  been  held  that  the principle that administrative orders affecting rights of the citizens should  contain reasons therefor cannot be extended to matters of selection and unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why  are selecting  a particular person, as the case may be [at p. 389].      The Tribunal  was conscious  of the  limitations on its power and has observed :-      "Once a competent authority makes a      selection   for    appointment   or      empanelment considering  all  those      who are eligible in accordance with      rules, instructions  or  guidelines      then the  Tribunal  or  High  Court      will not  act as  an appellate body      and  interfere  on  the  ground  of      insufficiency of  the  material  or      incorrectness   of   the   decision      applying its own yard stick. If the      decision  making   process  is  not      vitiated  the   resultant  decision      cannot be  interfered with  by  the      tribunal on  the ground  that It if      were the  Tribunal which  took  the      decision it would not have been the      same. Even if on a perusal the file      relating  to  the  selection  on  a      comparative   assessment   of   the      merits of  the applicant  viz-a-viz      respondents  3-11,   the   Tribunal      comes  to  a  conclusion  that  the      applicant was more meritorious than      them, the Tribunal cannot interfere      with     the      selection     and      empanelment."      "If it  is seen  that  the  Cabinet      secretary  assisted  by  a  Special      committee  of  Secretaries  made  a      selection   considering   all   the      eligible officers  in  the light of      the  guidelines  contained  in  the      Central Staffing  Scheme,  then  we      are of  the  considered  view  that      interference would not be justified      even if  a different  view  on  the      selection  may possibly be taken."      The Tribunal  looked into the minutes of the meeting of the Special  Committee of  the Secretaries  held on December 22, 1992  to find out whether the name of the respondent was placed before  the said  Committee for consideration for the purpose of  empanelment. The  Minutes show, and this fact is

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not disputed,  that the  name of  the respondent was amongst the 81  I.A.S. officers of 1962 batch who were considered by the Special  Committee. In  the said  minutes it is recorded that the  committee after screening the CR dossiders  of all the officers and keeping in view their record and experience including   the   conceptual   and   leadership   abilities, achievements and potential for general management positions, had recommended  19 officers  of 1962  batch of  I.A.S.  for inclusion in the panel for holding the post of Secretary and 7 officers  for holding  non-secretarial posts.  The name of the respondent was not included in those lists.      This would  hold show  that the  Committee, Keeping  in view the  record and experience including the conceptual and leadership abilities,  and potential for general managements positions, had  recommended 19 I.A.S..  officers for holding the post  of Secretaries and 7 I.A.S. officers for holding a non-secretarial post.  Merely because  the  minutes  of  the Committee do  not contain the reason for no-selection of the respondent does  not mean  that there  has  been  no  proper consideration  of   the  merits   and  suitability   of  the respondent and as result the selection is vitiated. From the minutes of  the Special  Committee it is evident that in the matter of  empanelment of officers the Special Committee has taken into  account the  criteria that  are  laid  down  for holding such  selection  in  paragraph  14  of  the  Central Staffing Scheme  and, therefore,  it cannot be said that the said selection  is vitiated  on account  of non-inclusion of the name of the respondent in the panel.      Shri Ashok Grover, the learned senior counsel appearing for the respondent, has laid emphasis on the remarks in ACRs about  appraisal   of  the  performance  of  the  respondent subsequent to  his  promotion  on  the  post  of  Additional Secretary   to which reference has been made by the Tribunal in the  impugned judgment. The learned counsel has submitted that since the performance has been rated as outstanding and excellent, the  Tribunal was justified in holding that there is no  proper consideration of the case of the respondent by the special  Committee. We are unable to hold that since the performance  of   the  respondent  after  his  promotion  as Additional Secretary   had  been found  to be  excellent and outstanding, the non-inclusion of his name from the panel by the Special  Committee must lead to the inference that there was no  proper consideration of the merit and suitability of the respondent for empanelment by the special Committee.      For the reasons aforementioned, the directions given by the Tribunal  in the  impugned judgment cannot be upheld and have to be set aside. The appeal is, therefore, allowed, the judgment of the Tribunal dated May 14, 1996 is set aside and O.A. No.  539 of  1994 filed by the respondent is dismissed. No order as to costs.