Union of India & Anr Vs. Samar Singh & Ors [1996] INSC 1275 (8 October 1996)
S.C.
Agrawal, S.C. Sen S. C. Agrawal, J. :
ACT:
HEAD NOTE:
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 non conclusion 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.
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 non
secretarial 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- 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 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 nothings made by various officers of
the Commission as well as the correspondence that passed between 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 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.
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