Dr. (Smt.) Alaka Nanda Dash vs Union Of India & Ors.
2010 Latest Caselaw 4982 Del

 * IN THE HIGH COURT OF DELHI AT NEW DELHI

                               Date of decision: 28th October, 2010

 + WP (C) No.966/2010 & CM No.11234/2010


 DR. (SMT.) ALAKA NANDA DASH                     ..... Petitioner
                           Through Mr. S.N. Sharma, Adv. with
                           Mr. R.A. Sharma, Adv.

                               versus

 UNION OF INDIA & ORS.                                ..... Respondents

Through Dr. Sarbjit Sharma, Central Govt. Senior Counsel with Mr. Sumit Sharma, Adv. for UOI.

Mr. Naresh Kaushik, Adv. for UPSC.

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL HON'BLE MR. JUSTICE J.R. MIDHA

1. Whether reporters of local papers may be allowed to see the Judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

GITA MITTAL, J (Oral)

1. By way of the present writ petition, the petitioner seeks the

following prayers:-

"(i) direct the Respondents to produce before this Hon'ble High Court the Service dossier of the Petitioner and the DPC proceeding for its perusal.

(ii) issue a writ of mandamus to consider the case of the Petitioner for promotion to the Petitioner, if any ACR including the ACR for the period 2006-2007, which contain any adverse entry or entry below bench mark, has been taken into account by the DPC, after leaving out such ACR or such of the ACRs which were not communicated. In meanwhile, 1 of the 12 existing vacancies may be left vacant during the pendency of the WP (C).

(iii) issue a writ of mandamus to grant the Petitioner promotion from the date the juniors have been promoted with all consequential benefits including arrears of pay, seniority in the higher post of DIG and eligibility service for further promotion."

2. The entire challenge by the petitioner in the writ petition as well as in

the rejoinder filed before us, is premised on allegations of discrimination

and gender bias against her manifested by "non-communication of the

possible adverse ACR/ACRs considered to be adverse". The basic

contention of the petitioner is that despite her being the seniormost in

the seniority/gradation list of the eligible Senior Commandants with the

Central Industrial Security Force (hereinafter referred to as `CISF') for

promotion to the post of Deputy Inspector General (DIG), her

candidature was not approved for such appointment.

The petitioner has further challenged as arbitrary, the action of

the respondents in not communicating the adverse Annual Confidential

Reports to her. It is her case that the adverse ACRs have been

intentionally withheld to grant promotion to the junior officers.

3. In the writ petition, the petitioner has formulated the following

three questions which according to her, arise for consideration in the

present case:-

"(a) Whether a senior can be rejected by the Selection Committee for consideration for promotion based on ACR(s) which have never been communicated.

(b) Whether the Appointing Authority was legally right in withholding the contents of the ACR 2006-2007, even when the Petitioner informed him in writing that ACR for the year 2006-2007 might have been spoiled by her immediate superior who had practically threatened her that her ACR would be spoiled.

(c) As the omission and commission of the respondents indicate a strong gender bias against the Petitioner and also mala fide intentions, whether the Appointing Authority should not have examined the matter prior to the approval of 3 junior officers from the opposite gender in view of guaranteed rights under Article 14 and 16(2) of the Constitution of India."

(Emphasis supplied)

4. So far as the petitioner's career graph is concerned, it is an

admitted position that the petitioner was appointed to the post of

Assistant Commandant Group `A' on 21st August, 1989 in the Central

Industrial Security Force (hereinafter referred to as `CISF' for brevity)

through the Civil Services Examination conducted by the Union Public

Service Commission (hereinafter referred to as `UPSC' for brevity) - the

respondent no.3 before us. In the year 1995, the petitioner was

promoted to the post of Deputy Commandant and to the post of Commandant in 2001. The petitioner was further promoted in 2004 to

the post of Senior Commandant.

5. The petitioner has submitted that there is bias in the department

against her for the reason that she has been fighting for her right to be

treated on equal footing with group `A' officers who have been recruited

through the UPSC in matters of service conditions or for reallocation. It

is her assertion that legal action in this behalf, initiated by her by way of

Writ Petition (C) No.5059/1997, has not been taken in the correct

perspective by her seniors who are on deputation from their respective

cadres and a departmental bias is harbored against her by her

superiors. In the same tenor, the petitioner has contended that being

the first lady officer of the CISF and in a senior position, per force cases

of sexual harassment alleged against senior officers are entrusted to

her for inquiry. As per the writ petitioner, her just and fair manner in

dealing with such cases has also not found favour with the senior

officers.

6. The writ petitioner makes specific allegations against an officer,

namely Shri Mithilesh Jha, DIG/NZ under whom she was working when

posted as an AIG/NZ. The petitioner has stated that the said superior

officer had threatened the petitioner that her career would be

jeopardized by means of adverse or lukewarm endorsements in her

Annual Confidential Report (`ACR' hereafter). In this behalf, reliance is placed before us on a communication dated 29th January, 2010

addressed by the petitioner to the Director General of the CISF

requesting protection of her ACR and conveying her apprehension that

her promotion prospects were so threatened. The petitioner had

requested examination of the matter regarding her ACR for the year

2006-2007 premised on such apprehensions.

7. Mr. S.N. Sharma, learned counsel representing the petitioner has

submitted that the DIG/Pers. had by a communication dated 1st

February, 2010 conveyed to the petitioner that her apprehensions were

being examined. It has been urged that this communication was a

camouflage for the illegal action of the petitioner's rejection by the

departmental promotion committee in its proceedings held on 19th

January, 2010.

8. Based on this ground, the petitioner has challenged the order

dated 2nd February, 2010 whereby three persons were promoted by the

respondents. It has been vehemently contended on behalf of the

petitioner that the non-grant of promotion to the petitioner is directly

attributable to the gender as well as departmental bias by her senior

officers and has the impact of her supersession. The entire challenge is

premised on non-communication of the ACR/ACRs considered to be

adverse so that she is deprived of promotion.

9. The respondents have contested every allegation of

departmental bias or gender bias in the counter affidavit. The

respondents have also disputed the petitioner's contention that there

was any adverse entry in her Annual Confidential Reports.

10. Repudiating the assertion of gender bias or departmental bias,

the respondents have submitted that the very fact that the petitioner

has been regularly promoted from the post of Assistant Commandant till

the post of Senior Commandant would militate against the allegations

which have been levelled in the writ petition. It has also been explained

that the petitioner stood posted to prominent units and was never

posted to an area which could be considered a hard area posting

including the naxal infested states and never in any area in the north-

eastern states. The petitioner is presently stated to be posted in the

National Industrial Security Academy at Hyderabad which is the premier

training institute of the country. She was allowed a deputation posting

at the Rajya Sabha Secretariat for a period of three years.

The respondents have also disputed any bias on the ground that

the petitioner was a party to the earlier litigation.

11. We find that after the filing of the previous writ petition in 1997, the

petitioner has been promoted to the post of Commandant on 17 th

September, 2001 and again promoted on 13th July, 2004, to the post of

Senior Commandant. There is not even a suggestion of mala fide or bias or delay so far as these appointments are concerned. These promotions

also suggest that the petitioner's feeling that bias is harboured against

her because of the sexual harassment cases is also not made out by her

career progression graph. No other ground or basis for gender or

departmental bias is stated. There is therefore substance in the

contentions of the respondents that no bias of any kind is harboured

against the petitioner.

12. In view of the challenge in the writ petition on the ground of non-

communication of adverse or such entries as would adversely impact

the consideration by the DPC, we called upon the respondents to

produce the ACRs of the petitioner before us.

13. We find that there is no entry which could be considered even

"lukewarm", let alone any adverse entry in the petitioner's Annual

Confidential Reports in her entire service record. The ACR for the year

2006-2007 is neither lukewarm nor adverse. In fact, the same contains

positive remarks in respect of the petitioner, all of which have been

placed before the Departmental Promotion Committee which has

scrutinised the petitioner's ACR record for the purposes of selection.

14. It is also not disputed that the selection process is undertaken

under the aegis of Union Public Service Commission. The respondents

have pointed out that the DPC, which was constituted by the UPSC, has considered the candidature of the petitioner along with seven other

eligible senior commandants.

15. We find that the petitioner has wrongly stated that she was the

seniormost senior commandant who was eligible and was considered by

the DPC. So far as the officers in the order of seniority who were

considered by the DPC are concerned, their particulars are as follows:-

"

 Sl. No.       Name of the Officer (S/Shri)
 1.            S.C. Saklani
 2.            Utpal Chaudhary
 3.            Mahavir Singh
 4.            B.C. Mehta

5. Smt. Alaka Nanda Dash (petitioner herein)

6. B.N. Bhattacharya

7. S.K. Hazra

8. S.R. Dahiya (SC)

"

16. The proceedings of the Departmental Promotion Committee have

been placed before this court. The writ petition does not contain even a

whisper of contention that the DPC was not properly constituted or that

its proceedings suffered from any element of bias or mala fide. There is

no challenge to the proceedings of the Departmental Promotion

Committee in the writ petition.

17. Mr. Naresh Kaushik, learned counsel appearing for the UPSC has

submitted that even if a challenge had been laid, assessment by a

departmental promotion committee, as in the instant case, is not lightly

to be interfered with. Reliance has been placed on the pronouncement

of the Supreme Court in AIR 1987 SC 593 (paras 20, 21, 24 & 27) R.S.

Dass & Ors. Vs. UOI & Ors.; AIR 1988 SC 1069 (paras 5 & 7) Union

Public Service Commission Vs. Hiranyalal Dev & Ors.; AIR 1990

SC 434 Dalpat Abasahed Solunke Vs. Dr. B.S. Mahajan (para 9) in

support of the contention that in the absence of statutory provisions,

principles of natural justice requiring the selection Committee to record

reasons for their decision are not applicable to the proceedings of the

departmental promotion committee. It is well settled that the

assessment by the departmental promotion committee is not in the

nature of adjudication. The jurisdiction to make a selection vests in the

selection committee.

18. As noted above, before us the writ petitioner has not laid down

any challenge to the constitution or proceedings of the DPC. Despite the

stand taken in the counter affidavit as well, the petitioner has merely

reiterated the same allegations of gender and departmental bias

against her in the rejoinder. In the facts and circumstances noticed by

us hereinabove, the assertions of the petitioner based on totally vague

suggestions and general bias are unsupported by any material placed

on record before us or by the service record of the petitioner which has been produced before us. In any case, the recommendations for fitness

for appointment are not by an intra-departmental promotion committee

but by an independent departmental promotion, appointed by the UPSC.

19. We may also notice that the petitioner was not the seniormost

person who was assessed as unfit by the DPC. The petitioner was placed

at the fifth position as per the seniority list. Three officers namely Shri

S.C. Saklani, Shri Utpal Chaudhary & Shri Mahavir Singh who were

placed above the petitioner at serial nos.1, 2 & 3 of the seniority list,

were also considered by the DPC. Just as the petitioner, they were also

assessed as unfit for the appointment. Shri B.C. Mehta who was placed

on serial no.4 as per the seniority of the eligible candidates, senior to

the petitioner, was found fit and recommended for promotion by the

DPC.

The petitioner has chosen not to disclose these facts in the writ

petition. A clever slant to suggest that the petitioner stands singled out

because of gender bias has been unfairly attempted in the writ petition.

20. So far as the scope of scrutiny by the court to a challenge to the

selection process is concerned, our attention is drawn to the

pronouncement of the Supreme Court reported at JT 2010 (7) SC 558

Dr. Basavaiah Vs. Dr. H.L. Ramesh & Ors. In this case, in para 27,

the Supreme Court had reiterated the well settled legal position that

courts have to show deference and consideration to the recommendation of an expert selection committee consisting of

distinguished experts in the field and that the high court would not sit

as an appellate court on the recommendations made by such

committee.

21. In AIR 1988 SC 1069 Union Public Service Commission Vs.

Hiranyalal Dev & Ors., on the issue of categorization by the selection

committee in para 5, the court observed thus:

"how to categorize in the light of the relevant records and what norms to apply in making the assessment are exclusively the functions of the Selection Committee".

It was further observed that:

"The jurisdiction to make the selection vested in the Selection Committee. The Selection Committee had to make the selection by applying the same yardstick and norm as regards the rating to be given to the officials, who were in the field of choice by categorizing the concerned officials as "outstanding", "very good" "good" etc. This function had also to be discharged by the Selection Committee by applying the same norm and tests and the selection was also to be made by the Selection Committee as per the relevant rules."

22. So far as promotion from the rank of Senior Commandant to

Deputy Inspector General is concerned, it is explained that the selection

is premised on the principle of "merit-cum-seniority". On this basis, the

respondents have disputed the petitioner's claim of promotion based on

seniority alone.

23. In Union Public Service Commission Vs. Hiranyalal Dev &

Ors.(supra), the court also specifically observed that the concept of

supersession is relevant in the context of promotion and not in the

context of selection. This very principle would guide the consideration in

the present case. The contention of the petitioner that she stands

superceded by the recommendations is therefore wholly devoid of

merit.

24. It also needs no elaboration that the jurisdiction of this court in

exercise of its power of judicial review under Article 226 of the

Constitution of India into proceedings of a departmental promotion

committee is limited. A high level departmental promotion committee is

appointed to consider the respective merits of the candidates. It

assesses and considers their cases for promotion applying the same

yardstick and norms qua all the names being considered by it for

promotion. It is not open to this court to sit as if in appeal over the

assessment made by such committee. (Ref: (1996) 2 SCC 488 Dr.

Nutan Arvind Vs. Union of India (paras 6) & JT (2010) 7 558 Dr.

Basavaiah Vs. Dr. H.L. Ramesh & Ors.).

25. Our attention has been drawn to the pronouncement reported at

AIR 1990 SC 434 Dalpat Abasahed Solunke Vs. Dr. B.S. Mahajan

wherein the court has stated thus:-

"9. It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. 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. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction."

The same principles would guide the present consideration.

26. In the instant case, the DPC has scrutinized the records of the

eligible persons placed before it and arrived at the following

assessment:-

"

 Sl. No.     Name of the Officer (S/Shri)                Assessment
 1.          S.C. Saklani                                Unfit
 2.          Utpal Chaudhary                             Unfit
 3.          Mahavir Singh                               Unfit
 4.          B.C. Mehta                                  Fit
 5.          Smt. Alaka Nanda Dash                       Unfit
 6.          B.N. Bhattacharya                           Fit
 7.          S.K. Hazra                                  Fit
 8.          S.R. Dahiya (SC)                            Fit

                                                          "

27. In 2006 (5) SCALE 627 Satya Narain Shukla Vs. Union of

India & Ors., the court considered the issue as to whether reasons

have to be recorded for empanellment and non empanellment of officer

or officers. The court also considered the issue as to whether non

empanellment of an officer with an outstanding service record would be

arbitrary. In this regard, in paras 26 & 27, the court observed as

follows:-

"26. Another contention urged by the appellant is that the appellant has an outstanding service record, and therefore, his non-empanelment is arbitrary. This Court has reiterated in Samar Singh (supra) that merely because an officer has an outstanding service record there is no automatic empanelment. After referring to para 14 of the Central Starling Scheme, this Court observed (vide para 12) as follows:

"Apart from the record there are other matters that have to be considered, namely, merit, competence, leadership and flair for participating in the policy- making process and the need of the Central Government which is the paramount consideration. 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."

27. There is no merit in the contention that the non- empanelment of the appellant is arbitrary, as urged."

In this judgment, the court clearly observed that it could only

examine if the procedure for selection was adopted by the Government

is unconstitutional or otherwise illegal or vitiated by arbitrariness and

mala fides.

28. Mr. Naresh Kaushik, learned counsel for the respondent no.3 also

places reliance on the judgment of the Supreme Court reported at AIR

1992 SC 1806 (paras 7 & 8) National Institute of Mental Health &

Neuro Sciences Vs. Dr. K. Kalyana & Ors. wherein the court has

authoritatively pronounced on the issue of recording of reasons for the

decision of the selection committee as well as procedural fairness. In

this regard, the court has observed thus:-

"7. We will first consider the second point. In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative. The High Court seems to be in error in stating that the Selection Committee ought to have given some reasons for preferring Dr. Gauri Devi as against the other candidate. The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of candidates possessing the required eligibility. There is no rule or regulation brought to our notice requiring the Selection Committee to record reasons. In the absence of any such legal requirement the selection made without recording reasons cannot be found fault with.

The High Court in support of its reasoning has, however, referred to the decision of this Court in Union of India v.

Mohan Lai Capoor MANU/SC/0405/1973 :

(1973)IILLJ504SC . That decision proceeded on a statutory requirement. Regulation 5(5) which was considered in that case required the Selection Committee to record its reasons for superseding a senior member in the State Civil service. The decision in Capoor case was rendered on 26 September, 1973. In June, 1977, Regulation 5(5) was amended deleting the requirement of recording reasons for the supersession of senior officers of the State Civil services. The Capoor case cannot, therefore, be construed as an authority for the proposition that there should be reason formulated for administrative decision. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non-selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R. S. Dass v. Union of India MANU/SC/0482/1986 : [1987]1SCR527 in which Capoor case MANU/SC/0405/1973 : (1973)IILLJ504SC was also distinguished.

8. As to the first point we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or 'fair procedure' in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration. But there is nothing on record to suggest that the Selection Committee did anything to the contrary. The High Court however, observed, that Dr. Kalyana Raman did not receive a fair and reasonable consideration by the Selection Committee. The inference in this regard has been drawn by the High Court from the statement of objections dated 18 February, 1980 filed on behalf of the Selection Committee. It appears that the Selection Committee took the stand that Dr. Kalyana Raman did not satisfy the minimum requirement of experience and was not eligible for selection. The High Court went on to state that it was some what extraordinary for the Selection Committee after calling him for the interview and selecting him for the post by placing him second, should have stated that he did not satisfy the minimum qualifications prescribed for eligibility the High Court the stand taken by the Selection Committee raises serious doubts as to whether the deliberations of the Selection Committee were such as to inspire confidence and re- assurance as to the related equality and justness of an effective consideration of this case. It is true that selection of the petitioner and the stand taken by the Selection Committee before the High Court that he was not eligible at all are, indeed, antithetical and cannot co- exist. But the fact remains that the case of Dr. Kalyana Raman was considered and he was placed second in the panel of names. It is not shown that the selection was arbitrary or whimsical or the Selection Committee did not act fairly towards Dr. Kalyana Raman. The fact that he was placed second in the parcel, itself indicates that there was proper consideration of his case and he has been treated fairly. It should not be lost sight of that the Selection Committee consisted of experts in the subject for selection. They were men of high status and also of unquestionable impartiality. The Court should be slow to interfere with their opinion."

29. In this regard, reference can usefully also be made to the

pronouncement reported at (1996) 2 SCC 488 Nutan Arvind Vs.

Union of India & Anr. wherein the court held as follows:-

"6. The DPC which is a high-level committee, considered the merits of the respective candidates and the appellant, though considered, was not promoted. It is contended by learned Counsel for the appellant that one K.S. Rao was the officer at the relevant time to review the performance of the appellant whereas in fact one Menon had reviewed it. The latter was not competent to review the performance of the appellant and to write the confidentials. We are afraid we cannot go into that question. It is for the DPC to consider at the time when the assessments of the respective candidates is made. When a high-level committee had considered the respective merits of the candidates, assessed the grading and considered there cases for promotion, this Court cannot sit over the assessment made by the DPC as an appellate authority. The DPC would come to its own conclusion on the basis of review by an officer and whether he is or is not competent to write the confidentials is for them to decide and call for report from the proper officer. It had done that exercise and found the appellant not fit for promotion. Thus we do not find any manifest error of law for interference."

30. Mr. Naresh Kaushik, learned counsel for respondent no.3 has also

placed the pronouncements of the Supreme Court reported at 1997 (1)

SCC 280 Anil Katiyar Vs. UOI & Ors.; 2005 (1) SCC 15 UPSC Vs.

K. Rajaiaha & Ors.; (2006) 9 SCC 458 Purushotam Kumar Jha Vs.

St. of Jharkhand & Ors.; 2006 (12) SCALE 278 Union Public

Service Commission Vs. L.P. Tiwari; (2008) 9 SCC 120 K.M.

Mishra Vs. Central Bank of India & Ors.; 2008 (2) SCC 119 M.V.

Thimmaiha & Ors. Vs. UPSC & Ors. & 2007 (98) DRJ 356 (DB)

Baljeet Singh Vs. UOI & Ors. on the same questions.

31. In the given circumstances, the petitioner's contention that she is

a victim of gender or departmental bias is unsubstantiated and not

supported by the record placed before us. Her submission that she

stands singled out because of gender is also not made out. The

consideration and recommendations by the UPSC have not been

challenged in the writ petition. In view of the binding principles laid

down in the judicial precedents noticed above, the petitioner has been

unable to make out any legally tenable ground of challenge to the order

dated 2nd February, 2010.

32. It is noteworthy that during the pendency of the writ petition, an

application being CM No.11234/2010 was filed by the petitioner pointing

out that a Departmental Promotion Committee constituted by the UPSC

was meeting on 22nd & 23rd August, 2010 at Chennai for making further

recommendations for promotion to the post of DIG. By way of CM

No.11234/2010, the petitioner had prayed for a direction to the

respondents not to declare the result of the proposed Departmental

Promotion Committee. In the alternative, it had been prayed that a post

be kept vacant for her promotion in case the writ petition was

favourably decided. When this application was listed before this court

on 20th August, 2010, we had simply directed that anything done by the

DPC shall be subject to the final outcome of the writ petition. We are

today informed that the recommendations of the Departmental

Promotion Committee so convened, also stand implemented and further appointments have been made. There is no substantive challenge to

these appointments as well till date.

We therefore find no merit in this writ petition which is hereby

dismissed.

CM No.11234/2010

In view of the writ petition having been dismissed, this

application does not survive for adjudication and is dismissed as such.

GITA MITTAL, J

J.R. MIDHA, J

October 28, 2010 aa