Madan Mohan vs Union Of India And Ors.
2014 Latest Caselaw 5516 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      W.P.(C) 3968/2012

                                         Reserved on : 09.09.2014
                                         Pronounced on : 07.11.2014

IN THE MATTER OF :
MADAN MOHAN                                        ..... Petitioner
                             Through : Mr. Shankar Raju with
                             Mr. Nilansh Gaur, Advocates

                       versus

UNION OF INDIA AND ORS.                             ..... Respondents
                             Through : Mr. Sanjay Jain, ASG with
                             Mr. Jasmeet Singh, Ms. Aastha Jain and
                             Ms. Ruchi Jain, Advocates for UOI.

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.

1. The present petition has been filed by the petitioner praying inter

alia for quashing of the order dated 23.4.2012 issued by the

Appointments Committee of the Cabinet (in short 'the ACC'), in

supersession of its earlier order dated 19.3.2012, whereunder he was

appointed as a Director (Finance) in the respondent No.2/Security

Printing Minting Corporation of India Ltd. (SPMCIL) for a period of five

years from the date of his assuming charge of the post or till his

superannuation, and proceeding to approve the appointment of the

respondent No.3 to the very same post.

2. Before dealing with the arguments advanced by the learned

counsels for the parties, it is considered necessary to recapitulate the

relevant facts of the case and some events that have transpired during

the pendency of the present petition. The petitioner herein is an officer

of the Indian Civil Accounts Service Group-„A‟ (1986 Batch). On

23.4.2007, he was appointed for a period of two years, as Director

(Finance) on deputation basis with the respondent No.2/SPMCIL. The

said term was extended by the ACC till 13.10.2011. The post of

Director (Finance) is a Schedule-„A‟ post and the said Officer is a

Member of the Board of Directors. Being the overall in-charge of

finance and accounts functions of the organization, the petitioner was

expected to directly report to the Chairman and Managing Director of

the respondent No.2/SPMCIL. On 30.12.2010, the Public Enterprise

Selection Board (PESB) advertised the post of Director (Finance) in the

respondent No.2/SPMCIL. On 21.2.2011, the petitioner applied for the

aforesaid post through proper channel and was shortlisted by the PESB

for an interview that was held on 18.4.2011. Thereafter, the PESB

prepared a panel for appointment to the subject post, wherein the

petitioner‟s name was placed at serial No.1 and that of the respondent

No.3 was placed at serial No.2. There was no movement between May,

2011 to January, 2012 on account of some delay that took place for

obtaining vigilance clearance in respect of the petitioner from the

Central Vigilance Commission (CVC). Finally, on 9.1.2012, the CVC

advised issuance of vigilance clearance to the petitioner for the post of

Director (Finance) in the respondent No.2/SPMCIL.

3. Vide order dated 19.3.2012, the ACC approved the appointment

of the petitioner as Director (Finance) in the respondent No.2/SPMCIL.

Though, a copy of the aforesaid order was forwarded for information to

different departments, including the PMO, Office of the Home Minister,

Cabinet Secretariat and the PESB, but the same was not communicated

to the petitioner. In a sudden turn of events, the ACC decided to

supersede its order dated 19.3.2012 and passed an order dated

23.4.2012, whereunder respondent No.3 was appointed as Director

(Finance). This was followed by a communication dated 27.4.2012

addressed by the Ministry of Finance to the respondent No.3, conveying

the approval of the ACC for his appointment to the post of Director

(Finance) in the respondent No.2/SPMCIL.

4. The grievance of the petitioner is that once his name was

approved by the ACC for appointment to the post of Director (Finance)

in the respondent No.2/SPMCIL, the respondents No.1 & 2 could not

have issued the impugned order dated 23.4.2012, superseding the

earlier order dated 19.3.2012 and the said action is illegal and a nullity,

more so because before passing the said order, the ACC did not

furnish/mention any reason for superseding its earlier order dated

19.3.2012.

5. When the present writ petition was listed for admission on

9.7.2012, an interim order was passed on the interlocutory application

for stay filed by the petitioner, directing that till the next date of

hearing, the respondents would not allow the respondent No.3 to join, if

he had not already joined. On 5.7.2013, a statement was made on

behalf of the respondent No.1/UOI to the effect that the respondent

No.3, whose name was approved by the ACC for appointment in

preference to the petitioner, had expressed his unwillingness for being

appointed to the subject post. Subsequently, an affidavit dated

21.8.2013 was filed by the respondent No.3 himself stating inter alia

that later on, the ACC had approved his appointment to the post of

Director (Finance) in HUDCO and since he had joined the said post on

30.5.2013, he was no longer interested in the subject post. Though the

respondent No.3 moved out of the picture, the learned ASG appearing

for the respondent No.1/UOI informed the Court that the department

had decided to contest the present petition on merits.

6. On 26.9.2013, taking note of the fact that the order dated

19.3.2012 issued by the ACC appeared to have been circulated to

various departments, directions were issued to the parties to file their

respective affidavits clarifying inter alia as to whether the said decision

had at all been circulated. In compliance of the said order, both the

parties had filed their respective affidavits taking different stands.

Thereafter, pleadings were directed to be completed and the matter was

taken up for final arguments. After conclusion of arguments, the

judgment was reserved on 05.08.2014. However, on 02.09.2014, the

petitioner filed an application seeking permission to file some additional

documents that he had obtained through the RTI route. The said

documents included copies of O.Ms dated 07.12.2011 and 05.08.2014

issued by the CVC and an extract of the relevant notings of the CVC file.

The said application was allowed on 09.09.2014 and the documents in

question were taken on record.

7. The first and foremost ground taken by Mr. Shanker Raju, learned

counsel for the petitioner to assail the impugned order dated 23.4.2012

was that the previous order dated 19.3.2012, appointing the petitioner

to the subject post, was a final order as copies thereof were marked to

different departments, and circulation of the said order had amounted

to publication. Therefore, the order dated 19.03.2012 ought to be

treated as a "communication" to the petitioner, irrespective of the fact

that it was not communicated directly to him. He stated that while

adverse orders need to be communicated as the same is a mandatory

requirement, a positive order, as was passed in the present case, need

not necessarily be communicated in writing to the addressee and

publication thereof would meet the requirements. It was thus urged

that the order dated 19.03.2012 had attained finality and could not be

superseded by the ACC. To buttress the said argument, reference was

made to the decision of the Supreme Court in the case of State of

Punjab vs. Amar Singh Harika, reported as AIR 1966 SC 1313.

8. Learned counsel contended that in the present case, apart from

the fact that copies of the order dated 19.3.2012 issued by the ACC had

been marked to various departments, "communication" thereof would

include publication in the website of a private portal and looked at in

this background, non-intimation of the said order to the petitioner

looses significance. Reference was made by him to the impugned order

dated 23.4.2012 issued by the ACC to urge that the very fact that the

said order had mentioned that it was being issued in supersession of its

earlier order dated 19.3.2012 appointing the petitioner to the post of

Director (Finance), fortifies his stand that communication of the order

dated 19.3.2012 had already been made to him and had created a

vested right in his favour that could not be disturbed. In support of the

aforesaid submission, learned counsel had cited the decision of the

Supreme Court in the case of Municipal Corporation of Delhi vs. Qimat

Rai Gupta & Ors., reported as (2007) 7 SCC 309.

9. The second limb of the argument of the counsel for the petitioner

was that the impugned order dated 23.4.2012 issued by the ACC is

liable to be set aside as it was passed without following the due process

and without the participation of all its members, which is a mandatory

requirement. He had quoted Rule 6(6) of the Government of India

(Transaction of Business) Rules, 1961 (in short 'the Rules') to contend

that the power of review was specifically conferred upon the Cabinet but

no such power was exercised in the present case and therefore an

irregular ACC had cleared the appointment of the respondent No.3 on

23.4.2012, by reversing its earlier recommendation dated 19.3.2012,

which was the only valid order on record.

10. To substantiate his submission that once the ACC passes an

order, the same attains finality and ought to be implemented with

promptitude, learned counsel had referred to an Office Memorandum

dated 10.2.1991 issued by the Department of Personnel and Training

(DOPT), Government of India, which lays down the procedure for

implementation of the decision of the ACC and directs that it should be

ensured that such an order is endorsed to the concerned department

within fifteen days of its receipt. The OM mentions that ordinarily, the

Ministries/departments should avoid sending the proposal for

reconsideration of the decisions of the ACC so that the same can be

implemented immediately on their receipt. It was thus submitted by

the learned counsel for the petitioner that once the ACC had approved

the name of the petitioner for the subject post, a valuable right

enforceable in law had arisen in his favour and the same could not be

defeated by recalling the said order through an irregularly conducted

ACC. To reinforce his arguments, the following citations were referred

to by the learned counsel for the petitioner :

      (i)     Prem Prakash vs. Union of India & Ors., 1984
              (Supp.) 687,

      (ii)    Asha Kaul (Mrs.) & Another vs. State of Jammu &
              Kashmir & Others, (1993) 2 SCC 573,

(iii) R.S. Mittal vs. Union of India, 1995 (Suppl.) 2 SCC 230,

(iv) A.P. Aggarwal vs. Govt. of NCT of Delhi & Anr., (2000) 1 SCC 600, and

(v) Noida Entrepreneurs Association vs. Noida & Ors., (2011) 6 SCC 508.

11. Per contra, Mr. Sanjay Jain, learned ASG opened his arguments

by explaining the procedure adopted by the Government for notifying

appointments of candidates to Board Level posts in Public Sector

Undertakings (PSUs). He submitted that the ACC comprises of the

Prime Minister, Home Minister and the Minister in-charge of the

concerned Administrative Ministry/department and the proposals of

different Ministries/departments for appointment to Board Level posts in

PSUs under their administrative control are approved by adopting the

process of circulation wherein, the Office of Establishment Officer acts

as the secretariat to the ACC. Once a decision is taken by the ACC, the

same is communicated to the concerned Ministry/department through a

note/communication and based on the said communication, the

concerned Administrative Ministry/department issues an offer of

appointment to the selected candidates and only thereafter is the said

appointment notified.

12. Learned ASG pointed out that in the present case, the decision

taken by the ACC on 19.3.2012, recommending the name of the

petitioner for appointment to the subject post, being confidential in

nature, was only communicated to the Secretary of the Department of

Economic Affairs (DEA) and to those officers who were involved in the

process of appointment of Board Level Executives. However, at no

stage had the said decision been circulated/communicated to the

petitioner. He refuted the argument advanced by the learned counsel

for the petitioner that once copies of the order dated 19.3.2012 were

marked to different departments, including the PMO and the petitioner‟s

appointment had appeared in the news circulated by an online

magazine portal, the same ought to be treated as a "communication" to

the petitioner and was not only sufficient for him to claim a vested right

to the subject post, it also entitled him to raise a grievance with regard

to the violation of the principles of natural justice, on account of non-

grant of an opportunity of hearing to him, before passing a fresh order

on 23.4.2012.

13. Learned ASG argued that even after the recommendation was

made by the ACC in his favour by virtue of its order dated 19.3.2012,

the petitioner could not have claimed that his appointment to the

subject post was finalized for the reason that admittedly, no letter

communicating the offer of appointment was ever issued to him. To

substantiate his argument that when an order of appointment is not

conveyed to a party, he cannot claim that he is entitled to appointment

or raise a plea of infringement of a vested right, reference was made to

the following decisions:

(i) Bachhittar Singh vs. State of Punjab & Anr., AIR 1963 SC 395 and

(ii) Gulabrao Keshavrao Patil & Ors. vs. State of Gujarat & Ors., (1996) 2 SCC 26.

14. It was next submitted by the learned ASG that just as the Rules

empower the ACC to make appointments, the said Rules also empower

the ACC to review its own decision and in the present case, the

Administrative Ministry in question was the Ministry of Finance and the

Minister in-charge was the then Finance Minister who was well within his

right to recommend the name of the respondent No.3 to the subject

post on the ground that he was academically and professionally better

qualified.

15. So as to understand how the events had unfolded in the present

case between two crucial dates, i.e., 19.3.2012, the date when the ACC

had initially recommended the petitioner‟s name for appointment to the

subject post and 23.4.2012, the date when the ACC had recommended

the name of the respondent No.3 to the very same post, in

supersession of its earlier decision, the learned ASG was directed to

produce the records and explain the circumstances. On 5.8.2014, the

relevant records were produced by the learned counsel for the

respondent for the perusal of the Court.

16. To explain the background in which the impugned order dated

23.4.2012 was passed by the ACC, learned ASG had submitted that the

then Finance Minister, being the Minister in-charge had approved the

petitioner‟s name for appointment to the subject post. But as per the

prescribed procedure, the said recommendation could have been made

to the ACC only after obtaining the approval of the CVC and at that

point of time, vigilance clearance in respect of the petitioner was not

received for the reason that an inquiry was pending against him with

the CVC.

17. The aforesaid position was also taken note of by the department

on 6.9.2011. Since the department was of the opinion that the post of

Director (Finance) in the respondent No.2/SPMCIL could not be left

unmanned for so long, the ACC was requested to extend the deputation

period of the petitioner for six months w.e.f. 1.7.2011 or till the regular

incumbent would join the post, whichever was earlier. However, the

ACC did not accede to the said proposal and resultantly, the petitioner

was repatriated to his parent cadre w.e.f. 13.10.2011. In the

meantime, having regard to the urgent need to fill up the post of

Director (Finance) in the respondent No.2/SPMCIL on a regular basis,

the Administrative Ministry was of the opinion that it could not wait

indefinitely for vigilance clearance proceedings to conclude in respect of

the petitioner, particularly since the vigilance clearance in respect of

other candidate, i.e., respondent No.3, was already available. As a

result, on 12.9.2011, the Administrative Ministry forwarded a reference

to the DOPT requesting that the ACC‟s approval may be obtained for

appointment of the respondent No.3 to the subject post on a regular

basis. But, vide order dated 19.3.2012, the ACC conveyed its approval

for the appointment of the petitioner as Director (Finance) of the

respondent No.2/SPMCIL.

18. The records reveal that immediately thereafter, vide note dated

2.4.2012, the then Finance Minister wrote to the Prime Minister

requesting him to reconsider the aforesaid decision to appoint the

petitioner to the subject post on the ground that as a Minister in-charge

of the Administrative Ministry, it was respondent No.3 whose name was

recommended by him to the subject post and not that of the petitioner.

The justification offered for recommending the name of respondent

No.3 to the subject post over the petitioner was that he was better

qualified, both academically and professionally and in view of the fact

that the respondent No.2/SPMCIL is a security sensitive organization,

that is engaged in the sovereign function of minting and printing of

coins and currency, respondent No.3 was considered a better choice.

19. Learned ASG pointed out that the very same file containing the

note dated 2.4.2012, addressed by the Ministry of Finance to the then

Prime Minister, also contained a note dated 21.3.2013, prepared by the

Directorate of Currency on the issue of initiation of action against five

senior officers of the respondent No.2/SPMCIL, including the petitioner

herein, for alleged procedural lapses in the procurement procedure

relating to purchase of One Line Printing and Furnishing Plant and

Machinery for the Bank Note Press, Dewas. The said note made a

mention of the fact that the Chief Vigilance Officer of the Department of

Economic Offences had directed that disciplinary action be taken against

five officers, including the petitioner herein, and after considering the

inputs received from the Vigilance Section, it was observed that in view

of certain procedural and administrative lapses in the tendering process

for procurement of the plant and machinery, there was a ground to

initiate action against the officers involved, including the petitioner

herein.

20. As per the learned ASG, with the approval of the then Finance

Minister and the competent authority, a decision was taken to initiate

action against the petitioner for entering into a criminal conspiracy and

causing pecuniary loss to the respondent No.2/SPMCIL and the

Department of Expenditure, who has administrative control over him,

was requested to issue a charge sheet against him.

21. After the judgment was reserved in this case on 5.8.2014, learned

counsel for the petitioner had filed CM No.14699/2014, enclosing

therewith a copy of the OM dated 07.12.2011 issued by the CVC

advising closure of the complaint regarding irregularities in the

procurement of One Line Printing Machine and suggesting rectification

of procedural and administrative deficiencies in the tendering

procedure. A copy of O.M. dated 05.08.2014 issued by the CVC was

also filed by the petitioner. In the said O.M., the CVC expressed a view

that there is no ground for seeking ex-post facto approval of the

charge-sheets and if the department wanted to re-open the case and

charge-sheet the officials, they ought to have sought the advice of the

Commission before doing so. It was submitted by Mr.Shankar Raju,

Advocate that the aforesaid documents were obtained by the petitioner

through the RTI route and the information was furnished by the

Department only after 5.8.2014.

22. Learned counsel for the respondent did not object to the court

taking on record the aforecited documents but stated that the said

documents would not make any material difference as most of them

relate to the period post 23.4.2012, when the impugned order was

issued by the ACC.

23. This Court has heard the arguments advanced by the counsels for

the parties, perused the records produced by the learned counsel for

the respondents and examined the judicial pronouncements relied upon

by both sides.

24. It may be stated at the outset that there is no quarrel with the

submission made by the learned counsel for the petitioner that without

good and valid reason, the Government cannot nullify the exercise

undertaken by the concerned Department that is called upon to prepare

a select list of candidates for appointment to particular posts. Further,

the State actions are required to be non-arbitrary and justified on the

touchstone of Article 14 of the Constitution of India and they must be in

conformity with the same principles that meet the test of reason and

relevance. To put it differently, the action/order of the State/

instrumentality of State would be vitiated if it suffers from the vice of

arbitrariness or if there is a colourabsle exercise of power. Therefore,

the decisions of the Supreme Court cited by the learned counsel for the

petitioner on the aforesaid aspect, including those in the case of Prem

Prakash (supra), Asha Kaul (supra), R.S. Mittal (supra), A.P. Aggarwal

(supra) and Noida Entrepreneurs Association (supra) need not detain

this Court for too long as they enunciate the settled judicial principles of

service jurisprudence that have been consistently followed, on the issue

of testing the State action on the anvil of non-arbitrariness, good faith

and bonafide exercise of power when examining the decisions of the

Government of filling up/declining to fill up the vacancies that may have

arisen in a particular organization/PSU etc. from a select panel. The

only caveat is that mere inclusion in the select list does not confer upon

the candidates included therein, an indefeasible right to appointment.

25. The first question that falls for consideration in the instant case is

whether the order dated 19.3.2012 issued by the ACC recommending

the name of the petitioner for appointment to the post of Director

(Finance) in the respondent No.2/SPMCIL amounted to a

"communication" to the petitioner for vesting a legal right in him. It is

settled law that for an order passed by the State or its functionaries to

be effective, the same must be communicated to the person who would

be affected by that order and until the order is so communicated, it

remains provisional in nature and it would be open to the concerned

authority to reconsider the matter and recall/alter the order. In the

well celebrated decision of a Constitution Bench of the Supreme Court in

the case of Bachhittar Singh (supra), the Supreme Court made the

following observations :-

"9. The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government, two things are necessary. The order has to be expressed in the name of the Governor as required by cl.(1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up, the State Government cannot in our opinion, be regarded as bound by what was stated in the file. As long as the matter rested with him, the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.

10. The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an advisor and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatsoever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage, a Minister or the Council of

Ministers may express quite a different opinion one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government, it must be communicated to the person concerned..........." (emphasis added)

26. The aforesaid observations were made after taking into

consideration an earlier decision of the Constitution Bench of the

Supreme Court in the case of State of Punjab vs. Sodhi Sukhdev Singh,

reported as AIR 1961 SCC 493, relevant extract whereof reads as

under :

"(42). ..............Mr. Gopal Singh attempted to argue that before the final order was passed, the Council of Ministers had decided to accept the respondent‟s representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent. Until the final order is thus communicated to the respondent it would be open to the Council to consider the matter over and over again, and the fact that they reached provisional conclusions on two occasions in the past would not alter the character of the said conclusions. The said conclusions, provisional in character, are a part of the

proceedings of the Council of Ministers and no more............." (emphasis added)

27. In the case of Gulabrao Keshavrao Patil (supra), relied upon by

the respondents, while dealing with the question as to whether it could

be said that the State of Gujarat had taken a decision on the objections

raised by the appellants therein under the Land Acquisition Act, 1894,

the Supreme Court had discussed as to how the Cabinet, known as the

Council of Ministers, is the driving and steering body responsible for the

governance of the country and is, as a whole, collectively responsible

for the advice rendered to the President of India for conduct of business

of each department. In the context of a Council of Ministers with the

Chief Minister at its head to aid and advice the Governor in exercise of

its functions, it was noted that before the action or the decision is

expressed in the name of the Governor as prescribed in the Business

Rules and communicated to the concerned party, by necessary

implication it is open to the Chief Minister to send for the file, examine

it by himself or take a decision, even though the subject was allotted to

a particular Minister for convenient transaction of the business of the

Government, the ultimate object being to secure an impartial, pure and

efficient system of administration.

28. In the aforesaid decision, reference was also made to the decision

of the Constitution Bench in the case of Bachhittar Singh (supra),

wherein it was held that the order must be expressed in the name of

the Governor, as required under Clause (1) of Article 166 of the

Constitution of India and then it has to be communicated, and till the

said order is drawn up in accordance with law, the State Government

cannot be regarded as bound by what it had stated in the file.

Therefore, until the advice is accepted by the Governor, whatever the

Minister or the Council of Ministers may say with regard to adopting a

particular manner, it does not become the action of the State until the

said advice is accepted by the head of the State. Thus, the order

passed by the Chief Minister, even though it is a matter pertaining to

the portfolio of the Revenue Minister, would be deemed to be an order

of the Council of Ministers and its contents would be the Chief Minister‟s

advice to the Governor for which the Council of Ministers would be

collectively responsible. The view taken above was reiterated by the

larger Bench of seven Judges in the case of State of Karnataka vs.

Union of India, reported as (1977) 5 SCC 608.

29. Similarly, in the case of Kedar Nath Bahl vs. State of Punjab,

reported as (1978) 4 SCC 336, a three-Judge Bench of the Supreme

Court held that expression of an order in the name of the Governor as

required by Article 166 of the Constitution of India and communication

thereof to the party affected thereby are conditions precedent for the

said order to bind the Government. In the aforesaid case, the order

initially made by the Minister was cancelled by the Chief Minister before

it was communicated, and the said order was upheld to be legal. A

similar view was taken in the case of State of Kerala vs. A.

Lakshmikutty, reported as (1986) 4 SCC 632.

30. The court may usefully refer to another decision of the Supreme

Court in the case of Tagin Litin vs. State of Arunachal Pradesh & Ors.,

reported as (1996) 5 SCC 83, where it had the occasion to examine a

case where the Deputy Commissioner, State of Arunachal Pradesh being

the competent authority under Clause 5(1) of the Assam Frontier

(Administration of Justice) Regulation 1945, had approved the

appointment of the petitioner therein as the Head Gaonburah and,

without issuing a formal appointment order, directed the Additional

Deputy Commissioner to inform the petitioner about the said approval.

However, before such an information could be communicated to the

petitioner, with a view to ensure a free and fair selection by considering

a rival claim to that post, the Deputy Commissioner restrained the

communication of the approval to the petitioner and thereafter by

another order, he had appointed the rival claimant as the Gaonburah.

31. In the aforesaid case, the question that arose for consideration by

the Supreme Court was whether by virtue of the order dated 15.2.1994,

the petitioner therein could be treated as having been appointed as the

Head Gaonburah and by passing the subsequent order dated 19.4.1994,

he was removed from the said post. After placing reliance on the

decision of the Constitution Bench in the case of Bachhittar Singh

(supra), the Supreme Court had observed that an appointment to a

post or office postulates three steps: (a) a decision by the competent

authority to appoint a particular person; (b) incorporation of the said

decision in an order of appointment; and (c) communication of the

order of appointment to the person who is being appointed and all the

three requirements must be fulfilled for an appointment to be effective.

32. In the instant case, vide order dated 19.3.2012, the ACC had

recommended the name of the petitioner for being appointed as

Director (Finance) in the respondent No.2/SPMCIL. Subsequently, vide

order dated 23.4.2012, the ACC had superseded its earlier

recommendation dated 19.3.2012 and proceeded to recommend the

name of the respondent No.3 for appointment to the very same post.

This was followed by a communication dated 27.4.2012 addressed by

the Ministry of Finance to the respondent No.3, conveying the ACC‟s

approval to his appointment to the subject post.

33. Given the aforesaid facts, conditions (a) & (b) mentioned in the

case of Tagin Litin(supra), for appointment to a post/office stand

satisfied in the present case. The only question that remains is

whether the litmus test prescribed in condition (c) with regard to

communication of the order to the petitioner, was satisfied before the

order dated 23.4.2012 came to be passed, whereunder respondent No.3

was appointed to the subject post. For coming to any conclusion in

respect of fulfillment of the third condition as stipulated above, it is

necessary to examine the submission made by learned counsel for the

petitioner that irrespective of the fact that the recommendations made

by the ACC, vide order dated 19.3.2012, had not been communicated

directly to the petitioner, the said order had become final on its

circulation to other Ministries and departments and on its

announcement on the website of a private portal, and this should be

deemed to be a communication to him.

34. Going back to the case of Bachhittar Singh (supra), it was

observed therein that until an order is communicated to the person

affected by it, it would be open to the concerned authority to consider

the matter over and over again. Following the said judicial dicta, this

Court is of the opinion that unless and until the recommendations made

by the ACC translate into some concrete action on the part of the

State/authority by issuance of a communication to the person

concerned informing him of his appointment, the said recommendation

cannot be regarded an order of the competent authority, as it still

remains open for consideration and subject to change.

35. In the instant case, before the recommendations made by the

ACC, vide order dated 19.3.2012, were acted upon, the same were

superseded by virtue of the order dated 23.4.2012 that was duly

conveyed to the respondent No.3 in the form of a communication dated

27.4.2012, addressed by the Ministry of Finance. It is apparent from the

facts of the case that prior to issuance of the order dated 23.4.2012,

there was no communication of the order dated 19.3.2012 made to the

petitioner with regard to the recommendation made by the ACC for his

appointment as Director (Finance) in the respondent No.2/SPMCIL.

When the decision dated 19.3.2012 recommending the petitioner‟s

appointment to the subject post, was never communicated to him

directly, it has to be held that it had remained provisional/tentative in

nature and the petitioner cannot argue that an indefeasible right had

accrued in his favour that would entitle him to the appointment.

36. For the aforesaid reason, the contention of the learned counsel for

the petitioner that an adverse order needs to be communicated but a

positive order need not necessarily be communicated in writing to the

addressee, is turned down being devoid of merits. Nor is the Court

persuaded by the stand taken by the petitioner that even in the absence

of non-communication of an order, based on the recommendation made

by the ACC, a vested right had accrued in his favour and the said order

could not be rescinded by the competent authority without affording an

opportunity of hearing to him.

37. The decision in the case of Amar Singh Harika (supra) relied upon

by learned counsel for the petitioner would not be of any assistance as

it does not state that a positive order passed in a case need not

necessarily be communicated in writing to the addressee and

publication thereof would meet the requirement. In the said case, a

copy of the respondent‟s dismissal order was forwarded to six persons

noted thereunder, but a copy of the same was not sent to the

respondent himself. In the said factual matrix, the Supreme Court had

observed that mere passing of an order of dismissal would not be

effective unless and until it is published and communicated to the officer

concerned and that an order of dismissal passed by an appropriate

authority and kept with itself, cannot be said to take effect unless the

officer concerned knows about the said order or it is otherwise

communicated to all parties concerned. The court had pointed out the

perils and pitfalls of passing of an order of dismissal kept by the

appropriate authority in its file, without communicating it to the officer

concerned or otherwise publishing it and observed that it will take effect

from the date when the same was actually written out by the said

authority. The aforecited decision does not deal with the converse

situation where an order recommending appointment was not

communicated to the person concerned.

38. This Court is not persuaded by the arguments advanced by the

counsel for the petitioner that merely because a copy of the order dated

19.3.2012 was forwarded for information to some departments, it would

amount to publication thereof. Copies of the order dated 19.3.2012

issued by the ACC, recommending the petitioner‟s name for

appointment to the subject post were only conveyed within the

departments and the concerned Ministries, but such a communication

can hardly be treated as a "publication", as sought to be urged by the

petitioner.

39. Similarly, the decision of the Supreme Court in the case of Qimat

Rai Gupta (supra) would also not advance the case of the petitioner as

in the said case, it was observed that communication of an order is a

necessary ingredient for bringing an end result to a status and to

provide an opportunity to a person to take recourse to law if he is

aggrieved thereby, the said order is required to be "communicated".

40. Coming to the argument of the learned counsel for the petitioner

that an irregular ACC had cleared the name of the respondent No.3 for

appointment to the subject post and the order dated 23.4.2012 was

passed by the ACC without following the due process and without

participation of its members, in the light of the decisions of the

Supreme Court in the cases of Bachhittar Singh (supra), Gulabrao

Keshavrao Patil (supra), Kedar Nath Bahl (supra) and A. Lakshmikutty

(supra), the said submission is found to be fallacious. It may be

emphasized that the business of the State is very intricate and has to

be conducted through the agency of a large number of officials and

authorities. In the case of the ACC, the constituents are the Prime

Minster, Home Minister and the Minster In-charge of the concerned

Administrative Ministry/Department. When it comes to Board level

appointments to posts in PSUs, it is the ACC that finally recommends

the name of the concerned officer for appointment, through the office of

the Establishment Office that acts as a Secretariat to the ACC. Further,

in the matters of appointment to Board level posts, the role of the CVC

is pivotal. The CVC is required to act as a watchdog and ensure that

persons appointed to Board level posts have an unimpeachable

integrity. Thus, clearance by the CVC from the vigilance angle has been

made mandatory and cannot be dispensed with under any

circumstances.

41. In the present case, as noted above, after the subject post was

advertised by the PESB and all the applications scrutinized, a panel for

appointment was prepared where the petitioner‟s name was placed at

Sr. No.1 and that of the respondent No.3 was placed at Sr. No.2.

Between May, 2011 to January, 2012, no progress was made as

vigilance clearance was not received in respect of the petitioner, though

the same was received in respect of the respondent No.3. Due to the

urgency expressed by the Department of Economic Affairs to fill up the

post of Director (Finance) on a regular basis for the efficient functioning

of the respondent No.2/SPMCIL, a proposal was forwarded by it to the

DOPT on 12.9.2011 recommending the name of the respondent No.3 for

appointment to the subject post. In October, 2011, the DOPT

requested the Ministry of Finance for details of the case regarding the

complaint in respect of the petitioner, pending with the CVC and the

CVO of the department and the said information was furnished to the

Ministry on 13.10.2011.

42. After about two months, vide letter dated 6.1.2012, the DOPT

informed the Ministry that the proposal for appointment of the

respondent No.3 to the said post had been submitted to the ACC.

However, the Ministry of Finance reiterated the name of the respondent

No.3 for appointment to the post of Director (Finance) on the ground

that he was academically and professionally better qualified. In the

meantime, vide O.M. dated 19.3.2012, the ACC Secretariat conveyed

the appointment of the petitioner to the subject post.

43. Immediately thereupon, the then Finance Minister had prepared a

disagreement note dated 2.4.2012 stating inter alia that the name of

the respondent No.3 had been recommended to the subject post and

not that of the petitioner. The said note was placed before the Prime

Minster and the order dated 19.3.2012 was superseded by the order

dated 23.4.2012, wherein the ACC recommended the name of the

respondent No.3 to the subject post. Apart from explaining the

circumstances in which the order dated 19.3.2012 was

recalled/superseded and the order dated 23.4.2012 came to be passed,

much emphasis was laid by learned ASG on the fact that departmental

proceedings were contemplated against the petitioner and vide note

dated 21.3.2013, the Directorate of Currency had mentioned the fact

that the Chief Vigilance Officer of the Department of Economic Offences

had directed that disciplinary action be initiated against five officers,

including the petitioner herein, for alleged procedural lapses in the

procurement procedure relating to purchase of One Line Printing and

Furnishing Plant and Machinery for the Bank Note Press, Dewas.

44. The Court was informed that with the approval of the then

Finance Minister and the competent authority, a decision had been

taken to initiate departmental action against the petitioner for causing

pecuniary loss to the respondent No.2/SPMCIL and the Department of

Expenditure. At that stage, learned counsel for the petitioner had

referred to an O.M. dated 7.12.2011 issued by the CVC, wherein on the

complaint regarding irregularities in the procurement of One Line

Printing Machine, it was noted that the Commission had considered the

findings of its direct enquiry report along with the views of the CVO and

had advised closure of the said case against the petitioner and four

other officers of the respondent No.2/SPMCIL. In the said OM, the

limited recommendation made by the CVC was that the procedural and

administrative deficiencies noted in the proceedings of the tender, need

to be rectified and the tendering procedure streamlined by the

respondent No.2/SPMCIL.

45. Subsequently, the petitioner had adopted the RTI route to obtain

a copy of the O.M. dated 5.8.2014, issued by the CVC, wherein the

Commission had reiterated the contents of its earlier O.M. dated

7.12.2011, advising closure of the aforesaid complaint and noting inter

alia that there is no ground for seeking ex-post facto approval of the

charge-sheets proposed to be issued in the matter regarding initiation

of departmental proceedings against the petitioner. In other words, the

CVC did not recommend initiation of any departmental action against

the petitioner and resultantly, the vigilance clearance granted to him by

the CVC on 9.1.2012, remains in force.

46. Having unraveled the labyrinthine twists and turn of events that

have taken place in the instant case, right from 30.12.2010, when the

subject post was advertised, till date, it has emerged that the

respondent No.3, who was listed at Sr. No.2 in the panel for

appointment to the subject post and actually selected by virtue of the

appointment letter dated 23.4.2012, has since withdrawn his hat from

the ring and resultantly, the only name in the panel that survives for

consideration is that of the petitioner, whose name was placed at Sr.

No.1. In the meantime, during the pendency of the present

proceedings, the CVC has issued an OM dated 5.8.2014, wherein a

decision has been taken to close the case against the petitioner from

the vigilance angle and the CVC has declined to grant an ex-post facto

approval for initiation of departmental proceedings against him. As a

result, the vigilance clearance granted to the petitioner by the CVC on

9.1.2012, remains quite intact.

47. In the aforesaid facts and circumstances, this Court is of the

opinion that now there is no impediment in placing the name of the

petitioner, which is the only name that survives for consideration in

terms of the panel prepared by the PESB for the subject post, before

the ACC for a fresh consideration for appointment to the post of

Director (Finance) in the respondent No.2/SPMCIL, without insisting on

any further vigilance clearance, but subject to his satisfying any other

requirement as may be considered necessary. Ordered accordingly. As

the subject post has not been filled up through regular appointment for

the past almost four years due to the legal tangle in which the parties

have been embroiled, it is deemed appropriate to direct the respondent

No.1/UOI to act without any further delay and place the matter before

the ACC for a decision within four weeks from today, alongwith a

written request submitted to the Office of the Establishment Officer to

convey the decision taken by the ACC to the concerned Ministry, as per

the procedure prescribed, as expeditiously as is possible.

48. With the aforesaid observations, the present petition is disposed

of, while leaving the parties to bear their own costs.

(HIMA KOHLI) JUDGE NOVEMBER 07, 2014 sk/mk/rkb