Dr. Kanwaljeet Singh vs Union Of India & Ors
2017 Latest Caselaw 3952 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI

                                            Judgment reserved on: July 20, 2017
                                           Judgment delivered on: August 08, 2017

+      W.P.(C) 7711/2016

       DR. KANWALJEET SINGH                                           ..... Petitioner
                                       Through:      Mr. Kunal Vinayak, Adv.

                        Versus


       UNION OF INDIA & ORS                                          ..... Respondents
                                       Through:      Mr. Sanjay Jain, ASG with Mr. D.P.
                                                     Bhardwaj, CGSC with Mr. Satya
                                                     Prakash Singh and Ms. Adrija
                                                     Thakur, Advs. for R1 and R2.
                                                     Mr. Kanwal Chaudhary and Mr.
                                                     Rishu Kant Sharma, Advs. for R3
                                                     and R5.

CORAM:
HON'BLE MR JUSTICE V. KAMESWAR RAO
                                    JUDGMENT

V. KAMESWAR RAO, J

1. The present petition has been filed by the petitioner with the following prayers:-

"Therefore, on the facts and in the circumstances of the case it is most humbly and respectfully prayed that this Hon‟ble Court may graciously be pleased to:

A. Issue a writ of certiorari or any other appropriate writ, order or direction to quash and set aside the illegal, unjust, unfair and arbitrary approval order dated 22.09.2015 of the ACC (Annexure P-9) and the appointment order dated 23.09.2015 (Annexure P-10) vide which respondent No.5, who was placed at No. 2 on merits in the list of candidates recommended in the order of preference by the Search-cum-Selection

Committee, has been appointed to the post of Vice-Chancellor of LNIPE, Gwalior by the Minister of State (I/C), Youth Affairs and Sports; and B. Issue a writ in the nature of Mandamus or any other appropriate writ or order directing the respondent No.1 to 4 to appoint the petitioner (placed at the No.1 by the Search-cum-Selection Committee) to the post of Vice- Chancellor of LNIPE, Gwalior; and/or C. Pass such further or other orders which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case in the interest of justice."

2. The petitioner in effect, is seeking quashing of the communication dated

September 22, 2015 whereby the Secretariat of the Appointments Committee of the

Cabinet has conveyed the decision of the ACC approving the appointment of the

respondent No.5 as Vice Chancellor Laxmibai National Institute of the Physical

Education, Gwalior (for short 'LNIPE') and the subsequent appointment of the

respondent No.5 on the said post vide Office Memorandum dated September 23, 2015.

3. The relevant facts as noted from the writ petition are, on December 08, 2014 the

Search cum Selection Committee consisting of three Members for appointment of Vice

Chancellor, LNIPE was constituted by the respondent No.1 in accordance with the

provisions contained under Rule 26 of the Memorandum of Association/Rules of 2014

of LNIPE, Gwalior and on January 6, 2015 and January 9, 2015 the respondent No.1

issued notices inviting applications from eligible candidates, for appointment to the post

of Vice Chancellor, LNIPE.

4. It is the case of the petitioner that he submitted his application along with all

supporting documents and credentials on January 31, 2015. On February 25, 2015, the

petitioner was asked to appear before the Search cum Selection Committee on March

20, 2015 for making a power-point presentation. On March 19, 2015 and March 20,

2015, the, Search cum Selection Committee met to conduct interviews. It is the case of

the petitioner that the Search cum Selection Committee recommended the following

three candidates in the order of preference for appointment to the post of LNIPE,

Gwalior:-

(i)     Dr. Kanwaljeet Singh (Petitioner);

(ii)    Dr. Dilip Kumar Dureha (Respondent No.5);

(iii)   Dr. Nayana Diwakar Nimkar.

5. The petitioner has averred, on July 23, 2015, the respondent No.1 has

recommended the name of the candidate placed at Serial No.2 Dr. Dilip Kumar Dureha

(Respondent No.5) for the post of Vice Chancellor, LNIPE, Gwalior and his name was

forwarded for obtaining the approval of the ACC. The ACC accordingly approved his

name for appointment, which was conveyed vide its letter dated September 22, 2015

and pursuant thereto, respondent No.5 was appointed on September 23, 2015.

6. The learned counsel for the petitioner has drawn my attention to page 82 of the

paper book to submit that the Search cum Selection Committee had recommended three

candidates (referred above) in the order of preference with petitioner at Sl. No.1. He

would state, in terms of the Office Memorandum of the Ministry of Personnel and

Public Grievances and Pensions dated July 30, 2007 (Annexure P-12), the panel

recommended by the Search cum Selection Committee will have to be accepted in-toto

by the Ministry/Department. Any deviation in the matter would require, the prior

approval of the ACC. He states, the said instructions were reiterated by the Department

of Personnel and Training vide its OM dated July 17, 2012 wherein a reference was

given to the earlier OM dated July 30, 2007 and also, the fact that there are number of

instances of panel being scrapped without the approval of the ACC. He has also drawn

the attention of the Court to the OM dated September 05, 2014 wherein, the DoP&T has

referred to the observation made by the ACC that in some of the cases submitted by

various Ministries/Departments, the Selection Committee/ Search cum Selection

Committee are not recommending the panel in the order of preference. The DoP&T

reiterated that the Search cum Selection Committee must invariably indicate the order of

preference. According to him, Ministries and Departments were requested to follow the

laid down norms without any deviation. It is his submission, in the case in hand the

order of preference was deviated from, by the President i.e Minister of State (I/C),

Youth Affairs and Sports by recommending the name of Dr. Dilip Kumar Dureha,

respondent no.5, that too, without the approval of the ACC. Once the recommendation

in the order of preference was accorded by the Search cum Selection Committee, the

Ministry/Department was not at all left to exercise any discretion or authority to alter

the said order of preference. He states, the exercise is a mala-fide exercise overlooking

the merit of the petitioner, which is extraordinary, being a person of highest level of

competence, integrity, moral and institutional commitment and the same is clear from

the comparative chart showing the qualification/experience of the petitioner as well as

respondent No.5.

7. It is also his submission that when the case was sent to the ACC for its approval

by the respondent No.1 Ministry, there was no proper representation on the order of

preference recommended by the Search cum Selection Committee, which resulted in the

ACC approving the name of respondent No.5, whose name was recommended by the

President i.e Minister of State (I/C), Youth Affairs and Sports. Had the respondent No.1

shown the order of preference recommended by the Search cum Selection Committee,

the ACC would not have approved the name of the respondent No.5. That apart, it is his

submission, full CR dossiers of the candidates placed at serial No. 1 to 3 in the order of

preference were never sent to the ACC for its approval nor any specific reason for not

forwarding such information as is mandatory under 13 (c) of the common proforma for

proposal requiring approval of the ACC was given with ulterior motives. The learned

counsel for the petitioner was at pains to state that the stand of the respondents 1 and 2

that the respondent No.5 being 57 years of age and the youngest of the three candidates,

the appointment is justified, does not borne out from the records, which have been

procured by the petitioner under the RTI. He states, the primary consideration for

recommending the respondent No.5 on the ground the respondent No.5 is better on

merit, is not tenable. The learned counsel for the petitioner has relied upon the

following judgments:-

(i) 1992 AIR SC 1806National Institute of Mental Health& Neuro Sciences v. Dr. K. Kalyana Raman;

(ii) 2016 (4) PLJR 441 The State of Bihar Through the Department of Energy Govt. of Bihar Patna v. Chhathu Lal Prakash Son of Late Upasu Manji and

connected Letters Patent Appeals;

(iii) 2010 AIR SCW 5907 Dr. Basavaiah v. Dr. H.L. Ramesh and ors and connected Civil Appeal;

(iv) 2005 (125) DLT 468 Dr. V.K. Agrawal v. University of Delhi and ors;

(v) 2011 (3) SLR 732 Vinayak Bhagwanrao Bhise v. State of Maharashtra;

(vi) 2016 Latest HLJ (H.P.) 596 Dr. J.S. Chauhn v. State of Himachal Pradesh and ors and connected writ petition;

(vii) 2016 (1) SLR 366 Federation of Farm Universities Teachers' Association in Karnataka (ffutak), Bangalore and another v. State of Karnataka and ors;

(viii) 2001 AIR (SC) 1369 A.K. Doshi v. Union of India and connected Civil Appeals;

(ix) 2015 (217) SKT 199 Shiv Charan Lal Sharma v. Union of India;

(x) 2016 (3) CalLJ 569 State of West Bengal & Ors v. Nilmadhab Thakur and Ors;

(xi) 2016(3) GauLT 294 Abhinav Deka Barua v. State of Assam and Ors.;

(xii) 1994(1) AD (Delhi) 473 Dr. S.C. Bajpai v. University of Delhi;

(xiii) 1984 AIR (SC) 1850 Jatinder Kumar v. State of Punjab;

(xiv) 1995 AIR (SC) 568 Union of India etc v. N.P. Dhamania, etc;

(xv) 1995 AIR (SCW) 2044 R.S. Mittal v. Union of India;

(xvi) 2001 (Sup2) Scale 191 Amaresh Chandra Pandey v. Prakash Singh and Ors.; (xvii) 2011 AIR (SCW) 1690 Central for Public Interest Litigation and another v. Union of India and another.

8. On the other hand, Mr. Sanjay Jain, learned Additional Solicitor General

appearing for the respondents 1 to 4 would justify the appointment of the respondent

No.5 as Vice Chancellor of LNIPE, Gwalior. He states, the Office Memorandums dated

July 30, 2007 and July 17, 2012 were followed by Office Memorandum dated

September 05, 2014 wherein in para 2, it has been clearly mentioned that the ACC has

reiterated that unless statutorily required not to arrange the names in the panel in the

order of preference, the Selection Committee/Search cum Selection Committee must

invariably indicate the order of preference. It is his submission, as Rule 26 stipulates a

panel of three names to be suggested by the Search cum Selection Committee, which

necessarily means, the names shall not be suggested in the order of preference. In this

regard, he draws my attention to Annexure P-2 (page 42 of the paper book). He states,

even if the order of preference has been given by the Search cum Selection Committee,

the President i.e Minister of State (I/C) was within his right to recommend one name

from the panel for appointment to the post of Vice Chancellor in LNIPE. He states, the

relevant consideration for recommending the name of respondent No.5 was his merit.

Mr. Jain states that even otherwise, it is seen that the respondent No.1 while sending the

case for approval to the ACC, has not concealed any material. Entire facts of the case

and all required information including the recommended panel of Search cum Selection

Committee with all its observation were made available to the ACC for perusal for a

decision. He denied, the stand of the petitioner that vital information was deliberately

omitted at the time of sending the case to ACC. He states, the premise on which the

present petition has been filed being contrary to Rule 26 and the factual position and

there are no allegations malafides against the Authorities, who had taken decision, this

Court would not like to interfere with the impugned action. He concedes, that the stand

of the respondents in the counter affidavit, with regard to age, is not borne out from the

records and tenders apology on the same.

9. Having heard the learned counsel for the parties, the only issue, which arises for

consideration is, whether the appointment to the post of Vice Chancellor, LNIPE,

Gwalior should have been made in terms of the order of preference recommended by

the Screening cum Selection Committee. Before I answer the aforesaid issue, it is

necessary to reproduce Rule 26 of the MOA/Rules and the instructions dated July 30,

2007, July 17, 2012 and September 05, 2014 as under:-

"Rule 26 Vice-Chancellor

(i) The Vice-Chancellor shall be a whole time salaried officer of the Institute and shall be appointed by the President of LNIPE, with the prior approval of Appointments Committee of Cabinet, from a panel of three names suggested by a Search cum Selection Committee specifically constituted for the purpose by the Ministry of Youth Affairs and Sports, Government of India. The composition of the above committee shall be as follows:-

a. A nominee of the President of the LNIPE as Chairperson of the search cum selection committee.

b. A nominee of the Government of India (Ministry of Youth Affairs and Sports), who shall be an eminent academician/educationist nominated by the Central Government, preferably an ex-VC or serving VC of any University funded by the Central/State Government.

c. A nominee of the Board of Management-member.

Provided further that if the President does not approve of any name as recommended by the search committee, he/she may call for a fresh panel."

Dated the 30th July, 2007

OFFICE MEMORANDUM Subject: Setting up of Search Committees / Search-Cum-Selection Committees.

XXXXX XXXXX XXXXX

(v) The panel recommended by the Committee will have to be accepted in toto by the Ministry / Department. Any deviation in the matter will require the prior approval of the ACC;

(vi) Extension in tenure of persons other than the Chief Executives shall also be considered by the Search-Cum-Selection Committee and its recommendations shall be accepted by the Ministry / Department. Any proposal to reject the recommendations will require the approval of the ACC. Authority for approval for extension in tenure of Chief Executives will rest with the ACC;

              XXXXX                    XXXXX                            XXXXX"

                                             "New Delhi, the 5th September 2014
                              OFFICE MEMORANDUM

Subject: Setting up of Search Committees/Search cum Selection Committee Attention of all Ministries/Departments is invited to DoPT‟s Om No.AB.14017/11/2004-Estt. (RR) dated 25.05.2009 on the subject mentioned above conveying the direction of the ACC that the Selection Committee/Search cum Selection Committee should recommend panels in the order of merit. The ACC has, however, observed that in some of the cases submitted by various Ministries/Departments, the Selection Committees/Search cum Selection Committees are not recommending the panel in order of merit/preference.

2. In view of the above, the ACC has reiterated that unless statutorily required not to arrange the names in the panel in the order of preference, the Selection Committee/Search cum Selection Committee must invariably indicate the order of preference.

3. All the Ministries/Departments etc. are requested to ensure compliance of these instructions."

"New Delhi Dated the 17th July, 2012 OFFICE MEMORANDUM Subject: Setting up of Search Committees/Search cum Selection Committee Reference is invited to this Department‟s OM of even number dated 30.07.2007 on the above subject. The guidelines prescribe that the panel recommended by the Committee will be valid for one year. If no selection is made within a period of one year, a fresh committee shall be constituted to prepare a fresh panel. The guidelines further stipulate that the panel recommended by the Committee will have to be accepted in toto by the Ministry/Department. Any deviation in such matters will require the prior approval of ACC.

2. It has been observed that there are a number of instances of scrapping of panel by various Ministries/Departments without the approval of ACC. This is not a healthy practice. All the Ministries/Departments are requested to follow the laid down norms without deviation and that the powers rested with the ACC should not be exercised by the Ministries/Departments without the approval of ACC.

3. These instructions may also be brought to the notice of all organizations under their administrative control for strict compliance.

4. Hindi version will follow."

10. The submission of the learned counsel for the petitioner based on the aforesaid

OMs are, (i) the Search cum Selection Committee must invariably indicate the order of

preference; (ii) the Ministry/Department is required to accept the recommendation of

the Search cum Selection Committee in toto, any deviation in the matter would require

prior approval of the ACC.

11. There is no dispute that in the case in hand, the Search cum Selection Committee

had, in its recommendation given the order of preference, inasmuch as the name of the

petitioner was at Sl. No.1. It is also an undisputed fact that the President i.e Minister of

State (I/C), Youth Affairs and Sports had recommended the name of the person at Sl.

No.2 (respondent No.5) of the recommendation of the Search cum Selection Committee,

for approval of the ACC. The submission of the learned counsel for the petitioner that

the President i.e Minister of State (I/C), Youth Affairs and Sports even if had to deviate,

he had to take the approval of the ACC, is appealing on a first blush, but it is to be seen

whether in view of Rule 26, as contended by Mr. Sanjay Jain, there was any

requirement under the Rules for making recommendation in the order of preference. I

have already reproduced Rule 26 of the Memorandum of Association/Rules, which

relates to Vice Chancellor. The Rule only stipulates, the Vice Chancellor shall be

appointed by the President of the LNIPE with the prior approval of the ACC from panel

of three names suggested by the Search cum Selection Committee. The Rule, does not

expressly mandate not to arrange the names in the panel in the order of preference,

which is the requirement of OM dated September 05, 2014, wherein it is stated "unless

statutorily required not to arrange the names in the panel in the order of preference, the

Search cum Selection Committee must invariably indicate the order of preference". It

appears, in view of the said position, the Search cum Selection Committee has given its

recommendation in the order of preference. So, the submission of Mr. Jain that, in view

of Rule 26, it was not obligatory for the Search cum Selection Committee to

recommend the names in the order of preference, is without merit. Now, if the Search

cum Selection Committee has given the recommendation in the order of preference,

whether recommending the name of respondent No.5 for approval of the ACC amounts

to deviating from recommendation of the Search cum Selection Committee, which

requires prior approval of the ACC is the question, which now arises for consideration.

12. To answer this, it is necessary to examine the scope of all the three OMs referred

above. The OM dated July 30, 2007, on which reliance was placed by the learned

counsel for the petitioner, more specifically Clause 5(v) (page 93 of the paper book),

stipulates that the panel recommended by the Committee will have to be accepted in

toto, any deviation in the matter requires the prior approval of the ACC. Suffice to

state, there is no stipulation in this OM, which prescribe the recommendation of the

names in the panel in the order of preference. The position of Clause 5(v) of July 30,

2007 was reiterated in the OM dated July 17, 2012 in which it was stated that, it was

observed that number of instances of scrapping of panel by various

Ministries/Departments without the approval of the ACC. In that context, it reiterated

to follow the laid down norms without deviation and the powers rested with the ACC

should not be exercised by the Ministries/Departments without the approval of the

ACC. In other words, what was contemplated by the OM dated July 30, 2007 and

reiterated by July 17, 2012 was that the panel recommended must be accepted in toto

and should not be deviated without the approval of the ACC. In toto means, totally;

altogether. It is only when the panel is deviated totally/altogether i.e scrapped, prior

approval of ACC is required. Suffice to state, the said OMs (of 2007 and 2012) do not

relate to a situation where a panel of three names recommended in the order of

preference, even though accepted in toto but instead person at Sl. No.1, the person at Sl.

No.2 was recommended for appointment to ACC. This I say so because the OM dated

September 05, 2014, even though relate to Search cum Selection Committee, does not

follow the two OMs of July 30, 2007 and July 17, 2012, but it follows the OM dated

May 25, 2009, which OM for the first time suggested that the Search cum Selection

Committee should recommend the panel in the order of merit. If the plea of the learned

counsel for the petitioner is accepted, then there was no requirement to make a panel

consisting of three names; one name would have sufficed for approval of the ACC. But

Rule 26 stipulates three names and not one. May be the chances of the person at Serial

No.1 of the order of preference, are bright, but, there is nothing in Rule 26 or OM of

September 05, 2014, which suggest the person at Serial No.1, only needs to be

appointed. So, it follows, any person whose name finds mentioned in the panel, can be

appointed but with reasons on the file for recommending/appointing the person, lower

in the order of preference. Further any interpretation, in the manner pleaded by the Ld.

Counsel for the petitioner is accepted, it would be at variance with Rule 26, which

stipulates Vice-Chancellor is appointed from a Panel of three names. Moreover, in

terms of Proviso to Rule 26(1), the President has the power not to approve any of the

names suggested by the Search cum Selection Committee, which surely suggest the

discretion of the appointing authority to recommend any name in the panel for approval

of ACC, if in his opinion he is a better candidate.

13. I may state here, during the course of the arguments, note sheets of the relevant

file were produced in the Court. The note sheet dated March 31, 2015, reveals the

recommendation of the Search cum Selection Committee was put for the approval of the

Minister of State (I/C), Youth Affairs and Sports by the concerned Officer (Dy.

Secretary). He had put the case for approval of any one name from the panel of three

names. A reference was also made to Proviso to Rule 26 to the extent, that if the

President does not approve of any name as recommended by Search Committee, he/she

may call for a fresh panel. Thereafter, the noting of the next higher Officer dated April

01, 2015 records "The Search cum Selection Committee has recommended the above

names in order of preference. Their CVs are placed below for orders." The Minister

of State (I/C), Youth Affairs and Sports (the President) has stated that he has examined

the Biodata of all the three candidates and recommends the name of the respondent

No.5 considering his merits.

14. During the course of the arguments, it was put to Mr. Sanjay Jain, Ld. ASG as to

what was the material, which was sent to the ACC for its approval as it is the case of the

petitioner, that the Ministry/Department had not forwarded the correct/complete facts

and information with respect to recommendation made by the Search cum Selection

Committee to the ACC and had in fact deliberately omitted the phrase „in order of

preference‟. Mr. Jain has pointed out the record, which has already been filed by the

petitioner between pages 95 to 125 of the paper book. The said record includes the

recommendation made by the Search cum Selection Committee, particulars of the

Officers including qualification and experience, extract of Rule 26 etc. There is nothing

to deduce that the ACC has not considered the said recommendation while approving

the name of respondent No.5 for appointment. This answers the plea of the petitioner

that the phrase „in order of preference‟ has been deliberately omitted in the OM dated

July 23, 2015. The OM dated July 23, 2015 did state that the Minister of State (I/C) had

recommended the name of respondent No.5 for the post of Vice Chancellor. In any

case, it is expected that the ACC is aware of all the instructions issued from time to time

by the DoP&T, which have been referred above.

15. Insofar as the plea of the learned counsel for the petitioner on the inter-se merit of

the petitioner and respondent No.5 is concerned, suffice to state it is not for the Court to

assess their relative merits and sit as an Appellate Authority over and above the decision

of the Appointing Authority in the Ministry/Government. Moreover, the scope of

judicial review in the cases of appointments/promotions, is very limited unless and until

malafides have been alleged against the decision making Authority and proved based on

cogent evidence, the conclusion cannot be interfered. No such allegations have been

made; nor any Authority has been made party in person. The relevant averments in the

petition are that the appointment of respondent No.5 is result of manipulation,

misrepresentation and suppression of vital material before ACC and appointment is

malafide. On the averments so made, the selection of respondent No.5 cannot be set

aside. In this regard, I would like to refer to the judgment of the Supreme Court in the

case of J.K. Mishra v. Union of India and Ors (1997) 6 SCC 228, wherein in para 8,

the Supreme Court held as under:-

"8. Lastly it was urged that the order compulsorily retiring the appellant was a mala fide order as the same was passed at the instance of Shri

Manazure Muastafa Siddiqui, Accountant General, M.P., who bore grudge against the appellant. This argument is being noted only to be rejected. It may be noticed that the record before us does not show that Shri Manazure Maustafa Siddiqui was party to the suit. In fact he was not impleaded by name in the suit. Further, the allegations against Shri Siddiqui were totally vague. No interference of mala fide could be drawn from such allegations. In the absence of full facts and particulars in the plaint in respect of allegation of mala fides the order of compulsorily retiring the appellant cannot be held to be a mala fide order."

16. Now, insofar as the judgments relied upon by the learned counsel for the

petitioner are concerned, in National Institute of Mental Health & Neuro Sciences

(supra) the facts are, the petitioner before the Supreme Court, invited applications for

the post of Professor, Neurology. Dr. Gauri Devi, working as Assistant Professor in the

same Institute, also applied for the post. Dr. Kalyana Raman, Associate Professor of

Neurology in U.S.A. was also a candidate. The Selection Committee was constituted

under the Chairmanship of DGHS, Government of India. The Selection Committee,

after interview and assessing the relative merits, recommended panel of names for

appointment as Professor. Dr. Gauri Devi was placed first in the panel of names. Dr.

Kalyana Raman was the second. Dr. Gauri Devi was eventually appointed as Professor.

Her appointment was challenged by Dr. Kalyana Raman in the High Court. The High

Court allowed the writ petition, which judgment was impugned before the Supreme

Court. The High Court allowed the writ petition on two points; (1) that it was not

possible to say with any degree of confidence that Dr. Kalyana Raman's case has

received a fair and reasonable consideration at the hands of the Selection Committee;

and (2) that the Selection Committee has not given any reason, however, brief to

establish any rational nexus between the facts said to have been considered by the

Selection Committee and the conclusion drawn by it. The Supreme Court has on the

second point held the functions of the Selection Committee as administrative. It held

that the High Court fell in error in stating that the Selection Committee ought to have

given reasons in preferring Dr. Gauri Devi. It held that there is no rule or regulation

brought to its notice requiring the Selection Committee to record reasons. In the

absence of any requirement, the selection made without reasons, cannot be faulted. The

Supreme Court also held, that procedural fairness is the main requirement in the

administrative process. The Selection Committee cannot be an exception to this

principle and it must take a decision reasonably, without guided by extraneous or

irrelevant consideration, but there is nothing on record to suggest that the Selection

Committee did anything to the contrary. It also held that the Selection Committee

consists of Experts in the subject for selection. They were men of high status and also

of unquestionable impartiality. The Courts should be slow to interfere in their opinion.

Suffice to state, this judgment shall not help the case of the petitioner.

17. In the case in hand, even though the Search-cum-Selection Committee placed the

petitioner at Serial No. 1 of the order of preference but the Appointing Authority i.e. the

President, who is the Minister of State (I/C) of the Youth and Sports, recommends the

name of the respondent No. 5 on merit, which has been approved by the ACC and the

petitioner having failed to specify extraneous considerations which resulted in such

recommendation/appointment and more over, the decision making authorities being the

highest authorities in the Ministry/Government, the judgment cannot be of any help to

the petitioner.

18. In sofar as the judgment in the case of Chhathu Lal Prakash and connected writ

petitions (supra) is concerned, the challenge in the writ petition was to the selection of

the respondent No. 8 as Director (Operation), South Bihar Power Distribution Company

Limited and the respondent No. 9 as Director (Project), North Bihar Power Distribution

Company Limited. The challenge was primarily on the ground that the respondent Nos.

8 and 9 were awarded punishment of withholding two increments which they concealed

in the application forms. Secondly, the seniority has been ignored. The official

respondents justified the impugned selection by stating that the selection was made by

High Powered Committee consisting of Chief Secretary and four officers of the rank of

Senior Principal Secretaries. The selection was made after considering overall record of

the candidates. The learned Single Judge allowed the writ petition, observing that the

minutes of the High Powered Committee do not shed any light as to why only the

recommended candidates were found to be the most suitable vis-à-vis other applicants.

The Division Bench relied upon the judgment in the case of National Institute of

Mental Health & Neuro Sciences (supra) and observed, there is nothing on record

which would establish that the requirement of procedural fairness has not been observed

in the instant case. The Division Bench observed that it would have set aside the order

of the Single Judge and ordered reinstatement of the respondent Nos. 8 and 9, however,

non-disclosure of punishment imposed on him by respondent No. 8, amounts to

concealing vital information. The Division Bench dismissed the LPA filed by Md.

Gheyasuddin, respondent No. 8, but it allowed the other LPA filed by the respondent

No. 9 as he mentioned the punishment awarded to him. In any case, the judgment of the

Division Bench only reiterates the law laid down by the Supreme Court in National

Institute of Mental Health & Neuro Sciences (supra) that, it is not necessary for the

Selection Committee to record reasons. The said judgment is of no help to the

petitioner. In any case, noting of the Minister of State (I/C), President LNIPE

recommending the respondent No. 5, as already been reflected above, shows application

of mind.

19. Insofar as the judgment of the Supreme Court in the case of Dr. Basavaiah

(supra) is concerned, there, the Supreme Court was considering facts, where University

constituted a Committee of experts, which recommended the appointment of the

appellants after evaluating their qualifications, experience and published work and

found them eligible and suitable for the post. The Supreme Court held, in academic

matters, the Courts have very limited role, particularly, when no malafide has been

alleged against the experts' constituted Selection Committee and the Court should not

sit as an appellate authority over the decision of the experts. This judgment is also of

no help to the petitioner. In the case in hand, the allegations of malafide against the

authorities are not there. Neither they are parties in their individual capacity, so as to

meet the allegations if any made against them. A decision taken by the Appointing

Authority cannot be reversed by this Court.

20. In Dr. V.K.Agrawal (supra), this Court was considering a case of re-employment

of the petitioner. His case was considered by an Advisory Committee. He was not

found fit for employment. This Court held, it is not for the Court to see whether

Teacher is a distinguished Teacher or not. It also held that the Court does not consist of

experts in the subject concerned, and the Court must refrain from going into the opinion

of the experts. It held that the Court cannot sit as an appellate court in the decision of

the expert members. This case also is of no help. The decision of the Appointing

Authority cannot be reversed by this Court in view of my conclusion above.

21. Insofar as the case of Vinayak Bhagwanrao Bhise (supra) is concerned, in the

said case, the Bombay High Court has held that the Court cannot sit in appeal over the

decision of the Selection Committee, consisting of experts; moreover, when no

allegation is made against the members of the Selection Committee.

22. In the case of Dr.J.S.Chauhan (supra), the Himachal Pradesh High Court held,

that the scope of judicial review of recommendations of Selection Committee is very

limited since the Selection Committee consists of experts. The Court also held that the

judicial review in such cases is very limited to oversee, whether the appointment had

contravened any statutory or binding rule or ordinance; and the Court should give due

regard to the opinion expressed by the Experts constituting the Selection Committee and

its recommendations.

23. In Federation of Farm Universities Teachers' Association in Karnataka

(ffutak), Bangalore and another (supra), the Karnataka High Court dismissed the

challenge to the appointment of the respondent No. 3 as Vice-Chancellor by holding

that the same was done as per the recommendations of the Search-cum-Selection

Committee on merit. It held, all statutory requirements have been complied with in the

making of the appointment. True, that in the case in hand, the Selection Committee, has

placed the petitioner at Serial No.1 in the order of preference, which was not adhered to

by the Appointing Authority that is the President of the Institute, while recommending

the person at Serial No.2, i.e., the respondent No.5 herein, whose name was eventually

approved and was appointed. Still the action of appointment is administrative in nature.

Translating the ratio of the judgments relied upon by the learned counsel for the

petitioner, the impugned action cannot be interfered with by this Court, unless, it is in

violation of statute; malafide; for extraneous consideration. That apart, if the reasoning

given by the Appointing Authority that, it recommends the name of respondent No.5,

being meritorious; this Court, cannot draw a conclusion otherwise to say that, on

comparison, it finds the petitioner more meritorious. Such is not the scope of judicial

review in view of the settled law laid down and referred to by the counsel for the

petitioner himself.

24. Insofar as the case of Dr. A.K. Doshi and connected appeals (supra) are

concerned, in the said case, some posts of Member, Company Law Board had fallen

vacant. The Selection Committee headed by a nominee of the Chief Justice of India

was constituted. The appellants before the Supreme Court were Mr. S.B.Mathur, who

was recommended for appointment as Member (Technical) and Dr. A.K.Doshi at serial

No. (1) in the reserved panel. In para 13 of the judgment, on which reliance has been

placed, it is noted that the Government of India framed Company Law Board Rules,

1993. It provided, selection of Members shall be made by the Government of India in

consultation with the Chief Justice of India. All materials relevant are to be placed

before the Selection Committee. It is the Selection Committee which makes selection

on the basis of relevant material. After the Selection Committee completes the exercise

and recommends one or more names for appointment, the recommendations along with

the material considered by the Selection Committee should be placed before the

Appointment Committee without any further addition or alteration. If in an exceptional

case, the Appointment Committee feels that certain material which was not available to

be considered by the Selection Committee, has come into existence in the meantime,

and the material is relevant for the purpose of appointment, then, the matter should be

placed before the Appointment Committee with the additional material for its

consideration. The Supreme Court held, such a course, will be in accordance with the

scheme of the Rules and the purpose of making appointment to important public office.

In the case in hand, as noted above, it is the submission of the learned Additional

Solicitor General, that the materials between pages 95 -125, were sent and were there

before the ACC, while seeking its approval, which included, the panel of names in the

order of preference along with the extract of Rule 26 and also the particulars of the

Officers in the panel, which included qualification and experience. If that be so,

relevant material including the recommendation of Search cum Selection Committee

was sent to ACC, still the ACC approved the name of respondent No.5 for appointment.

So this judgment has no applicability in the facts of this case.

25. Insofar as the judgment in the case of Shiv Charan Lal Sharma (supra) is

concerned, this Court held that in terms of Rule 5 (6) of the Rules, Government is bound

by the recommendation of the Selection Committee. The Court held, the ACC cannot

set aside the appointment to be made in terms of the panel prepared by the Selection

Committee. A Mandamus was granted for appointing the petitioner as Presiding Officer

in terms of the recommendation of the Selection Committee. In this case, in the first

round of litigation, judgment was passed in favour of the petitioner, whereby the Court

had rejected, the stand of the Government that the petitioner was not qualified to be

appointed as the Presiding Officer of the Tribunal. The matter was remanded back to

the ACC for its approval. The ACC again rejected the case of the petitioner on the same

ground, which decision was set aside by this Court, while directing the appointment of

the petitioner. The judgment is distinguishable on facts.

26. In the case of State of West Bengal & Ors Vs. v. Nilmadhab Thakur and Ors

(supra), the facts were, an advertisement was issued on 5th November, 2014 inviting

applications from eligible persons for the posts under the Juvenile Justice Board (JJB)

and Child Welfare Committee. The tenure was for a period of 3 years. Respondent

Nos. 1 and 4 applied for the post of social worker to be associated with the JJB. They

underwent a selection process. A merit list was prepared and the respondent No. 1 was

second in the merit list. He and another person found suitable for being selected to the

post of social workers for the JJB. Respondent No. 4 was the 5 th person in the waiting

list prepared on the same day. However, on 9 th March, 2015, a notification was issued

by the Government of West Bengal declaring the names of the persons who would

constitute the JJB. Saswati Saha who was first on the merit list and respondent No. 4

were the two workers appointed to the Board. Being aggrieved by that notification, the

respondent No. 1 challenged the same. The learned Single Judge allowed the writ

petition and set aside the appointment of the respondent No. 4 and directed the

appointment of the respondent No. 1. The Division Bench of the High Court held that

the Government, even though under the Rules, is not bound by the recommendation of

the Selection Committee, however, there must be cogent reasons for rejecting the

recommendations made by the Selection Committee. It also held that respondent No. 4

was last in the waiting list having secured fewer marks. The Government has acted

arbitrarily in appointing the respondent No. 4. The judgment of the Single Judge was

upheld. Suffice to state, the case is distinguishable on facts inasmuch, in view of the

reasons given by the Minister of State (I/C), Sports and Youth Affairs, which have

already noted above. That apart, the respondent No. 5 was part of the panel

recommended by the Committee and not in the waiting list. I have already held that the

Minister of State (I/C) was well within his rights to recommend one name from the

panel, not necessarily, the name of the person at serial No. 1. That apart, the

appointment of the respondent No. 4 was set aside by the Calcutta High Court as he was

at serial No. 5 of the waiting list and no reasons have been given before rejecting the

claim of respondent No.1.

27. Insofar as the case of Abhinav Deka Barua (supra) is concerned, the facts are on

15th December, 2015, an advertisement was issued inviting the applications for the post

of Junior Assistant in Higher Secondary School in Lakhimpur District. The petitioner

applied for the post and qualified in the written test. The petitioner also appeared in the

Computer Test, Computer Typing and Viva Voce. As per the selection made by the

Committee, the petitioner was adjudged having secured highest marks by taking into

consideration the marks secured in all the categories. The minutes of the selection were

sent to the respondent No. 3 for the purpose of making appointment. However, a

decision was taken by the respondent No. 3, refixing the computer test, computer typing

and oral interview. In other words, the earlier test and interview were abandoned. It

was the case of the respondents that the Inspector of Schools being the appointing

authority, is competent to order for re-examination in case of detection of irregularity in

order to ensure that the selection is fair and transparent. The High Court relied upon the

Services Rules 2003 to hold that the appointing authority is to fill up the vacancy in

order of merit/preference, determined by the Selection Committee. It did not permit the

respondent No. 3 to deviate from the decision of the Selection Committee and make its

own assessment. Suffice to state, in the case in hand Rule 26 of the Memorandum of

Association/Rules of 2014 suggests, the President of the LNIPE, who is the Minster

Incharge, Youth and Sports Affairs, Government of India to be the appointing authority

and he shall appoint the Vice Chancellor with the approval of the ACC, from a panel of

three names suggested by the Search-cum-Selection Committee. In other words, a

person, who is part of panel of three names, can be appointed. The said judgment is

distinguishable on facts. There is no dispute, the name of the respondent No. 5 was in

the panel recommended by the Search-cum-Selection Committee and he could have

been appointed.

28. Insofar as the case of Dr. S.C. Bajpai v. University of Delhi (supra) is concerned,

the facts of the case were, sometime in the year 1981 the post of the Vice Principal,

Bhagat Singh College (Evening classes) was advertised. The petitioner who was the

senior most lecturer in the college applied for the post. On May 15,1982 the petitioner

was interviewed by the Selection Committee Along with other candidates. The

Selection Committee selected the petitioner for the post of Vice Principal and

accordingly recommended his case for appointment to the Governing Body. However,

according to the letter of the Principal dated June 28,1982 it appears that the Selection

Committee's recommendation was not accepted on the ground of the Selection

Committee not being properly constituted as the Chairman of the Governing Body, who

is also an ex-officio member of the Selection Committee, was not present in the said

meeting.. The petitioner protested on the ground that he was duly selected by the

Selection Committee and there was no flaw in the Constitution of the Committee.

Notwithstanding the protest, there was a fresh selection and the petitioner also appeared

again before the Selection Committee on July 9, 1982 along with six other candidates.

After interviewing the candidates the Selection Committee, which was constituted in

accordance with Ordinance xviii (4)(4) of the Ordinance framed under Section 30 read

with Section 31 of the Delhi University Act,1922, again selected the petitioner for being

appointed to the post of the Vice Principal. A perusal of the minutes of the Selection

Committee, however, reveal that the Chairman did not agree with the decision of the

Selection Committee. Thereafter on August 30,1982 the matter came up before the

Governing Body but it did not agree with the selection made by the Selection

Committee and decided to re-advertise the post. The only reason given for not accepting

the recommendation of the Selection Committee was that the teacher members of the

Governing Body opposed the appointment of the petitioner as they were dis-satisfied

with the style of functioning of the petitioner. It is pertinent to point out that the

petitioner because of his seniority had already been functioning as the Acting Vice

Principal in charge of the Evening college. This appointment of the petitioner had been

duly approved by the University. But pursuant to the decision of the Governing Body

the petitioner was directed to be relieved from the post of the Acting Vice Principal on

August 31, 1982. On September 4, 1982 the petitioner filed the present writ petition

whereby he challenged the decision of the Governing Body dated August 30,1982. By

order dated September 7, 1982 status -quo regarding the petitioner's posting as the Vice

Principal was directed to be maintained by the court. However, on September 7, 1983

the court permitted the second respondent to make regular appointment to the post of

the Vice Principal in charge, Evening Classes subject to the final decision in the writ

petition. In this order it was further directed that this fact should be expressly stated in

the appointment order of the person who may be appointed against the post of the Vice

Principal In charge, Evening Classes. Armed with this direction, the said respondent

proceeded to make fresh selection. This time the Selection Committee, which met on

April 21, 1984, recommended the appointment of the intenvenor, Dr.S.P.Sharma, who

came to be appointed as Vice Principal in charge Evening classes on April 25, 1984 but

his appointment was specifically made subject to the result of the writ petition.

29. This Court held that, normally, the Governing Body is bound to accept the

recommendations of the Selection Committee unless there are sufficient reasons

recorded to discard with the recommendations of the Selection Committee and also

merely because the representative of the Governing Body, did not agree with the other

members of the Committee, was not sufficient reason to discard the recommendations

of the Committee. The petition was allowed and the petitioner was granted

consequential benefits. The case is distinguishable on facts.

30. Insofar as the case in Jatinder Kumar v. State of Punjab (supra) is concerned,

the Supreme Court held, selection by a Commission is only a recommendation of the

Commission. The final appointing authority is the Government. The reliance was

placed by the learned counsel for the petitioner on para 12, in which, Supreme Court

held as under:

"12. The establishment of an independent body like Public Service Commission is to ensure selection of best available persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by reasons of high ability varied experience and of undisputed integrity and further assisted by experts on the subject. It Is true that they are appointed by Government but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a higher public office it is required to consult the Public Service Commission. The selection has to be made by the commission and the Government has to fill up the posts by appointing those selected and recommended by the Commission adhering to the order of merit in the list of candidates sent by the Public Service Commission.

The selection by the Commission, however, is only a recommendation of the Commission and the final authority for

appointment is the Government. The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Government is made answerable to the House for any departure vide Article 323 of the Constitution, This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will expect for other good reasons viz., bad conduct or character. The Government also cannot appoint a persons whose names does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N.D. Silva v. Union of India and State of Haryana v. Subash Chander Marwaha & Ors. The contention of Mr. Anthony to the contrary cannot be accepted".

31. Suffice to state, the ratio of the judgment makes it clear that the Government is

not bound to accept the recommendations made by the Commission. It also held that it

cannot discard the order of merit except for good reasons viz. bad conduct or character.

This judgment is also distinguishable as while recommending the name, the President

has recommended the name of the respondent No. 5 on merit, after perusing the Bio

datas of all the three names in the panel, which has been accepted by the ACC. There

are no allegations of mala fide against any of the authorities for this Court to interfere.

32. Insofar as the case of Union of India etc v. N.P. Dhamania (supra) is concerned,

the Supreme Court has held that though the appointing committee is not bound to

accept the recommendations, but the same cannot be rejected without recording reasons.

The reasons for departure must exist on the files and have to be supplied to the Court as

and when required. The Supreme Court found that recommendations were rejected

without recording reasons. The case is distinguishable on facts inasmuch as the noting

suggests on examining the bio datas the name of respondent No. 5 was recommended

and the case has no applicability to the facts of the present case, and in view of my

conclusion above.

33. In R.S. Mittal v. Union of India (supra), the Supreme Court held, there has to be

a justifiable reason to decline a person, who is on the select panel. The note sheet

suggest, on examination of the Bio datas, the name of respondent No.5 was

recommended, it cannot be said to be without any basis. Moreover, there are no

allegation of malafide.

34. Insofar as the case of Amaresh Chandra Pandey (supra) is concerned, the facts

are, order of preference was given by Selection Committee to the respondent for

appointment as Assistant Professor. However, the Vice Chancellor who was the

Chairman of the Selection Committee altered the said preference. It was held, when the

Vice Chancellor is the Chairman of the Selection Committee, it would be unthinkable

that the so called power of approval or disapproval would bring within its sweep the

power of altering the order of preference indicated by the Selection Committee. The

case is distinguishable on facts, inasmuch as, the Vice Chancellor was the Chairman of

the Selection Committee and approving Authority; which is not the case here as the

Minster Incharge was not part of the Search-cum-Selection Committee.

35. Insofar as the Centre for Public Interest Litigation and another (supra) is

concerned, the reliance placed by the learned counsel for the petitioner on this judgment

is to the extent where the Supreme Court held, Government is not accountable to the

Courts in respect of the policy decisions. However, it is accountable to the legality of

such decisions. Having noted the facts and the law, the decision to appoint respondent

No.5 cannot be faulted.

36. In view of my discussion above, I do not see any merit in the writ petition. The

petition is dismissed. No costs.

V. KAMESWAR RAO, J AUGUST 08, 2017/ak