* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 168/2009 & CM No. 5472/2009
BHASKARENDU DATTA MAJUMDAR ..... Appellant
Through: Mr. Sunil Gupta, Senior Advocate with
Mr. Rajiv K.Garg, Advocate.
versus
UOI & ORS. ..... Respondents
Through: Mr. R.N. Singh, Mr. A.S. Singh and Ms.
Rekha Aggarwal, Advocates for Rspdt. No. 1.
Mr. M.M. Sudan, Advocate for Rspdt. No. 2.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE NEERAJ KISHAN KAUL
ORDER
% 18.05.2009
Admit. Learned counsel for the respondents waive service of
notice. By the consent of the parties, the appeal is taken up for
final hearing.
2. This appeal is directed against the order passed by the
learned single Judge in WP(C) 4135/2008 dated 9th January, 2009.
3. Few facts are that the appellant joined the respondent No.2-
State Trading Corporation of India Limited in April 2001 as
Executive Secretary to Chairman-cum-Managing Director of the
Corporation. He is presently working as Chief General Manager of
respondent No.2. A vacancy arose in the post of Director
(Marketing) in the respondent No.2 and the appellant applied for
the said post on 27th December, 2005. In March, 2006 interviews
were conducted by Public Enterprises Selection Board (PESB for
short). PESB shortlisted two candidates and made panel in which
the appellant was placed at serial No.1 and one Mr.Neeraj Mishra
was placed at serial No.2 in order of preference.
LPA No. 168/2009 Page 1 of 7
4. In or around 26th March, 2006 in accordance with the
procedure laid down the CVC issued vigilance clearance in favour of
the appellant. According to the appellant, for the post of Director
(Marketing) in the respondent No.2, the Department of Commerce,
being the administrative Ministry, selected the name of the
appellant and forwarded it to the final approval of the
Appointments Committee of Cabinet (ACC for short). The appellant
has further stated that his name was also endorsed by the Home
Minister as the second Member of the ACC. However, according to
the appellant the Cabinet Secretary Shri P.K.Chaturvedi, who was
earlier MD of the respondent No.2 presented a complete distorted
picture and raised a querry as to why the name of the appellant
had been proposed by the Department of Commerce in view of
some alleged cases of serious dimensions, which were at one point
of time pending against the appellant.
5. The appellant has further stated that in or around 1994-95
the appellant was dragged into various departmental enquiries and
two criminal cases investigated by the Central Bureau of
Investigation (CBI for short) at the instance of Shri Chaturvedi, who
happened to be the then MD of respondent No.2 The appellant has
pointed out that in all the cases and the departmental enquiries the
appellant was exonerated on merits. In fact, the appellant
obtained two promotions, one to the rank of General Manager with
retrospective effect i.e. with effect from 17th September, 1997 and
thereafter to the post of Chief General Manager in which he is
currently working. The appellant has also pointed out that as a
LPA No. 168/2009 Page 2 of 7
sequel to the ongoing CBI investigations, departmental enquiries ,
the name of the appellant was placed in the “agreed list” as well as
in the list of “officers with doubtful integrity”, which entries were
deleted consequent to the exoneration of the appellant on merits of
each of the said cases after completion of due process of law. The
grievance of the appellant is that the file was kept pending for
some time and ultimately the name of the second candidate Shri
Neeraj Mishra was placed for consideration of ACC and finally even
that name was dropped and the panel was scrapped and direction
was given to take fresh process for filling up the vacancy for the
post of Director (Marketing).
6. The appellant approached this Court by filing a writ petition
which came to be dismissed vide order under appeal. The learned
single Judge was of the view that it is within the domain of the ACC
to adjust suitability of candidates and no mandamus can be issued
in this respect to compel the ACC to exercise the discretion in a
particular manner, or even to interfere in the exercise of such
discretion unless and until the exercise of the discretion of ACC was
mala fide or unreasonable or actuated by bias. In the opinion of the
learned single Judge the decision of the ACC not the approve the
appointment of the appellant did not suffer from any such infirmity
so as to warrant interference.
7. Mr. Ashok Desai, learned senior counsel for the appellant,
submitted that no valid reason or cause was shown for depriving
the appellant his legitimate right of appointment as Director
(Marketing) of respondent No. 2, when the appellant has been
LPA No. 168/2009 Page 3 of 7
recommended by all the authorities and also by two members of
the ACC. He submitted that when the ACC makes appointments
and intends to differ from the recommendations of the PESB, the
former must record reasons for so differing, even if those reasons
need not be communicated to the officer concerned. According to
him the file relating to those reasons is subject to the scrutiny by
the Court, when that decision is challenged. In support his
submission, he relied upon the decision of the Apex Court in Union
of India & Ors. vs. N.P. Dhamania & Ors., 1995 Supp (1) SCC
1. In that case, the ACC chose to differ without assigning any
reason. In fact, Union of India was unable to produce any material
to show that any reasons had been assigned for differing from DPC.
The Central Administrative Tribunal allowed the appeal and
directed to grant promotion to the appellant therein. Though the
grant of ‘deemed promotion’ by the Tribunal was held to be in
excess of jurisdiction, the Court held that notwithstanding the fact
that it was open to ACC, which alone was the appointing authority,
to differ from the recommendations of the DPC, it must give
reasons for so differing to ward off any attack of arbitrariness. The
following observations of the Court are pertinent:-
“19. Notwithstanding the fact that it is open to AAC
which alone is the appointing authority and not the
Minister concerned, as urged by the respondent to differ
from the recommendations of the DPC, it must give
reasons for so differing to ward off any attack of
arbitrariness. Those reasons will have to be recorded in
the file. It requires to be stated at this stage that we
have perused the file in the instant case. We find no
reasons have been recorded for differing from the
recommendations of the DPC. That is why the tribunal
also inter alia observes in the impugned judgment as
under:
LPA No. 168/2009 Page 4 of 7
“However, the counsel for the respondent felt helpless in
the matter and he failed to provide us any inkling of
what prevailed with the ACC in dropping the petitioner
and four others out of the select panel of 59 officers.”
20. If the file had contained reasons something could be
said in favour of the appellant. But, that is not the case
here. Then the question would be whether the reasons
recorded are required to be communicated to the officer
concerned. Our answer is in the negative. There is no
need to communicate those reasons. When challenged it
is always open to the authority concerned to produce the
necessary records before the Court.
XXX XXX XXX
22. ACC may reconsider these cases within 3 months
in the light of the observations at page 7,10 and above
and if found suitable, may give promotion with effect
from the date, their immediate junior officer was
promoted with consequential benefits of seniority and
salary etc.”
8. On behalf of the Union of India, it was contended that in a
subsequent judgment in Union of India & Anr. vs. Samar Singh
& Ors., (1996) 10 SCC 555, the Apex Court has taken a view that
it is not necessary for the authority to give reasons for the non-
selection of the officer. Learned counsel for the Union of India
contended that Samar Singh’s case being later in point of time, is
binding on this Court. We are unable to agree with the submission
of the learned counsel. Facts in Samar Singh’s case were clearly
different and the case is distinguishable. In that case the name of
the officer was not included in the panel prepared by the Special
Committee. Consequently the name of the officer was not
considered by the ACC. The challenge was mainly to the exclusion
of the name of the respondent by the Special Committee. The
LPA No. 168/2009 Page 5 of 7
question of ACC differing from the Special Committee did not arise
in that case. The Court held that merely because the minutes of
the Committee do not contain the reason for non-selection of the
respondent does not mean that there has been no proper
consideration of the merits and suitability of the respondent and as
a result the selection is vitiated. However, the situation in the
present case is different. The PESB has included the name of the
appellant in the panel at serial No.1 in order of preference. The
CVC has given its clearance to the appellant’s name vide letter
dated 26th March, 2006. In the departmental enquiries as well as
CBI investigations the appellant was exonerated on merits. In fact,
the appellant thereafter obtained two promotions, one to the rank
of General Manager and then to rank of Chief General Manager, in
which post he is currently working. The name of the appellant has
been removed from the “agreed list” as well the list of officers with
“doubtful integrity’, consequent to the exoneration of the appellant
on merits on each of the said cases after due enquiries. We have
called for the CRs of the appellant and it is seen that he had been
assessed as “very good” for the years 2001-02 and 2002-03, as
“excellent” for the years 2003-04 and as “outstanding” for the
years 2004-05 and 2005-06.
9. In the present case the ACC chose to differ without assigning
any reason. Learned counsel for the Union of India was unable to
produce any material to show that reasons had been assigned for
differing from PESB. We have also gone through the original files
and we do not find any inkling as to what prevailed with the ACC in
not selecting the appellant whose name was duly included in the
LPA No. 168/2009 Page 6 of 7
panel by PESB and who seems to have an impeccable record. No
reasons whatsoever are indicated in the files.
10. In the circumstances, we allow the appeal and set aside the
impugned order dated 9th January, 2009. We direct that the
appointing authority shall consult PESB once again by making a
reference to it indicating the reasons for making a departure from
the panel recommended by the PESB and also forward the material
on which it has reached the conclusion and obtained views of PESB
before taking a final decision in the matter. In case after
consultation with the PESB, in the manner indicated above, the
name of the appellant is restored to its original position, as
recommended by PESB, the case of the appellant for promotion to
the post of Director (Marketing) shall be considered on merits and
necessary orders will be passed within a period of two months from
today. It has already been directed by this Court that any
appointment to the post of Director (Marketing) will be subject to
the outcome of the present proceedings.
11. With the above directions, the appeal along with pending
applications stand disposed of.
CHIEF JUSTICE
NEERAJ KISHAN KAUL, J.
MAY 18, 2009
Sb/”v”
LPA No. 168/2009 Page 7 of 7