Baidyanath Yadav vs Aditya Narayan Roy

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8847 OF 2019 [Arising out of SLP (CIVIL) No. 12370 of 2018]

Baidyanath Yadav .....Appellant

Versus

Aditya Narayan Roy & Ors. .....Respondents

WITH CIVIL APPEAL NO. 8848 OF 2019 [Arising out of SLP (CIVIL) No. 13927 of 2018]

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.:

Leave granted.

2. These appeals arise against the final judgment and order of the

High Court of Patna dated 06.04.2018 passed in Civil Writ

Jurisdiction No. 13773 of 2017 allowing the appeal filed by

Respondent No. 1 herein, and quashing the appointment of the

Appellant in SLP (C) No. 12370 of 2019 (“the Appellant”) to the Indian

Administrative Service.

Signature Not Verified

3. Digitally signed by ASHWANI KUMAR Date: 2019.11.19 The brief facts giving rise to these appeals are as follows:

17:59:10 IST Reason:

3.1 The instant appeals pertain to the selection to two vacancies in

the Indian Administrative Service (“the IAS”) from amongst non­State Civil Service officers (“non­SCS officers”) for the Selection Year 2014.

The Appellant, Baidyanath Yadav, Respondent No. 1, Aditya Narayan

Roy and Respondent No. 9 in SLP (C) No. 12370 of 2019, Ram Prakash

Sahni (“Respondent No. 9”), belonged to the Bihar Agricultural Service.

The Department of Agriculture, along with other departments, was

invited to recommend the names of two officials to the State Screening

Committee for selection of ten persons to be recommended to the

Union Public Service Commission (“the UPSC”) for final selection. The

Selection Committee of the Department of Agriculture, headed by the

Principal Secretary, in its meeting dated 07.08.2014, considered the

names of four officials of the department, being the Appellant,

Respondent No. 1, Respondent No. 9, and one Ravindra Kumar

Verma, and recommended the names of the Appellant and Respondent

No. 9. The recommendations were then placed before the minister

concerned, who, vide order dated 11.08.2014, directed that

Respondent No. 1’s name may be recommended. As a consequence,

the Agricultural Department forwarded three names to the State

Screening Committee headed by the Chief Secretary, Bihar, placing

Respondent No. 1’s name at Serial No. 3. Before the State Screening

Committee, in the list of seventeen recommendations received, the

Appellant was mentioned at Serial No. 14, Respondent No. 9 at Serial

No. 15, and Respondent No. 1 at Serial No. 16. The State Screening Committee, in its meeting dated 22.08.2014, recommended ten names

for consideration to the UPSC, including the names of the Appellant

and Respondent No. 9, but not Respondent No. 1. From this list, two

officers were selected to the IAS by the UPSC, one of whom was the

Appellant, the other being an official from another department. This

was notified by the Department of Personnel Training vide notification

No. 14015/4/2014­AIS(I)­B dated 22.01.2015.

3.2 Respondent No. 1 approached the Central Administrative

Tribunal, Patna Bench seeking the quashing of the Appellant’s

appointment, and directions for the Department of Agriculture to

recommend Respondent No. 1’s name to the State Screening

Committee, for the State Screening Committee to recommend his

name to the UPSC, for the UPSC to conduct a fresh assessment for his

appointment, and for the order of his appointment to be issued in case

of favourable recommendations.

3.3 The Tribunal dismissed Respondent No. 1’s application, noting

that the departmental minister’s order dated 11.08.2014 did not

contain any finding to the effect that Respondent No. 1 was the most

meritorious candidate, or that gross injustice had occurred due to the

non­inclusion of his name in the initial recommendation made by the

Department of Agriculture. Thus, there was no illegality or mala fides

in Respondent No. 1’s name occurring at Serial No. 3 in the list forwarded to the State Screening Committee, contrary to his argument

that his name should have occurred at the top since he was the most

meritorious. The Tribunal further reasoned that even if Respondent

No. 1’s name had been at the top in this list, in the list prepared by

the State Screening Committee he would still have figured only at

Serial No. 14 instead of Serial No. 16, which was irrelevant, since the

only pertinent aspect was that his name was considered along with

other officials. The Tribunal dismissed Respondent No. 1’s application

noting that his case was based on conjectures about being selected if

his name had been recommended to the UPSC committee, and that

directing the State Screening Committee to recommend his name to

the UPSC would amount to sitting in judgment over the evaluation of

merit by the authorities.

3.4 Respondent No. 1 filed a writ application seeking the setting

aside of the above order of the Tribunal, which was allowed by the

High Court. The Court reasoned that the State Screening Committee

had failed to record and disclose reasons for its decision, which it was

bound to do, in light of its absolute power over the trajectory of the

career of the aspirants to the IAS, and the mere presence of senior

officers on the committee would not by itself guarantee objectivity and

fairness in decision­making. Moreover, the Court held that since

Respondent No. 1’s name was the only one recommended to the UPSC the previous year, which recommendation had remained in limbo, his

name should have figured as the first candidate in the list of

recommendations made by the Department of Agriculture. The Court

noted that upon examining the manner of consideration of names, it

was not satisfied of objectivity, fairness and the lack of consideration

of extraneous reasons in the selection process, with efforts to keep

Respondent No. 1 out of the process apparent at every stage.

3.5 The High Court set aside the order passed by the Tribunal,

directing that the State Screening Committee recommend Respondent

No. 1’s name to the UPSC within two weeks, and that the UPSC

thereafter consider his case objectively. Such consideration would also

determine the fate of the Appellant, whose inclusion into the IAS cadre

would not create any right in his favour until the decision of the UPSC

on Respondent No. 1’s name. For the purpose of the consideration of

Respondent No. 1’s name, the post would be considered to be vacant

for the year 2014. After the State Screening Committee made its

recommendation, the UPSC would be expected to hold an interview

and evaluation of Respondent No. 1 preferably within a period of six

weeks. This lead the Appellant and the State of Bihar to approach this

Court by way of the instant appeals.

4. Heard the Counsel for either side and perused the record.

4.1 Learned Senior Counsel for the Appellant, Mr. Huzefa Ahmadi, argued that the High Court erred in giving weight to the serial order in

which the names of the officers were placed before the State Screening

Committee; non­disclosure of reasons by a selection committee does

not vitiate their decision, unless required by rules or administrative

instructions (relying on National Institute of Mental Health &

Neuro Sciences v. Dr. K. Kalyana Raman, 1992 Supp (2) SCC 481,

and Union Public Service Commission v. Arun Kumar Sharma,

(2015) 12 SCC 600), which was not the case here; there was no

direction by the departmental minister to keep Respondent No. 1’s

name at the top; and the direction for reconsideration of his name

alone, rather than of all the recommended candidates, was beyond the

jurisdiction of the High Court.

4.2 Learned Counsel for the State of Bihar, Mr. P. S. Patwalia, took

us through the Indian Administrative Service (Appointment by

Selection) Regulations, 1997 (“the 1997 Regulations”), and submitted

that the departmental Selection Committee and the State Screening

Committee had undertaken a fair and objective assessment of the

service records under the Regulations. He also pointed out that in the

absence of any allegation of mala fides or bias, it could not be held

that there was any undue influence on the committee members. He

ended by referring to the decision of this Court in Union Public

Service Commission v. M. Sathiya Priya, (2018) 15 SCC 796, emphasising that the High Court could not have reassessed the

findings of the committees on merit.

4.3 It was submitted by learned Counsel for Respondent No. 1, Mr.

R. Venkataramani, submitted that as per the 1997 Regulations, the

officers were to be recommended by the State Government based on

whether they possessed outstanding merit and ability, which was to be

assessed based on objectively determinable criteria such as the

Annual Confidential Records (“ACRs”) of the officers. Arguing that

since all of Respondent No. 1’s ACRs reflected better grading than the

Appellant’s, having the grade “Excellent” with respect to every aspect

as opposed to P’s “Very Goods”, his non­selection reflected that the

selection committees had travelled beyond such ACRs in

recommending the Appellant’s name, and had thus acted arbitrarily.

He also drew our attention to the minutes of the meeting of the State

Screening Committee, which, while considering the recommended

names, had noted that Respondent No. 1’s name had not been

recommended by the departmental Selection Committee and would

hence not be considered. It was argued that this had unfairly

prejudiced Respondent No. 1’s prospects, since the addition of his

name to the list by the Minister was completely valid, in light of the

letter dated 22.05.2014 of the General Administration Department

(“GAD”), which specified that the recommendations of the department had to be approved by the concerned minister.

5. At the heart of the dispute before us for consideration lies the

scope of judicial review of the process governing the selection of non­

SCS officers to the IAS, for which it is important to take stock of the

position governing judicial review of selections made by a duly

constituted expert body.

5.1 It is by now well­settled that the scope of such review is limited,

and the Tribunal or Court cannot re­assess the merit of the individual

candidates. As observed by a 2­Judge Bench of this Court in M.V.

Thimmaiah v. UPSC, (2008) 2 SCC 119:

“21. Now, comes the question with regard to the selection of the candidates. Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of mala fides or serious violation of the statutory rules. The courts cannot sit as an Appellate Authority to examine the recommendations of the Selection Committee like the court of appeal. This discretion has been given to the Selection Committee only and courts rarely sit as a court of appeal to examine the selection of the candidates nor is the business of the court to examine each candidate and record its opinion…”

5.2 This view has subsequently been affirmed by this Court in

various decisions, including the recent decision of a 2­Judge Bench of

this Court in M. Sathiya Priya (supra), of which one of us was a

member. In this decision, this Court, while setting aside the re­

assessment undertaken by the Tribunal and the High Court of the

recommendations made by the Selection Committee to the UPSC for appointments to be made to the Indian Police Service by promotion,

observed as follows:

“17. The Selection Committee consists of experts in the field. It is presided over by the Chairman or a Member of UPSC and is duly represented by the officers of the Central Government and the State Government who have expertise in the matter. In our considered opinion, when a High­Level Committee or an expert body has considered the merit of each of the candidates, assessed the grading and considered their cases for promotion, it is not open to CAT and the High Court to sit over the assessment made by the Selection Committee as an appellate authority. The question as to how the categories are assessed in light of the relevant records and as to what norms apply in making the assessment, is exclusively to be determined by the Selection Committee. Since the jurisdiction to make selection as per law is vested in the Selection Committee and as the Selection Committee members have got expertise in the matter, it is not open for the courts generally to interfere in such matters except in cases where the process of assessment is vitiated either on the ground of bias, mala fides or arbitrariness. It is not the function of the court to hear the matters before it treating them as appeals over the decisions of the Selection Committee and to scrutinise the relative merit of the candidates. The question as to whether a candidate is fit for a particular post or not has to be decided by the duly constituted expert body i.e. the Selection Committee. The courts have very limited scope of judicial review in such matters.” (emphasis added)

5.3 It can be concluded from the above that it was not for the High

Court to address questions of comparative merit of the candidates,

and neither is it appropriate for us to do the same. All we may look

into is whether there was any serious violation of statutory rules, or

any bias, mala fides or arbitrariness in the entire selection process. To

address this question, it is essential to revisit the process prescribed for the selection of non­SCS officers to the IAS.

6. Rule 8 of the Indian Administrative Service (Recruitment) Rules,

1954 governs the selection of officers to the IAS by way of promotion

or selection. While Rule 8(1) deals with promotion from the State Civil

Services, Rule 8(2) deals with selection from amongst officers of

outstanding merit and ability serving in connection with the affairs of

the State, who are not members of the State Civil Service but hold a

gazetted post in a substantive capacity, i.e. non­SCS officers.

6.1 The 1997 Regulations were framed in pursuance of Rule 8(2).

As per Regulation 4, the State Government is required to recommend

the names of persons as described in Rule 8(2), for consideration of

the Committee constituted under Regulation 3 of the IAS

(Appointment by Promotion) Regulations, 1955 (“the 1955

Regulations”), comprising members of the UPSC (“the UPSC

Committee”). Such persons must also have attained the age of 54

years on the first day of January of the year in which their case is

being considered, by which time they must have completed a

minimum of eight years of continuous service under the State

Government in any post which has been declared equivalent to the

post of Deputy Collector in the State Civil Service. Such persons must

also not have been selected in an earlier list for appointment to the

IAS and subsequently not been appointed by the Central Government in the exercise of its powers under Regulation 9. The number of

persons recommended by the State Government may not exceed five

times the number of vacancies proposed to be filled during the year.

6.2 Regulation 5 provides that the UPSC Committee, upon

consideration of the names proposed by the State Government, may

recommend the names of as many persons as there are vacancies. The

suitability of a person for appointment to the IAS cadre is to be

determined by scrutiny of service records as well as through a

personal interview. After consultation with the State Government, a

Select List is to be prepared with the names so selected, and

appointments are to be made in the manner prescribed thereafter.

6.3 After the above regulations came into force, guidelines were

formulated in 2003 for the selection of persons under

Regulation 5, which were circulated vide memorandum

No. 4/14/2003­AIS. The guidelines pertain to the assessment of

candidates based on their service records and personal interview. In

Paragraph B.1 of the guidelines, it is outlined that out of a total of 100

marks to be awarded, equal weightage has to be accorded to the

service record, with particular reference to ACRs for the preceding five

years, and to the interview. Furthermore, the curriculum vitae of the

candidate may be kept in consideration while assessing the overall

personality of the candidate during the interview. 6.4 Paragraph B.2 states that on the basis of the assessment of the

individual ACRs, the UPSC Committee may assign 10 marks for the

“Outstanding” grade, 8 marks for “Very Good”, 6 marks for “Good”,

and 4 for “Average”, in the individual years of assessment. While

assigning marks to the ACRs of the eligible officers, the broad

guidelines for the 1955 Regulations may be followed. It is relevant to

note that as per the 1955 Regulations, the Committee must also

satisfy itself as to the integrity of the candidates based on the remarks

on their confidential reports.

6.5 Paragraph B.3 states that the minimum score necessary for a

candidate to be selected is 50% marks in each component. Paragraph

B.4 states that a merit list of selected candidates is to be prepared, in

the sequence of the scores obtained, further providing that in case of a

tie between officers, the older officer is to be placed above in the list.

Paragraph C lays down the topics which may be covered by the

Committee during the personal interview.

7. In accordance with the above regulations, the Principal Secretary,

GAD, Government of Bihar had invited submissions of the name of the

most suitable person from each department for the recommendation of

non­SCS officers for selection to the IAS, vide letter dated 22.05.2014.

The important conditions required to be fulfilled for a valid

recommendation to be made, as laid down in paragraph 3 of the letter, are reproduced below verbatim:

“(b) The recommended officer should necessarily possess excellent qualification as per law and any prime­facie case should not be proved against them.

(c) While clearly entering the service­history of the officers, for it, please attach separate sheet.

(d) While preparing the particulars of their annual confidential remarks with Reporting, Monitoring and Acceptance, Authority Grading, it be attached on separate sheet. As well, updated full Character Encyclopedia be attached.

(e) A certificate of non­pendency of any matter against the officers before the Departmental charges, Cabinet (Monitoring) Department and Lokayukt Office, be sent, so that, acceptance of the certificate of truthfulness would be appropriated totally.

(f) previous posting particulars of the officers (Including pay­scale) be included.

xxx

(h) Original copy of the proceedings of Selection Committee, attested copy with the nomination letter should be enclosed necessarily. On the recommendation of Selection Committee, approval of the Departmental Minister be received necessarily and this fact be clarified in the letter that on the recommendation of selection committee, the approval of Departmental Minister has been received. In case, its clear reference is not mentioned, the recommendation shall not be considerable.”

8. Vide letter dated 23.07.2014, the names of two suitable persons

per department were allowed to be submitted. In this scenario, the

departmental Selection Committee recommended the names of the

Appellant and Respondent No. 9. The recommendations were placed

before the minister concerned, who directed that Respondent No. 1’s

name may be recommended, noting that he had been recommended the previous year, and there was no bar on recommending such a

person again if he fulfilled all requisite criteria. Thereafter, the

Department of Agriculture forwarded three names to the State

Screening Committee, with Respondent No. 1’s name at Serial No. 3.

As mentioned supra, out of a total of seventeen recommendations

received from various departments, the State Screening Committee

recommended ten names for consideration to the UPSC, which

included the Appellant but not Respondent No. 1. From this list, two

officers were selected to the IAS by the UPSC, one of whom was the

Appellant.

9. Respondent No. 1’s case is premised on the argument that

placing his name at the bottom of the list of recommendations made

by the departmental Selection Committee even after he was

recommended by the concerned minister, and subsequently at Serial

No. 16 instead of No. 14 before the State Screening Committee,

prejudiced the selection process against him. However, as evident from

the regulations and guidelines governing the process of selection of

non­SCS officers to the IAS, as well as the letter dated 22.05.2014

calling for recommendations issued by the GAD, there was no

relevance to the serial order in which the names of candidates were

recommended by either the Department of Agriculture or the State

Screening Committee. The order of placement in the list only acquires relevance at the stage of preparation of the Select List by the UPSC

Committee under Regulation 5 read with the relevant guidelines.

Thus, there is merit in the submission made on behalf of the Appellant

and the State Government that the order of placement of the

candidates’ names in the lists prepared by the departmental and State

committees wrongly weighed with the High Court.

9.1 Additionally, as pointed out by learned Senior Counsel for

Respondent No. 1, it appears from the records of the meetings of the

State Screening Committee that it did not consider Respondent No. 1’s

name while assessing the merit of the recommended candidates, on

the ground that his name had not been recommended by the

departmental Selection Committee. However, the 1997 Regulations

read with the relevant guidelines indicate that no fault can be found

with this approach. Though the letter of the GAD dated 22.05.2014

stipulated that the departmental minister’s approval was necessary for

any recommendation by the Selection Committee to be valid, this did

not confer any power upon him to recommend a name of his own

accord. Thus, the entire procedure of Respondent No. 1’s name being

added to the list of two officials already recommended by the

departmental committee, more so when only two names had been

invited by the GAD, must be held to be irregular and in violation of the

applicable rules, regulations and guidelines. Moreover, in such a scenario, it cannot be said that there was any malice or bias leading to

the non­consideration of Respondent No. 1’s name by the State

Screening Committee.

9.2 Moreover, we find ourselves in disagreement with the

conclusion of the High Court that the decision of the State Screening

Committee was arbitrary for non­disclosure of reasons. A catena of

decisions of this Court has established that even the principles of

natural justice do not require a duly constituted selection committee

to disclose the reasons for its decision, as long as no rule or regulation

obliges it to do so. In this regard, we may refer to the decision of this

Court in National Institute of Mental Health (supra), which has

also been subsequently affirmed in several cases, including Union

Public Service Commission v. Arun Kumar Sharma (supra). In

National Institute of Mental Health (supra), the Court, following the

decision in R.S. Dass v. Union of India, (1986) Supp SCC 617,

observed as follows:

“7. ... In the first place, it must be noted that the function of the Selection Committee is neither judicial nor adjudicatory. It is purely administrative... Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require an administrative authority or a Selection Committee or an examiner to record reasons for the selection or non­selection of a person in the absence of statutory requirement. This principle has been stated by this Court in R.S. Dass v. Union of India [1986 Supp SCC 617 : (1987) 2 ATC 628] in which Capoor Case [(1973) 2 SCC 836 : 1974 SCC (L&S) 5 : (1974) 1 SCR 797] was also distinguished.

8. ... we may state at the outset that giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The ‘fairness’ or ‘fair procedure’ in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take a decision reasonably without being guided by extraneous or irrelevant consideration...”

9.3 As there is no such requirement mandating the disclosure of

reasons in the relevant rules, regulations and guidelines, there is no

doubt in our minds that the procedure adopted by the State Screening

Committee cannot be faulted.

10. Having thus found that the State Screening Committee was

correct in considering only the two names recommended by the

departmental Selection Committee, we now turn our attention to the

crucial question of whether Respondent No. 1’s name was wrongly

excluded by the departmental Selection Committee itself, on account

of any bias, malice or arbitrariness.

10.1 In this respect, the High Court observed that though Respondent

No. 1 had been recommended as the only candidate from the

Department of Agriculture in the previous year, 2013, such

recommendation was not acted upon since the meeting for the year in

question could not be held in time by the UPSC. It was further

observed that the notings revealed that the primary reason why Respondent No. 1’s name was not recommended in 2014 was because

his name had been recommended earlier. The Court noted that there

was no clarity on how the earlier recommendation came in the way of

his name being recommended after a fresh exercise was initiated in

2014, which lead the Court to conclude that the non­recommendation

of his name at the first instance appeared to be based on extraneous

considerations.

10.2 We find ourselves unable to agree with the above conclusion of

the High Court. As per the letter dated 30.05.2013 from the GAD to

the Department of Agriculture, the previous year’s recommendation of

Respondent No. 1’s name by the latter department had in fact been

returned by the GAD for not being in consonance with the expected

norms of recommendation. Thus, notwithstanding the fact that it is

unclear which notings the High Court relied on to conclude that

Respondent No. 1 had not been recommended because of his earlier

recommendation, it is evident that the High Court erred in observing

that Respondent No. 1’s recommendation from the previous year had

simply remained in limbo, and that his non­recommendation the next

year was therefore suspect. Thus, we are of the view that there is no

hint of arbitrariness, mala fide or bias in the recommendation of two

other officers, including the Appellant, by the Department of

Agriculture in 2014.

11. In any case, we find that the direction issued by the High Court

directing the State Screening Committee to recommend Respondent

No. 1’s name to the UPSC was completely without jurisdiction. Upon

reaching a finding of arbitrariness in the selection process, the Court

could at the most have issued a direction to the State Screening

Committee to reassess the names of all candidates by giving due

consideration to all relevant documents. As already observed above, it

was not for the Court to sit in judgment over the merit of the

candidates and substitute its reasoning for that of the Screening

Committee. Be that as it may, in light of the above discussion, we

conclude that there is no case to direct the reconsideration of the

seventeen candidates before the Screening Committee, or to interfere

with the appointments already made for the Selection Year 2014.

12. The decision of the High Court is therefore set aside, and the

instant appeals are allowed.

...........................................J. (Mohan M. Shantanagoudar)

...........................................J. (Ajay Rastogi) New Delhi;

November 19, 2019.