Union Of India & Anr vs Bhaskarendu Datta Majumdar

Union of India & Anr. .......Appellants

Vs.

Bhaskarendu Datta Majumdar .......Respondent

JUDGMENT

HARJIT SINGH BEDI,J.

1. Delay condoned.

2. Leave granted.

3. This appeal by way of special leave has been filed by the

Union of India and the State Trading Corporation

impugning the judgment of the Division Bench of the

High Court of Delhi dated 18th May 2009 whereby the

judgment of the Single Judge dated 9th January 2009 has

been set aside and a direction has been issued that the

case of the respondent for appointment as Director

Marketing in the State Trading Corporation be re- CC No.18056/2009 2 considered in the

manner indicated therein. The facts of the case are as

under:

4. The respondent Bhaskarendu Datta Majumdar joined the

services of the State Trading Corporation (hereinafter

called "Corporation") in April 2001 as Executive Secretary

to the Chairman-cum-Managing Director of the

Corporation and was on the relevant date working as

Chief General Manager. A post of Director (Marketing)

having fallen vacant, the respondent applied for the post

on the 27th December 2005. Interviews were held on 4th

March 2006 by the Public Enterprises Selection Board

(PESB for short) and two candidates were shortlisted, the

respondent being at serial No.1, and one Neeraj Mishra at

serial No.2 in order of preference. Consequent to the

selection, the Central Vigilance Commissioner also issued

a clearance for the respondent on or around 26th March

2006, and it is the case of the respondent that the

Department of Commerce, being the Ministry concerned,

forwarded his name to the Appointments Committee of CC No.18056/2009 3 the Cabinet (ACC

for short) for final approval. Further, it is the case of the

respondent that his name has been endorsed by the

Home Minister as the second Member of the ACC, but the

incumbent Cabinet Secretary who had earlier been the

Managing Director of the Corporation, scuttled his

appointment taking note of some serious allegations

which at one point of time had been levelled against him.

It appears that in 1994-95 the respondent had been

dragged into various departmental enquiries and two

criminal investigations by the Central Bureau of

Investigation at the instance of the said officer, but he

was exonerated of any misdoing and the adverse entries

of doubtful integrity were thereby deleted from his

confidential roll. As a consequence of what had

happened, Neeraj Misra who was at serial No.2 was

proposed for appointment but finally even his name too

was dropped and a direction was issued by the ACC to

undertake a fresh process for filling up the vacancy. The

respondent thereupon filed a Writ Petition in the Delhi CC No.18056/2009 4 High Court which

was dismissed by the learned Single Judge holding that it

was the exclusive jurisdiction of the ACC to assess the

suitability of a candidate and the court could not

interfere in this discretion except in a case of proven

mala fides. The Letters Patent Appeal that followed has

been allowed and that judgment is now challenged before

us. The primary reason that weighed with the Division

Bench was that the ACC had given no reasons

whatsoever, not even on the file, as to why the

recommendation of the PESB was being ignored.

5. Mr. Malhotra, the learned Additional Solicitor General

for the appellant Union of India, has submitted that as

the ACC was the final authority to make the selection

and appointment, it alone had the jurisdiction to

determine the suitability of an officer and a decision

taken by the committee was not open to challenge except

on grounds of mala fide or for other exceptional reasons.

He has pointed out that there was no plausible reason for

the Division Bench to have interfered, more particularly CC No.18056/2009 5 as there was no

rule which required that reasons be recorded by the ACC

while differing with the opinion of the PESB. Reliance for

this assertion has been placed on Union of India & Anr.

vs. Samar Singh & Ors. 1996 (10) SCC 555, Chief

Executive Officer vs. Biswa Bhusan Nandi 2008 (10)

SCC 161 and Union of India and Ors. vs. Ram Kumar

Thakur 2009(1) SCC 122.

6. Before the Division Bench, the primary issue raised on

behalf of the respondent herein was that his name had

been recommended by all the authorities and two

members of the ACC but in the final analysis the ACC

had not accepted the recommendation and it was thus

incumbent on the ACC to offer reasons for differing with

the proposal made by the PESB and though the said

reasons were not required to be communicated to the

officer concerned, it was nonetheless open to the Court to

examine the record to see if any reason had indeed been

recorded. Reliance was also placed on the decision of

this Court in Union of India and Ors. vs. CC No.18056/2009 6 N.P.Dhamania &

Ors. 1995 Suppl. (1) SCC 1 in which it has been held

that though the ACC was the appointing authority and

therefore entitled to differ with the recommendation of

the PESB, it was necessary to give reasons for doing so to

obviate any chance of arbitrariness and for that purpose

the Court could look into the record to satisfy itself.

7. We have considered the arguments advanced by the

learned counsel for the parties. We find that the

judgment in Samar Singh's case (supra) is inapplicable.

In this matter the name of the officer had not been

included in the panel prepared by the Special Committee

with the result that his case was not considered by the

ACC. A perusal of the judgment would reveal that the

primary issue raised before the court was as to the

exclusion of the officer from the panel prepared by the

Standing Committee. We find that the other judgments

cited by the learned ASG are not relevant to the present

matter and do not merit any discussion whatsoever. On

the contrary, N.P.Dhamania case (supra) is almost CC No.18056/2009 7 identical not only

on facts but even on the legal issues raised. It has been

held as under:

"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:

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.

CC No.18056/2009 8 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. These observations apply fully to the facts of this case.

The Division Bench had also noticed, (and it has not been

denied by the Union of India) that after the various enquiries

and investigations had been completed and the respondent

exonerated on merits he had obtained two promotions, first as

General Manager and thereafter as Chief General Manager,

and the entry with regard to his doubtful integrity which had

been made on account of the pending matters, had also been

removed. The Division Bench had also called for the

confidential record of the respondent and observed that he

had been assessed as "very good" for the years 2001-02 and

2002-03, "Excellent" for the year 2003-04 and "Outstanding"

for the years 2004-05 and 2005-06. It goes without saying

that these were the crucial years in so far as the respondent's

case for promotion to Director (Marketing) was concerned. The CC No.18056/2009 9 Division Bench also

observed, that though requested, the counsel for the Union of

India had not been able to show any record indicating the

reasons as to why the ACC had differed with the opinion of the

PESB, leading to the only inference that no reasons

whatsoever had been recorded. We are, therefore, of the

opinion that there is no merit in this appeal. It is accordingly

dismissed with no order as to costs.

...............................J. (HARJIT SINGH BEDI)

......................J. (J.M.PANCHAL) New Delhi, August 27, 2010