Ashok Kumar Singh vs State of U P.and others

S. C. Verma, J.—The selection on the post of Director, Animal Husbandary has again left deep scars of dissatisfaction on the candidates. The petitioner, Dr. Ashok Kumar Singh, has raised the controversy by disputing the above selection and has levelled serious allegations of favouritism, manipulation, arbitrariness and malafides in ousting the candidature of the petitioner and the selection of respondent no. 4, Dr. Rajendra Singh Yadav.

In short matrix the facts of the case are that the vacancy on the post of Director was created on 3171992. A selection was held through Departmental Selection Committee in accordance with the U. P. Veterinary Services (ClassI) Rules, 1982. The selection by promotion purely on merit was to be made from amongst permanent Additional Director, Joint Directors and Deputy Directors. Earlier the Selection Committee recommended the name of Dr. O. P. Dwivedi, Dr. Rajendra Singh and Dr. Mool Chand, in serial order for the post of Director. The above selection was challenged in large number of writ petitions filed by the incumbents of the department including Dr. A. K. Singh. A Division Bench of this Court by judgment dated 3111993 set aside the selection.

It was held that the selection to the post of Director must be held separately as and when a vacancy arises even though such vacancy may arise more than once during the year of recruitment. The Panel will get exhausted the moment the persons selected and appointed takes over. The other names of the panel will then be invalid and cannot be made use of for filling the post of Director in the vacancy which may arise in the same year of recruitment subsequently.

In the case of Dr. A. K. Singh it was alleged that irrelevant and incorrect material was placed before the Selection Committee and relevant material was not placed which resulted in serious error. The learned Judges held that there was no justification for obtaining the opinion of the Agricultural Production Commissioner after the concerned Minister who was the accepting authority had already directed the expunction of the remarks made by the Secretary and have also directed the remarks of the Director to be treated as final remarks. The adverse remarks made by the Agricultural Production Comm, for the years 198788, 198990 were not sustained and were quashed. Further in view of the orders made by the then Minister, the remarks recorded by the Director for these two years, 198788 and 198990 and also the other years referred to above were deemed to be final remarks.

The censure entry dated 461988 in regard to Dr. Rajendra Singh was not placed before the Selection Committee. It was held that the Selection Committee considered irrelevant material and did not consider the relevant material in the selection held on 521993. The petitioner Dr. A K. Singh had raised objections by filing writ petition before the date of selection, regarding one Sri Babu Ram, the then Secretary of the Department being Member of the Selection Committee. It was held that it would have been proper for Sri Babu Ram to himself have considered in joining the Selection Committee and the State Government should have reconstituted the Committee. It was directed considering the facts and circumstances that Sri Babu Ram may not be allowed to be the Member of any Selection Committee to the post of Director in which the petitioner would be a candidate.

On the basis of the above findings and as also some other findings together with the legal position which emerged, the selection made by the Selection Committee for the post of Director held on 521993 and appointment order issued in pursuance thereof was quashed and direction was issued to the respondents to hold fresh selection within one month from the date of order in accordance with law and the observations made in the body of the judgment. The Hon''ble Supreme Court by order dated 2541994 in Special Leave Petition No. 1822021/1993 against the judgment dated 3111993 held :

"We have carefully perused the judgment of the High Court in the light of the submissions that have been made before us, we do not find any ground for interfering with the same."

While dismissing the Special Leave Petition, it was directed that the petitioner no. 2 would also be considered for selection alongwith others by the Departmental Selection Committee and the Departmental Selection Committee may meet for the purposes of selection within two months from the date of the order. The period of four weeks was further extended by order dated 481994.

A Departmental Promotion Committee was constituted and selection was held on 1991994 consisting of the Chief Secretary as its Chairman, Agricultural Production Commissioner, Principal Secretary, Animal Husbandary Department, Secretary, Karmik Department and a representative for Scheduled Castes, Scheduled Tribes and other Backward Communities Shri Ramesh Yadav, Secretary to Government of U. P., Area Development as its Members. The post of Director, Animal Husbandary, is to be filled by promotion from amongst the Departmental candidates on merit and for the purpose of consideration of merit, the opposite party no. 3 was required to prepare a BroadSheet of all the eligible candidates with their service record of last ten years. As there was only one post of Director there was no reservation. The Departmental Selection Committee recommended the name of Dr. Rajendra Singh Yadav, opposite party no. 4 and he was appointed by order dated 2091994 which has been assailed in the present Writ Petition under Article 226 of the Constitution of India.

The petitioner has mainly raised two grounds, firstly, with regard to the invalid constitution of the Departmental Selection Committee by including a Member to represent the Scheduled Castes, Scheduled Tribes community and other backward classes, and, secondly, that again the Service Record of the petitioner and the respondent no. 4 was not correctly placed before the Departmental Promotion Committee for making their correct assessment of merit.

In the challenge to the constitution of the Selection Committee it has been alleged that as admittedly there was no reservation on the post, there was no requirement for the inclusion in the Selection Committee of any representative of Scheduled Castes, Scheduled Tribes and other Backward Classes. It has been alleged that under the object of the U. P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1994 (U. P. Act no. 4 of 1994) the purpose is to provide for the reservation in Public Services and posts in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens and for matter connected therewith or incidental thereto. In this background it has been submitted that there was no requirement to provide in the Statutory Selection Committee a representative to watch the interest of Scheduled Castes, Scheduled Tribes and other Backward class communities so as to provide them reservation The State, on the other hand has justified their action on the basis of the nomination made by the Government Order No. 483/Kal/94a/194 dated 29th March, 1994 under the provisions of Section7 of the U. P. Act No. 4 of 1994. The provisions of Section 7 of the U. P. Act No. 4 of 1994 are as follows :

"The State Government may. by order, provide for nomination of officers for giving representation to the Scheduled Castes, Scheduled Tribes, and other Backward classes of citizens in the Selection Committee to such extent and in such manner as it may consider necessary where such Committee is constituted either under the service rules or otherwise."

A bare reading of the above provision indicates that this provision has been made for representation in the Selection Committee itself. The purpose of nomination of Officers in the Selection Committee itself is to provide representation in the Selection Committees, to the Scheduled Castes, Scheduled Tribes and other Backward classes. Incur opinion this representation in the Selection Committee is not confined with the object to consider the reservation in public services and posts in favour of persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes. The Legislature in its wisdom constituting the body of selection Committees to provide representation to Scheduled Castes, Scheduled Tribes and other Backward Classes of citizens. It applies to all Selection Committees irrespective of the fact as to whether selection is to be made of general category or reserved category. There are no words in the Section which may limit its operation to or depend for its application on the category of persons to be selected. The learned Counsel for the petitioner was not able to bring to our notice any material or provision of law which provide any legal impediment in changing the constitution of the Selection Committee and for providing representation to the Scheduled Castes, Scheduled Tribes and other Backward classes of citizens in the Selection Committee.

The learned Counsel for the petitioner then submitted that the provisions of Section 15 of the U. P. Act No. 4 of 1994 provides that the provision of the Act shall not apply to cases in which the selection process has been initiated before the commencement of the Act. According to him the vacancy was created on 3171992 and as the selection was to be made by promotion from amongst the departmental candidates the selection process started after the eligibility list of the candidates was prepared alongwith their service records. It has been alleged that the quashing of the previous selection by the Hon''ble High Court would not mean to initiate fresh process of selection altogether. In these circumstances it was submitted that the selection is required to be conducted in accordance with the provisions of law and the Government Orders as they stood before such commencement. The provisions of Section 15 (1) of the Act are quoted below:

"(1) The provisions of this Act shall not apply to cases in which selection process has been initiated before the commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and Government orders as they stood before such commencement.

Explanation : For the purposes of this subsection the selection process shall be deemed to have been initiated where, under the relevant service rules, recruitment is to be made on the basis of:

(i) written test or interview only, the written test or the interview, as the case may be, has started, or

(ii) both written test and interview, the written test has started".

The explanation in the above provisions indicates that the selection process shall be deemed to have been initiated in recruitment when written test or interview only or both has started. There would be no difficulty in making out the selection process in the above circumstances but in case of selection by promotion by the Departmental Promotion Committee from amongst the Departmental candidates on the basis of their service record the above explanation would not apply. The selection process in case of recruitment by written test or by interview only would start from the date the advertisement is issued or the candidates are invited for interview. In the case of selection by promotion by Departmental Promotion Committee on the basis of service record, should it be the date when the record of the Government servant eligible for promotion is summoned for considering him for promotion or should it be the date when the matter is actually taken up by the Selection Committee. The process of selection by promotion other than by written test or interview consists of several steps viz. preparing a list of eligible person (after excluding those who do not come within the eligibility criteria or otherwise unfit), calling for their service records, consideration of the same by the Departmental Promotion Committee and preparation of select list. In this view of the matter the process of selection would be deemed to have started with the preparation of list of eligible persons for promotion, consideration of their service record and thereafter preparation of select list is the end stage of selection.

Hon''ble Supreme Court in Andhra Pradesh Public Service Commission, Hyderabad and another v. B. Sarat Chandra and others 1990(2) Supreme Court Cases 669, held :

"If the word ''selection'' is understood in a sense meaning thereby only the final act of selecting candidates with preparation of the list for appointment, then the conclusion of the Tribunal may not be unjustified But round phrases cannot give square answers. Before accepting that meaning, we must see the consequences, anomalies and uncertainties that it may lead to. The Tribunal in fact does not dispute that the process of selection begins with the issuance of advertisement and ends with the preparation of select list for appointment. Indeed, it consists of, various steps like inviting applications, scrutiny of applications, rejection of defective applications or elimination of ineligible candidates, conducting examinations calling for interview or viva voce and preparation of list of successful candidates for appointment."

Although it was a case of direct recruitment but the Supreme Court considered the various stages of selection and following the above analogy in our opinion the selection process would deem to start with the preparation of the list of the eligible candidates of the department together with the service record. It, therefore, follows that the list of persons eligible for promotion was considered and prepared after the vacancy was created on 3l792 before the commencement of the Act. If for any reason the ultimate selection held on 521993 is quashed or set aside and the matter was remanded for reconsideration without quashing the list of eligible persons, the process of selection can be said only to have been interrupted and not wiped out. The selection process continues and can be picked up from the stage at which it has been quashed. There can not be any doubt that the process of selection in these circumstances and for the above reasons commenced before enforcement of U. P. Act No. 4 of 1994, i. e 23rd March, 1994.

By changing the constitution of the Departmental Promotion Committee in accordance with the provisions of U. P. Act no. 4 of 1994, the respondents committed manifest error of law by including an extra Member, which was not contemplated under the Statutory Rules. The determination of merit and efficiency is a matter of subjective determination by the competent authority. The illegal presence of a representative of Scheduled Castes, Scheduled Tribes and Other Backward Class citizen how much influenced the selection process cannot be ascertained and for this reason the entire selection vitiates.

Whether an administrative authority is biased is not the real question but the question is whether there are reasonable grounds for believing that the authority was likely to have been biased on the basis of human probability and ordinary course of conduct. The burden of establishing bias and malafides lies heavily on the person who alleges it. The Selection Committee is to determine the suitability of a candidate after assessment of all relevant considerations such as qualifications, experience, competence aptitude, efficiency, integrity and antecedents.

18 The learned Counsel for the petitioner in advancing this argument regarding the unfairness and manipulations in placing the relevant material before the Departmental Promotion Committee submitted that as on the earlier occasion the respondents have again in a biased and malafide manner prepared the BroadSheet (a Chart containing resume of 10 years service record of the candidates). The learned Counsel submitted that a BroadSheet was prepared by the Department and was placed before the Hon''ble Supreme Court which was later on changed to adjust the supremacy of respondent no. 4. In the counteraffidavit filed on behalf of the State it was denied that any BroadSheet was filed before the Supreme Court. However, the preparation of the BroadSheet dated 1951994 has not been denied as such. It has been admitted that the BroadSheet dated 1951994, filed as annexure no. 5, was not the BroadSheet placed before the Departmental Promotion Committee. The BroadSheet was changed at the suggestion of the Karmik Department because the earlier BroadSheet was not on the proforma normally used for selection as prescribed by the Government Order No. 13/l5/9lKall992 dated 1121992. It was further alleged that there was no categorisation in the entries for certain years in the Character Roll. Categorisation assessed on the basis of description made in the entry concerned was not found correct on examination by Karmik Department. The photostat copy of the newly prepared BroadSheet/Statement supplied by the learned Standing Counsel has been kept on record.

Normally the assessment made by the Selection Committee may not be questioned as in judicial scrutiny we do not sit in appeal over their administrative function. In selection and making appointment the authority should act in a bonafide manner. The reason why bonafide are necessary to effectuate a selection is, that no public body regarded as having statutory authority, to act in bad faith or from corrupt motives and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives would be held to be inoperative.

2.0. It is not the function of Courts of law to substitute their wisdom and discretion in the process of selection or sit in appeal on the decision of the selection and substitute their own decision. The right to select includes the right not to select and Courts cannot probe into the mental process of the Selection Committee.

The Selection Committee is also not supposed to give reasons for selection of a candidate but the giving of reasons for decision is different from and in principle distinct from the requirement of procedural fairness. The procedural fairness is the main requirement in the administrative action. The Selection Committee must take a decision reasonably without being guided by extraneous or irrelevant considerations.

Hon''ble Supreme Court in National Institute of Mental Health & Neuro Sciences v Dr. K.Kalyana Raman and others, AIR 1992 Supreme Court, 1806, held :

"As to the first point 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."

The submissions made on behalf of the petitioner and the admissions made by the respondents required us to examine the service record of the petitioner and respondent no. 4 as also the changed BroadSheet or the Statement prepared subsequently in accordance with the requirement of the Government Order dated 1121992. The act of selection though performed in good faith, may be so clearly founded on alien and irrelevant material as to be outside the authority conferred upon the body. While examining the service record of the petitioner and comparing it with the BroadSheet we find that after this Court has directed for the consideration of the Service entries for the years 198788, 198889, 198990 and 199091, in accordance with the entry recorded by the Director as also the decision of the Governor communicated by the order dated 1661994, mention has been made of the petitioner being kept under suspension during the year 199091. There was absolutely no requirement of this fact to be mentioned and to have been taken into account specially after the consideration by the Department in detail including the aspect that he was under suspension, the entry as awarded by the Director was to be taken into account for the relevant period. The order of the Chief Secretary which was recorded in the service record by note dated 21121992 was expunged by order dated 661994 on the basis of the decision of the Governor. There was no justification for the respondents to have placed on record this irrelevant material for assessment of the petitioner''s merit.

As regards the part entry awarded to the petitioner for the year 199293 by the Principal Secretary, Hill Development as also part entry awarded by the Secretary to be ''satisfactory'' the entry of the Secretary namely Sri Babu Ram was to be ignored.

The placement of this entry for consideration again was not in accordance with law and naturally affects the merit of the petitioner In the BroadSheet prepared earlier which has been tiled as Annexure no. 5 it has been indicated that the Director Sri Dharmendra Nath, who awarded this entry dated 3171992 for the period 1592 to 31792 had retired from service on 31792. The entry awarded on the date of retirement does not appear to be fair and justified, Moreover, the Director in capacity as Prativedak Adhikari cannot award entry to Additional Director in view of Government Order dated 1771991. The Secretary at the relevant time was the competent authority as Prativedak Adhikari and the Hon''ble Minister as the Reviewing/Accepting Authority. The Secretary Sri Babu Ram approved the ''satisfactory'' entry without waiting till the end of session probably to make it available for the earlier selection.

No explanation has been given for inclusion of the part ''satisfactory'' entry for the year 199293.

As regards the record of respondent no. 4, Dr. Rajendra Singh is concerned, there is a mention in the statement that the entry for the year 198384 is not to be read in view of the order of State Public Services Tribunal dated 1 71994. A copy of the order of the State Public Services Tribunal dated 171994 was required to be produced and the learned Standing Counsel supplied a photostat copy of the order which has been kept on record. On our perusal we find that there was serious manipulation in making the endorsement. In the copy which was furnished to us the order of the Tribunal, by the Chairman Dr. Indu P. Aron is dated 2961992 and not 171994. Why this order has been shown as dated 171994 is best known to the respondents. In fact the respondents were supposed to have placed the original copy which they had in their possession. The authenticity of this document creates further suspicion as there appears to be no reason when the respondent no. 4 was in line for consideration in the earlier selection also and the adverse entry for the year 198384 was starring why this order did not see the light of the day and was not taken into account. It fails to reason why the adverse entry in the service record of a candidate which was seriously prejudicing his selection if expunged by an order was not immediately brought on record and it was placed only when the present selection was to take place.

On a perusal of this order it indicates that the representation made by the petitioner Dr. Ashok Kumar Singh in Claim Petition No. 122 (F)/III/1990 against the impugned Censure entry was rejected by the Government vide order dated 162 90 and thereafter the matter was taken to the U. P. Public Services Tribunal. On the other hand in the statement placed before the Departmental Selection Committee it is mentioned that the representation against the adverse entry for the year 198384 communicated by the Government Order dated 461988 is pending. There appears to be serious contradiction and again there was no occasion for respondent no. 4 to have approached the Tribunal before the disposal of the pending representation. All this indicates that the representation against the adverse entry for the year 198384 was pending and the order of the U. P. Public Services Tribunal alleged to be dated 171994 passed in favour of Dr. A. K. Singh is a forged, fictitious document which was placed for consideration on record. The nonsupply of correct and certified copy of the document further strengthen our doubt that this order was manipulated to be shelved in, to escape the notice and to change the adverse effect of the adverse entries for the year 198384. The nonsupply of the correct and certified copy establishes that this order was not passed in the case of the Dr. Rajendra Singh and he prepared a forged and fictitious document to mislead the authorities, who for reason best known to them fell victim. Thus the above endorsement in the statement placing the service record of respondent no. 4 favourably effects the merit of respondent no. 4. It fully establishes that there was an extraneous material and the Selection Committee was influenced by the irrelevant material in assessing the merit of the respondent no, 4. Further we find that neither the order of State Services Tribunal dated 2961992 wrongly mentioned as dated 1794 finds place in the service record nor there is any mention of the same in the service record of the respondent no. 4. We are also constrained to note that the service record containing the service entries has been damaged. The adverse entries for the period 198384 are missing. The Sheet containing the entry appears to have been turned and no effort was made to reconstitute the record.

If the unexpunged adverse remarks were there in the confidential service record it was the duty of the Departmental Promotion Committee to take note of them and come to a decision on proper consideration of the same.

We also find that for the excellent entry awarded in the year 199293, the period indicated is only 151992 to 3171992. The Hon''ble High Court in its judgment dated 31193 had adversely commented on these entries awarded by the then Secretary, Sri Babu Ram, which were not to be taken into account. Some very cogent reasons have been given for ignoring this entry in the BroadSheet prepared earlier which was indicated in explanation given from letters marked as ''?''. The respondents have utterly failed to give any reason or explanation in mentioning this ''excellent'' entry without dislodging the statement mentioned in the aforesaid BroadSheet filed as annexure no. The presence of Entry for 199293 in the statement was not justified and the Departmental Promotion Committee should not have taken it into account in adjudging the merit.

We would not have normally gone into these details and the material which was considered by the Selection Committee in forming its opinion but in the background of the case and. the admission of the respondents to have changed the BroadSheet not only in its form but its contents also, we were compelled to minutely look into these details and we are constrained to hold that a Selection Committee consisting of the seniormost Officers of the State including the Chief Secretary committed such act of unfairness to favour a particular candidate. We are satisfied that these action do not reflect bonafide mistake.

For the reasons stated above we are of the opinion that the selection on the post of Director, Animal Husbandary was not fair and is liable to be quashed.

The writ petition is allowed. The selection held on 1991994 for the post of Director, Animal Husbandary and the appointment order dated 2091994 (Annexure No. 1) issued in favour of Respondent no. 4 are quashed. The respondents Nos. 1 to 3 are directed to make fresh selection on the above post in accordance with law.

(Petition allowed)