The State of West Bengal and Others vs Nazrul Islam and Others

A.K. Banerjee, J.

Facts:--

Five writ petitions have been assigned to us. The writ petitions would relate the judgment and order dated February 3, 2014 delivered by the Central Administrative Tribunal quashing the selection of the Director General of Police vide minutes of the Selection Committee dated December 5, 2012. The State is aggrieved, so are the appointees. Dr. Nazrul Islam is a member of Indian Police Service. At his instance, the Tribunal delivered the impugned judgment and order.

The facts would depict, the post of Director General of Police in the State became vacant on the retirement of the then incumbent. The State decided to fill up the vacancy. Accordingly, as per the promotion guidelines dated January 15, 1999, the State formed a Screening Committee. As per the guidelines, (i) the Chief Secretary of the State (ii) one non-IPS officer of the rank of Chief Secretary under the State (iii) Director General of Police and (iv) an additional member in case there is a senior officer available holding independent charge of Home Secretary in the rank of Additional Chief Secretary or Chief Secretary. Accordingly, the State constituted a Committee. They were supposed to meet on December 5, 2012. On December 3, 2012, the Additional Secretary of the Home Department issued a Note, Sri Basudeb Banerjee, IAS, the then Home Secretary who was not an Additional Chief Secretary at the relevant time would participate in the meeting as a "Non-member Invitee". Significant to note, Sri Banerjee already attended one meeting on July 18, 2012 as we find from the Note dated December 3, 2012.

On December 5, 2012 the Committee met and prepared a list of successful officers to be promoted to the rank of Director General of Police. The Committee considered the relevant A.C. Rs.

As per the Notification dated November 30, 2012 for the post of Director General, three "outstanding" grades of last five years would make an officer eligible to come within the zone of consideration. It is, however clarified; in case any of the A.C. Rs. was reported to be not available, the Committee would be at liberty to see the preceding one year. Following the said Notification, the Committee while considering the A.C. Rs. considered the preceding A.C. Rs. of at least three officers including Dr. Islam as in their cases some of the A.C. Rs. for the relevant period between 2007 to 2012 were not readily available. The Screening Committee prepared a panel where Dr. Islam became unsuccessful, hence his challenge to the Tribunal that succeeded. The State has now come up challenging the decision of the Tribunal. The learned Judge of the Tribunal also quashed the appointments given to the successful candidates. Dr. Islam is also aggrieved, he has also filed an application as according to him, two documents being dated November 30, 2012 and December 3, 2012 should have also be set aside. The Tribunal overlooked such issue. The promotees have also filed separate petitions which are heard analogously.

CONTENTIONS:--

Mr. Surajit Samanta, learned counsel appearing for Dr. Islam, made his submission first. Mr. Samanta would contend, the judgment of the Tribunal rightly approached the situation and ultimately set aside the process of promotion as it was held void ab initio. He is, however, aggrieved, in absence of those two documents referred to above, being quashed and set aside.

Elaborating his argument, Mr. Samanta would take us to the judgment and order impugned herein. He would refer to the passage where the learned Judge elaborately dealt with the issue of formation of the Screening Committee. According to him, Sri Banerjee was admittedly not in the rank of Additional Chief Secretary and could not have been included in the said Committee, hence his participation in the meeting held on December 5, 2012 would vitiate the entire process and the learned Judge rightly declared it void ab initio. Commenting on the explanation of the State as to "Secretarial Mistake", Mr. Samanta would add, it could not be said to be a mistake at least the document would not suggest so. In this regard, he has referred to the Apex Court decision in the case of Chandra Shashi Vs. Anil Kumar Verma, , he would refer to paragraph 5 of the said decision where the Apex Court would say, "The real question is whether filing of the aforesaid forged and fabricated document amounts to contempt." According to him, those two documents could see the light of the day much after the issue had been brought before the Tribunal. It was nothing but an afterthought and should have been quashed and set aside.

Per contra, advancing the argument on behalf of the State, the learned Advocate General has also placed the judgment and order impugned in his own way. He would refer to the crucial documents particularly, four documents being Guideline dated January 15, 1999, Notification dated November 30, 2012, Note Sheet dated December 3, 2012 and minutes of the meeting held on December 5, 2012. Referring to those documents, the learned Advocate General would comment, the learned Judge declined to accept the contention of the petitioner on the issue of forgery or fabrication. The Guideline dated January 15, 1999 would prescribe the process of selection including constitution of the Screening Committee. The notification dated November 30, 2012 would suggest, how the A.C. Rs. would be evaluated. The note sheet dated December 3, 2012 would clarify the presence of Sri Basudeb Banerjee at the meeting and the ultimate decision taken on December 5, 2012. According to him, as per the constitution Chief Secretary, Additional Chief Secretary and Director General of Police were the three compulsory members suggested by the Guidelines, hence the presence of Sri Banerjee was needed only to assist the Committee as Home Secretary who was the custodian of records. He would also refer to another notification dated June 4, 2009 wherein a numerical guideline was given to assist the Committee to arrive at the accurate decision, however that may not be so relevant in the present case.

On the selection, the learned Advocate General would submit, the minutes did not speak of any participation and/or deliberation by Sri Banerjee. In any event, the mistake, if any, that crept in by dint of his presence, should not be fatal. As and by way of alternative submission, the learned Advocate General would contend, Dr. Islam got two "outstanding" grade. To come within the zone of consideration, one has to get at least three "outstanding" grade. He was admittedly outside the zone of consideration even before initiation of process by the Committee on December 5, 2012, hence no prejudice was caused to him. Commenting on the judgment and order of the Tribunal where the Tribunal relied on the Apex Court decision in the case of Mahinder Singh Gill and another v. the Chief Election Commissioner, New Delhi and others reported in All India Reporter Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, , he would contend, the ratio decided therein would have no manner of application. The note sheet dated December 3, 2012 was anterior to December 5, 2012. The learned Judge rejected the contention of Dr. Islam to the extent, it was fabricated, hence it could not be said an afterthought or "later brought". In this regard, he would also rely in the case of Commissioner of Police, Bombay v. Gordhandas Bhanji reported in All India Reporter Commissioner of Police, Bombay Vs. Gordhandas Bhanji, , he would refer to paragraph 9 that the Apex Court once again reiterated in Mohinder Singh Gill (supra).

The learned Judge made elaborate comment on benchmark being fixed by the notification dated November 30, 2012. The learned Advocate General would contend, Dr. Islam was not in the zone of consideration; hence no prejudice was caused to him. He relied on a decision (CAT) Gulf Air Company Vs. Delhi Administration and Gulf Air Employees Association, . The learned Advocate General would pray for setting aside of the judgment and order of the Tribunal.

Adopting the submissions made on behalf of the State by the learned Advocate General, Mr. Joydeep Kar, learned counsel appearing for two of the selectees, would supplement by contending, the constitution of the Committee would have no serious effect as it had recommendatory role. He would rely upon two Apex Court decisions in the case of State of Tamil Nadu and Others Vs. M.N. Sundararajan, and in the case of Registrar, High Court of Madras Vs. R. Rajiah, .

On the aspect of Guideline, Mr. Kar would suggest, it was nothing but advisory. He would refer to two Apex Court decisions in the case of Narendra Kumar Maheshwari Vs. Union of India (UOI) and Others, and in the case of New India Assurance Company Ltd. Vs. Nusli Neville Wadia and Another, .

The learned Judge heavily commented on the selection of A.C.R. As per the normal rule, A.C.R. for 2007 - 2012 should have been considered. The A.C.R. for 2010 & 2011 were not available, hence the Screening Committee, following the notification dated November 30, 2012, went back to the earlier years, however despite such attempt being made, they could not bring Dr. Islam within the zone of consideration in absence of the minimum benchmark of three "outstanding" grading. In this regard, Mr. Kar would supplement by citing the decision in the case of V. Kashyap and Another Vs. Indian Airlines and Others, .

Mr. Kar would lastly argue, on the scope of scrutiny by the Tribunal and in this regard he would rely upon the Apex Court decision in the case of M.V. Thimmaiah and Others Vs. Union Public Service Commission and Others, . He would sum up his contention by contending, the challenge to the process could only be had once there was allegation of violation of Statutory Rule or mala fide. According to him, Dr. Islam could not succeed on that score.

Appearing for other two selectees Mr. Malhotra has adopted the submission of Mr. Kar, leading him Mr. Soumya Majumdar, learned Counsel has contended, the State already initiated two disciplinary proceeding. One of them was initiated after the selection process, whereas the earlier one was stayed at the time of selection. Hence, Committee did not consider the same. He would contend, mere stay of the proceeding would not mean, there was no proceeding against him.

While giving reply, Mr. Samanta appearing for Dr. Islam would contend, the learned Advocate General admitted the State followed the guideline, hence contention raised by Mr. Kar on the recommendatory nature in the Committee''s decision would not hold good. On the mala fide issue Mr. Samanta would contend, the Committee acted in a manner that would give enough scope to conclude that the State was bent upon not to select the Dr. Islam. In any event, the decision is a collective one that could not be bypassed by ignoring the presence of Basudeb Banerjee. He would reiterate, the Screening Committee must apply their mind, although as per the Rules, only Annual Confidential Report would be considered. The Committee should come to subjective conclusion while selecting candidates.

OUR VIEW:--

We have considered the rival contentions. The learned Judge very rightly found scope of enquiry. The learned Judge observed, the Tribunal did not have any appellate power. It would only scrutinize the decision making process. However, in our view, the learned Judge while considering the issue, in fact, deviated from the path. The scope of scrutiny was very much limited. In fact, Mr. Samanta in his usual fairness would contend, the judgments referred to by His Lordship, were neither cited by him nor by the learned Advocate General, rather the judgments cited by them were not considered. If we take the entire issue in a narrow campus we would find, Guideline dated January 15, 1999 prescribes not only the mode of selection but also the constitution of the Committee. The three compulsory members, as suggested by the Guideline, were duly present in the meeting, Basudeb Banerjee was an additional member. Learned Advocate General would agree, his inclusion was irregular. The State tried to explain by contending, it was a secretarial mistake. Mr. Samanta would strenuously object to the same. Even if we uphold the objection we have to find, whether such mistake or irregular inclusion would be fatal or not. As per the Guideline, to come within the zone of consideration, one would have to score at least three "outstanding" in five years. Dr. Islam unfortunately did not have such gradation. He would contend, deliberately two years ACRs were not completed. The learned Judge asked the Screening Committee to take those two years into consideration on the basis of self-assessment. We have deepest regard for His Lordship, with all humility may we say, such process is without any support of law. Once he fails to come within the zone of consideration his attack to the Screening Committee or fixation of benchmark would become weakened, rather irrelevant. The learned Judge took immense pain going deep into the matter considering all precedents that were available on the issue. However, we wish to look at it from the narrower angle as observed herein before. The learned Judge observed, the process was illegal in view of the presence of Basudeb, hence it should be held void ab initio. We fail to reason, once the petitioner could not come within the zone of consideration his attack to the selection process is of no consequence.

The Tribunal application of the State and the other three tribunal applications thus, succeed and are allowed. The judgment and order is set aside.

There would be no order as to costs.

With regard to the Tribunal application of Mr. Samanta, we would observe, since his client did not come within the zone of consideration his attack on the two notifications would be of no relevance and the same is dismissed without any order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties, on priority basis.

Arijit Banerjee, J

I agree.