Judgment :- 1. The petitioner was appointed as 'Head Constable' on 18-8-1948. He was provisionally promoted as Sub-Inspector of Police several times; after his provisional promotion on 20-5-1962 as per Ext. P1 order, according to him, he has not been reverted. Pursuant to Ext. P3 decision of this Court as confirmed by Ext. P4 appellate decision, and the subsequent Ext. P2 decision of this Court his promotion as Sub-Inspector of Police was regularised with effect from 19-4-1961 as per Ext. P5 order of 21-8-1973. Consequently he was assigned the rank 179A above one Sri. Balakrishna Menon whose rank was 180 and below one Sri. Gopala Menon whose rank was 179. As a result of this he became eligible to be considered for inclusion in the Select Lists of Sub-Inspectors of Police fit for promotion as Circle Inspectors of Police from 1968. The Departmental Promotion Committee in October 1973 reviewed such lists prepared for the years 1968 onwards and found that he was not eligible for inclusion in the Select Lists prepared, for the years upto and inclusive of 1971, and included him in the Select List for 1972. On that basis he was promoted as Circle Inspector of Police as per Ext. P6 order dated 8-12-1973. Sri. Gopala Menon and Shri Balakrishna Menon appear to have been included in the Select List of Sub-Inspectors fit for promotion as Circle Inspectors prepared for the year 1969 and on that basis both of them appears to have been promoted in January 1970. As per Ext. P7 representation the petitioner requested the Inspector General of Police that his seniority as Circle Inspector be counted from 1-1-1970 on which date Sri. Gopala Menon was promoted as Circle Inspector. This request was rejected as per Ext. P8 reply on the ground that the petitioner has not been included in the Select Lists upto and inclusive of 1971. He submitted a further representation, Ext. P9, to the Inspector General of Police, and also Ext. P12 appeal (not statutory) to the Home Minister complaining about the decision of the Departmental Promotion Committee. These were rejected as per Exts. P11 and P13 orders which are impugned herein. The petitioner therefore seeks to have these two orders quashed. He submitted a further representation, Ext. P9, to the Inspector General of Police, and also Ext. P12 appeal (not statutory) to the Home Minister complaining about the decision of the Departmental Promotion Committee. These were rejected as per Exts. P11 and P13 orders which are impugned herein. The petitioner therefore seeks to have these two orders quashed. The petitioner further prays that the respondents be directed to adjudge the suitability of the petitioner for inclusion of his name in the Select List for 1969 on a comparative assessment of all the officers who were selected in 1969 and to regularise his appointment as Circle Inspector of Police from 1969. 2. The main question raised in this case is as to whether the Departmental Promotion Committee (hereinafter mentioned as DPC.) should, before finalising the select list, afford an opportunity to a senior candidate in the field of choice to establish that he is not liable to be dropped out of that list by informing him the specific reasons on which he has been tentatively decided to be excluded therefrom. Though this is the point canvassed for, namely, that a senior hand in the lower category who is proposed to be left out of the select list for promotion to the higher category is entitled for an opportunity to object to it and to establish that he is to be included in the list, we see no reason to confine this principle (if that is a correct one) only to senior hands in the lower category, for the submission as aforesaid, we suppose, proceeds on the premise or assumption that (in the words of Mathew J. in Union of India v. M. L. Capoor (AIR. 1970 SC '87) 'seniority ie has some claim for preferential treatment', which is not so since (again borrowing that learned judge's words) 'ex hypothesi the selection is primarily on the basis of merit and suitability', seniority counting only where merit and suitability of two or more candidates in the field of choice are equal or approximately equal so that the " factum of seniority tilts the scale in favour of the senior. In Sant Ram Sharma v. State of Rajasthan & Ann (1968,) 1 SCR. 11 at 118 - AIR. 1967 SC. In Sant Ram Sharma v. State of Rajasthan & Ann (1968,) 1 SCR. 11 at 118 - AIR. 1967 SC. 1910 the Supreme Court said: "The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is therefore available." The point therefore that emerges for consideration is the larger question indicated above, namely, is the D. P. C., before the select list is drawn up, bound to call upon every candidate in the field of choice to establish that on a comparative assessment of all the candidates he is better suited to be included in the list, or at any rate, that he is fit to be included therein and necessarily, applying the same rules of natural justice, every other candidate to disprove the former's claim by establishing the latter's suitability for being included in the list in preference to the former, for, obviously all in the field of choice cannot be included in the list. The procedure as aforesaid which will make it one in the nature of an unending lis interse between the several candidates aspiring for inclusion in the list, would not in our view, be conducive to advance the object of selection which is that only such of the candidates who are suitable to hold the higher post are promoted and not, mark, that the best amongst the available candidates are promoted, nor would it serve the main interest which the public service is intended to serve, namely, the public interest. That the procedure for selection of candidates by the D.P.C. by preparing a select list on the basis of 'merit alone and not seniority' as in this case (See Ext. P-15 G. O. (P) No. 420 dated 29-12-1967, para 2) does not involve any 'lis' is clear from the discussion of the Supreme Court in Para.10 in Capoor's case already adverted to. 3. Relying on the Capoor's case Mr. Rama Shenoy on behalf of the petitioner contended that even if the procedure for selection of candidates does not involve any lis, and assuming the same to be purely administrative or executive in character, and not even quasi-judicial, minimal requirement of natural justice requires communication of reasons for non-inclusion in the list to the candidate proposed to be rejected. Rama Shenoy on behalf of the petitioner contended that even if the procedure for selection of candidates does not involve any lis, and assuming the same to be purely administrative or executive in character, and not even quasi-judicial, minimal requirement of natural justice requires communication of reasons for non-inclusion in the list to the candidate proposed to be rejected. We do not think that the above case supports the aforesaid contention. Of the two learned judges who constituted the Bench which decided that case, one of them, Beg J. said as follows: "Therefore, speaking entirely for myself on this question, I was inclined to hold that although the process of approval by the Union Public Service Commission is not such as to be characterised as quasi-judicial and that supersession in the course of preparations and finalisation of select lists could not be strictly and legally held to be penal, so as to attract an application of Art.311 of the Constitution, a minimal requirement of just and fair treatment in such a situation would be to inform the officer to be superseded of reasons recorded for his proposed supersession so as to enable him to make such representations against the proposal, before its approval by the Union Public Service Commission, as he may desire to make. But, as I have observed above, I am doubtful whether, on authorities as they stand today, such an expansion of the scope of natural justice is justified. After having had the benefit of the views expressed by my learned Brother Mathew, for which I have the greatest respect, I do not think that I could embark singly, in the cases before you, upon what may appear to be a new extension of concepts of justice, fairplay, and reasons, in the realm of administrative law, particularly as the cases before us can be decided on the next question on which our views coincide." And the other learned Judge, Mathew J. said on this aspect in the following manner: "I am not prepared to lay down as a general proposition that whenever a selection is made on the basis of merit and suitability with due regard to seniority, notice to a senior will be required if he is proposed to be passed over in favour of a junior on the ground of his greater merit and suitability. No precedent has been cited in support of the propositions. No precedent has been cited in support of the propositions. On a balance of all the relevant factors, I do not think it expedient to extend the horizon of natural justice involved in the audi alteram partem rule to the twilight zone of mere expectations, however great they might be." There is no merit in the submission made that a candidate proposed to be dropped from the list is entitled to have the reasons therefor communicated to him. 4. The next point for consideration is as to whether the D.P.C. ought to record its reasons for rejecting a candidate, though the same need not be communicated to the rejected candidate. The learned counsel for the petitioner placed reliance again on the Capoor case. That case turned, with respect, as pointed out by the learned Chief Justice on behalf of the Court in State of Kerala v. Krishnan Namboodiri ILR.1977(2) Kerala 678, on the statutory rules considered therein, namely, the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955, and particularly Regulation.5 Clause.5 thereof as per which the Selection Committee is required to record its reasons for the proposed supersession of any member of a State Civil Service. This clause was held by the Supreme Court to be mandatory in nature and the 'stock reason' given for supersession of the petitioners therein was characterised by that Court to be "Rubber-stamp reason given mechanically" without application of mind. That Court therefore said: "We, therefore, think that the mandatory provisions of Regulation.5(5) were not complied with. We think that reliance was rightly placed by respondents on two decisions of this Court relating to the effect of non-compliance with such mandatory provisions. These were: Associated Electrical Industries (India) Pvt. Ltd., Calcutta v. Its Workmen, AIR 1967 SC 284 and Collector of Monghyr v. Keshav Prasad Goenka (1963) 1 SCR 98 = (AIR 1962 SC 1694)." The two cases cited in the above passage also concerned statutory provisions requiring the respective authority to record its reasons while exercising jurisdiction under the respective provision, S.33 B of the Industrial Disputes Act, 1947 and S.5A of the Bihar Act X of 1939. With respect, borrowing the words of the learned Chief Justice in State of Kerala v. Krishnan Namboodiri ILR.1977(2) Kerala 678, 'this statutory requirement marks one essential distinction between Capoor's case and the present one.' In our view it was a case where the Supreme Court applied the maxim; 'non observata forma infertur adnullatio actus' (non observance of the prescribed formalities involves the invalidity of the proceedings.) pointing out that the statutory requirement of recording reasons is not an empty formality. In the absence of a rule statutory or not and mandatory or otherwise, requiring recording of reasons, we are not prepared to attach any infirmity to a select list merely because ex facie it does not give the reasons for the inclusion of some of the candidates therein and the necessary and resultant exclusion of others in the field of choice therefrom, if, and only if, the list is shown to be the outcome of application of mind by the Selection Committee, as and when the same is impugned on the ground that the selection was made arbitrarily. We are not prepared to extend the doctrine of 'speaking order' to this region of preparation of select list, for very often it may turn out to be inadvisable to give publicity to the unclean records of the work of the rejected candidates, in that the concerned officers themselves may not, perhaps, relish it, and in some cases, it may tend to undermine the morale of the service and the faith the public have in its efficiency. 5. The provisions in Ext. P15, G.O. (P) No. 420 dated 29121967, make it clear that merit, and merit alone, is to be the basis of selection, and not seniority, and that the criterion for assessment of merit is the confidential reports of the officers. In making the assessment the DPC. is required to ignore uncommunicated remediable adverse remarks in the confidential reports. If on these materials the conclusion arrived at by the DPC. is plausible, that conclusion has to be characterised as one, grounded on sufficient materials and arrived at as a result of application of mind on the part of the DPC. That conclusion then would be in conformity with the just view of things and in accordance with human reason, no matter whether the mental and intellectual process of the application of working of mind is stated or recorded in the proceedings. That conclusion then would be in conformity with the just view of things and in accordance with human reason, no matter whether the mental and intellectual process of the application of working of mind is stated or recorded in the proceedings. The essential question for consideration would, therefore, be as to whether the resultant conclusion can be co-related to the materials on which the conclusion is required to be founded and rested, and not how and in what manner the mind of the person or persons who made the decision worked. This is particularly so in this region of selection of candidates for promotion on the basis of merit alone, seniority not counting till that stage is reached when the DPC. finds it difficult to 'take a firm decision' to choose between those who are assessed to have equal or approximately equal merit, and not on the basis of the best-amongst-the-available principle. Note that the process of comparative assessment of merit in its real sense begins only after the DPC., in the process of selection, decides as to who all can be considered as having the minimal merit required to hold posts in the higher cadre, and who all do not come to that level. And, as pointed out by Beg J. in Capoor's case: "Merit is certainly an elusive factor capable of being judged very differently from different angles, or, by applications of varying tests of it by different persons, or, by the same persons, at different times." 6. In the counter-affidavit sworn on behalf of respondents 1 and 3 it is stated as follows: "Consequent on the re-fixation of the rank in the cadre of Sub Inspector of Police in between Shri Gopala Menon and Shri. N. Balakrishna Menon the petitioner became eligible for consideration in the field of choice of Sub Inspectors fit for promotion as Circle Inspectors from the year 1968. The DPC. which met on 10th October, to 12th October, 1973 considered the case of the petitioner by reviewing the select lists of Sub-Inspectors fit for promotion as Circle Inspectors from 1968 onwards. The DPC. examined the confidential records of the petitioner and others who were already included in the field of choice of Sub-Inspectors for the preparation of the select list of Circle Inspectors for 1968. It was found by the DPC. The DPC. examined the confidential records of the petitioner and others who were already included in the field of choice of Sub-Inspectors for the preparation of the select list of Circle Inspectors for 1968. It was found by the DPC. that the petitioner was not eligible to be included in the select list for 1968 based on the merit and ability. On a comparative evaluation of the records of the petitioner and those of the officers included in the field of choice the DPC. found that the records of the petitioner do not justify his inclusion in the select list, for the years 1969 1970 (Main and Supplementary) and 1971 (Main and Supplementary). The DPC. found the petitioner suitable for inclusion in the select list on a comparative assessment of the records of the petitioner and other only for the year 1972. Accordingly the petitioner was appointed as Circle Inspector with effect from 10-12-1973 and his promotion was regularised with effect from 5-3-1973." 7. The learned Government Pleader placed before Us the officers' personal file containing the confidential reports. Seeing the communicated adverse remarks about his work therein, we are not prepared to say that the view taken by the DPC. that the same would not justify his inclusion in the select lists for the years 1969,1970 (Main and Supplementary) and 1971 (Main and Supplementary) is unsupported by materials that will lead to that conclusion. We do not propose to advert to those adverse remarks one by one, as in our opinion, the same may not be, as already indicated, healthy practice both from the point of view of the officer himself and the service, and because, the officer himself knows what they are. We may however say that at our direction the learned Government Pleader showed this file to the learned counsel for the petitioner at the bar, and it was not argued that these materials are insufficient to take the view the DPC. has taken. 8. We may however say that at our direction the learned Government Pleader showed this file to the learned counsel for the petitioner at the bar, and it was not argued that these materials are insufficient to take the view the DPC. has taken. 8. We have dealt at a little length in this case because our learned brother Chandrasekhara Menon J. in his reference order expressed a doubt as to whether the principles stated in Capoor's case are to be confined to cases coming under statutory rules governing selection, and whether it is not incumbent on the Selection Committee to disclose to the court that there was a comparative assessment of the records of the concerned officers and that it was on such assessment that certain persons were selected and others were not selected. We have expressed our mind oh these matters, and we see no reason to doubt the correctness of the decision in State of Kerala v. Krishnan Namboodiri (ILR.1977 (2) Kerala 678) nor are we prepared to say that that decision in any manner goes counter to the decision of she Supreme Court in Capoor's case. Dismissed. No costs. Dismissed.