S. K. Chandrika v. The Union Of India — 1982 DIGILAW 119 (KER)

JUDGMENT Balagangadharan Nair, J. 1. At the material time the petitioner and the 5th respondent were upper division clerks in the office of the Director of Census Operations, Kerala. In the hierarchy, the next higher post to which they were eligible to be appointed is the post of Senior Accountant. Under the Recruitment Rules Ext. R1 dated January 5, 1973 appointment to the Senior Accountant's post is by selection or by promotion from the category of upper division clerks with 3 years' regular service. The promotion is made on the basis of the selection made by the Departmental Promotion Committee (the D. P. C., for short). The petitioner and the 5th respondent were both qualified to be appointed Senior Accountants. By the order Ext. R2 dated July 20, 1978 the petitioner who was the senior of the two was appointed an ad-hoc Senior Accountant and subsequently by the order Ext. P3 (P2) dated March 28, 1979 her appointment was extended by a period of six months with effect from March 1, 1979 or till the post was filled on a regular basis whichever was earlier. Subsequently on the recommendation of the D. P. C. the 5th respondent was promoted Senior Accountant in a temporary capacity and the petitioner was reverted to her substantive post as upper division clerk. Ext. P3 dated June 5, 1979 is the order of the Deputy Director of Census Operations in this regard. The petitioner seeks to quash Ext. P3 on the grounds that although she was senior and was qualified, the D. P. C. had not prepared nor published any select list nor given any reason for denying her promotion thus acting contrary to the principle laid down in Union of India v. M. L. Capoor. AIR 1974- SC 87. There was an adverse remark against the petitioner in her, confidential report for the period, April 1975 to December 1975, but on her representation the Registrar General, India had by the communication Ext. P1 dated October 15. 1977 deleted it. The D. P. C. had not taken note of the deletion of the adverse remark and had allowed itself to be influenced by it. The petitioner accordingly prayed that Ext. P'3 might be quashed and that the 3rd respondent who is the Director of Census Operations, Kerala might be directed to promote her on a regular basis to the post of Senior Accountant. 2. The petitioner accordingly prayed that Ext. P'3 might be quashed and that the 3rd respondent who is the Director of Census Operations, Kerala might be directed to promote her on a regular basis to the post of Senior Accountant. 2. The Deputy Director, of Census Operation has filed a counter affidavit on behalf of respondents 1 to 4 contesting the Original Petition. After setting out the qualifications and method of selection and appointment of Senior Accountant, the affidavit states that the post fell vacant on July 1, 1978 and that as the seniority list of upper division clerks had not been finalised the petitioner who was the senior most upper division clerk in the provisional seniority list was promoted on a temporary and adhoc basis with effect from July 20, 1978 by the order 'Ext. R2 and that later on it was extended by the order Ext. R3. In view of the administrative instructions in the office memorandum Ext. R4 dated October 29, 1975 the petitioner could found no claim on the basis of the adhoc appointments under Exts. R2 and R3. By March 1979 the seniority list of upper division clerks was finalised and. the appointment of a regular hand as Senior Accountant was taken up. For this purpose the D. P. C. met on June 5, 1979 and on its recommendation the 5th respondent who obtained the first rank was promoted as Senior Accountant. As a consequence the petitioner was reverted as upper division clerk. The counter affidavit denies that that D. P. C. had taken into account the confidential report of 1975 and asserts that the confidential reports of the petitioner and other eligible upper division clerks for the years 1976, 1977 and 1978 were alone taken into account. On this basis the members of the Committee prepared a merit list in which the 5th respondent was assigned the 1st rank and the petitioner was assigned the 3rd rank. There was no question of preparing any panel as there was only one post, It was also stated that the 5th respondent had outstanding qualities which deserved recognition in comparison with the petitioner and he was selected. As for AIR 1974 SC 87 quoted by the petitioner, the counter affidavit submitted that the decision had no application. 3. There was no question of preparing any panel as there was only one post, It was also stated that the 5th respondent had outstanding qualities which deserved recognition in comparison with the petitioner and he was selected. As for AIR 1974 SC 87 quoted by the petitioner, the counter affidavit submitted that the decision had no application. 3. The 5th respondent has not filed any separate counter affidavit and at the hearing his counsel drew support from the counter affidavit of respondents 1 to 4. 4. In order to invalidate Ext.P3 counsel for the Petitioner relied upon Captor's case AIR 1974 SC 87 , and the unreported judgment of Chandrasekhara Menon J. in O. P. No. 3743 of 1975' Capoor's case was concerned with the selection of candidates by promotion to the Indian Administrative Service and Indian Police Service under the Indian Administrative Service/ Indian Police Service (Appointment by Promotion) Regulations, 1955. Regulation.5(5) as it then stood provided that "If in the process of selection, review Or revision it is proposed to supersede any member of the State Civil Service, the Committee shall record its reasons for the proposed supersession." In the selections that were the subject of challenge in the case that went to the Supreme Court the stock reason given by the Select Committee was that "On as over all assessment, the records of these officers are not such as to justify their appointment to the Indian Administrative Service/Indian Police Service at this stage in preferences to those selected." The Supreme Court observed in Para.28: "In the context of the effect upon the rights of aggrieved persons, as members of a public service who are entitled to just and reasonable treatment, by reason of protections conferred upon them by Art.14 and 16 of the Constitution, which are available to them throughout their service, it was incumbent on the Selection Committee to have stated reasons in a manner which would disclose how the record of each officer superseded stood in relation to records of others who were to be preferred, particularly as this is practically the only remaining visible safeguard against possible injustice and arbitrariness in making selections. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. If that had been done, facts on service records of officers considered by the Selection Committee would have been correlated to the conclusions reached. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter for a decision whether it is purely administrative or quasi judicial. They should reveal a rational nexus between the facts considered and the conclusions reached. Only in this way can opinions or decisions recorded be shown to be manifestly just and reasonable. We think that it is net enough to say that preference should be given because a certain kind of process was gone through by the Selection Committee. This is all that the supposed statement of reasons amounts to. We, therefore, think that the mandatory provisions of Regulation.5 (5) were not complied with." From this passage it is obvious that the Supreme Court based its reasoning and conclusion upon the provisions of Regulation.5 (5) which were hold to be mandatory. O. P. No. 3743 of 1975 dealt with the validity of a select list prepared by the concerned Departmental Promotion Committee for promotion to the post of Under Secretary from among Section Officers. The learned Judge quashed the Select List, which had excluded the petitioner, on the ground that the promotion committee had not recorded any reasons. There were no special rules governing the promotion to the post of Under Secretaries nor were there any other rules obliging the D. P. C. to record its reasons, but the learned Judge nevertheless quashed the list following Capoor's case on the ground that the Committee had not recorded any reasons and directed the Committee to take a fresh decision. 5. In the present case the Departmental Promotion Committee has -not given any reason in Ext. P3 nor in the concerned file which was placed before as by the learned Central Government Pleader, why the 5th respondent was chosen in preference to the petitioner. The file however shows that the ranking was recommended on the basis of the confidential records. If the decision of the learned single Judge governs the case the petitioner's argument for the cancellation of Ext. P3 would be well founded. The file however shows that the ranking was recommended on the basis of the confidential records. If the decision of the learned single Judge governs the case the petitioner's argument for the cancellation of Ext. P3 would be well founded. But the learned Central Government Pleader argued that the learned Judge has misapplied the principle of Capoor's case and extended it to a situation to which it was inapplicable and that in any event the decision has beet in effect overruled in T. K. Sukumaran v. State of Kerala, 1979(3) SLR 623, a Bench decision of this Court. In T. K, Sukumaran's case two questions were raised of which the second which alone is relevant was whether the, D. P. C. ought to have ' recorded its reasons, as the petitioner contended for rejecting a candidate; On this question the petitioner principally relied upon Capoor's case though there was no statutory rule providing for the recording of reasons. The Bench rejected this argument observing: "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. 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." That case happened to go before a Bench on a reference made by Chandrasekhar Menon J. expressing a doubt as to whether the principles 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 die concerned officers and that it was on such assessment that certain persons were selected in preference to certain ethers. The learned Judges held that there was no duty on the Committee to give reasons and that the failure to give reasons did not vitiate the selection. They also followed an earlier Bench decision of this Court in State of Kerala v. Krishnan Namboodiri, ILR 1977 (2) Kerala 678. The Central Government Pleader was right in submitting that T. K. Sukumaran's case virtually overrules the decision in O. P. No. 3743 of 1975. 6. In ILR 1977 (2) Kerala 678, another Bench considered a similar problem and distinguished Capoor's case by observing that "this statutory requirement marks one essential distinction between Capoor's case and the present one." In the light of these two Bench decisions 1 find it impossible to apply the judgment in O. P. No. 3743 of 1975 to the present case as there is no statutory rule requiring the D. P. C. to give its reasons for the selection. 7. 7. I might also refer to Baldev Kapoor v. Union of India, 1980(2) SLR 309, where a Bench of the Punjab and Haryana High Court did not apply Capoor's case on the ground that Regulation.5 (5), which laid down the requirement of recording reasons, had been deleted in 1977 before the selection challenged in that case was made. 8. The learned Central Government Pleader placed before me at my request the proceedings of the D. P. C. as also the confidential reports of the petitioner and the 5th respondent for the years 1976, 1977 and 1978. I brought the decision of the Committee and the material portions of the confidential reports to the notice of counsel for the petitioner in order to afford him an opportunity to make his submissions on them. But no arguments were made by him. These reports undoubtedly disclose that the selection of the 5th respondent in preference to the petitioner routs on solid and relevant grounds. There is no reason to quash Ext. P3. The Original Petition is dismissed but without costs.