JUDGMENT R.M. Sahai, J. - Validity of Selection of Circle Inspectors, a post to be filled by promotion from Sub-Inspectors of Police from entire State, has been challenged, primarily because selection was made in violation of Government orders directing selection to be made on merit alone. Selection is said to be vitiated also because the Selection Committee took into consideration irrelevant material and failed to take into account relevant material which resulted in non selection of petitioner, a person of outstanding achievements. 2. Method of selection of Sub-Inspectors for promotion to rank of Inspectors was laid down by Governor in as order issued on 5th November, 1965, relevant period of which is extracted below : "The existing quota system by which a certain number of Sub-Inspectors are at present selected from each Range should be abolished, Sub-Inspectors, Civil Police who have put in not less than 10 years service as such "and are below 50 years of age" have been deleted vide G.O. No. 4384/VIII-l- 140/73 dated March 5, -1974 Home Police Annexure 1-140/73, dated March 5, 1974 Home Police Ann-1, effective from the date of this order, on the 1st day of April of the year in which the selection is made will now be eligible for promotion to the post to Inspector. The range Dy. Inspector General of Police will send to the Police Head Quarters every year the following list, (i) Lists of Sub-Inspectors, Civil Police considered suitable for officiating promotion as Inspector in order of seniority in a prescribed form, which may be laid down by the Police Head Quarters. (ii) Lists of Sub-Inspectors, who are not considered fit for officiating promotion with brief reason. The department Selection Committee will thereafter have a final consolidated list prepared of Sub-Inspectors. Civil Police, considered suitable for officiating promotion arranged in the order of their seniority. From the final consolidated list four times the number of Inspectors required to he approved for officiating promotion will be called for interview by the Departmental Selection Committee as constituted by Govt. vide G. 0. No. 438.A/VIII/388/1961, dated August 2, 1962. The assessment made by the Committee will be done........ and a list of approved candidates will be prepared on which the names of selected candidates will be arranged in order of their seniority. vide G. 0. No. 438.A/VIII/388/1961, dated August 2, 1962. The assessment made by the Committee will be done........ and a list of approved candidates will be prepared on which the names of selected candidates will be arranged in order of their seniority. Those who are borne on the approved list of an earlier year will rank above those selected and brought on an approved list of a later year." 3. Criteria for selection, therefore, was merit. According to Dictionary it means 'Reward, personality, quality, excellence for character etc". But in relation to promotion in service it has definite connotation. Normally the rules provide for seniority, or seniority subject to rejection of unfit etc. but where promotion is made from one service to another or the promotional post is a post of responsibility or it is as election post etc. then insistence is on merit, the attributes of which cannot be stated with mathematical accuracy. It has necessarily to he combination of various factors depending on nature of service and duties. The requirement may be more rigorous if the promotion is in a disciplined service. 4. Reliance was placed on definition of merit in Government order dated 19th July, 1954 and it was urged that the Selection Committee committed manifest error of law in not appraising the merit in light of qualities mentioned in the order which reads as under: "Definition of Merit - In continuation of the decision already taken by Government on the recommendation, contained in paragraph 25 of part I of the Report of the Disciplinary Proceedings Inquiry Committee, to base all promotion on merit, it is now laid down that 'Claims of individuals for promotion should be considered by an assessment of merit in the light of the following qualities: (i) Competence, (ii) efficiency, (iii) initiative, (iv) straight forwardness, (v) dependability. (vi) integrity, (vii) missionary zeal, (viii) effective supervision, and (ix) efforts to eliminate corruption. A just appraisal of merit is of vital importance to the morals and contentment of the services, and ultimately of the administration. Government accordingly expect that in making promotions, officers will he duly alive to their responsibility and always act with conscientious care". Although each quality mentioned in the order is associated with performance and working of an officer but by its very nature the definition cannot be construed as exhaustive. Government accordingly expect that in making promotions, officers will he duly alive to their responsibility and always act with conscientious care". Although each quality mentioned in the order is associated with performance and working of an officer but by its very nature the definition cannot be construed as exhaustive. Normally an officer lacking in these qualities particularly in efficiency or integrity may not be able to get through but the issue raised by learned counsel that a Selection Committee while considering merit is precluded from determining suitability for promotion except on the qualities mentioned in 1954 order appears to be going too far. What is fundamental in selecting a person on merit is that primary consideration of outstanding performance should not be lost sight of but that does not debar a selection committee from considering other facts, which too may be important. For instance the Government made it clear in another order issued on same day. "For improving the moral efficiency and integrity of Government servants, it seems necessary that the deserving govt. servants should be promoted on considerations of merit alone. Such uniform basis of promotion would not mean that a senior man who is otherwise competent in all respects should be superseded on account of his seniority but would only emphasise that in judging his competence and fitness for promotion his merit and not seniority should be the first criterion". 5. Therefore what has to be examined is if the Selection Committee failed to adhere to the norms laid down in these orders ? From counter-affidavit it is clear that a list of sub-inspectors from all over the State was prepared according to seniority as provided in 1965 Order. From it requisite number of candidates as provided were called for interview and their merit was judged by awarding 80 marks for personality and service record and 20 marks for seniority and education. Last candidate selected secured 74 marks whereas petitioner's marks were 72. Out of it 60 was given to him for personality and service record. What was vehemently urged was that seniority and educational qualifications could not furnish criteria for judging merit Learned counsel submitted that ?th of total marks having been reserved for factors which were irrelevant for judging merit the entire selection stood vitiated. The argument does not appear to be sound. Experience in services has its own virtues. It cannot be ignored altogether. The argument does not appear to be sound. Experience in services has its own virtues. It cannot be ignored altogether. It may not stand in way of merit but as is clear from extract quoted above 'a senior man who is otherwise' competent in all respects should not be superseded. In other words seniority may not be the criteria but it is not irrelevant when promotion is being made on merit. Similarly educational qualifications, assumes importance in higher posts. Selection was for Circle Inspectors. For such a post better educational qualification cannot be said to be irrelevant factor. However, in order to be satisfied that no arbitrariness crept in selection due to this the records were sent for and examined. From that it transpired that officers with twenty years or above service were given 20 marks if they were post graduates, 18 if they were graduates, 16 if Intermediate and 15 if High School Similarly those with fifteen and eleven years of service were given 19, 17, 15, 13 and 16, 14, 12 and 11 respectively. The margin of difference due to seniority and education therefore was very narrow. For instance marks of Post-graduate sub-inspectors with 20, 15 and 11 years of service varied between 20, 19 and 16. Such marginal difference cannot be said to be so over-whelming as to vitiate selection. Nor is there any merit in submission that selection was vitiated as the list was not prepared on ten years service record as provided in Government order dated 22nd March, 1984. Suffice it to say that since selection was held on interview and not on service record only the order did not apply. Further from the record it does not appear that the committee in awarding marks to petitioner was persuaded by any irrelevant consideration or that it acted illegally or without having regard for criteria for selection. May be that another committee may have given one or two marks more but that surely cannot be a ground for interference. The discretion of selection cannot be substituted by opinion of this Court. A Departmental Committee consisting of experts from various ranges is better suited to judge the merit of an officer, his personality, character roll etc. than this Court in exercise of its jurisdiction under Article 226. The discretion of selection cannot be substituted by opinion of this Court. A Departmental Committee consisting of experts from various ranges is better suited to judge the merit of an officer, his personality, character roll etc. than this Court in exercise of its jurisdiction under Article 226. The argument of learned counsel for petitioner, therefore, that seniority and education should not have been looked into and since they were taken into account the selection was vitiated or was contrary to the Government order of 1965 or 1984 as it was not based on merit but merit plus seniority and education cannot be accepted. 6. Coming to the other claim of petitioner that the selection committee acted illegally in not selecting petitioner it maybe observed that in such matters the State should be careful in taking its stand as these are sensitive issues which cast serious reflections on deliberations of Committees which are normally constituted of high officers. When dispute is raised and attack is made on ground of arbitrariness then it becomes the duty of State to bring on record facts which may demonstrate unquestionably that decision was arrived objectively by the selection committee and not to harp on discretion and its exercise by the Committee. Unfortunately it was after filing of as many as 5 or 6 affidavits on directions issued by this Court from time to time to opposite parties that proper facts could be brought on record. When counter-affidavit in the main petition was filed it was stated that petitioner earned bad entry in 1975 and he was not found fit for promotion by selection committee. Allegations that persons with worst record had been selected whereas he had been ignored was denied by giving evasive replies. In re-joiner affidavit petitioner successfully demolished explanation given by opposite parties. In the supplementary counter-affidavit filed in pursuance of direction by this Court the State came up with a plea that besides an adverse entry there was one complaint against petitioner sent by D.I.G. Police on 6th August, 1986. In absence of clear averment whether it was taken into account or not the opposite parties filed yet another supplementary affidavit stating that radiogram sent by D.I.G. was placed before the Selection Committee and was taken into account by it. In absence of clear averment whether it was taken into account or not the opposite parties filed yet another supplementary affidavit stating that radiogram sent by D.I.G. was placed before the Selection Committee and was taken into account by it. This shifting stand is not very healthy and unnecessarily provides scope for comment and criticism and creates a suspicion if procedure provided in law was adhered to or not? 7. The averments in paragraph 10 of writ petition and its various sub-paragraphs give in detail the period of posting of petitioner as sub-inspector from 1974 and commendable work performed by him in combating dacoit's. and unsocial elements of Society. In paragraph 13 it is stated that petitioner was awarded President's Medal in 1982 and 1983 apart from 193 gallantry awards for honesty and hard work. These allegations were not denied. Nor the allegation, that recommendations were made from 1982 onwards for posting petitioner as Circle inspector, were denied. But it was alleged that petitioner was awarded an adverse entry in 1975, and the persons who were selected were not less meritorious than petitioner. In rejoinder affidavit further material to demonstrate petitioner's capability to handle tough and arduous work was alleged with documents to support it. Entry of 1975 was reproduced to establish that it was not adverse. And in any case it could not erode merit of petitioner as after 1975 his work and conduct was appreciated. It was also alleged that in appeal the entry was expunged but it was not placed on record. A comparative chart of petitioner's service record and some of the selected candidates was also furnished to show that petitioner was better in all respects. When these allegations were made the opposite parties were directed to explain if adverse entry as alleged was expunged, if so then did the selection committee take it into account? The opposite parties were further directed to explain in respect of allegations made about certain official. In pursuance of it another affidavit was filed stating that expunction of entry was not recorded in character roll. Explanation was given about officials. But a new fact was averred that, 'besides the adverse entry of 1975 against the petitioner there was one other complaint from the then Deputy Inspector General of Police, Jhansi, Sri R. K. Pandit by his Radiogram dated 6-8-1986. Explanation was given about officials. But a new fact was averred that, 'besides the adverse entry of 1975 against the petitioner there was one other complaint from the then Deputy Inspector General of Police, Jhansi, Sri R. K. Pandit by his Radiogram dated 6-8-1986. In yet another affidavit it is alleged that the radiogram was placed before Selection Committee. It is, however, not denied that it was not communicated to petitioner nor he was given any opportunity to explain. 8. Although various submissions were advanced to highlight the infirmity in selection but without adverting to them what stands out clearly rather admittedly that the entry of 1975 and radiogram of 1986 were before the selection committee which examined them while awarding marks to petitioner. An entry which was awarded ten years ago after which petitioner earned not only award but hie work was appreciated should not have been taken into consideration at all. Moreover. consideration of an entry which was expunged was certainly not proper. Even if it would not have been expunged it could not have furnished material for deciding merit for purpose of promotion in 1987. In Brij Mohan Singh v. State of Punjab, AIR 1987 SC 948 (953) : 1987 Lab IC 694, the Hon'ble Court deprecated practice-of looking into old entries even in cases of compulsory retirement. It was observed, 'if entries for a period of more than ten years past are taken into account it would be an act of digging out past to get some material to make an order against the employee. The principle would apply with greater force in cases of promotion. Similarly the radiogram of the D. I.G. which was against petitioner should not have been placed before the Selection Committee nor it should have reflected in awarding of marks as it was neither communicated to the petitioner nor he was given an opportunity to explain it. in Gurdial Singh v. State of Punjab, AIR 1979 SC 1622 : 1979 Lab IC 1186 (Para 17). it was held. "An adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work or conduct or to explain.the circumstances leading to the report". it was held. "An adverse report in a confidential roll cannot be acted upon to deny promotional opportunities unless it is communicated to the person concerned so that he has an opportunity to improve his work or conduct or to explain.the circumstances leading to the report". It was reiterated by Hon'ble Court in Amar Kant Chaudhary v. State, AIR 1984 SC 531 : 1984 Lab IC 291. To what extent these factors influenced the decision of the committee cannot be assessed by this court. But the committee certainly committed an error in basing its decision on these documents which were irrelevant. The importance of it is aggravated where the margin in the last candidate selected and the marks obtained by petitioner was only two. In any case consideration of irrelevant factors did vitiate the decision of the Committee so far petitioner is concerned. In this view of the matter the other argument based on better awards, specially President Medal which according to petitioner made him stand much high over any candidate and selecting of candidates who were inferior need not be gone into. 9. To what relief then the petitioner is entitled ? It was vehement-ally urged that a direction should be issued to opposite parties to promote petitioner as Circle Inspector. That however, appears difficult. The defects due to which the selection stands vitiated can result in a direction for reconsideration of petitioner's case as personality of an officer who is to be selected on basis of interview cannot be judged by this Court. But his interest can be safeguarded by directing that in case petitioner is selected he shall be entitled to same seniority as he would have been in case he would have been selected in 1986. 10. For the reasons stated above this petition succeeds and is allowed in part. A direction is issued to opposite parties to constitute a selection committee. if possible of the same officers who were members of the selection committee in 1986 to reconsider the case of petitioner and in case fresh selection is going to take place then that Committee and if even that is not possible then committee may examine the case of petitioner in the light of observations made above, within a period of four months from the date of a copy of this order is produced. The entry of 1975 and radiogram shall not be placed before Selection Committee. He shall, however, be considered for the quota of Circle Inspectors to be promoted in 1986. In case, he is selected he shall be given the same seniority which he would have got if selected in batch of 1986. The petitioner is entitled to his costs.