D. N. Chowdhury, J. — Both the appeals are preferred by Smti Gurumayum Satyabati Devi against the judgment and order dated 25.11.1997 passed by the learned Single Judge in Civil Rule No.474 of 1996 whereby the learned Single Judge allowed the writ petition. 2. The respondent No. 1 Smti Gurumayum Satyabati Devi (petitioner in civil rule) assailed the order of promotion of Y. Sashimohan Singh, the appellant in Writ Appeal No. 185 of 1997. The full text of the orders dated 29.11.94 and 16.5.96 are cited below : “Government of Manipur Secretariat : Social Welafare Department Orders by the Governor Manipur Imphal, the 29th November, 1994 No. 8/5/94-S(SW) : On the recommendation of the Manipur Public Service Commission vide their letter No. 8-A/41-MPSC(F) dated the 16th November 1994 the Governor of Manipur is pleased to appoint by promotion the following officers of the Social Welfare Department, Manipur as (i) Deputy Director (Training), (ii) Assistant Development Commissioner (WF) and (iii) Deputy Director (Social Welfare) in the scale of pay of Rs.2,000-60-23 EB-75-3200-100-3500/- PM plus DA and other allowances as admissible under rules temporarily with immediate effect until further orders. Their appointments will be subject to the decision in the writ petition under CR No.804 of 1994 and 883 of 1994 pending in the Hon’ble Gauhati High Court. Sl.No. Name of officers & designation Promoted to 1. Shri P. Deben Singh, Special Officer (SNP) Deputy Director (Training) 2. Shri. S. Saratkumar Sharma, Child Assistant Development Welfare Officer Commissioner (WP) 3. Shri Y. Sashimohan Singh, District Social Deputy Director Welfare Officer (Social Welfare) 2. They will be on probation for a period of 2 (two) years. 3. The Officers under SI. No. 1 and 3 will handover charge to the CDPOs. ICDS Projects, Churachandpur and Bishnupur respectively.” “Government of Manipur Secretariat: Social Welafare Department ORDER Imphal, the 16th May, 1996 No. 10/13/94-S(SW): Whereas on the recommendation of the DPC associated with the MPSC made on the basis of the seniority list of DSWO published vide notification No.8/12/92-S(SW) dated 16.7.94, Shri Y. Sashimohan Singh was appointed as Deputy Director (Social Welfare) in the Social Welfare Department, Manipur vide this Govt order No.8/5/94-S (SW) dated 29.11.94. Whereas, the Gauhati High Court, Imphal Bench has quashed and set aside the said seniority list of DSWO on the basis of which the DPC was held on 15.11.94 and recommended Shri Y. Sashimohan Singh for appointment as Deputy Director (SW) vide their orders passed on 21.11.95 in CR No.804/94 and on 22.3..96 in CR No.116/95. The Court has, further, directed vide their order dated 9.4.96 in CR No.70/96 to comply with their aforesaid orders within one month from the date of receipt of the orders. Whereas, compliance of the aforesaid orders of the Court a modified seniority list of DSWO has been published accordingly vide this Govt notification No. 10/ 13/94-S(SW) dated 2.5.96 and whereas a review DPC based on the said modified seniority list was held on 15.5.96. Now, therefore, the Governor of Manipur is pleased to order that in view of the recommendation of the Review DPC, held on 15.5.96 in pursuance of the judgment of the Hon’ble Gauhati High Court referred to above, the appointment on promotion in respect of Shri Y. Sashimohan Singh as Deputy Director (SW) in the Social Welfare Department, Manipur vide this Govt order No.8.5.94 (SW) dated 29.11.94 is hereby confirmed. By orders and in the name of Governor,.” 3. After considering the respective cases of the parties the learned Single Judge held that there was great variation in the records of ACRs between the two DPCs. The learned Single Judge considering the ACRs and the records of two DPCs held that the grading recorded by the DPC held on 15.1.94 are correct and grading recorded in the review DPC dated 15.5.96 appeared to be concocted or manufactured. The learned Single Judge held that the writ petitioner (respondent No. 1 in the writ appeal) have had clear edge over the respondent No.4 (appellant in the Writ Appeal Nos 17 of 1998 and 185 of 1997). The learned Single Judge accordingly allowed the petition and orders of promotion dated 29.11.94 and 16.5.96 as well as the review DPC proceedings dated 15.5.96 were set aside. Hence the writ appeals. 4. The appellant in the writ appeal assailed the findings and conclusion of the learned Single Judge as arbitrary and perverse. 5. Mr. The learned Single Judge accordingly allowed the petition and orders of promotion dated 29.11.94 and 16.5.96 as well as the review DPC proceedings dated 15.5.96 were set aside. Hence the writ appeals. 4. The appellant in the writ appeal assailed the findings and conclusion of the learned Single Judge as arbitrary and perverse. 5. Mr. N. Kotiswar Singh, the learned counsel appearing for the appellant in Writ Appeal No. 17 of 1998 has submitted that the post of Deputy Director, Social Welfare Department being a selection post and appointments were to be made on assessment of merit and therefore question of inter seniority position in the gradation list did not affect the decision of the DPC. The DPC considered the respective cases of the parties and recommended the promotion of respondent No.4, Shri Y. Sashimohan Singh on the basis of his merit. Mr. N. Kotiswar Singh, the learned counsel also submitted that whatever stamp of label is given to the DPC dated 16.5.96, the decision making process as well as the merit of the decision of the said DPC cannot be faulted. Mr. Singh, the learned counsel pointed out to the order dated 19.11.94 whereby the respondent No.4 was appointed on promotion and stated that the said promotion was subject to the out come of the Civil Rule No.804 of 1994. The Civil Rule No.804 of 1994 was allowed by the order of the High Court dated 25.11.97 holding the respondent No.l in the Writ Appeal No. 185 of 1997, as senior to the appellant in the Writ Appeal No. 185 of 1997. Therefore, it became imperative on the part of the authority to hold a fresh DPC in view of the order of the Court. Mr. N. Kotiswar Singh, the learned counsel for the appellant submitted that the respondent at all relevant time acted within the confine of the law and exercised its sound discretion taking into account the relevant consideration overlooking the irrelevant consideration. In the absence of any proved infirmity in the decision making process, the learned Single Judge ought not to have interfered with the merit of the decision submitted by Mr. N. Kotiswar Singh, the learned counsel for the appellant. 6. Mr. In the absence of any proved infirmity in the decision making process, the learned Single Judge ought not to have interfered with the merit of the decision submitted by Mr. N. Kotiswar Singh, the learned counsel for the appellant. 6. Mr. L. Nandakumar Singh, the learned senior counsel appearing on behalf of the appellant in WA No. 185 of 1997 adopted the argument of Mr.N.Kotiswar Singh the learned counsel for the appellant and submitted that in the fact situation of the case, there was no scope for interference by the learned Single Judge in the promotion of the appellant. Mr. NG Kumar, the learned counsel appearing for the respondent No.l (writ petitioner in civil rule) has supported the judgment of the learned Single Judge and reiterated his contention which were raised before the learned Single Judge. 7. In the writ petition, the regularity or legality in constitution of the Selection Committee was not in question nor the legality of the procedure adopted in the selection was challenged as unconstitutional. The recommendation of the DPC held on 15.5.96 was questioned as “superficial and biased consideration ...without any proper assessments of the merits grading and seniority.” 8. The learned Single Judge on his evaluation found that the grading recorded by the earlier DPC held on 15.11.94 was rightly done whereas the grading recorded by the DPC on 15.5.96 was concocted or manufactured. He also found fault with the recording of the date of appointment of the respondent the writ petitioner. The learned Single Judge accordingly reached the following findings and issued directions accordingly : “13. Considering the total facts and circumstances and submissions on behalf of the parties and also on perusal of the relevant documents placed before me, it seems to me to be quite clear that the regular appointment of respondent No.4 was made on 28.9.85, whereas regular appointment in respect of the petitioner in the grade of District Social Welfare Officer was made on 31.8.85. It may also be stated that in the Review DPC held on 15.5.96 in the grading in respect of the petitioner and also of respondent No.4, no dates of regular appointment have been recorded. Unfortunately there is a great variation in the records of ACRs between the two DPCs viz earlier DPC held on 15.11.1994 and the Review DPC held on 15.5.96. Unfortunately there is a great variation in the records of ACRs between the two DPCs viz earlier DPC held on 15.11.1994 and the Review DPC held on 15.5.96. Since the original papers have already been produced before me, I have no hesitation to hold that the grading recorded by the DPC held on 15.11.1994 are correct and the gradings recorded in the Review DPC on 15.5.1996 appear to me to be concocted or manufactured. This is a very serious matter. Such should not be allowed to exist in official documents. The Chief Secretary of the Govt of Manipur should examine this aspect of the matter and take appropriate action against those officers who signed in the proceedings of Review DPC on 15.5.1996. 14. In the result, after taking all the facts and circumstances and the reasons that I have recorded above into consideration, I would hold that the petitioner would have clearly an edge over the respondent No.4 in the matter of promotion to the next higher post inasmuch as since both the officers are equal as far as merit is concerned, one who was appointed earlier in the grade should certainly have an edge over the other who was regularly appointed in the same grade subsequently. As such this petition is allowed and the impugned orders dated 29.11.1994 (Annexure 2) dated 16.5.1996. (Annexure 5) and also the Review DPC proceedings dated 15.5.1996 are set aside.” 9. We have ourselves examined the records of the proceeding including the Annual Confidential Reports, ACRs for short. While considering the case for promotion of the parties, the Departmental Promotion Committee (DPC in short) in its meeting dated 15th November, 1994 as well as in the Review DPC meeting held on 15.5.96, considered the ACRs of five years from 1988-89 to 1992-93. The ACRs reflect that Y. Sashimohan Singh (appellant in Writ Appeal 185 of 1997) earned three ‘Outstanding’ and two ‘Very Good’ to his credit whereas Smti Gurumayum Satyabati Devi procured one “Outstanding and four ‘Very Good’. The ACRs reflect that Y. Sashimohan Singh (appellant in Writ Appeal 185 of 1997) earned three ‘Outstanding’ and two ‘Very Good’ to his credit whereas Smti Gurumayum Satyabati Devi procured one “Outstanding and four ‘Very Good’. The Govt for the purpose of appointment to the posts of (i) Deputy Director (Training), (ii) Assistant Development Commissioner (WF), and (iii) Deputy Director (SW) in the Social Welfare Department, Manipur, constituted a DPC comprising of Shri Kh Dhirendra Singh, IAS (Retd), Member, Manipur Public Service Commission (MPSC in short) as Chairman with Shri Saichhuana, IAS, Commissioner (DP), Govt of Manipur, Shri PL Thanga, IAS, Commissioner (Social Welfare), Govt of Manipur and Shri A. Ibocha Singh, Director (Social Welfare) Govt of Manipur, as members. The DPC for the above three posts was held in the office room of the Member, MPSC. The principles for promotion applicable to selection posts as mentioned in the Govt of India, Ministry of Home Affairs (Department of Personnel & Administrative Reforms) vide Memo No. 22001 l/l/90-Estt)D) dated 22.4.1992, was adopted by the Govt of Manipur under notification No.l7/2/80-DP dated 1st June, 1993, were followed by the DPC. For the post of Deputy Director (SW) which was available in 1993, the Committee considered the cases of five incumbents. The Committee after assessing the overall gradings, recommended Shri Y. Sashimohan Singh (appellant in WA 185 of 1997) for appointment by promotion to the post of Deputy Director (SW) in the Social Welfare Department, Manipur. The above recommendation of the DPC was approved by the MPSC vide its notification dated 16th November, 1994. 10. In the light of the judgment of the High Court in Civil Rule No.804 of 1994 dated 21.11.95 as well as the order of the Division Bench in Writ Appeal No.l 16 of 1995 dated 22.3.96 and the subsequent order passed by the Court in Civil Rule No.70 of 1996 and in partial modification of the Govt notification No.8/12/92-S(SW) dated 16.7.94, a revised Final Seniority List of District Social Welfare Officers was published and circulated showing the respondent No.l, Smti Gurumayum Satyabati Devi, at serial No.l and Shri Y. Sashimohan Singh at serial No.2. In view of the revision of the Seniority List, the Govt thought it fit to hold a DPC meeting on the basis of the revised Seniority List and accordingly a DPC was constituted with Shri H. Jel Shyam, Chief Secretary to the Govt of Manipur, as Chairman alongwith Shri PL Thanga, Principal Secretary, Govt of Manipur, Shri Sriram Taranikanti, Secretary (DP), Govt of Manipur and Shri A. Nabachandra Singh, Director (SW) Manipur as members for selection for appointment by promotion to one post of Deputy Director in the Social Welfare Department. The Committee after assessing the overall gradings of the officers, recommended Shri Y. Sashimohan Singh for appointment by promotion to the post of Deputy Director (SW) in the Social Welfare Department, Govt of Manipur, on regular basis. In the records, the gradings of the officers in the zone of consideration for promotion to the post of Deputy Director (SW) was made available alongwith the signatures of the Chairman and members concerned which reads as follows : SI. No. Name of DSWO Period Remarks 1988-98 1989-90 1990-91 1991-92 1992-93 1. Smti Gurumayum Satyabati Devi VG VG VG VG O VG 2. Shri Y. Sashimohan Singh VG VG OS OS OS OS Sd/ Illegible Sd/ Illegible Sd/ Illegible Sd/ Illegible 15.5.96 15.5.96 15.5.96 15.5.96 VG Very Good, OS : Outstanding Pr. Secy. (SW) (DS/DP)” We have purposefully excluded the gradings of the other three officers, viz Smti Th Ibenmi Devi, RK Dhanisana Singh and Smti Y. Satyabati Devi. From the remarks column, it appears that the DPC graded the appellant, Y Sashimohan Singh as ‘Outstanding’ whereas respondent No.l Smti Gurumayum Satyabati Devi, was graded as ‘Very Good’. At any rate, Y. Sashimohan Singh has three Outstandings in his favour with two Very Goods; whereas the respondent No. 1, Smti, Guruma­yum Satyabati Devi to her credit had one Outstanding with four Very Goods. 11. The post is a selection post and selection was to be made on the basis of merits. From the materials on record, the selection of Shri Y. Sashimohan Singh by the DPC, therefore, cannot be faulted. We have already mentioned about the respective entries in the ACRs of the parties. Both the DPCs acted on those ACRs and we do not find any infirmity in the recording of the gradings. 12. From the materials on record, the selection of Shri Y. Sashimohan Singh by the DPC, therefore, cannot be faulted. We have already mentioned about the respective entries in the ACRs of the parties. Both the DPCs acted on those ACRs and we do not find any infirmity in the recording of the gradings. 12. From the facts as stated above, it thus appears that the post of Deputy Director (SW) in a selection post and merit is the criterion for selection. ACR is one of the accepted norms for assessing the merits of the candidates. The DPC acted upon the ACRs of the officers in evaluating the merits of the respective candidates. The date of appointment to a regular post i.e. the seniority of the officers does not have relevance as such save and except for the purpose of reaching the zone of consideration. The appointment and selection are in the domain of the appointing authority. The appointing authority was within their competence to constitute the Selection Committee. The constitutionality and legality of the Selection Committee was never in question. It is the job of the Selection Committee to scrutinise and evaluate the respective merits of the candidates. Which of the candidates is to be selected for the post-in-question and as to whether a candidate is fit to hold the post have to be decided by the duly constituted Selection Committee which possesses the necessary expertise on the subject. The Court while exercising its powers under Article 226 of the Constitution of India cannot sit in appeal over the decision of the Selection Committee. Article 226 of the Constitution of India is a constitutional device to control the Governmental power. All powers reposed by the Constitution on the authorities created under the Constitution emanates from the trust to exercise the powers in public interest. All the authorities are to discharge their powers and functions within the limits prescribed by law. The power in conferred to ensure that the authorities act lawfully. The judicial review under Article 226 of the Constitution of India is a great constitutional power to uphold the rule of law. The concern of the Constitutional Court is the legitimacy of the decision making process, not the merits of the decision. The power in conferred to ensure that the authorities act lawfully. The judicial review under Article 226 of the Constitution of India is a great constitutional power to uphold the rule of law. The concern of the Constitutional Court is the legitimacy of the decision making process, not the merits of the decision. The power conferred on the High Courts under Article 226 of the Constitution of India is meant to act as a constraint on the exercise of powers, therefore, it is not for the Court in exercise of the powers under Article 226 of the Constitution to embark upon an enquiry regarding relative merits of the candidates. The Honble Supreme Court in the case of Dalpat Abasaheb Solunke & others vs. Dr. BS Mahajan & others reported in (1990) 1SCC 305 (relevant page 309 at paragraph 12) made the following observations: “It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committee and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. It is not disputed in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant materials before it. In sitting in appeal over the selection so made and in setting in aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.” The above decision was relied upon by the Hon’ble Supreme Court in the case of Durga Devi & another vs. State of Arunachal Pradesh &others, reported in (1997) 4 SCC 575 and relied on the extract quoted above. 13. The DPC on the basis of the materials on record, reached its own conclusion. 13. The DPC on the basis of the materials on record, reached its own conclusion. It is not for the Court to substitute its own decision for the decision of those who are made responsible for selection of the best available candidate. Margin of appreciation may differ on the facts and circumstances and the decree of expertise of the decision maker, and that can legitimately be done within the scope of their selection. As indicated earlier the Court is basically concerned with the lawfulness of the order. While considering the legitimacy of the order, one can look to see whether any irrelevant consideration was taken into account and/or as to whether the decision was made with an improper purpose. “A public body which has the power to construct lavatories cannot use the above power to build a sub-way under the street.” (West Minister Corporation vs. L & NW Ry. (1905) AC 426): and “The Home Secretary could not use his power to withdraw Television Licences where people had purchased a new licence early in order to avoid price increase/’ (Concreve vs. Home Office, 1976 QB 629). Such deficiency is not noticed in the case. We have already cited the factual state of affairs from the ACRs as well as from the DPC records. We did not find any discrepancy in the ACRs which were acted upon by the two DPCs. We did not discern any decrepitude in the records of the DPCs. 14. As pointed out earlier, the appointing authority including the selection body is the body conferred with the discretion to judge the suitability of the candidates. Discretion connotes the power to make a preference between the alternatives. It would be a performance of duty where only one course can be adopted lawfully. The DPC is concerned with the free discretion to make its choice from among the eligible persons. It is to act justly fairly without making any discrimination. The discretion of choice is however rested on the body which is authorised to select. While exercising such power it may differ in its margin of appreciation which will depend on various factors. There can legitimately be free play within the joints-there is ample scope within the legal parameter for radical conflict of opinion, without being unreasonable. The discretion of choice is however rested on the body which is authorised to select. While exercising such power it may differ in its margin of appreciation which will depend on various factors. There can legitimately be free play within the joints-there is ample scope within the legal parameter for radical conflict of opinion, without being unreasonable. “The very concept of administrative discretion involves a right to choose between more that one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred/* Recapitulated Lord Diplock in Secretary of State Education and Science vs. Tameside MBC, (1977) AC 1014 (1064). Judicial review is concerned with the legality of the decision making process. Judicial Review is distinct from an appeal against a decision. The appellate Court possess the power to review the case and substitute its own decision for that of the original authority. It would be apposite to recall the following statement of Late Professor Stanely de Smith from his treatise Judicial Review of Administrative Action (De Smith, Woolf and Jowell, 1995 Edition, paragraph 6-007, page 297): ‘The crucial question, however, is: in what circumstances and to what extent will the Courts review the merits of the exercise of a statutory discretion which is neither made subject to appeal nor limited by the express provisions of the Act? The Courts have repeatedly affirmed their incapacity to substitute their own discretion for that of an authority in which the discretion has been confined, and there are many matters which the Courts are indisposed to question. Though they are the ultimate judges of what is lawful and what is unlawful, there are certain question which the Courts are ill equipped to decide. But while exphasising the reluctance of the Courts to interfere in some situations, the Courts maintain the right to determine what is lawful. The principle that discretions must be exercised “according to law” in indeed, deeply entrenched in the common law’ 15. We have gone through the records as placed before us relating to the DPC proceeding held on 15.11.94 and 15.5.96, and going through the same we could not find any such thing as to support the observations made by the learned Single Judge denouncing the proceedings as concocted and manufactures. We have gone through the records as placed before us relating to the DPC proceeding held on 15.11.94 and 15.5.96, and going through the same we could not find any such thing as to support the observations made by the learned Single Judge denouncing the proceedings as concocted and manufactures. Seeing the record as it is, even the direction made in this behalf to the Chief Secretary which is one of the signatories to the DPC proceeding held on 15.5.96, appears to be only uncalled for. 16. We have given our anxious consideration to the matter and from the material on record, we could not discern any bad faith or unfairness in the selection. We, therefore, agree to respectfully differ from the view expressed by the learned Single Judge. On overall consideration of the matter we are of the opinion that the learned Single Judge was not justified in its interference in the matter of selection and accordingly, the judgment and order dated 25.11.97 passed by the learned Single Judge in Civil Rule No.474 of 1996 is set aside. 17. The writ petition thus stands dismissed and the appeal is allowed. There shall, however, be no order as to costs.