JUDGMENT 1. - I have heard the learned counsel for the parties. 2. The petitioner, a Stenographer-cum-personal Assistant in District Court, Jodhpur, has filed this writ petition challenging her supersession in promotion to the post of Senior Personal Assistant, which post was created in 1989 and was filled for the first time when the Rules were silent about the 5 criterion for such promotion. 3. The petitioner has also challenged the promotion of respondent No. 3 who was junior to her as Stenographer-cum-Personal Assistant to the post of Senior Personal Assistant vide Annex.3 and the rejection of her appeal against that promotion vide Annex.5. While the petitioner has claimed that there being no criterion prescribed, the promotion should have been made on the basis of seniority-cum-suitability to the newly created post, learned counsel for respondents No. 1 and 2 has stated that it being a newly created post, on s advise being sought by the learned District Judge, the High Court has left it to the discretion of the District Judge to fill up the post either by seniority-cum-merit or by merit according to his best judgment. Consequently, the District Judge has chosen to fill the post by merit as it was a single post. By considering the competitive merit, the respondent no. 3 was found more suitable, hence, he was promoted. 4. Learned counsel for respondent No. 3 has supported the promotion of respondent No. 3 on the post on the basis of merit criterion. 5. It has been urged by the learned counsel for the respondents that adjudging the competitive merit being a matter within the province of the appointing authority and he is the best judge to judge the competitive merit on the basis of material before him, except for the reasons of male fide, his decision is not liable to be interfered with by way of judicial review. No allegations of mala fide are made in the petition. 6. It was also contended by the learned counsel for respondent No. 3 that it being the matter of subjective satisfaction of appointing authority and there being no requirement. by statute. it was not incumbent upon the appointing authority to give reasons for his choice of most meritorious candidate and the Court in exercise of its extraordinary jurisdiction ought not to interfere in the matter of selection of a suitable candidate for the post. 7. by statute. it was not incumbent upon the appointing authority to give reasons for his choice of most meritorious candidate and the Court in exercise of its extraordinary jurisdiction ought not to interfere in the matter of selection of a suitable candidate for the post. 7. Undoubtedly, selection of a suitable candidate for any post, rest in the domain of administrative functions of Appointing Authority and the Court ordinarily does not interfere in exercise of such power except on the ground of mala-fides or not adhering to the fair procedure in taking such decision. That principle is well settled to be reiterated and restated. As a matter of fact, all the decisions cited at the Bar are unanimous on the point that fairness must be the criteria for administrative action in the matter of selecting a candidate for promotion. 8. In National Institute of Mental Helath & Neuro Sciences v. Dr. K. Kalyana Raman & Ors., AIR 1992 SC 1806 , relied on by the learned counsel for respondent No. 3, where the question relating to appointment of a professor of Neurologist to be made by a Selection Committee, appointed for that purpose, was considered. The selection was challenged on the ground that while selecting a particular candidate, no reasons were given by Selection Committee. The Court repelling that contention emphasized: "Giving of reasons for decision is different from, and in principle distinct from, the requirements of procedural fairness. The procedural fairness is the main requirement in the administrative action. The 'fairness' or fair procedure in the administrative action ought to be observed. The Selection Committee cannot be an exception to this principle. It must take decision reasonably without being guided by extraneous or irrelevant consideration." And if that is so, the administrative action, when questioned, is liable to be set at naught, if it does not inform of adherence to fair procedure. 9. Some basic principles were laid in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 while examining 'reasonableness' of an administrative decision or statutory discretion. While considering the question of scope of its judicial review, it was stated: "... it is true that discretion must be exercised reasonably. Now what does that mean? description of the things that a person entrusted with a discretion must, so to speak, direct himself properly in law. While considering the question of scope of its judicial review, it was stated: "... it is true that discretion must be exercised reasonably. Now what does that mean? description of the things that a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his s consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. ... In another, it is taking into consideration extraneous to matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another." Lord Greene further observed: "..... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to.- 10. The principle in judicial field has come to be known as WednesburyThe principle was approved by the Supreme Court in Union of India & Anr. v. G. Ganayutham, (1997) 7 SCC 463 wherein applying the principles of Wednesbury case, the Court said: "Therefore, on 'reasonableness' of an administrative decision the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view." 11. In the present case. the real question is not of discretion, but is an exercise of power by arriving at satisfaction of the suitability of a candidate by applying the test either of seniority-cum-suitability or the test of merit by adjudging the competitive merit of the candidates who have been considered for promotion. In the present case. the real question is not of discretion, but is an exercise of power by arriving at satisfaction of the suitability of a candidate by applying the test either of seniority-cum-suitability or the test of merit by adjudging the competitive merit of the candidates who have been considered for promotion. The rule of fairness depends upon whether the satisfaction has been arrived at on objective material or the satisfaction is reached in the absence of existence of any material. 12. The principle which immediately comes to mind is the one enunciated by the Supreme Court in Barium Chemicals Ltd. & Anr. v. Company Law Board & Ors., AIR 1967 SC 295 . Shelat, J said: "It is not reasonable to say that the clause permitted the Govt. to say 40 that it has formed the opinion on circumstances which it thinks exist." It was explained: "Though an order passed in exercise of power under a statute cannot be challenged on the ground of propriety or sufficiency, it is liable to be quashed on the ground of mala fides, dishonesty or corrupt as purpose. Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the so legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In any one of these situations it can well be said that the authority did not honestly form its opinion or that in forming it, it did not apply its mind to the relevant facts." 13. The principle was further expanded by Justice Hidayatullah in his 5 concurring opinion:-. "No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. If the action is questioned on the ground that no circumstances leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out. Since the existence of 'circumstances' is a condition fundamental to the making of an opinion, the existence of the circumstances, if questioned, has to be proved at least prima facie. It is not sufficient to assert that the circumstances exist and give no clue to what they are because the circumstances must be such as to lead to conclusion of certain definiteness." 14. In such circumstances. the Court has to see whether the circumstances lead to the conclusion for forming opinion exist. 15. Even if the opinion as to comparative merit can be said to be subjective in nature. if questioned the respondents have to show that some material having nexus to object of decision making exist. But if the circumstances pointed out are such that no inference of the kind germane to the subject matter can at all be drawn, the action would be ultra virus and void. 16. To that extent, the inquiry into the subjective satisfaction is too permissible by way of judicial review. 17. The opinion about comparative merit of candidates vying for promotion cannot be a matter of subjective satisfaction but is an outcome of objective assessment of comparing the relevant comparable material relating to each candidate at same level, which is in existence. 18. As I have noticed above, there is no dispute between the parties that at the relevant time when the promotion was considered, no rules were governing the manner in which the promotions are to take place. Whether by seniority-cum-suitability or merit alone. The aforesaid terms are too common in the service jurisprudence to need detailed explanation. There is also no dispute before us that ordinarily in absence of any rules governing the manner in which the promotion is to be accorded. the normal rule is seniority-cum-suitability. 19. The contention of the respondents is that since it was newly created post and it was a single post in the District, commensurating with the principle governing the promotions to another post in the cadre viz. Munsarim which is also a singular post to which the promotion is to be accorded on the principles of merit. 19. The contention of the respondents is that since it was newly created post and it was a single post in the District, commensurating with the principle governing the promotions to another post in the cadre viz. Munsarim which is also a singular post to which the promotion is to be accorded on the principles of merit. the District Judge chose to have the criterion of merit for considering the promotion to the post of Senior Personal Assistant. It was also not in dispute that by the time, the promotion was considered, the post was not encadered in the service rules. In the circumstances, the promotion accorded by principle of merit may not be seriously faulted with though on the basis of seniority, it is not in dispute that the petitioner rank senior to respondent No. 3 and on that criterion, might have been promoted ahead of him 20. Coming to the question of consideration of merit, it inheres into it, the consideration of comparative merit and demerit of each of eligible candidates within zone of consideration. Obviously, when the matter comes to comparison between two or more persons, it cannot be matter of subjective satisfaction but is a matter of objective comparison of merits or suitability of contenders on objective criterion to be applied uniformly in evaluation. One of the most important material in such exercise is Annual Confidential Rolls or annual performance appraisal reports for a specific period, common to all candidates. If the question depends on selection, it may also include a process of testing comparative strengthened weakness by some methodology. May be written test, interview or amalgamation of multiple criterion. 21. The adoption of fair criterion. which is discernible in such comparison is inherent requirement of fairness in according promotion on merit. When challenged, it becomes imperative, if not governed by Rules laying down criterion for adjudging merit to disclose such criterion, and its uniform applicability and application to all candidates. 22. The record of such consideration by the appointing authority as well as the superior authority who considered the representation made by the petitioner has been placed before the Court. ACRs of all the three candidates considered were also placed before the Court for its perusal. 22. The record of such consideration by the appointing authority as well as the superior authority who considered the representation made by the petitioner has been placed before the Court. ACRs of all the three candidates considered were also placed before the Court for its perusal. While the order of appellate authority has been placed by the petitioner himself as Annex.5, the record of consideration by appointing authority has been placed by the respondents for perusal of the Court. 23. The principal consideration which is required to be examined is the fairness of consideration that has weighed with the appointing authority. It would be appropriate to quote the proceedings for the purpose of alluding to the question whether it fulfills the requirement of fair procedure and test of reasonableness in coming to the satisfaction about the competitive merit of the candidates under consideration. The candidates who were considered in order of seniority were Shri B.A. Jilani, Smt. Snehleta, the petitioner and Shri Tar i Singh Gehlot, respondent No. 3. The first part of the proceedings recorded that looking to the importance of post, the appointing authority considers merit to be the right criterion for considering promotion to the single post in the District. The candidates who were considered in order of seniority were Shri B.A. Jilani, Smt. Snehleta, the petitioner and Shri Tar i Singh Gehlot, respondent No. 3. The first part of the proceedings recorded that looking to the importance of post, the appointing authority considers merit to be the right criterion for considering promotion to the single post in the District. The competitive merit has been examined as under: " Jh c'kjr vyh vyh ftykuh dk okf"kZd dk;Z ewY;kadu izfrosnu 1985&86 muds izfrdwy gSA ;g mYys[k gS fd Jh ftykus vk/ks ?k.Vs ls T;knk fMDVs'ku ugha ys ldrs gSaA mudh vaxqfy;ksa esa nnZ gksus yxrk gSA mudh xfr Hkh de ikbZ xbZA bu izfrdwy izfof"V;ksa ls ftykuh dks voxr djk fn;k x;k FkkA exj mUgksaus dksbZ ,rjkt ugha fd;kA ftyk U;k;ky; esa U;kf;d ,oa iz'kklfud dk;Z dh vf/kdrk jgrh gSA Jh ftykuh bruk dk;Z djus esa l{ke ugha gSa u os iwoZ esa dHkh ftyk U;k;ky; esa bl in ij jgs gSaA vr% mUgsa ofj"B futh lgk;d ds in ds ;ksX; ugha ikrkA Jherh us Lusgyrk ekFkqj ds lsok vfHkys[k ls izrhr gksrk gS fd cgqr vf/kd vodk'k ij jgrh gSaA vij ftyk ,oa ls'ku U;k;k/kh'k la0 2] tks/kiqj Hkh vius i=kad 189 fnukad 22-7-1988 esa ,d i= bl ckcr bl dk;kZy; dks fy[k pqds gSaA ftyk U;k;ky; esa dk;Z dh vf/kdrk ds dkj.k ofj"B futh lgk;d dk fu;fer gksuk vko';d gSA bl U;k;ky; esa dk;Z dh vf/kdrk ds dkj.k futh lgk;d dks dk;kZy; le; ls iwoZ ,oa dk;kZy; le; ds i'pkr~ fu;fer :i ls o dbZ ckj jkf= esa] vodk'k ds fnuksa esa Hkh dk;Z djuk vko';d gksrk gSA eq[;ky; ds ckgj ds LFkkuksa esa v/khuLFk U;k;ky; ds fujh{k.k ,oa vkdfLed fujh{k.kksa ds fy, Hkh tkuk gksrk gS] ,sls le; futh lgk;d dk lkFk gksuk vko';d gks tkrk gSA dk;Z dh fofo/krk] egRork ,oa fu;ferrk dks ns[krs gq;s Jherh Lusgyrk ekFkqj ftyk U;k;ky; ds ofj"B futh lgk;d in ds ;ksX; ugha gSa] u mUgksaus dHkh ftyk U;k;ky; ds bl in ij dk;Z gh fd;k] ftldk mUgsa vuqHko ugha gSA Jh rkjk flag xgyksr ftyk U;k;ky; esa futh lgk;d ds in ij 1985 ls dk;Z dj jgs gSa] mUgsa bl in ij dk;Z djus dk iwjk Kku gSA esjs iwoZ ftyk U;k;k/kh'k ekuuh; U;k;kf/kifr Jh feykipan tSu ,oa ekuuh; U;kk;kf/kifr Jh j.kohj lgk; oekZ us budh dk;Z {kerk ,oa ;ksX;rk dks mRd`"V ik;k gSA eSaus Hkh buds dk;Z dks iw.kZr;k lUrks"ktud ik;k gSA dk;kZy; le; ds iwoZ ,oa i'pkr~ vFkok vodk'k ds fnuksa esa Jh xgyksr cjkcj rYyhurk ls dk;Z djrs jgs gSaA vkikrdkyhu fLFkfr esa dkWy }kjk cqyk;k tkus ij Jh xgyksr rRijrkiwoZd mifLFkr gksdj vfrfjDr le; nsrs gSaA Jh cqyk;k tkus ij Jh xgyksr rRijrkiwoZd mifLFkr gksdj vfrfjDr le; nsrs gSaA Jh xgyksr fnukad 21-1-89 dks ofj"B futh lgk;d ds in ij l`tu gqvk rc ls bl in ij dk;Z dj jgs gSaA mUgsa bl ij ls gVkus dk dksbZ vkSfpR; ugha gSA vr% esa in ij dk;Z dj jgs gSaA mUgsa bl ij ls gVkus dk dksbZ vkSfpR; ugha gSA vr% Jh rkjk flag bUgsa bl in ij inksUur djus ds ;ksX; ,oa l{ke ikrk gwWaA vr% Jh rkjk flag xgyksr dks ofj"B futh lgk;d ds in ij vkns'k dh frfFk ls 31-12-89 rd vLFkk;h :i ls inksUur fd;k tkrk gSA " While specific incidence of demerit attached with Shri Jilani has been stated with further consideration that he was made known about those adversities and he has not denied. He has not challenged the selection and he has since retired. His consideration need not further be examined. But it is discernible that his non suitability has been founded on his physical inability to cope with the responsibility and work of Sr. PA. 24. It cannot be doubted and has riot been disputed that in the matter of promotion, the major role of examining the comparative merit or demerit of the candidates is entries which emerge from the Annual Confidential Reports. The comparative merit examined by the learned District Judge does not show anywhere any comparison of the candidates's Annual Confidential Reports and on what basis one is found to be superior to another. Nor any such assertion is made in return. However, learned counsel for the respondents, in fairness, has made available for the perusal of the Court, the A.PA.Rs. of all the candidates which shows that on comparison, the respondent No. 3 does not score a march over the petitioner on that score. 25. The reasons which have weighed with the appointing authority were that she avails excessive leaves and then he narrated the requirement of the office and comes to the conclusion that looking to those requirements, Smt. Snehalata-petitioner is not fit for discharging those duties. The requirements of office which Smt. Snehalata has been held cannot discharge are; (i) the requirement to stay in the office beyond office hours before or after, (ii) to accompany the District Judge outstations and; that (iii) she has not worked as a Senior Personal Assistant earlier. As a consequence of this. Shri Tara Chand Gehlot, respondent No. 3 has been considered fit, because since creation of post, he is discharging the duties of Sr. PA., and he has not given any cause of complaint. 26. Looking to the comparison, it does not appear anywhere that any comprison of relevant ACRs of the two officers has been considered to hold respondent No. 3 ahead of petitioner. An undue weightage has been given to the respondent No. 3 because he has been allowed to officiate on the post, since its creation and that has given the opportunity to the appointing authority to see functioning of respondent No. 3 in close quarters on the post. 27. It is common ground that only one post of Sr. PA., was in the District and only one could man it. 27. It is common ground that only one post of Sr. PA., was in the District and only one could man it. Because of fortutious circumstances of 5 respondent No. 3 being working with appointing authority (District Judge), was given the chance to discharge the function of higher post which Stenographer-cum-PA . attached to other officers in the District had no occasion to discharge. A fortuitous ad hoc opportunity which was not made available to the other competitive candidates. To give an edge to him in making io comparative assessment by considering such working on the post for which selection was being made. cannot be a fair criterion or fair procedure. It was a major circumstance that weighed and became a clinching circumstance in giving respondent No. 3 a march over his seniors. It was wholly irrelevant while considering the comparative merit of the three incumbent discharging 15 the functions of post from which promotion was to be made. Because of the working under the appointing authority since long. the incumbent was given an advantageous position in comparison to other candidates who had never been given the said opportunity, nor could have been given such opportunity, would make the whole process unfair and unreasonable. 28. Significantly. the appointing authority has referred to work of respondent No. 3 evaluated as 'outstanding' by his predecessors. The comparative appraisal of ACRs does not appear to have been done. From the perusal of the ACRs of all the three who were considered, it is apparent that the assessment of respondent No. 3 has never been made as(or 25 outstanding) by any officer d' 'ring the relevant period by either of his predecessor officers. On perusal of the ACRs, I find that so far as comparative merit on the basis of A.P.A.Rs. is concerned, there is no difference. in their assessment from 1984-85 to 1987-88, for which period only the record was available, by that time, and entries of 1988-89 has come 30 into existence after the impugned order was passed. 29. The consideration clearly betrays that the petitioner was not found fit and suitable for the job of Personal Assistant because of gender bias. she being a lady. 29. The consideration clearly betrays that the petitioner was not found fit and suitable for the job of Personal Assistant because of gender bias. she being a lady. Otherwise looking to the Annual Confidential Reports and the service efficiency record, no material has been placed to show that petitioner would not have been available for discharging functions of Senior Personal Assistant beyond office hours or to accompany the officer going out on tour. It is not the case of the respondents that either she was asked to discharge h responsibility at any time and she has denied to do so. Apparently, the option about her non availability to work beyond office hours it required to do and for undertaking the travelling duties, appears to have been funded only she being a lady, she may not be willing to stay beyond office hours or travel for inspection alongwith appointing authority. Article of the Constitution, clearly prohibits discrimination on the ground of sex alone, while considering for promotion. 30. By giving weightage of merit to a person who has been allowed to function on a newly created post until regular selection is made only betrays bias on account of proximity with appointing authority but does not disclose a dispassionate consideration of suitability to job of other candidates or their functioning on the post wherefrom promotion was to be made. If the so experience gained on newly created post by a person who has been just asked to discharge functions of such post until selection is made as is given an edge, then certainly it will amount to unfair consideration by comparing the merits of candidates on uneven grounds. 31. The reason which prevailed with the appellate authority to reject the representation is the repetition of the reasons recorded by the District Judge. 32. No attempt has been made to show or place on record the competitive leave record of the incumbents from which any inference can be drawn on comparison. Even otherwise, the availing of leave due and duly sanctioned by the petitioner cannot be held against her as her demerit. 33. In this connection. 32. No attempt has been made to show or place on record the competitive leave record of the incumbents from which any inference can be drawn on comparison. Even otherwise, the availing of leave due and duly sanctioned by the petitioner cannot be held against her as her demerit. 33. In this connection. it is apposite to draw attention to the ci observations made by the Supreme Court in Badrinath v. Government of Tamil Nadu & Ors., (2000) 8 SCC 395 where the Court reiterated the application of Wednesbury rule while considering the requirement to interfere by judicial review in administrative matters. The Court said: "Unless there is a strong case for applying the Wednesbury doctrine or there are mala fides, Courts and Tribunals cannot interfere with assessments made by DPCs in regard to merit or fitness for promotion. But in rare cases, if the assessment is either proved to be mala fide or is found based on inadmissible or irrelevant or insignificant and trivial material and if an attitude of ignoring or not giving weight to the positive aspect of one's career is strongly displayed, or if the inferences drawn are such that no reasonable person can reach such conclusions, or if there is illegality attached to the decision, then the powers of judicial review under Article 226 of the Constitution are not foreclosed. Undue interference by the courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions." From the perusal of the consideration, it is apparent that irrelevant consideration of functioning of respondent No. 3 since the date of creation of the post until regular selections are made, the trivial consideration of obtaining leave on account of her own marriage or maternity, which are the only cases of long leave availed by her in past record and ignoring comparative ACRs which has been referred as not making any difference to overlook the seniority, vitiates the comparison made by the appointing authority by reason of unfairness of the procedure and unreasonableness of the decision reached by considering irrelevant and inadmissible material and giving undue weightage to the insignificant and trivial factors and consequently, cannot be sustained.Accordingly, the petition succeeds and allowed. Annex.3 and 5 are quashed and the respondent No. 2 is directed to reconsider the question of giving appointment to the post of Senior Personal Assistant by considering the comparative merit of petitioner and respondent No. 3 and everything being equal to give weightage of seniority to the petitioner and by excluding the weightage of experience gained by respondent No. 3 on the post from consideration. The consideration may be made within a period of three months until then, the respondent No. 3 shall be allowed to continue on the post. 34. In case the petitioner is found suitable and appointed in place of respondent No. 3, the consequential benefits should be awarded to the petitioner with effect from the date. respondent No. 3 was promoted in the first instance. So far as arrears, if any, becomes due as a result of this exercise, petitioner shall not be given any cash benefits until actual promotion so is made but the period will be counted for notional fixation and seniority and other consequential benefits.No order as to costs.Writ Petition Allowed. *******