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2004 DIGILAW 959 (RAJ)

Tara Singh Gehlot v. Snehlata

2004-07-09

P.C.TATIA, SUNIL KUMAR GARG

body2004
Honble TATIA, J.–This special appeal is against the judgment of the learned Single Judge dated 6.2.2004 by which the learned counsel Single Judge allowed the writ petition filed by respondent No.1 and set aside order dated 8.8.1989 (Annex.3) by which the appellant-non-petitioner 2 was promoted to the post of Senior Personal Assistant in the office of the District Judge, Jodhpur and also set aside the order dated 9.8.1991 (Annex.5) by which the High Court, in administrative side, rejected the appeal of the respondent No.1 petitioner. The learned Single Judge further directed respondent No. 3 (non-petitioner No.2) the District Judge, Jodhpur to consider the question of giving appointment to the petitioner to the post of Senior Personal Assistant by considering the comparative merit of the petitioner and non-petitioner no. 3 and in case very one being found equal then to give weightage of seniority to the petitioner after excluding the weightage of experience gained by the appellant non-petitioner on the post for consideration. The learned Single Judge further held that in case the petitioner is found suitable and appointed in place of respondent No.3, the consequential benefits should be awarded to the petitioner except cash benefits until actual promotion is made. (2). Brie facts of the case are that the respondent No.1 petitioner (hereinafter referred as the petitioner) was appointed as Stenographer Gr. II vide order dated 7.5.1977 (Annex.1) by the District Judge, Jodhpur. The petitioner was promoted to the post of Stenographer Gr. I cum Personal Assistant vide order dated 22.7.1985, however, the promotion was made with effect from 18.7.1985. Copy of the order is Annexure 2. A post of Senior Personal Assistant was created in the office of the District Judge, Jodhpur and the appellant (non-petitioner No.3 in the writ petition (hereinafter referred as non-petitioner No.3), was promoted to the said post vide order dated 8.8.1989 (Annex.3). The petitioner being aggrieved against the order of promotion of non-petitioner No.3, preferred appeal before he High Court in administrative side which was rejected by the appellate authority vide order dated 9.8.1991 in the administrative side. Copy of this order is placed on record as Annexure -5 and has been challenged by the petitioner. (3). The petitioner being aggrieved against the order of promotion of non-petitioner No.3, preferred appeal before he High Court in administrative side which was rejected by the appellate authority vide order dated 9.8.1991 in the administrative side. Copy of this order is placed on record as Annexure -5 and has been challenged by the petitioner. (3). The petitioner in the writ petition submitted that non- petitioner No.3 was initially appointed in Udaipur judgeship and was transferred on his own request in the year 1984 to Jodhpur and he joined in the office of District Judge, Jodhpur on 4.8.1984. He was promoted as Stenographer Gr. I cum Personal Assistant on 7.12.1986. According to petitioner, the service conditions of the petitioner are governed by the provisions contained in the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. The post of Senior Personal Assistant is not covered by the Rules of 1986 and since there being no criteria, the post of Senior Personal Assistant is required to be filed up by seniority alone. it is submitted that since the petitioner rank senior, therefore, she was entitled to be promoted to the post in question. It is also submitted that even as per the merit, the performance of the petitioner is outstanding and very good during her entire service carrier. She never gave any occasion for complaint or displeasure. it is submitted that neither of the authority below nor the appellate authority properly evaluated the merit of the petitioner vies-a- vis, the appellant non-petitioner No.3 and wrongly rejected the candidatures of the petitioner respondent No.1 and further wrongly rejected her appeal. (4). Reply was filed on behalf of writ non-petitioners No.1 and 2 and in appeal respondents No.2 and 3 High Court and the learned District Judge, Jodhpur jointly and respondent Nos.2 and 3 seriously objected against petitioner respondent No.1s projecting that predominant consideration in passing the orders Annexures-3 and 5, was that the petitioner is female and, therefore, cannot be promoted, which is clearly a distorted version inasmuch as a bare reading of Annexure-5 makes it clear that it has positively been passed by the appellate authority that while making the appointment vide Annexure-3, comparative merit of all the three candidates were dispassionately considered and without any gender bias or influence, the non-petitioner no.3 appellant was found most meritorious. It is also submitted that the petitioner has suppressed facts which had a long bearing for adjudging the comparative merit and that, according to the non- petitioner availed such leaves which were though legally admissible to her but the petitioner was in the habit of remaining absent without getting the leave sanctioned or at times, even without applying for the same. However, respondents No.2 and 3, High Court and the District Judge, Jodhpur admitted that on moving applications by the petitioner respondents No.1 ex post facto leave was sanctioned. According to the respondents, this was the negative point while adjudging the merit of the petitioner respondent No.1. (5). So far as facts mentioned in para Nos.1 to 8 in the writ petition are concerned, non-petitioners No.1 and 2 (respondents No.2 and 3), substantially not disputed the facts and submitted that the post of Senior Personal Assistant was not one of the cadred post under the Rules and it was a newly created post after enactment of the Rules. It is also submitted that an objective decision was taken by non-petitioner, District Judge, Jodhpur that the post in question should be filled in by making selection on the basis of merit and since the post was to be filled on the basis of merit, the question of seniority of petitioner/respondent No.1 vis-a-vis non-petitioner No.2- appellant are of no relevance. However, the thrust of the argument was that non-petitioner No.3-appellant was given promotion after holding that petitioner-respondent No.1 cannot perform duties of Senior Personal Assistant with efficiency and devotion whereas the appellant non-petitioner No.3 has better merit. Therefore, the decision taken to promote non-petitioner No.3-appellant, on the said post is, in all fairness, just, proper and legal. (6). The contesting non-petitioner No.3-appellant also filed reply and it was submitted that since the post of Senior Personal Assistant was created in accordance with law and since there were no specific rules for filling the post, therefore, necessary guidance was sought from the High Court and Honble the High Court directed the learned District Judge to use his discretion to evolve and decide to fill up that post by way of applying criteria of merit. The learned District Judge, Jodhpur considered the merit and, thereafter, passed the order to promote non- petitioner No.3-appellant. The criteria of merit was never challenged by the petitioner respondent No.1. (7). The learned District Judge, Jodhpur considered the merit and, thereafter, passed the order to promote non- petitioner No.3-appellant. The criteria of merit was never challenged by the petitioner respondent No.1. (7). A detailed rejoinder was filed by the petitioner respondent no.1 to the reply filed by the High Court and the District Judge. The learned Single Judge, after examining the record, the ACTs of all the three candidates as well as record of the appointing authority and the appellate authority, including the representation made by the petitioner-respondent No.1, observed that the comparative merit examined by the learned District Judge does not show any where any comparison of the ACRs and on what basis one is found to be superior to another. After rejecting the plea on the ground of limited scope of judicial review in such matter, the learned Single Judge allowed the writ petition vide impugned order dated 6.2.2004. (8). The learned counsel for the appellant vehemently submitted that the learned Single Judge exceeded his jurisdiction and travelled beyond the permissible limits for interference in the impugned order Annexure-3 and Annexure-5. It is also submitted that Honble the Apex Court, in a catena of authorities, laid down the parameters within which the court can interfere in the matter of order of promotion. According to the learned counsel for the appellant, admittedly, the post was newly created and in the Rules, there was no criteria laid down for promotion, the appointing authority decided to fill in the post on the basis of merit after getting approval to take decision from the High Court and, therefore, decided to fill in the post by selecting the candidate on the basis of merit. In the case of Santram Sharma vs. The State of Rajasthan and Another (1), an argument was raised that in case executive government may have power to make appointment and laid down the conditions of service without making rules, in that behalf under the proviso to Article 309 of the Constitution, there will be violation of Article 14 and 16 of the Constitution because appointment would be arbitrary and capricious. Such argument was not accepted by the Honble Apex Court and the Honble Apex Court held in that case that if the State of Rajasthan had considered the case of petitioner along with other eligible candidates before appointment to the selection post, there would be no breach of the provisions of Articles 14 and 16 of the Constitution because every one who was eligible in view of the conditions of service and was entitled to consideration, was actually considered before promotion to those selection posts, were actually made. Therefore, according to the learned counsel for the appellant, if promotion was even on the basis of merit, to the appellant after taking a decision to fill in the post on the basis of the merit and the appointing authority considered the candidatures of respondent No.1 petitioner also along with other eligible candidates, then there is no flaw in the procedure adopted and the petitioner cannot have any grievance. (9). The learned counsel for the appellant before the challenged the judgment of the learned Single Judge vehemently on the ground of limitations of jurisdiction of the High Court in interfering in the matter of promotion. The learned counsel for the appellant relied upon the following judgment of the Honble Apex Court:(1) National Institute of Mental Health & Neuro Sciences vs. Dr. K. Kalyana Raman and Others (2), Dalpat Abasaheb Solunke and Others vs. Dr. B.S. Mahajan & Ors (3), Indian Airlines Corporation vs. Capt. K.C. Shukla and Others (4), Durga Devi and Another vs. State of H.P. and Others (5), Union of India and Another vs. G. Ganayutham (6), Kuldip Chand vs. State of H.P. And Others (7), Badrinath vs. Government of Tamil Nadu & Ors (8), Central Council for Research in Ayurveda & Siddha and Another (9), and (9) AIR Vice Marshal S.L. Chhabra, VSM (Retd.) vs. Union of India (10), including Division Bench judgment of this Court delivered in the case of Parmatma Sharan and Anothers vs. Honble the Chief Justice, Rajasthan High Court and Others (11). (10). (10). The sum and substance of the argument of the learned counsel for the appellant is that, it is not the function of the Court to hear appeal over the decision of the selection committees and to scrutinize the relevant merits of the candidates and find out whether the candidate is fit for a particular post of not, which has to be decide and can only be decided by the duly constituted selection committee, which has the expertise on the subject and that expertise is not with the court (( 1990(1) SCC 305 ). The decision of the selection committee can be interfered only on limited grounds such as illegality or patent material irregularity in the constitution of the committee of its procedure vitiating the selection or proved mala fides affecting the selection etc. and further submitted on the basis of the observations of the Honble Apex Court that adjusting equities in exercise of extraordinary jurisdiction is one thin but assuming the role of selection committee is another. The Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. ( 1993 (1) SCC 17 ). In the judgment delivered in the case of Durga Devi (supra), the Honble Apex Court held that the tribunal fell in error in arrogating to itself the power to judge the comparative merits of the candidates and consider the fitness and suitability for appointment and that was the function of the selection committee and set aside the order of the tribunal and remitted the matter back to the tribunal for fresh disposal. In the case of Union of India vs. G. Ganayutham (supra), further held that 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. The sum and substance, rather more thrust was on the basis of scope under which the court could have interfered in the matter of promotion of the appellant by saying that the scope has already been narrowed down in Wednesbury principle which has been repeatedly approved by Honble the Apex Court till today and as made clear in the judgment referred above. The learned counsel for the appellant submitted written arguments and pointedly referred certain portions of the judgment of the learned Single Judge to demonstrate that the learned Single Judge exceeded his jurisdiction and allowed the writ petition which is contrary to the law laid down by the Honble Apex Court. According to the learned counsel for the appellant, the learned Single Judge itself, not only acted as an appellate authority, contrary to the law laid down by the Honble Apex Court but even went to the extent of assessing the merit of the candidates, without there being any allegation of mala fide and without recording any finding of mala fide against any of the authorities below. (11). Further, according to the learned counsel for the appellant, the judgment of the learned Single Judge is self- contradictory as well as the learned Single Judge virtually has laid down the criteria and changed the criteria for promotion. The learned Single Judge has observed at page No.9 that there is no dispute between the parties that at the relevant time when the promotion was considered, no rules governing the method in which the promotions are to take place, whether by seniority-cum- suitability or merit alone, thereafter observed that there is also no dispute before us that ordinarily in absence of any rules governing the method in which the promotion is to be accorded, the normal rule is seniority-cum-suitability and at page 6, held that ``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 the candidate by applying the test of merit by adjudging the competitive merit of the candidates who have been considered for promotion. and at page 10, the learned Single Judge held that ``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, she might have been promoted ahead of him. and at page 10, the learned Single Judge held that ``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, she might have been promoted ahead of him. These observations and finding of the learned Single Judge have been challenged with the support of the decision of the Apex Court given in the case of Indian Airlines Corporation (supra), referred and quoted above and repeated here again; ``The Court cannot substitute its opinion and devise its own method of evaluation fitness of a candidate for a particular post. and it has been further held that ``But it would be going too far if the court itself evaluates fitness or otherwise of a candidate, as in this case. (12). The learned counsel for the contesting respondent vehemently submitted that it is an admitted case that criteria was not given in the rules for promotion to the post in question, then the seniority could have been the only criteria for promotion. It is also submitted that in absence of rules, the promotion can be accorded strictly only in accordance with the seniority and seniority cannot be given go-bye, by taking help of recording satisfaction about the merit of other candidates vis-a- vis senior candidates. In the Service law, ordinary rule is seniority for promotion and merit is exception. Apart from it, the order to promote appellant was liable to be set aside only on the ground that the learned appellate authority did not even compare the comparative merits of ACRs and had not recorded any finding that appellant rank superior in merit over any of the candidates. it is also submitted that absolutely irrelevant considerations were taken into account for denying the promotion to the petitioner respondent No.1 and absolutely irrelevant considerations have been taken in favour of the appellant-non- petitioner No.3 for granting promotion. It is further submitted that the learned Single Judge rightly held that undue advantage has been given to the appellant-non-petitioner 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 the functioning of non-petitioner No.3-appellant in close quarter on the post. It is further submitted that the learned Single Judge rightly held that undue advantage has been given to the appellant-non-petitioner 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 the functioning of non-petitioner No.3-appellant in close quarter on the post. The learned Single Judge further rightly held that it was a major circumstance that weighed and became a clinching circumstance in giving respondent No.3 a march over his seniors and it was wholly irrelevant while considering the comparative merit of the three incumbent discharging the functions of post from which the promotion was to be made. (13). The learned counsel for the respondents submitted that the learned Single Judge considered the law laid down by the Honble Apex Court court and after taking note of the limitation on scope of judicial review of decision of selection committee/authority, examined the matter well within jurisdiction. The learned counsel for the respondents submitted that even in the light of the decisions cited by the learned counsel for the appellant and referred above, the interference by the High Court in the facts of this case was eminently just, proper and further was needed to correct the mistake committed by the appointing authority as well as the appellant authority. (14). We considered the submissions of the learned counsel for the parties. So far as post in question is concerned, there is no dispute that post was newly created post. No rules were framed laying down criteria for promotion to the post. It is also true that the learned District Judge after getting approval from the High Court, decided to fill up the post by promotion on the basis of merit alone. In view of the judgments cited by both the counsels, it cannot be disputed that the scope of interference in the matter of grant of promotion by the competent authority is very narrow. (15). We do not feel it necessary to repeat the reasons given for limiting the scope of interference by the court in the matter of grant of promotion by competent authority, and the law has been consistently followed by all the courts and reiterated by Honble the Apex Court in almost all cases. (15). We do not feel it necessary to repeat the reasons given for limiting the scope of interference by the court in the matter of grant of promotion by competent authority, and the law has been consistently followed by all the courts and reiterated by Honble the Apex Court in almost all cases. It is settled law that the court cannot become appellate authority to examine the decision of the selection committee nor the court can substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post and administrative authority is not under obligation to record reasons in support of its decision and as held by the Apex Court that 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. The candidate has only a right of consideration and if the right of consideration has not been infringed, the candidate cannot have grievance unless action is vitiated on other grounds. (16). Despite all above authoritative decisions, the Honble Apex Court, in the case of Union of India & Anr. vs. G. Ganayutham (supra) after considering the case of Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn. (12), and after quoting the relevant portion held as under:- ``Therefore, to arrive at a decision on some ``reasonableness 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 persons could have reasonably arrived at having regard to the above principles. (17). In the other judgment which are relied upon by the learned counsel for the appellant, namely Dalpat Abasaheed Solunke and Others vs. Dr. B.S. Mahajan and Ors. (supra), the Honble Apex Court held that the decision of the selection can be interfered with only on limited grounds such as illegality or patent material irregularity in constitution of committee or its procedure evaluation the selection or proved malafide affecting selection. (18). In the matter of promotion, the candidate has a right of consideration. The consideration is required to be fair of the decision taking authority. (18). In the matter of promotion, the candidate has a right of consideration. The consideration is required to be fair of the decision taking authority. The fairness in required to be apparent from the action and decision taking process resulting into a fair decision. After considering all relevant factors and not influenced by irrelevant factors, if a decision is taken by the appointing authority to promote a candidate in accordance with the law, it cannot be subjected to a judicial review, by the court. The scope further narrows down when the appellate authority examines the matter and upheld the decision of the appointing authority to promote the candidate. In this case, the learned Single Judge found from the record of the appointing authority-the District Judge, Jodhpur that the comparative merit examined by the learned District Judge does not show anywhere any comparison of merits of the ACRs and on what basis one in found superior to another. The learned Single Judge also found from the record that fortuitous circumstance of respondent No.3 being working with the appointing authority, gave a chance to discharge the functions of the higher post and thus fortuitous opportunity was not made available to other competitive candidates and it was a major circumstance that weighed and became a clinching circumstance in giving respondent No.3 a march over his seniors. (19). We do also find from the order of the learned District Judge, Jodhpur that the learned District Judge proceeded to examine the merit of the appellate by taking note of the fact of his working on the post of Personal Assistant since 1985 and observed that he had knowledge of working of this post. The learned District Judge further recorded his own satisfaction about his working on this promotional post, obviously because of fortuitous circumstances, the appellant got the opportunity to work with the learned District Judge. The learned District Judge under impression that work on promotional post upon ad hoc or temporary basis done by candidate and not done by other candidate because he/she was not given that opportunity can be ground for grant of promotion to that fortunate candidate, held that there is not jurisdiction for removing the appellant from the post. (20). The learned District Judge under impression that work on promotional post upon ad hoc or temporary basis done by candidate and not done by other candidate because he/she was not given that opportunity can be ground for grant of promotion to that fortunate candidate, held that there is not jurisdiction for removing the appellant from the post. (20). From above, it is clear that one of the factors, prevailed over the learned District Judge for grant of promotion to the appellant was that the appellant is working on the said post since a long time, therefore, there is no jurisdiction for removing him from the post. That is absolutely irrelevant consideration. An ad hoc promotee is required to vacate the post on promotion of duly selected candidate. Another factor prevailed over the learned District Judge was also out-come of that very fortuitous circumstance which was available to the appellant only and that is clear from the observations of the learned District Judge when he said that the appellant comes in the office even before time and stays there after office hours and even in holidays, he used to work devotedly. Whether such occasion arose for the petitioner and opportunity was given to the petitioner respondent No1. and she refused to do the work in the same manner in which the appellant did, is not available on record. While considering the merit of the petitioner-respondent No.1, the learned District Judge observed that from the service record, it appears that she takes leaves too much and the learned Addl. District Judge No.2 Jodhpur wrote a letter to the learned District Judge, Jodhpur on 22.7.1998. The learned District Judge further observed that the Personal Assistant is required to come early and go late from the office and some times, he is required to attend the duties in night and also in the holidays. The Personal Assistant is further required to go at the time of inspections of subordinate courts and looking to the regularity importance and variety of the work, the petitioner respondent No.1 is not fit for the said post. Apart from it, it is observed that she did not work on the promotional post, therefore, she had no experience. In view of the above observations, it is clear that the petitioners promotion was denied on the ground of her inexperience of working on the promotional post. Apart from it, it is observed that she did not work on the promotional post, therefore, she had no experience. In view of the above observations, it is clear that the petitioners promotion was denied on the ground of her inexperience of working on the promotional post. This is absolutely irrelevant consideration prevailed over the learned District Judge and the fortuitous circumstances of appellant being appointed on the promotional post on ad hoc basis, not only became the advantageous point but not providing this opportunity to the petitioner respondent No.1 was taken as one of the reasons for not giving promotion to the petitioner. In the same way, if the observations of the learned District Judge are accepted that the Personal Assistant is required to come early and go late from the office and he is required to attend and work on holiday, then how said work cannot be discharged by the petitioner respondent No.1, has not been explained, if it is not only because the petitioner-respondent no.1 is lady. (21). Another irrelevant consideration prevailed over the learned District Judge against the petitioner respondent No.1 was that she took lease despite the fact that her leaves were sanctioned by the competent authority in accordance with the rules. In rejoinder, the petitioner respondent No.1 submitted that she took leave of three days from 19.2.1985 to 21.2.1985 and it was for the purpose of appearing in the interview of the Rajasthan Judicial Service at Ajmer and she went there after taking permission from the competent authority to leave the head quarter. In the year 1986, the petitioner respondent No.1 took leave from 11.6.86 to 22.6.86 (11 days) and her leave was sanctioned by the competent authority. This leave was taken on account of death of her mother. Other leaves of the petitioner are five days from 20.9.85 to 25.9.85 and leave of days for 21.7.88 and 22.7.88 on account of her illness, which were duly sanctioned. So far as the absence from duty on 17.7.90, as shown by the respondents in concerned, that was pertaining to the period subsequent to the promotion in question. These days and period of leave, if were taken as negative for the merit of the petitioner, then there is no comparative statement of leave of the appellant non-petitioner No.3. So far as the absence from duty on 17.7.90, as shown by the respondents in concerned, that was pertaining to the period subsequent to the promotion in question. These days and period of leave, if were taken as negative for the merit of the petitioner, then there is no comparative statement of leave of the appellant non-petitioner No.3. In view of the above, it is apparent from the face of the record itself that the order of promotion was granted to the appellant non-petitioner No.3 on the basis of the absolutely inadmissible and irrelevant consideration and without comparing the merits of the candidates. (22). The learned Single Judge further observed that the appointing authority has referred to work as if respondent No.3 evaluated as `outstanding by his predecessors, which is factually not correct. The learned Single Judge further observed that from the perusal of ACRs of all the three who were considered, it is apparent that the assessment of respondent No.3 has never been made as `outstanding by any officer during the relevant period by either of his predecessor officers. Since the ACrs were produced before the learned Single Judge by the appointing authority and also produced before this Court, this fact cannot be disputed. (23). In these circumstances, it cannot be said that there was fair consideration, rather the learned Single Judge was fully justified in holding that the considerations are affected by the gender bias. It is clear that weightage of merit has been given to the appellant non-petitioner No.3 on the basis of irrelevant consideration. (24). So far as the submission of the learned counsel for the appellant that the judgment of the Honble Apex Court in the case of Badrinath (supra), was wrongly interpreted or the learned Single Judge placed reliance upon the observations made para No. 40 of the said judgment, which may be due to the reason that para 41 of the said judgment escaped the notice of the learned Single judge where the Honble Apex Court clearly cautioned as under:- ``We are making these remarks so that courts or Tribunals may not - by quoting this case as an easy precedent - interfere with assessment of merit in every case, Courts and Tribunals can neither sit as appellate authorities nor substitute their own views to the views of Departmental Promotion Committee. Undue interference by the courts or Tribunals will result in paralysing recommendations of Departmental Committees and promotions. The case on hand can be a precedent only in rare cases. (25). The above judgment is required to be read in the context in which the Honble Apex Court cautioned the courts and the tribunals and even the last line of the observations quoted below from the same judgment, it is clear that even this judgment nowhere says that there cannot be any interference in the matter of decisions of the departmental committees and in the matter of promotion in any case. In this judgment itself, it has been very clearly observed as under:- ``.......the executive is also to bear in mind that, in exceptional cases, the assessment of merit made by them is liable to be scrutinised by courts within the narrow wednesbury principles or on the ground of mala fides. The judicial power remains but its use is restricted to rare and exceptional situations. (26). The learned Single Judge has not merely taken as a pretext the judgment of the Honble Apex Court delivered in Badrinaths case (supra) but carefully considered the facts of the case and found that selection of the appellant is vitiated because of the procedure adopted by the appointing authority and this finds support from the even decision on the Honble Apex Court delivered in the case of Dalpat Abasaheb Solunke (supra), wherein in para 12, Honble the Apex Court held that the decision of selection committee can be interfered on limited grounds including where the selection committees procedure is so that it vitiates the selection. The appellate authority, after examining the scope of interference merely reiterated what has been said by the appointing authority in favour of the appellant and it appears from the order of the appellate authority that whether the merits of two candidates were at all compared or not, escaped the notice of the appellate authority and what has been written by the appellate authority and what has been written by the appellate authority for the work which was assigned to the appellant and gave opportunity to the appellant to remain in touch with the appointing authority and, that opportunity was not ever provided to respondent No.1, also escaped notice of the learned appellate authority. (27). (27). Therefore, even in the para relied upon by the learned counsel for the appellant, from the judgment in the case of Badrinath (supra), it is clear that the courts have power to scrutinise the assessment of even merit made by the Departmental Promotional Committees if any case is made out within limited scope. Therefore, we are of the view that the learned Single Judge very carefully noticed the jurisdiction and scope of the court in the matter of promotion and in the matter of decision taken by the appellate authority in promotional matters and, thereafter, within jurisdiction, interfered in the order of promotion and set aside the order of promotion and the order of the appellate authority. (28). In view of the above discussion, we do not find any merit in this appeal and the appeal of the appellant is hereby dismissed.