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Madhya Pradesh High Court · body

2006 DIGILAW 399 (MP)

Union Public Service Commission v. L. P. Tiwari

2006-03-14

DEEPAK VERMA, R.K.GUPTA

body2006
ORDER Gupta, J.--1. The petitioner Union Public Service Commission has filed the present petition challenging the order passed by the Central Administrative Tribunal, Jabalpur Bench. The copy of the judgment is placed on record as• Annexure P-3 to the petition decided on 22nd November. 2004. The said judgment is a common judgment passed by the Tribunal dealing with three original applications. 2. One of the three original applications, which are dealt with by the Tribunal, is Original Application No. 16/2003. This application was preferred by Shri D.P. Dwivedi, who is respondent No.1 in WP No.3719/ 2005. Original Application No. 69/2003 was preferred by Shri M. Ramchandran. No petition has been preferred against the judgment passed by the Tribunal. The another original application was filed by one Shri L.P. Tiwari, who is respondent No.1 in the present petition and his application was numbered as Original Application No. 118/2004. 3. The Tribunal has allowed the Original Application No. 16/2003 and Original Application No. 118/2004 and so far as Original Application No. 69/2003 is concerned, that application was dismissed and no relief in the said case in favour of Shri M. Ramchandran was granted. 4. The Tribunal, by the impugned order has considered all the three applications jointly and accordingly has passed a common order. In para 10 of its judgment, the Tribunal has rejected Original Application No. 69/ 2003. The Tribunal in other parts of the judgment has given a direction in Original Application No. 16/2003 and Original Application No.1 18/2004, which were filed by Shri D.P. Dwivedi and Shri L.P. Tiwari respectively. The Tribunal has given a direction to the respondents before it to hold a review DPC. According to the Tribunal. since there had been no fair assessment by the Selection Committee for the year 2001, therefore, Tribunal directed to hold a review DPC. According to the judgment. the Tribunal found that there had been a patent error committed by the, Selection Committee, therefore, said selection was directed to be reviewed by holding a review DPC. 5. Learned counsel for the petitioner submitted the following two objections: (a) That the Tribunal cannot exercise the powers of appellate Court over the decisions and the recommendations of the Selection Committee and thus according to the counsel for the petitioner, Tribunal has exceeded its jurisdiction and authority. 5. Learned counsel for the petitioner submitted the following two objections: (a) That the Tribunal cannot exercise the powers of appellate Court over the decisions and the recommendations of the Selection Committee and thus according to the counsel for the petitioner, Tribunal has exceeded its jurisdiction and authority. (b) Another submission which has been made by the learned counsel for the petitioner is that while giving the direction to hold the review DPC, Tribunal has given the direction that the Review Committee shall consider the case in the light of the observations only as given by the Tribunal. On this. learned counsel for the petitioner submitted that even assuming but not admitting that the Tribunal may have power to direct to hold the review DPC yet the review DPC should have been directed to be held to consider the cases in terms of the rules which are applicable and not in terms to the observations as given by the Tribunal. According to the counsel for the petitioner, the Tribunal has committed a jurisdictional error. 6. So far as the second objection made by the learned counsel for the petitioner is concerned, it is true that whenever any direction is to be given by the Tribunal or by the law Courts to hold the review DPC, then the cases as such have to be considered in the light of the yardsticks to be applied in terms of the rules. In the present case. the selection was to be done in terms of the Indian Forest Services (Appointment by Promotion) Regulations, 1966. Therefore, to this extent we are in full agreement with the learned counsel for the petitioner that while holding the review DPC. the Selection) Committee has not only to keep in mind the observations so made by the Tribunal in its judgment but also has to take into account the relevant rules. The relevant rule in the present case shall be rule 5(3AA) of the Indian Forest Services (Appointment by Promotion) Regulations, 1966. 7. Learned counsel for the respondent No.1 also had not been able to oppose the aforesid submission of the petitioner and accordingly it is directed that the review DPC shall consider the case of the respondents and also of other eligible incumbents in terms of the rules applicable for selection as enumerated in the Indian Forest Services (Appointment by Promotion) Regulations, 1966. 8. 8. The next question which the learned counsel for the petitioner has raised is that in the present case, the Tribunal has exceeded its jurisdiction and authority. It 'is submitted that the Tribunal cannot exercise the power of judicial review. It is also submitted that selection of an incumbent by the Selection Committee being a matter of subjective satisfaction of the Selection Committee, it is not open for the judicial review. The counsel for the petitioner relied upon the following judgments to support his submission: AIR 1966 SC 3352 [Smt. Nutan Arvind v. Union of India and another]. 2005 AIR SCW 3275 [UPSC v. K. Rajaiah and others], AIR 1990 SC 434 [Dalpat Abasaheb Sofunke etc. v. Dr. B.S. Malwjan. ete.] 9. In the present case the procedure in detail has been prescribed under the Indian Forest Services (Appointment by Promotion) Regulations, 1966. According to the rule 5 of the aforesaid Regulations, a list of suitable officers has to be prepared, thereafter. on preparation of such list of suitable officers, the same has to be forwarded in terms of rule 6 to the Union Public Service Commission. According to the mandate of rule 6, the role of Commission is only a consultative one. It is further submitted that while forwarding the said list of suitable officers to the Commission, the observations of the State Government on the recommendations of the Committee also required to be forwarded. According to rule 6A, the State Government shall also forward the copy of the list referred to in regulation 6 to the Central Government and Central Government shall send their. observations on the recommendations of the Committee to the Commission. Rule 7 of the aforesaid rules further prescribes the preparation of the select list by the Commission and thereafter on the basis of the said select list, the appointments from such select list in pursuance to the rules 8 and 9 are to be made. 10. The learned counsel for the respondent No.1 submitted that the Tribunal, in fact, has itself not taken a task of evaluating the merits of the respondents vis-à-vis with the other selected persons. 10. The learned counsel for the respondent No.1 submitted that the Tribunal, in fact, has itself not taken a task of evaluating the merits of the respondents vis-à-vis with the other selected persons. The Tribunal has only recorded a finding with regard to the selection which has been done in an arbitrary manner, therefore, on this basis the learned counsel for the respondent No.1 submitted that the scope of judicial review of the Tribunal and also of this Court under Articles 226 and 227 of the Constitution of India shall be available. 11. The learned counsel for the respondent relied upon the judgment passed by the apex Court reported in AIR 1990 SC 434 [Dalpat Ahasaheb Solunke etc. v. Dr. B.S. Mahajan etc. and referred to para 9 of the judgment. It is submitted by the learned counsel that he is not disputing the analogy that the Tribunal or the Courts not being experts in the matter cannot reevaluate the relative merits of the candidates and thereafter to direct that one of the candidate was better in merit. Such a jurisdiction is not available to the Tribunal or to the Court. This particular job has to be left to the selection committee. 12. It is contended by him that the power of judicial review against the decision of the Selection Committee can be interfered with only on a limited ground, such as illegality or a patent material illegality in the constitution of a committee or its procedure vitiating the selection, or proved mala fides affecting the selection. On this basis. it is contended that in the present case there had been arbitrariness in selecting the candidates, therefore, the act being arbitrary is mala fide, and such an arbitrary act affects the selection itself. On the basis of the ratio of the aforesaid judgment passed by the apex Court, which is reported in AIR 1990 SC 434 (supra), power of judicial review shall be available. 13. To substantiate the aforesaid submission, learned counsel for the respondent relied upon a chart in relation to annual confidential reports of various candidates including the respondent No.1 and also the other persons, who were selected. 13. To substantiate the aforesaid submission, learned counsel for the respondent relied upon a chart in relation to annual confidential reports of various candidates including the respondent No.1 and also the other persons, who were selected. The said chart is reproduced as under: Annual Confidential Records of SFS Officers DPC for IFS cadre year 2001 S. Name of the C.R. Outsta- Very Good Average Below No. officer Available nding good Average (year) A+ A B C D 1. A.K. Nagar 1985 to 7 9 - - - 2000 2. M.K. Pathak 1984 to 12 5 - - - 2000 3. S.K. Sharma 1984 to 13 2 2* - 2000 4. M.C. Singhal 1984 to 8 7 1 1 - 2000 5. R.P.S. Baghel 1984 to 11 5 - 1* - 2000 6. U.S. Keer 1979 to 1 7 6 5 3 2000 7. L.P. Tiwari 1984 to 14 3 - - - 2000 8. D.P. Dwivedi 1984 to 8 6 3 - - 2000 14. On the basis of the aforesaid chart, it is contended by the learned counsel for the respondent that the arbitrariness of the Selection Committee is apparent on the basis of the aforesaid chart. It is contended that the chart itself demonstrates that the persons such as L.P. Tiwari during the period 1984 till 2000 was having in his favour 14 outstanding' ACRs and three 'very good' and there had been no average and below average remarks against the respondent No.1 L.P. Tiwari. It is thus contended that other persons such as Shri S.K. Sharma has in his confidential reports for the period from 1984 to 2000 to his credit 13 outstanding', two 'very good' and two 'adverse' confidential reports with him and yet such a person is selected and placed above to his clients. It is also contended that so far as Shri M.C. Singhal and Shri ,R.P.S. Baghel are concerned, against them also there had been one 'average' confidential report and they were having less number of 'outstanding' confidential reports, than respondent Shri L.P. Tiwari and Shri D.P. Dwivedi. It is also contended that so far as Shri M.C. Singhal and Shri ,R.P.S. Baghel are concerned, against them also there had been one 'average' confidential report and they were having less number of 'outstanding' confidential reports, than respondent Shri L.P. Tiwari and Shri D.P. Dwivedi. On the basis of the same, it is submitted that persons having acquired 'average' confidential reports are placed above in the selection list and so far as respondents Shri L.P. Tiwari and Shri D.P. Dwivedi are concerned, they have been placed below in the select list though they do not have any average confidential report in their credit. On the basis of the same, if the judgment of the Tribunal is perused, the Tribunal in fact has not directed the respondents to change the grading of the confidential reports. The Tribunal has merely discussed the accepted grading ,md classification of the confidential reports of the officers selected and placed higher to Shri L.P. Tiwari and Shri D.P. Dwivedi. On that basis the Tribunal carne to a conclusion tliat in fact there had been arbitrariness in the selection by the Committee in placing certain persons higher in the select li~t than the applicants (before the Tribunal) i.e. Shri L.P. Tiwari and Shri D.P. Dwivedi. The aforesaid exercise that the Tribunal had done cannot be treated to be al1 exercise by the Tribunal which could be termed to be a appellate jurisdiction exercised by the Tribunal. The Tribunal has not even directed that the Selection Committee has not properly categorized and classilied the grading of the contidential reports of the incumbents including the applicants before the Tribunal. The Tribunal accepted the grading as such and thereafter came to the conclusion that the persons even having adverse confidential reports such as Shri U.S. Keer are placed higher in the merit than the persons having no average contidential reports in their credit and according to the Tribunal this was the arbitrariness. 15. According to this Court, while doing the said exercise for reaching to a conclusion of arbitrariness of the Selection Committee, it cannot be said that the Tribunal has exercised its appellate jurisdiction over the decision arrived at by the Selection Committee. The Tribunal had been conscious of its own jurisdiction and the limitations and we do not find that at any point of time the Tribunal has even attempted to exceed its authority. The Tribunal had been conscious of its own jurisdiction and the limitations and we do not find that at any point of time the Tribunal has even attempted to exceed its authority. The power of judicial review if is not exercised to satisfy the conscious of the Courts or of the Tribunals with regard to the fairness and arbitrariness of the selection by the Committee, then in the absence of. power the matter as such cannot be left at the absolute discretion and, mercy of the Selection Committee but, of course, under the powers of I judicial review the Tribunal and the Courts cannot re-appreciate the merits J and demerits of the candidates. The judgment which has been relied upon of the apex Court by the learned counsel for the petitioner reported in AIR 1990 SC 434 (supra) itself indicates that the Tribunals and the Courts have very limited powers of judicial review. In the present case, we find that the Tribunal has acted within its limits of judicial review by not disturbing the grading of the confidential reports of the officers considered but has only commented on the arbitrariness of the Selection Committee. 16. Learned counsel for the parties before us have not disputed the settled principles of law that the Selection Committee is not even required to give reasons for finding a candidate fit or unfit. The counsel for the parties, in view of the judgment passed by the apex Court, which is reported in 2005 AIR sew 3275 (supra), have not rightly disputed that in the absence of reasons given by the Selection Committee, the selections shall not be vitiated. 17. In the instant case, the question altogether had been different. It was not the case before the Tribunal of the applicants L.P. Tiwari and D.P. Dwivedi that the selection is vitiated as no reasons have been recorded. In fact their cases before the Tribunal was that there had been an arbitrariness in the selection by the Committee and on that basis certain facts were supplied to the Tribunal to adjudicate upon the issue whether the selection done by the Selection Committee is arbitrary or not? And while exercising its limited jurisdiction, the Tribunal came to the conclusion that persons having better confidential reports were placed below. The Tribunal has also given other reasoning. And while exercising its limited jurisdiction, the Tribunal came to the conclusion that persons having better confidential reports were placed below. The Tribunal has also given other reasoning. In view of our considered opinion, it cannot be said that the Tribunal has exceeded its authority or jurisdiction. 18. The another judgment which has been cited by the petitioner is AIR 1966 SC 3352 [Smt. Nutan Arvind v. Union of India and another]. On that basis, the learned counsel for the petitioner submitted that it is not open to the Tribunals or the Courts to sit over the decision of the Selection Committee. There is no quarrel to this proposition of law and the relative merits of the two candidates are beyond the pale of judicial review but as this Court earlier has found that by not exercising the powers of judicial review an uncontrolled power cannot be given to the Selection Committee but the Tribunals and the Courts, can exercise the power of judicial review only on limited questions and one of the limited questions is whether the selection is arbitrary. . 19. In the present case, this Court finds that the Tribunal has neither exceeded its jurisdiction nor has travelled beyond the scope of its power of judicial review. In view of the aforesaid discussion, the present petitions are devoid of substance and are dismissed. The petitioner is directed to hold a review DPC, in accordance with rules and also shall keep in view the observations of the Tribunal, within a period of 60 days from the date, the certified copy of this order is received by the petitioner and submitted to the competent authority by the applicants Shri L.P. Tiwari and Shri D.P. Dwivedi before the Tribunal. No order as to costs.