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2009 DIGILAW 371 (MP)

H S SIDHU v. DEVENDRA BAPNA

2009-03-24

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) THE appellant being aggrieved by Order dated 4. 3. 2008 passed in w. P. No. 23798/2003 (OA. No. 927/1997) and W. P. (S) No. 1119/2005 has come to this Court with a submission that the learned single Judge was absolutely unjustified in holding that the appellant could not be considered higher in merits in comparison to the original petitioner/respondent no. 1 and others. ( 2. ) UNDISPUTEDLY the respondent no. 1/original petitioner is senior to the present appellant. When their cases for promotion to the post of Joint Director, Fisheries were under consideration a departmental promotion committee was required to consider their cases. The committee consisted of Mr. M. M. Hussain, Member, public Service Commission, Shri Prem Prakash Mathur, Secretary, Department of Fisheries, Shri V. L. Shitole, Director, Fisheries Department and Shri A. K. Jain, Under Secretary, State of Madhya Pradesh, Department of Fisheries. It is to be seen that the said committee met on 6. 7. 1996. It is also to be seen that an earlier committee consisting of Shri MM. Hussain, Member, Madhya Pradesh public Service Commissioner, Shri Sirjjiyas Minj, Secretary, Fisheries Department, shri V. L. Shitole, Director, Fisheries Department and Shri A. K. Jain, Under secretary of the Fisheries Department had recorded their proceedings. The said committee had observed that the original petitioner Shri D. K. Bapna would be placed as very good while Shri Jitendra Singh and Shri K. D. Singh would be considered as good. The committee also observed that case of Shri Harpal Singh sidhu could not be considered as his confidential reports were not made available. After sometime the departmental promotion committee was re-constituted and it met on 6. 7. 1996. In paragraph 3 the committee recorded in relation to the seniority and gradation list. However, in sub para 4 of paragraph 3 the committee referring to Rule 15 (3) of Madhya Pradesh Matsyaudhyog (Rajpatrit) Seva Bharti Niyam, 1987 observed that a person of exceptional merit and suitability could be given higher place in this list in comparison to the officers who were senior to him. The committee also observed that it had considered the confidential reports for the year 1989-90 to 1993-94 for a period of five years. They also observed in paragraph 6 that the committee was of the opinion that for purposes of promotion the requirements would be: (a ). Integrity should be above board. The committee also observed that it had considered the confidential reports for the year 1989-90 to 1993-94 for a period of five years. They also observed in paragraph 6 that the committee was of the opinion that for purposes of promotion the requirements would be: (a ). Integrity should be above board. (b ). In the last five years the three years grades at least should be good or higher and for last two years the grade should be good. (c ). The grades of last five years should not be bad. (d ). The committee observed that where the comments etc. were not clear the Committee had assessed the concerned officer with their own wisdom and discretion and; (e ). Where some departmental enquiry was pending consideration then report of such officer was kept in a sealed cover. ( 3. ) WHILE considering clause (5) they observed that all the persons who were directed to be promoted vide meeting of Departmental Promotion Committee held on 22. 2. 1993 have been promoted. While preparing the select list the committee observed and graded the persons as follows : 1. Shri Harpal Singh Sidhu. 2. Shri Jitendra Singh. 3. Shri D. K. Bapna. 4. Shri K. D. Singh. ( 4. ) THE committee also observed that in its opinion and in view of Rule 15 (3)Shri Harpal Singh Sidhu being a man of exceptional merits and suitability could be given the higher position in comparison to his seniors. ( 5. ) AFTER the recommendations were placed before the Government, the government promoted Shri Harpal Singh Sidhu (as Officiating) Joint Director. It appears that after the orders were passed in favour of Shri Harpal Singh Sidhu, the respondent no. 1 filed Original Application No. 927/1997 before the State administrative Tribunal. During the pendency of the said petition the present appellant who was officiating as Joint Director was further promoted as officiating director. It appears that being aggrieved by a further promotion granted in favour of Shri Harpal Singh Sidhu the original petitioner filed W. P (S) No. 1119/2005. 1 filed Original Application No. 927/1997 before the State administrative Tribunal. During the pendency of the said petition the present appellant who was officiating as Joint Director was further promoted as officiating director. It appears that being aggrieved by a further promotion granted in favour of Shri Harpal Singh Sidhu the original petitioner filed W. P (S) No. 1119/2005. The original application filed before the State Administrative Tribunal was transferred to this Court and was registered as W. P. No. 23798/2003, As the promotion of the present appellant to the office of the Director was dependant upon confirmation or rejection of his promotion as Joint Director (Officiating), both the petitions were directed to be heard simultaneously. ( 6. ) THE short submission of the original petitioner all through had been that the respondents/state authority/the departmental promotion committee was not justified in placing the present appellant higher in comparison to the persons who were otherwise senior to him. It was also submitted that Rule 15 (3) could not be applied in air and in light of Rule 12 ( c) of the said Rules, Shri Harpal Singh Sidhu was not entitled to any favourable position. Shri Harpal Singh Sidhu after notice appeared before the Court and filed his return and submitted that as he was a man of exceptional merits and suitability and he has gained a+ for all five years, he was entitled to be placed at a higher position in comparison to the persons who were senior to him. ( 7. ) THE State Government also appeared and filed its return but however, despite making a submission that Shri Harpal Singh Sidhu was a person of exceptional merits and suitability they did not produce the confidential reports of all concerned to satisfy the judicial conscience of this Court that Harpal Singh Sidhu being a person of exceptional merits and suitability in view of the confidential reports was entitled to be placed on a higher pedestal. We would not be unjustified in observing that even after both the petitions were allowed the State Government did not think it necessary and suitable to produce all the confidential reports of all concerned though they have placed before us the proceedings recorded by the departmental promotion committee. It is also to be noted the appellant before us (Shri Harpal singh Sidhu) since after filing of this appeal on 25. 3. It is also to be noted the appellant before us (Shri Harpal singh Sidhu) since after filing of this appeal on 25. 3. 2008 never made any application to this Court that the confidential reports of the appellant and the original petitioner be requisitioned so that this Court may compare the comparative merits. ( 8. ) FROM the D. P. C proceedings dated 6. 7. 1996 it only appears that the committee had formed an opinion that Shri Harpal Singh Sidhu was a person of exceptional merits and suitability. While confirming the select list the said committee never observed that on what basis they were recording such opinion. When the comparative merits are considered then the authority or the person considering the comparative merits has to record its finding and a final opinion that why such person is being considered a person of exceptional merits and suitability. Exceptional merits are not like the beauty of someone which lies in the eye of the beholder. When the question of merit is to be appreciated then the entire merits of such person are required to be considered in comparison to the other person. It even does not appear from the report of the D. P. C. that they had recorded any reason for recording exceptional merits or suitability of the present appellant. ( 9. ) TRUE it is that the State Government in its return had submitted that the present appellant was a person of exceptional merits and suitability but unfortunately the wisdom of the officer who filed the return did not alarm him that he was required to file the confidential reports so that the Court could see and may observe something on the merits. It is also to be seen that if the D. P. C. was not giving any reasons then a person who was a Member of the D. P. C. was required to come to this Court and say that the Committee had considered particular aspects to place Shri Harpal Singh Sidhu on the higher pedestal. Officer-in-charge who does not know the facts which weighed in the mind of the Members of the departmental Promotion Committee wanted to convey to this Court that what weighed in the minds of the Members of the Departmental Promotion Committee. Officer-in-charge who does not know the facts which weighed in the mind of the Members of the departmental Promotion Committee wanted to convey to this Court that what weighed in the minds of the Members of the Departmental Promotion Committee. Personal knowledge is always personal to the person, the third party or the other person can at best guess it, presume it or deem it but what exactly or truly happened will have to be said by such person who was involved in the process of finding the merits and suitability. ( 10. ) OF late it is being seen that whenever allegations are made against the officers of the State or the Committee Members some Tom, Dick or Harry or some Head Clerk, some Babu or some Under Secretary would be appointed as officer-in-charge and he would file his affidavit and on oath he would say that on the basis of the records and information he was filing the affidavit. The affidavit would always be beautifully vague and inarticulate. The affidavit would never say that on what basis and that from where he obtained the information, whether the opinion is based on the records or the information is based on personal discussions with such officers who are shy of filing their personal affidavit in the High Court. When something is done personally then the person involved in the process would always be obliged to file his personal affidavit. In a given case such persons if are not available then the officer-in-charge on basis of the records at best can say but even at that time he will have to produce the entire record before the Court. The officer-in-charge who does not know anything cannot sit over the records and say to the Court that he knows everything and, therefore, he has filed the affidavit. ( 11. ) IN the present matter officer-in-charge was not associated with the meeting of the departmental promotion committee. He nowhere says that he had a discussion with the Members of the Departmental Promotion Committee. He nowhere says that he had personally seen the confidential reports of all concerned. He nowhere says that what pursued the Members of the Departmental Promotion Committee to hold that the present appellant was of better and higher merits rather was of. exceptional merits and suitability. He nowhere says that he had personally seen the confidential reports of all concerned. He nowhere says that what pursued the Members of the Departmental Promotion Committee to hold that the present appellant was of better and higher merits rather was of. exceptional merits and suitability. When an affidavit or reply is filed by the State government in the High Court, filing of such reply and affidavit is not an empty formality. The State Government which has taken an action has to justify its action before the High Court. It is always expected of the State Government that it would be fair not only to its employee but it would be fair to the High Court also. It would neither support anybody nor oppose anybody rather it shall open its cards and place the entire material before the High Court and would sit as a silent spectator so that it can observe the order passed by the High Court. ( 12. ) IN the present matter the manner in which the State Government is trying to support the case and cause of the present appellant would speak volumes. It would show that somehow or the other they want Harpal Singh Sidhu to continue as Director (Officiating ). Our presumption also finds support from the submission of Shri V. K. Shukla, learned counsel for the State, when he stated before the court that till D. P. C. is completed Shri Harpal Singh Sidhu be allowed to continue as Director (Officiating ). If the High Court has asked him to vacate the office then it is not expected of the State Government to make a prayer before the High court that such officer should be allowed to continue in the higher office till the meeting of the departmental promotion committee is held. The conduct exhibited by the Government is reprehensible. It would simply show that in fact there is something fishy in the matter and is not being unveiled before this Court only to protect the present appellant and place him in the higher seniority. At the time of argument it was repeatedly requested by Shri Dixit, learned counsel for the appellant, that State be asked to produce the confidential reports. At the time of argument it was repeatedly requested by Shri Dixit, learned counsel for the appellant, that State be asked to produce the confidential reports. Shri Shukla, learned counsel for the State, also repeatedly argued that he be allowed some time to produce the confidential report so that the comparative merits of such officers are brought on the record. We are shocked to hear this argument. What was to be brought on the record before the learned single Judge is now sought to be produced before this Court in future. Assuming, we call for all the reports then too it would not be possible for this Court to compare the comparative merits and come to a conclusion that Harpal Singh Sidhu in fact is of extra ordinary merits and suitability. The work is to be done by an expert committee. True it is that it is argued by Shri Dixit that the expert committee has found him to be of extra ordinary merits but while considering paragraph 6 of the proceedings recorded by the D. P. C. , we have found that the committee has failed in discharging its duties because it has simply recorded its decision on the subject without assigning any reasons. Rule 15 (3) provides that "any junior officer who in the opinion of the committee is of exceptional merits and suitability may be assigned in the list a higher place than that of the officer senior to him". When a person is to be considered as of exceptional merit and suitability then opinion is to be formed and an opinion cannot be formed simply because there are likes and dislikes. The opinion has to be formed on the basis of the material which is made available to the Members of the Committee. In the present matter except observing that Harpal Singh Sidhu is of exceptional merits and suitability the departmental promotion committee did not observe anything. When such observations are made and there is no justification behind that and even the material which could prima facie satisfy the High Court is not produced before the High Court then the High Court would have no choice but to set aside such selection and the entire selection process. In our considered opinion the selection process was contaminated and stood corrupted because of non-application of mind and non-granting of reason. In our considered opinion the selection process was contaminated and stood corrupted because of non-application of mind and non-granting of reason. If such bad report is accepted then the High Court would certainly be entitled to strike with the sword of justice on every illegality committed by the State Government its functionaries and/or the persons who have been given certain powers. ( 13. ) SO far as the question relating to Rule 12 (c) is concerned it was vehemently argued by Shri Dixit that for making an officiating promotion the question of seniority would not come in the way and as the present appellant was promoted as Joint Director (officiating) nothing wrong in the process could be found. In the present matter it is to be seen that the present appellant could secure unparallel, unmatchable and perfect patronage from the State Government. Even when the matter relating to the promotion to the post of Joint Director (Officiating) was in challenge before the State Administrative Tribunal and, thereafter on transfer before this Court the State Government through its wise officers had promoted an officiating officer to a further higher post that too with a direction that the officiating joint Director shall act as officiating Director. It is also to be seen that Rule 12 ( c) in fact talks of the interse seniority of Government servants promoted to officiate in a higher service or higher category of post. ( 14. ) THE learned single Judge has not only considered Rule 15 (especially Rule 15 (3) of the Rules) and Rule 12 (especially Rule 12 ( c) of the Rules) but he has given his anxious consideration to the totality of the circumstances of the facts of the case. After giving our thoughtful consideration, we are unable to hold that the learned single Judge was unjustified in holding that present appellant could not be promoted as officiating Joint Director. ( 15. ) WE find no reason to interfere. The appeal deserves to and is accordingly dismissed with costs Rs. 5000/- to be paid by the appellant to the contesting respondent no. 1. ( 16. ) AS the promotion of the present appellant to the office of the Joint Director is being set aside, we are unable to protect further promotion of the appellant to the office of Director (officiating ). The other appeals are also dismissed. ( 17. 5000/- to be paid by the appellant to the contesting respondent no. 1. ( 16. ) AS the promotion of the present appellant to the office of the Joint Director is being set aside, we are unable to protect further promotion of the appellant to the office of Director (officiating ). The other appeals are also dismissed. ( 17. ) THE appeals filed by the State Government registered as W. A. No. 412/ 2008, W. A. No. 411/2008 and the appeals filed by Shri Devendra Kumar Bapna, writ Appeal No. 442/2008 and Writ Appeal No. 443/2008 are also dismissed. Appeal dismissed. 2009-MPJR-4-367 , 2009-ILR(MP)-0-2760 HIGH COURT OF MADHYA PRADESH Coram : Before Mr. Justice R.S. Garg and Mr. Justice U.C. Maheshwari Mar 24,2009 H S SIDHU Vs DEVENDRA BAPNA ( 1. ) THE appellant being aggrieved by Order dated 4. 3. 2008 passed in w. P. No. 23798/2003 (OA. No. 927/1997) and W. P. (S) No. 1119/2005 has come to this Court with a submission that the learned single Judge was absolutely unjustified in holding that the appellant could not be considered higher in merits in comparison to the original petitioner/respondent no. 1 and others. ( 2. ) UNDISPUTEDLY the respondent no. 1/original petitioner is senior to the present appellant. When their cases for promotion to the post of Joint Director, Fisheries were under consideration a departmental promotion committee was required to consider their cases. The committee consisted of Mr. M. M. Hussain, Member, public Service Commission, Shri Prem Prakash Mathur, Secretary, Department of Fisheries, Shri V. L. Shitole, Director, Fisheries Department and Shri A. K. Jain, Under Secretary, State of Madhya Pradesh, Department of Fisheries. It is to be seen that the said committee met on 6. 7. 1996. It is also to be seen that an earlier committee consisting of Shri MM. Hussain, Member, Madhya Pradesh public Service Commissioner, Shri Sirjjiyas Minj, Secretary, Fisheries Department, shri V. L. Shitole, Director, Fisheries Department and Shri A. K. Jain, Under secretary of the Fisheries Department had recorded their proceedings. The said committee had observed that the original petitioner Shri D. K. Bapna would be placed as very good while Shri Jitendra Singh and Shri K. D. Singh would be considered as good. The committee also observed that case of Shri Harpal Singh sidhu could not be considered as his confidential reports were not made available. The said committee had observed that the original petitioner Shri D. K. Bapna would be placed as very good while Shri Jitendra Singh and Shri K. D. Singh would be considered as good. The committee also observed that case of Shri Harpal Singh sidhu could not be considered as his confidential reports were not made available. After sometime the departmental promotion committee was re-constituted and it met on 6. 7. 1996. In paragraph 3 the committee recorded in relation to the seniority and gradation list. However, in sub para 4 of paragraph 3 the committee referring to Rule 15 (3) of Madhya Pradesh Matsyaudhyog (Rajpatrit) Seva Bharti Niyam, 1987 observed that a person of exceptional merit and suitability could be given higher place in this list in comparison to the officers who were senior to him. The committee also observed that it had considered the confidential reports for the year 1989-90 to 1993-94 for a period of five years. They also observed in paragraph 6 that the committee was of the opinion that for purposes of promotion the requirements would be: (a ). Integrity should be above board. (b ). In the last five years the three years grades at least should be good or higher and for last two years the grade should be good. (c ). The grades of last five years should not be bad. (d ). The committee observed that where the comments etc. were not clear the Committee had assessed the concerned officer with their own wisdom and discretion and; (e ). Where some departmental enquiry was pending consideration then report of such officer was kept in a sealed cover. ( 3. ) WHILE considering clause (5) they observed that all the persons who were directed to be promoted vide meeting of Departmental Promotion Committee held on 22. 2. 1993 have been promoted. While preparing the select list the committee observed and graded the persons as follows : 1. Shri Harpal Singh Sidhu. 2. Shri Jitendra Singh. 3. Shri D. K. Bapna. 4. Shri K. D. Singh. ( 4. ) THE committee also observed that in its opinion and in view of Rule 15 (3)Shri Harpal Singh Sidhu being a man of exceptional merits and suitability could be given the higher position in comparison to his seniors. ( 5. Shri Harpal Singh Sidhu. 2. Shri Jitendra Singh. 3. Shri D. K. Bapna. 4. Shri K. D. Singh. ( 4. ) THE committee also observed that in its opinion and in view of Rule 15 (3)Shri Harpal Singh Sidhu being a man of exceptional merits and suitability could be given the higher position in comparison to his seniors. ( 5. ) AFTER the recommendations were placed before the Government, the government promoted Shri Harpal Singh Sidhu (as Officiating) Joint Director. It appears that after the orders were passed in favour of Shri Harpal Singh Sidhu, the respondent no. 1 filed Original Application No. 927/1997 before the State administrative Tribunal. During the pendency of the said petition the present appellant who was officiating as Joint Director was further promoted as officiating director. It appears that being aggrieved by a further promotion granted in favour of Shri Harpal Singh Sidhu the original petitioner filed W. P (S) No. 1119/2005. The original application filed before the State Administrative Tribunal was transferred to this Court and was registered as W. P. No. 23798/2003, As the promotion of the present appellant to the office of the Director was dependant upon confirmation or rejection of his promotion as Joint Director (Officiating), both the petitions were directed to be heard simultaneously. ( 6. ) THE short submission of the original petitioner all through had been that the respondents/state authority/the departmental promotion committee was not justified in placing the present appellant higher in comparison to the persons who were otherwise senior to him. It was also submitted that Rule 15 (3) could not be applied in air and in light of Rule 12 ( c) of the said Rules, Shri Harpal Singh Sidhu was not entitled to any favourable position. Shri Harpal Singh Sidhu after notice appeared before the Court and filed his return and submitted that as he was a man of exceptional merits and suitability and he has gained a+ for all five years, he was entitled to be placed at a higher position in comparison to the persons who were senior to him. ( 7. Shri Harpal Singh Sidhu after notice appeared before the Court and filed his return and submitted that as he was a man of exceptional merits and suitability and he has gained a+ for all five years, he was entitled to be placed at a higher position in comparison to the persons who were senior to him. ( 7. ) THE State Government also appeared and filed its return but however, despite making a submission that Shri Harpal Singh Sidhu was a person of exceptional merits and suitability they did not produce the confidential reports of all concerned to satisfy the judicial conscience of this Court that Harpal Singh Sidhu being a person of exceptional merits and suitability in view of the confidential reports was entitled to be placed on a higher pedestal. We would not be unjustified in observing that even after both the petitions were allowed the State Government did not think it necessary and suitable to produce all the confidential reports of all concerned though they have placed before us the proceedings recorded by the departmental promotion committee. It is also to be noted the appellant before us (Shri Harpal singh Sidhu) since after filing of this appeal on 25. 3. 2008 never made any application to this Court that the confidential reports of the appellant and the original petitioner be requisitioned so that this Court may compare the comparative merits. ( 8. ) FROM the D. P. C proceedings dated 6. 7. 1996 it only appears that the committee had formed an opinion that Shri Harpal Singh Sidhu was a person of exceptional merits and suitability. While confirming the select list the said committee never observed that on what basis they were recording such opinion. When the comparative merits are considered then the authority or the person considering the comparative merits has to record its finding and a final opinion that why such person is being considered a person of exceptional merits and suitability. Exceptional merits are not like the beauty of someone which lies in the eye of the beholder. When the question of merit is to be appreciated then the entire merits of such person are required to be considered in comparison to the other person. It even does not appear from the report of the D. P. C. that they had recorded any reason for recording exceptional merits or suitability of the present appellant. When the question of merit is to be appreciated then the entire merits of such person are required to be considered in comparison to the other person. It even does not appear from the report of the D. P. C. that they had recorded any reason for recording exceptional merits or suitability of the present appellant. ( 9. ) TRUE it is that the State Government in its return had submitted that the present appellant was a person of exceptional merits and suitability but unfortunately the wisdom of the officer who filed the return did not alarm him that he was required to file the confidential reports so that the Court could see and may observe something on the merits. It is also to be seen that if the D. P. C. was not giving any reasons then a person who was a Member of the D. P. C. was required to come to this Court and say that the Committee had considered particular aspects to place Shri Harpal Singh Sidhu on the higher pedestal. Officer-in-charge who does not know the facts which weighed in the mind of the Members of the departmental Promotion Committee wanted to convey to this Court that what weighed in the minds of the Members of the Departmental Promotion Committee. Personal knowledge is always personal to the person, the third party or the other person can at best guess it, presume it or deem it but what exactly or truly happened will have to be said by such person who was involved in the process of finding the merits and suitability. ( 10. ) OF late it is being seen that whenever allegations are made against the officers of the State or the Committee Members some Tom, Dick or Harry or some Head Clerk, some Babu or some Under Secretary would be appointed as officer-in-charge and he would file his affidavit and on oath he would say that on the basis of the records and information he was filing the affidavit. The affidavit would always be beautifully vague and inarticulate. The affidavit would never say that on what basis and that from where he obtained the information, whether the opinion is based on the records or the information is based on personal discussions with such officers who are shy of filing their personal affidavit in the High Court. The affidavit would always be beautifully vague and inarticulate. The affidavit would never say that on what basis and that from where he obtained the information, whether the opinion is based on the records or the information is based on personal discussions with such officers who are shy of filing their personal affidavit in the High Court. When something is done personally then the person involved in the process would always be obliged to file his personal affidavit. In a given case such persons if are not available then the officer-in-charge on basis of the records at best can say but even at that time he will have to produce the entire record before the Court. The officer-in-charge who does not know anything cannot sit over the records and say to the Court that he knows everything and, therefore, he has filed the affidavit. ( 11. ) IN the present matter officer-in-charge was not associated with the meeting of the departmental promotion committee. He nowhere says that he had a discussion with the Members of the Departmental Promotion Committee. He nowhere says that he had personally seen the confidential reports of all concerned. He nowhere says that what pursued the Members of the Departmental Promotion Committee to hold that the present appellant was of better and higher merits rather was of. exceptional merits and suitability. When an affidavit or reply is filed by the State government in the High Court, filing of such reply and affidavit is not an empty formality. The State Government which has taken an action has to justify its action before the High Court. It is always expected of the State Government that it would be fair not only to its employee but it would be fair to the High Court also. It would neither support anybody nor oppose anybody rather it shall open its cards and place the entire material before the High Court and would sit as a silent spectator so that it can observe the order passed by the High Court. ( 12. ) IN the present matter the manner in which the State Government is trying to support the case and cause of the present appellant would speak volumes. It would show that somehow or the other they want Harpal Singh Sidhu to continue as Director (Officiating ). ( 12. ) IN the present matter the manner in which the State Government is trying to support the case and cause of the present appellant would speak volumes. It would show that somehow or the other they want Harpal Singh Sidhu to continue as Director (Officiating ). Our presumption also finds support from the submission of Shri V. K. Shukla, learned counsel for the State, when he stated before the court that till D. P. C. is completed Shri Harpal Singh Sidhu be allowed to continue as Director (Officiating ). If the High Court has asked him to vacate the office then it is not expected of the State Government to make a prayer before the High court that such officer should be allowed to continue in the higher office till the meeting of the departmental promotion committee is held. The conduct exhibited by the Government is reprehensible. It would simply show that in fact there is something fishy in the matter and is not being unveiled before this Court only to protect the present appellant and place him in the higher seniority. At the time of argument it was repeatedly requested by Shri Dixit, learned counsel for the appellant, that State be asked to produce the confidential reports. Shri Shukla, learned counsel for the State, also repeatedly argued that he be allowed some time to produce the confidential report so that the comparative merits of such officers are brought on the record. We are shocked to hear this argument. What was to be brought on the record before the learned single Judge is now sought to be produced before this Court in future. Assuming, we call for all the reports then too it would not be possible for this Court to compare the comparative merits and come to a conclusion that Harpal Singh Sidhu in fact is of extra ordinary merits and suitability. The work is to be done by an expert committee. True it is that it is argued by Shri Dixit that the expert committee has found him to be of extra ordinary merits but while considering paragraph 6 of the proceedings recorded by the D. P. C. , we have found that the committee has failed in discharging its duties because it has simply recorded its decision on the subject without assigning any reasons. Rule 15 (3) provides that "any junior officer who in the opinion of the committee is of exceptional merits and suitability may be assigned in the list a higher place than that of the officer senior to him". When a person is to be considered as of exceptional merit and suitability then opinion is to be formed and an opinion cannot be formed simply because there are likes and dislikes. The opinion has to be formed on the basis of the material which is made available to the Members of the Committee. In the present matter except observing that Harpal Singh Sidhu is of exceptional merits and suitability the departmental promotion committee did not observe anything. When such observations are made and there is no justification behind that and even the material which could prima facie satisfy the High Court is not produced before the High Court then the High Court would have no choice but to set aside such selection and the entire selection process. In our considered opinion the selection process was contaminated and stood corrupted because of non-application of mind and non-granting of reason. If such bad report is accepted then the High Court would certainly be entitled to strike with the sword of justice on every illegality committed by the State Government its functionaries and/or the persons who have been given certain powers. ( 13. ) SO far as the question relating to Rule 12 (c) is concerned it was vehemently argued by Shri Dixit that for making an officiating promotion the question of seniority would not come in the way and as the present appellant was promoted as Joint Director (officiating) nothing wrong in the process could be found. In the present matter it is to be seen that the present appellant could secure unparallel, unmatchable and perfect patronage from the State Government. Even when the matter relating to the promotion to the post of Joint Director (Officiating) was in challenge before the State Administrative Tribunal and, thereafter on transfer before this Court the State Government through its wise officers had promoted an officiating officer to a further higher post that too with a direction that the officiating joint Director shall act as officiating Director. It is also to be seen that Rule 12 ( c) in fact talks of the interse seniority of Government servants promoted to officiate in a higher service or higher category of post. ( 14. ) THE learned single Judge has not only considered Rule 15 (especially Rule 15 (3) of the Rules) and Rule 12 (especially Rule 12 ( c) of the Rules) but he has given his anxious consideration to the totality of the circumstances of the facts of the case. After giving our thoughtful consideration, we are unable to hold that the learned single Judge was unjustified in holding that present appellant could not be promoted as officiating Joint Director. ( 15. ) WE find no reason to interfere. The appeal deserves to and is accordingly dismissed with costs Rs. 5000/- to be paid by the appellant to the contesting respondent no. 1. ( 16. ) AS the promotion of the present appellant to the office of the Joint Director is being set aside, we are unable to protect further promotion of the appellant to the office of Director (officiating ). The other appeals are also dismissed. ( 17. ) THE appeals filed by the State Government registered as W. A. No. 412/ 2008, W. A. No. 411/2008 and the appeals filed by Shri Devendra Kumar Bapna, writ Appeal No. 442/2008 and Writ Appeal No. 443/2008 are also dismissed. Appeal dismissed.