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2016 DIGILAW 927 (CAL)

Subrata Chakravarty v. Union of India

2016-11-25

BISWANATH SOMADDER

body2016
JUDGMENT : BISWANATH SOMADDER, J. 1. The petitioner has filed the instant writ application, essentially being aggrieved by the decision taken by the concerned authority of the Ministry of Coal, Government of India, (hereinafter referred to as the “concerned Ministry”) to recommend scrapping of the panel prepared by the Public Enterprises Selection Board (hereinafter referred to as the “PESB”) for the post of Chairman cum Managing Director, Eastern Coalfields Limited (hereinafter referred to as the “ECL”) and the subsequent scrapping of the panel on 3rd August, 2015 by the Appointments Committee of Cabinet (hereinafter referred to as the “ACC”). The panel included the name of the writ petitioner for the post-in-question. 2. Before going into the factual details, it may be worthwhile to state certain relevant particulars regarding the writ petitioner. The writ petitioner joined service on 13th October, 1979 as a Junior Executive Trainee and since then he has been working in different subsidiaries under Coal India Limited. The writ petitioner is a mining engineering graduate having graduated from the Indian School of Mines in the year 1979. He had obtained a first class mine manager’s certificate from the Director General of Mines Safety (DGMS) in the year 1984. Thereafter, he obtained a Master of Computer Applications degree from the Birla Institute of Technology, Mesra, Ranchi in 1997. On joining Central Coalfields Limited, his posting initially was at an underground mine in the State of Jharkhand. Thereafter, he worked as an Under manager, Assistant Manager and Colliery Manager at different mines of Central Coalfields Limited. He then joined the Planning and Project Monitoring Division of the Central Coalfields Limited and worked as Superintendent of Mines and Deputy Chief Mining Engineer. He joined Bharat Coking Coal Limited in the year 2001 and worked there as a Project Officer and General Manager till 2006. He held other posts like Technical Secretary to the Chairman, Coal India Limited, Chief General Manager, Amlohri Project, in the year 2008, before joining as Director (Technical), ECL, Sanctoria, West Bengal, with effect from 24th March, 2009 and completed his five years tenure on 23rd March, 2014. The extension of his tenure as Director (Technical) of ECL could not be processed as per procedure since clearance of the Central Vigilance Commission (hereinafter referred to as “CVC”) was not available. The extension of his tenure as Director (Technical) of ECL could not be processed as per procedure since clearance of the Central Vigilance Commission (hereinafter referred to as “CVC”) was not available. In the meanwhile, he was recommended by the PESB in October, 2014, for appointment as the Chairman cum Managing Director of ECL. However, his case for appointment as the Chairman cum Managing Director of ECL could not be processed for want of vigilance clearance which ultimately led to scrapping of the panel containing his name by the ACC based on the recommendation made by the concerned Ministry. 3. A detailed narration of facts, which are relevant for adjudication of the present case, is stated below: On 24th March, 2009, the petitioner joined as Director (Technical), ECL. His tenure ended on 23rd March, 2014. However, before his tenure as Director (Technical) ended, he had applied for extension. On 15th January 2014, the vigilance division of the concerned Ministry sent all relevant documents in relation to the enquiry against the writ petitioner to the CVC, seeking its advice on his antecedents in order to take a decision with respect to extension of his tenure. On 6th May 2014, the vigilance division of the concerned Ministry addressed a letter to the CVC with reference to the above letter, stating that the advice of the CVC has not yet been received and pending CVC clearance, tenure of the writ petitioner as Director (Technical) be extended for three months on an ad-hoc basis. On 29th May, 2014, an advertisement for selection to the post of Chairman cum Managing Director, ECL was issued by the PESB. On 11th June 2014, a compilation of all earlier guidelines for processing of proposals for appointment/extension/termination of appointment, etc. to a Board level post in any PSU for approval of ACC (which was already available on DoPT’s website since November 2013) was issued by the ACC. These guidelines, inter alia, included the guideline dated 27th May, 2008, relating to the Central Public Sector Enterprises (hereinafter referred to as “CPSEs”) issued by the PESB. As per its terms, the validity of the panel of names recommended by PESB is ONE (1) year. These guidelines were already in force at the time of issuance of the aforesaid advertisement. These guidelines, inter alia, included the guideline dated 27th May, 2008, relating to the Central Public Sector Enterprises (hereinafter referred to as “CPSEs”) issued by the PESB. As per its terms, the validity of the panel of names recommended by PESB is ONE (1) year. These guidelines were already in force at the time of issuance of the aforesaid advertisement. After that, on 19th August, 2014, the concerned Ministry addressed a letter to the CVC with reference to the letters dated 15th January, 2014 and 6th May, 2014, stating that the advice of the CVC has not yet been received and pending CVC clearance, tenure of the writ petitioner as Director (Technical) cannot be extended. On 10th October, 2014, ECL submitted a report to CVC in respect of a complaint against the writ petitioner by one Mr. M.K. Singh. The complaint was regarding discrepancy in award of a tender to Bucyrus India Pvt. Ltd. The allegation was examined by ECL but it was not substantiated. There was also a complaint by the same Mr. M.K. Singh against the writ petitioner regarding certain irregularities in accepting claim of outsourcing contractors. On 22nd October, 2014, the Secretariat of the ACC issued further guidelines for processing proposals for appointment to Board Level post in CPSEs, since it was observed that the timelines already prescribed for processing the proposals for appointments to Board level posts were not being adhered to. On 28th October, 2014, the writ petitioner was selected and his name was recommended for appointment as Chairman cum Managing Director, ECL [Between 29th May, 2014 and 28th October, 2014, the concerned Ministry and CVC were exchanging correspondences regarding vigilance clearance for extension of the writ petitioner’s tenure as Director (Technical), ECL]. On 30th October, 2014, the Secretariat of the ACC issued certain policy guidelines for extension of tenure of Board level incumbents where vigilance clearance is not available. On 18th November, 2014, the concerned Ministry again addressed a letter to the CVC with reference to three letters dated 15th January, 2014, 6th May, 2014 and 19th August, 2014, stating that the advice of the CVC has not yet been received and pending CVC clearance, the writ petitioner’s tenure as Director (Technical) cannot be extended and his appointment to the post of Chairman cum Managing Director, ECL, cannot be made. On 2nd December, 2014, there was a request from the vigilance division of the concerned Ministry to the CVC for expediting vigilance clearance in respect of the writ petitioner with reference to letters dated 15th January, 2014, 6th May, 2014, 19th August, 2014 and 18th November, 2014. An Office Memorandum was issued by the CVC on 18th December, 2014, asking the Central Bureau of Investigation (hereinafter referred to as the “CBI”) to register a Preliminary Enquiry (hereinafter referred to as “PE”) in the matter relating to procurement of 240 and 190 MT dumpers and 20 cubic metre electric rope shovels. On 2nd January, 2015, a letter was written by the vigilance division of the concerned Ministry to CVC regarding the vigilance status and other particulars in respect of the writ petitioner. In that letter, the concerned Ministry, referring to CVC’s office memorandum dated 18th December, 2014, stated that the CVC had directed the CBI to register a PE in the matter of procurement of 240 and 190 MT dumpers and 20 cubic metre electric rope shovels by Coal India Limited. Thereafter, on 4th February, 2015, a letter was sent from the Officer on Special Duty, CVC, to the Additional Secretary & Chief Vigilance Officer of the concerned Ministry regarding vigilance clearance in respect of the writ petitioner for confirmation of tenure. The letter advised the concerned Ministry to place the facts and status of the complaints / cases against the writ petitioner before the competent authority while it takes a decision on the suitability for extension of his tenure as Director (Technical), ECL / appointment as Chairman cum Managing Director, ECL. On 29th May, 2015, the Joint Secretary of the concerned Ministry issued a letter addressed to the Establishment Officer and Additional Secretary, Department of Personnel and Training (hereinafter referred to as the “DoPT”), New Delhi, requesting the DoPT to scrap the panel recommended by the PESB for the post of Chairman cum Managing Director (ECL). It may be worthwhile to set out the said letter in its entirety. “I am writing this, in connection with scrapping of the panel recommended by the PESB for the post of Chairman cum Managing Director, ECL. The post would fall vacant on 01.06.2015 due to superannuation of Shri Rakesh Sinha, Chairman cum Managing Director, ECL present incumbent on 31.05.2015. It may be worthwhile to set out the said letter in its entirety. “I am writing this, in connection with scrapping of the panel recommended by the PESB for the post of Chairman cum Managing Director, ECL. The post would fall vacant on 01.06.2015 due to superannuation of Shri Rakesh Sinha, Chairman cum Managing Director, ECL present incumbent on 31.05.2015. Shri S. Chakravarty, Director (Tech), ECL was recommended by PESB vide their U.O. dated 28.10.2014 for the said post. CVC however, vide their letter dated 04.02.2015 has informed that the Commission has asked CBI to register a PE in the matter of irregularities in procurement of 240 & 190 MT Dumpers and 20 Cubic Mtr Shovels and submit a report after thorough investigation. CBI report in the matter is awaited. The Commission, therefore, advised this Ministry to place the facts of the case and status thereof, before the competent authority while it considers his suitability for the appointment. 2. In pursuance with the advice of the CVC, Vigilance division had placed the matter before the competent authority and it has been decided that since the CBI was directed by CVC to register a PE, the file should be submitted after conclusion of PE. As no timelines have been indicated by the CVC or CBI, this is likely to be delayed indefinitely. Therefore, this Ministry is of the view that it is not worthwhile to pursue the proposal for his appointment any further. As such, it has been decided to recommend scrapping of the panel so that PESB can be requested to initiate fresh selection at the earliest. 3. Accordingly, DOPT is requested to obtain and communicate the approval of ACC for scraping (scrapping) of the panel recommended by PESB immediately so that necessary action to fill up the vacancy could be initiated afresh by the Ministry. 4. This issues with the approval of Minister of State (Independent Charge) for Coal.” Even after issuance of the letter dated 29th May, 2015, the concerned Ministry issued an Office Memorandum dated 15th July, 2015, addressed to the DoPT seeking further ad hoc extension of tenure of the appointment of the writ petitioner as Director (Technical), ECL, for reasons stated in the said memorandum, which includes, inter alia, absence of any charge-sheet or even show-cause notice issued against him. DoPT was requested to obtain and communicate the approval of the ACC for the purpose of extension of tenure of the writ petitioner beyond 23rd December, 2014. The incumbent Chairman-cum-Managing Director of ECL retired on 31st May, 2015. The ACC approved the proposal / recommendation for scrapping of the panel in question which was received by the concerned Ministry on 3rd August, 2015. On 15th June, 2015, the Central Public Information Officer of the concerned Ministry received an application regarding the vigilance status of the writ petitioner. On 23rd June, 2015, the Central Public Information Officer of the concerned Ministry, furnished the vigilance status in respect of the internal candidates of Coal India Limited sent to the PESB, before the interview was held on 28th October, 2014. The said report and the enclosure to the said letter showed that no penalty was imposed during the last 10 years nor any disciplinary action was initiated / being initiated against the writ petitioner. On 3rd August, 2015, the Under Secretary, Secretariat of ACC, wrote a letter to the concerned Ministry with reference to its communication dated 29th May, 2015. The letter stated that the ACC has approved the proposal of the concerned Ministry dated 29th May, 2015 for scrapping of the PESB recommended panel. The approval of the ACC to the concerned Ministry’s proposal to scrap the panel was given 2 months and 25 days before expiry of the validity period of the said panel. On 4th /5th August, 2015 by an Office Memorandum no. 010/COI/056, the 240 and 190 MT dumpers and 20 cubic metres electric rope shovel issues were put to rest by the CVC – about 2 months and 24 days before expiry of the validity period of the panel recommended by PESB. The CVC stated that the case relating to irregularities in procurement of 240 and 190 MT dumpers and 20 cubic metre electric rope shovels by Coal India Limited had been examined and after its assessment it had decided to allow the matter to rest. Therefore, the pending case against the writ petitioner stood closed. On 16th September, 2015, the CVC addressed a letter to the concerned Ministry stating that there is nothing adverse on its records in respect of the writ petitioner. This was the final clearance of the writ petitioner for being considered for appointment as the Chairman-cum-Managing Director of ECL. Therefore, the pending case against the writ petitioner stood closed. On 16th September, 2015, the CVC addressed a letter to the concerned Ministry stating that there is nothing adverse on its records in respect of the writ petitioner. This was the final clearance of the writ petitioner for being considered for appointment as the Chairman-cum-Managing Director of ECL. This clearance was received 1 month and 12 days before expiry of the validity period of the panel of the PESB recommending the writ petitioner as the selected candidate. 4. It was contended by the learned senior counsel representing the writ petitioner that the provisions relating to scrapping of a panel regarding Board Level appointments in Central Public Sector Undertakings proposed by PESB has been clearly laid down in the compilation of guidelines issued by the Government of India, Secretariat of the Appointment Committee of the Cabinet, Ministry of Personnel Public Grievances, Department of Personnel and Training, issued on 11th June, 2014. This compilation of guidelines will clearly reflect that the powers to scrap a panel approved by Directorate of Public Enterprises/Public Enterprises Selection Board vests in the ACC. The recommendation of scrapping of the panel comprising of the selected candidates (in this case, the writ petitioner) on 29th May, 2015, was illegal and unconstitutional because the concerned Ministry did not follow the compilation of guidelines nor the procedure laid down in the Office Memorandum dated 22nd October, 2014 issued by the ACC regarding the post selection appointment process. No reasons have been advanced for departing from the procedure as laid down. Since the recommendation to scrap the panel in question was illegal, unconstitutional and void, the ACC approval dated 3rd August, 2015 could not fasten on such void recommendation and would be wholly ineffective. 5. It was further contended that scrapping of the panel in question without even referring to the Office Memorandum dated 22nd October, 2014, disclosed not only a total non-application of mind, but also amounts to an arbitrary departure from the standards set out in the memorandum and no valid reasons have been disclosed for the same in the pleadings filed on behalf of the respondents and as such is violative of Article 14 of the Constitution of India. There is no adverse allegation regarding the integrity or competence of the writ petitioner. There is no adverse allegation regarding the integrity or competence of the writ petitioner. He had a legitimate expectation of getting a fair consideration of appointment as the Chairman-cum-Managing Director of ECL, which, in the facts and circumstances of the case has been denied to him. The concerned respondents could have suo moto reversed the scrapping of the panel after the final CVC clearance came on 16th September, 2015 and failure to do so demonstrates mala fide intention on their part. That apart and in any event, in the facts of the instant case, the decision to scrap the panel in question was unreasonable, unfair and without any justification. It was finally contended that in a proper case (such as this one), in order to prevent injustice, the Court may by itself pass an order or give a direction which the Government or the Public Authority should have passed or given, had it properly and lawfully exercised its discretion. It was specifically submitted that the present case may be treated in such category. 6. Learned senior counsel appearing on behalf of the writ petitioner referred to various decisions of the Hon’ble Supreme Court in order to buttress his submission which are enumerated as follows : 1. Amarjit Singh Ahluwalia (Dr.) v State of Punjab and Others reported in (1975) 3 SCC 503 . 2. A.P. Aggarwal v Govt. of NCT of Delhi and Another reported in (2000) 1 SCC 600 . 3. A.K. Kraipak and Others v Union of India and Others reported in (1969) 2 SCC 262 . 4. Food Corporation of India v M/s Kamdhenu Cattle Feed Industries reported in (1993) 1 SCC 71 . 5. D. Ganesh Rao Patnaik and Others v State of Jharkhand and Others reported in (2005) 8 SCC 454 . 6. Associate Provincial Picture Houses, LTD. v Wednesburry Corporation reported in (1947) 2 All ER 680. 7. Comptroller and Auditor General of India, Gian Prakash, New Delhi and Another v K.S. Jagannathan and Another reported in (1986) 2 SCC 679 . 8. Director, SCTI for Medical Science & Technology and Another v M. Pushkaran reported in (2008) 1 SCC 448 . 9. Chimajirao Kanhojirao Shirkhe and Another v Oriental Fire and General Insurance Co. Ltd. reported in (2000) 6 SCC 622 . 7. On the other hand, the learned Additional Solicitor General of India appearing on behalf of the respondent nos. 8. Director, SCTI for Medical Science & Technology and Another v M. Pushkaran reported in (2008) 1 SCC 448 . 9. Chimajirao Kanhojirao Shirkhe and Another v Oriental Fire and General Insurance Co. Ltd. reported in (2000) 6 SCC 622 . 7. On the other hand, the learned Additional Solicitor General of India appearing on behalf of the respondent nos. 1, 2, 3 and 4 relied on the affidavit affirmed by Sri Sanjib Bhattacharya on 15th January, 2016, wherein it has, inter alia, been stated, to the effect, as follows : (1) Based on the advice of the CVC the matter was placed before the disciplinary authority who directed that the writ petitioner’s case be considered only after conclusion of the PE by CBI as advised by the CVC. (2) The concerned Ministry was not in a position to anticipate by when the PE would be concluded by the CBI and the then incumbent Chairman cum Managing Director was to retire on May 31, 2015. (3) The matter was placed before the competent authority who advised that since the CBI was directed by the CVC to register a PE, the file should be submitted after conclusion of the PE. Hence, it was submitted that necessary steps were immediately initiated for the selection of the writ petitioner and the allegation that even after compliance of all the necessary formalities for selection of the writ petitioner by the PESB the concerned Ministry did not take any steps, is false. (4) The letter by the CVC to the CBI did not mention any timeline regarding the submission of vigilance clearance in respect of the writ petitioner including completion of enquiry by CBI and the incumbent Chairman cum Managing Director of ECL was superannuating on May 31, 2015. ECL was declared a sick company and was referred to BIFR a few years back and came out of purview of BIFR by the end of financial year 2014-15 only. In order to carry on the affairs of the company and to prevent its performance from going down again, it was essential to have a Chairman cum Managing Director at the earliest. Finding no other alternative, a proposal was moved to obtain approval of the ACC through DoPT to scrap the existing panel recommended by PESB and initiate a fresh selection process. Finding no other alternative, a proposal was moved to obtain approval of the ACC through DoPT to scrap the existing panel recommended by PESB and initiate a fresh selection process. The said proposal was approved by the ACC as intimated by DoPT vide their letter dated August 3, 2015. (5) CVC clearance with respect to the writ petitioner was awaited since January 15, 2014 when the initial letter to grant clearance with respect to extension of tenure as Director (Technical) of ECL was sent to CVC by the vigilance section of Union of India. (6) Union of India, through its vigilance section, was regularly trying to communicate with CVC seeking their clearance with respect to the writ petitioner, initially for extension of the post of Director (Technical) and post recommendation of his name for Chairman cum Managing Director, ECL clearance was sought for with respect to both. (7) By a letter dated November 18, 2014, after receipt of the recommendation of the name of the petitioner for the post of Chairman cum Managing Director, the CVC was requested to provide its clearance as required for extension of the post of Director (Technical) as well as for processing the case for appointment to the post of Chairman cum Managing Director, ECL. (8) At the time of seeking clearance for the post of Chairman cum Managing Director, the clearance from CVC was already awaited for more than 10 months. (9) By two letters dated December 2, 2014 and January 1, 2015, Union of India, through its vigilance section, requested the CVC to expedite the matter and to convey its decision about vigilance clearance with respect to the writ petitioner. (10) It was put forth by the writ petitioner that more than two months have passed since his case was referred to CBI/CVC and the same attracts provisions of deemed clearance as contained in the memorandum dated October 22nd, 2014. There is no such deemed clearance as contained in the memorandum. The said memorandum dated October 22nd, 2014 lays down guidelines issued by ACC for processing proposals for appointment to Board Level posts in CPSEs. It was further submitted that a guideline issued by a different authority which is ACC in the instant case, cannot substitute a clearance required from another authority viz. CVC. In fact, no person can claim any clearance from a statutory authority as a matter of right. It was further submitted that a guideline issued by a different authority which is ACC in the instant case, cannot substitute a clearance required from another authority viz. CVC. In fact, no person can claim any clearance from a statutory authority as a matter of right. It has been stipulated in the said guideline in clause 4 (b)(i) that in case vigilance clearance is not denied by CVC within 2 months period stipulated above (which would include consultation with CBI/CBI clearance, reference to the CVO of the Ministry for any report, clarification etc.), the Ministries shall proceed with the appointment process without waiting any further. The use of the word ‘process’ after appointment itself clarifies that the administrative authority (i.e. the ministry concerned) has to submit its opinion/recommendation vis-à-vis the appointment to ACC, which is the ultimate authority to take decision in this regard. (11) ECL was declared a sick company and referred to the Board for Industrial and Financial Reconstruction (hereinafter referred to as ‘‘BIFR’’) a few years back. It came out of the purview of BIFR by the end of the financial year 2014-15. In order to carry on the affairs of the company and to prevent its performance from going down again, it was essential to have a regular Chairman cum Managing Director at the earliest. Therefore, it was proposed that instead of waiting indefinitely to know the outcome of the PE by the CBI, it would be appropriate to scrap the panel and initiate a fresh selection process. A proposal was accordingly forwarded to DoPT to obtain the approval of the ACC. ACC approved the proposal and PESB was requested to initiate a selection process. 8. The learned Additional Solicitor General, while relying on and referring to the said affidavit further submitted that the memorandum/circular of ACC dated 22nd October, 2014 does not apply since it was not there when the selection process was initiated and therefore was not followed by the concerned Ministry and that, in any case, the said memorandum /circular was not applicable. Once the panel is scrapped by the ACC, the writ petitioner can no longer be considered again unless this Court so directs and the ACC cannot effect reversal of scrapping of the panel by itself. Once the panel is scrapped by the ACC, the writ petitioner can no longer be considered again unless this Court so directs and the ACC cannot effect reversal of scrapping of the panel by itself. He further submitted that an administrative regulation has no statutory force and does not confer any legal right and cannot be enforced in a court of law. He also submitted that no vested right is created by empanelment. The panel can be scrapped for any valid reason. 9. The learned Additional Solicitor General relied on the following judgments of the Supreme Court in support of his contentions :- 1. Syndicate Bank Vs. Ramachandran Pillai & Ors. reported in (2011) 15 SCC 398. 2. Chief Commercial Manager, South Central Railway, Secunderabad and Others v G. Ratnam reported in (2007) 8 SCC 212 . 3. Mukut Bihari & Anr. Vs. State of Rajasthan reported in (2012) 11 SCC 642 . 4. Vijoy Kumar Pandey Vs. Arvind Kumar Rai & Ors. reported in (2013) 11 SCC 611 . 5. State of Orissa & Anr. Vs. Rajkishore Nanda & Ors. reported in AIR 2010 SC 2100 = (2010) 6 SCC 777 . 6. Rakhi Ray & Ors. Vs. High Court of Delhi & Ors. reported in (2010) 2 SCC 637 . 7. Union of India & Ors. Vs. N.P. Dhamania & Ors. reported in 1995 Supp (1) SCC 1. 8. Dr. H. Mukherjee Vs. Union of India & Ors. reported in 1994 Supp (1) SCC 251. 10. The learned senior counsel appearing on behalf of Coal India Limited adopted the submissions advanced by the learned Additional Solicitor General of India. He also submitted that the post-in-question is lying vacant since 1st June, 2015 due to superannuation of the last incumbent in office on 31st May, 2015. As such, there is an imperative necessity for the post to be filled up without any further delay. 11. He also submitted that the post-in-question is lying vacant since 1st June, 2015 due to superannuation of the last incumbent in office on 31st May, 2015. As such, there is an imperative necessity for the post to be filled up without any further delay. 11. After considering the respective contentions of the parties, it appears that the moot question which falls for consideration in the facts and circumstances of the instant case is whether the recommendation of scrapping of the panel in question comprising of the name of the selected candidate, i.e., the writ petitioner, by the concerned Ministry on 29th May, 2015, can be construed to be illegal and unconstitutional because the concerned Ministry did not follow the laid down procedure as contained in the compilation of guidelines dated 11th June, 2014, read with the Office Memorandum of the ACC dated 22nd October, 2014. 12. In order to find an answer to this issue it may not be out of context to refer to the compilation of guidelines dated 11th June, 2014, as well as the Office Memorandum dated 22nd October, 2014. However, even before that, two relevant dates have to be kept in mind. The first date is when the panel in question was recommended by the PESB, i.e., 28th October, 2014. The other date is 3rd August, 2015, when the panel was scrapped on the recommendation made by the concerned Ministry, as contained in its letter dated 29th May, 2015. 13. From the above two dates it will be clearly apparent that when PESB recommended the panel on 28th October, 2014, the compilation of guidelines dated 11th June, 2014 and the Office Memorandum dated 22nd October, 2014 for processing proposals for appointment to Board Level posts in Public Sector Enterprises, issued by the Secretariat of the ACC, were already in force. 14. The compilation of existing guidelines was issued on 11th June, 2014 by the Secretariat of the Appointment Committee of the Cabinet, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) Government of India, which included a D.O.No. 29(3) EO/2008(ACC) dated 27th May 2008 issued by the Cabinet Secretary wherein it has been clearly stated that the panel of names recommended by PESB is valid for a period of one year and needs to be revalidated before submission to ACC. Although the selection process was initiated on the basis of an advertisement dated 29th May, 2014 for the post of Chairman-cum-Managing Director of ECL, the recommendation for appointment of the writ petitioner to the post in question was made on 28th October, 2014. As such, the panel was supposed to be valid at least till 27th October, 2015. The panel was scrapped on 3rd August 2015 by the ACC on the recommendation made by the concerned Ministry, as contained in its letter dated 29th May, 2015. The said letter dated 29th May 2015, which has been set out hereinbefore, clearly reveals that the reason for making the recommendation for scrapping of the panel containing the name of the writ petitioner was that because there were no timelines indicated either by the CVC or by the CBI with regard to enquiry being made by the said two authorities in the matter of irregularities in procurement of 240 & 190 MT dumpers and 20 cubic metre shovels. As such, the concerned Ministry was of the view that it was not worthwhile to pursue the proposal of the writ petitioner’s appointment any further. On this ground alone it was decided by the concerned Ministry to recommend scrapping of the panel so that the PESB could initiate fresh selection at the earliest. 15. It is necessary at this stage to carefully consider the guidelines prescribed by the ACC which are clearly applicable in the instant case. A bare perusal of Office Memorandum containing the guidelines issued on 22nd October, 2014 by the Secretariat of the ACC, brings into light the fact that it was observed that the timelines prescribed for processing the proposals for appointments to Board level posts in CPSEs were not being adhered to. The resultant delay in filing up the Board level vacancies had been a matter of serious concern for the Government. In order to address this issue effectively, a rigid timeline was set out not only for information but also for strict compliance (emphasis supplied). The timelines as contained in the guidelines issued on 22nd October, 2014 are setout hereinbelow : PESB will initiate the process for filling up of Board level vacancies at least one year prior to the date on which the vacancy arises. The timelines as contained in the guidelines issued on 22nd October, 2014 are setout hereinbelow : PESB will initiate the process for filling up of Board level vacancies at least one year prior to the date on which the vacancy arises. (The Ministry concerned shall be responsible to intimate all anticipated vacancies to the PESB well in time for this process to commence.) PESB will complete the selection process and send its recommendations to the Ministry at least 6 months prior to the date of vacancy. 6 months prior to scheduled expiry of tenure PESB ↓ Initiate selection process 1 year prior to date of vacancy; send recommendations to Ministry 6 months before date of vacancy Ministry concerned will forward the PESB recommendation with vigilance profile of the selected individual to CVC within 10 days from the receipt of PESB recommendation. 10 days MINISTRY ↓ Forward vigilance profile to CVC CVC will complete the vigilance clearance process within two months from the date of receipt of the vigilance profile of the selected candidate from the Ministry and send it to the Ministry. The period of two months will include consultation with CBI/CBI clearance, reference to the CVO of the Ministry for any report, clarifications, etc. 60 days CVC ↓ Vigilance clearance or denial including consultation with CBI The Ministry concerned will, with the approval of the Minister, forward the proposal to ACC Secretariat (E.O.) within the next 10 days. 10 days MINISTRY ↓ will forward with Minister’s approval The ACC will thereafter take a decision on the proposal within six weeks of the receipt by the ACC Secretariat 6 Weeks ACC Decision 16. The timelines, as reproduced hereinbefore, reveal that the concerned Ministry is required to forward the PESB recommendation with the vigilance profile of the selected individual to CVC within ten days from the receipt of the recommendation. CVC is required to complete the vigilance clearance process within two months from the date of receipt of the vigilance profile of the selected candidate from the Ministry concerned and send it back to the said Ministry. This period of two months will include consultation with CBI/CBI clearance, reference to the CVO of the Ministry for any report, clarifications, etc. The Ministry concerned, thereafter, is supposed to forward the proposal to the ACC Secretariat (E.O.) within the next ten days upon obtaining approval from the Minister. This period of two months will include consultation with CBI/CBI clearance, reference to the CVO of the Ministry for any report, clarifications, etc. The Ministry concerned, thereafter, is supposed to forward the proposal to the ACC Secretariat (E.O.) within the next ten days upon obtaining approval from the Minister. The ACC is thereafter required to take a decision on the proposal within six weeks of its receipt by its Secretariat. The respondent No.2, being the Establishment Officer, ACC, is required to monitor compliance of the above timelines and bring any abnormal or unexpected delay to the notice of the Cabinet Secretariat. 17. Nothing is stated in the affidavit affirmed, inter alia, on behalf of the respondent No. 2, being the Establishment Officer, ACC, wherefrom it will appear that the said Establishment Officer, ACC, either monitored compliance of the prescribed timelines or brought any abnormal or unexpected delay in processing of the matter to the notice of the Cabinet Secretariat at any stage. From the said affidavit it also does not appear that the concerned Ministry – in order to facilitate monitoring of the proposal at every stage – uploaded or updated the data filled in AVMS on real time basis so that effective monitoring could be done. The most significant aspect in the instant case is complete non-adherence to clause 4 of the guidelines dated 22nd October, 2014. Clause 4 (a) is quite clear and specific. It states, inter alia, that instructions contained in DoPT’s Office Memorandum dated 18th October, 2013, regarding handling of pseudonymous/anonymous complaints should be strictly adhered to at all levels. Further, as per CVC’s instructions issued vide office order dated 31st August, 2004, no cognizance should be taken of any complaint received within six months prior to the initiation of the selection process. For this purpose, the date of interview held by the PESB would be the crucial date; six months prior to which no cognizance would be taken of complaints received against the selected candidates. Such complaints should however be dealt separately and necessary action be taken in the event of any adverse conclusion even after the appointment is made (emphasis supplied). For this purpose, the date of interview held by the PESB would be the crucial date; six months prior to which no cognizance would be taken of complaints received against the selected candidates. Such complaints should however be dealt separately and necessary action be taken in the event of any adverse conclusion even after the appointment is made (emphasis supplied). Clause 4 (b) which is squarely applicable in the present case clearly states that in case vigilance clearance is not denied by CVC within the two months period stipulated in clause 4(a) (which would include consultation with CBI/CBI clearance, reference to the CVO of the Ministry for any report, clarifications, etc.), the Ministry concerned shall proceed with the appointment process, without waiting any further (emphasis supplied). In the instant case, the concerned Ministry has simply ignored the specific instructions/guidelines and has not even adverted to the applicable guidelines while issuing the letter dated 29th May, 2015. 18. The submission advanced by the learned Additional Solicitor General that the guidelines were not in force when the selection process was initiated, cannot hold much water since it has been very specifically stated by the respondent nos. 1, 2, 3 and 4 in paragraphs 9 & 10 of their affidavit-in-opposition, inter alia, to the effect that the memorandum containing the guidelines dated 22nd October, 2014 was followed in its true spirit. As such, the submission made by the learned Additional Solicitor General is contrary to his clients’ pleadings. In this context, one may take notice of the judgment of the Hon’ble Supreme Court rendered in Chimajirao’s case (supra), wherein it has been held, inter alia, to the effect that the approach of the High Court was not proper. The High Court (in the facts of that case) had committed an error in setting aside the finding given by the trial Court specially in view of the specific plea taken in the written statement. The Supreme Court went on to observe that the High Court felt that since it was a legal matter, it could be adjudicated notwithstanding a different stand in its pleading, which approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. The Supreme Court went on to observe that the High Court felt that since it was a legal matter, it could be adjudicated notwithstanding a different stand in its pleading, which approach was not proper. Once a stand in fact is taken, that fact could not be controverted by any legal proposition. That parties cannot take a stand different from their pleadings – which form the foundation of their case – is quite well settled and will also be evident from the observations made by the Supreme Court in the case of Vinod Kumar Arora vs. Surjit Kaur reported in (1987) 3 SCC 711 (paragraph 11). It has been further observed, inter alia, that it is not open to the parties to give up their case set out in the pleadings and propound a new and different case. 19. In the facts of the instant case, the recommendation of scrapping of the panel made by the concerned Ministry on 29th May, 2015 – without following the prescribed guidelines as contained in the Office Memorandum of the Secretariat of the ACC dated 22nd October, 2014 – therefore, was unconstitutional, being wholly illegal and arbitrary. Even if the guidelines contained in the Office Memorandum dated 22nd October, 2014 was not based on any statutory provision and was merely an administrative instruction issued by the Secretariat of the ACC in exercise of its executive power, such guidelines or administrative instructions will continue to have the force of statute in the absence of any statutory rules regulating the recruitment process in question. In this context one may take notice of the judgment rendered by the Supreme Court in the case of Dr. Amarjit Singh Ahluwalia (supra) (paragraph 8). It was the bounden duty of the concerned Ministry to follow the prescribed guidelines as issued by the ACC from time to time unless those guidelines were contrary to any specific statutory rules in force. Amarjit Singh Ahluwalia (supra) (paragraph 8). It was the bounden duty of the concerned Ministry to follow the prescribed guidelines as issued by the ACC from time to time unless those guidelines were contrary to any specific statutory rules in force. Having not adhered to the prescribed guidelines while issuing the letter dated 29th May, 2015, the action of the concerned Ministry falls susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution of India and basic to the rule of law, the system which governs us (see Kumari Shrilekha Vidyarthi v State of UP reported in (1991) 1 SCC 212 ), which has been referred to and relied upon by the Supreme Court in its latter decision rendered in the case of A.P. Aggarwal (supra) (paragraph 12). Since the recommendation for scrapping of the panel is unconstitutional, being illegal and arbitrary, the consequential action of the ACC granting approval to such recommendation for scrapping of the panel cannot have any effect, the recommendation by itself being void ab initio. In this context, one may take notice of the observations made by the Supreme Court in paragraph 21 of A.K. Kraipak’s case (supra). 20. Undoubtedly, the petitioner had a legitimate expectation of getting a fair consideration in the selection process for appointment as Chairman-cum-Managing Director, ECL. The recommendation for scrapping of the panel made by the concerned Ministry on 29th May, 2015, has resulted in denial of such legitimate expectation. In the case of Food Corporation of India vs M/s Kamdhenu Cattle Feed Industries (supra), it has been held, inter alia, as follows : “The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant’s perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” 21. The facts of the case, as narrated earlier, palpably demonstrate that the decision of the concerned Ministry to scrap the panel was so unreasonable that no reasonable authority could have come to such conclusion. The Court, in such circumstances, has power to interfere. In this context, one may take notice of the well-known principles of law laid down in Wednesbury Corporation’s case (supra). Even if it is held that the concerned Ministry had discretion to recommend scrapping of the panel, such discretion was exercised palpably wrongly based on irrelevant considerations upon ignoring relevant considerations and materials. This is one such case which is a classic example of where the High Court ought to exercise its extraordinary discretionary jurisdiction under Article 226 of the Constitution of India and issue an appropriate writ of mandamus or a writ in the nature of mandamus in order to do justice. This is one such case which is a classic example of where the High Court ought to exercise its extraordinary discretionary jurisdiction under Article 226 of the Constitution of India and issue an appropriate writ of mandamus or a writ in the nature of mandamus in order to do justice. The observations made by the Supreme Court in Comptroller and Auditor General’s case (supra) which are of significance in the facts of the instant case are set out hereinbelow : “There is no doubt that the High Courts of India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion of the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order to give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.” 22. By recommending scrapping of the panel on 29th May, 2015, (i.e., much before its validity expired), the concerned Ministry denuded the right of the writ petitioner from even being considered for appointment by the ACC. Even if he did not finally secure his appointment as the Chairman-cum-Managing Director of ECL, at least he would have got a fair consideration by the ACC which was denied due to the illegal and arbitrary action of the concerned Ministry. Even if he did not finally secure his appointment as the Chairman-cum-Managing Director of ECL, at least he would have got a fair consideration by the ACC which was denied due to the illegal and arbitrary action of the concerned Ministry. In the facts of the instant case, therefore, the ratio of the judgment of the Supreme Court in the case of Director, SCTI for Medical Science & Technology (supra), while upholding the decision of the High Court and dismissing the appeal, is clearly applicable. 23. The arbitrariness demonstrated by the concerned Ministry becomes even more palpable and evident if one takes note of two dates, both of which are well before the expiry of the one year validity period of the recommended panel. The first date is 4th/5th August, 2015, when the 240 and 190 MT dumpers and 20 cubic metre electric rope shovels issues were put to rest by the CVC – about 2 months and 24 days before expiry of the validity period of the panel recommended by the PESB. The other date is 16th September, 2015, when the CVC addressed a letter to the concerned Ministry stating that there was nothing adverse in its record in respect of the writ petitioner. This was the final clearance of the writ petitioner for being considered for appointment as the Chairman cum Managing Director, ECL. This clearance was received one month 12 days before expiry of the panel of the PESB recommending the writ petitioner as the selected candidate. 24. This was the final clearance of the writ petitioner for being considered for appointment as the Chairman cum Managing Director, ECL. This clearance was received one month 12 days before expiry of the panel of the PESB recommending the writ petitioner as the selected candidate. 24. What is of even more significance to note at this stage is that the competent authority of the concerned Ministry – although alive to the fact that the post of Chairman cum Managing Director of ECL was to fall vacant on 1st June, 2015, due to superannuation of Shri Rakesh Sinha, Chairman cum Managing Director of ECL on 31st May 2015, even when recommendation for the writ petitioner’s appointment for the post in question was made by the PESB as far back on 28th October, 2014 – the concerned Ministry chose to wait till 29th May, 2015 (i.e. 48 hours before the incumbent in office of the Chairman cum Managing Director of ECL was scheduled to superannuate) for the purpose of making a recommendation for scrapping of the panel and that too, by stating to the effect that since no timelines have been indicated by the CVC or CBI, the process of submission of the file after conclusion of the PE by the CBI was likely to be delayed indefinitely. As such, the concerned Ministry was of the view that it was “not worthwhile” to pursue the proposal of the writ petitioner’s appointment any further, even after waiting for seven months since the date of making recommendation, i.e., 28th October, 2014. Further, it is noticed that although it took seven months from the date when recommendation was made by the PESB, i.e., 28th October, 2014 till 29th May, 2015 in order to finally come to a conclusion that it was “not worthwhile” to wait further and decided to go ahead by recommending scrapping of the panel, the concerned Ministry did not mention – even for once – in its letter dated 29th May, 2015, how it would be beneficial to the interest of ECL to start the process afresh, especially when the incumbent in office of the Chairman-cum-Managing director of ECL was scheduled to retire within forty eight hours – other than merely stating that it would be “not worthwhile”. Significantly, in its letter dated 29th May, 2015, the concerned Ministry has referred to the CVC’s letter dated 4th February, 2015 informing the concerned Ministry of the decision taken by the Commission to ask the CBI to register a Preliminary Enquiry in the matter of irregularities in procurement of 240 & 190 MT dumpers and 20 cubic metres shovels and for submission of a report after thorough investigation. If the competent authority of the concerned Ministry had full knowledge of the CVC’s letter dated 4th February, 2015, why did the concerned Ministry wait from that date till exactly forty eight hours before the incumbent in office was scheduled to retire (a period of almost four months), in order to suddenly come to a conclusion that it was “not worthwhile” to wait further – does not surface from the letter dated 29th May, 2015. 25. There can be no better demonstration of sheer arbitrariness and an action which is not bona fide, to say the least. The concerned Ministry not only ignored the prescribed timelines as clearly stated in the applicable guidelines, its very action of making recommendation for scrapping of the panel only 48 hours before the superannuation of the incumbent in office – an inescapable fact, which was to the knowledge of the concerned Ministry even when the writ petitioner was selected and his name was recommended for appointment as far back on 28th October, 2014 – is a clear pointer to the manner in which the concerned Ministry has acted in the facts of the instant case. The facts are so glaring and palpable that they do not require any further elucidation. The concerned Ministry’s action cannot withstand scrutiny in judicial review and fails all known tests laid down by the Courts till now. Such type of administrative action is wholly perverse and contrary to the established principles of law which would allow it to pass scrutiny in judicial review. 26. Now, to deal with the judgments referred to and relied upon by the learned Additional Solicitor General. In Syndicate Bank’s case (supra), the Supreme Court held in paragraph 6 as follows :- “If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some statute or the Constitution. In Syndicate Bank’s case (supra), the Supreme Court held in paragraph 6 as follows :- “If any executive instructions are to have the force of statutory rules, it must be shown that they were issued either under the authority conferred on the Central Government or a State Government or other authority by some statute or the Constitution. Guidelines or executive instructions which are not statutory in character, are not “laws”, and compliance therewith cannot be enforced through courts. Even if there has been any violation or breach of such non-statutory guidelines, it will not confer any right on any member of the public, to seek a direction in a court of law, for compliance with such guidelines. An order validly made in accordance with a statute (as in this case the Public Premises Act), cannot be interfered with, even if there has been any transgression of any guidelines, except where it is arbitrary or mala fide or in violation of any statutory provision. These are well-settled principles (see Union of India v. S.L. Abbas [ (1993) 4 SCC 357 : 1994 SCC (L&S) 230 : (1993) 25 ATC 844] , South Central Railway v. G. Ratnam [ (2007) 8 SCC 212 : (2007) 2 SCC (L&S) 851] and State of U.P. v. Gobardhan Lal [ (2004) 11 SCC 402 : 2005 SCC (L&S) 55] ).” 27. There cannot be any dispute to the proposition of law laid down by the Supreme Court. It is clear from the plain language used by the Supreme Court that if there is any arbitrariness or mala fide action which results in transgression of any guidelines, the Court can interfere. In the instant case it is clearly evident that the Office Memorandum dated 22nd October, 2014, containing the applicable guidelines, has not been adhered to by the concerned Ministry most arbitrarily, without assigning any reason, which will be clear from a plain reading of the letter dated 29th May, 2015. The question in the facts of the instant case is not whether a mandatory direction can be issued against the concerned respondent authorities for enforcement of the guidelines as applicable, since in the affidavit-in-opposition it has been clearly admitted that the guidelines have been followed. The question is, whether the respondent authorities can make out a case contrary to its own pleadings while referring to this judgment. The answer is surely in the negative. 28. The question is, whether the respondent authorities can make out a case contrary to its own pleadings while referring to this judgment. The answer is surely in the negative. 28. In Chief Commercial Manager, South Central Railway’s case (supra), the same principle of law as stated in Syndicate Bank’s case (supra) with regard to enforceability of administrative / executive instructions through issuance of writ against the Government under Article 226 of the Constitution of India, has been stated in a fact situation which is distinct – relating to a departmental proceeding – that is not at all applicable in the instant case where the selection or appointment process has been dealt with by the concerned Ministry in an arbitrary manner without even referring to or following the applicable guidelines. In Mukut Bihari’s case (supra) the same principle of law, as laid down by the Supreme Court in Chief Commercial Manager, South Central Railway’s case (supra), has been restated. 29. On the other hand, as discussed hereinbefore, the writ petitioner has referred to Dr. Amarjit Singh Ahluwalia’s case (supra) which has been rendered by a three Judge Bench. It has been, inter alia, held therein to the effect that even an administrative instruction, not having the force of law, cannot be departed from, by the State at its sweet will, without rational justification and such departure would be clearly violative of Articles 14 and 16 of the Constitution of India. The sweep of Articles 14 and 16 is wide and pervasive. These two Articles embody the principle of rationality and they are intended to strike against arbitrary and discriminatory action taken by the State. Where the State departs from a principle which finds its place in administrative instructions and such departure is without reason or arbitrary, it would directly infringe guarantee of equality under Articles 14 and 16 of the Constitution of India. As stated hereinbefore, the facts of the instant case clearly demonstrate such arbitrariness on the part of the concerned Ministry which has departed from the timelines, as prescribed in the applicable guidelines, without giving even an iota of reason. In this context, it may be worthwhile to quote paragraphs 35 and 36 of Kumari Shrilekha Vidyarthi’s case (supra) which has been referred to and relied upon in A.P. Aggarwal’s case (supra). “35. In this context, it may be worthwhile to quote paragraphs 35 and 36 of Kumari Shrilekha Vidyarthi’s case (supra) which has been referred to and relied upon in A.P. Aggarwal’s case (supra). “35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the mind. 36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.” 30. Further, in A.P. Aggarwal’s case (supra), it has been held to the effect that even if an office memorandum is not mandatory and is discretionary in nature, such discretion is coupled with the duty to shun the arbitrariness in its exercise. 31. This is what men in power must remember, always.” 30. Further, in A.P. Aggarwal’s case (supra), it has been held to the effect that even if an office memorandum is not mandatory and is discretionary in nature, such discretion is coupled with the duty to shun the arbitrariness in its exercise. 31. There is no dispute to the proposition of law laid down by the Supreme Court in the three judgments referred to by the learned Additional Solicitor General, namely, Vijoy Kumar Pandey (supra), State of Orissa and Another (supra) and Rakhi Ray and Others (supra) wherein it has been held that no vested right is created by inclusion of the name of a candidate in any panel which can, for good and valid reasons, be scrapped by the competent authority. A person whose name appears in the select list does not acquire any indefeasible right of appointment. The facts of the instant case, however, reveal an action by the concerned Ministry which is palpably unconstitutional, being illegal and arbitrary for reasons stated earlier. As such, the ratio of the three judgments is not at all applicable in the facts of the instant case. 32. The other two judgments referred to by the learned Additional Solicitor General are Union of India and Others vs N.P. Dhamania (supra) and Dr. H. Mukherjee vs. Union of India and Others (supra). In Union of India and Others vs. N.P. Dhamania (supra), the Supreme Court has held, inter alia, that recommendations of the Departmental Promotion Committee (DPC) are advisory in nature and not binding on the appointing authority. It is open to the appointing authority to differ from the recommendation in public interest. However, in the event the ACC differs from the recommendations of the DPC, it must give reasons for so differing, in order to ward off any attack of arbitrariness. Therefore, the Supreme Court makes it clear that in a case where ACC differs with the recommendation of a like nature without giving reasons, such act could be challenged under Article 226 of the Constitution of India. In Dr. Therefore, the Supreme Court makes it clear that in a case where ACC differs with the recommendation of a like nature without giving reasons, such act could be challenged under Article 226 of the Constitution of India. In Dr. H. Mukherjee (supra), the Supreme Court was considering a decision rendered by the Principal Bench of the Central Administrative Tribunal, whereby the Tribunal directed the ACC to reconsider the suitability of the respondent for appointment to the post of Chief Controller of Explosives, without taking into consideration the adverse remarks made against him and the outcome of the CBI’s inquiry in which he was exonerated and in the light of the observations contained in its judgment. In such a factual backdrop, the Supreme Court held to the effect that it was well settled that the function of the Public Service Commission being advisory, the Government may for valid reasons to be recorded on the file, disapprove of the advice or recommendation tendered by the Commission, which decision can, if at all, be tested on the limited ground of it being thoroughly arbitrary, mala fide or capricious. The judgment cannot be of any assistance to the learned Additional Solicitor General not only because it has been rendered in a completely different fact situation, it has been clearly stated therein that a decision by the Government, on the advice or recommendation tendered by the Public Service Commission, can be tested on the ground of it being thoroughly arbitrary, mala fide or capricious. As such, the principles of law laid down is more applicable in the writ petitioner’s case. 33. Having held that since the recommendation for scrapping of the panel is unconstitutional, being illegal and arbitrary, the consequential action of the ACC granting approval to such recommendation cannot have any effect – the recommendation by itself being void ab initio – this Court directs the Secretary, Ministry of Coal, to treat the panel valid as of date and take necessary steps to ensure that the proposal for appointment of the writ petitioner as the Chairman-cum-Managing Director of ECL, reaches the Secretariat of the ACC alongwith a copy of this judgment and order, within a period of a fortnight from date of communication of a photostat certified copy of this judgment and order. Once the proposal reaches the Secretariat of the ACC, the respondent no.2, being the Establishment Officer of the ACC, shall ensure that the said proposal alongwith a copy of this judgment and order is placed before the ACC for its consideration not later than a fortnight therefrom to enable the ACC to take a final decision within the shortest possible time based on the observations made in this judgment and order. Considering the singular feature of this case, in the event the writ petitioner is denied appointment by the ACC, cogent reasons have to be supplied to the writ petitioner within a fortnight from the date of such denial. The timelines, as directed above, shall be strictly adhered to by the concerned respondents without any deviation therefrom under any circumstances. 34. The writ petition is accordingly disposed of. 35. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.