Madhya Pradesh High Court
The Union Of India & Ors. vs Smt.Kamla Bai & Ors on 12 September, 2019
Author: Sujoy Paul
Bench: Sujoy Paul
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. Writ Petition(s) No.3101/2005
Parties Name Union of India and others
Vs.
Smt. Kamla Bai and another
Date of Order 12/09/2019
Bench Constituted Justice Sujoy Paul &
Justice B.K. Shrivastava
Order passed by Justice Sujoy Paul
Whether approved for reporting
Name of counsel for parties For Petitioner : None present.
For Respondents: Shri R.B. Yadav.
Law laid down -
Significant paragraph numbers -
(ORDER)
12.09.2019
As per: Sujoy Paul, J.
The petitioners/Department is aggrieved by order of the Tribunal passed in OA NO. 868/2004 dated 22.12.2004, Annexure P-1 whereby the original application (OA) filed by the applicants was allowed and the respondents were directed to consider the case of respondent No. 2 herein according to the old policy of compassionate appointment dated 30.6.1987.
2. The brief facts before the Tribunal were that the father of the respondent No. 2 herein was working with respondent Department namely Intelligence Bureau (IB). Respondent No's. 2 father Shri Roop Singh died in harness on 26.01.1997 leaving behind the widow, 2 sons and one daughter.
3. Respondent No. 2 preferred an application on 24.02.1997 for grant of compassionate appointment followed by another application dated 12.05.1997. Since respondents did not consider his claim, he alongwith his mother filed OA No. 868/2004.
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4. The Department entered appearance before the Tribunal and urged that as per the policy in vogue the applicant No. 2 therein cannot be considered. The applicant No. 2 and his father were the prime accused in a murder case registered against them for committing offence under Sections 307, 302 and 34 of IPC and under Sections 25 and 27 of Arms Act. In addition, yet another criminal case against the father and respondent No. 2 herein was lodged for committing the offences under Sections 324, 323, 294, 325, 506 (B) and 34 of IPC. It is the stand of Department that applicant No. 2 was not found suitable for appointment in a sensitive Department like Intelligence Bureau and therefore, his claim was rejected on 17.12.1997. The Tribunal allowed the O.A. by holding that the employee died on 26.01.1997. The policy of 30.06.87 will be applicable. Mere pendency of criminal trial is not sufficient to debar the person from his claim. The impugned order therein dated 17.12.97 is not a speaking order. For these cumulative reasons, the impugned order aforesaid was quashed and Department was directed to consider the case of applicant No. 2 therein in light of old policy dated 30.06.1987.
5. The petitioners have challenged the order of Tribunal by contending that the Tribunal failed to see that respondent was in volved in criminal activities. He was not suitable to be appointed in an organization like Intelligence Bureau. The OA itself was barred by time.
6. The prayer is opposed by Shri Yadav, learned counsel for the respondents. He placed reliance on the judgement passed in Sessions Case No. 216/89 decided on 30.06.1991 whereby present respondents and deceased employee were acquitted by the Court below. In addition Shri Yadav placed reliance on para No. 5.3 of WP wherein the Department averred that so far second criminal case is concerned, the lower Court on 18.08.1993 decided it on the basis of a mutual agreement. Accordingly, he submits that no fault can be found in the order of the Tribunal.
7. We have heard him at length.
8. In view of two Full Bench judgments of this Court reported in Bank of Maharashtra and another Vs. Manoj Kumar Deharia and another 2010 (3)
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MPLJ (FB)213 and State of M.P. and others Vs. Laxman Prasad Raikwar 2018 (4) MPLJ 657, the policy which was applicable at the time of consideration of the case, will be applicable and not the policy which was in vogue at the time of death of employee or the time when an application was submitted.
9. No doubt, this question as to which policy will be applicable, is recently referred for consideration to a Larger Bench by Hon. Supreme Court in State Bank of India and others Vs. Sheo Shankar Tiwari 2019 (5) SCC 600 .
10. However, the matter may be viewed from another angle. The main attack to the order of Tribunal by the Department is that Tribunal has failed to consider that respondent No. 2 was not 'suitable' for appointment in a sensitive organization like Intelligence Bureau. The Tribunal has not considered this aspect at all. This is trite that in service jurisprudence, "eligibility" and "suitability" are two different facets. Merely, because a person is 'eligible' to be considered, does not mean that he has any indefeasible right to be appointed. It is prerogative of the employer to examine the 'suitability' of an employee.
11. This Court in WP No. 21231/2017 (Madhur Vs. State of M.P.) considering the recent Full Bench Judgement of this Court passed in WP No. 5865/2016 (Ashutosh Pawar Vs. State of MP) 2018 (2) MPLJ opined as under:-
"The "suitability" cannot be confused with eligibility". In the 'Major Law Laxicon' by P. Ramanatha Iyer about the word following view is expressed-"the word 'suitable' does not require a definition because any man of experience would know who is suitable. However, each case has to be viewed in the context in which the word "suitability" or "suitable"
is used, the object of the enactment and the purpose sought to be achieved."A constitution Bench of Supreme Court in State of J & K vs. Trilokinath Khosa (1974) 1 SCC 19 and another Bench in State of Orissa vs. N.N. Swami (1977) 2 SCC 508 opined that eligibility must not be confused with the suitability of the candidate for appointment. These judgments were considered by Calcutta High Court in 2013 SCC Online 22909 (All b. Ed. Degree Holders Welfare Association vs. State of West Bengal ). In (2009) 8 SCC 273
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(Mahesh Chandra Gupta vs. Union of India) it was again held that suitability of a recommendee and the consultation are not subject to judicial review but the issue of lack of eligibility or an effective consultation can be scrutinized.. The Supreme Court in (2014) 11 SCC 547 (High Court of Madras vs. R. Gandhi) while dealing with appointment on a constitutional post opined that 'eligibility' is an objective factor. When 'eligibility' is put in question, it could fall within the scope of judicial review. The aspect of 'suitability' stands excluded from the purview of judicial review. At the cost of repetition, the Apex Court opined that 'eligibility' is a matter of fact whereas 'suitability' is a matter of opinion. In this view of the matter, when Competent Authority has examined the suitability in the teeth of relevant enabling provision i.e. Rule 6 (3) of Rules of 1961, interference is totally unwarranted.
11. The scope of judicial review of a matter of this nature is limited. The decision making process is subject matter of judicial review and not the decision itself. A Full Bench of this Court in a recent judgment passed in WP. No.5865/16 (Ashutosh Pawar vs. High Court of M.P. & Another) considered a catena of judgments of Supreme Court and came to hold that High Court in exercise of power under Article 226 of the Constitution can only examine the decision making process and cannot step into the shoes of the Competent Authority in relation to a final decision.
12. This is trite law that administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-
judicial nature. The scope of judicial review of administrative orders is rather limited. The consideration is limited to the legality of decision-making process and not legality of the order per se. The test is to see whether there is any infirmity in the decision making process and not in the decision itself. Mere possibility of another view cannot be ground for interference. To characterize a decision of the administrator as ``irrational'' the Court has to hold, on material, that it is a decision ``so outrageous'' as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future. [See (2005) 5 SCC 181 (State of NCT vs. Sanjeev)]
13. The same view was taken by the Supreme Court in (2002) 3 SCC 496 (Haryana Financial Corporation & Anr. vs. Jagdamba Oil Mills & Anr.). In (2008) 7 SCC 580 (State of Meghalaya & Ors. vs. Mecken Singh N. Marak), it was laid down that when a statute gives discretion to the
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Administrator to take decision, scope of judicial review would remain limited. The scope of judicial review is limited to the deficiency in decision making process and not the decision of Administrator. [See (2006) 2 SCC 1 & 165 (Rameshwar Prasad vs. Union of India), (2004) 4 SCC 714 (State of U.P. vs. Johri Lal), (2004) 11 SCC 213 & 218 (Delhi Development Authority vs. UEE Electricals Engg. (P) Ltd., (2005) 10 SCC 84 & 95 (Damoh Sagar Panna Rural Regional Bank vs. Munna Lal Jain), (2005) 5 SCC 181 (State of NCT of Delhi vs. Sanjeev) and (2006) 8 SCC 200 (Jayrajbhai Jayantibhai Patel vs. Anilbhai Nathubhai Patel)]
14. In (2006) 8 SCC 590 (Muni Suvrat Swami Jain SMP Sangh vs. Arun Nathuram Gaikwad & Ors.), it was poignantly held that the High Court cannot impede the exercise of discretion by the statutory authority by issuance of a mandatory order."
12. A plain reading of the aforesaid paragraphs, make it clear that it is employer's prerogative to decide the question of 'suitability' of an employee. Even if the employee is exonerated from the criminal case on the basis of compromise or otherwise it is within the domain of the employer to decide the aspect of his suitability. We find substance in the petition that Tribunal has miserably failed to examine this material aspect regarding 'suitability' of respondent No. 2 for appointment in a sensitive Department.
13. In our considered opinion, the Department was justified in rejecting the claim of respondent No. 2 by order dated 17.12.1997 on the ground of suitability. Rejection order of the Department is inconsonance with the principles laid down in Ashutosh pawar and Madhur (supra).
14. Thus, in our opinion, the Tribunal has erred in passing the order dated 22.12.2004. The said order is set aside.
15. The petition is allowed.
(SUJOY PAUL) (B.K.SHRIVASTAVA )
JUDGE JUDGE
VD/
Digitally signed by
VARSHA DUBEY
Date: 2019.09.16 10:19:08
+05'30'