Delhi High Court
Dhanai Ram vs Union Of India & Others on 30 November, 1999
Equivalent citations: 2000IAD(DELHI)641
Author: N.G. Nandi
Bench: N.G. Nandi
ORDER N.G. Nandi, J.
1. In this petition under Article 226 of the Constitution of India, the petitioner has been praying for a direction to quash the panel of names recommend on 20.2.1998 by the alleged improperly constituted Interview Board of respondent No. 2 by an illegal and irregular procedure for securing panel of unsuitable candidates and also directing respondent No. 3 not to make any appointment on the basis of the mala fide recommendation of respondent No. 2 for the appointment of Director (Finance) in State Trading Corporation of India (hereinafter reffered to as STC) till a re-selection underproperty constituted interview Board is made, for securing names for the said appointment.
2. The case of the petitioner is that the petitioner joined the service of respondent No. 4 as Deputy Finance Manager grade-II; that on 12.1.1995, the petitioner was promoted to the post of Chief General Manager (Finance); that on 10.1.1996, the petitioner was assigned the duties of Director (Finance) under respondent No. 4 by order No. STC/CMD/06/95 dated 10.1.1996. that respondent No. 2 circulated vacancy of Director (Finance) under STC and invited applications; that the previous Director (Finance) Mr. G. Chaturvedi retired from his contract service on 11.1.1998; that respondent No. 2 on 27.1.1998 invited the petitioner for the 'interview' to be held on 20.2.1998; that on 20.2.1998, respondent No. 2 constituted an improper Selection Board, conducted 'Interview' for securing names on panel for the recommendations of appointment to A.C.C. for the post of Director (Finance) in STC; that respondent No. 2 improperly constituted the Selec-
tion Board of two members only as against four required, one of whom Sh. R.K. Sinha acted as Chairman and the other Sh. S.C. Wadhawan as a Member and adopted an illegal and irregular procedure, overthrowing past practices and as reliably understood, superseded the petitioner and secured the names on Panel of unsuitable candidates Sh. P.K. Gupta and Sh. R.S. P. Sinha from outside organisations under patronage and favouritism; that the assessment made by the Board has been made without any norms or standard violating the principles of proper, just and valid selection; that as per clause 3 of the said Resolution, Public Enterprises Selection Board (hereinafter referred to as 'PESB' ) shall consist of one part-time or full time Chairperson and three full time members; that the petitioner being the seniormost Chief General Manager (Finance) and professionally well-qualified and meritorious deserved to be selected and appointed to the post in question. It is the say of the petitioner that the Interview Board would also consist of a Chairperson and three members duly appointed by the Government, otherwise it would be an improperly constituted Board having no legal sanction, authority or jurisdiction to carry out such selection; that the remaining two members mala fide and with ulterior motive fixed the date of intervie on 20.2.1998; that when the date of interview was fixed in December 1997, the complete corum was available and at the most the interview could have been fixed in January 1998 when the Chairperson and the retiring person would also be available for the said interview but this was mala fide avoided; that the petitioner is from a Scheduled Caste Community and a candidate before the Interview Board, so it was encumbent upon the respondents to have nominated at least one of the members of the Board from Scheduled Caste as to avoid any discrimination to the Scheduled Caste candidate and caste bias against them; that keeping in view the merits of the petitioner, he alone was the most suitable candidate for selecting the names for the recommendations for the appointment of Director (Finance), in STC but the petitioner was intentionally superseded and an outsider selected.
3. The respondents No. 1 to 3 and 5, by their counter affidavit, contended that the recruitment action for selection to the post of Director (Finance) STC was initiated by respondent No. 2 in strict compliance and conformity with the rules, regulations, guide-lines and selection policy formulated by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel Training), (respondent No. 5) vide its resolution No. 27(21)-EO/06/CC dated 3rd March, 1987 (page 30 of the paper book). Accordingly, the relevant post was circulated and pursuant thereto, the applications were received from various sources, candidates short-listed for the interview were then interviewed by the duly constituted PESB-respondent No. 2 on 20.2.1998; that the said Board, objectively assessed each of the interviewees including the petitioner and recommended two persons in order of their merit for appointment to the post of Director (Finance) STC; that since the persons empanelled were found to be markedly superior to the petitioner on all parameters of selection, no right of the petitioner, much less any fundamental right can be said to have been violated in order to justify the present writ petition; that a and objective fair selection procedure had been adopted by the respondents to select the candidates for the post of Director (Finance) STC on the basis of qualities such as managerial ability, leadership, broad vision, track record, contribution made in his/her respective field and performance in the interview. In the given circumstances, merely the fact that the petitioner was not included in the panel of successful candidates by itself would neither justify quashing of the panel of names recommended on 20.2.1998 by respondent No. 2 nor justify any direction for re-selection; that the respondents have all along strictly followed and complied with the recruitment policy of the Government of India and have not made any deviation therefrom, hence for this reason also the present petition deserves to be dismissed.
It is further contended that the PSEB-respondent No. 2 is a professional body charged with the responsibility of making selection to the Board level positions in Public Sector Undertakings. It is merely an Advisory Body and its recommendations have no binding force. The selection policy contained in the Government of India Resolution dated 3.3.1987 does not prescribe reservation of post for any particular community, as claimed by the petitioner. The said resolution does not provide for a corum for a meeting of the Board. The guidelines dated 23.5.1997 issued by the Establishment Officer, with the approval of the Appointment Committee of the Cabinet (respondent No. 3) provide that in the absence of the Secretary of the concerned Administrative Ministry, the Additional Secretary should assist the Board during its scheduled meeting. However, an exception has been made in respect of Schedule 'A' post, where the Secretary of the concerend Ministry alone can asist the Board. This is because in respect of Schedule 'A' post, officer of the Grade of Additional Secretary from organized from organized services are invited for the interviews; that for the post of selection of the post of Functional Directors in Public Sector undertakings, it has been the established practice of the Board to associate the Chairman-cum-Managing Director of the concerned Undertaking with the Selection process; that the petitioner, as CGM (Finance) STC was entrusted with the responsibilities of looking after the work of Finance Division by the then Chairman of the STC and the same was not done in consultation with respondent No. 1. This was done by respondent No. 2 merely by way of a local interim arrangement pending filling up of the post of Director (Finance) on a regular basis; that pursuant to the decision of A.C.C. not to extend the tenure of Sh. Gopal Chaturvedi, the then Director (Finance) STC beyond his term of five years, respondent No. 2 initiated the recruitment action for the said post which was to fall vacant on 11.1.1998; that the post of Director (Finance) STC was accordingly circulated on 24.11.1997 as per the usual procedure of respondent No. 2 inviting nominations from various sources while respondent No. 1 approached respondent No. 2 for fresh selection of the post of Director (Finance) STC vide D.O. letter No. 1/6/97-FT(ST) dated 28.11.1997, which was received by respondent No. 2 on 9.12.1997, respondent No. 2 had already circulated the post much before receipt of the said communication. Even the corrigendum correcting the inadvertent error had been issued before receipt of the communication from the Ministry of Commerce, hence it is denied that the respondent had maliciously, deliberately, arbitrarily and schemingly tried to eliminate the petitioner from the selection process and thereby scuttle his chances of being selected to the post of Director (Finance) STC; that 13 candidates including the petitioner were short-listed and called for the interview on 20.2.1998 for which only 11 candidates attended the interview. The respondent No. 2 Board is a body constituted under the Government of India Resolution; that the said Resolution does not provide for any corum for the Board meeting. The Board meetings are held as scheduled and the non-availability of the Chairman or any member on a particular day does not preclude the Board from going ahead with the selection which is an on-going process. This is especially so in the circumstances when the candidates are informed of the meetings much in advance and as per the usual practice, the meetings are not postponed due to non-availability of any member of the Chairman of PESB; that the all letters/telegrams to all short-listed candidates had been sent on 27.1.1998, hence it was neither practical nor feasible to postpone the said meeting on account of the absence of the Chairman or one of the members of the Board and the interview was conducted according to the established practice of respondent No. 2.
4. Respondent No. 4 filed the counter sffidavit and disputed the claim of the pentitiner denying the allegations levelled against "respondent No. 4 in the petition", further contending that respondent No. 4 has no rule to play as far as selection and appointment of Director in STC is concerned and that no right of the petitioner has been infringed by respondent No. 4 against which the jurisdiction of this court under Article 226 of the Constitution of India can be invoked.
5. I have heard the submissions advanced by Mr. Siddharth Yadav, learned counsel for the petitioner, Mr. N.K. Kaul, learned counsel for respondents No. 1 to 3 and 5 and Mr. Piyush Sharma, learned counsel for respondent No. 4 and also considered the written submissions.
The petitioner has been mainly challenging the action of respondent No. 2 recommending the panel of names of 20.2.1998 on the ground that the Interview Board of respondent No. 2 was improperly constituted and adopted an illegal and irregular procedure for selecting the panel of candidates.
6. It may be noted at the outset that the learned counsel for the petitioner fairly conceded that the petitioner does not have any vested right to the post of Director (Finance). His grievance is to the constitution of the Selection Board and the procedure adopted therein; that a CBI case was registered inter-alia against Sh. Gopal Chaturvedi, the then Director (Finance) STC on 5.1.1996 and thereafter he remained on long leave and/or under suspension.
That it is not disputed that the petitioner, on 10.1.1996, was assigned the duties of Director (Finance) under respondent No. 4 vide Order No. STC/CMD/06/95 as the tenure of Sh. Gopal Chaturvedi was decided not to be extended beyond the term of five years, respondent No. 2 initiated recruitment action for the said post which was to fall vacant with effect from 11.1.1998. Respondent No. 2 constituted a Selection Board. The petitioner along with other candidates appeared in the interview on 20.2.1998 before the Selection Board and the said Selection Board recommended the names of Sh. P.K. Gupta and Sh. R.S.P. Sinha for the post of Director (Finance) STC. One of the contentions raised by the petitioner is that the Selection Board was not properly constituted inasmuch as out of the Chairman and three members of PESB, only two were present; that the Chairman of the Board was out of country and the other member Sh. N.T.T. Rao was not available. In the submission of learned counsel for the petitioner, the Selection Board should consist of the Chairman and three full time members.
7. It is not in dispute that as per clause 3 of the Resolution No. 27(21)-EO/06/CC dated 3.3.1987, the Public Enterprises Selection Board shall consist of one part-time or full time Chairperson and three full time members. On 20.2.1998, the PESB should consist of a Chairperson and three full time members. It is not the say of the petitioner that on 20.2.1998, the PESB did not consist of one part-time or full time chairperson and three full time Members. This is as far as the constitution of respondent No. 2-PESB is concerned. In the submission of learned counsel for the petitioner, the absence of Chairperson and one full time Member namely Sh. N.T.T. Rao would make the Selection Board illegal inasmuch as the Interview Committee shall also comprise of the full strength of the Board.
8. I am unable to agree with this submission of the learned counsel for the petitioner for the reason that the strength for constituting PESB would be different from the members comprising the Interview Committee. It is not in dispute that on the date of interview i.e. on 20.2.1998, the Chairman of respondent No. 2 was out of country and out of the three full time members, one was not available for some reasons. It is not the say the petitioner that there is any provision for tne "Courm" as far as the formation/constitution of Interview Committee or the Board Meeting is concerned. The members available formed the Interview Committee on 20.2.1998. The selection policy contained in the Government of India's Resolution dated 3.3.1987 does not prescribe for a corum for the meeting of the Board/Interview Committee. A distinction has to be made between the requisite number of members for constitution of PESB and the courm for the Board Meeting/Selection Committee. It is not imperative that all the members including the Chairman constituting the PESB should necessarily be present in the Board Meeting/Interview Committee. It is suggested from the record that the call letters, telegrams etc., were issued to the short-listed candidates including the petitioner well in advance for the interview which was sheduled to be held on 20.2.1998 and the absence of any member cannot justify the postponement of the interview since the candidates would be coming from distant places. In the instant case, the Chairman of PESB being out of country and one full time member being not available on the date of interview i.e. 20.2.1998, the Interview Committee comprising of the remaining two full time members cannot be rendered illegal or invalid since the members present interviewed the candidates and selected the candidates for the post of Director (Finance) STC.
It may also be appreciated that the petitioner did participate in the interview for the post of Director (Finance) STC which was held on 20.2.1998 and he did not object to the composition of the Interview Committee consisting of two full time members present at that time and it is only after the petitioner was found not selected for the post in question, the petitioner comes forward contending illegal/invalid composition of the Selection Committee though he was very much in know of the fact on 20.2.1998 itself that the Chairman was out of country and the third full time member was not available for any reason.
9. In the case of Utkal University, Dr. S. Das Vs. Dr. N.C. Sarangi, 1999, Rajdhani Law Reporter, page 176 (SC), in paragraph 9, it has been observed ".....The so-called bias as set out in the original petition, is that one of the experts was a member of an organization which brought out a magazine of which the selected candidate was the Editor while one of the members of the Selection Committee was on the Editorial Board. Both the University as well as the selected candidate have pointed out that this fact was known to the respondent throughout. He did not, at any time, object to the composition of the Committee. He objected only after the selection was over and he was not selected. This would amount to waiver of such objection on the part of the respondent. Reliance is placed on G. Sarana Vs. University of Lucknow, in which this Court found that despite the fact that the appellant knew all the relevant facts he had voluntarily appeared before the Committee and took a chance of having a favourable recommendation from it. Having done so, it was not open to him to turn round and question the constitution of the Committee. A similar view has been taken U.D. Lama Vs. State of Sikkim ".
10. As pointed out earlier, the petitioner admits that he does not have any vested right to be appointed to the post of Directors (Finance). The petitioner was one of the candidates interviewed who appeared in the interview on 20.2.1998 before PESB. The only right petitioner can claim is to be considered for the post of Director (Finance) STC. The petitioner applying or the selection/appointment to the post of Director (Finance) STC, it he is otherwise qualified in accordance with the existing rules acquires only a vested right to be considered for selection in accordance with the rules. The petitioner has been duly considered in the interview held on 20.2.1998 by PESB.
In the case of Devin Katti & Others Vs. Karnataka Public Service Commission & Others, , it has been held that the person applying for appointment, if otherwise qualified in accordance with the existing rules or order and in terms of the advertisements inviting application, acquires a vested right to be considered for selection in accordance with that rule or order. In paragraph 11 at page 165, it has been observed "Lest there by any confusion, we would like to make it clear that a candidate, on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in advertisements, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisements. He cannot be deprived of the limited right on the amendment of the rules during the pendency of selection unless the amended rules are retrospective in nature".
11. The petitioner has relied on the decision in the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma & Others, 1998 (4) AD (S.C.) 277 = (1998) 5 Supreme Court cases page 87. In the instant case, the petitioner as CGM (Finance) STC was entrusted with the responsibility of looking after the work of Finance Division by the them Chairman of STC/respondent No. 4 merely by way of a local interim arrangement pending filling up of post of Director (Finance) on regular basis and the same was not done in consultation with respondent No. 1. On petitioner's own say, a CBI case was registered inter-alia against Sh. Gopal Chaturvedi, Director (Finance) Senior IAS and previous CMD of STC and thereafter Mr. Gopal Chaturvedi remained on long leave and/or under suspension. Under these circumstances, the petitioner was assigned the duties of Director (Finance) under respondent No. 4 on 10.1.1996. According to the respondents, it was not decided to extend the tenure of Sh. Gopal Chaturvedi beyond the term of five years and thus, the post of Director (Finance) fell vacant with effect from 11.1.1998 and accordingly the post of Director (Finance) STC was circulated on 24.11.1997 as per the usual procedure of respondent No. 2 inviting nominations from various sources. Thus, the assigning of duties of Director (Finance) to the petitioner on 10.1.1996 was an interim/local arrangement by respondent No. 4. The ratio laid down in the case of Secretary-cum-Chief Engineer, Chandigarh Vs. Hari Om Sharma (Supra) will be of no assistance to the petitioner for the reason that the respondent in the aforesaid case was promoted as Junior Engineer-I in 1990 and has been continuing in that post without being paid salary for that post or without being promoted on regular basis and on respondent approaching the Tribunal, direction was issued by the Tribunal that the respondent shall be paid the salary for the post of Junior Engineer-I and shall also be considered for promotion on regular basis on the basis of quota fixed of non-diploma holders with 10 years service and the respondent was admittedly the senior-most person in the cadre of non-diploma holders and had also put in 10 years of service. In paragraph 6, it is observed "....It is true that the respondent, to begin with, was promoted as stop-gap arrangement as Junior Engineer-I but that by itself would make no difference to his claim for salary for that post. If a person is put to officiate on a higher post with greater responsibilities, he is normally entitled to salary of that post.....". I am in respectful agreement with the proposition of law laid down by the Apex Court but that is not the question involved in the present petition.
12. It has been submitted by learned counsel for the petitioner that the word "shall" occuring in the Notification dated 3.3.1987 (pages 30-31) shall be construed mandatory and `shall' cannot be construed as `may'. In this regard, reliance is placed on the decision in the case of Sachidanand Singh Vs. State of Bihar, , in paragraph 8 whereof it is observed "it is the settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill Vs. Donald Humberstone & Co. Ltd. Maxwell has stated in his treatise (Interpretation of Statutes, 12th Edn, p. 105) that "if the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of astrict construction, and hence the aforesaid observation is eminently applicable here.' In the instant case, Notification dated 3.3.1987 (pages 30-31) clause 3 refers to the constitution of the Board. It provides "the PESB shall consist of one part-time or full time chairperson and three full time members. The chairperson and members shall be persons who have had a long and distinguished career in management of public or private corporation or public administration and have a proven record of achievements, preferably in the field of personnel, production or marketing....." It need hardly be said that clause 3, reproduced above, speaks of the constitution of the Board and it requres that PESB shall consist of one part-time, or full time chairperson and three full time members. In the instant case, on the date of interview i.e. on 20.2.1998, the PESB did consist of one part-time or full time chairperson and three full time members. Thus, the constitution of PESB is in accordance with the requirement of clause 3. The distinction to be drawn here is between the constitution of the Board as per clause 3 and the "Interview Committee" for the selection of the candidates comprising two full time members available of PESB. It would bare repetition to state that there is no courm for the board meeting requiring minimum number of members to be present for the purpose of board meeting. Even accepting the arguments of the learned counsel for the petitioner for construing "shall" as mandatory, it will not render the meeting of the board on 20.2.1998 for the purpose of interviewing and selecting the candidates in any manner illegal since the only mandatory requirement is regarding the constitutin of the Board and not the corum for the board meeting.
13. Reliance is also placed on the decision in the case of State of Haryana & Others Vs. Raghubir Dayal, , wherein it has been held ".......The word `shall', therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word `shall' as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing, would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or general public, without very much furthering the object of the Act, the same would be construed as directory".
14. Learned counsel for the petitioner has referred to a decision in the case of State of A.P. Vs. Dr. K. Ramachandran, wherein it has been observed ".....Section 4 of the Act which was mandatory was emended by the Andhra Pradesh Act 6 of 1993 and the word `shall' occurring in Section 4 was replaced by the work `may', which gave a discretion to the Government to refer or not to refer the matter to the Tribunal. Section 4-A which was inserted in the principal Act by the same amending Act also indicates that the choice to reference or not to refer the case to the Tribunal for disciplinary proceeding or to withdraw any cases already referred to the Tribunal, became available to the Government only after the amendment and not before that." This decision relied on by the learned counsel for the petitioner is besides the point and not relevant for the purpose.
15. It may be seen that in the instant case, the short-listed candidates from various organisations were called for the interview and the petitioner along with them appeared in the interview before PESB on 20.2.1998. If the full strength of the PESB namely one part-time/full time Chairperson and three full time Members is to be construed as the requirement for the purpose of holding interview, then it may not be possible to hold interview at all because for one reason or the other some member may not be available on all the dates fixed. This would not only prolong the process of selecting/recommending the candidates for the post in question but may also cause great inconvenience to the other interviewees who would be coming from different parts of the country and in that sense also, the requirement for the purpose of constituting PESB cannot be construed to mean a requirement for the purpose of Board meeting for interviewing the candidates.
16. Apart from what has been stated above, following the principle laid down in the case of State of Haryana Vs. Raghubir Dayal (supra), for the purpose of holding 'shall' as mandatory in the instant case, for the purpose of board meeting, the same would cause serious general inconvenience to the innocent persons or general public without very much furthering the object of the Act and the same has to be construed as directory.
17. It may be appreciated that in the instant case the names have been recommended by respondent No. 2-PESB, an independent body comprising of persons with a long and distinguished career in the management of public or private organisations or public administration with proven record of achievements, the allegations as regards the mala-fides against the two members of respondent No. 2-PESB being absolutely vague and general and there is nothing to show that the decision in the interview of 20.2.1998 was not properly arrived at on consideration of the merits of the candidates interviewed or that the decision was otherwise motivated. I do not find any substance in the allegations as regards the alleged mala fide or motivated decision of respondent No. 2. The petitioner cannot claim to be included in the select list as a matter of right and it appears from the record that the names recommended by respondent No. 2 on 20.2.1998 have been on consideration of merits on the basis of the suitability.
It need hardly be said that this Court, while exercising jurisdiction under Article 226 of the Constitution cannot sit as an appellate authority over the assessment made by PESB respondent No. 2, a high-level constituted Board/Committee and the decision arrived at on 20.2.1998 on interviewing the candidates, as suggested from the record, does not call for any judicial review on any count.
18. In the above view of the matter, I am unable to accept the contentions raised by learned counsel for the petitioner on any count and the petition is liable to be dismissed as no interference under Article 226 of the Constitution is called for.
19. In the result, the petition fails.