Central Administrative Tribunal - Delhi
G. Jayalal S/O Gopinath Pillai vs Union Of India Through Secretary on 30 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1290 of 2011 This the 30th day of November, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) G. Jayalal S/o Gopinath Pillai, R/o B-2, M.S. Flats, Tilak Lane, New Delhi-110001. Applicant ( By Shri M. N. Krishnamani, Sr. Advocate and with him Shri Ashwani Bhardwaj, Shri Amit Kumar and Shri V. M. Srivastava, for Applicant ) Versus 1. Union of India through Secretary Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi. 2. Chairman, Prasar Bharati, PTI Building, Sansad Marg, New Delhi. 3. Chief Executive Officer (Nominated Member), Prasar Bharati, PTI Building, Sansad Marg, New Delhi. 4. L. D. Mandloi, D.G. in Charge, All India Radio & Doordarshan, Doordarshan Bhawan, Copernicus Marg, New Delhi. 5. Tripurari Sharan, IAS, Principal Secretary, Government of Bihar, Food & Consumer Protection Department, Main Secretariat, Patna-800015. 6. Ram Subhag Singh, IAS, H. No. 15/VI, Mehli, P.O. Kasumpti, Shimla, H.P. 171009. Respondents ( By Shri D. S. Mahendru for Respondent No.1; Shri Rajeev Sharma for Respondents 2 & 3; Shri M. C. Dhingra for Respondent No.4; Shri Vikas Singh, Sr. Adv. and with him Ms. Shiva Laxmi for Respondent No.5, Advocates ) O R D E R Justice V. K. Bali, Chairman:
G. Jayalal, a Senior Administrative Grade (SAG) officer of Prasar Bharati, the applicant herein, claims to have been recommended by the selection committee constituted by the Prasar Bharati Board for his appointment as Director General, All India Radio, but the recommendation of the selection committee, it is his case, has been overturned on the dictates of the Government. In other words, the case of the applicant is that the selection committee, on dictates of the Government, changed its recommendation, preferring another person, namely, L. D. Mandloi, the 4th respondent arrayed in the O.A. in order of preference, whereas the original recommendation of the committee was that while the applicant would be the first choice, the 4th respondent would be second. Undue pressure from the concerned Ministry, it is the case of the applicant, has resulted into revision of the recommendation with mala fide intentions, and without any valid reason the Board members were directed to append their signatures to suit certain candidates. In wake of the facts to be given hereinafter, the prayer of the applicant in the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985 is to quash the revised recommendation of the selection committee dated 21.3.2011, and in consequence thereof to direct the respondents to act as per the original recommendation dated 15.3.2011 for appointment to the posts of Director General, all India Radio and Doordarshan, and appoint the applicant as Director General, All India Radio, with all consequential benefits. The applicant also seeks quashing of order dated 30.3.2011 (Annexure A-1) vide which the Minister of Information & Broadcasting has approved giving current duty charge on temporary basis of the post of Director General, All India Radio to Shri L. D. Mandloi, the 4th respondent.
2. The applicant joined the office of the respondents on 1.4.1978 as Science Officer, AIR Trivandrum (Kerala). He was in the grade of Assistant Station Director AIR, Trivandrum from 1.1.1986. While holding the post of Assistant Station Director, the applicant was selected by UPSC in 1990 to the grade of Station Director (Ordinary Grade) on 20.3.1991. He was thereafter appointed as Director AIR Tirunelveli (Tamil Nadu), Director AIR Port Blair, DP (Personnel) AIR Directorate New Delhi, and Director AIR Pondicherry. He was promoted to the Selection Grade on 1.7.1997, and was posted as Director AIR Trivandrum on 21.3.1999. He came to be promoted on 14.10.2004 to the rank of Deputy-Director General, and eversince has been working as DDG South Zone (Policy). The applicant states that he got all promotions as per eligibility, and that he had also worked as DG incharge AIR w.e.f. 4.9.2008 for seven months and has been performing his duties with utmost sincerity and dedication. It is pleaded that the selection of Director General in All India Radio and Doordarshan is governed by the Prasad Bharati (Broadcasting Corporation of India) Director General (Akashvani) and Director General (Doordarshan) (Recruitment) Regulations, 2001 (hereinafter to be referred as the Regulations of 2001) notified on 2.7.2001. The method of recruitment as per the Regulations aforesaid is by promotion/deputation, failing which, by direct recruitment on short term contract basis. The post of Director General, Doordarshan was to fall vacant on 19.2.2011. The 2nd respondent had requested vide letter dated 9.2.2011 to the 1st respondent that pending regular selection to the posts of Director General, AIR and Doordarshan, approval of the competent authority may be accorded for giving current duty charge of the post of DG, AIR and DG, Doordarshan to the senior-most SAG officer of IB (P) S cadre in the respective Directorates. This letter, as per the case set up by the applicant, had specifically recorded that the applicant was the senior-most SAG officer in the IB (P) S cadre. Advertisements for filling up the post of Director General in AIR and Doordarshan were issued by the respondents on 20.10.2010 and 20.12.2010 respectively. The recruitment rules and the advertisement prescribed the following eligibility conditions for the post of Director General for departmental candidates:
Officers of the Senior Administrative Grade of Broadcasting (Programme) Service with three years regular service shall also be considered along with applicants for appointment on deputation terms and in case any of them is selected, the post shall be deemed to have been filled in by Promotion. It is the case of the applicant that there were seven eligible applicants among external candidates for the post of Director General, Doordarshan, and four eligible officers from the department for the post of Director General for AIR and Doordarshan, and that there were no outside applicants for Director General AIR. Prasar Bharati called eleven candidates for the interview for consideration for appointment to the post of Director General, Doordarshan, including four departmental candidates, and the four of them were called for interview for consideration for the post of Director General, AIR as well. Total of six external candidates appeared for interview on 15.3.2011 and only three departmental officers attended the interview on the said day. The selection committee of the Prasar Bharati Board consisted of nine members, who attended the meeting on 15.3.2011 as detailed hereunder:
Ms. Mrinal Pande chairperson, Prasar Bharati Board Shri Rajiv Takru, IAS Nominated Member, Prasar Bharati Shri A. K. Jain, IAS, Member (Finance), Prasar Bharati Shri V. Shivkumar, Member (Personnel), Prasar Bharati Dr. Sunil Kapoor, Member, Prasar Bharati Board Dr. George Verghese, Member, Prasar Bharati Board Shri Suman Dubey, Member, Prasar Bharati Board Shri Muzaffar Ali, Member, Prasar Bharati Board, Ms. Noreen Naqvi, IBPS, DG-AIR.
It is the case of the applicant that the selection committee met on 15.3.2011 and selected three candidates for the post of Director General, Doordarshan, and arranged them in the order of merit as under:
Shri L. D. Mandloi Shri Tripurari Sharan Shri Ram Subhag Singh The selection committee also selected the candidates for the post of Director General, AIR and arranged them in order of merit as under:
Shri G. Jayalal (Applicant) Shri L. D. Mandloi (4th respondent) It is the case of the applicant that the selection, as mentioned above, would clearly show that the 4th respondent was recommended for appointment to the post of Director General, Doordarshan, whereas the applicant was recommended for appointment to the post of Director General, All India Radio. Proceedings dated 15.3.2011, it is pleaded, were duly signed by all the members and forwarded to the Government of India, vide covering letter dated 16.3.2011 by Member (Personnel), Prasar Bharati. As per the information of the applicant, the recommendation of the selection committee in its meeting dated 15.3.2011 was as under:
4. Taking into account the considerations of overall merit and experience and with due regard to an assessment of suitability, the Board decided to forward recommendations to the Government of India, as given below.
For the post of Director General, Doordarshan
1. Sh. L.D. Mandloi
2. Sh. Tripurari Sharan
3. Sh. Ramsubhag Singh For the post of Director General All India Radio
1. Sh. G. Jayalal
2. Sh. L. D. Mandloi. It is pleaded that the applicant came to know that later on21.3.2011, under some undue pressure from the concerned Ministry, the above recommendations have been revised by the respondents with mala fide intentions, without any valid reasons and the Board members were directed to append their signatures to suit some particular candidates. As per the information of the applicant, the covering letter dated 21.3.2011 circulated to the members reads as follows:
Enclosed please find a copy of the decision proposed to be taken by the Board by circulation for your kind perusal. The contents are self explanatory. The same may be kindly sent back after appending your signatures at the earliest so as to enable the Government to take further action in the matter. The accompanying document, as per the case set up by the applicant, reads as follows:
Special meeting of the Prasar Bharati Board took place on Tuesday 15th March 2011 at the Prasar Bharati Secretariat for selections to the post of Director General All India Radio and Director General, Doordarshan. The Board after interviewing the candidates and taking into account all the relevant factors had decided to recommend a panel of short-listed candidates for the two posts to the Government of India without putting the names in the panels in any particular order of preference. As the Government has desired from the Board that the names in the panels of short listed candidates be put into order of preference, the Board has, after carefully considering the matter decided by circulation to put the names in the panel of short listed candidates in the following order of preference.
I) Short listed panel for the post of Director General, All India Radio
1. Shri L. D. Mandloi
2. Shri G. Jayalal II) Short listed panel for the post of Director General, Doordarshan
1. Shri Tripurari Sharan
2. Shri Ramsubhag Singh
3. Shri L. D. Mandloi It is the case of the applicant that the above said revision dated 21.3.2011 has been done with an intention to change the serials of the selected candidates to help one or the other candidates with mala fide intentions and due to this reasons only, the concerned respondents had directed the selection committee to change their recommendations with vested interested, and further that the revision which is based upon extraneous considerations, has vitiated the sequence in the second panel and the same cannot be allowed to be sustained. The suspicion, the applicant further pleads, would be further evident from the fact that all this was done in a hush-hush manner by the respondents, but when the same was reported in newspapers, the respondents explained that the revised list was as per merit sequence as requested by the Ministry and that there was nothing wrong. The Programme Staff Association of AIR and Doordarshan is said to have given a representation to the Chairperson, Prasar Bharati on 23.3.2011 pointing out the set-back to the programme cadre due to the revised and mala fide proposal sent to the Ministry, however, no action has been taken by the respondents so far. To support their mala fide intentions, it is the case of the applicants, the respondents had issued an order dated 30.3.2011 giving current duty charge of Director General AIR to the 4th respondent in addition to his charge as Director General Doordarshan, and as such, the bias of the Ministry would become apparent, and further that the logic of giving additional charge is lost, when the fact that the applicant who is a qualified and eligible officer in the All India Radio is already in position, is taken into consideration.
3. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and by filing their counter replies contested the cause of the applicant. In the reply filed on behalf of the 1st respondent, it is inter alia pleaded that the selection committee had not given the names of the selected candidates for the post of Director General, All India Radio and Doordarshan in the order of merit, and that even though the names of the applicant and the 4th respondent figured in the list of the recommended candidates for the post of Director General, All India Radio and Director General, Doordarshan respectively, but the candidates were not arranged in the order of merit. Prasar Bharati secretariat vide letter dated 23.3.2011 informed the 1st respondent that the names had been arranged in the order of merit and the order of merit would indicate that the name of the 4th respondent was not at serial number 1 in the order of merit for the post of Director General, Doordarshan. Similarly, the name of the applicant was not at number 1 in the order of merit for the post of Director General, All India Radio. Copy of letter dated 23.3.2011 of the Prasar Bharati Secretariat forwarding therewith the recommendations of each member of the selection committee, and their preference for the candidates in terms of order of merit for both the posts, is annexed as Annexure R-1. It is the case of the 1st respondent that it would be apparent from the recommendations of the selection committee meeting dated 15.3.2011 and the Board letter dated 21.3.2011, annexed as Annexures R-3 and R-4 respectively, that the submissions of the applicant are not correct, and that the order of merit in terms of the preference expressed by the members/chairman of the selection committee was received by the 1st respondent vide letter dated 23.3.2011 only. It is denied that the revision has been done with the intention to change the serials of the selected candidates in order to help one or the other candidate with mala fide intentions as alleged by the applicant. The submissions of the applicant are stated to be without any basis. It is pleaded that the recommendations in terms of order of merit were conveyed to the Ministry vide Boards letter dated 23.3.2011 only. The allegations of extraneous considerations and doing the same in a hush-hush manner have been denied. It is then pleaded that the current duty charge of the post of Director General, Doordarshan and Director General, All India Radio has been given to senior-most officer of the IB(P)S cadre, and that though the 4th respondent and the applicant were appointed on regular basis on the same date, i.e., 14.10.2004, the 4th respondent before his regular appointment in the SAG grade of IB(P)S in Doordarshan had rendered ad hoc service, and in terms of order of the Honble High Court of Delhi dated 27.5.2008 in WP(C) No.4478/2007 filed by the Government of India challenging the order of the Tribunal in OA No.1690/2005 filed by the 4th respondent, his ad hoc service in the grade of SAG of IB(P)S in Doordarshan prior to his regular appointment in the grade is to be counted for qualifying service for appointment of DG, AIR/Doordarshan, and, therefore, the averment of the applicant that he is the senior-most officer of IB(P)S is not correct. It is pleaded that it is the prerogative of the appointing authority to give current charge of the post of Director General, Doordarshan and Director General, All India Radio, and that the Government has already taken a conscious decision and given the charge to the senior-most officers in both the above offices. The applicant is stated to have leveled baseless allegations of mala fides and has failed to bring out the basis of his conclusions.
4. The applicant has filed rejoinder to the reply filed on behalf of the 1st respondent. There would be, however, no need to refer to the contents thereof, as by and large, the same are reiteration of the pleadings made in the OA and denial of the one mentioned in the counter reply.
5. A misc. application being MA No.1202/2011 came to be filed seeking impleadment of Shri Triuprari Sharan and Shri Ram Subhag Singh as respondents 5 and 6 in the array of respondents. The same was allowed vide order dated 26.4.2011. Separate replies have been filed by respondents 2 to 5. Whereas, respondents 2 and 3 have filed their reply jointly, separate replies have been filed on behalf of respondents 4 and 5. In the reply filed on behalf of respondents 2 and 3, it has inter alia been pleaded that the OA is premature inasmuch as, it seeks to impugn a recommendation made for filling up the post of Director General, All India Radio, Prasar Bharati, and that the recommendation being a mere recommendation, the same would not have the force of an order, and as such the same would not be amenable to challenge under Sections 14 and 19 of the Act of 1985. As regards the order dated 30.3.2011 giving current duty charge to the 4th respondent, it is pleaded that as the incumbent of the post of Director General, All India Radio was to retire on 31.3.2011, till the filling up of the post substantively, an interim arrangement had to be made, and, therefore, the said order dated30.3.2011 was issued on account of administrative exigencies, and that the applicant cannot claim to have a right that he and only he ought to have been given the current duty charge of a particular post. The allegations made by the applicant as regards change in order of merit are stated to be factually incorrect. It is pleaded on 15.3.2011 the Prasar Bharati Board short-listed a panel of three names for the post of Director General, Doordarshan and a panel of two names for the post of Director General, All India Radio. However, the names were not arranged in order of merit. Subsequently, the Ministry of Information & Broadcasting had sought the recommendations in order of merit, and accordingly, vide letter dated 21.3.2011 a proposed resolution was circulated to each Board Member. Thereafter, each Member of the Board made his recommendation in the order of merit in writing. It is pleaded that had the recommendation made on 15.3.2011 been arranged in order of merit, the members of the Board would have said so; on the contrary, each member made his recommendation in the order of merit on 21.3.2011, thereby unequivocally accepting and acknowledging that in the recommendation dated 15.3.2011 the names had not been arranged in the order of merit, and thus, the very premise on which the claim of the applicant is based would be incorrect and for that reason the OA is liable to be dismissed. Perusal of the recommendation made by the Board in the order of merit on 21.3.2011 would show that insofar as, the post of Director General, AIR is concerned, eight out of the nine members placed the name of the 4th respondent at serial number 1, and only one member recommended that the applicant be placed at serial number 1. Insofar as, the post of Director General, Doordarshan is concerned, five out of nine members gave the following order of merit:
(1) Shri Tripurari Sharah (2) Shri Ramsubhag Singh (3) Shri L. D. Mandloi Another three members while agreeing that Shri Tripurari Sharan be placed at serial number 1, recommended that the name of Shri L. D. Mandloi be placed at serial number 2, and did not recommend any third name. One member put Shri Mandloi at serial number 1 and Shri Tripurari Sharan at serial number 2. The said decision of the Board was conveyed to Joint Secretary (Broadcasting) vide letter dated 23.3.2011. The allegations of mala fides and favouritism have been denied. It is denied that the applicant is the senior-most IB(P)S officer. The 4th respondent is said to be senior to him by virtue of the judgment passed by this Tribunal and the decision of the High Court already adverted to above.
6. In the reply filed on behalf of L. D. Mandloi, the 4th respondent, it has inter alia been pleaded that the plea raised by the applicant that he is senior to the answering respondent is not correct. It is pleaded that the respondent has always been head and shoulders above the applicant, which would be clear from the chart given below:
L. D. Mandloi Respondent No.4 G. Jayalal Applicant Joined AIR 16.6.1976 1.4.1978 Joined Class-II Officer through UPSC 1980 Joined as Regular Class-I Officer/ Assistant Station Director through UPSC 27.3.1982 1.1.1986 Station Director (Ordinary Grade) January 1988 20.3.1991 Non-Functional Selection Grade May 1995 1.7.1997 Senior Administrative Grade (SAG) This Honble Tribunal vide order dated 27.5.2008 directed for treating ad hoc service as regular with effect from January, 2001 as against regular promotion with effect from October, 2004. Honble High Court declined stay wherefore official respondents conceded to give effect to order dated 27.5.2008 of this Honble Tribunal i.e. for counting entire period from January, 2001 for the purposes of next promotion to the post of Director General October, 2004 It is pleaded that the applicant has misrepresented that he is senior to the answering respondent. It is then pleaded that services of Doordarshan and All India Radio were organized in 1990 and the Indian Broadcasting (Program) Service was constituted and separate cadres for All India Radio and Doordarshan were established thereunder. In 1993, the respondent was transferred from All India Radio to Doordarshan which has two separate streams, i.e., Program (Management) cadre and Program (Production) cadre. All India Radio also has similar streams. The respondent opted for Program (Management) cadre. Incumbents of All India Radio are transferable to Doordarshan and vice versa. The respondent was transferred to All India Radio in 2009 and was re-transferred to Doordarshan in 2010. He has rendered service in All India Radio from 1976 to 1993 and then from 2009 to 2010, whereas he has performed his duties in Doordarshan from 1993 to 2009 and then from 2010 up to date he is continuing to perform his duties at Doordarshan. It is then pleaded that in the interregnum the official respondents, considering the outstanding performance of the answering respondent, gave duty charge of the office of Director General, Doordarshan in 2007, which he continued to discharge for about two years. In January, 2011, for one month, the respondent was again given duty charge of the same office, i.e., Director General, Doordarshan, which was again given to him on 24.2.1011 and he is currently discharging the same. It is pleaded that considering his excellent and outstanding performance, the respondent has been given current duty charge with effect from 1.4.2011 of Director General, All India Radio, and that he is efficiently performing the duties of both the offices assigned to him. It is further pleaded that the respondent has vast experience in various fields and has numerous achievements to his credit, which are detailed in his curriculum vitae which has been annexed as Annexure R4/1.
7. In the reply filed on behalf of the 5th respondent, it has been pleaded by way of preliminary objection that he is not a necessary party to the OA, because the applicant was only considered for the post of Director General, All India Radio and after preparation of the panel on the basis of the merit the applicant has been placed at serial number 2 for the post of Director General, All India Radio, and accordingly the only grievance that the applicant could have raised in the OA would be with regard to his own appointment as Director General, All India Radio, and he can have no concern whatsoever with the appointment to the post of Director General, Doordarshan because in the original list sent by the Prasar Bharati dated 15.3.2011 or in the subsequent list dated 21.3.2011 prepared on the basis of merit, the applicant does not find mention in the panel for appointment as Director General, Doordarshan, and, therefore, he cannot in any manner question the appointment to the post of Director General, Doordarshan in the instant OA. It is pleaded that the name of the 5th respondent has been added in the array of respondents mischievously, even though the issue before the Tribunal is only with regard to the post of Director General, All India Radio, and that the only persons who could have at a later date after the appointment had taken place, could have questioned the appointment to the post of Director General, Doordarshan, are Shri Ram Subhag Singh and Shri L. D. Mandloi, and both of them have not filed OA challenging the recommendation in favour of the answering respondent to the post of Director General, Doordarshan. The OA is also stated to be premature. On merits, the pleadings are similar to the one made by the other respondents and there would be no need to make a mention of the same. It is pleaded that the recruitment rules are very clear which provide that appointment is to be by promotion/deputation failing which by direct recruitment. The plea raised by the applicant that as per rule, appointment could be first by promotion failing which by deputation failing which by direct recruitment, is stated to be incorrect. As regards the reliance placed upon by the applicant on the judgment of the Tribunal, it is stated that there was no adjudication between persons claiming to be appointed by promotion vis-`-vis a person claiming to be appointed by deputation. The observations made by the Tribunal are stated to be per incurium being contrary to the express words of recruitment rules and are, therefore, liable to be ignored. It is then pleaded that the recruitment rules would make it absolutely clear that appointments by promotion/deputation are to be considered together and if a departmental candidate were to be recommended for appointment, then the appointment would be deemed to be by promotion. It is averred that there is logic in the abovementioned rule because the post of Director General, All India Radio or Director General, Doordarshan do not have a channel for promotion and are not promotional posts as such. Even the last appointee as Director General, Doordarshan was an IAS officer who came to be appointed after the judgment rendered by this Tribunal in OA No.24/2009 when admittedly departmental candidates were also eligible for such appointment. It is then pleaded that the respondent would have ample reasons to presume that the Prasar Bharati Board has very judiciously arrived at the decision of placing him at number one in the panel on the basis of credentials he carries, and that the post of Director General, Doordarshan, being what it is, requires appropriate synergy between creative as well as administrative ability in the person who mans the post, and further that the respondent has not only distinguished himself as an administrator manning highly important positions in the Government, as would be evidenced from his records that were available to the Board, but his stellar creative abilities are also a matter of simple judgment since he headed a national level media institution, i.e., the Film and Television Institute of India (FTTI), Pune, for a period of more than four years, and it was in recognition of his abilities only that the Government extended his period of duty by more than a year, beyond the normal tenure of three years for the Director of the said institution. The allegations of the applicant are stated to be a figment of his imagination and that no judicial notice be taken of the same by this Tribunal.
8. Arguments in this case were heard on 27.05.2011 when the judgment was reserved. However, on 31.05.2011, while preparing the judgment, we thought certain points would need clarification and, therefore, recorded a short order, which reads as follows:-
Arguments in this case were heard on 19.5.2011, when judgment was reserved. While preparing the judgment, we found some variations in the oral and written submissions. We sought clarification vide order dated 25.5.2011. This order be read in continuation of our said order.
Primarily, it is the case of the applicant that the proceedings of the Board dated 15.3.2011 as also the covering letter dated 16.3.2011 would manifest that the applicant was in order of preference recommended at serial number 1 for the post of Director General, All India Radio, whereas the 4th respondent in order of preference was shown at serial number 2. As regards appointment on the post of Director General, Doordarshan, the Board recommended the 4th respondent in order of preference at number 1, and Shri Tripurari Sharan and Shri Ram Subhag Singh at numbers 2 and 3 respectively. Thereafter, as per the case of the applicant, on being pressurised by the Government, the decision was changed. The respondents would, however, plead and canvass before us that the proceedings dated 15.3.2011 only culminated into preparing a panel without any order of preference, and that the Government required recommendations to be made by the Board in order of preference. When we prepare our final judgment, we will speak on this and give our findings on the rival contentions of learned counsel representing the parties, as noted above. With a view to substantiate that the proceedings dated 15.3.2011 making recommendations, as mentioned above, were changed, reliance has been placed upon letter dated 21.3.2011 written by Shri Dhiranjan Malvey, OSD, Prasar Bharati, which is addressed to Dr. George Verghese, Member, prasar Bharati Board. The letter aforesaid reads as follows:
Enclosed please find a copy of the decision proposed to be taken by the Board by circulation for your kind perusal. The contents are self explanatory.
The same may kindly be sent back after appending your signatures at the earliest so as to enable the Government to take further action in the matter. Accompanying the letter aforesaid is the decision of the Board, wherein it is stated that the Board, after carefully considering the matter, decided by circulation, to put the names in the panels of short-listed candidates in the order of preference, which has been mentioned in the said decision itself. It is urged by the learned counsel representing the applicant that the decision has since already been taken at the instance of the Government, as would be made out from letter dated 21.3.2011 written by the OSD, Prasar Bharati to Member, Prasar Bharati Board. Learned counsel for the respondents, on the other hand, would contend that the accompanying document of letter dated 21.3.2011 itself suggests that the Government had only desired from the Board that the names in the panels of short-listed candidates be put in order of preference, and the Board after carefully considering the matter, decided by circulation, to put the names in the panels of short-listed candidates in the following order of preference:
i) Shortlisted panel for the post of Director General, All India Radio
1. Shri L. D. Mandloi
2. Shri G. Jayalal
ii) Shortlisted panel for the post of Director General, Doordarshan
1. Shri Tripurari Sharan
2. Shri Ram Subhag Singh
3. Shri L. D. Mandloi It is also urged that this was the decision taken by the Chairman and circulated to all the Members separately, who agreed or not, as the case may be, as would be made out from the accompanying documents, which would reveal that everyone was sent the decision taken by the Chairman, and all Members expressed their independent view. As mentioned in our order dated 25.5.2011, there is no plea taken in the OA that the OSD had written a letter and that the same was a decision already taken by the Government, which was submitted to the Members of the Board. Learned counsel representing the applicant would, however, contend that when the position is clear from the documents relied upon by the respondents themselves, lack of pleadings should not come in the way of substantial justice. Learned counsel for the respondents, on the other hand, would contend that if proper pleadings were made, the things could be explained in a better way.
In the context of the controversy as noted above, we are of the view that the matter would need clarification by the respondent Prasar Bharati. We, at this stage, without commenting anything more, would direct Shri Dhiranjan Malvey, OSD, Prasar Bharati to file an affidavit explaining his letter dated 21.3.2011 and the sequence of events that took place thereafter. Was the decision mentioned in the letter aforesaid the one taken by the Government, which was conveyed by the OSD to the Members of the Board, or that, the Chairman had taken a decision and required it to be circulated to have opinion of all the Members? Let the affidavit as directed above be filed by the next date of hearing.
List on 06.07.2011. Copy of this order be sent to Shri Dhiranjan Malvey, OSD, Prasar Bharati immediately, as also to the learned counsel representing the parties.
9. Pursuant to our order aforesaid, Mr. Dhiranjan Malvey, OSD, Prasar Bharati has filed an affidavit on 04.07.2011 wherein it has, inter alia, been mentioned that the interviews for filling up the posts of Director General, Doordarshan and Director General, All India Radio were held on March 15, 2011. The Interview Panel comprised of all Members of the Prasar Bharati Board. In his capacity as OSD, he was present when the interviews took place. Insofar as the post of Director General, Doordarshan is concerned, the following nine candidates appeared for the interview:-
Departmental Candidates
1. Shri G. Jayalal, DDG, DG: AIR
2. Shri L.D. Mandloi, DDG, DG:DDn
3. Shri A.K. Jailkhani, DDG, DG:DDn External Candidates
4. Shri Sunil Kumar Singh, IAS (Bihar:1983)
5. Shri Ram Subhag Singh, IAS (HP:1987)
6. Shri Anil Kumar Aggarwal, IAS (West Bengal:1981)
7. Shri Manoj Kumar Parida, IAS (AGMUT: 1986)
8. Shri Jagmohan Signh Raju, IAS (TN:1985)
9. Shri Tripurari Sharan, IAS (Bihar: 1985) Insofar as the post of Director General, All India Radio is concerned, the following three candidates, who all were departmental candidates, appeared for the interview.
Shri G. Jayalal, DDG, DG: AIR Shri L.D. Mandloi, DDG, DG: DDn Shri A.K. Jailkhani, DDG, DG, DDn The Board short-listed three candidates for the post of Director General, Doordarshan and two candidates for the post of Director General, All India Radio. As per the majority, the following appeared to be the order of merit amongst the short-listed candidates as per the trend of discussion in the Board:
For the post of Director General, Doordarshan:
Shri Tripurari Sharan Shri Ram Subhag Singh Shri L.D. Mandloi For the post of Director General, All India Radio:
Shri L.D. Mandloi Shri G. Jayalal It is then mentioned that there was considerable discussion amongst the Members as to whether the short-listed panel should be forwarded to the Ministry in any particular order of preference or not. Members were generally of the opinion that the names be not put in a particular order of preference. Accordingly, in the Minutes of the proceedings, which were drawn up, only the names of the short-listed candidates were listed without setting out any order of preference. The same was the position in the letter dated 16.03.2011 sent by the Member (Personnel) to the Government of India conveying the recommendations made by the Board. Subsequently, Ministry of Information & Broadcasting desired that the recommendations of the Board be put in order of preference since the matter had to be referred to the ACC. This was conveyed to him on 21.03.2011 by the Additional Secretary, Ministry of Information & Broadcasting, who is also a nominated Member of the Prasar Bharati Board and is discharging the duties of Executive Member, Prasar Bharati. The nominated Member directed him to prepare a proposed resolution setting out the recommendations in order of merit, having regard to the sense of the Board meeting held on 15.03.2011. He prepared the resolution accordingly and showed to the nominated Member and thereafter circulated the same to all the Board Members, vide covering letter dated 21.03.2011. It is then mentioned that each member of the Board made his recommendation in order of merit in writing. A copy of the proposed resolution and the recommendations made by each Board Member are already on record as Annexure R-1 and Annexure R-2. It is further mentioned that none of the Board Members objected to the resolution or stated that the same did not reflect the majority opinion as it prevailed on March 15, 2011. None of the Board members stated that names were set out in the order of merit in the Board Minutes dated 15.03.2011. The proposed resolution dated 21.03.2011 was not based on any decision allegedly taken by the Government of India nor was any such decision conveyed to him. The proposed resolution was prepared having regard to the sense of the Board meeting, which took place on 15.03.2011
10. Since this was a part heard matter and had to be listed before the same Bench, it could not be taken up for some time as one of the Members of the Bench [Mr. L.K. Joshi, Vice Chairman (A)] fell sick and only after sometime it became known that he may have to be hospitalized and, therefore, unable to work for a long time. He is still not in a position to resume his duties. The Bench was thus re-constituted and the arguments were finally heard on 01.11.2011 when the judgment was reserved. Counsels representing the parties were told that if they wanted to file written arguments, they could do the same. The applicant had prepared the written submissions in advance and the same were handed over to us when we heard the arguments. Counsel defending respondent no.5 submitted the written arguments on 02.11.2011, whereas written arguments on behalf of respondent no.2 & 3 were received on 09.11.2011.
11. The applicant has filed rejoinder to the affidavit filed by OSD, Prasar Bharati, Shri Dhananjay Malvey, wherein it is pleaded that the whole purpose of calling upon the OSD was to file affidavit to ascertain from him as to why and who prompted the DPC members to re-arrange the names of persons recommended by them to put them in a particular order so that Mr. Sharan, an outsider, could be promoted/deputed as DG, Doordarshan, Mr. Mandloi (4th respondent) could be pushed from first position in Doordarshan to go and take over as DG, AIR, so that the applicant is deprived of his right to get promoted as DG, AIR, but the OSD has scrupulously avoided to address this only purpose in his affidavit defeating the purpose of calling for the affidavit. It is pleaded that nobody asked the OSD to give his opinion as to the validity of the impugned proceedings. It is further pleaded that the OSD is incompetent to ask the DPC to re-decide the order of merit in their first recommendations, and that the prompting and the mandate to re-decide the order of merit came from an outside force and was not generated by the chairman of DPC. It is pleaded that the chairman of DPC too would not be competent to re-convene the DPC to review the decision taken by collective mind of all the members sitting together. It is stated that the fact that he did not himself seek review of DPCs previous decision, which would be clear from at least two obvious factors (i) he himself received and draft minutes from OSD, like all other members; and (ii) OSDs letter clearly stated that the request for a re-decision by DPC was from the Government, which would exclude the theory now being trotted out as though the chairman of DPC generated the move for changing the order of seniority. The affidavit filed by the OSD, it is further pleaded, would not justify in any manner that the minutes of the duly constituted DPC/special meeting wherein all the nine Board members were present, would be superseded by the opinion of individual members obtained subsequently in isolation, and that too, by way of circulation of papers. The other averments made in the rejoinder, if relevant, would be taken into consideration while dealing with the issues involved in the matter.
12. We have heard the learned counsel representing the parties and with their assistance examined the records of the case.
13. The rival parties are at variance, both on issues of facts and law on almost every aspect of the case, but we may, at this stage, mention some limited facts on which there may not be any dispute. The applicant is a Senior Administrative Grade (SAG) officer in AIR, whereas the 4th respondent is also an officer of same status in Doordarshan. The streams of AIR and Doordarshan are different. Insofar as promotions up to the level of SAG are concerned, the same are within the AIR or Doordarshan, as the case may be. Only two posts of DG, one each in AIR and Doordarshan, are common, for which SAG officers from both streams are eligible for promotion. As per rules, if candidates for promotion from either stream are not available or suitable, then the administration can go in for filling the post from other departments by way of deputation. The Board of Prasar Bharati is the authority to select candidates for promotion to the post of DG (DD) and DG (AIR). The Board did meet for selection/promotion on the two posts as mentioned above on 15.03.2011, and as to what happened then and latter, as mentioned above, is in dispute. The applicant with vehemence in the pleadings equally matched through his learned counsel, would assert that the Board in its meeting on 15.03.2011 had made unanimous selection of candidates and put them in order of merit, experience and suitability (emphasis supplied by the applicant), as may be made out from para 4 of the covering letter dated 16.03.2011. The applicant was placed in order of merit at serial number 1 for the post of DG (AIR), whereas the 4th respondent was at number 2. As regards the post of DG (DD), the 4th respondent was at number 1, whereas Mr. Tripurari Sharan and Mr. Ram Subhag Singh were at numbers 2 and 3 respectively. Under the influence of the Government, further asserts the applicant, the OSD Prasar Bharati vide his communication dated 21.03.2011 asked the Board to indicate its preferences in regard to the candidates selected, even though proceedings dated 15.03.2011 of the Board would indicate such preferences. It is pleaded that the OSD would not leave it to the Board to re-decide its preferences, and enclosed another fresh resolution of the Board as drawn by him, in which he brought the 4th respondent in the first position for the post of DG (AIR) and brought Mr. Tripurari Sharan as number 1 for the post of DG (DD), leaving no discretion to the members of the selection board, and that except one Mr. George Verghese, all other members of the Board signed at the dotted lines. Mr. M. N. Krishnamani, learned Senior Advocate, representing the applicant, would contend that the OSD had no authority to ask the Board to change its decision, and that the Board could not alter or change its decision duly taken, on the dictates of the OSD. Quasi judicial authority, it is urged, has to take its own decision, uninfluenced by any outside agency. Reliance for the proposition that quasi judicial authority while taking a decision is not to be influenced by any outside agency, reliance is placed upon judgments of the Apex Court in Mansukhlal Vithaldas Chauhan v State of Gujarat [(1997) 7 SCC 622]; T. Govindraja Mudaliar etc. v State of Tamil Nadu & others [(1973) 1 SCC 336]; and Anirudhsinhji Karansinhji Jadeja v State of Gujarat [(1995) 5 SCC 302]. The corollary to the contention aforesaid is that the Board would have no power to alter its decisions, as such power is not conferred upon it; its functions are quasi judicial functions, and once a panel was prepared by the Board, it could not be tinkered with. For the said contention reliance is placed upon the decisions of the Supreme Court in Dr. (Smt.) Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya, Sitapur (UP) & others [(1987) 4 SCC 525] and Kalabharati Advertising v Hemant Vimalnath Narichania & others [(2010) 9 SCC 437]. Surely, the question as to competence of the Board to review its decision would depend upon the first contention raised by Mr. Krishnamani that the decision had indeed been changed. Before we may, however, advert to the stand taken by the respondents in rebutting the main plank of the applicant that the decision was changed by the members of the Board at the instance of the Government or the OSD, as the case may be, we may mention that a serious objection has been raised by the respondents that since the allegations of the applicant partake the character of malice in facts, members of the Board ought to have been made party respondents, as any finding against them on the issue as aforesaid, which would go to the extent of being influenced by the Government and changing the decision on its dictates, without putting them to notice and hearing them would be against the principles of natural justice and would thus be illegal. It is urged that it would be a fatal flaw and, therefore, once this Tribunal may hold that there is no question of returning finding on the allegations made by the applicant without joining the members of the Board as party respondents, the allegations as such have to be rejected. We may first deal with this aspect of the case. In that context, we may mention that in this case parties have made effective arguments on three or four occasions, and on each occasion it was strenuously urged on behalf of the respondents that the allegations made by the applicant have to be repelled for non-joinder of necessary parties, but no steps were ever taken to implead even one Board member as respondent. The consistent stand taken by Mr. Krishnamani, learned Senior Advocate, representing the applicant is that once, it is a case of legal malice, there would be no need to make any one as party respondent.
14. Demarcation of malice in fact and malice in law has been subject matter of debate before the High Courts and the Supreme Court. In the case of State of A.P. & others v Goverdhanlal Pitti [(2003) 4 SCC 739], the Supreme Court on reference being made to various decisions including English decisions, made a demarcation of malice in fact and malice in law, as would be evident from the following paragraphs:
12. The legal meaning of malice is ill-will or spite towards a party and any indirect or improper motive in taking an action. This is sometimes described as malice in fact. "Legal malice" or malice in law means something done without lawful excuse. In other words, it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others. [See Words and Phrases legally defined in Third Edition, London Butterworths 1989].
13. Where malice is attributed to the State, it can never be a case of personal ill-will or spite on the part of the State. If at all, it is malice in legal sense, it can be described as an act which is taken with an oblique or indirect object. Prof. Wade in its authoritative work on Administrative Law [Eighth Edition at pg. 414] based on English decisions and in the context of alleged illegal acquisition proceedings, explains that an action by the State can be described mala fide if it seek to acquire land for a purpose not authorised by the Act. The State, if it wishes to acquire land, should exercise its power bona fide for the statutory purpose and for none other. In the present case, the applicant would allege mala fides or malice against the Government in issuing directions to the Board to take decision for recommending particular persons for the post of Director General (Doordarshan) and Director General (All India Radio). Naturally, the applicant would not know as to which functionary of the Government issued such dictates. The next allegation of mala fides or malice is against the OSD, who is said to have made a resolution on the dictates of the Government, and required members of the Board to sign on dotted lines. The next allegation of malice or mala fides is against the members of the Board who were said to have, on the dictates of the Government or the OSD, signed on dotted lines. We may, at this stage, refer to specific pleadings made in the OA in that behalf. Para 4 (q) of the OA reads as follows:
q. That the applicant came to know that later on 21.03.2011, under some undue pressure from the concerned Ministry, the above recommendations have been revised by the respondents with malafide intentions, without valid reasons and the Board members were directed to append their signatures to suit some particular candidates. Paras 4(s) and 4(t) read as follows:
s. That the above said revision dt. 21.03.2011 has been done with an intention to change the serials of the selected candidates to help one or the other candidates with malafide intentions and due to this reason only, the concerned Respondents had directed the Selection Committee to change their recommendations with vested interests.
t. That the abovementioned revision of the list, which is based on extraneous considerations, had vitiated the sequence in the second panel and the same cannot be allowed to be sustained. The suspicion is further evidenced from the fact that all this was done in a hush-hush manner by the respondents, but when the same was reported in the newspapers, the respondents explained that the revised list was as per merit sequence as requested by the ministry and there was nothing wrong. The copy of the relevant news paper cutting dt. 23.03.2011 is annexed herewith as Annexure A-5. Paras 5(e) and (g) read as follows:
e. Because the Respondent had failed to appreciate that the revised decision becomes all the more malafide, when the initial decision was taken after considering all the eligible/qualified officers from the department. The decision dt. 15.03.2011 and in the sequence notified/communicated, is final and cannot be altered or tinkered. In any case, there is no valid reason to do so. g. Because the Respondent had failed to appreciate that the revised minutes not only has vitiated the selection process, but the same has been done deliberately in order to accommodate Sh. Tripurari Sharan for reasons best known to the respondents and the respondents have deliberately pushed another Sh. L. d. Mandloi, an officer of more than thirty years service and now in Doordarshan and the DG incharge of Doordarshan for more than two years to the third place in the revised list and placed him first in the DG-AIR list superseding Sh. G. Jayalal, who in turn has more than thirty three years of service in All India Radio. Both of them have worked in their respective fields of Doordarshan and All India Radio for more than thirty years in different capacities all over India and have risen from the ranks by way of selection by UPSC and promotions.
15. Having given our anxious thoughts to the contentions raised by the learned counsel representing the parties, we are of the view that the allegations in this case are of malice in fact. Surely, if the plea of the applicant is to be accepted, it has to be held that the chairperson and members of the Board have, at the dictates or the influence of the Government or the OSD, or both, have changed their decision earlier taken to favour others at the cost of the applicant. In our considered opinion, the allegations as mentioned above cannot be said to be malice in law. In fact, the allegations, if proved against the members of the Board, may border on or may come perniciously close to cheating and fraud, as defined in the IPC. The allegations are of such serious nature that the chairperson and each of the member of the Board has to be severely condemned, and on such findings they may have to be eased out from the positions they are holding. We may mention at this stage that whereas the chairperson of Prasar Bharati is Ms. Mrinal Pandey, the nominated member on the Board is Shri Rajiv Takru, whereas other members are Shri A. K. Jain, member (Finance); Shri V. Shivakumar, Member (Personnel); Dr. Sunil Kapur; Dr. George Verghese; Shri Suman Dubey; Shri Muzaffar Ali, Members; and Ms. Naureen Naqvi, Director General General, All India Radio. If all these persons who are of eminence and are holding very high and responsible positions, are to be condemned, we are absolutely sure that it would be wholly impermissible to do so without even hearing them.
16. In all fairness to the learned senior counsel representing the applicant, we may mention that for the proposition that when malice is in law, there would be no need to join any one as party respondent, reliance has been placed on some judicial precedents. The first in line would be the judgment of the Apex Court in Kalabharati Advertising (supra). The facts of the case aforesaid reveal that the hoarding fixed by the appellant before the Supreme Court in Anand Darshan Cooperative Society had been removed. The appellant was carrying on the business of advertisement hoardings within the city of Bombay. There was an agreement between the society aforesaid and the appellant as regards erection of hoardings measuring 40 x 20 in the compound of the society. It was being extended from time to time. The last agreement was on 12.8.2007 for a period of three years. In the PIL filed before the Bombay High Court against the hoardings said to be in violation of the rules, the Court while entertaining the writ petition constituted a committee to find out violations of the guidelines issued by the municipal corporation for hoardings in Mumbai. The committee found that 266 hoardings including that of the appellant had been in violation of the guidelines issued by the corporation. The Court vide its order dated 01.10.2002 directed the aggrieved parties to file a representation before the statutory authority, i.e., the Deputy Municipal Commissioner, against the findings of the committee constituted by the Court. The appellant made representation before the said authority and it was disposed of after giving opportunity of hearing to the appellant and examining the facts in the presence of officers/representatives of the respondent corporation, coming to the conclusion that the hoarding of the appellant was not violative of guideline 16(f), and insofar as violation of guideline 16(c) was concerned, the appellant was directed to apply to the Chief engineer (DP for condonation of compulsory open space clause of guidelines within 15 days with an observation that regularization of the hoarding would be subject to the outcome of the writ petition. The appellant approached the concerned authority through representation, upon which, the Assistant Engineer examined the case and also made physical verification of the hoarding and prepared a report to the effect that there was no violation of clause 16(c) of the guidelines. The report was placed before the Executive Engineer, who approved the same vide order dated 17.07.23007. There was, however, some dispute between the society and some of its members and those members raised certain objections/complaints against the erection of the hoarding in question. These members approached the cooperative court challenging the resolution passed by the society in favour of the appellant for granting permission to erect the hoarding. The application was dismissed. Being aggrieved, the members of the society filed a writ petition before the Bombay High Court for cancellation of the permission granted in favour of the appellant. During the course of hearing of the writ petition, the Joint Municipal Commissioner (Education), filed an affidavit to withdraw the earlier order approving the erection and for permission to pass a fresh order in accordance with law. The court accepted the said affidavit and permitted the corporation to withdraw its earlier order with further liberty to pass fresh orders without giving an opportunity of hearing to the appellant or the society, as it had already been done while passing the earlier order. In pursuance of the said order, fresh order was passed by the corporation on 11.02.2008, not approving the erection of hoarding which had earlier been approved. It is in these circumstances that the appeal came to be filed before the Supreme Court. One of the contentions raised before the Supreme Court was that the corporation had passed subsequent order without assigning any reason and giving opportunity of hearing to the appellant, and it was a clear-cut case of legal malice. On the facts as mentioned above, the Court held that the order was actuated because of legal malice, which means something done without lawful excuse. Legal malice, it was further held, would be an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. There was no question in the case aforesaid as to those who passed the orders should have been made party respondent. It was a simple case of allegations of legal malice, and the contention in that regard was upheld. In our view, this judgment would be of no assistance to the applicant for us to hold that the allegations as made by the applicant would be a case of legal malice and, therefore, the chairperson or other members of the Board would not be necessary party.
17. Reliance has also been placed upon another judgment of the Apex Court in State of A.P. v Goverdhanlal Pitti (supra). The facts of the case aforesaid reveal that a school building situated in the heart of the old city of Hyderabad was in possession of the State as a tenant of the respondent since 1954. In 1977 the respondent filed a petition before the rent controller for eviction of the State from the school building on the ground that it had become dilapidated and required reconstruction. The petition was dismissed by the rent controller, but on appeal, the Addl. Chief Judge, City Small Cause, granted eviction. During pendency of the appeal, the owner filed a writ petition before the High Court seeking early eviction of the State on the ground that the condition of the building was dangerous for the school. The High Court allowed the writ petition and directed the State to vacate and hand over the possession of the building to the owner within a specified period. The period of vacating the building by the State was later on extended on an alleged undertaking given by the State authorities to deliver the possession before the expiry of the extended period. However, on 26.04.1989, the State issued notification under Section 4(1) of the Land Acquisition Act and thereafter a declaration under Section 6 of the Act aforesaid for acquisition of the building and premises of the school. An award was also passed granting compensation to the respondent, who again filed a writ petition which was allowed by a single Judge taking the view that exercise of power under Section 4(1) of the LA Act was not fair and was only to scuttle a valid decree passed by the civil court which amounted to malice of law. This opinion was confirmed by the Division Bench in appeal. However, the Supreme Court, while allowing the appeal, set aside the orders passed by the Single and Division Bench. It was not held to be a case of legal malice, which was stated to be ill-will or spite towards a party and any indirect or improper motive in taking an action. It was held that legal malice or malice in fact would mean something done without lawful excuse. In other words, it is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard of the rights of others. On the facts, finding that the State was in need to continue education of children, it was held to be a case which was not actuated because of legal malice. Once again, in our view, this judgment would be of no assistance to the applicant. Present, as mentioned above, is not a case of legal malice; it is a case of malice in fact. We repeat and reiterate that if the allegations made by the applicant are to be upheld, the chairperson and members of the Board have to be contemned by holding that they changed their decision on the dictates of the Government or the OSD to favour someone at the cost of the applicant. It would be a sort of cheating or fraud personally committed by all the members of the Board.
18. We may refer at this stage to a Division Bench judgment of the Punjab and Haryana High Court, comprising the then Honble Chief Justice and one of us (V. K. Bali, Chairman), in Jindal Strips Limited & another v State of Haryana & others [Civil Writ Petition No.1898 of 1992, decided on 15.09.1995 and reported as 1996 (100) STC 457: 1995 INDLAW PNH 135]. Facts of the case aforesaid, in short, reveal that M/s Jindal Strips Limited, a public limited company, and one of its main shareholders, O. P. Jindal, filed writ petition straight in the High Court against the orders passed by the sales tax officer, bypassing the remedy of appeal, revision and reference, alleging serious mala fides against the then Chief Minister of the State of Haryana, Shri Bhajan Lal. It was a case where the assessing officer had re-opened the sales tax matters of the company for the last ten years or so. M/s Jindal Strips is an industry concern located at Hissar, engaged in the business of manufacturing plain carbon, alloy and stainless steel strips, slabs, blooms, plates, oxygen and argon gases etc., by then for the last two decades. The company has its branches located throughout the country. Without there being any order for purchase, the company would send its goods to its outlying branches throughout the country, and the sale would be made there as and when demand may come for the same, and the sales tax would be paid. However, after ten years, the assessment of sales tax was re-opened and the sending of goods at outlying branches was held to be an inter-state sale. Heavy tax liability of more than Rs.20 crores and a matching penalty was imposed. The writ, as mentioned above, came to be filed straight in the High Court, as it was the case of the petitioner company that the orders had been passed at the instance of then Chief Minister of the State. With a view to substantiate the plea that the Chief Minister was inimically disposed towards Shri O. P. Jindal, who was also the Chairman-cum-Managing Director of the petitioner company, for the reason that he had successfully contested the assembly election from Hissar and defeated a protigi of the Chief Minister. It was the case of the petitioner that Shri O. P. Jindal was close to Shri Bansi Lal, the main political rival of the Chief Minister. With a view to substantiate the plea of mala fides, it was pleaded and so argued that immediately when Shri Bhajan Lal came to power as Chief Minister, the company and Shri O. P. Jindal wee involved in more than two hundred cases. There was not a conceivable item under the sun on which the company and its CMD and others were not involved in litigation. Reference was made to number of cases civil, criminal and revenue, in that regard, and it was strenuously pleaded that the company and its CMD and others were dragged into litigation at the instance of the Chief Minister of the State, through all departments, like, revenue, police and others. Counsel representing Shri Bhajan Lal, in addition to controverting the plea of mala fides, also urged that there was no question of returning any findings of mala fides against him, as surely and admittedly, any finding against Shri Bhajan Lal would also be a finding against all officers, who would have to be held for proceeding against the company and its shareholders at the instance of the Chief Minister. On the plea aforesaid, the Division Bench observed as follows:
We are afraid, it is not possible to record such a finding. The Chief Minister has categorically denied that various authorities proceeded against the petitioner-company and others to their prejudice on the orders issued by him or at his behest. None of the officers/officials dealing with various matters have been arrayed as party-respondents. The various proceedings, mention whereof has been made above, are still pending. The petitioner-company may have obtained interim orders, as is being sought to be projected, but concededly till date no final decision has been given in any of the matters from which it might be gathered that the proceedings, subject-matter of court cases, were unwarranted or unjustified. No occasion, thus, arises for such authorities/officers to affirm or deny the allegations made by the petitioner. Any adverse comments in the very nature of things would certainly amount to condemning a number of officers without hearing them
19. Having held that it is not possible to return a finding of mala fides, which, we repeat, would be malice or mala fides in fact, as such allegations cannot be gone into unless members of the Prasar Bharati Board are made party respondents, and, therefore, no question arises to determine as to whether in fact and reality a decision was taken where the applicant was to be DG (Doordarshan), but was later changed, but since the learned counsel representing the parties have addressed lengthy arguments on this issue, we would deal with the same. We have chosen to proceed to decide this issue for an additional reason, and that is that in case, our finding as regards members of the Board being necessary party may not sustain, in all likelihood the matter would be remitted to us for determining the controversy on merits. It is thus with a view to obviate possibility of remand that we deal with this issue. The meeting of the Board of Prasar Bharati admittedly had taken place on 15.03.2011. It was attended by the chairperson, nominated member and other members of the Board named above. Shri Dhiranjan Malvey, OSD Prasar Bharati, and Shri Neh Srivastava, Manager were also in attendance. The Board interviewed the applicant, Shri L. D.Mandloi and Shri Ashok Jailkhani for the post of Director General, All India Radio. The Board also interviewed six persons, namely, S/Shri Sunil Kumar Singh, Ram subhag Singh, Anil Kumar Aggarwal, Manoj Kumar Parida, Jagmohan Singh Raju and Tripurari Sharan, for the post of Director General, Doordarshan. All these candidates were external candidates. The departmental candidates considered for the post aforesaid, were the applicant, Shri Mandloi and Shri Ashok Jailkhani. Para 4 of the minutes of the Board meeting dated 15.03.2011 reads as follows:
4. Taking into account the considerations of overall merit and experience and with due regard to an assessment of suitability, the Board decided to forward recommendations to the Government of India as given below:
For the post of Director General, Doordarshan
1. Sh. L. D. Mandloi
2. Sh. Tripurari Sharan
3. Sh. Ram Subhag Singh For the post of Director General, All India Radio
1. Sh. G. Jayalal
2. Sh. L. D. Mandloi The minutes of the Board are signed by the chairperson, nominated member and other members, and DG (AIR). A letter dated 16.03.2011 was addressed by Shri V. Shivakumar, Member (Personnel) to Shri Rajiv Takru, Additional Secretary (Broadcasting), who is also the nominated member on the Board. The lerrer aforesaid makes mention of the meeting of the Board held on15.03.2011. It mentions that with regard to the post of DG, Doordarshan, a total of eleven eligible candidates, including four departmental candidates, were called for interview, and out of the nine candidates interviewed, three candidates were departmental candidates, whereas six were external candidates. The name of the applicant is also mentioned in the array of departmental candidates. Mention is then of the post of DG, All India Radio, for which for eligible departmental candidates were called for interview, out of whom three candidates attended. The name of the applicant is also mentioned as a departmental candidate for the post. Paras 4, again 4 and 5 of the letter aforesaid read as follows:
4. Taking into account the considerations of overall merit and experience and with regard to assessment of suitability, the Selection Board decided to forward recommendation to the Government of India as per the selection panel, as given below:-
NAMES RECOMMENDED FOR THE POST OF DG, DOORDARSHAN
1. Shri L. D. Mandloi
2. Shri Tripurari Sharan
3. Shri Ram Subhag Singh NAMES RECOMMENDED FOR THE POST OF DG, ALL INDIA RADIO Shri G. Jayalal, DDG, DG: AIR Shri L. D. Mandloi, DDG, DG: DDn.
4. A copy of the Minutes of the Prasar Bharati Board/Selection Board meeting is enclosed.
5. Draft ACC proposals along with relevant documents including vigilance clearance, CR dossier (original dossier in r/o Shri G. Jayalal and Shri L. D. Mandloi and attested Xerox copies in r/o Shri Tripurari Sharan and Shri Ram Subhag Singh), copy of RR etc are enclosed. It is requested that approval to the proposal may kindly be communicated at the earliest. The proposed decision accompanying the letter dated 21.03.2011 of Shri Dhiranjan Malvey, OSD, reads as follows:
Special meeting of the Prasar Bharati Board took place on Tuesday, 15th March, 2011 at the Prasar Bharati Secretariat for selections to the posts of Director General, All India Radio and Director General, Doordarshan. The Board, after interviewing the candidates and taking into account all the relevant factors, had decided to recommend a panel of shortlisted candidates for the two posts to the Government of India without putting the names in the panels in any particular order of preference.
As the Government has desired from the Board that the names in the panels of shortlisted candidates be put into order of preference, the Board has, after carefully considering the matter, decided by circulation, to put the names in the panels of shortlisted candidates in the following preference:-
iii) Shortlisted panel for the post of Director General, All India Radio
1. Shri L. D. Mandloi
2. Shri G. Jayalal
iv) Shortlisted panel for the post of Director General, Doordarshan
1. Shri Tripurari Sharan
2. Shri Ram Subhag Singh
3. Shri L. D. Mandloi. Shri A. K. Jain, Member (Finance) and Shri V. Shivakumar, Member (Personnel) have endorsed only two names in case of short listed panel for Doordarhan, viz., Shri Tripurari Sharan as number 1 and Shri L. D. Mandloi as number 2. The proposed decision accompanying the letter dated 21.03.2011, it is common case of the parties, went for circulation. The records reveal that besides Shri A. K. Jain and Shri V. Shivakumar recommending in the manner aforesaid, Ms. Noreen Naqvi, DG, AIR; Shri Muzaffar Ali, Member; Shri Suman Duber, Member; Dr. Sunil Kapoor, Member; Shri Rajiv Takru, Nominated Member; and Ms. Mrinal Pandey, Chairperson agreed with the proposal. Dr. George Verghese, Member, however, placed the applicant at number 1 in the order of preference for the post of DG, Doordarshan.
20. We may, at this stage, refer to the stand taken by the respondents. It is pleaded and so argued on behalf of the respondents that the minutes of the meeting in question do not state anywhere that the names of short-listed candidates were sorted out in order of merit. Para 4 would only say that the Board was recommending certain names, and had the names been set out in order of merit, the said para would have been worded differently and would have stated that the names were in the order of merit. As regards emphasis of the applicant on the words overall merit in para 4 of the minutes of the meeting dated 15.03.2011, it is stated that the word merit has been used therein qua the short-listing exercise, which would not imply that the names were set out in order of preference. It is then urged that none of the Board members stated that in the minutes dated 15.03.2011 the names were set out in the order of merit, and that had the names been set out in the order of merit, at least some, if not all Board members, would have said so when called upon to set the names in order of merit. It is further urged that the Board member, i.e., Dr. George Verghese, who, in the subsequent exercise placed the applicant at serial number 1, would also not say that in the minutes of the meeting dated 15.03.2011 the names were arranged in the order of merit. As regards the proposed resolution dated 21.03.2011, it is the case of the respondents that the OSD was asked by the nominated member, who is also discharging duties of CEO, Prasar Bharati, to prepare a proposed resolution setting out the recommendations in order of merit having regard to the sense of the Board meeting held on 15.03.2011, and the resolution then prepared was shown to the nominated member and thereafter circulated to all Board members. It is then stated that in corporate functioning, day in and day out, resolutions are proposed for consideration of the Board, and in fact, what is called an agenda, is also normally a proposed resolution, and that the proposed resolution would not imply a pre-conceived decision or pressure on members; members can accept, reject or vary the proposed resolution.
21. We have given our thoughtful consideration to the rival contentions of the learned counsel representing the parties. We have, in extenso, referred to the minutes of the meeting dated 15.03.2011, the proposed resolution dated 21.03.2011 prepared by the OSD and shown to the nominated member, and the views of the chairperson and members of the Board, which came about after circulating the proposed decision. Prima facie, or, on first blush, the contention raised by the applicant may appear to be impressive. There may be a presumption that the names arranged in the minutes of the meeting may be in order of preference, but the same, at the most, would be a rebuttable presumption. It cannot be said to be irresistible. In para 4 of the minutes of meeting dated 15.03.2011 and in the same para of the forwarding letter dated 16.03.2011, mention is of overall merit and experience and with regard to assessment of suitability. For the post of DG (AIR), the first name is that of the applicant, whereas the second name is that of Shri L. D. Mandloi. Name of Shri Mandloi is also there at serial number 1 for the post of DG (Doordarshan). The words overall merit and experience and with regard to assessment of suitability, as mentioned above, would give an impression as if the names are mentioned in order of preference. However, there are no words as such that the names have been mentioned in the order of preference. It appears to us that if the names would have been in order of preference, it does not appear plausible that the name of Shri Mandloi would have been mentioned under both posts. It may be so, but it does not appear probable. The things have been clarified by the OSD, when we required him vide order dated 31.05.2011 to file an additional affidavit. We may not agree that the discussion in the meeting appeared to be as if preference was as suggested in the proposed resolution dated 21.03.2011, as in that case there was no reason not to so mention, but it is also, at the same time, clear that it was a case of short-listing, not making mention of various candidates in order of preference. It is significant to note that the applicant would not allege any personal mala fides against any one in the Government, or against any member of the Board. He would not even suggest that any one was inimically disposed towards him and would like to settle score with him, nor would he suggest that Shri Tripurari Sharan, who ultimately made it to the post of DG (Doordarshan), or Shri L. D. Mandloi, who was at number 1 in the short-listed panel for the post of DG (Doordarshan), ultimately came to be mentioned at number 1 for the post of DG (AIR), was a hot favourite of some one. In fact, insofar as Shri Mandloi is concerned, be it earlier or later, he ought to have been considered either for AIR or Doordarshan. In the short-listed candidates, he was at number 1 for the post of DG (Doordarshan), whereas in the so called changed list, he was at number 1 for the post of DG (AIR). There are no allegations whatsoever, least any evidence, to suggest that even one, out of the member of the Board, was, for whatever reasons, against the applicant, or wanted to favour somebody else. There is once again, no allegation against any one specific in the Government who may be against the applicant or in favour of somebody else. The system, as such, cannot be condemned. It is a case where so many people are involved in the matter of selection and appointment. All of them are holding very high and responsible positions and they have a name in the society. It is not possible to believe that all of them whole hog would go against the applicant, particularly when, as mentioned above, there is no earthly reason for them to do so. No doubt, a mistake might have been made by the Board, by not sending the names of respective candidates in order of merit, as in its view there may not have been any need to do so while short-listing. It may not, once again, be desirable for the OSD or one of the members of the Board to suggest a proposal and get it circulated for opinion of the members, but that alone, in our view, is wholly insufficient to return a finding that someone in the Government required the Board to change their decision, and all the members of the Board, but for one, signed on the dotted lines. Allegations of mala fides have to be proved like a criminal charge, and we do not find sufficient evidence to return a finding of mala fides against anyone in the Government or any of the members constituting the Board. In Jindal Strips & others v State of Haryana (supra), while dealing with mala fides, which, as mentioned above, are required to be proved beyond shadow of reasonable doubt, the Division Bench observed as follows:
We are afraid that no findings of mala fides can be returned on mere probabilities and the court has to see if the chain of circumstances is so complete and strong that no other conclusion but for mala fides is required to be recorded. A finding that a particular action or order was taken or passed on extraneous considerations can, thus, be returned only if all other hypothesis are excluded as proving of mala fides is like a criminal charge and the same has to be proved beyond shadow of doubt. The apex Court in A. Periakaruppan v. State of Tamil Nadu 1970 Indlaw SC 164 held that "mere probabilities cannot form the basis of a plea of mala fide". The allegations of mala fides in the aforesaid case were sought to be spelled out from the fact that a number of students, who had faired very poorly in the written examination, had secured very high marks in the interview. It was urged on behalf of the petitioners in the said case that the interview marks were allotted on collateral considerations and that the selection committees were tools in the hands of the Government and the Government manipulated the marks in such a way so as to facilitate the selection of those students in whom the members of the party in power were interested. The allegations, as mentioned above, were denied by the respondents. While elaborating their arguments on the plea of mala fides, learned counsel for the petitioners had invited the attention of the Supreme Court to the marks lists which clearly showed that the marks given at the interview were - by and large - in inverse proportion to the marks obtained by the candidates at the University examination. It was further argued that the marks lists on their face would show that the interview marks were manipulated. The Supreme Court, on the aforesaid contention of the petitioners, observed as follows :
"While there is some basis for these criticisms there is no sufficient material before us from which we could conclude that there was any manipulation in preparing the gradation list. It is true that numerous students whose performance in the University examination was none too satisfactory nor their past records creditable had secured very high marks at the interview. It is also true that a large number of students who had secured very high marks in the University examination and whose performance in the earlier classes was very goods had secured very low marks at the interview. This circumstance is undoubtedly disturbing but the courts cannot uphold the plea of mala fides on the basis of mere probabilities. We cannot believe that any responsible Government would stoop to manipulating marks."* In E. P. Royappa v. State of Tamil Nadu 1974 AIR(SC) 55, it was held that "the burden of establishing mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility"* . The impugned order in the aforesaid report was transfer order of the petitioner therein, who was Chief Secretary of the State and the allegations of mala fides were made against the Chief Minister. After taking into consideration the facts of the case, it was further held that "these and a few other circumstances do create suspicion but suspicion cannot take the place of proof and, as pointed out above, proof needed here is high degree of proof. We cannot say that evidence generating judicial certitude in upholding the plea of mala fides has been placed before us in the present case. We must, therefore, reject this contention of the petitioner as well"* .In M. Sankaranarayanan v. State of Karnataka (1993) 1 SC 54, the Supreme Court further held that "it may not always be possible to demonstrate malice in fact with full and elaborate particulars and it may be permissible in an appropriate case to draw reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture. There was no sufficient material from which a reasonable inference of malice in fact for passing the impugned order of transfer can be drawn"* . In the case aforesaid, the impugned order was again a transfer order and the allegations of the petitioner therein were that the same was actuated on account of mala fides as the suggestions of the Chief Secretary in the matter of posting of senior bureaucrats had not been accepted by the Chief Minister of the State as the petitioner was not agreeable to oblige the Chief Minister by accepting all his suggestions and putting up notes to that effect he had incurred the displeasure of the Chief Minister. Further, if the Government was to somehow eliminate the applicant, it had ample power to do so, as the recommendations made by the Board are not binding upon it. The ACC had to meet to approve the recommendations made by the Board, and if the Government wanted to overturn the decision of the Board, it could well, in the discretion vested in it, do it straightway than to do it indirectly and/or indiscreetly. As mentioned above, if the allegations as made by the applicant are to be rejected, the connected contention raised by the learned counsel that the Board had no power to review its decision, shall also have to be repelled. We do accordingly.
22. The contention of Mr. Krishnamani that even if it was a case of short-listing and order of preference had to be made, as pointed out by the Government, it could not be done by circulation, and for that purpose a meeting of the Board had to be arranged, appears to have merit.
23. Prasar Bharati Corporation, in view of sub-section (2) of Section 3 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 (hereinafter to be referred as the Act of 1990), shall be a body corporate by the name aforesaid, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract, and shall by the said name sue and be sued. The general superintendence, direction and management of the affairs of the Corporation, as per sub-section (4) of Section 3, shall vest in the Prasar Bharati Board which may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation under the Act. As per Section 3(5), the Board shall consist of a chairman, one executive member, one member (finance), one member (personnel), six part-time members, Director-General (Akashvani), ex officio, Director-General (Doordarshan), ex officio, one representative of the Union Ministry of Information and Broadcasting to be nominated by the Ministry, and two representatives of the employees of the Corporation, of whom one shall be elected by the engineering staff from amongst themselves and one shall be elected by the other employees from amongst themselves. In view of Section 8, the Board shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at its meetings (including the quorum at meetings) as may be provided by regulations. The chairman is to preside at the meetings of the Board and if for any reason he is unable to attend any meeting, the executive member, and in the absence of both, any other member elected by the members present at such meeting, shall preside at the meeting. All questions which come up before the meeting of the Board shall be decided by a majority of the votes of the members present and voting and, in the event of an equality of votes, the chairman, or in his absence, the person presiding, shall have and exercise a second or casting vote. In view of Section 9 of the Act aforesaid, the Corporation may appoint, after consultation with the recruitment board, the Director-General (Akashvani), the Director-General (Doordarshan) and such other officers and other employees as may be necessary, subject to such control, restrictions and conditions as may be prescribed. The Corporation, as mentioned above, is a body corporate. It works through the Board consisting the chairman and members, as mentioned above.
24. In exercise of powers conferred by Section 22 read with sub-section (1) of Section 8 of the Act of 1990, the Corporation has made regulations known as the Prasar Bharati (Broadcasting Corporation of India) (Procedure and Conduct of Business) Regulations, 2000 (hereinafter to be referred as the Regulations). In view of regulation 3, the date, time and place of a meeting of the Board shall be fixed by the executive member, after ascertaining the convenience of the chairman, by a general or special order passed in that behalf. The chairman or in his absence the executive member may, whenever he thinks fit, and shall, upon a requisition in writing by not less than one-half of the total number of members, convene a special meeting of the Board, within thirty days of the receipt of the requisition, I view of regulation 3(2), whereas, as per sub-regulation (3) of the said regulation, the requisition shall set out the business to be transacted at the special meting to be called and shall be signed by the members making the requisition. Notice of meetings and business shall have to be given as per provisions contained in regulation 4. List of business is prepared as per regulation 5. Quorum necessary for transaction of business at a meeting is provided in regulation 6. The method of deciding matters is provided under regulation 10, which reads as follows:
10. Method of Deciding Matters:
(1) Subject to the provisions of the Act and the rules made thereunder, all matters which come up before any meeting of the Board shall be decided by a majority of votes, by voice, or, if necessary, by show of hands, of the Members present and voting, and, in the event of equality of votes, the Chairman, or on his absence, the Member presiding, shall have and exercise a second or casting vote.
(2) No decision in respect of any financial or personnel management and administration matter, which in the pinion of the Nominated Member, is likely to create a major financial liability or anomaly or imbalance or disturbance in the existing parities in personnel matters relating to Government employees, or is likely to result in wide ramifications or huge implications or which may lead to substantial increase in budgetary support by the Government, shall be taken without the prior approval of the Central Government.
Provided that the Nominated Member shall exercise this right in the rarest of the rare cases and give sufficient reasons in writing for his opinion.
(3) In the event of any decision at a meeting of the Board being not unanimous, the divergent views shall be recorded in the minutes book. The Board has power to take decisions in urgent matters, as per regulation 11. Regulation 11 reads as follows:
11. Power to take decisions in urgent matters:
(1) If, in the opinion of the Chairman or the Executive Member, a decision on any matter is required to be taken urgently and it is not possible to obtain the approval of the Board, he may, by order, together with a statement of reasons therefore, take such decision as he may consider necessary.
Provided that the matter and the decision taken shall be placed before the Board at its next meeting for approval.
(2) The Chairman or the Executive Member may, in any urgent matter, get, by circulation to all the Members of the Board, its approval. If the majority of the Members approve the proposal, such an approval shall be deemed to be the approval of the Board. Present is a case of interviewing the candidates mentioned above by the Board in its meeting dated 15.03.2011, wherein the chairperson and eight members were present. Admittedly, the short-listing as done on 15.03.2011 would have been arrived at after interview with deliberations and consultations that ought to have ensued by the chairperson and other members of the Board. It was indeed not a case where individuals might have indicated their preferences of respective candidates, and by virtue of which, a short-listing might have come into being. It is on the asking of the Government to send a list of the candidates by showing their preferences or order of merit, it appears to us, that such preferences or precedence of candidates in order of merit ought to have been arrived at by arranging a meeting, and by deliberations and consultations between the chairperson and members of the Board. It is common knowledge that after the candidates may have been interviewed, the chairperson and members may have evaluated respective candidates and determined their merit as per their choice, and if the same may not be unanimous, it is bound to result into deliberations and consultations, each one giving his views as regards merits of a particular candidate to be shown higher in the merit. A combined effort made in the manner aforesaid may show a different result than the one that may have been arrived at by getting the opinion of each of the member individually by circulation. In the deliberations that may take place, it is possible that a particular member, in whose estimation a particular person may be the best, whether the said person is not so in the view of others, may be able to convince others, and in that process, the said person may be shown as number 1, whereas, as mentioned above, such decision would not be possible if choices of individual members are to be made separately by circulation. The Apex Court in State of Bihar v Jainandan Prasad Singh & others [1989 Supp. (2) SCC 544] has held that a decision taken by circulating the file among the members, in absence of any rules prescribing such a procedure, cannot be held to be decision of the committee, there being no meeting of minds of the members. Facts of the case aforesaid reveal that two schools, which were aided elementary schools, had been taken over by the Government of Bihar under Section 3 of the Bihar Non-Government Elementary School (Taking Over of Control) Act, 1976. Sub-section (2) of Section 3 provided that aided elementary schools, managing committee of which had handed over voluntarily the control of the school to the government, would be taken over by the State Government with effect from the date which would be determined by the District Committee. The district committee consisted of six officers. One of the contentions that was raised on behalf of the State Government was that there had not been any decision of the district committee with regard to the feasibility of taking over the schools in question, since no resolution had been passed by the committee at a meeting and that there was no provision for making a recommendation by the members of the committee individually on a file which was circulated amongst each one of them. On the contention aforesaid, it was observed by the Apex Court that No doubt the file contains the signatures of the members of the Committee but it cannot be said that there has been the decision of the Committee, since unless there is a rule to the contrary the members of the Committee had to meet and take a decision at a meeting. In the circumstances we are of the view that there is no meeting of minds of the members of the Committee on the question on which they had to take a decision. A Single Bench of the High Court of Delhi in two connected writ petitions bearing WP (C) No.4107/2003 and 3384/2003 decided on 12.02.2004, which was a case of selection of doctors in the All India Institute of Medical Sciences (AIIMS) by the members of the selection committee, observed as follows:
33. It does happen that persons acting individually award grades keeping in mind individual factors which they may have in mind and which obviously would influence their individual decisions. When all such persons pool their resources together and deliberate as to what should be their collective decision, ideas get pooled. Discussions ensue, and it is quite possible that as a result of the said collective discussion, an individual may agree with the collective decision and based on the factors disclosed by others, he agrees to their view. 43. I have given the reasons in para 33 above as to in what manner, in law, it cannot be said that the decision of the standing selection committee is illegal or unjustified. Indeed as reasoned by me above, persons acting individually would evaluate persons on factors which they perceive to be relevant but while taking a group decision, may agree to the collective wisdom based on inputs provided by all the members. Counsel representing the respondents, while joining issues on the plea of the applicant as noted above, would contend that some times even judgments of courts come about without consulting each other, but that would not render the judgments to be illegal. We may not refer to such judgments where some or the other Judges might not have been consulted, but we may only mention that the situation as regards validity of the judgments, when one of the Judges may not have been consulted, would be entirely different than the one subject matter of discussion in the present case. Further, there are no arguments, nor even citation of any case law that any such judgments might have been challenged, and if so, with what result.
25. Perusal of the regulations as mentioned/reproduced above, would demonstrate that the normal business of the Corporation has to be carried out by the Board by calling meetings in the manner as mentioned above. The normal rule is of transacting business in the meeting of the Board, which is to be convened and held as per procedure specified in various regulations mentioned above. It is only in case of emergency, and that too if the majority of the members may approve the proposal, that the business can be transacted by circulation. The letter dated 21.03.2011 does not mention of any urgency, nor is it urged during the course of arguments that there was any such urgency in the matter. It is not even the case of the respondents that the chairperson or the members would not be available for a long time and, therefore, it would not be possible to arrange a meeting as such, and thus the matter needed to be dealt with by circulation. We have thought over the situation, and are of the view that when temporary arrangements had already been made and both posts were being manned, there would have been no urgency whatsoever in arranging a meeting of the Board. The procedure of indicating order of merit of candidates, thus also appears to be against the Regulations, and for that reason as well, cannot sustain.
26. The respondents would refer to Regulations which we have adverted to hereinbefore, to say that in the present case, regulation is in position which deals with transaction of the business of the Corporation through a Board by circulation. We may only mention that the said provision is envisaged for only emergent situations, and that it is not even the case of the respondents that there was urgency in showing the order of preference amongst the short-listed candidates recommended by the Board on 15.03.2011.
27. Before we may part with this order, we may mention that at one stage, there was an argument as regards seniority of the applicant vis-`-vis the 4th respondent, but it was not seriously pressed during the course of hearing, and it appears for the reason that in the pleadings, the respondents have contested the claim of the applicant of being senior to the 4th respondent, and that too on the basis of judicial precedent rendered by the High Court of Delhi, as also for the reason that the present is not a case of selection on the basis of seniority; it is a pure and simple case of selection. Having found fault with the process of arranging the order of merit through circulation, we seriously pondered over as to what should be the ultimate direction that may be issued by us. Our thinking and re-thinking guides us not to overturn the selection at this stage. There are variety of reasons for which we have come to the conclusion noted above. It may be recalled that insofar as, Shri L. D. Mandloi, the 4th respondent, is concerned, he had been shown at number 1 in the recommendations of the Board against the post of Director General (Doordarshan). He had been shown at number 2 for the post of Director General (All India Radio). In the order of preference or merit, as the case may be, done through circulation, he is shown as number 1 for the post of Director General (All India Radio). Going by either of the list, it would be iniquitous to set aside his appointment, as even if one is to go by the plea of the applicant, he is to be selected against the post of DG (AIR), if not against the post of DG (Doordarshan). Further, what we are holding ultimately is that the order of merit could not be made by the Board by circulation. This would indeed result into a direction to be given to the respondents to constitute a meeting of the Board to re-determine the order of merit. In the meeting that may be held, there is a possibility that even after the deliberations, consultations and meting of minds, the result may be the same, as is envisaged by taking a decision through circulation. The two persons selected have since already been appointed. We are told during the course of arguments that ACC has approved their appointment and they are in position. If the members of the Board may arrive at the same conclusion as arrived at by them in circulation, it would be iniquitous to set aside the appointment for the interregnum, which would also create a void and important positions would not be manned properly by regular incumbent.
28. In totality of the facts and circumstances of the case, thus we have come to the conclusion that there is no need to upset the arrangement as is in place as on date. A direction is, however, issued to the respondents to convene a meeting of the Board as early as possible to determine the order of merit of the respective candidates. The exercise as ordained above, must be completed as expeditiously as possible, but definitely within a period of six weeks from the date of receipt of certified copy of this order. If the outcome of the meting be only endorsement of the view that came about in showing the order of preference of candidates through circulation, nothing more would be required to be done, as surely, the candidature of those who have been shown in order of preference for both the posts under contention, has since already been approved by the ACC. However, if in the deliberations that may take place in the meeting of the Board, as ordained, different result may ensue, the Board shall make recommendation accordingly for approval of the ACC, and in that event, if the appointment of any of the selected candidate is to be set aside, the order in that regard shall be passed. Insofar as, however, Shri L. D. Mandloi, 4th respondent, is concerned, if his selection is not approved for the post of Director General (AIR), then the same shall be recommended for approval for the post of Director General (Doordarshan). The final selection would abide the recommendations that may be made in the meeting that has now to be held by the Board, and the approval of ACC in that regard.
29. This Original Application stands disposed of accordingly. In the peculiar facts and circumstances of the case, costs of the litigation are, however, made easy.
( Dr. Ramesh Chandra Panda ) ( V. K. Bali )
Member (A) Chairman
/as/