Gauhati High Court
Nawab Nurul Islam vs The State Of Assam And Ors on 8 June, 2012
IN THE HIGH COURT OF
(The High Court of Assam, Nagaland, Meghalaya,
Manipur, Tripura, Mizoram and Arunachal Pradesh)
1) W.P. (C) No. 3097/2010
Mr. Nawab Nurul Islam,
S/o. Late Nazumuddin Ahmed,
R/o. Ward No. 2, Mangaldoi Town
P.S. Mangaldoi, Dist. Darrang,
Assam
... Petitioner
Versus
1) The State of Assam,
Represented by the Secretary General
To the Administrative Department
Govt. of Assam, Dispur, Guwahati-6
Assam
2) The Commissioner, Lower
Assam Division, Guwahati-1,
Assam
3) The Deputy Commissioner,
District Darrang,
Mangaldoi, Assam
4) Shri Hari Chandra Sarma
Head Assistant,
Office of the Deputy Commissioner
Mangaldoi, Assam
5) Shri Dhurba Hazarika,
ACS, Deputy Commissioner,
Darrang, Mangaldoi,
6) Shri Dhurbajyoti Das,
ACS, Sub-Divisional Officer (S)
Mangaldoi, Darrang
W.P.(C) No. 3097/2010
W.P.(C) No. 4336/2010 Page 1 of 20
7) Smti Krishna Barua, ACS
Sub-Divisional Officer (S)
Mangaldoi, Darrang.
8) Smti Pallavi Phukan, ACS
Sub-Divisional Officer (S),
Mangaldoi, Darrang.
... Respondents.
2)W.P. (C) No. 4336/2010
Mr. Nawab Nurul Islam S/o. Late Nazimuddin Ahmed R/o. Ward No. 2, Mangaldoi Town P.S. Mangaldoi, Dist. Darrang, Assam ... Petitioner Versus
9) The State of Assam, Represented by the Secretary General To the Administrative Department Govt. of Assam, Dispur, Guwahati-6 Assam
10) The Commissioner & Secretary Govt. of Assam, General Administration(B) Department, Dispur, Ghy-1, Assam
11) The Deputy Secretary to the Govt. of Assam, General Administration (B) Department, Dispur, Ghy-6, Assam
12) The Deputy Commissioner, District Darrang, Mangaldoi, Assam W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 2 of 20
13) Shri Hari Chandra Sarma Head Assistant, Office of the Deputy Commissioner Mangaldoi, Assam ... Respondents.
BEFORE
THE HON'BLE MR. JUSTICE B.K. SHARMA
For the petitioner : Mr. A.B. Choudhury, Sr. Advocate
Mr. Wise Imran, Advocate
For the respondents : Mr. N. Upadhya, GA
Mr. K.K. Dey, Advocate
Date of hearing : 21.05.2012
Date of Judgment : 08.06.2012
JUDGEMENT AND ORDER
1. The challenge in these two writ petitions is the appointment of the respondent No. 4 firstly, to the post of Sadar Head Assistant in the office of the Deputy Commissioner, Darrang and secondly, to the post of Administrative Officer. The respondent No. 4 has been so promoted by the impugned orders date 01.07.2009 and 25.06.2010 issued by the Govt. of Assam in the General Administration (B) Department. According to the petitioner who has filed both the writ petitions, the said appointments of the respondent No. 4 is illegal and arbitrary. The claim of the petitioner is that having regard to his long length of service and suitability, it is he who should have been appointed to the said posts.
W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 3 of 202. The recruitment to the aforesaid two posts has been made on the basis of the Assam Ministerial District Establishment Service Rules, 1967 (amended vide notification dated 02.03.2009). As per Rule 6 of the said Rules, recruitment to the post of Sadar Head Assistant shall be made by the appointing authority by selection from amongst the Upper Division Assistant (UDA) with at least 10 yeas of service as such to their credit including Supervisory Assistant in any Deputy Commissioner's establishment. As per the note appended to Rule 6, vacancies to the post of Sadar Head Assistant would be advertised by the Deputy Commissioner concerned inviting applications from the suitable persons. On receipt of the applications, the Deputy Commissioner and the Sub-Divisional Officers of the District concerned shall assess the comparative merit and ability of the candidates for the purpose of recommending the names of suitable candidates to the Commissioner concerned. Thereafter the Deputy Commissioner shall forward the recommendation of the selection Board together with character rolls and other relevant papers consisting of the applications to the Commissioner concerned who shall make the selection strictly on merit and make the appointment.
3. Rule 6 (8) of the aforesaid Rules provides for filling up the post of Administrative Officer with the requisite criteria of serving at least 15 years in any Deputy Commissioner's establishment and having working experience at different branches in general and in the Establishment Branch in particular. A candidate must be graduate in any discipline from a recognised University. The appointing authority is to advertise the vacancies inviting applications from the suitable persons eligible for appointment in the post of Administrative Officer, fulfilling the above requirements. The selection W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 4 of 20 is to be made on the basis of the ACRs for the last 5 consecutive years and relevant service particulars of the eligible candidates. The selection board shall examine the ACRs and service particulars of the candidates taking into consideration the respective merits of the candidates and thereafter shall prepare a list of names in order of preference for recruitment to the post. The list shall be forwarded to the appointing authority by the selection Board for approval. The select list is to remain valid for 12 calendar months from the date of approval of the appointing authority.
4. From the above provision of the Rules what is seen is that the appointments to both the posts, i.e. Sadar Head Assistant and Administrative Officer, are to be made upon assessment of the comparative merits and ability of the eligible candidates. Under Rule 6 a prescription is made for assessment of the respective merit of the candidates on the basis of their ACRs and other relevant service particulars. Unlike in the case of promotion, there is no element of merit cum seniority and/or seniority cum merit. This is precisely the reason as to why recruitment to both the posts are not named as promotion, but are named as appointment.
W.P. (C) No. 3097/20105. Referring to Annexure-I series orders of transfers and postings in different branches of the establishment of Deputy Commissioner, Darrang with which we are concerned in this proceeding, it is the case of the petitioner that he has the experience of working in different branches. Referring to Annexure-2 gradation list of Grade-III employees of the amalgamated establishment of the Deputy Commissioner, Darrang, it is the case of the petitioner that he W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 5 of 20 being senior (serial No. 3) to the respondent No. 4 (serial No. 26), is entitled to get promotion to the aforesaid posts ahead of the respondent No. 4.
6. An advertisement (Annexure-3) was issued on 10.10.2008 inviting applications for filling up the post of Sadar Head Assistant in the office of the Deputy Commissioner, Darrang, Mangaldoi. As per the advertisement and in accordance with the aforesaid Rules, 10 years of service as Sr. Assistant (including SA) in the Deputy Commissioner's amalgamated establishment was required. It was also indicated that preference would be given to the candidates having experience of working in different branches of Deputy Commissioner's establishment. It was further indicated that the applicants might be required to appear in the interview on their own cost as and when called for.
7. By Annexure -4 representation dated 12.07.2009 made to the Commissioner of Lower Assam Division, Guwahati, some of the Senior Assistants working in the establishment of the Deputy Commissioner, Darrang urged upon the said Commissioner not to give effect to the recommendation made in favour of the respondent No. 4 on the ground that they are all senior to him. Before that the present petitioner filed a writ petition being W.P.(C) No. 2048/2009 making a grievance that the respondent No. 4 was illegally recommended in violation of the Rules and that he being the senior most Sr. Assistant, ought to have been considered for recommendation. The writ petition was disposed of directing the Commissioner of Lower Assam Division to take an appropriate decision in the matter.
W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 6 of 208. After the aforesaid order of this Court, the Commissioner of Lower Assam Division, Guwahati issued Annexure-7 order dated 01.07.2009 accepting the recommendation made by the selection committee for appointment of the respondent No. 4 as Sadar Head Assistant in the office of the Deputy Commissioner, Darrang, appointed him as such.
W.P. (C) No. 4336/20109. This writ petition is concerned with the further appointment of the respondent No. 4 to the post of Administrative Officer by the impugned order dated 25.06.2010. According to the petitioner, the respondent No. 4 was promoted in disregard of the provisions of the Rules. It is the plea of the petitioner that the respondent No. 4 has been given both the promotions in view of his close nexus with the successive Deputy Commissioners of the District, he having worked in the confidential branch of the Deputy Commissioner's establishment. It is the plea of the petitioner that the respondent No. 4 having lacked the requisite experience of working in different branches and he being confined only to the confidential branch of the Deputy Commissioner's establishment, could not have been recommended for promotion.
Counter Affidavits
10. The respondents, both official and private, have filed their counter affidavits. In the said affidavits, it has been contended that the selection for both the posts were conducted in accordance with the rules and that the candidatures of all the candidates were considered. Altogether 5 (five) applications were received and the candidatures were accepted on being eligible for consideration. In W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 7 of 20 the affidavit filed by the official respondents, direction of the Assam Administrative Tribunal relating to selection/recommendation of the candidates to the post of Head Assistant circulated vide Govt. letter No. GAG(B) 107/98/236 dated 01.07.1999 has been referred to. The direction is as follows:
"It is necessary for us to emphasise in clear terms that the assessment of the comparative merit and ability of every individual eligible candidate for selection for appointment to the post of Revenue Sheristadar or Head Assistant in the amalgamated establishment of the Deputy Commissioner of any district in the State of Assam by the Selection Board, consisting of the Deputy Commissioner of the district and all Sub-Divisional Offices under him in the district or the final selection by the concerned Commissioner of Division strictly on merit for appointment to the post of Revenue Sheristadar or Head Assistant in the amalgamated establishment of the Deputy Commissioner of the district under his Sub- Division shall be on the basis of the assessment of the Annual Confidential Report of every eligible candidate and other relevant service records and not on any other basis such as interview or viva voce."
11. The affidavit further states that as per the requirement of the Rules, a committee was constituted with all the three Sub-Divisional Officers, (Sadar) as members and the Deputy Commissioner as the Chairman. The selection committee upon scrutiny of the records such as service books, ACRs and other relevant papers of all the five eligible candidates including the petitioner and the respondent No. 4 and upon assessment of the comparative merit and ability of the candidates, recommended the respondent No. 4 for appointment to the post of Sadar Head Assistant. It has been stated that since all the candidates have been working in the same amalgamated establishment of the Deputy Commissioner's office all throughout their service career, it was not be difficult on the part of the Deputy Commissioner and other members of the selection committee to W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 8 of 20 assess the ability, suitability, merit etc. on the basis of their service profiles, ACRs etc. The affidavit also refers to earlier selection held on 08.01.2001 applying the same norms.
12. After the selection was made the minutes of the selection committee alongwith ACRs, service particulars, service books etc. were forwarded to the Commissioner, Lower Assam Division. It has been stated that the representation made by the petitioner was also forwarded to the said Commissioner by a special messenger. The Commissioner on perusal of the relevant records passed the impugned order dated 01.06.2009.
13. As regards the appointment to the post of Administrative Officer, the affidavit filed by the official respondents states about constitution of the selection committee towards consideration of the applications received for the post of Administrative officer. It has been stated that the selection committee took into account the service records, educational qualification, working experience and ACRs of the candidates. The selection committee decided to evaluate the merit of the candidates with categorisation of outstanding, very good and good. The ACRs of the last five years were considered. While considering in such a manner, the selection committee found the respondent No. 4 to be the best candidate with gradation "outstanding". As regards the allegation of close nexus of the respondent No. 4 with the successive Deputy Commissioners, the affidavit denies the same.
14. In the counter affidavit filed by the respondent No. 4, it has been stated that the selection having been conducted as per the criteria laid down in the Rules, there is nothing wrong in his W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 9 of 20 appointment as Sadar Head Assistant and Administrative Officer. According to him, with his further appointment to the post of Administrative Officer, the earlier writ petition being W.P.(C) No. 3047/2010 in which his appointment to the post of Sadar Head Assistant is under challenge, has become infructuous. He has stated in the affidavit that the selection committee having conducted the selection as per the procedure laid down in the Rules, the writ court will not sit on appeal over such selection and assessment made by the selection committee.
15. I have heard Mr. A.B. Choudhury, learned Sr. counsel assisted by Mr. Wise Imran, learned counsel for the petitioner. I have also heard Mr. N. Upadhya, learned State counsel as well as Mr. K.K. Dey, learned counsel appearing for the respondent No. 5. I have also perused the relevant materials.
16. Mr. Choudhury, learned Sr. counsel for the petitioner emphasising the need for a proper assessment of merit with due regard to the service profile of the eligible candidates, submitted that the petitioner being senior to the respondent No. 4, the selection committee ought to have considered that aspect of the matter while making the recommendation to the post of Sadar Head Assistant and Administrative Officer. According to him, the advertisement for the post of Sadar Head Assistant having prescribed an interview for selection, such interview ought to have held instead of making recommendation solely on the basis of the service records. He also submitted that the respondent No. 4 having all along worked as confidential assistant and being attached to the confidential branch of the establishment, he had the opportunity to meet the Deputy Commissioner frequently and consequently could influence in W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 10 of 20 recording better gradings in his ACRs. He submitted that the correct procedure of selection having not been followed and there being element of colourable exercise of power in recommending the respondent No. 4 by the Deputy Commissioner, the selection is not legally valid and consequently the appointment of the respondent No. 4 to both the posts are liable to be set aside and quashed. He has placed reliance on the following decisions.
1) (1996) 10 SCC 555 (Union of India & anr. Vs.
Samar Singh & ors.)
2) (2000) 6 SCC 698 (Union of India & ors. Vs Lt.
General Rajendra Singh Kadyan & anr.)
3) AIR 1984 SC 363 (B.S. Minas vs. Indian Statistical
Institute & ors.)
4) AIR 1981 SC 1777 (Lila Dhar vs. State of Rajasthan
& ors.)
5) (2010) 3 SCC 104 (Rames Kumar vs. High Court
Delhi & anr.)
17. Countering the above argument, Mr. N. Upadhya, learned State counsel submitted that the selection committee having conducted the selection as per the procedure laid down in the Rules, there is no question of interference with the recommendation made by the said committee. He submitted that merely because the petitioner had longer length of service than the respondent No. 4 at the time of making consideration by the selection committee, same by itself cannot clothe the petitioner with the right to get recommendation, more particularly when the mode of selection is merit, ability and suitability. He submitted that the writ petitions are misconceived having filed on a wrong notion that the appointments involved promotions on the basis of seniority cum merit.
18. Before entering into the submission made by the learned counsel for the parties, let me first appreciate the decisions on which W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 11 of 20 the learned counsel for the petitioner has placed reliance and there applicability to the facts and circumstances involved in the instant case. In Lila Dhar (supra), the Apex court was concerned with the selection of Munsiffs and prescription of 25% marks for viva voce as per Rules. It was held that prescription of 25% marks for viva voce test did not render the selection arbitrary and violative of the Article 14 and 16 of the Constitution of India. It is not understood as to in what context this judgement has been relined upon. In the case, the Judicial Service Rules with which the said decision was concerned, there was definite prescription of 25% marks for viva voce test. In the instant case, the Rules do not provide for any such viva voce test. Thus, it cannot be said that irrespective of the prescription in the Rules, the selection committee ought to have conducted the selection through viva voce as one of the elements of selection. There cannot be any direction to violative of the Rules.
19. In B.S. Minas (supra), the Apex Court was concerned with appointment of the Director of Statistical Institute. The relevant Bye- laws prescribed the particular mode of selection. No publicity regarding vacancy was done. There was clear breach of Bye-law 2 in making recruitment of the Director and there was no adequate material for the authority on the basis of which the members could apply their mind for determining as to whether they should approve the recommendation of the selection committee. This case is also of no help to the case of the petitioner. In the instant case, there is no element of violation of the Rules.
20. In Samar Singh (supra), the Court was concerned with empanelment of the eligible candidate and exclusion thereof. It was contended that for such exclusion, reasons aught to have assigned. It W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 12 of 20 was held that while making the selection no reasons need be assigned and that non-inclusion of name of a candidate in the penal who had been rated as "outstanding" and "excellent" cannot by itself lead to the inference that there was no proper consideration of merit and suitability inasmuch as the ACR was one of the several criteria for selection. It is not understood as to how this case can help the case of the petitioner
21. In Lt. General Rajendra Singh Kadyan (supra) when it was found that the respondent did not have the requisite experience, but the same was waived by the Govt., it was held that the respondent failed to comply with the required merit and experience. Possibly this case has been relined upon to emphasise that as per the requirement of the Rules for promotion to the post of Administrative Officer, one must have experience in working different branches which the respondent No. 4 lacked, he having worked most of his tenure in the confidential branch only. This aspect of the matter will be considered in due course of this judgment.
22. As to how the selection is to be made as per prescription of the Rules for both the posts, has been narrated above. The petitioner is under the misconception that the posts involved promotion either on the basis of merit cum seniority or seniority cum merit inasmuch as the whole emphasis is on the petitioner's length of service. Thus, it is in this context, the petitioner has referred to the gradation list of the amalgamated establishment of the Deputy Commissioner in which he was placed at serial No. 3 while the respondent No. 4 was at serial No. 26. As has been brought on record and have been admitted by the petitioner that the gradings in his ACRs are "good", "very good", "good", "good" and "very Good" for the relevant years. On W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 13 of 20 the other hand, the respondent No. 4 had all "outstanding" to his credit in the relevant ACRs. Following the provisions of the Rules, a selection committee was constituted with the Deputy Commissioner as the Chairman and three Sub-Divisional Officers as its members. The selection committee after thorough discussion and examining the service records including the ACRs, recommended the respondent No. 4 for appointment to the Sadar Head Assistant.
23. The selection committee meeting was held on 02.02.2009. The minutes of the selection committee, ACRs, service particulars and service books etc. were sent to the Commissioner, Lower Assam Division for consideration of the recommendation. In the counter affidavit filed by the official respondents, the minutes of the selection committee meeting has been annexed. It clearly indicates consideration of the case of the applicants in reference to the relevant Rules and making recommendation in consideration of all the relevant aspects of the matter. It also indicates the experience gained by the applicants in different branches. It is not correct to say that the respondent No. 4 did not have experience of working in different branches which is also not the requirement of the Rules. Even if it is accepted that the respondent No. 4 was all along kept in the confidential branch, he being not instrumental for the same, he could not have been deprived of consideration for appointment. Moreover, as stated in the affidavits-in opposition, he had gained experience dealing with different files pertaining to different branches. Above apart, as per the requirement of the advertisement dated 10.10.2008, for the post of Sadar Head Assistant, only preference was to be given to the candidates having experience of working in different branches of Deputy Commissioner's establishment. It is pertinent to mention here that in the matter of selection, preference W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 14 of 20 comes into play when merits of two candidates are found to be equal. Prescription of such preference cannot prevail over merit. As per the minutes of the selection committee, the respondent No. 4 excelled on merit and accordingly he was placed at serial No. 1 as against serial No. 3 occupied by the petitioner in order of merit. Thereafter the Commissioner, Lower Assam Division passed the order dated 01.07.2009 in consideration of the recommendation made by the selection committee and appointed the respondent No. 4 as Sadar Head Assistant.
24. In this connection, the case of Secretary, A.P. Public Service Commission vs. Y.V.V.R. Srinivasulu and ors. reported in (2003) 5 SCC 341, may be referred to in which the Apex Court made the following observations:
"11. Whenever, a selection is to be made on the basis of merit performance involving competition, and possession of any additional qualification or factor is also envisaged to accord preference, it cannot be for the purpose of putting them as a whole lot ahead of others, dehors their intrinsic worth or proven inter se merit and suitability, duly assessed by the competent authority. Preference, in the context of all such competitive scheme of selection would only mean that other things being qualitatively and quantitatively equal, those with the additional qualification have to be preferred. There is no question of eliminating all others preventing thereby even an effective and comparative consideration on merits, by according en bloc precedence in favour of those in possession of additional qualification irrespective of the respective merits and demerits of all candidates to be considered. If its is to be viewed the way the High Court and the Tribunal have chosen to, it would amount to first exhausting in the matter of selection all those, dehors their inter se merit performance, only those in possession of additional qualification and take only thereafter separately those W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 15 of 20 with ordinary degree and who do not possess the additional qualification ..."
25. Coming to the next advertisement for the post of Administrative Officer, on that occasion also the petitioner along with others responded to the advertisement in accordance with Rules. The selection committee constituted for the purpose considered the candidates and on a threadbare discussion and in consideration of the service records, educational qualification, working experience and ACRs and thereafter making a comparative assessment of the same, recommended the respondent No. 4 for appointment to the post of Administrative Officer. On that occasion also, it was found that the respondent No. 4 all along was graded as "outstanding" as against "good", "very good", "good", "good", "very good" and "good" earned by the petitioner. In fact no other incumbents/applicants had better gradings than that of the respondent No. 4 on both the occasions.
26. As regards the plea of the petitioner that for appointment to the post of Sadar Head Assistant, interview ought to have been conducted, suffice it to say that the Rules itself having not prescribed for the same, there is no question of conducting any interview. Moreover, as indicated in the affidavit filed by the respondents, the selection is to be conducted in terms of the direction issued by the Assam Administrative Tribunal operative part of which has been quoted above. As per the said direction and also as per the rules, there is no element of holding any interview.
27. Merit and ability and/or comparative merit of the candidates prescribed for appointment to the post of Sadar Head Assistant and Administrative Officer necessarily involve assessment of W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 16 of 20 comparative merits of all the eligible candidates and selecting the best out of them. In deciding whether a post is a selection post or not, one of the criteria to be considered is that if it involves a comparative assessment of officers, necessarily element of selection is involved. It need not be emphasised that it is for the selection committee to assess the comparative merit of the candidates. How to categorise in the light of the relevant records and what norms to apply in making the assessment, are the exclusive functions of the selection committee. In the matter of selection on merit without the element of seniority, it cannot be said that the selection of the respondent No. 4 amounted to supercession of a senior by a junior. The concept of supercession is relevant in the context of promotion and not in the context of appointment by selection.
28. Even in the case of promotion applying the principle of merit cum seniority, greater emphasis is on the merit and ability and seniority plays less significant role. Seniority is to be given weightage only when merit and ability are approximately equal.
29. In the matter of judicial review of a selection for appointment on a particular post the law is well-settled by the decisions of this Court. In Dalpat Abasaheb Solunke v. Dr B.S. Mahajan it has been laid down:
"It is needless to emphasise that it is not the function of the court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 17 of 20 illegality or patent material irregularity in the constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc."
30. In Jai Narain Misra (Dr) v. State of Bihar it was said:
"So far as the question of suitability is concerned, the decision entirely rested with the Government. In other words, the Government is the sole judge to decide as to who is the most suitable candidate for being appointed as the Director of Agriculture. For discharging that responsibility it was open to the Government to seek the assistance of the Public Service Commission. In our judgment the High Court was not justified in calling for the records of the Public Service Commission and going through the notings made by various officers in the Commission as well as the correspondence that passed between the Commission and the Government. The High Court overlooked the fact that the Government sought the assistance of the Commission and not that of the High Court for finding out the most suitable candidate. In this case there was no complaint of mala fides either on the part of the Government or the Commission. That being so the interference of the High Court in the matter of selection made by the Government was not called for."
31. In Major General I.P.S. Dewan v. Union of India it has been held that the principle that administrative orders affecting rights of the citizens should contain reasons therefor cannot be extended to matters of selection and unless the rules so require, the Selection Committee/Selection Board is not obliged to record reasons why they are not selecting a particular person and/or why they are selecting a particular person, as the case may be.
32. Once a competent authority makes a selection for appointment or empanelment considering all those who are eligible in accordance with rules, instructions or guidelines then the Tribunal or High Court W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 18 of 20 will not act as an appellate body and interfere on the ground of insufficiency of the material or incorrectness of the decision applying its own yardstick. If the decision-making process is not vitiated the resultant decision cannot be interfered with by the Court on the ground that if it were the selection committee which took the decision it would not have been the same.
33. In the instant case, there is strict compliance of the provisions of the Rules in making the selection for appointment to the post of Sadar Head Assistant and Administrative Officer. As per the requirement of the Rules, appointment to the post of Sadar Head Assistant involves assessment of comparative merit and ability. So far as the post of Administrative Officer is concerned, the selection is to be made from amongst the eligible persons on the basis of the assessment of respective merit of the candidates. On both the occasions, the duly constituted selection committees carried out the assessment of all the eligible candidates on the basis of their ACRs, service profiles, service record and service books etc. and as that basis recommended the respondent No. 4 as the most suitable candidate. In absence of any malafide exercise of power and/or violation of any statutory rules, this Court exercising its power of judicial review under Article 226 of the Constitution of India, cannot sit on appeal over the findings recorded by the selection committee.
34. As noted above, the petitioner is under a misconception that the post involves consideration of the candidates taking into account their seniority. It is in this context, the petitioner has referred to his long length of service vis a vis the respondent No. 4 unmindful of the fact that it is not a case of promotion applying the principles of merit cum seniority or seniority cum merit, but it is a case of W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 19 of 20 appointment by selection and the selection involves merit and merit alone.
35. As regards the plea of the petitioner that the respondent No. 4 did not have experience of working in different branches, there is no such requirement in the matter of appointment to the post of Sadar Head Assistant. Even in the case of appointment to the post of Administrative Officer, such requirement is only by way of preference. As to what constitutes preference in the matter of selection, has been discussed above. Even otherwise also it cannot be said that the respondent No. 4 did not have the experience of working in different branches. The records have revealed that he had the experience of dealing with the files of different branches. If the respondent No. 4 has been kept in the confidential branch for a considerable period of time, no fault can be attributed to him. Gathering experience of different branches by working in a particular establishment cannot be ignored in reference to counting of experience by working in different branches. If the kind of interpretation prayed for by the petitioner is accepted, same will lead to chaotic situation.
36. For all the aforesaid reasons I do not find any merit in the writ petition. Accordingly, it is dismissed leaving the parties to bear their own costs.
JUDGE Kborah W.P.(C) No. 3097/2010 W.P.(C) No. 4336/2010 Page 20 of 20