Calcutta High Court (Appellete Side)
Subrata Chakravarty vs Union Of India & Ors on 25 November, 2016
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present :
THE HONB'LE MR. JUSTICE BISWANATH SOMADDER
W.P. 23462 (W) of 2015
Subrata Chakravarty
-Versus-
Union of India & Ors.
For the petitioner : Mr. Samaraditya Pal, Senior Advocate
Mr. Lakshmi Kumar Gupta, Senior Advocate
Mr. Pratik Dhar, Senior Advocate
Mr. Deepak Sarkar
Mr. Partha Ghosh
Mr. Samir Halder
Mr. Shamik Chakraborty
For the Union of India : Mr. Kaushik Chanda, Ld. A.S.G
Mr. Sajal Kanti Bhattacharyya
Mr. Bhudeb Chatterjee
For the applicants/respondent nos. : Mr. Anindya Mitra, Senior Advocate
6 to 8 Mr. Alok Kumar Banerjee
Mr. Soumya Majumder
Mr. Pradyot Kumar Das
Mr. Arunabha Sarkar
Mr. Debabrata Das
Heard on : 16.09.2015, 13.10.2015, 04.12.2015,
11.12.2015, 08.01.2016, 16.09.2016
Judgment on : 25.11.2016
BISWANATH SOMADDER, J.: The petitioner has filed the instant
writ application, essentially being aggrieved by the decision taken
by the concerned authority of the Ministry of Coal, Government
of India, (hereinafter referred to as the "concerned Ministry") to
recommend scrapping of the panel prepared by the Public
Enterprises Selection Board (hereinafter referred to as the
"PESB") for the post of Chairman cum Managing Director,
Eastern Coalfields Limited (hereinafter referred to as the "ECL")
and the subsequent scrapping of the panel on 3rd August, 2015
by the Appointments Committee of Cabinet (hereinafter referred
to as the "ACC"). The panel included the name of the writ
petitioner for the post-in-question.
Before going into the factual details, it may be worthwhile to
state certain relevant particulars regarding the writ petitioner.
The writ petitioner joined service on 13th October, 1979 as a
Junior Executive Trainee and since then he has been working in
different subsidiaries under Coal India Limited. The writ
petitioner is a mining engineering graduate having graduated
from the Indian School of Mines in the year 1979. He had
obtained a first class mine manager's certificate from the Director
General of Mines Safety (DGMS) in the year 1984. Thereafter, he
obtained a Master of Computer Applications degree from the Birla
Institute of Technology, Mesra, Ranchi in 1997. On joining
Central Coalfields Limited, his posting initially was at an
underground mine in the State of Jharkhand. Thereafter, he
worked as an Undermanager, Assistant Manager and Colliery
Manager at different mines of Central Coalfields Limited. He then
joined the Planning and Project Monitoring Division of the
Central Coalfields Limited and worked as Superintendent of
Mines and Deputy Chief Mining Engineer. He joined Bharat
Coking Coal Limited in the year 2001 and worked there as a
Project Officer and General Manager till 2006. He held other
posts like Technical Secretary to the Chairman, Coal India
Limited, Chief General Manager, Amlohri Project, in the year
2008, before joining as Director (Technical), ECL, Sanctoria, West
Bengal, with effect from 24th March, 2009 and completed his five
years tenure on 23rd March, 2014. The extension of his tenure as
Director (Technical) of ECL could not be processed as per
procedure since clearance of the Central Vigilance Commission
(hereinafter referred to as "CVC") was not available. In the
meanwhile, he was recommended by the PESB in October, 2014,
for appointment as the Chairman cum Managing Director of ECL.
However, his case for appointment as the Chairman cum
Managing Director of ECL could not be processed for want of
vigilance clearance which ultimately led to scrapping of the panel
containing his name by the ACC based on the recommendation
made by the concerned Ministry.
A detailed narration of facts, which are relevant for
adjudication of the present case, is stated below:
On 24th March, 2009, the petitioner joined as Director
(Technical), ECL. His tenure ended on 23rd March, 2014.
However, before his tenure as Director (Technical) ended,
he had applied for extension.
On 15th January 2014, the vigilance division of the
concerned Ministry sent all relevant documents in
relation to the enquiry against the writ petitioner to the
CVC, seeking its advice on his antecedents in order to
take a decision with respect to extension of his tenure.
On 6th May 2014, the vigilance division of the
concerned Ministry addressed a letter to the CVC with
reference to the above letter, stating that the advice of
the CVC has not yet been received and pending CVC
clearance, tenure of the writ petitioner as Director
(Technical) be extended for three months on an ad-hoc
basis.
On 29th May, 2014, an advertisement for selection to
the post of Chairman cum Managing Director, ECL was
issued by the PESB.
On 11th June 2014, a compilation of all earlier
guidelines for processing of proposals for
appointment/extension/termination of appointment, etc.
to a Board level post in any PSU for approval of ACC
(which was already available on DoPT's website since
November 2013) was issued by the ACC. These
guidelines, inter alia, included the guideline dated 27th
May, 2008, relating to the Central Public Sector
Enterprises (hereinafter referred to as "CPSEs") issued
by the PESB. As per its terms, the validity of the panel of
names recommended by PESB is ONE (1) year. These
guidelines were already in force at the time of issuance of
the aforesaid advertisement. After that, on 19th August,
2014, the concerned Ministry addressed a letter to the
CVC with reference to the letters dated 15th January,
2014 and 6th May, 2014, stating that the advice of the
CVC has not yet been received and pending CVC
clearance, tenure of the writ petitioner as Director
(Technical) cannot be extended.
On 10th October, 2014, ECL submitted a report to CVC
in respect of a complaint against the writ petitioner by
one Mr. M.K.Singh. The complaint was regarding
discrepancy in award of a tender to Bucyrus India Pvt.
Ltd. The allegation was examined by ECL but it was not
substantiated. There was also a complaint by the same
Mr. M.K.Singh against the writ petitioner regarding
certain irregularities in accepting claim of outsourcing
contractors.
On 22nd October, 2014, the Secretariat of the ACC
issued further guidelines for processing proposals for
appointment to Board Level post in CPSEs, since it was
observed that the timelines already prescribed for
processing the proposals for appointments to Board level
posts were not being adhered to.
On 28th October, 2014, the writ petitioner was selected
and his name was recommended for appointment as
Chairman cum Managing Director, ECL [Between 29th
May, 2014 and 28th October, 2014, the concerned
Ministry and CVC were exchanging correspondences
regarding vigilance clearance for extension of the writ
petitioner's tenure as Director (Technical),ECL].
On 30th October, 2014, the Secretariat of the ACC
issued certain policy guidelines for extension of tenure of
Board level incumbents where vigilance clearance is not
available.
On 18th November, 2014, the concerned Ministry again
addressed a letter to the CVC with reference to three
letters dated 15th January, 2014, 6th May, 2014 and 19th
August, 2014, stating that the advice of the CVC has not
yet been received and pending CVC clearance, the writ
petitioner's tenure as Director (Technical) cannot be
extended and his appointment to the post of Chairman
cum Managing Director, ECL, cannot be made.
On 2nd December, 2014, there was a request from the
vigilance division of the concerned Ministry to the CVC
for expediting vigilance clearance in respect of the writ
petitioner with reference to letters dated 15th January,
2014, 6th May, 2014, 19th August, 2014 and 18th
November, 2014.
An Office Memorandum was issued by the CVC on 18th
December, 2014, asking the Central Bureau of
Investigation (hereinafter referred to as the "CBI") to
register a Preliminary Enquiry (hereinafter referred to as
"PE") in the matter relating to procurement of 240 and
190 MT dumpers and 20 cubic metre electric rope
shovels.
On 2nd January, 2015, a letter was written by the
vigilance division of the concerned Ministry to CVC
regarding the vigilance status and other particulars in
respect of the writ petitioner. In that letter, the
concerned Ministry, referring to CVC's office
memorandum dated 18th December, 2014, stated that
the CVC had directed the CBI to register a PE in the
matter of procurement of 240 and 190 MT dumpers and
20 cubic metre electric rope shovels by Coal India
Limited. Thereafter, on 4th February, 2015, a letter was
sent from the Officer on Special Duty, CVC, to the
Additional Secretary & Chief Vigilance Officer of the
concerned Ministry regarding vigilance clearance in
respect of the writ petitioner for confirmation of tenure.
The letter advised the concerned Ministry to place the
facts and status of the complaints / cases against the
writ petitioner before the competent authority while it
takes a decision on the suitability for extension of his
tenure as Director (Technical), ECL / appointment as
Chairman cum Managing Director, ECL.
On 29th May, 2015, the Joint Secretary of the
concerned Ministry issued a letter addressed to the
Establishment Officer and Additional Secretary,
Department of Personnel and Training (hereinafter
referred to as the "DoPT"), New Delhi, requesting the
DoPT to scrap the panel recommended by the PESB for
the post of Chairman cum Managing Director (ECL). It
may be worthwhile to set out the said letter in its
entirety.
" I am writing this, in connection with scrapping of
the panel recommended by the PESB for the post
of Chairman cum Managing Director, ECL. The
post would fall vacant on 01.06.2015 due to
superannuation of Shri Rakesh Sinha, Chairman
cum Managing Director, ECL present incumbent on
31.05.2015. Shri S.Chakravarty, Director (Tech),
ECL was recommended by PESB vide their U.O.
dated 28.10.2014 for the said post. CVC however,
vide their letter dated 04.02.2015 has informed
that the Commission has asked CBI to register a
PE in the matter of irregularities in procurement of
240 & 190 MT Dumpers and 20 Cubic Mtr Shovels
and submit a report after thorough investigation.
CBI report in the matter is awaited. The
Commission, therefore, advised this Ministry to
place the facts of the case and status thereof,
before the competent authority while it considers
his suitability for the appointment.
2. In pursuance with the advice of the CVC,
Vigilance division had placed the matter before the
competent authority and it has been decided that
since the CBI was directed by CVC to register a
PE, the file should be submitted after conclusion of
PE. As no timelines have been indicated by the
CVC or CBI, this is likely to be delayed
indefinitely. Therefore, this Ministry is of the view
that it is not worthwhile to pursue the proposal for
his appointment any further. As such, it has been
decided to recommend scrapping of the panel so
that PESB can be requested to initiate fresh
selection at the earliest.
3. Accordingly, DOPT is requested to obtain and
communicate the approval of ACC for scraping
(scrapping) of the panel recommended by PESB
immediately so that necessary action to fill up the
vacancy could be initiated afresh by the Ministry.
4. This issues with the approval of Minister of
State (Independent Charge) for Coal."
Even after issuance of the letter dated 29th May, 2015,
the concerned Ministry issued an Office Memorandum
dated 15th July, 2015, addressed to the DoPT seeking
further ad hoc extension of tenure of the appointment of
the writ petitioner as Director (Technical), ECL, for
reasons stated in the said memorandum, which
includes, inter alia, absence of any chargesheet or even
showcause notice issued against him. DoPT was
requested to obtain and communicate the approval of the
ACC for the purpose of extension of tenure of the writ
petitioner beyond 23rd December, 2014.
The incumbent Chairman-cum-Managing Director of
ECL retired on 31st May, 2015. The ACC approved the
proposal / recommendation for scrapping of the panel in
question which was received by the concerned Ministry
on 3rd August, 2015.
On 15th June, 2015, the Central Public Information
Officer of the concerned Ministry received an application
regarding the vigilance status of the writ petitioner.
On 23rd June, 2015, the Central Public Information
Officer of the concerned Ministry, furnished the vigilance
status in respect of the internal candidates of Coal India
Limited sent to the PESB, before the interview was held
on 28th October, 2014. The said report and the enclosure
to the said letter showed that no penalty was imposed
during the last 10 years nor any disciplinary action was
initiated / being initiated against the writ petitioner.
On 3rd August, 2015, the Under Secretary, Secretariat
of ACC, wrote a letter to the concerned Ministry with
reference to its communication dated 29th May, 2015.
The letter stated that the ACC has approved the proposal
of the concerned Ministry dated 29th May, 2015 for
scrapping of the PESB recommended panel. The
approval of the ACC to the concerned Ministry's proposal
to scrap the panel was given 2 months and 25 days
before expiry of the validity period of the said panel.
On 4th /5th August, 2015 by an Office Memorandum
no. 010/COI/056, the 240 and 190 MT dumpers and 20
cubic metres electric rope shovel issues were put to rest
by the CVC - about 2 months and 24 days before expiry
of the validity period of the panel recommended by
PESB. The CVC stated that the case relating to
irregularities in procurement of 240 and 190 MT
dumpers and 20 cubic metre electric rope shovels by
Coal India Limited had been examined and after its
assessment it had decided to allow the matter to rest.
Therefore, the pending case against the writ petitioner
stood closed.
On 16th September, 2015, the CVC addressed a letter
to the concerned Ministry stating that there is nothing
adverse on its records in respect of the writ petitioner.
This was the final clearance of the writ petitioner for
being considered for appointment as the Chairman-cum-
Managing Director of ECL. This clearance was received 1
month and 12 days before expiry of the validity period of
the panel of the PESB recommending the writ petitioner
as the selected candidate.
It was contended by the learned senior counsel representing
the writ petitioner that the provisions relating to scrapping of a
panel regarding Board Level appointments in Central Public
Sector Undertakings proposed by PESB has been clearly laid
down in the compilation of guidelines issued by the Government
of India, Secretariat of the Appointment Committee of the
Cabinet, Ministry of Personnel Public Grievances, Department of
Personnel and Training, issued on 11th June, 2014. This
compilation of guidelines will clearly reflect that the powers to
scrap a panel approved by Directorate of Public
Enterprises/Public Enterprises Selection Board vests in the ACC.
The recommendation of scrapping of the panel comprising of the
selected candidates (in this case, the writ petitioner) on 29th May,
2015, was illegal and unconstitutional because the concerned
Ministry did not follow the compilation of guidelines nor the
procedure laid down in the Office Memorandum dated 22nd
October, 2014 issued by the ACC regarding the post selection
appointment process. No reasons have been advanced for
departing from the procedure as laid down. Since the
recommendation to scrap the panel in question was illegal,
unconstitutional and void, the ACC approval dated 3rd August,
2015 could not fasten on such void recommendation and would
be wholly ineffective.
It was further contended that scrapping of the panel in
question without even referring to the Office Memorandum dated
22nd October, 2014, disclosed not only a total non-application of
mind, but also amounts to an arbitrary departure from the
standards set out in the memorandum and no valid reasons have
been disclosed for the same in the pleadings filed on behalf of the
respondents and as such is violative of Article 14 of the
Constitution of India. There is no adverse allegation regarding
the integrity or competence of the writ petitioner. He had a
legitimate expectation of getting a fair consideration of
appointment as the Chairman-cum-Managing Director of ECL,
which, in the facts and circumstances of the case has been
denied to him. The concerned respondents could have suo moto
reversed the scrapping of the panel after the final CVC clearance
came on 16th September, 2015 and failure to do so demonstrates
mala fide intention on their part. That apart and in any event, in
the facts of the instant case, the decision to scrap the panel in
question was unreasonable, unfair and without any justification.
It was finally contended that in a proper case (such as this one),
in order to prevent injustice, the Court may by itself pass an
order or give a direction which the Government or the Public
Authority should have passed or given, had it properly and
lawfully exercised its discretion. It was specifically submitted that
the present case may be treated in such category.
Learned senior counsel appearing on behalf of the writ
petitioner referred to various decisions of the Hon'ble Supreme
Court in order to buttress his submission which are enumerated
as follows :-
1. Amarjit Singh Ahluwalia (Dr.) v State of Punjab and
Others reported in (1975) 3 SCC 503.
2. A.P Aggarwal v Govt. of NCT of Delhi and Another
reported in (2000) 1 SCC 600.
3. AK Kraipak and Others v Union of India and Others
reported in (1969) 2 SCC 262.
4. Food Corporation of India v M/s Kamdhenu Cattle
Feed Industries reported in (1993) 1 SCC 71.
5. D.Ganesh Rao Patnaik and Others v State of
Jharkhand and Others reported in (2005) 8
SCC 454.
6. Associate Provincial Picture Houses, LTD. v
Wednesburry Corporation reported in (1947) 2 All
ER 680.
7. Comptroller and Auditor General of India, Gian
Prakash, New Delhi and Another v K.S
Jagannathan and Another reported in (1986) 2
SCC 679.
8. Director, SCTI for Medical Science & Technology
and Another v M. Pushkaran reported in (2008) 1
SCC 448.
9. Chimajirao Kanhojirao Shirkhe and Another v
Oriental Fire and General Insurance Co. Ltd.
reported in (2000) 6 SCC 622.
On the other hand, the learned Additional Solicitor General
of India appearing on behalf of the respondent nos. 1,2,3 and 4
relied on the affidavit affirmed by Sri Sanjib Bhattacharya on 15th
January, 2016, wherein it has, inter alia, been stated, to the
effect, as follows :-
1) Based on the advice of the CVC the matter was
placed before the disciplinary authority who directed
that the writ petitioner's case be considered only after
conclusion of the PE by CBI as advised by the CVC.
2) The concerned Ministry was not in a position to
anticipate by when the PE would be concluded by the
CBI and the then incumbent Chairman cum Managing
Director was to retire on May 31, 2015.
3) The matter was placed before the competent
authority who advised that since the CBI was directed
by the CVC to register a PE, the file should be
submitted after conclusion of the PE. Hence, it was
submitted that necessary steps were immediately
initiated for the selection of the writ petitioner and the
allegation that even after compliance of all the
necessary formalities for selection of the writ petitioner
by the PESB the concerned Ministry did not take any
steps, is false.
4) The letter by the CVC to the CBI did not mention
any timeline regarding the submission of vigilance
clearance in respect of the writ petitioner including
completion of enquiry by CBI and the incumbent
Chairman cum Managing Director of ECL was
superannuating on May 31, 2015. ECL was declared a
sick company and was referred to BIFR a few years
back and came out of purview of BIFR by the end of
financial year 2014-15 only. In order to carry on the
affairs of the company and to prevent its performance
from going down again, it was essential to have a
Chairman cum Managing Director at the earliest.
Finding no other alternative, a proposal was moved to
obtain approval of the ACC through DoPT to scrap the
existing panel recommended by PESB and initiate a
fresh selection process. The said proposal was
approved by the ACC as intimated by DoPT vide their
letter dated August 3, 2015.
5) CVC clearance with respect to the writ petitioner
was awaited since January 15, 2014 when the initial
letter to grant clearance with respect to extension of
tenure as Director (Technical) of ECL was sent to CVC
by the vigilance section of Union of India.
6) Union of India, through its vigilance section, was
regularly trying to communicate with CVC seeking
their clearance with respect to the writ petitioner,
initially for extension of the post of Director (Technical)
and post recommendation of his name for Chairman
cum Managing Director, ECL clearance was sought for
with respect to both.
7) By a letter dated November 18, 2014, after receipt
of the recommendation of the name of the petitioner for
the post of Chairman cum Managing Director, the CVC
was requested to provide its clearance as required for
extension of the post of Director (Technical) as well as
for processing the case for appointment to the post of
Chairman cum Managing Director, ECL.
8) At the time of seeking clearance for the post of
Chairman cum Managing Director, the clearance from
CVC was already awaited for more than 10 months.
9) By two letters dated December 2, 2014 and
January 1, 2015, Union of India, through its vigilance
section, requested the CVC to expedite the matter and
to convey its decision about vigilance clearance with
respect to the writ petitioner.
10) It was put forth by the writ petitioner that more
than two months have passed since his case was
referred to CBI/CVC and the same attracts provisions
of deemed clearance as contained in the memorandum
dated October 22nd, 2014. There is no such deemed
clearance as contained in the memorandum. The said
memorandum dated October 22nd, 2014 lays down
guidelines issued by ACC for processing proposals for
appointment to Board Level posts in CPSEs. It was
further submitted that a guideline issued by a different
authority which is ACC in the instant case, cannot
substitute a clearance required from another authority
viz. CVC. In fact, no person can claim any clearance
from a statutory authority as a matter of right. It has
been stipulated in the said guideline in clause 4 (b)(i)
that in case vigilance clearance is not denied by CVC
within 2 months period stipulated above (which would
include consultation with CBI/CBI clearance, reference
to the CVO of the Ministry for any report, clarification
etc.), the Ministries shall proceed with the appointment
process without waiting any further. The use of the
word 'process' after appointment itself clarifies that the
administrative authority (i.e the ministry concerned)
has to submit its opinion/recommendation vis-à-vis
the appointment to ACC, which is the ultimate
authority to take decision in this regard.
11) ECL was declared a sick company and referred to
the Board for Industrial and Financial Reconstruction
(hereinafter referred to as ''BIFR'') a few years back. It
came out of the purview of BIFR by the end of the
financial year 2014-15. In order to carry on the affairs
of the company and to prevent its performance from
going down again, it was essential to have a regular
Chairman cum Managing Director at the earliest.
Therefore, it was proposed that instead of waiting
indefinitely to know the outcome of the PE by the CBI,
it would be appropriate to scrap the panel and initiate
a fresh selection process. A proposal was accordingly
forwarded to DoPT to obtain the approval of the ACC.
ACC approved the proposal and PESB was requested
to initiate a selection process.
The learned Additional Solicitor General, while relying on
and referring to the said affidavit further submitted that the
memorandum/circular of ACC dated 22nd October, 2014 does not
apply since it was not there when the selection process was
initiated and therefore was not followed by the concerned
Ministry and that, in any case, the said memorandum /circular
was not applicable. Once the panel is scrapped by the ACC, the
writ petitioner can no longer be considered again unless this
Court so directs and the ACC cannot effect reversal of scrapping
of the panel by itself. He further submitted that an
administrative regulation has no statutory force and does not
confer any legal right and cannot be enforced in a court of law.
He also submitted that no vested right is created by
empanelment. The panel can be scrapped for any valid reason.
The learned Additional Solicitor General relied on the
following judgments of the Supreme Court in support of his
contentions:-
1. Syndicate Bank Vs. Ramachandran Pillai & Ors.
reported in (2011) 15 SCC 398.
2. Chief Commercial Manager, South Central Railway,
Secunderabad and Others v G. Ratnam reported in
(2007) 8 SCC 212.
3. Mukut Bihari & Anr. Vs. State of Rajasthan reported
in (2012) 11 SCC 642.
4. Vijoy Kumar Pandey Vs. Arvind Kumar Rai & Ors.
reported in (2013) 11 SCC 611,
5. State of Orissa & Anr. Vs. Rajkishore Nanda & Ors.
reported in AIR 2010 SC 2100 = (2010) 6 SCC 777
6. Rakhi Ray & Ors. Vs. High Court of Delhi & Ors.
reported in (2010) 2 SCC 637,
7. Union of India & Ors. Vs. NP Dhamania & Ors.
reported in 1995 Supp (1) SCC 1
8. Dr H Mukherjee Vs. Union of India & Ors. reported
in 1994 Supp (1) SCC 251
The learned senior counsel appearing on behalf of Coal
India Limited adopted the submissions advanced by the learned
Additional Solicitor General of India. He also submitted that the
post-in-question is lying vacant since 1st June, 2015 due to
superannuation of the last incumbent in office on 31st May, 2015.
As such, there is an imperative necessity for the post to be filled
up without any further delay.
After considering the respective contentions of the parties, it
appears that the moot question which falls for consideration in
the facts and circumstances of the instant case is whether the
recommendation of scrapping of the panel in question comprising
of the name of the selected candidate, i.e., the writ petitioner, by
the concerned Ministry on 29th May, 2015, can be construed to
be illegal and unconstitutional because the concerned Ministry
did not follow the laid down procedure as contained in the
compilation of guidelines dated 11th June, 2014, read with the
Office Memorandum of the ACC dated 22nd October, 2014.
In order to find an answer to this issue it may not be out of
context to refer to the compilation of guidelines dated 11th June,
2014, as well as the Office Memorandum dated 22nd October,
2014. However, even before that, two relevant dates have to be
kept in mind. The first date is when the panel in question was
recommended by the PESB, i.e., 28th October, 2014. The other
date is 3rd August, 2015, when the panel was scrapped on the
recommendation made by the concerned Ministry, as contained
in its letter dated 29th May, 2015.
From the above two dates it will be clearly apparent that
when PESB recommended the panel on 28th October, 2014, the
compilation of guidelines dated 11th June, 2014 and the Office
Memorandum dated 22nd October, 2014 for processing proposals
for appointment to Board Level posts in Public Sector
Enterprises, issued by the Secretariat of the ACC, were already in
force.
The compilation of existing guidelines was issued on 11th
June, 2014 by the Secretariat of the Appointment Committee of
the Cabinet, Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel & Training) Government of
India, which included a D.O.No. 29(3) EO/2008(ACC) dated 27th
May 2008 issued by the Cabinet Secretary wherein it has been
clearly stated that the panel of names recommended by PESB is
valid for a period of one year and needs to be revalidated before
submission to ACC. Although the selection process was initiated
on the basis of an advertisement dated 29th May, 2014 for the
post of Chairman-cum-Managing Director of ECL, the
recommendation for appointment of the writ petitioner to the post
in question was made on 28th October, 2014. As such, the panel
was supposed to be valid at least till 27th October, 2015. The
panel was scrapped on 3rd August 2015 by the ACC on the
recommendation made by the concerned Ministry, as contained
in its letter dated 29th May, 2015. The said letter dated 29th May
2015, which has been set out hereinbefore, clearly reveals that
the reason for making the recommendation for scrapping of the
panel containing the name of the writ petitioner was that because
there were no timelines indicated either by the CVC or by the CBI
with regard to enquiry being made by the said two authorities in
the matter of irregularities in procurement of 240 & 190 MT
dumpers and 20 cubic metre shovels. As such, the concerned
Ministry was of the view that it was not worthwhile to pursue the
proposal of the writ petitioner's appointment any further. On this
ground alone it was decided by the concerned Ministry to
recommend scrapping of the panel so that the PESB could
initiate fresh selection at the earliest.
It is necessary at this stage to carefully consider the
guidelines prescribed by the ACC which are clearly applicable in
the instant case. A bare perusal of Office Memorandum
containing the guidelines issued on 22nd October, 2014 by the
Secretariat of the ACC, brings into light the fact that it was
observed that the timelines prescribed for processing the
proposals for appointments to Board level posts in CPSEs were
not being adhered to. The resultant delay in filing up the Board
level vacancies had been a matter of serious concern for the
Government. In order to address this issue effectively, a rigid
timeline was set out not only for information but also for
strict compliance (emphasis supplied). The timelines as
contained in the guidelines issued on 22nd October, 2014 are
setout hereinbelow :-
PESB will initiate the PESB Initiate selection
process for filling up of process 1 year
Board level vacancies prior to date of
at least one year prior vacancy; send
to the date on which 6 months recommendation
the vacancy arises. prior to s to Ministry 6
(The Ministry schedule months before
concerned shall be d expiry date of vacancy
responsible to intimate of tenure
all anticipated
vacancies to the PESB
well in time for this
process to commence.)
PESB will complete the
selection process and
send its
recommendations to
the Ministry at least 6
months prior to the
date of vacancy.
Ministry concerned will MINISTRY
forward the PESB 10 days Forward
recommendation with vigilance profile
vigilance profile of the to CVC
selected individual to
CVC within 10 days
from the receipt of
PESB recommendation.
CVC will complete the CVC
vigilance clearance
process within two 60 days Vigilance
months from the date clearance or
of receipt of the denial including
vigilance profile of the consultation
selected candidate with CBI
from the Ministry and
send it to the Ministry.
The period of two
months will include
consultation with
CBI/CBI clearance,
reference to the CVO of
the Ministry for any
report, clarifications,
etc.
The Ministry concerned MINISTRY
will, with the approval
of the Minister, forward 10 days will forward
the proposal to ACC with Minister's
Secretariat (E.O.) approval
within the next 10
days.
The ACC will thereafter
take a decision on the
proposal within six ACC
weeks of the receipt by 6 Weeks Decision
the ACC Secretariat
The timelines, as reproduced hereinbefore, reveal that the
concerned Ministry is required to forward the PESB
recommendation with the vigilance profile of the selected
individual to CVC within ten days from the receipt of the
recommendation. CVC is required to complete the vigilance
clearance process within two months from the date of receipt of
the vigilance profile of the selected candidate from the Ministry
concerned and send it back to the said Ministry. This period of
two months will include consultation with CBI/CBI clearance,
reference to the CVO of the Ministry for any report, clarifications,
etc. The Ministry concerned, thereafter, is supposed to forward
the proposal to the ACC Secretariat (E.O.) within the next ten
days upon obtaining approval from the Minister. The ACC is
thereafter required to take a decision on the proposal within six
weeks of its receipt by its Secretariat. The respondent No.2,
being the Establishment Officer, ACC, is required to monitor
compliance of the above timelines and bring any abnormal or
unexpected delay to the notice of the Cabinet Secretariat.
Nothing is stated in the affidavit affirmed, inter alia, on
behalf of the respondent No. 2, being the Establishment Officer,
ACC, wherefrom it will appear that the said Establishment
Officer, ACC, either monitored compliance of the prescribed
timelines or brought any abnormal or unexpected delay in
processing of the matter to the notice of the Cabinet Secretariat
at any stage. From the said affidavit it also does not appear that
the concerned Ministry - in order to facilitate monitoring of the
proposal at every stage - uploaded or updated the data filled in
AVMS on real time basis so that effective monitoring could be
done. The most significant aspect in the instant case is complete
non-adherence to clause 4 of the guidelines dated 22nd October,
2014. Clause 4 (a) is quite clear and specific. It states, inter alia,
that instructions contained in DoPT's Office Memorandum dated
18th October, 2013, regarding handling of
pseudonymous/anonymous complaints should be strictly
adhered to at all levels. Further, as per CVC's instructions issued
vide office order dated 31st August, 2004, no cognizance should
be taken of any complaint received within six months prior to the
initiation of the selection process. For this purpose, the date of
interview held by the PESB would be the crucial date; six months
prior to which no cognizance would be taken of complaints
received against the selected candidates. Such complaints
should however be dealt separately and necessary action be
taken in the event of any adverse conclusion even after the
appointment is made (emphasis supplied). Clause 4 (b) which is
squarely applicable in the present case clearly states that in case
vigilance clearance is not denied by CVC within the two months
period stipulated in clause 4(a) (which would include
consultation with CBI/CBI clearance, reference to the CVO of the
Ministry for any report, clarifications, etc.), the Ministry
concerned shall proceed with the appointment process, without
waiting any further (emphasis supplied). In the instant case,
the concerned Ministry has simply ignored the specific
instructions/guidelines and has not even adverted to the
applicable guidelines while issuing the letter dated 29th May,
2015.
The submission advanced by the learned Additional Solicitor
General that the guidelines were not in force when the selection
process was initiated, cannot hold much water since it has been
very specifically stated by the respondent nos. 1, 2, 3 and 4 in
paragraphs 9 & 10 of their affidavit-in-opposition, inter alia, to
the effect that the memorandum containing the guidelines dated
22nd October, 2014 was followed in its true spirit. As such, the
submission made by the learned Additional Solicitor General is
contrary to his clients' pleadings. In this context, one may take
notice of the judgment of the Hon'ble Supreme Court rendered in
Chimajirao's case (supra), wherein it has been held, inter alia, to
the effect that the approach of the High Court was not proper.
The High Court (in the facts of that case) had committed an error
in setting aside the finding given by the trial Court specially in
view of the specific plea taken in the written statement. The
Supreme Court went on to observe that the High Court felt that
since it was a legal matter, it could be adjudicated
notwithstanding a different stand in its pleading, which approach
was not proper. Once a stand in fact is taken, that fact could not
be controverted by any legal proposition. That parties cannot take
a stand different from their pleadings - which form the
foundation of their case - is quite well settled and will also be
evident from the observations made by the Supreme Court in the
case of Vinod Kumar Arora vs. Surjit Kaur reported in (1987) 3
SCC 711 (paragraph 11). It has been further observed, inter alia,
that it is not open to the parties to give up their case set out in
the pleadings and propound a new and different case.
In the facts of the instant case, the recommendation of
scrapping of the panel made by the concerned Ministry on 29th
May, 2015 - without following the prescribed guidelines as
contained in the Office Memorandum of the Secretariat of the
ACC dated 22nd October, 2014 - therefore, was unconstitutional,
being wholly illegal and arbitrary. Even if the guidelines
contained in the Office Memorandum dated 22nd October, 2014
was not based on any statutory provision and was merely an
administrative instruction issued by the Secretariat of the ACC in
exercise of its executive power, such guidelines or administrative
instructions will continue to have the force of statute in the
absence of any statutory rules regulating the recruitment process
in question. In this context one may take notice of the judgment
rendered by the Supreme Court in the case of Dr. Amarjit Singh
Ahluwalia (supra) (paragraph 8). It was the bounden duty of the
concerned Ministry to follow the prescribed guidelines as issued
by the ACC from time to time unless those guidelines were
contrary to any specific statutory rules in force. Having not
adhered to the prescribed guidelines while issuing the letter
dated 29th May, 2015, the action of the concerned Ministry falls
susceptible to the vice of arbitrariness which is the crux of Article
14 of the Constitution of India and basic to the rule of law, the
system which governs us (see Kumari Shrilekha Vidyarthi v State
of UP reported in (1991) 1 SCC 212), which has been referred to
and relied upon by the Supreme Court in its latter decision
rendered in the case of A.P.Aggarwal (supra) (paragraph 12).
Since the recommendation for scrapping of the panel is
unconstitutional, being illegal and arbitrary, the consequential
action of the ACC granting approval to such recommendation for
scrapping of the panel cannot have any effect, the
recommendation by itself being void ab initio. In this context, one
may take notice of the observations made by the Supreme Court
in paragraph 21 of A.K.Kraipak's case (supra).
Undoubtedly, the petitioner had a legitimate expectation of
getting a fair consideration in the selection process for
appointment as Chairman-cum-Managing Director, ECL. The
recommendation for scrapping of the panel made by the
concerned Ministry on 29th May, 2015, has resulted in denial of
such legitimate expectation. In the case of Food Corporation of
India vs M/s Kamdhenu Cattle Feed Industries (supra), it has
been held, inter alia, as follows:
" The mere reasonable or legitimate expectation
of a citizen, in such a situation, may not by itself
be a distinct enforceable right, but failure to
consider and give due weight to it may render the
decision arbitrary, and this is how the requirement
of due consideration of a legitimate expectation
forms part of the principle of non-arbitrariness, a
necessary concomitant of the rule of law. Every
legitimate expectation is a relevant factor requiring
due consideration in a fair decision-making
process. Whether the expectation of the claimant is
reasonable or legitimate in the context is a
question of fact in each case. Whenever the
question arises, it is to be determined not
according to the claimant's perception but in larger
public interest wherein other more important
considerations may outweigh what would
otherwise have been the legitimate expectation of
the claimant. A bona fide decision of the public
authority reached in this manner would satisfy the
requirement of non-arbitrariness and withstand
judicial scrutiny. The doctrine of legitimate
expectation gets assimilated in the rule of law and
operates in our legal system in this manner and to
this extent. "
The facts of the case, as narrated earlier, palpably
demonstrate that the decision of the concerned Ministry to scrap
the panel was so unreasonable that no reasonable authority
could have come to such conclusion. The Court, in such
circumstances, has power to interfere. In this context, one may
take notice of the well-known principles of law laid down in
Wednesbury Corporation's case (supra). Even if it is held that
the concerned Ministry had discretion to recommend scrapping of
the panel, such discretion was exercised palpably wrongly based
on irrelevant considerations upon ignoring relevant
considerations and materials. This is one such case which is a
classic example of where the High Court ought to exercise its
extraordinary discretionary jurisdiction under Article 226 of the
Constitution of India and issue an appropriate writ of mandamus
or a writ in the nature of mandamus in order to do justice. The
observations made by the Supreme Court in Comptroller and
Auditor General's case (supra) which are of significance in the
facts of the instant case are set out hereinbelow:
" There is no doubt that the High Courts of
India exercising their jurisdiction under Article 226
have the power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass orders
and give necessary directions where the
Government or a public authority has failed to
exercise or has wrongly exercised the discretion
conferred upon it by a statute or a rule or a policy
decision of the Government or has exercised such
discretion mala fide or on irrelevant considerations
or by ignoring the relevant considerations and
materials or in such a manner as to frustrate the
object of conferring such discretion of the policy for
implementing which such discretion has been
conferred. In all such cases and in any other fit
and proper case a High Court can, in the exercise
of its jurisdiction under Article 226, issue a writ of
mandamus or a writ in the nature of mandamus or
pass orders and give directions to compel the
performance in a proper and lawful manner of the
discretion conferred upon the Government or a
public authority, and in a proper case, in order to
prevent injustice resulting to the concerned parties,
the Court may itself pass an order to give
directions which the Government or the public
authority should have passed or given had it
properly and lawfully exercised its discretion."
By recommending scrapping of the panel on 29th May, 2015,
(i.e., much before its validity expired), the concerned Ministry
denuded the right of the writ petitioner from even being
considered for appointment by the ACC. Even if he did not finally
secure his appointment as the Chairman-cum-Managing Director
of ECL, at least he would have got a fair consideration by the
ACC which was denied due to the illegal and arbitrary action of
the concerned Ministry. In the facts of the instant case, therefore,
the ratio of the judgment of the Supreme Court in the case of
Director, SCTI for Medical Science & Technology (supra),
while upholding the decision of the High Court and dismissing
the appeal, is clearly applicable.
The arbitrariness demonstrated by the concerned Ministry
becomes even more palpable and evident if one takes note of two
dates, both of which are well before the expiry of the one year
validity period of the recommended panel. The first date is 4th/5th
August, 2015, when the 240 and 190 MT dumpers and 20 cubic
metre electric rope shovels issues were put to rest by the CVC -
about 2 months and 24 days before expiry of the validity period of
the panel recommended by the PESB. The other date is 16th
September, 2015, when the CVC addressed a letter to the
concerned Ministry stating that there was nothing adverse in its
record in respect of the writ petitioner. This was the final
clearance of the writ petitioner for being considered for
appointment as the Chairman cum Managing Director, ECL. This
clearance was received one month 12 days before expiry of the
panel of the PESB recommending the writ petitioner as the
selected candidate.
What is of even more significance to note at this stage is
that the competent authority of the concerned Ministry -
although alive to the fact that the post of Chairman cum
Managing Director of ECL was to fall vacant on 1st June, 2015,
due to superannuation of Shri Rakesh Sinha, Chairman cum
Managing Director of ECL on 31st May 2015, even when
recommendation for the writ petitioner's appointment for the post
in question was made by the PESB as far back on 28th October,
2014 - the concerned Ministry chose to wait till 29th May, 2015
(i.e. 48 hours before the incumbent in office of the Chairman cum
Managing Director of ECL was scheduled to superannuate) for
the purpose of making a recommendation for scrapping of the
panel and that too, by stating to the effect that since no timelines
have been indicated by the CVC or CBI, the process of
submission of the file after conclusion of the PE by the CBI was
likely to be delayed indefinitely. As such, the concerned Ministry
was of the view that it was "not worthwhile" to pursue the
proposal of the writ petitioner's appointment any further, even
after waiting for seven months since the date of making
recommendation, i.e., 28th October, 2014. Further, it is noticed
that although it took seven months from the date when
recommendation was made by the PESB, i.e., 28th October, 2014
till 29th May, 2015 in order to finally come to a conclusion that it
was "not worthwhile" to wait further and decided to go ahead by
recommending scrapping of the panel, the concerned Ministry did
not mention - even for once - in its letter dated 29th May, 2015,
how it would be beneficial to the interest of ECL to start the
process afresh, especially when the incumbent in office of the
Chairman-cum-Managing director of ECL was scheduled to retire
within forty eight hours - other than merely stating that it would
be "not worthwhile". Significantly, in its letter dated 29th May,
2015, the concerned Ministry has referred to the CVC's letter
dated 4th February, 2015 informing the concerned Ministry of
the decision taken by the Commission to ask the CBI to register a
Preliminary Enquiry in the matter of irregularities in
procurement of 240 & 190 MT dumpers and 20 cubic metres
shovels and for submission of a report after thorough
investigation. If the competent authority of the concerned
Ministry had full knowledge of the CVC's letter dated 4th
February, 2015, why did the concerned Ministry wait from that
date till exactly forty eight hours before the incumbent in office
was scheduled to retire (a period of almost four months), in order
to suddenly come to a conclusion that it was "not worthwhile" to
wait further - does not surface from the letter dated 29th May,
2015.
There can be no better demonstration of sheer arbitrariness
and an action which is not bona fide, to say the least. The
concerned Ministry not only ignored the prescribed timelines as
clearly stated in the applicable guidelines, its very action of
making recommendation for scrapping of the panel only 48 hours
before the superannuation of the incumbent in office - an
inescapable fact, which was to the knowledge of the concerned
Ministry even when the writ petitioner was selected and his name
was recommended for appointment as far back on 28th October,
2014 - is a clear pointer to the manner in which the concerned
Ministry has acted in the facts of the instant case. The facts are
so glaring and palpable that they do not require any further
elucidation. The concerned Ministry's action cannot withstand
scrutiny in judicial review and fails all known tests laid down by
the Courts till now. Such type of administrative action is wholly
perverse and contrary to the established principles of law which
would allow it to pass scrutiny in judicial review.
Now, to deal with the judgments referred to and relied upon
by the learned Additional Solicitor General. In Syndicate Bank's
case (supra), the Supreme Court held in paragraph 6 as follows:-
" If any executive instructions are to have the
force of statutory rules, it must be shown that they
were issued either under the authority conferred
on the Central Government or a State Government
or other authority by some statute or the
Constitution. Guidelines or executive instructions
which are not statutory in character, are not
"laws", and compliance therewith cannot be
enforced through courts. Even if there has been
any violation or breach of such non-statutory
guidelines, it will not confer any right on any
member of the public, to seek a direction in a court
of law, for compliance with such guidelines. An
order validly made in accordance with a statute
(as in this case the Public Premises Act), cannot be
interfered with, even if there has been any
transgression of any guidelines, except where it is
arbitrary or mala fide or in violation of any
statutory provision. These are well-settled
principles (see Union of India v. S.L. Abbas [(1993)
4 SCC 357 : 1994 SCC (L&S) 230 : (1993) 25 ATC
844] , South Central Railway v. G. Ratnam [(2007)
8 SCC 212 : (2007) 2 SCC (L&S) 851] and State of
U.P. v. Gobardhan Lal [(2004) 11 SCC 402 : 2005
SCC (L&S) 55] )."
There cannot be any dispute to the proposition of law laid
down by the Supreme Court. It is clear from the plain language
used by the Supreme Court that if there is any arbitrariness or
mala fide action which results in transgression of any guidelines,
the Court can interfere. In the instant case it is clearly evident
that the Office Memorandum dated 22nd October, 2014,
containing the applicable guidelines, has not been adhered to by
the concerned Ministry most arbitrarily, without assigning any
reason, which will be clear from a plain reading of the letter dated
29th May, 2015. The question in the facts of the instant case is
not whether a mandatory direction can be issued against the
concerned respondent authorities for enforcement of the
guidelines as applicable, since in the affidavit-in-opposition it has
been clearly admitted that the guidelines have been followed. The
question is, whether the respondent authorities can make out a
case contrary to its own pleadings while referring to this
judgment. The answer is surely in the negative.
In Chief Commercial Manager, South Central Railway's
case (supra), the same principle of law as stated in Syndicate
Bank's case (supra) with regard to enforceability of administrative
/ executive instructions through issuance of writ against the
Government under Article 226 of the Constitution of India, has
been stated in a fact situation which is distinct - relating to a
departmental proceeding - that is not at all applicable in the
instant case where the selection or appointment process has
been dealt with by the concerned Ministry in an arbitrary manner
without even referring to or following the applicable guidelines. In
Mukut Bihari's case (supra) the same principle of law, as laid
down by the Supreme Court in Chief Commercial Manager,
South Central Railway's case (supra), has been restated.
On the other hand, as discussed hereinbefore, the writ
petitioner has referred to Dr. Amarjit Singh Ahluwalia's case
(supra) which has been rendered by a three Judge Bench. It has
been, inter alia, held therein to the effect that even an
administrative instruction, not having the force of law, cannot be
departed from, by the State at its sweet will, without rational
justification and such departure would be clearly violative of
Articles 14 and 16 of the Constitution of India. The sweep of
Articles 14 and 16 is wide and pervasive. These two Articles
embody the principle of rationality and they are intended to strike
against arbitrary and discriminatory action taken by the State.
Where the State departs from a principle which finds its place in
administrative instructions and such departure is without reason
or arbitrary, it would directly infringe guarantee of equality under
Articles 14 and 16 of the Constitution of India. As stated
hereinbefore, the facts of the instant case clearly demonstrate
such arbitrariness on the part of the concerned Ministry which
has departed from the timelines, as prescribed in the applicable
guidelines, without giving even an iota of reason. In this context,
it may be worthwhile to quote paragraphs 35 and 36 of Kumari
Shrilekha Vidyarthi's case (supra) which has been referred to
and relied upon in A.P.Aggarwal's case (supra).
"35. It is now too well settled that every State
action, in order to survive, must not be susceptible
to the vice of arbitrariness which is the crux of
Article 14 of the Constitution and basic to the rule
of law, the system which governs us. Arbitrariness
is the very negation of the rule of law. Satisfaction
of this basic test in every State action is sine qua
non to its validity and in this respect, the State
cannot claim comparison with a private individual
even in the field of contract. This distinction
between the State and a private individual in the
field of contract has to be borne in the mind.
36. The meaning and true import of arbitrariness
is more easily visualized than precisely stated or
defined. The question, whether an impugned act is
arbitrary or not, is ultimately to be answered on
the facts and in the circumstances of a given case.
An obvious test to apply is to see whether there is
any discernible principle emerging from the
impugned act and if so, does it satisfy the test of
reasonableness. Where a mode is prescribed for
doing an act and there is no impediment in
following that procedure, performance of the act
otherwise and in a manner which does not
disclose any discernible principle which is
reasonable, may itself attract the vice of
arbitrariness. Every State action must be informed
by reason and it follows that an act uninformed by
reason, is arbitrary. Rule of law contemplates
governance by laws and not by humour, whims or
caprices of the men to whom the governance is
entrusted for the time being. It is trite that 'be you
ever so high, the laws are above you'. This is what
men in power must remember, always."
Further, in A.P.Aggarwal's case (supra), it has been held to
the effect that even if an office memorandum is not mandatory
and is discretionary in nature, such discretion is coupled with
the duty to shun the arbitrariness in its exercise.
There is no dispute to the proposition of law laid down by
the Supreme Court in the three judgments referred to by the
learned Additional Solicitor General, namely, Vijoy Kumar
Pandey (supra), State of Orissa and Another (supra) and Rakhi
Ray and Others (supra) wherein it has been held that no vested
right is created by inclusion of the name of a candidate in any
panel which can, for good and valid reasons, be scrapped by the
competent authority. A person whose name appears in the select
list does not acquire any indefeasible right of appointment. The
facts of the instant case, however, reveal an action by the
concerned Ministry which is palpably unconstitutional, being
illegal and arbitrary for reasons stated earlier. As such, the ratio
of the three judgments is not at all applicable in the facts of the
instant case.
The other two judgments referred to by the learned
Additional Solicitor General are Union of India and Others vs
N.P.Dhamania (supra) and Dr. H. Mukherjee vs. Union of India
and Others (supra). In Union of India and Others vs.
N.P.Dhamania (supra), the Supreme Court has held, inter alia,
that recommendations of the Departmental Promotion Committee
(DPC) are advisory in nature and not binding on the appointing
authority. It is open to the appointing authority to differ from the
recommendation in public interest. However, in the event the
ACC differs from the recommendations of the DPC, it must give
reasons for so differing, in order to ward off any attack of
arbitrariness. Therefore, the Supreme Court makes it clear that
in a case where ACC differs with the recommendation of a like
nature without giving reasons, such act could be challenged
under Article 226 of the Constitution of India. In Dr. H.
Mukherjee (supra), the Supreme Court was considering a
decision rendered by the Principal Bench of the Central
Administrative Tribunal, whereby the Tribunal directed the ACC
to reconsider the suitability of the respondent for appointment to
the post of Chief Controller of Explosives, without taking into
consideration the adverse remarks made against him and the
outcome of the CBI's inquiry in which he was exonerated and in
the light of the observations contained in its judgment. In such a
factual backdrop, the Supreme Court held to the effect that it
was well settled that the function of the Public Service
Commission being advisory, the Government may for valid
reasons to be recorded on the file, disapprove of the advice or
recommendation tendered by the Commission, which decision
can, if at all, be tested on the limited ground of it being
thoroughly arbitrary, mala fide or capricious. The judgment
cannot be of any assistance to the learned Additional Solicitor
General not only because it has been rendered in a completely
different fact situation, it has been clearly stated therein that a
decision by the Government, on the advice or recommendation
tendered by the Public Service Commission, can be tested on the
ground of it being thoroughly arbitrary, mala fide or capricious.
As such, the principles of law laid down is more applicable in the
writ petitioner's case.
Having held that since the recommendation for scrapping of
the panel is unconstitutional, being illegal and arbitrary, the
consequential action of the ACC granting approval to such
recommendation cannot have any effect - the recommendation by
itself being void ab initio - this Court directs the Secretary,
Ministry of Coal, to treat the panel valid as of date and take
necessary steps to ensure that the proposal for appointment of
the writ petitioner as the Chairman-cum-Managing Director of
ECL, reaches the Secretariat of the ACC alongwith a copy of this
judgment and order, within a period of a fortnight from date of
communication of a photostat certified copy of this judgment and
order. Once the proposal reaches the Secretariat of the ACC, the
respondent no.2, being the Establishment Officer of the ACC,
shall ensure that the said proposal alongwith a copy of this
judgment and order is placed before the ACC for its consideration
not later than a fortnight therefrom to enable the ACC to take a
final decision within the shortest possible time based on the
observations made in this judgment and order. Considering the
singular feature of this case, in the event the writ petitioner is
denied appointment by the ACC, cogent reasons have to be
supplied to the writ petitioner within a fortnight from the date of
such denial. The timelines, as directed above, shall be strictly
adhered to by the concerned respondents without any deviation
therefrom under any circumstances.
The writ petition is accordingly disposed of.
Urgent photostat certified copy of this judgment and order,
if applied for, be supplied to the parties on priority basis.
Biswanath Somadder, J.
